Judicial Precedent Flashcards
Judicial Precedent
The source of law where past decisions of the judges create law for future judges to follow
The basis of precedent is Stare Decisis
Stand by what has been decided
Factors of Stare Decisis
Like cases are decided alike
Higher courts bind lower courts
Courts that create original precedent
Supreme Court
Court of Appeal
Like cases are decided alike
Ratio Decidendi- reasons for deciding (Binding)
Obiter Dicta- other things said (Persuasive)
Ratio Decidendi
R v Howe
Obiter Dicta
R v Brown
Persuasive Precedent
Judgements which do not have to be followed, but could provide good law for judges to follow
Original Precedent
Law made by judges
Methods of avoiding precedence
Overrule
Reverse
Distinguish
Overrule
Higher courts can overrule lower courts
Candler v crane Christmas
Reverse
On appeal, a higher court may change the decision of a lower court
(Re Pinochet)
Distinguish
Where lower court is able to point to material differences that justify the use of different principles
(Balfour v Balfour)
Advantages of Precedent
Judges can distinguish cases on their facts
Practice statement allows law to develop and adapt
The system prevents judges from exercising personal prejudices
Disadvantages of Precedent
Judges drawn from narrow social spectrum
Judgements can be long and unclear (Ratio Decidendi hard to find)
