Judicial Precedent Flashcards
Precedent
decision made in higher courts after this lower courts must follow these decisions, set in a unique case
Stare decisis
must stand by the court’s decision, standing by the decision
Ratio decidendi
standing by or following decisions in previous/similar cases, when the judge gives their final decision (binding precedent), judgement given by the judge which fully explains their decision in setting a precedent. It’s extremely important that the judge is absolutely clear about how and why they have reached that decision as this will be binding on any future cases of a similar nature unless, in the meantime parliament decides to step in and make a new e.g. murder there is nothing parliamentary/precedentary as there isn’t a definite definition for murder which is why murder is common law
Obiter dicta
(not binding) but it may be a suggestion from the judge that parliament might want to look into the matter and make is a new law or it could be a suggestion that in future cases, a higher court might want to make a new precedent, may influence future decisions from parliament
Supreme court must be followed and makes precedents, lower courts can’t make precedents
Binding precedent
must be applied on a second case if it is sufficiently similar to the original case and the decision that was made in the higher court
Persuasive precedent
a decision that doesn’t have to be followed
Distinguishing precedent
when you have two similar outcomes and you pick the most logical one
HC, COA, SC
In order for the doctrine of judicial precedent to work..
it is necessary to be able to determine what a point of law is, if there isn’t a law about it already judge made law (common law)
- If a decision was made in another country that has a similar system they may follow it but they don’t have to.
Court hierarchy
- Supreme Court (SC) formerly HOL, when it was the HOL decisions there was still law
- Court of Appeal (COA), two divisions (civil and criminal)
- Divisional Courts - High Court (HC)
Courts that can’t make precedents
County Court
Crown Court
Magistrates court
Court is generally bound by previous decisions, but there may be exceptions like they believe it was wrong and it should be corrected/updated
Exceptions to the rule
The reason human rights cases are important is because if anything/law is seen to contradict human rights then it has to go
Belarus and Russia are the only two countries not part of the European Convention on Human Rights
Vote for prisoners
the law in the UK is that if you are in prison you don’t have the right to vote whilst serving your sentence. This was challenged in a case in the European Court of Human Rights. The court ruled that the UK was in breach of human rights but the government refused to follow the judgement so it remains the law. So prisoners in the UK don’t have the right to vote.
Countries don’t have to follow the judgements of the Court of Human Rights, parliament don’t have to follow the rules as they have arbitrary power.
Supreme Court used to include all the judges in HOL
HOL judges used to do the job the Supreme Court did, Tony Blair changed this when he separated politics from the law. HOL was replaced by the Supreme Court from 1st Oct 2009
Role of House of Lords - Previously before the Supreme Court the highest court was the House of Lords, any precedents at that time are still law.
Supreme court can’t overturn their own judgement, started to become a problem
London Street Tramways Co Ltd v London County Council (1898) - Certainty in the law should be more important than a potentially unjust decision
Practice Statement 1966
allows the HOL to depart from a previous decision where it appears right to do so
1. The Practice Statement is of great importance because gives flexibility and to review previous decisions/judgements
2. The note suggests that Practice Statement wasn’t going to be used a lot as it was just to be there in case to aid cases that could possibly need it and use for certain cases not all
3. Yes, as times have changed, there are a range of different views and norms.
4. The Supreme Court should consider decisions from Commonwealth countries because they have similar laws/legal systems so it can influence their decisions.
Herrington
first use of PS in civil law (boy trespassed on railways and was killed)
