Judicial Precedent Flashcards
Define doctrine of precedent
Following decisions of previous case especially higher court. Based on stare decisis, meaning stand by what ya been decided and don’t unsettle the established
What’s an example of the doctrine of precedent
Automatic telephone and electric co ltd v registrar of restrictive trading agreements (1965)
Court of appeal had made a decision in Schweppes ltd registrar of restrictive trading agreements (1965) on discovery of documents. One judge (Wilmer LJ) disagreed with other two. Same point arose in aforementioned case on same day and now the judges did not disagree as Wilmer bound by precedent
What’s original precedent
A decision on a point of law never been decided before
What’s binding precedent
A decision in an earlier case which must be followed in later ones
What’s persuasive precedent
A decision which a judge doesn’t have to follow in later cases but might decide to (ie R v R (1991) HoL followed CoA in which man is guilty of raping wife )
What happens in reference to Decisions of the Judicial Committee of the privy council
Not part of England and Wales hierarchy so decisions not binding but many judges SC members so respected and maybe be followed, ie law on remoteness of damage in fort law and the decision made by P C in Wagon Mound (no.1) (1961)
More recent example: a-g for Jersey v Holley (2005) PC ruled defence of provocation a defendant should be judged by standard of ordinary self control. In cases in 2005/6 CoA followed PC decision
What does obiter dicta mean
Statements made in a judgment that were not part of law in deciding case, ie HoL in R v Howe (1987) ruled duress not a defence to murder, obiter dicta used to say it wouldn’t be available as attempted murder defence. R V Gotts (1992) tried to use defence of duress but courts used obiter dicta from previous case
What’s a dissenting judgment
A judgment given by a judge who disagrees with the reasoning of the majority of judges in the case
Points in the doctrine of judicial precedent
Every court is bound to follow any decision made by court above it in hierarchy and appellate courts generally bound by past decisions
What are the two exceptions of lower courts being bound by higher ones
1) where there is a decision of the coj of EU when English courts have to follow that decision
2) cases involving human rights, as they need judgments opinions and decisions of EU court of human rights
What’s the court hierarchy in civil cases
SC CoA (civil division) Divisional courts (family chancery) High court County court Magistarates court
Criminal case court hierarchy
SC CoA (crim division) Queens bench divisional court Crown court Magistrates court
Courts, courts bound by it and courts it follows?
SC: all other courts in English legal system: EU court
CoA: itself with some exceptions, divisional courts and all lower courts: EU court
SC court
Divisional: itself with some exceptions, High court, all lower courts
High: county and magistrate (doesn’t have to follow other high court judges decisions but usually will, seen in Colchester estates (Cardiff V Carlton industries plc (1984) held were two conflicting decisions held then provided first decision has been fully considered then later one will be followed): EU, SC, CoA, divisional courts
Crown court: possible magistrates: all above courts
County court: possible magistrates: all above courts
What is the practice statement
1966 lord chancellor issued a practice statement announcing a change to the rule of being completely bound by past decisions in ‘London Street Tramways V London County Council’ saying ‘they therefore proposed to modify their present practice and while treating former decisions of this house as binding, to depart from a previous decision when it appears right to do so’
What case happened in 1898 and what happened
London street tramways V London county council, HoL bound by previous decisions, certainty of law decided as more important than potential hardship caused by it to an individual
What happened in 1966 that’s relative to judicial precedent
Me Practice statement, HoL will depart from previous decisions when ‘right to do so’ however phrase is vague and gives little detail about when specifically to use it. HoL reluctant to sue it
What happened in 1968 in regards to the practice statement
First use of statement in Conway V Rimmer (1968) on a technical point on document discovery
What happened in 1972 in regards to the practice statement
First major use in Herrington V British Railways Bosrd which involved duty of care owed to a child trespasser. Previous case (Addie V Dumbreck (1929) decided occupier of land would only have duty of care for child trespasser if injuries happened delibarelty or recklessly but in Herrington lords decided social conditions changed so law should too
What happened in 1973 in regards to PS
Knuller (publishing, printing and promotions) Ltd v DPP, certainty in law was important and PS would not always be used, Lord Reid saying ‘our change of practice in no longer regarding previous decisions as absolutely binding does not mean whenever we think a previous precedent was wrong we should reverse it. In the general interest in certainty of law we must be sure there is some very good reason before we so act’
What happened in 1986 in relation to the practice statement
R v Shivpuri. First criminal use of PS, overruled a decision made in Anderton v Ryan (1985)
What happened in 1993 in relation to the practice statement
PS used to allow courts to view Hansard for statutory interpretation purposes
Give another example of a major use of the PS in the criminal system in 2003
R v G (2003), HoL overruled previous decision in Metropolitan police commissioner v caldwell (1982) on law of crim damage. In Caldwell it was ruled recklessness included the situation where defendant hadn’t realised the risk of his action would cause damage but an ordinarily careful adult would. R v G held that this was the wrong test to use, and the defendant is only reckless is he realises there’s a risk and does it anywya
What happened in 2009 to the House of Lords
Replaced by Supreme Court
What Act gave SC same power as HoL
Constitutional reform act 2005
What happened in 2010 regarding the practice statement
Austin V London Borough of Southwark, SC states PS applies to it, but didn’t use it in this case as they took the view certainty in tenancy law is important
How long has the EU CoJ bound Court of appeal
Since 1973, CoA has been bound as well as other courts
Why does the SC bind the CoA
Because the SC is above the CoA in the hierarchy, and is also necessary in certainty in law. CoA tried to challenge this in Broome v Cassell (1971) and in Miliangos (1976) under Lord denning as they refused to follow HoL holding that damages could only be awarded in £. He said world climate he changed and sterling no longer stable currency. Miliangos appealed to HoL as CoA had no right to override HoL
Why is the CoA bound by its own past decisions
Decided in CoA in Young’s case (1944) but there is minor exceptions. In Davis V Johnson (1979) CoA tried to challenge the rule as they had made the decision a few days earlier regarding interpretation of Domestic Violence and Matrimonial Proceedings Act 1976 but HoL confirmed CoA was bound by previous decisions as they had unanimously reaffirmed the rule in Young V Bristol aeroplane
What’s the exceptions in Young’s case
CoA doesn’t have to follow choices when there’s conflicting past decisions, HoL/SC ruling overrides it or decisions made per incuriam (in error- but only used in exceptional cases as said in Rickards V rickards 1989 and thatnwas considered rare as the mistake was over a critical point whether the court had the power to hear the case’
What’s a CoA being bound exception for criminal division
Law been misapplied or misunderstood, seen in R v Gould 1968 as people liberty at stake
Define stare decisis
Stand by what’s been decided, follow the law decided in previous cases for certainty and fairness
What does Ratio decidendi mean
Reason for deciding. Part of judgment that creates law
What does obiter dicta mean
Other things said
What does distinguishing mean
A method of avoiding a previous decision because the facts in the present case are different I.e Balfour V Balfour and Merritt v Merritt
What’s overruling
A decision that states the legal rule in an earlier case is wrong, ie Pepper v Hart HoL overruling Davis v Johnson Hansard restrictions
What three things can judges decided to do with precedent
Follow, overrule or distinguish
What happens when a new Act of P is passed that contradicts a previously decided case
The Act is now law on that point, ie Law Reform (year and a day rule) Act In 1996, judicial decisions meant person could only be changed with murder or maslaughter if person died of injuries within a year and a day. The Act enacted that there’s no time limit even if the Victim dies a few years later of injuries.
What happens when an act is unclear and needs to be interpreted
The decision will be precedent ie Offences against the person, inflict and harm
What’s the advantages of precedent
Certainty= courts follow past decisions so likely to know how law will be applied
Law fairness and consistency: seen as just and fair that similar cases defies similar way
Precision= principles of law set out in actual cases
Flexibility= room for law to change
Time saving= cases with similar facts unlikely to go through same litigation
Disadvantages to law precedent
Rigidity= can make law too inflexible so bad decisions in past may be perpetuated
Complexity= not always easy to find relevant cases can make it difficult to find ratio decidendi ie Central asbestos co ltd v Dodd (1973) said judges in CoA unable to find ratio
Illogical distinctions= can lead to hair splitting to avoid following past decisions
Slowness of growth= cannot make a decision if case before courts is to be decided if area of law needs reformation
