JUDICIAL PRECEDENT Flashcards
What is Judicial Precedent?
It is judge-made law. (Case Law)
What is ‘Stare Decisis’?
‘Stand by what has been decided and do not unsettle the establishment’
“Stand by what has been decided”.
Judges use previous decisions when dealing with cases of a similar nature.
Judges follow the earlier decisions.
Provides certainty in the law and supports the idea of fairness.
Duport Steels Ltd v Sirs [1980]
CAN YOU TALK ABOUT BINDING, ORIGIONAL ETC? DETAILS? OF PRECEDENT?
What are the elements of a judgement?
The findings of the fact, the decision, Ratio and Obiter The statement of law-legal principles
Ratio decidendi? What did Sir Rupert Cross say?
Reason for the decision’
Binding on all lower courts.
More than one judge means, potentially, more than one ratio – for the judge to decide in a later case which ratio to use.
Older cases = Difficult to find ratio
Sir Rupert Cross – “any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”
Obiter Dicta?
Other things said which are persuasive, not binding.
May be referred to in future cases
R v Howe [1987] 1 All ER 771
Obiter dicta = duress not available as a defence to attempted murder
R v Gotts [1992] 2 AC 412
HL followed the obiter statement in R v Howe. Their ratio decidendi ruled that duress cannot be a defence to attempted murder
What is a dissenting judgement?
It is the ratio/judgement of the judge that disagreed and so it isn’t binding and must receive obiter status and used in future cases as obiter comments.
Original precedent. Give a case example.
This is when a new point of law is reviewed and a verdict/decision is met and so this becomes new precedent for all future cases to follow. Once the verdict/decision is declared it becomes original and binding precedent. R v R [1991]
Fearn and others v Board of Trustees of the Tate Gallery (2020)
Binding precedent. Give a case example.
When a decision is made in a previous case must be follow by the courts below it or equal to it. This is if there isn’t ground for appeal or the judge didn’t get it wrong. All judges must follow it even of they disagree and the facts of the case must be similar. R v R [1991]
Donoghue v Stevenson [1932] AC 562
liable
Grant v Australian Knitting Mills [1936] AC 562
Persuasive precedent
A precedent which is not binding but only persuasive. Courts lower in the hierarchy may use (sometimes higher). Some sources include: dissenting judgments, statements in obiter, decisions of the Judicial Comittee of the Privy Council, decisions of the European Court of Human Rights (ECtHR) and decisions from courts in other countries (usually Commonwealth like New Zealand, Australia and Canada). R v Howe [1987] R v Gotts [1992]
What is the court of first instance for civil cases?
County Court.
What is the court of first instance for criminal cases?
Magistrates Court.
What is the Civil Law Court Hierarchy?
Supreme Court Court of Appeal Divisional Courts High Court County Court
What is the Criminal Law Court Hierarchy?
Supreme Court Court of Appeal Queen's Bench Divisional Court Crown Court Magistrates Court
Overruling
A court in a later case states that the legal rule decided is wrong and then overrules the precedent set as they disagree with the resolution. A higher court will over rule a court below it’s decision. Or Supreme can overrule itself. R v R [1991]
Reversing
A court higher up overturns a decision which has been made in the same case in a lower status court. E.g. Court of Appeal (Criminal) overturning a conviction made in Crown court with a disagreeing of the interpretation of the law. Sweet v Parsley [1969]
Distinguishing
A process which allows a judge to depart from a previous decision (precedent) made in a previous case that they otherwise would have to follow as they feels the facts of the case aren’t similar (sufficiently different). Young v Bristol Aeroplane CO Ltd
What are the advantages of Judicial Precedent?
Certainty, consistency/fairness, precision/reliance, flexibility, time and money saving (Solicitors know what outcome is likely to be).
What are the disadvantages of Judicial Precedent?
Rigidity, complexity/volume (relevant cases (case law) are hard to find and judgement long and unclear), restriction (from advancing the law- too many judgement distinguished between- don’t change law just leave it), time span (takes until a case comes into court before it is taken to a higher court to be resolved and changed- a bad decision can remain in place for a long time e.g. R v R [1991]
What is in a judgement?
Contents of a Judgement
Summary of the facts;
Review of the arguments put by the advocates or parties; and
Principles of law used to come to the decision
This forms the decision of the case and is known as the Ratio Decidendi – the reasons for deciding.
The rest of the judgment is known as Obiter Dicta - other things said.
What is the decision?
The judge will announce the decision he has reached in relation to the parties to the action.
More important to the parties involved.
The decision also determines each parties rights and liabilities in relation to the action.
