Judicial Precedent Flashcards
Judicial Precedent definition
Judicial precedent is a source of law where past decisions of judges create law for future judges to follow
Stare decisis
To stand by what has been decided
Binding precedent
A precedent which must be followed (usually because it comes from a higher court). The binding precedent is usually found in the RATIO DECIDENDI (the reason for the decision). Forms a precedent for future cases
Example of a well-known precedent
Donoghue v Stevenson -neighbour principle established in the snail in drink case
Obiter dicta + effect on future cases
‘Other things said’ -the rest of the judgement apart from the ratio decidendi
May be considered in future cases, although it is not legally binding
Persuasive Precedent
A decision which doesn’t have to be followed by later cases, but which a judge may decide to follow. From courts lower in the heirarchy(R v R), statements made obiter dicta (R v Howe followed in R v Gotts) and decisions of courts in other countries e.g. R v Bentham considered following the decision made in R v Sloan in Canada about the possession of a firearm
Original Precedent
A precedent which involves a point of law that has never been decided before. Js are likely to look at cases which are the closest in principle and they may decide to use similar rules e.g. DPP v Smith
Avoiding BP: Distinguishing
J distinguishes between two cases e.g. Merritt v Merritt distinguished from Balfour v Balfour as in Merritt the couple were separated.
Avoiding BP: Overruling
A higher court disagrees with a legal principle established by a lower court in a previous case with similar facts e.g. Davis v Johnson overruled by Pepper v Hart
Avoiding BP: Reversing
A higher court in the same case overturns the decision of the lower court. Can only be reversed on appea. e.g. Sweet v Parsley found mens rea couldnt be proved so D was not guilty
Advanatges of judicial precedent
Cerrtainty
Consistency and fairness in the law
Precision
Flexibility
Time saving
Filling gaps
Disadvantages of judical precedent
Rigidity
Complexity
Illogical Distinctions (Brown/Wilson)
Slowness of growth
Uncertainty
