judicial precedent Flashcards
What is judicial precedent ?
Judicial precedent is where judges make decision using case facts and decides how the law applies which can be followed by lower courts. there are three main types. Binding , original and persuasive.
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What is the Latin phrase of judicial/bin ding precedent ?
stare decisis, i.e. “to stand by what has already been decided”. This is the process whereby judges of the lower courts apply the decisions set by the higher courts, i.e. decisions made by the Supreme Court must be followed by all other courts.
- cases are decided alike- this can be seen in the case of Donoughe v Sevenson and the case of grant and held that there was a duty of care
What are the four elements of a judgement ?
- Statement of relevant facts
- Statement of legal principles – Ratio decidendi ‘the reason for the decision’
- Discussion of legal principles raised, but not relevant to the decision – Obiter dicta – ‘things said by the way’
- The decision or verdict
What is Ratio Decidendi
The ratio is the most important part of the decision. It is the legal principle established by the case. this is known as the reason for the decision. For example, in R v R) HL made rape within marriage an offence. This then has to be followed in later similar cases.
- this forms binding precedent
What is meant by obiter Dicta ?
This means other things said . obiter is everything else said by a judge that doesn’t form part of the main judgement
- The obiter is not binding on judges in future similar cases. it can be persuasive precedent because judges do not have to follow it in later cases but they can if they wish
- R v Howe -he court took the opportunity to act on the comments made in Howe in the case of R v Gotts (1992) – a case involving attempted murder, the court found duress was not a defence. and Ivey v Genting casinos
What case links to Obiter dicta
- The case of R v Howe as this shows the courts using persuasive precedent where the comments made in Howe influenced the decision made in the case of R v Gotts regarding murder and the defence of duress
What are the types of judicial precedent ?
- Original precedent- This is where a new situation arises which has not come before the courts. this means that a new precedent will be formed. illustrated in the case o fHunter v canary wharf.
- Binding precedent- A binding precedent is one that the judge is obliged to follow even if the judge in the latter case disagrees with the legal principle- R v Nedrick (1986) and the creation of the virtual certainty test for murder
- Persuasive precedent- This is a precedent that is not binding on the court but a judge may consider it and decide it is the correct principle to follow if he is persuaded by it or example in R v Gotts (1992) HL, and the case of R VH OWE. this contains many sources such as decisions of lower courts(R V R), decisions of the privvy council , commonwealth courts( wagon mound 1), obiter dicta( r v howe & Gotts), dissenting judgments
What is the case which links to original precedent
The case of Hunter v canary wharf
What is the case example for Binding precedent
- An example of this would be in the case if R V Nedrick and the virtual certainty test for murder
- A binding precedent is one that the judge is obliged to follow even if the judge in the latter case disagrees with the legal principle.
- A binding precedent is created when the facts of the latter case are similar to the earlier original case. lower courts have to follow this
What is a case example for persuasive precedent
- For example in R v Gotts , where the defendant charged with attempted murder wanted to plead duress as a defence; the judges were persuaded by the ruling and the obiter dicta in R v Howe )
- This is a precedent that is not binding on the court but a judge may consider it and decide it is the correct principle and he is persuaded to follow it.
What are some sources of persuasive precedent ?
- Courts lower down in the hierarchy- A higher court can be persuaded by the decision of a lower court, e.g. in R v R, where the House of Lords agreed with a ruling made by Court of Appeal that a man could be guilty of raping his wife.
- Decisions of the Privy Council- Hears appeals from some Commonwealth countries therefore its decisions are not binding on English courts, but can be persuasive ie in the case the Wagon Mound no 1 (1961) (governs the law on remoteness of damages in tort) was later followed in English courts.
- Obiter Dicta statements- particularly persuasive if it was made by the Supreme Court. In R v Howe the Supreme Court said that they thought the defence of duress should be unavailable for attempted murder. In the later case of R v Gotts this was followed
- Dissenting judgement- sometimes a case will be decided by a majority of judges, e.g. 2-1 in the Court of Appeal. The judge who disagrees with the majority is referred to as a dissenting judge. If that case goes on appeal to the Supreme Court it is possible that the Supreme Court may prefer the dissenting judgment( example lord atkings dissenting judgment in liversidge v anderson)
- Decisions of courts from other countries- particularly persuasive where cases come from Commonwealth or countries based on English law e.g. Canada or New Zealand. Cuerrier
- Section 2 of the Human Rights Act 1998.This allows domestic courts to ‘take account of’ decisions of the European Court of Human Rights as seen in the case of Vinter v UK (2013)
What is the court hierarchy like ?
- The Court of Justice of the European Union-When a ruling on EU matters is made in the European Court of Justice (ECJ), the Supreme Court must follow this rule. Therefore the ECJ court creates binding precedents
- Supreme court- binds all lower courts - subject to 1966 practice statement
- Court of appeal- criminal and civil division do not bind each other instead they are bound by the supreme court. Generally they must follow their own previous decisions apart from some exceptions
- High court is bound by the supreme court and the court of appeal. they are bound by their own past decisions, binds the lower courts
- Crown court is binded by high court , court of appeal and supreme court and ecj , can form a persuasive precedent
- Magistrates and county court are binded by the decisions of the high court , court of appeal and supreme court , they do not produce precedents
What is the role of the supreme court
- The Constitutional Reform Act 2005 established the Supreme Court to replace the House of Lords. The intention was to achieve a complete separation between the UK’s most senior judges and Parliament. It is the highest appeal court in the UK it shapes , society and affects our everyday lives.
- Practice Statement to indicate a willingness to be more flexible in future.
What is the history of the practice statement 1996
Before 1966 the approach the House of Lords followed was that set out in London Street Tramways v London County Council , This case established that the House of Lords was always bound by its own decisions with some exceptions
- The practice statement 1996 stated that .Precedent is recognised as a good system for helping the law develop over time.
Explain the use of the practice statement 1996
Practice statement 1966 is the way in which the HOL operated and confirmed that previous decisions could be departed from when its good to do so
- It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
This was used in the case of Conway v Rimmer – 1st use – used to overrule a technical point of law – discovery of documents
- Herrington v British Railways Board (1972) – 1st major use – law on duty of care owed to a child trespasser
