judicial precedent Flashcards
1
Q
what is a precedent?
A
- source of law where past decisions of the judges create law for future judges to follow,
2
Q
three main elements to the system of precedent : judgements
A
- stare decisis
- a ratio decidendi (binding element)
- Obiter dicta
3
Q
stare decisis
A
- based on Latin phrase “stand by the decision”,
- judges must stand by or follow the decisions in previous cases,
- can only be done if the point of law in a previous case and the present case is the same,
- if so, the court hearing the present case must follow the decision laid in the previous case,
- the idea of treating the cases in the same way promotes a sense of fairness and provides certainty within the law,
4
Q
stare decisis case
A
- Automatic Telephone and Elecric Co. Ltd v Registrar of Restrictive Trading Agreements (1965),
5
Q
Automatic Telephone and Elecric Co. Ltd v Registrar of Restrictive Trading Agreements (1965)
A
- stare decisis case,
- where judge hearing the case had to follow the previous decision made in Schweppes Ltd Registrar of Restrictive Trading Agreements,
5
Q
Ratio Decidendi
A
- binding element,
- precedent can only operate if the legal reasons for the past decisions are known, so at the end of case there is a judgement,
- this is the judge’s explanation of why he came to the decision and legal principles used,
- legal principles are important part of the judgement and are known as the ratio decidendi (reasons for deciding),
- this creates a binding precedent for judges to follow in future cases,
- precedent must be followed even if the judge in the later case does not agree with the legal principle,
- an example is Brown 1993,
- a major problem for judges is to identify what the ratio decidendi actually is,
- it is up to the lawyers and judges reading the judgement to discover the ratio decidendi,
6
Q
brown (1993)
A
- where the d’s were found guilty of offences under ss47 and s20 of of the Offences Against the Person Act 1861,
- because the defence of consent which they had pleaded in respect of their sado-masochistic practices at a private party,
- was not available to defendants so they were charged with such offences,
7
Q
obiter dicta
A
- rest of the judgement is known as obiter dicta (other things said),
- judges in future cases do not have to follow it,
- but may consider it and decide it is a correct principle so they are persuaded that they should follow it,
- this is known as persuasive precedent,
- example of this is seen in the law relating to the defence of duress,
- example R v Howe and R v Gotts,
8
Q
duress
A
- where someone commits a crime under a treat of serious injury,
9
Q
R v Howe
A
- supreme court in R v Howe rules duress could not be a defence to murder,
- they also ruled obiter that duress should not be a defence to attempted murder,
- in R v Gotts, court of appeal followed the obiter statement from Howe and held duress was not a defence to attempted murder,
10
Q
court hierarchy
A
- Judicature Act 1873-75,
- set up the hierarchy of the Courts and established a clear pattern of which courts bind each other,
- the general rule is every court is bound to follow a decision made by a court above it in the hierarchy,
- in general appellate (the courts that hear appeals) courts are bound by their own past decisions,
11
Q
the exception where lower courts in our legal system are not bound to follow decisions by the English appellate courts
A
- cases involving human rights,
12
Q
what does the supreme court bind?
A
- binds all other courts in the English Legal System,
- does not have to follow any courts,
13
Q
courts bound by the court of appeal
A
- itself (with some exceptions),
- divisional courts,
- all other lower courts,
14
Q
court the court of appeal must follow
A
- supreme court,
15
Q
courts bound by the divisional court
A
- itself (with some exceptions),
- high court,
- all other lower courts,
16
Q
courts the divisional court must follow
A
- supreme court,
- court of appeal,
17
Q
courts bound by high court
A
- county court,
- magistrates’ court,
18
Q
courts the high court must follow
A
- supreme court,
- court of appeal,
- divisional courts,
19
Q
courts the crown court and magistrates bound by
A
- all higher courts,
20
Q
courts the crown court must follow
A
- all higher courts,
21
Q
practice statement 1966
A
- allows the supreme court to not have to follow its own previous decisions, but it must explain why if it chooses not to do so,
- up until 1966 the house of lords (now the supreme court) were bound to follow their own previous decisions,
- this mean the law was virtually impossible to change unless Parliament stepped in,
- so in 1966 the Lord Chancellor issued a Practice Statement announcing that the rule would change and the House of Lords/ Supreme Court would be able to overrule their own previous decisions when right to do so,
- example ; Herrington v British Railways Board,
22
Q
court of appeal 2 divisions
A
- do not bind each other,
- usually bind themselves,
- civil decision must follow its own previous decisions and the criminal division must follow its on previous decisions,
23
Q
the rule on the court of appeals division comes from what case?
A
- young v bristol aeroplane (1944),
24
Q
the only exceptions to the rule on the court of appeals division
A
- where there are 2 conflicting court of appeal decisions, the court can choose the one it wants to follow,
- if there is a decision on the same issue from the supreme court, this automatically must be followed instead of previous court of appeal decisions,
- where previous decision has been made per incurium (in error) then a new decision can be made,
- in criminal cases a further exception applies - if decision was made due to a law being wrongly applied,
25
Q
types of precedent
A
- binding precedent,
- persuasive precedent,
- original precedent,
26
Q
binding precedent
A
- for the system of precedent to work, there has to be a hierarchical court structure,
- means the courts are tiered or ranked according to their seniority and the higher ones bind the lower ones,
- essentially, a binding precedent is a decision in an earlier case and a higher court which must be followed in later cases,
27
Q
persuasive precedent
A
- a decision which does not have to be followed by later cases, but which the judge may decide to follow,
- he may be persuaded that it is the right decision,
- there is a number of different persuasive precedents,
28
Q
the different persuasive precedents
A
- come from courts that do not bind, such as the judicial committee of the privy council - this court is not part of the English hierarchy so does not bind courts but can influence decisions,
- come from courts lower down the hierarchy - e.g. R v R (1991), where Lords agreed to follow the Court of Appeal despite not being bound to,
- be a part of the decision known as ‘obiter dicta’ - the obiter statement from R v Howe was used in R v Gotts to decide that duress is not a defence to attempted murder,
- a dissenting judgement - when a case is decided by judges, e.g. in the Court of Appeal it is decided by majority so there can be a judge that disagree, this judge will write down why they disagree, this can be used in later cases,
29
Q
original precedent
A
- comes about when the point of law in a case has never been considered before,
- there are no past cases, upon which the judge can base a decision, so the normal doctrine of judicial precedent cannot apply as there is no precedent to follow,
- most likely to arise with developments of new technologies, meaning new situations come before the courts,
- concept of original precedent raises an issue about whether judges create law or are merely declaring it,
30
Q
example of original precedent
A
- donoghue v stevenson (1932) which is an original precedent for which negligence was based upon,
31
Q
law reporting
A
- to follow past decisions, there must be an accurate record of those decisions,
- many early reports, called yearbooks, were very brief and inaccurate,
- cases were reported by individuals who sold the reports to lawyers,
- the detail and accuracy of these reports varied,
- incorporated council of law reporting was formed in 1865,
32
Q
incorporated council of law reporting
A
- controlled by the courts,
- reports became accurate, with judgements usually reported word for word,
- the council still publishes the law reports today,
- although there also other reports available; all England series and Weekly Law Reports,
- also available from other sources including ; newspapers, journals, CD ROMs and the internet,
33
Q
how do judges use precedent?
A
- two competing aims of any legal system - flexibility and certainty,
- law needs to be flexible in order to develop and evolve to meet changing times and demands,
- it must be certain to allow people to plan their affairs and for the legal profession to advise clients,
- the binding nature of the ratio decidendi creates a foundation for certainty and the courts have developed various ways to introduces flexibility into the system,
- when faces with a case on which there appears to be a binding precedent, a judge has various options regarding how he uses the precedent (FORD),
34
Q
FORD
A
- follow,
- overrule,
- reversing,
- distinguish,
35
Q
follow
A
- if the facts are sufficiently similar, then the precedent set by the previous case is followed, and the law is applied in the same way when reaching the new decision,
36
Q
case for follow
A
- follow was used by the Supreme Court in Davis v Johnson the Court in Davis v Johnson,
- court of appeal tried to challenge the rule established in Young v Bristol Aeroplane Co Ltd,
- they had to follow their own previous decisions,
- supreme court chose to follow Young,
37
Q
ways that judges can avoid following precedents
A
- overrule,
- reversing,
- distinguish,
38
Q
overrule
A
- the judge states the law in a previous case is wrong and should be overrules,
- they will establish a new precedent to be followed in future cases,
- may occur when a higher court overrules a decision made by a lower court,
- for example, the Supreme Court overruling a decision by Court of Appeal,
- overruling is rarely used because it weakens the authority and respect of lower courts,
39
Q
overruling case
A
- used in the case of Pepper v Hart when the Supreme court ruled that Hansard (the record of what is said in Parliament) could be consulted when trying to decide what the words in an Act of Parliament meant,
- they overruled the earlier case of Davis v Johnson which held that Hansard could not be consulted,
40
Q
reversing
A
- a higher court over turns the decision of a lower court on appeal,
- i.e. the same cases moves higher up the court structure,
- this can only happen in the specific case being appealed,
- it is where the court hearing the appeal disagrees with the legal ruling of the High Court Judge and come to the opposite point of view,
- in this situation it reverses the decision made by the high court,
41
Q
distinguish
A
- the judge will state the facts are sufficiently different allowing him to distinguish between the two cases,
- as a result he need not follow the previous decision as it was based on a different set of facts,
42
Q
two divorce cases demonstrating distinguish
A
- both cases involved a wife making a claim against her husband for breach of contract when he failed to financially provide for her following their divorce,
- in Balfour v Balfour the judge decided the claim was unsuccessful because there was merely a domestic agreement between a husband and wife, there was no legally binding contract,
- in Merritt v Merritt the agreement was made in writing after the couple had separated,
- the court distinguished the cases as the agreement in Merritt was not just a domestic arrangement, but was meant to be a legally binding contract,
- the wife’s claim was successful,
43
Q
advantages of precedent
A
- certainty,
- precision,
- flexibility,
- timesaving,
- consistency,
44
Q
certainty
A
- allows the law to be predictable, which in turn promotes alternative dispute resolution in civil cases,
- it is just and fair that like cases are treated alike,
- the law must be consistent in order to be creditable,
45
Q
certainty case
A
- in Davis v Johnson the court of appeal tried to challenge the rule established in young v Bristol Aeroplane Co ltd that they should follow their own past decisions,
- supreme court followed the previous case and confirmed the rule,
- the practice statement confirms how important certainty is,
46
Q
precision
A
- as the principles of law are set out in actual cases, the exact details of the law are known by all parties; it is well illustrated and gradually builds up through the different variations of facts in the cases that come before the courts,
47
Q
precision case
A
- R v Howe,
- the supreme court ruled duress could not be a defence to murder,
- same reasoning was used by Court of Appeal in R v Gotts,
48
Q
flexibility
A
- exact details of the law are known by all parties,
- this power was used in Conway v Rimmer,
- the ability to distinguish cases also gives all courts some freedom to avoid past decisions and help develop the law,
49
Q
flexibility case
A
- Merritt v Merritt,
- distinguished the earlier case of Balfour v Balfour,
50
Q
timesaving
A
- predictability makes ADR more likely, thus saving parties and the courts time and money,
51
Q
consistency
A
- like cases are decide alike, promoting a sense of justice,
52
Q
disadvantages of precedent
A
- rigidity,
- complexity,
- slowness of growth,
- a bad precedent,
53
Q
rigidty
A
- binding decisions can restrict decisions made in the interests of individual justice,
- the fact the lower courts have to follow the decisions of higher courts can make the law inflexible so that bad decisions lead to further bad decisions,
- there is the added problem that very few cases go to the supreme court,
- change in the law will only take place if people persist with their appeals, which is often dependant on money,
54
Q
rigidity case
A
- this is partly why the court of appeal tried to challenge the rule established in young v bristol aeroplane co ltd,
- that they should follow their own past decisions,
- however, the challenge was unsuccessful and in all but exceptional circumstances they are bound by their past decisions,
55
Q
complexity
A
- another problem is the judgments themselves,
- which are often very long with no clear distinction between ratio and obiter statements,
- this makes it difficult to find the ratio decidendi in some cases,
56
Q
complexity case
A
- such as, Dodds case,
- where the court of appeal said they could not find the ratio in a decision of the supreme court,
57
Q
slowness of growth
A
- the development of precedent depends on accidents of litigation,
- e.g. waiting for a similar case to come along in order to develop the law further,
58
Q
a bad precedent
A
- needs another case or an act of parliament to correct it,
- as in DPP v Smith (1961), and the criminal justices act 1967 which reset intention as a subjective test,
