Doctrine of Precedent Flashcards
What is precedent?
Source of law
Past decisions of the judges create law for future judges to follow
What is judicial precedent also known as?
Case/ common law
What is precedent bases upon?
Latin phrase ‘stare decisis’
- To stand by what has already been decided
How does precedent work?
Judges of lower Cts must apply decisions set by higher Cts
Once precedent = made, MUST be followed
What are the 2 parts to a precedent?
What do they mean?
- Ratio decidendi - Reason for deciding
2. Obiter Dicta - Other things said
What is ratio decidendi?
Most important part of the decision - the reason (statement) of why you decided it
What was established
R v R (1991) HL - rape within marriage illegal
What is obiter dicta?
Other things said by the judge
Not binding but may influence future judges in future cases
Hypothetical situation
What was the ratio decidendi and the obiter dicta in R v Howe
Ratio: duress = unavailable D charged murder
Obiter dicta: judge said that they thought the defence of duress should be unavailable for attempted murder too (Howe = murder case)
What are the 3 types of precedent?
- Original
- Binding
- Persuasive
What is persuasive precedent?
Precedent judge is not obligated to follow
What is original precedent?
When Cts have no previous case law to apply to the facts of their case
Judges look at similar cases + make a decision by ‘reasoning by analogy’
e.g Donoghue v Stephenson (1932) - duty of care
What is binding precedent?
Precedent that is binding for other judges to follow
Set by judges in the higher courts
What are the 5 sources of persuasive precedent?
- Court lower down in the hierarchy (R v R)
- Decisions of judicial committee of privy council
- Obiter dicta statements (R v Howe -> R v Gotts)
- Dissenting judgements
- Decisions of Cts from other countries (especially commonwealth)
R v R (1991)
HL agreed with the CA that a man could be found G of raping his wife
(persuasive precedent)
Why is the Privy Council a source of persuasive precedent?
Not part of the English Ct structure
= final CA for some commonwealth countries, so decisions aren’t binding on Eng Cts
BUT can be followed by Cts
Supreme Ct = superior
R v Gotts
Attempted murder case
Supreme Ct was persuaded by obiter in R v Howe - that the defence of duress was unavailable to attempted murder.
What is dissenting judgement?
Judge who disagrees with maj = referred as a dissenting judgement
Case is decided by the majority of judges (CA = 2-1)
What happens if there is a dissenting judgement and the case /similar future case gets referred to Supreme Ct?
Ct can prefer the dissenting judgement
What is the Ct hierarchy in civil cases?
ECJ Supreme Ct CA (Civil division) High Ct County Ct Magistrate's Ct
What is the Ct hierarchy in criminal cases?
ECJ Supreme Ct CA (Criminal division) QBD/ High Ct Crown Ct Magistrate's Ct
What was the Supreme Ct previously called?
Why was it changed?
HL
Now have clarity over wether = 2nd chamber of P or Ct in our legal system
Whose rulings does the supreme Ct have to follow?
European Ct on matters of EU law only
What is the 1966 Practice Statement?
Supreme Ct can depart form previous decisions (overrule) if they see it ‘right to do so’
ONLY applies to supreme Ct
Who issued to PS?
Lord Chancellor + Lord Gardiner
Why was the PS issued?
Create flexibility in law so precedent wouldn’t lead to injustices
What was the 1st major civil case that the PS was used in?
Herrington v British Railway Board (HL)
overruled
Addie v Dumbreck
on duty of care owed to a child trespasser
What is a danger of the PS being used too many times?
Too many inconsistencies - sometimes judges refuse to use it, even if they disagree with previous decisions
At what time did the HL become more willing to use the PS?
Mid 1970s
What case lifted the ban on using Hansard in statutory interpretation?
Davis v Johnson
HL overruled Pepper v Hart
Can the PS be used in criminal law?
Yes not too often
Stressed that criminal law needs to be certain
When was the 1st time the PS was used in a criminal case?
20 years after being issued
Anderton v Ryan (1985) was overruled by R v Shivpuri (1986)
- on attempting to commit a crime that = impossible to commit
Do the decisions made by the divisions in the CA bind each other?
No
What division of the CA must always try to follow the Supreme Ct?
Civil
What did Lord Denning believe about the PS and the CA?
Ca should have the same powers as supreme Ct and be able to depart from previous decisions too
What were the 5 points that Lord Denning argued?
- Not all cases go to supreme Ct (lack of ££)
- Would save unnecessary appeals, charter for parties involved
- Pressure of time
- Permission to appeal is not always given
- CA Ct in particular has expertise in crim law
In what case did Denning reuse to follow the previous decision?
What happened?
Broome v Cassell (1971)
Supreme Ct told him that he couldn’t do this, can’t undermine the supreme Cts power
Didn’t stop Denning, has continued to refuse to follow previous decisions
What are the 2 things that could happen if power of PS was extended to CA?
- Undermine role of supreme Ct - may lead to call for it to be abolished
- reduce certainty, undermine precedent system
What are the 3 exceptions where the CA doesn’t have to bind itself?
- Where there is a previous SCt + CA decision, the CA must follow the SCt decision
- If 2 previous CA decisions, can choose which to follow
- Where an earlier decision was made per incuriam, CA doesn’t have to follow it
What case established the fact that the CA binds itself, apart from 3 exceptions?
Young v Bristol Aeroplanes Co Ltd
William v Fawcett
Per Incuriam was used
CA refused to follow previous decision; = based on misunderstanding of County Ct rules in terms of procedures
When can the criminal division of the CA depart from its previous decisions?
If a D’s liberty is at stake
But should try to act like the civil Ct
R v Spencer
What are the 3 divisions in the High Ct?
- QBD
- Chancery division
- Family division
What Cts are the divisions of the High Ct bound by?
All the Cts above it (ECJ, SCt, CA)
DON’T have to follow previous decisions, but frequently do
Its decisions bind all lower Cts (Mag)
What are the 3 ways a judge can avoid following a precedent?
- Overruling (SCt - PS)
- Distinguishing
- Reversing
How can Cts use distinguishing to not follow a precedent?
Can distinguish between case facts - not similar enough
Merritt v Merritt said the facts were different to Balfour v Balfour
What are the 3 ways Cts can reverse precedent?
- Higher Cts can overturn a decision made by a lower Ct on appeal in the same case (Kennedy)
- Crim division can depart from previous decisions
- Judge can say that previous decision = PER INCURIAM (in error)
What are the 6 advantages of judicial precedent?
- Certainty in law
- Consistency
- Precision - principles of law = gradual
- Flexible - old adapted (PS)meet needs S
- Time saving -principle = prev established
- Practical = based real cases, not hypothetical
What are the 5 disadvantages of judicial precedent?
- Inflexible, lower Cts don’t have choice
- Complexity - many cases consider
- Difficult extract ratio, confuse obiter dicta
- Illogical distinctions - can draw fine line
- Slowness of growth
What is the declaratory theory?
Judges don’t create/ change the law, they declare what it has always been
Name 2 judges that disagree with the declaratory theory?
What supporting evidence of their view?
Lord Reid + Lord Denning
Judges make/ change law in landmark cases (R v R)
What is it called when judges look at similar case law IOT reach a decision?
‘Reasoning by analogy’
Used in Original precedent
Describe the case of Anderton v Ryan (1986) HL
Mrs Anderton = found NG of attempted handling
She brought a video recorder that she thought was stolen but it wasn’t
Overruled the car of R v Shivpuri (1985) HL
Describe the case of R v Shivpuri (1985) HL
D was found G of the attempted trafficking of drugs
D thought he was smuggling narcotics
Was actually smuggling a harmless herbal substance
Decision in case was overruled by case of Anderton v Ryan (1986) HL
Are the inferior Cts bound by their previous decisions?
No, they don’t bind themselves
Generally don’t decide any issues of importance so have no need to be bound by their previous decisions
But are bound by all Cts above them
