Judicial Precedent Flashcards
stare decisis
‘stand by what has been decided & do not unsettle the established’
Cases decided alike due to judicial precedent; decision of legal principle must be applied in the same way in subsequent similar cases
e.g Automatic Telephone Co v RRTA followed decision in Schweppes Ltd v RTTA
ratio decidendi
legal principle set out in a case decision; tells reason for the decision & sets precedent
Donoghue v Stevenson - Neighbour principle
difficult to establish R.D of previous cases as judgements constructed in a discursive manner; difficult to extract essential reasons for decision
e.g Harper v NCB could not identify R.D of Central Asbestos Co v DODD
obiter dicta
comments made by a judge which do not relate exactly to the point of the case; NOT BINDING, but may be PERSUASIVE PRECEDENT
R v Howe
Obiter comments by HoL applied as persuasive precedent in R v Gotts
Law Reporting
In order to operate judicial precedent needs
- SYSTEM OF CASE REPORTING
decisions are recorded in order for judges to be able to refer back; known as law reporting - HIERARCHY OF COURTS
each court or judge knows whose decisions they should follow
3.METHOD OF IDENTIFYING
parts of a judgement which bind a judge from other parts which need not be followed
Original Precedent
created where issues not decided before comes before the court such as in Hunter v Canary Wharf
Hierarchy of the Courts
a. Higher courts bind lower courts.
b. Appeal courts bound by own decisions.
c. Superior courts set binding principles
Appellate courts
- <b>EUROPEAN COURT OF JUSTICE</b>
binds all lower courts on EU law matters - <b>SUPREME COURT</b>
binds all lower courts but is bound by ECJ on EU law; can depart from previous decisions using <u>1966 Practice Statement</u> - <b>COURT OF APPEAL</b>
bound by ECJ and SC; civil and criminal divisions do not bind each other but each division binds itself (some exceptions) - <b>DIVISIONAL COURTS</b>
QBD, Chancery & Family; bound by ECJ, SC, CoA & own decisions
Courts of First Instance
- <b>HIGH COURT</b>
bound by all courts above; binds lower courts and does not bind itself - <b>CROWN COURT</b>
bound by all courts above; rulings on points of law techincally bind magistrates court - <b>COUNTY & MAGISTRATES COURT</b>
do not create precedent; bound by all higher courts
FORD
Following
court applies precedent set in previous case
- Donoghue v Stevenson followed in Grant v AKM
Overruling
later case states legal rule decided by lower court is wrong; decision then applies throughout course hierarchy
- R v G&R overruled R v Caldwell
Reversing
higher court reverses/changes decision of lower court in same case
- Sweet v Parsley
Distinguishing
judge finds material facts of case different so is not bound to follow previous precedent
- Balfour v Balfour did not bind Merrit v Merrit
Persuasive Precedent
- DECISIONS OF LOWER COURTS
R v R - STATEMENTS MADE OBITER DICTA
R v Howe
3.DISSENTING JUDGEMENTS
Atkinsons D.J in Rose & Frank v Cromptom Brothers followed by HoL
- DECISIONS OF COMMONWEALTH COURTS
HoL in R v Bentham considered Canadian case of R v Sloan - DECISIONS OF JUDICIAL COMMITTEE OF PRIVY COUNCIL
decision of P.C in A-G for Jersey v Holley contrary to decision but followed later by HoL in R v Mohammed, R v James & Karimi; highly respected and often followed as many judges sit in SC despite not binding; acts as final court of appeal in some commonwealth countries
1966 Practice Statement
HoL would depart from previous decision ‘when it is right to do so’ - (Conway v Rimmer)
So, law could change to keep up with social conditions without passing of legislation
Jones v SOS for Social Services
Reluctant to use Practice Statement as SC regard certainty over individual injustice in the law as more important
R v G
Overruled MPC v Caldwell on recklessness in criminal damage
Practice Statement has been used sparingly in criminal law as certainty is very important there
Young v Bristol Aeroplane Co
Decisions within each division of Court of Appeal are usually binding unless one applies:
- there are conflicting decisions in past CoA cases; court can choose which to follow & reject
- CoA decision has by overruled by SC/HoL decision; CoA must follow the SC/HoL decision
- decision made per incuriam(carelessly or by mistake not taking relevant legislation into account) - Williams v Fawcett
Rickards v Rickards
Exceptions in Young v Bristol Aeroplane Co only used to refuse to follow previous decision in ‘rare and exceptional circumstances’
R v Taylor, R v Gould
Criminal Division in CoA can depart from decision if law has been ‘misapplied or misunderstood’ as liberty is at stake
Advantages of Judicial Precedent
<span>- <em>Cases decided alike</em> thus there is <b>certainty in the law</b>; allows lawyers to advise clients on likely outcomes of cases and so <b>agrees with rule of law</b> that law should be <em>ascertainable
</em>
- Allows for <em>flexibility</em> so law can keep up with<em> social changes</em> - <u><b>1966 PS</b></u> allows SC to change mind when<em> ‘right to do so’</em> like in <u>R v R&G and Caldwell </u>to make fairer law</span>
- Courts can distinguish a case on particular facts to <em>avoid following a precedent</em> like in <u>Merrit v Merrit</u>, allowing <em>freedom to develop law</em> & <em>keep it up to date</em>
- Allowing judges in individual cases to set legal principles <em>saves time as the same point does not need to be argued</em> in subsequent cases; allowing for <em>out of court settlements</em> where appropriate, <b>saving parties stress & uncertainty</b> of a trial; making a <b>more efficient court system</b> and saving money.
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Disadvantages of Judicial Precedent
<span>- J.P is hugely complex & can be hard to find out law as with <em>over half a million reported cases;</em> <em>contrary to the rule of law</em> that law should be <b>ascertainable</b>: e.g court could not find R.D in <em><u>Central Asbestos Co v DODD
</u></em>
- Can be seen as <b>overly rigid</b> as lower having to follow higher courts can make bad decisions; plus <em>very few cases get to the SC</em> which can overrule CoA decisions.</span>
- Change depends on parties being <em>able to afford to appeal</em>; parties may <b>not be equal before the law</b> based on financial status
- System allows judges to make the law which is <b>undemocratic</b> as judges are not elected; <em>contrary to the separation of powers</em> where role of the judge is to interpet law, thus also <em>infringing parliamentary sovereignty</em>; e.g <em><u>Hunter v Canary Wharf</u></em></span>
