Judicial Precedent

Question 1

what is the doctrine of judicial precedent?

Answer 1

• case law-past decisions
• doctrine of precedent-stand by what has decided
• if point of law in prev case is similar to present case
• courts must follow decisions from courts above
• if new act of parliament is passed which contradicts decision in a case, case stops having effect and act of parliament is now law

Question 2

what is the hierarchy of courts in civil cases?

Answer 2

1. supreme court
2. court of appeal
3. divisional courts
4. high court
5. county court
6. magistrates court

county court

magistrates court

Question 3

what is the hierarchy of courts in criminal cases?

Answer 3

1. supreme court
2. court of appeal
3. queens bench divisional court
4. crown court
5. magistrates court

Question 4

what are the types of precedent?

Answer 4

• original precedent-never been decided before
• binding precedent-from earlier case but must be followed
• persuasive precedent-not binding but judge may consider it and decide to follow it-can come from:
  
  • courts lower down
  • statements made obiter dicta
  • dissenting judge
  • courts in other countries

Question 5

what is the rules for hierarchy of courts?

Answer 5

-every court bound to follow any decision made by a court above it in the hierarchy

• 2 exceptions where lower court not bound:
  
  • decision by european court of justice
  • human rights

Question 6

what are the rules for appellate courts?

Answer 6

usually bound by own past decisions

-supreme court
-prev decisions by HofL still bind lower courts
-SC not bound by own past decisions
-precedent provides certainty
-rigid adherence might lead to injustice and restrict development of law
-prev decisions are binding but can depart from these when right to do so
-(Herrington v British Railways Board)
(R v Shivpuri)-overruled decision in (Anderton v Ryan)

-Court of Appeal-usually bound by own decisions but some limited exceptions

Question 7

what are the rules for court of first instance?

Answer 7

where original trial is held

• high court-most senior and can make precedent
• inferior courts-county court, crown court and magistrates court-unlikely decisions can make precedent apart from ruling on point of law in crown court creates precedent for MC

Question 8

what is stare decisis?

Answer 8

stand by what has been decided

Question 9

what is ratio decidendi?

Answer 9

reasons given by judges for their decisions

where more than one judge:

• one judge may give judgement and other agrees
• particularly important or complicated point of law both judges may want to explain reasoning-may cause problems

Question 10

what is obiter dicta?

Answer 10

other things said

-not binding

Question 11

what is the rules for law reporting?

Answer 11

• must be accurate record of past decisions so they can be followed
• written reports have existed in england and wales since 13th century
• examples of well established reports:
  
  • all england reports
  • weekly law reports
• citations show which court the case was held in
• internet reports

Question 12

what is the operation of judicial precedent?

Answer 12

• following
  
  • where there is prev precedent and judge in present case decided it’s relevant, judge should follow decision
  • if decision by court above or same level, judge must normally follow prev precedent
• overruling
  
  • where court in present case states that legal rule decided in earlier case was wrong
  • higher court may overrule decision by lower court
  • can also occur when SC uses the practice statement to overrule past decision of its own
• distinguishing
  
  • can be used by judge to avoid following past decision
  • if main facts of present case are sufficiently different
  • then not bound by prev case

Question 13

what are the advantages of precedent?

Answer 13

• certainty
• consistency and fairness in the law
• flexibility
• time saving

Question 14

what are the disadvantages of precedent?

Answer 14

• rigidity
• complexity
• slowness of growth