judicial precident Flashcards
What is judicial precedent?
A court ruling that is used as a source of future judicial decision making
Based on the principle of stare decisis - means ‘let the decision stand’
decisions made by higher courts bind the decisions of all lower courts
what is the court hierarchy?
Supreme
(criminal) (civil)
Co Appeal Co Appeal
crown court High co Justice
magistrates court county courts
what are the five rules of precedent?
F. follow
O. overruling
R. reversing
D. departing
D. distinguishing
what is departing?
- referred to as overruling
- Only HOL/Supreme Court
- can HOL/SCt depart from its OWN past decisions – or does it bind itself?
- by issuing the Practice Statement 1966 HOL can now depart from their own previous decisions ‘when it appears right to do so’
what is distinguishing?
If the material facts of the case are SUFFICIENTLY DIFFERENT from a previous case, a court may distinguish the two and need not follow the earlier case
what is overruling?
- Higher courts can overrule decisions of lower courts in a later different case if they disagree with the lower court’s statement of the law
- The previous decision is no longer binding
- Used sparingly
what are the case examples of the use of the practice statement (departing)?
- The House of Lords have departed from their own precedent – but only a handful of times: ADDIE v DUMBRECK was departed from in HERRINGTON v BRB
- Addie held: No duty of care was owed to trespassers to ensure that they were safe when coming onto the land. The only duty was not to inflict harm wilfully.
- Herrington held: that the defendant railway company did owe a duty of common humanity to trespassers.
- Lord Pearson: “the Addie v. Dumbreck formulation of the duly of occupier to trespasser is plainly inadequate for modern conditions, and should be discarded.”
what is reversing?
It happens only in ONE case during ONE line of appeal A higher court may REVERSE (or change) the decision of a lower court in the SAME case if they feel the court has wrongly interpreted the law
wast is following?
The first rule of precedent
Lower courts must follow decisions of higher courts (binding)
If facts are sufficiently similar to a case from higher court, then it is binding on the lower court and it must follow the precedent
can the CoA depart?
Young v Bristol Aeroplane
3 exceptions when the CofA could depart from its own past decisions:
1. a previous conflicting decision
2. a decision was made per incuriam
3. a past decision of CofA was overruled by the HOL/Supreme Court
case example of reversing?
Gillick v West Norfolk & Wisbech Area Health Authority [1986] - could daughter be prescribed pill without mothers consent.
High Court – found in favour of health authority
Court of Appeal reversed the decision, found in favour of Mrs. Gillick
House of Lords – reversed the decision of C of A, found in favour of health authority
case example of overruling?
HOL in R v R overruled the CoA in R v Clarence
RvClarence: “the husband cannot be guilty of a rape committed by himself upon his lawful wife.”
RvR: It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule
case example of following?
in Howe Ratio decidendi of the case was that duress is no defence to murder
HOL suggested, obiter dicta, that duress is no defence also to attempted murder
So persuasive was followed in R v Gotts
case example of distinguishing?
Balfour v Balfour and Merritt v Merritt
BvB: there was a principle that unless otherwise stated, agreements between husband and wife are not intended to be legally binding.
MvM: The court distinguished B v B and disagreed with his argument stating that because they had already separated they had intended to create a legally binding contract. This was a new and distinct precedent, which now exists alongside B v B.
What are judges following?
Ratio Decidendi:
- ‘Reason for deciding’
- The legally binding part of the judgment
- Can get complicated when more than one speech/judgment, same conclusion but different reasoning
Obiter dictum:
- ‘Things said by the way’ or in passing
- Usually hypothetical scenarios i.e. Jones did this, but if he had done that, my decision would have been…’
- Does not form part of the binding precedent but may be persuasive precedent
