judicial precedent (P1) Flashcards
what is the doctrine of judicial precedent?
-decisions of judges in cases that apply to future cases
-common law
-stare decisis
-2 types; binding and persuasive
what is binding precedent?
-hierarchical court structure means higher courts bind lower ones
-a decision made in an earlier case by a high court must be obeyed by lower courts
what is persuasive precedent?
-a decision which does not have to be followed by later cases
-may come from courts that don’t bind, eg the judicial committee of the privy council
-may come from courts lower in the hierarchy
-may be a part of a decision known as obiter dicta
where is the judicial committee of the privy council in court hierarchy?
-bound by no-one, not even itself
-binding on all domestic courts of the commonwealth, including england
-the wagon mound case
-regarded as persuasive precedent only in england
where is the supreme court in the court hierarchy?
-bound by the european court of justice on EU issues, but not by itself
-binding on all other UK courts
-r v Brown
-has the power to reopen appeals
where is the court of appeal (civil division) in the court hierarchy?
-bound by the supreme court, and itself (with exceptions)
-binding on all lower courts and itself
-young v bristol aeroplane co. ltd
-need not follow its own decisions when the previous decision was made per incuriam (in error), when there are two conflicting previous decisions, or when there is a later conflicting supreme court decision
where is the court of appeal (criminal division) in the court hierarchy?
-bound by the supreme court and itself
-binding on all lower courts and itself
-flexible to its approach in binding itself, won’t follow previous decision that would cause injustice
where is the kings bench division of the high court in the court hierarchy?
-bound by the supreme court, court of appeal and itself
-binding on the high court (generally), lower courts and itself
-follows similar rules to CoA (criminal division) in terms of binding itself
where is the chancery and family divisions of the high court in the court hierarchy?
-bound by the supreme court, the CoA and itself
-binding on the high court (Generally), lower courts and themselves
where is the high court in the court hierarchy?
-bound by the supreme court, the CoA, divisional courts, but not itself
-binding on lower courts
why do the crown court, magistrates court and county court not create precedents?
-too many cases going through them
-don’t publish judgements that could be used
what is the practice statement 1966?
-constitutional reform act 2005 transferred HoL’s powers to the supreme court
-supreme court doesn’t have to follow its own previous decisions, but must explain why if they choose not to
what is stare decisis?
-the fundamental principle of precedent
-means a decision in an early case will stand as guidance for all future cases
-decision made by the court is the ‘judgement’, which contains a decision and an explanation as to how it was reached
what is ratio decidendi?
-part of the judgement that forms the precedent for future cases
=the reasoning for the decision
what is obiter dicta?
-the rest of the judgement aside from the ratio decidendi
-judges dont have to follow it but it can be useful guidance
-hill v baxter
what is law reporting?
-to follow past decisions there must be an accurate record of what those decisions were
-judgement is noted down word for word then published
-accuracy is overseen by independent lawyers
-codes at the end of case names are called citations and tell you what reports to access, which are published weekly in the times and yearly in leather-bound volumes
what are the three options for dealing with precedents?
-follow
-overrule
-distinguish
what is the option of following?
-judge applies the same principle
-michael v chief constable of south wales
what is the option of overruling?
-court in a lower case states the decision of the earlier case is wrong
-higher court can overrule decisions of lower courts
-r v jogee overrules r v powell
what is the option of distinguishing?
-judge avoids all precedent
-if judge finds the facts are sufficiently different from the case setting the precedent
-white lion hotel v james VS geary v JD weatherspoons
what are some advantages of judicial precedent?
-certainty - allows the law to be predictable, which promotes ADR
-consistency
-fairness - can see how the decision was arrived at
-precision - exact details are known by all parties
-flexibility - bad precedents can be avoided
-time-saving - making ADR more likely decreases time
what are some disadvantages of judicial precedent?
-rigidity - can restrict decisions made in the interests of individual justice
-complexity - judgements are long and difficult to read
-slowness of growth - waiting for a similar case to evolve the law
-not democratic
