Judical precedent Flashcards
Judicial precedent
Source of law where decisions create law for future judges to follow.
Stare decisis
Decisions can be looked at by other judges in later cases.
Ratio decidendi
Judges reason for deciding the court case.
Obiter Dicta
Anything which isn’t ratio decidendi.
Original precedent
A new law created and followed.
Persuasive precedent
Court decisions that are advisory only.
Overruling
Power of court to decide that a previous decision was wrongly made and not followed.
Reversing
When a court higher up in the hierarchy on appeal overturns a lower court decision in same case.
Distinguishing
When the facts of the case are deemed sufficiently different so the previous case is no longer binding.
Whats the order of the courts?
Supreme
Court of appeal
High court
County and crown court
Tribunals and Magistrates
What did sir Rupert Cross say about ratio decidendi ?
‘Any rule expressly or impliedly treated by the judge as a neccesary step to reaching his conclusion’
Howe
Obiter dicta Hl duress no defence to murder.
Gotts
Hl followed Howe and in ratio decidendi ruled duress can not be a defence for attempted murder.
Examples of original precedent
Donoghue
Hunter
Fearn
Binding precedent
Legal principle must be followed.
When is a precedent binding?
If its from higher courts.
Example of binding precedent
Scruttons
Persuasive precedent
Obiter dicta statements
Discussion of hypothetical situation
Decisions by privy council
Dissenting judgement
Decisions from other countries
Obiter dicta statements case
Howe
Discussion of hypothetical situation case
Baxter
Decisions by privy council case
mound
Dissenting judgement case
Brown
Decisions from other countries
Lister
London street tramways
HL decided bound unless error in the law.
British railways
Lord chancellor and HL announced change allowed to depart if it felt right to do so.
Example of HL choice case
Adie
EU Law
Less significant following Brexit
ECHR
Must take account of decisions but are not bound to them.
Court of appeal must follow previous decisions except
Conflicting decisions
Decision of UKSC overrules court of appeal
Decision made by mistake
Court of appeal must follow previous decisions case
Young-v-Bristol Aeroplane
Decision made by mistake case
Fawcett
Whats the extra exception for criminal?
Where law misapplied or misunderstood
Where law misapplied or misunderstood case
Taylor
ford:
Follow
Overrule
Reverse
Distinguish
Reverse case
parsley
Distinguish case
Merritt
Law reports
Efficient system of law reporting is required.
Half a million exist.
Law reports now available online.
where are law reports available online?
Court service website
Advantages of Judical precedent
Certainty
Consistency and fair
Flexibility
Time saving
certainty
Judges follow past decisions
Lawyers able too advise clients
Practise statement made clear keeping certainty was essential.
certainty case
Jones
Consistency and fair
Just and fair cases decided similar way, Law must be consistent if credible.
Flexibility
Judges can overrule previous precedent, Law keeps updated with changes in society
Flexibility case
merritt
Time saving
Lengthy process of changing legislation in parliament is avoided
Lawyers clearly advise so saves clients money and time
Time saving case
R
Disadvantages
Rigid
Complex
Violates parliament supremacy
Slow to growth
Rigid
Lower courts bound by higher courts
bad decisions repeated by lower courts cause injustice
change in precedent is limited
Rigid case
Jones
Complex
Million reported cases so difficult to cross refer
court judgements can be long with no clear distinctions between comments and reasons.
Complex case
Rickards
Violates parliament supremacy
Judges able to make precedent goes against going through parliament
less democratic
Violates parliament supremacy case
R
Slow to growth
Only 50 cases go through supreme court a year.
