judicial precedent Flashcards
judicial precedent
o Stare decisis et no quieta, movere
o Stand by what has been decided
judgements
Case law made by judges through statutory interpretation
When senior judges make case law it sets a precedent
At the end of a judgement, the judge will give his legal reason for his decision. There is a summary of the facts, reviews of arguments for and against and then they will come to a decision using the principles of law
Important part of judgement is called the ratio decidendi
Rest of judgement known as obiter dicta
types of judgement
stare decisis
ratio decidendi
obita dicta
stare decisis
Core principle of precedent and simply means that a decision in an early case will stand as guidance for all future cases
ratio decindeni
Forms the precedent – older cases it is difficult to differ RD and OD
If it is a senior court making it, it becomes a binding precedent – every court has to follow and it can only be changed by an even higher court
If it is made by lower down courts – other judges have to consider the ratio decidendi
types of precedent
original
binding
persuasive
original precedent
If case law in this area hasn’t been decided before
No past decisions to base ideas on
Judges reach decision by looking at the closest legal principles and similar rules – reasoning by analogy
binding precedent
All future cases must follow it
Only created when the facts of the and case are reasonably similar to the original case where the precedent was created
persuasive precedent
Judges may consider it and decide if it is the correct principal in these circumstances
persuasive precedent
comes from
Courts lower in the hierarchy – R v R 1991 – where H of L followed persuasive precedent of the court of appeal in deciding a husband could be guilty of raping his wife
Decisions of the judicial committee of the privy council
- Not part of the normal court hierarchy but all judgements are respected and often followed
- AG Jersey v Holley 2005 – persuasive precedent proved that in the defence of provocation a person would be judged against people of ordinary powers of self-control
persuasive precedent
statements made by obiter dicta
R v Howe 1987 – duress could not be a defence to murder but in the obiter dicta statement held that duress would not be available as a defence when someone is charged with attempted murder either
persuasive precedent
a dissenting judgement
Case has been decided 2:1 – the dissenting judge will have explained his reasons and this may prove persuasive in the future
persuasive precedent
decisions of courts in other countries
Particularly relevant where the countries have the same common law such as Canada, New Zealand, and Australia
hierarchy of courts
Courts operate in a rigid doctrine of judicial precedent
Every court is bound to follow a decision made by the court above it Senior courts are bound by their own past decisions
supreme court (was H of L)
From 1889 to 1966 H of L considered itself bound by its own past decisions
Unsatisfactory – didn’t allow for social or technological change
If H of L made an unsatisfactory decision, the only way it could be changed was through an act of parliament
supreme court
case
DPP v Smith 1861 – decision was criticised as it meant that the D could be found guilty of murder even if he had not intended to cause death or serious injury – parliament had to change the law by passing CJA 1967
the practice statement 1966
Allowed them to change the law if they felt a wrong decision had been made – way of avoiding precedent
1st case to use it – Herrington v British railway board 1972 – child trespassed onto railway land and injured themselves. Held that BRB owed a duty of care even to child trespassers as BRB hadn’t made sufficient attempts to keep the child off their land
H of L reluctant to use this power
practice statement in criminal law
Has to be certain as it involves peoples liberty so H of L are reluctant to use it
H of L did recognise that they made errors and used the practice statement to overrule Caldwell 1982 – in R v G and R 2003 they held that the D is only reckless if he realised there is a risk and goes ahead and does it anyway.
ways to avoid precedent
distinguishing
overruling
disapproving
reversing
distinguishing
Way a judge can avoid following a past decision
Applies if the facts of the case are so different that previous precedents won’t apply
Balfour v Balfour 1919/Merritt v Merritt 1971 – wives made claims against husbands for breach of contract – facts different = different outcomes
overruling
Court later decide legal rule is wrong
Supreme court may overrule a decision in the court of appeal
Supreme court may overrule itself using practice statement
disapproving
Judge states in judgement that he believes the judgement in the previous case is wrong
Lower court can’t overrule a higher court but they can express their disapproval
Duress – R v Hassan 2005 – threat has to be immediate whereas R v Hudson 1971 – threat could be in the future
reversing
Higher ranking court overturns the rules in a lower court on appeal in the same case
advantages
o Certainty
Courts follow past decisions so fairly predictable
o Consistency and fairness
Fair that similar cases should be decided in similar ways
o Precision
Principles of law and varying case factors are all clearly set out to create a clear picture of the precedent
o Flexibility
here is room to change the law – practice statement and distinguishing
o Time saving
Where the principle has been established – cases with similar facts will progress quickly and therefore cheaply
o Details
Details can be added to statutory provision – R v Clinton 2012 – clarified the position on sexual infidelity
o Evolution of the law
The law can evolve to meet changing social attitudes, as it did by establishing the offence of rape with marriage – R v R 1991
disadvantages
o Non democratic source of law
Unelected judges are making and developing key legal principles
o Rigidity
Lower courts have to follow higher and decisions are fairly inflexible
Changes will only take place if the individuals concerned have the courage, persistence, and money to appeal their case
o Complexity
Not always easy to find all the relevant law as there are over half a million reported cases
Judgements themselves are long and the obiter dicta and ratio decendi are often confused
o Illogical distinctions
Differences between some cases seem very small
o Slowness of growth
Judges are aware that there are areas of law that need reform but they can’t reform anything until a particular case comes before them in court
Only about 50 cases go to the supreme court a year
