JUDICIAL PRECEDENT Flashcards
What is stare decisis
stand by what has been decided. use previous decisions when dealing with cases of a similar nature. follow earlier decisions. provides certainty in the law. DUPORT STEELS v SIRS
What is judgement
can only operate if the legal reasons for a past decisions are known. judge gives speech. forms the decision of the case and is known as ratio decidendi and obiter dicta
What is Ratio Decidendi
reason for decision
binding on all lower courts
older cases= harder to find
obiter dicta
other things said
non binding but persuasive
may be referred in future cases
R v HOWE
R v GOTTS
original precedent
new point of law
decisions form a new precedent for future cases to follow
once declared becomes both original and binding
FEARN AND OTHERS v BOARD OF TRUSTEES OF THE TATE GALLERY
BINDING PRECEDENT
decision made in a previous case must be followed
decision made in higher court of same level
binding even if judge disagrees
facts of case must be similar
DONOGHUE v STEVENSON = GRANT v AUSTRALIAN KNITTING MILLS
SUPREME COURT AND PRACTICE STATEMENT
most senior court
all decisions are binding
had right to overrule past decisions
rigidity after london street tramways v london CC
bound unless decision was made per incuriam
DPP v SMITH
practice statement
allowed HOL to overrule previous cases where they thought it was necessary
vague meaning
reluctant in use = CONWAY v RIMMER
first major use = HERRINGTON v BRB
from 1970 more willing to use = PEPPER v HART
governed by supreme court
COURT OF APPEAL CIVIL DIVISION
bound by supreme court
binds all lower courts
YOUNG v BRISTOL AEROPLANE CO LTD
1- can distinguish cases where two or more have conflicting outcomes.
2- must follow HOL decision of similar facts even if a separate COA decision in a different case conflicts
3- if the decision was made per incuriam
COURT OF APPEAL CRIMINAL DIVISION
bound by supreme court decisions
usually bound by its own previous decisions
can also deviate from previous decisions if the law is misapplied
R v SPENCER = must follow precedent unless it affects a persons liberty in relation to the interests of natural justice
R v SIMPSON = departure from precedent is restricted to cases where departure is in favour of the accused in relation to their liberty
ADVANTAGES
CERTAINTY = people follow past decisions, people know what the law is and how likely it is to apply to their case
CONSISTENCY = makes it fair that all cases that are similar are dealt with in the same way
PRECISION = as principles are set out in actual cases the law becomes very precise, well illustrated and gradually builds up.
FLEXIBILITY = precedent operates on judicial decisions means it becomes more flexibles than a statutory act as the decision can be overrules, reversed or distinguished
TIME SAVING = where a presiding principle exists it saves time on lengthy litigation
DISADVANTAGES
RIGIDITY = the fact that the lower courts have to follow decisions of higher courts, make the law inflexible
COMPLEXITY = as hundreds of thousands of cases reported it is difficult to find all relevant case law. also some judgements are very long and others do not clearly define the ratio of the case
RESTRICTION - doctrine of judicial precedent restricts the judges from advancing the law which results in too many judgements being distinguished between
TIME SPAN = a bad decision can remain in use for many years until a case reaches a higher court in order to have that reviewed
