JUDICIAL PRECEDENT Flashcards
1
Q
Judicial Precedent
A
-refers to the source of law where past decisions of the judges in cases create law for future judges to follow in future cases.
2
Q
Stare Decisis
A
- ‘stand by what has been previously decided’.
- basis of the doctrine of judicial precedent.
- ensures that points of law decided in past cases are followed by judges in later cases.
- supports the idea of fairness and certainty in law.
- if judges actually follow previous decisions and underlines the operation of the doctrine of precedent.
- created through a ratio decidendi through accurate law reports where cases are reported and through court hierarchy.
3
Q
Ratio Decidendi
A
- the legal reason for a decision, part of the judgement which the judges explains the principles of law upon which his decision is made- every case will have at least one ratio.
- if judgement is by a higher court then all lower courts must follow it in subsequent cases.
- eg. Donoghue v Stevenson: started law on negligence. snail in ginger beer bottle. ratio- we owe a duty of care to our neighbours.
- eg. Carlill v Carbolic Smokeball Company (contract): stated that the advert was an ‘offer to the world’. anyone who bought the ball, used it and still caught the flu could claim. ratio- adverts can be offers as well as some being invitations to treat.
4
Q
Obiter Dicta
A
- ‘other things said’.
- refers to a statement of law by a judge which does not form binding precedent, meaning a judge in a later may decide to follow it even though they don’t have to.
- eg. Pinnels Case (1602): judge said obiter that part payment of a debt in full settlement of that debt was not enough.
- eg. Foakes v Beer (1884): House of Lords said that the rule in Pinnel’s case was good law, and this became the ratio of Foakes v Beer, and therefore became binding precedent.
5
Q
Original Precedent
A
- if the point of law on a case is unique and has never been considered before, then whatever the judge decides will form a new judgement for future cases to follow.
- made due to changes in technology or modern developments.
- there are no past cases to base a decision on so they are likely to look at a case which is the closest in principle and may decide to use a similar rule and will reason it by analogy.
- could be said that creating original precedent can be seen as judges going beyond their role.
6
Q
Binding Precedent
A
- precedent from an earlier case which must be followed.
- judges must now follow the legal principle (ratio decidendi) laid in Carlill v CSBC and Donoghue v Stevenson in later cases.
- this is only created when the facts of the current case are sufficiently similar to the original case and the decision was made in a court senior to or at the same level as the court hearing the current case.
7
Q
Persuasive Precedent (could be separate question)
A
-precedent that is not binding on the court but the judge may consider it and decide that the principle is correct and is ‘persuaded’ to follow it.
8
Q
Sources of Persuasive Precedent
A
- courts lower in the hierarchy: in R v R where the HL agreed with and followed the same reasoning as CA in deciding that a man could be guilty of raping his wife.
- statements made obiter dicta: Pinnels case, followed in Foakes v Beer on the rule of PP of a debt.
- decisions of courts in other countries: same ideas of common law as our system, countries such as USA, Canada, Australia and New Zealand. R v Bentham looked at various American authorities as the case involved possession of a gun. Re S, the judge was persuaded to follow Re AC from America.
- a dissenting judgement: when there is a 2-1, 3-2 (CA), 6-7, 5-7 (SC) majority, the dissenting judge will explain his/her reasons. If a case with similar points come to a higher court HL, they may be persuaded to follow the dissenting judge. Pepper v Hart could now be followed by later judges in later cases.
- decisions of the judicial committee of the Privy Council.
9
Q
The Judicial Committee of the Privy Council
A
- a court which hears cases but is not part of the court structure.
- hears appeals from some Commonwealth countries and from places such as the Channel Islands.
- Supreme Court judges in high office from other countries, normally 5 however there can be more.
- Privy Council is not part of English Legal System and its decisions are not binding on English courts.
- is normally bound to by Supreme Court but exception is where the point of law had developed differently in the country from which the appeal has come. In this situation the court is not bound by Supreme Court and can decide to follow the law of that particular country.
- eg. A-G (attorney general) for Jersey v Holley (2005). Appeal from jersey on the law of provocation (loss of self control) (a special partial defence to murder). Panel of 9 judges and they refused to follow previous decision of a HL decision in R v Smith (2000) even though the law in Jersey was the same as in England. Judges stated that the law in Smith was wrong.
- this created problems when the same point of law came before the CA (criminal division) in a later case.
10
Q
Other Methods Judges use to Avoid Precedent
A
- overruling: a higher court can overrule a principle laid down in a lower court and the Supreme Court can overrule its own decisions through the use of the Practice Statement.
- eg. Miliangos v George Frank Textiles: the Lords overruled its own earlier decision in Re: Havana Railways and said that the English courts could award damages in currencies beside pound sterling.
- reversing: occurs when a case is appealed from a lower court to a higher court and the higher court reverses the earlier lower court decision.
- eg. Royal College of Nursing v DHSS: first heard in HC, said that for purposes of the Abortion Act, a nurse was a registered medical practitioner. CA reversed this and said that a nurse was not a RMP, SC reversed decision of CA and stated that a nurse was a RMP.
- distinguishing: if judge can find a ‘material difference of fact’ between the case instant and the earlier precedent then he need not follow the earlier precedent.
- eg. Balfour v Balfour: claim would not succeed as there was no intention to create legal relations; it was merely domestic arrangement between husband and wife therefore no binding contract.
- eg. Merritt v Merritt: claim did not succeed as parties were H+W, the agreement was made after they separated, agreement was in writing.
11
Q
How does Precedent operate in the Courts?
A
-in order for the doctrine of precedent to work there are 2 essential requirements: accurate law reports, clear hierarchy of courts.
12
Q
Law Reports
A
- accurate system established by: Incorporated Council of Law Reporting in 1865.
- they enable solicitors/barristers to access them in order to advise their clients and when presenting cases in court.
- judges also need to know what legal principles were applied by judges in earlier similar cases to make a reasoned decision.
13
Q
Hierarchy of Courts
A
- every court is bound to follow any decision made by a court above it in the hierarchy.
- in general, appellate courts (appeal) are bound by their own decisions.
14
Q
Hierarchy of Civil Courts
A
- European Court of Justice
- Supreme Court
- Court of Appeal (civil division)
- Divisional Courts: QBD, Family and Chancery.
- High Court
- County Court
- Magistrate’s Court
15
Q
Hierarchy of Criminal Courts
A
- European Court if Justice
- Supreme Court
- Court of Appeal (criminal division)
- Queen’s Bench Divisional Court
- Crown Court
- Magistrate’s Court
