Judicial Precedent Flashcards
What is precedent?
Precedents are decisions made on a point of law by senior courts which must be followed by lower courts in the hierarchy when a later case raising the same point of law arises.
Stare decisis
- stand by the decision (and not unsettle the established)
-like cases should be treated alike
-cases with the same facts should be decided in the same way
Hierarchy of the courts
Supreme Court (the privy council)
|
V
Court of Appeal
| |
V V
Civil Division. Criminal division (Chancery, family) (Kings Bench Division)
Divisional courts
| |
V V
High Court Crown court
| |
V V
County court. Magistrates court
What are the key aspects of judicial precedent?
-Define precedent and stare decisis
-define hierarchy of courts
-Three parts to a judges decision:
*verdict,
*ratio, R v Howe
*obiter dicta, R v Gotts
R v Howe ratio
duress is not a defence to murder
R v Howe obiter dicta
duress is not a defence to attempted murder
R v Gotts
followed Howe Obiter Dicta
Original Precedent
When a case raises a new point of law
that has never before been decided, the judges must make a decision on that point
of law. Judges make this
decision by ‘reasoning by analogy’, meaning they look at similar cases and come up with a similar conclusion. E.g Donoghue v Stevenson
Binding Precedent
Must be followed by judges in a lower court. Often it comes from the ratio decidendi of a higher court. E.g ratio in Donoghue v Stevenson was binding to Grant v Australian Knitting Mills.
Persuasive Precedent
A precedent that judges can choose to
follow, but do not have to. This comes from various sources such as obiter dicta and
lower courts. E.g R v R (rape in marriage illegal)
Explain the different sources of persuasive precedent
Lower courts. Higher courts are not bound
to follow the decisions of lower courts, they can choose E.g. R v R,
Obiter dicta is NOT binding on other courts as it is usually not relevant to the issue in
that case, later cases can choose to follow. E.g . R v Howe
The privy council (PC) are not a UK court and so UK courts do not have to follow
their decisions. However, the PC are made up of judges from the UK Supreme Court
and so the decisions they make are likely to be good authority. E.g The Wagon
Mound
Some other countries have similar legal rules and systems to the UK, so cases in
these countries could provide useful ideas for UK law. E.g. R v Betham followed R v Sloan
A dissenting judgement is one that goes against what the majority of judges decided
in a case, therefore is not binding. E.g Rose and Frank v Crompton Bros.
Explain how judges in the supreme court can avoid following a precedent through overruling.
The Supreme Court can overrule itself using the 1966 Practice statement when it appears right to do so. This was done in R v Shivpuri, which overruled Anderton v Ryan by making it a crime to attempt to do the impossible. The Court overruled Anderton because they felt that they had made a serious error in the original
decision. Usually though, the Supreme Court are reluctant to do this because they prefer to keep the law certain ,Jones v SoSSS. However, the Supreme Court can overrule precedents of any lower courts when the decision is wrong or outdated. This is because it is higher in the hierarchy. This gets rid of the original decision and replaces it with a new one.
Explain how judges in the supreme court and court of appeal can avoid following a precedent through distinguishing
Distinguishing is where any
court decides that the material facts in a later case are sufficiently different from an
earlier one, so coming to the same decision may not be appropriate. This creates a second precedent on the same point of law to deal with 2 different sets of facts. E.g Merritt v Merritt, which was distinguished from Balfour v
Balfour. Merritt was a written agreement between two separated spouses, Balfour was verbal. These differences meant that it was not appropriate to enforce the contract in Balfour, but was in Merritt as they had intentions to create legal relations – therefore creating two precedents on the same point of law.
Explain how judges in the supreme court and court of appeal can avoid following a precedent through reversing
Reversing is when a higher court changes the decision of a lower court in the same case. This is different to overruling because it only involves one case. E.g the Court of Appeal in R v Hasan decided that self-induced duress
was only when D knew what type of crime he would be forced to commit. But the
House of Lords in R v Hasan reversed this and said self-induced duress was
whenever D should have expected violence and that it did not matter if he knew what
he would be forced to do.
Explain how judges in the Court of Appeal can avoid following a Precedent through overruling
The Court of Appeal (CoA) usually bind themselves, apart from the exceptions in Young v
BAC.
The first exception is if there are conflicting decisions in past CoA cases, then the
court can choose which decision it will reject.
The second is if the Supreme Court make a
decision which goes against the CoA’s precedent, they are bound to follow the higher court’s
decision rather than their own.
The final exception is if the decision is made ‘per incuriam’, meaning ‘by mistake’. This is usually because a relevant Act hasn’t been considered.
There is also a 4th exception for the criminal division, from R v Taylor. This exception is when the law has been misapplied or misunderstood.
The CoA can also overrule the precedent of
lower courts when the decision is wrong or outdated, as they are a senior court. This
replaces the old decision with the new decision.
Advantage of judicial precedent (certainty)
I: Precedent creates certainty in the law
C: Precedent is based on the principle of stare decisis
E: Jones v SoSSS refused to overrule Re
Dowling to maintain certainty.
C: benefits lawyers, judges and defendants, as certainty allows them to effectively prepare for cases.
B: this can lead to rigidity in the law so bad decisions may be repeated.
Advantage of judicial precedent (flexible)
I: Precedent is a fairly flexible doctrine
C: There are many ways of avoiding precedent if a bad decision will happen
E: R v Shivpuri overruled Anderton v Ryan
C: bad decisions can be avoided, law updated with society
B: creates uncertainty in the law, as it is
unclear if a judge will actually keep the same decision, or what they might change the
decision to if they are going to change it.
Advantage of judicial precedent (real life situations)
I: it can respond to real life situations.
C: Precedent is based on case law and cases deal with real life situations, whereas statutes only deal with theoretical situations.
E: R v R
C: Law develops with the times and updates with society.
B: There are lots of different precedents that can make the law complex and hard to
understand over time.
Advantage of judicial precedent (judicial creativity)
I: Precedent allows for judicial creativity in situations where there is a
problem with the law.
C: Distinguishing, and creating original precedent
E: Donoghue v Stevenson
C: leads to justice and saves P time
B: goes against separation of powers
Disadvantage of judicial precedent (rigidity)
I: Judicial precedent can be seen as precedent
C: Based on the principle of stare decisis
E: Jones v SoSSS, the court acknowledged that the decision in Re Dowling was wrong, but kept it anyway for the sake of certainty.
C: bad and outdated law will not be changed quickly enough and so will be repeated in future
B: good for lawyers, defendants, and judges
Disadvantage of judicial precedent (certainty)
I: Judicial precedent is not that certain
C:because there are several ways of avoiding precedent if a bad decision will be made.
E: Merritt v Merritt distinguishing Balfour v Balfour on marital agreements
C: bad for lawyers, defendants, and judges trying to prepare for cases
B:this flexibility can help avoid injustices
Disadvantage of judicial precedent (complex)
I: precedent can be very complex
C: 1/2 a million precedents, hard to distinguish between obiter and ratio
E: Re J, the judge could not figure
out what the ratio was and so had no idea what decision he was meant to be making.
C: it defeats the point of precedent
B: it allows the law to respond quickly to real life situations
Disadvantage of judicial precedent (separation of powers)
I: The concept of precedent goes against the separation of powers
C: precedent allows judges to make and change laws, when it should only be Parliament who have this power.
E: R v R
C:judges are not democratically
elected, so judges may not reflect society’s wishes when making precedent.
B: it saves parliament time
the 1966 Practice Statement is effective (absurd)
I: It allows absurd decisions to be avoided
C: The practice statements lets the Supreme Court overrule their past decisions when it appears right to do so.
E: R v Shivpuri overruled Anderton v Ryan
C: it prevents bad decisions having to be
followed by all other courts and allows the law to be updated with society.
The 1966 Practice Statement is not effective (uncertainty)
I: The 1966 Practice Statement causes a lot of uncertainty
C: unclear when the SC will change their decision or keep the law the same.
E: Only one year between Shivpuri and Anderton
C: difficult for lawyers, defendants, and judges to handle cases
The 1966 Practice Statement is effective (little uncertainty)
I: In reality, the practice statement causes little uncertainty
C: reluctant to actually use the practice statement because they value certainty so highly.
E: Jones v SoSSS refused to overrule Re Dowling
C: lawyers, defendants, and judges can handle cases more easily
The 1966 Practice Statement is not effective (usage)
I: if the practice statement is not being used, it cannot be very effective.
C: leads to outdated law and injustices
E:Jones v SoSSS, the court acknowledged that the decision in Re Dowling was wrong, but refused to use the practice statement for the sake of certainty.
C:This defeats the very point of
the practice statement
