Judicial Law Making Flashcards
Describe ratio decidendi and obiter dicta
Ratio Decidendi:
Part of judgement where judge explains the principle of law upon his decision is based on
Creates binding precedent for judges to follow in future similar cases
Judgements made in high court are binding of all courts beneath them
Eg cases Donoghue V Stevenson and R V Dudley & Stevens
Obiter Dicta:
Other material included in judgement
Eg judge may say what would happen if facts were different
Not binding but may form a persuasive precedent
Difficult to separate ratio from obiter
- which became important when R V Howe followed as a persuasive precedent in R V Gotts regarding duress in murder
Original and Persuasive Precedent
Original:
Arises in cases where there is no existing precedent on point of law concerned because facts have not arisen before so legal point wasn’t decided
Once declared it creates a new legal rule which will become BINDING and ORIGINAL
Often driven by social change -e.g. cases Donoghue V Stevenson & Rylands V Fletcher
Persuasive Precedent:
Not binding on court but judge may consider it and decide it was a correct legal principle and follow
Come from courts lower in hierarchy (R V R), decisions of Privy Council (wagon mound) and statements made obiter dicta (R V Howe & R V Gotts)
Dissenting Judgement - not all 5 judges agree and dissenting judge has to explain why (Candler V Crane Christmas)
What is Follow
Aims to follow all past decisions or decisions of courts above if applicable
What is Overrule
Court in later cases decides legal rule made in earlier case was decided wrong
E.g. Pepper V hart overruled Davi’s V Johnson
Can happen when statute has been enacted overruling common law
What is Reverse
Court higher in hierarchy overturns decisions of lower court or appeal in same case
E.g. COA may disagree with legal rule of High Court and reverse decision
Gillick V West Norfolk, HOL reversed decision of COA who favoured health authority
What is Distinguish
Judge avoids following past decision which they would otherwise have to
Judge finds material facts of case significantly different for him to draw a distinction between precent case and previous precedent
Not bound by previous case
R V Wilson and R V Brown and Others
3 exceptions of COA
1) If there are 2 COA cases in the past that conflict they can choose one to follow (NatWest Bank V Powney)
2) If HOL overruled previous decision of COA (Family Housing Association V Jones)
3) Where decision is made per incuriam (Rakhit V Carty)
