Judicial Precedent Flashcards
What is judicial precedent?
Decisions made by senior judges, may bind the decisions of the judges in the future
General rule
President from an earlier case which must be followed
Stare decisis
Judicial precedent is based on the Latin term of ‘stare decisis’. Translates to ‘stand by what has been decided and do not unsettle the established’. Refers to how precedent is established.
Ratio decidendi
The legal principle set out in the case decision. Part of the judgement that must be followed in future cases (Donoughue v Stevenson). ‘Reason for deciding’
Obita dicta
Other comments made by a judge in their judgement. Not binding but might be used in future cases (R v Howes). ‘The other thing said’.
The judgement
- The case facts 2. Ratio decidendi: reason for decision 3. Obita dicta(other thing said) 4. The decision(based on reasoning)
Court hierarchy
Supreme Court<-court of appeal<-high court<-crown<-magistrates and county
Types of. Precedent
Binding, original, persuasive
Binding precedent
A precedent from an earlier case which must be followed-ratio decidendi. (Elliot v C)
Original precedent
If a point of law has never been decided before whatever the judge decides will form a new precedent.(donoghue v Stevenson)
Persuasive precedent
A decision which does not have to be followed by later cases but a judge may decide to follow. Decisions judges can be persuaded by: courts in the lower hierarchy, decisions of the judicial committee. Of the privy council, statement that are obiter dicta, dissenting judgement, decisions from courts in other countries
Persuasive precedent - courts in the lower hierarchy
(R v R)-HOL agrees with and followed the same reasoning as the CofA in deciding that a man could be guilty of raping his wife
Persuasive precedent - decisions of the judicial committee of the privy council
Not in the court hierarchy so decisions aren’t binding but since most members are part of the Supreme Court their judgements are rested with respect and many are often followed (the wagon mound no1)
Persuasive precedent - statements that are obita dicta
Means other thing said by the judge as part of their decision (R v Howe)
Persuasive precedent - dissenting
judgement
Arises when a decisions made by a majority. Judge who disagrees with the majority will set out their legal reasoning for their decision in a dissenting way. In event of an appeal the higher court may be persuaded by the reasoning of the dissenting judgement
Persuasive precedent - decisions from the courts in other countries
Another country that uses the same ideas of common law as in our system their decisions may be considered. This especially applied to common wealth countries
Precedent and the Supreme Court
Highest court in the UK but used to be the European court of justice which is now the Supreme Court. (London street tramways) (Herrington) (shivpuri) (Austin v London borough of Southwark)
(London street tramways)
HOL decided that certainty in the law by following. Past decision was more important than preventing individual hardship
(Herrington)
HOL changed the previous law about occupiers liability to child trespassers
(Shivpuri)
A mistaken belief by D that he was committing an illegal act that was in fact innocent can make him liable for attempting even if the act was not illegal
(Austin v London borough Southwark)
The Supreme Court confirmed the power to use the practice statement
Supreme Court power
The Supreme Court is bound by its own decisions unless there has been an error. Practice directions 3 and 4 allow HOL to change the law when it’s believed that an earlier case was decided wronged. The Supreme Court can decide if the UK law is compatible with the European convention of the human rights-the human rights act 1998
Precedent and the court of appeal
The court of appeal is bound by the supreme. Court. 2 divisions-civil and criminal. General rule-decisions by one division of the CofA will not be bind the other division but in each division previous decisions can be binding.
Precedent and the court of appeal - the exceptions
Set out in (Young v Bristol aeroplane co LTD). The CofA don’t have to follow one of their own previous decisions where-there may be conflicting decisions in the past(court choose which to follow), there is a decision of the Supreme Court that effectively over rules the CofA decision, there decision was made per incriam(carelessly/by mistake)
Methods of handling precedent
Overruling, reversing, distinguishing
Overruling (Pepper v Hart)
Court in later cases states that the precedent decided in the earlier case is wrong. May occur when higher court changes a decision made by a lower court. Supreme Court can overrule past decisions of its own (Pepper v Hart)
Reversing
Where a court higher in the hierarchy overturns a decision of a lower court on an appeal in the same case. The decision of the appeal court will then be substituted foe that of a lower court (Sweet v Parsley)
Distinguishing
Avoiding a past decision which would have otherwise been followed (R v Wilson)
Advantages
Certainty, consistency and rareness in the law, flexibility,time saving, filling gaps
Disadvantages
Rigidity, against separation of powers, complexity, illogical distractions, slowness of growth, uncertainty
