Judicial Precedent Flashcards
What is precedent?
Source of law where past decisions create law for future judges to follow
Judges must follow any decision by a higher court where the material facts are the same
What is the Judgement?
Speech the judge makes at the end of the case
What does the judgement include?
Summary of case facts Review case arguments Look at principles of law the judge used when making the decision Ratio Decidendi Obiter Dicta
What is the Ratio Decidendi?
Reason for the decision
Binding for lower courts
What is the Obiter Dicta?
Hypothetical outcomes if the case facts had been different
Non-binding and merely persuasive
What is the Stare Decisis?
Principle of standing by what has been decided and to not unsettle the established
A judge must follow any decision by a higher court where the material facts are the same
What 2 things does precedent need to operate?
A system of case reporting (because there are so many laws they must be accurately reported so judges can refer back to them)
A clear court hierarchy (so it’s clear who are the higher courts and who’s decisions must be followed)
What is the hierarchy of criminal courts?
Supreme Court Court of Appeal (Criminal Division) Queen's Bench Divisional Court Crown Court Magistrates Court
What is the hierarchy of civil courts?
Supreme Court Court of Appeal (Civil Division) Divisional Court High Court County Court
What’s an example of a Ratio Decidendi
R v Dudley and Stephens
What’s an example of an Obiter Dicta?
Hill v Baxter
What are the problems with following the decisions of past cases all the time?
Laws can become outdated
Can’t change laws with the changes to the social and economic climate
Parliament would have to create a new law in order to change the law
What solved the problem of not being able to change past laws?
The Practice Statement
What is the Practice Statement?
Supreme Court do not have to follow past decisions if it ‘appears right to do so’
When does it appear right to change law using the Practice Statement?
If it aids the proper development of the law
Allows justice in individual cases
If the social and economic climate has changed
Which courts can use the Practice Statement?
Only the Supreme Court
When is the Practice Statement used?
Only when it is completely necessary
Rarely
When was the first use of the Practice Statement?
Conway v Rimmer
Where can the courts reluctance to use the Practice Statement be shown?
Jones v SSSS
When was the first major use of the Practice Statement?
Herrington v British Railways Board
How long was it till the Practice Statement was used in a criminal case and which case?
20 years
R v Shivpuri
What is a more recent example of the use of the Practice Statement?
R v R and G
Used to overrule the decision in R v Caldwell on recklessness in criminal law
What is the main rule of the Court of Appeal?
Generally bound by previous decisions however there are exceptions set out in Young v Bristol Aeroplane
What are the exceptions to the main rule of the Court of Appeal?
Where a previous decision of the of the Court of Appeal has been overruled by the Supreme Court the new decision must be followed
If there are two conflicting decisions the Court of Appeal can choose between them
If the decision if made in error (Williams v Fawcett and Rickards and Rickards) however this is ‘rare and exceptional’
Which division of the Court of Appeal as an extra exception?
Criminal division
What is the extra exception in the criminal division of the Court of Appeal?
Where the law has been misapplied or misunderstood then the court can overrule the earlier decision
R v Taylor and R v Gould
Because the punishments are bigger in the criminal division and they need to be more careful before sentencing
What are the 3 types of precedent?
Binding Precedent
Original Precedent
Persuasive Precedent
Binding Precedent
Decisions made by a higher court in an earlier case that have to be followed by a lower court in a later, similar case
Original Precedent
If the point of law in a case has never been decided before, then whatever the Judge decides will form a new precedent for future cases to follow
Donoghue v Stephenson
Persuasive Precedent
Precedents Judges may choose to follow, but which they are not bound to do so
Non-binding
What are the types of persuasive precedent?
Obiter Dicta statements (e.g. R v Howe and R v Gotts when the Supreme Court ruled that duress could not be a defence to murder and also could not be a defence for attempted murder)
Dissenting Judgement (When a Judge disagrees with the majority opinion, they will give their reasons. A later Judge can then choose to follow the dissenting judgement e.g. Hedley Byrne v Heller)
Courts Lower In the Hierarchy (can follow the decisions of lower courts e.g. R v R)
Decisions of Courts in Other Countries e.g. R v Rabey
What are the 3 ways of avoiding precedent?
Distinguishing
Overruling
Reversing
Avoiding Precedent
Distinguishing
Finding significant differences between the previous and present case so the precedent is not relevant
e.g. Merritt v Merritt and Balfour v Balfour
Avoiding Precedent
Overruling
When higher courts overrule the past decisions of lower courts if they decide they are wrong
e.g. R v Shivpuri and Anderton v Ryan
Avoiding Precedent
Reversing
When a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case
e.g. R v Kingston
Advantages of Precedent
Certainty (because the court follows past decisions people know what the law is and how to follow it, also lawyers can advise clients) Fairness (the law must be consistent and fair to be credible) Precision (Principles of law are set out in actual cases e.g. Donoghue and Stephenson) Flexibility (There is room to change and the use of distinguishing also gives all courts some freedom to avoid decisions and develop the law. The law can change quickly to reflect changes in society e.g. R v R) Time Saving (Cases with similar facts are unlikely to go through the lengthy process of litigation)
Disadvantages of Precedent
Rigidity (Hard to change past decisions as courts are reluctant to use practice statement and few cases go to the Supreme Court so change will only happen with patience and money and also lower courts have to follow higher courts) Complexity (not easy to find all relevant cases. Also, judgements in cases are lengthy and it's not always easy to find the relevant one) Illogical Distinctions (Some areas are more complex and differences between some cases are so small they seem illogical) Slowness of Growth (change in law cannot be made unless a case comes to the court to be decided and very few cases go to the Supreme Court)
