Judicial precedent Flashcards
Stare decisis 8m
To stand by a decision
They have to stand by the previous decision made
Used by court hierarchy (inferior have to stand by decision of higher)
Require judges to be aware of ratio decidendi and obiter dicta
Exceptions = difference of facts or supreme court
Donoghue v Stevenson set a binding precedent using this
Need a good system of law reporting
Follow the ratio because it’s binding precedent
Ratio decidendi 8m
Reason or motivation behind a legal decision
Forms = binding, original or persuasive precedent
Can only operate if reasons for past decisions are known - found through law reports
Example - AG ref 3 of 1994, a foetus isn’t a reasonable creature in being
Judge makes a speech giving a reason for the decision
Includes = fact summary, review of arguments and explain principles that influence decision
Sir Rupert Cross, ‘any rule…treated by the judge as a necessary step in reaching his conclusion’
Often based on decisions of previous cases with similar legal facts - R v R used a lower court decision
Becomes binding precedent
Obiter dicta 8m
Other things said
Comments made in court that influences/supports a decision (ratio decidendi)
R v Gotts, influenced by a comment made in the case R v Howe
Judge says what their decision would have been if the facts were different
Don’t have to be followed in future cases (persuasive precedent)
Continuous to ratio decidendi
Example - AG ref 3 of 1994, had the baby been born and then died due to the stabbing, would’ve been guilty of murder
Court hierarchy 8m
Inferior/lower court - magistrates/crown and county, don’t have the power to create or overrule precedent from previous cases
Superior/higher court - appellate/high and court of appeal, can overrule previous decisions of lower courts, cannot overrule courts higher than them or themselves
Supreme court - can overrule any previous decision from any court, including its own decisions (practice statement)
Types of precedent 8m
Original precedent - must come to own decision, point of law hasn’t come before a court before, Donoghue v Stevenson, duty of care 1st time
Binding precedent - lower must follow previous higher decision with similar facts, exceptions = case facts are different/ supreme doesn’t have to follow previous (practice statement), R v R created binding precedent on marital rape
Persuasive precedent -can be obiter dicta (AG ref 3 of 1994), deciding to follow a lower court decision (R v R), follow other jurisdictions or privy council (Wagon mound - privy), follow descenting judge (if 1 of the 5 supreme disagree can decide to follow the 1)
Ways to avoid precedent 8m
Distinguishing - avoid previous decision, facts are different enough to a previous case, Balfour v Balfour and Merritt v Merritt, intention to create legal relation between couple
Overruling - higher court decides previous lower court decision is wrong so make a new precedent, use of practice statement (supreme can overrule own decision), COA can overrule itself (Youngs case)
Reversing - higher reverses decision of a lower, case on appeal in the same case
Supreme court (practice statement)
Used only be the supreme court
Example - Shivpuri overruled Anderton v Ryan in terms of attempting the impossible
Herrington overruled Addie v Dumbreck in terms of children trespassing
Created in 1966 - previously used by the HOL
Can be used ‘when it appears right to do so’ (lack of guidance)
Used when - previous wrong decision, changes in society
Can still use the power of overruling, reversing or distinguishing
COA powers 12m
Disadv, reduces certainty, lower courts may have conflicting decision from COA and supreme (hard to advise), however can choose the better decision for the case
Disadv, increased appeals, appeal in hope COA makes original precedent, COA will have more cases (slower)
Adv, final court for most cases, very few reach supreme, more cases have chance to correct a legal decision, however undermines supreme
Adv, quicker to serve justice, appealing to supreme takes a long time (proof), in public interest
Precedent 12m
Adv, flexible, ways to avoid precedent, can be adjusted to each individual case
Adv, fair, cases are decided the same way, harder for a judge to be biased
Adv, certainty, know what the outcome will be (binding), easier to advice
Adv, saves time, court follow previous decision so don’t waste court time reaching decision, cheaper
Disadv, no guidance, supreme court don’t know when to use practice statement, cause uncertainty
Disadv, wrong decisions, judge may be forced to make an unfair ruling, miscarriage of justice
Disadv, complex, small distinctions with diff precedents, courts struggle to know what decision to make
Disadv, rigid, courts can’t make changes as law already exists, lower courts have to rely on an appeal
