Judicial precedent Flashcards
State the courts hierarchy
- Supreme court
- Court of Appeal (Civil and criminal division)
- High court - KBD has administrative court, Family divisional court , Chancery divisional court
- Crown court (criminal)
- County Court (Civil)
- Magistrates court (criminal)
- Family court (Civil)
- Tribunals (civil)
what does stare decisis mean
‘let the decision stand’
what is the principle of precedent
that like cases should be treated alike
what is precedent concerned with?
- cases with same or similar material facts
- decisions made in higher courts carry greater weight than lower courts: courts are USUALLY bound by courts higher
- identifying ratio decidendi and obiter dicta
what is binding precedent
where a decision in a previous case MUST be applied to a later case.
the material facts must be similar to those in the earlier case
the previous court decision must bind the lower court
- facts are the same and justify using precedent
- decision heard in court more superior or and the same level
- part of previous decision MUST be ratio
what is persuasive precedent
where a court MIGHT follow a previous decision by another court.
NO COMPULSION TO DO SO
- Facts may be similar but not expressly the same
- facts are the same BUT ratio was decided by a lower court
- facts are the same but legal rule was a part of obiter
-facts are the same but legal rule part of dissenting judgement of higher or equivalent case
- facts are the same but decision made outside EWLS
what are material facts
Facts that would effect the outcome of a case if they were different
what is obiter
- discussion explanation or wider reasoning
- judge hypothesises about decision they would have reached if the facts were different
- judges explaining that the decision would not have been made if they were not bounded by higher court
- something said by a dissenting judge
What are dissenting judgements
Judgements delivered by a justice who disagrees with the majority and the final decision
Court of Justice of the European Union and judicial precedent
- NOT bound by its own past decisions
- does not formally operate stare decisis
- strongly persuaded by past decisions, rarely departs from them
BEFORE BREXIT uk courts were bound by CJEU
NOW NO Uk court is bound but can still consider their judgements
Supreme Court and binding precedent
Generally is always bound by previous decisions
BUT they have the potential to stray by using the practice statement in cases that:
- result in injustice
- are uncertain
- hinder the development of the law
Although they rarely like to use it out of fear of loosing certainty and possible dangers
The court of appeal and binding powers(civil)
NORMALLY BOUND by itself UNLESS:
- where its own previous decisions conflict
- where its previous decision had been implicitly overruled by supreme court/HOL
- where its previous decisions were made per incuriam (carelessly)
these ec
The court of appeal and binding powers (criminal)
Wider discretion to depart from previous decisions specifically where a persons liberty is at stake. R v Gould
what case outlined when decisions can be departed from in court of appeal (Civil)
Young v Bristol Aeroplane Co Ltd
High court and divisional courts relation with binding power
bound by their own decisions subject to the same exceptions in the civil and criminal court of appeal (where a decision were made carelessly, contradict prev judgement or overruled by SC)
high court decisions DONT bind the divisional courts but the divisional courts bind the high court.
High court judge decisions bind the lower courts BUT NOT OTHER HIGH COURT JUDGES.
