Doctrine Of Precedent Flashcards
What is judicial precedent?
Source of law where past decisions of judges creat law for future judges to follow, known as “case law” or “common law”
What is task of judge?
State the law and apply it to case before them. Doctrine of precedent means that if judge finds there has been a previous decision by a higher court in a similar case, they must follow it, these can be found in law reports
This promotes fairness and provides legal certainty
What will judge do after case?
Write a “judgement” published in a law report, they explain reasoning and why they felt bound to follow one case rather than another. The judgement may become precedent itself applied later
What is stare decisis?
“To stand by what has been previously decided”
It is a fundamental principle of precedent, earlier case stands as guidance for later case.
E.g. Donoghue v Stevenson (1932) decided duty of care is owed by manufacturers to consumers creating “neighbour principle” in negligence
What is Ratio decidendi?
Legal principle upon which the decision of the court is based, “the reason for deciding”
Most important part of case as it’s the binding part of decision, must be followed
E.g. R V Howe (1987) Defense of duress not available for murder used in Ashley Wilson (2007) where 13 yo helped father kill mother
What is obiter dicta?
“Other things said”, rest of judgment from judge apart from ratio decidendi
Do not have to follow but useful guidance
In R v Gotts (1992) COA persuaded to follow obiter dicta from R V Howe, in which SC said duress should not be defence for attempted murder
What is court heirachy?
Under judicial precedent, every court bound to follow decisions of courts above, appeal courts bound to there own previous decisions
What is the court heirachy in civil/criminal
Supreme Court > Court of Appeal > divisional couet/kings bench divisional > high court/crown court > county/magistrates
What is Supreme Court role in heirachy?
- replaced House of Lords as highest court in 2009
- decision binds to all other courts
- normally follows own previous decisions but can use practise directions when it “appears right to do so”
What is Court of appeal role in hierarchy?
- must follow Supreme Court
- decisions by one decision not bind to other decision
- civiil divisions bound to follow past decisions (with some exceptions e.g. Young V Bristol Aeroplanes 1944
- crimin div normally follow past but May divert when persons Liberty at stake e.g. R v should 1969
What is High court role in heirachy?
- bound to SC and COA
- will usually follow past decisions but can divert in exceptions if conflicting previous decisions
- high courts bind courts below
What is crown, county and mag court role in hierarchy?
- bound by all higher courts
- courts of first instance do not create precedents, although crown for mag
What is AOP file in precedent?
Statue law is highest source as democratically elected
If contradicts precedent, it is now the law on the point
What is HRA 1998 effect on precedent?
Act gives courts freedom to ignore precedent if contradicts ECHR, all courts must take into account ECtHr decisions
In case of are Medicaments no.2, Director of Fair Trading v Properietary Assiciation of GB (2001) could ignore R V Gough (1996)
