Judicial Precedent - Hierarchy Flashcards
Definition
Judicial Precedent is based on the principle of stare decisis, meaning to stand by what has been decided which ensures certainty and stability in the law.
KEY FEATURES: SHROL
What are Precedents?
Decisions made on a point of law by senior courts in the court Hierarchy which must be followed when a later case raising the same point of law reaches a lower court.
What is a point of law?
A binding/ specific legal principle that comes out of a case.
Precedent is subordinate to stature law so if a precedent conflicts with a statute, then the statute will take priority because of Parliamentary supremacy.
Advantage - Real life situations
Law can respond to real life situations as precedent is based on case law and cases deal with real life situations which may or may not happen. With Precedent, the law can be made and changed in response to real life events , this allows the law to develop in line with social and economical change.
E.g. R v R H of L changed the law to make marital rape a crime to reflect changes in society regarding women.
Advantage - Flexibility
Allows Flexibility as there are ways of avoiding precedent which some courts can use which enable judges to keep the law flexible. E.g. The Supreme Court can use The Practice Statement 1966 to avoid following its own precedents. This allows wrong decisions to be avoided and removed so that they are not repeated in the future and allows law to be updated in change with society.
E.g. In R v Shiv Puri the H of L overruled its precedent from Anderton v Ryan as it thought it was wrong and the law needed to be corrected asap.
Disadvantage - Rigidity
Rigidity as Stare decisis forces lower courts to follow decisions of higher courts and higher courts usually still follow their past decisions. E.g.C of A usually has to and Supreme court usually still follows its past decisions even when it doesn’t have to, meaning past precedents which are wrong cannot be corrected so the same mistakes happen in similar later cases.
E.g. Jones v SS of SS the H of L refused to overrule Re Dowling even though 4/7 judges outted certainty over justice.
Disadvantage - complex
Precedent is complex and there are about 1/2 millions reported cases. The number of precedents further increases with the use of distinguishing where 2 precedents are created for the same point of law. Furthermore, judgements are usually written in long, continuous prose so there isn’t a clear distinction between the ratio and the obiter. This makes it difficult for judges to know which case law to follow.
E.g. Dodd’s case the judges in C of A said they were unable to find the ratio of H of L decision.
