Judicial Precedent - Finished Flashcards

Question

Advantages of JP

Answer 1

Consistency Easier to make decisions Time Saving

Answer 2

Inflexible Complex at times

Answer 3

Define JP Elements of JP Hierarchy of Courts Types of JP Practice Statement Adv&Disadv

Answer 4

Judicial Precedent is known as the decision that is meant to be followed. It follows the latin principle Stare decisis. Which defines as to stand by a decision. JP is broken down into 3 elements : Stare decisis, Ratio Decidendi and Obiter Dicta. Stare Decisis portraits the idea of the court standing by / following a previous case (precedent). Ratio decidendi is the legal reason as to why the decision was made. And then obiter dicta is the judgement made by the judge for the findings of the case. It is not a decision and is more seen as an acuity which is why it is described as the Judge’s notes. For a court to make a precedent to be relayed to other courts, it is dependant on the ‘power’ of the courts. This is why a Hierarchy of the Courts was introduced. The hierarchy highlights which court has power over others, and which courts bind to others. Orginally, speaking in perspective of a UK Citizen, the European Court of Justice was seen as the highest power court. However after political maintenance, the UK had left the EU which meant that currently it is not the highest ranked court for the UK. Now, it is the Supreme Court. The Supreme Court is the most powerful court and it binds no other court and any precedent that is made must be followed by all court below. The supreme court does have an alternative path in JP. They can use the Practice Statement. The practice statement was created by Lord gardinor and provided judges an alternative choice when it was shown right to do so. The courts below rank as the Court of Appeal, Divisional Courts etc. All courts below the Division Courts do not have the power to create precedents. However the privy council has power to create persuasive precedents but not binding. If there is any point where a higher court may believe a lower court’s decision was right, they can choose to follow the lower court. This was shown in the R v R case in the Court of Appeal where the defendant was accused of rape. The house of lords(now supreme court) agreed with the court of appeal’s decision. There are 3 main types of precedent. The 1’st type of precedent is persuasive. A persuasive precedent can by made by any court above and including Divisional Courts,and also including the privvy council. A persuasive precedent is not a decision and does not need to be followed but can influence the case. It does not need to be used which means it is not binding. A binding precedent is a previous decision that must be followed when the 2 cases are similar and the decision was made in a higher court. Finally, an original precedent is a first of it’s kind, where the decision made creates a precedent itself for future cases of similar nature. For example, Donoghue v Stevenson was a first of its kind and created a precedent for Negligence. Precedents are made by past cases so it would imply that it can make a case much easier to solve and also would mean that it is time efficient because there is no need for extensive research when it can easily be referenced. However on another note, it can be complex because there can be alternates to a case which may alter its direction and the cases may not be similar enough to use the precedent. Along with complex, it can become rigidity (not able to change).