Judicial Precedent Flashcards
Judicial Precedent
Where judges create rules for other judges to follow in later cases
Stare Decisis
- Standby what has been decided
- Dictates if court makes decision the same court must follow that decision, courts in lower hierarchy follow it.
- Promotes fairness//consistency&certainty in the law.
Ratio Decidendi
- Reason for the decision,
- Judge must say why he’s made that decision
- Binding in court: // 1-facts are sufficiently similar (cases) 2-decision comes from the same court or higher.
Obita Dicta
- Other things said,
- Everything else in judgement that is not the ratio decidendi it could be: 1-judges opinion 2-speculation on the facts 3-summary of the case Judges do NOT have to follow this (non-binding)
Persuasive precedent
- Decision that is not binding on the court, but the judge may consider it and decide that it is a correct principle so he is persuaded that he should follow it
- Many different types of persuasive precedent
Courts lower in the hierarchy (Persuasive precedent)
- Judgment from a case that was decided by a court lower in the hierarchy may be used as persuasive precedent
-R v R (1991) - HOL followed the reasoning of the COA in deciding a man could be guilty of raping his wife
Decisions of the Judicial Committee of the Privy Council
(Persuasive precedent)
- Not part of court hierarchy however presided many Supreme Court justices its reasonable to consider their decisions as precedent.
- EG: Attorney General for Jersey v Holley (2005)
Judicial Committee Case
Attorney General for Jersey v Holley (2005)
- Clarified defence provocation in murder: should be looked from point of reasonable person, not of the D’s individual weakness (eg: mental state//intoxication.
Statements made obiter dicta
(Persuasive precedent)
R V Howe
- Ratio : duress can’t be used as defence to murder
- Obiter : Duress may be valid under manslaughter//attempted murder//less serious crimes.
- This was then followed later in R v Gotts (1992).
A dissenting judgement
(Persuasive precedent)
- When there have been a panel of judges on a previous case, the outcome will be taken from the majority decision
- Sometimes very sensible are persuasive things are said by the judges who formed the minority decision - called the dissenting judgment
- Therefore in a future case the HOL/SC may prefer the dissenting judgment and decide the case in the same way
Decisions of courts in other countries
- Especially happens where the other country uses the same ideas of common law as in our system e.g. Commonwealth countries such as Canada, Australia and New Zealand
Original Precedent
- if a point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow.
- As there is no past law to follow - the judge may reason by analogy - Hunter v Canary Wharf (1995), about loss of TV reception reasoned by analogy with Aldreds case (1611) about loss of view
- Some people argue that creating an original precedent that other courts have to follow is going beyond the powers of the judiciary as they are not elected to make new law - however Parliament cannot be expected to create law for every conceivable scenario
Binding precedent
- Precedent from an earlier case which must be followed even if the judge does not agree with the legal principle
- Only created when the facts of the second case are sufficiently similar to the original case and the decision was made by a court which is senior to (or in some cases the same level as) the court hearing the later case
Ways of avoiding a binding precedent
- Distinguishing
- Overruling
- Reversing
Distinguishing
(Binding precedent)
- Judge must show difference in the material facts of the two cases, if sufficiently different then the instant judge not bound by the earlier case.
- EG: Balfour v Balfour and Merrit v Merrit.
Balfour v Balfour and Merrit v Merrit
(Distinguishing)
- Both cases involved a wife making claim against husband for breach of contract.
- Balfour no claim as no legal intent only domestic agreement during marriage
- Merrit there was claim as it was a written agreement after separation
Overruling
(Binding precedent)
- Higher court disagrees with legal principle established by lower court in previous case with similar facts.
- Higher court can change the principle and new principle must be followed by lower courts.
EG: SC overruling decision of CoA
Reversing
(Binding precedent)
- Case appealed to higher court and a different decision is reached.
- EG: Sweet v Parsley - HoL reversed the CoA decision and found D not guilty as mens red couldn’t be proved.
London Street Tramways v LCC (1898
-HOL held that certainty in the law was more important than the possibility of individual hardship being caused through having to follow a past decision
-therefore if a bad decision has been made the only way to change it would be a new Act of Parliament
-this rule of precedent became criticised over time and it was argued that allowing the former HOL to change their minds and depart from a previous bad decision would provide justice
The Practice Statement 1966
-eventually it was agreed that the HOL should have more flexibility
-in 1966, the Lord Chancellor issued a change to rule in London Tramways, called the practice statement:
The HOL will depart from its previous decisions where ‘it appears right to do so’
Austin v London Borough of Southwark (2010)
(Practise Statement)
-SC confirmed that the Practice Statement applied to the SC
- Despite this they decided not to use this power in this case as it involved tenancy law and they believed that certainty in the law was crucial in this area
Herrington v BRB (1972)
(Practise Statement)
-a 6 year old boy wandered onto an electrified line and was badly injured
-earlier case of Addie v Dumbreck (1929) had decided that an occupier of land would only owe a duty for injuries to a child trespasser, if those injuries had been caused deliberately or recklessly
PRINCIPLE
-HOL held that social and physical conditions had changed since 1929, and the law should also change
Advantages of judicial precedent
- Certainty
- Consistency and fairness
- Precision
- Flexibility
- Time-saving
- Filling gaps
Disadvantages of judicial precedent
- Rigidity
- Complexity
- Slowness of growth
