Module 5 - Judicial precedent Flashcards
What is judicial precedent?
A process where past decisions made by judges in higher courts are followed in future similar cases by courts of the same or lower rank. This ensures consistency and predictability in the law.
What principle is judicial precedent based on?
It is based on the principle of stare decisis.
What do some courts do with similar cases?
Some courts must also follow their own previous decisions (‘bind themselves’)
What is ‘stare decisis’
“to stand by what has been decided”
> This principle underpins the doctrine of judicial precedent and requires courts to follow previously established decisions in cases with similar facts.
What must a judge do when presented with a similar case to another?
Follow the doctrine of ‘stare decisis’
What is the more supreme court, the Crown Court or High Court, and why?
The High Court is slightly higher than the Crown Court as the Crown Court can refer to the KBD on a point of law, and be overruled
What is the importance of Wight v Platt 2017 in relation to court hierachy?
Isle of Wight Council issued a £60 fine after he took his kid out of school a week early to go on holiday
> He refused to pay, citing that no new learning is done in the last week and that his kid had excellent attendance
> In the Magistrates Court (lowest), he was found not guilty; on appeal, in the Crown Court and High Court (divisional) both found him not guilty; it eventually reached the Supreme Court who ruled in favour of the Isle of Wight council
What is ratio decidendi?
“the reason for the decision”.
> This is the binding legal principle or rule derived from the judgement in a case, which must be followed in future similar cases.
What happens when a judge makes a decision, in terms of what is stated?
When a judge makes a decision, they will give a statement of the facts, a verdict, and their ratio decidendi, or ratio
> It is not always easy to find the ratio in a case
> It is the ratio that creates new law and this must be followed by judges in lower courts
What is the ‘ratio’, and give one example of a ratio.
> ratio = reasoning (actual law); the legal outcome
i.e. the ‘ratio’ in R v R was a ruling against marital rape
As no two cases are identical, what needs to be decided, in relation to stare decisis?
What needs to be decided is whether two cases are ‘sufficiently similar’ that they should be treated the same (stare decisis)
What is obiter dictum?
“something said by the way”.
> These are comments or observations made by a judge in a judgement that do not form part of the binding precedent. While not legally binding, they may be persuasive in later cases.
What is the core difference between ratio decidendi and obiter dicta statements?
> Obiter dicta statements are not binding on a later judge, unlike ratio decidendi
What are some examples of how obiter dicta can arise?
> Obiter comments can arise in many ways, i.e. ‘IF the facts had been different, my outcome would have been…’; judge makes a number of general comments and speaks on hypotheticals, i.e. what they would have decided if they had not been bound by stare decisis
What is ratio?
An abbreviated term for ratio decidendi. It refers to the essential legal reasoning that forms the basis of the court’s decision, which is binding on future cases.
What is stare decisis in full and what does it mean?
stare decisis et non quieta movere = stand by what has been decided and do not unsettle the established
Which of obiter / ratio forms a binding precedent?
An obiter does not form a binding precedent, but the ratio does form one, meaning it is important to separate one from the other.
Why could the seperation of an obiter (non-binding) and a ratio (binding) be difficult?
> This poses as a problem for lawyers as the judge delivers his judgement in continuous prose, which makes this separation difficult
More judges (three in CoA, five in Supreme) means more potential judgements
In appeal court (appellate courts) a majority verdict is acceptable, so then there will be at least one dissenting judgement, making the ratio even more difficult to find.
What happened in Howe, in connection with an obiter dictum and speculation?
> Howe gives the principle that duress (being under pressure) is not an excuse for murder or attempted murder; the principle of duress comes from the Nuremberg Trials and the doctrine of equal life.
What happened in Hill v Baxter, in relation with automatism and hypothetical situations?
> Automatism is where you cannot control your body; this case’s obita serves as a deference in future automatism cases; sitting judge used an example (if a swarm of bees was attacking the driver and the driver crashed into a family, it is neither party’s fault); this hypothetical in the obita was used to explain automatism, and the judge found neither party criminally liable/guilty.
What four things is a judgement (speech made by the judge) made up of, and what type of cases does this appear in?
> A summary of the facts
A review of the legal arguments (summary of relevant law)
Reason for decision (ratio and obiter)
Decision itself
Occurs in civil, criminal and appeal cases
What is original precedent?
Original precedent is the law created by a case that is in a unique way different from any earlier case
> A point in a whole area of law that has never been decided on before, so there are no past cases which the judge can based his/her decision
> Judges must create law to fill in the gaps as there is no previous case or statute
What cases is original precedent used in ?
This occurred in R v R; Hunter v Canary Wharf; Shaw v DPP
What is reasoning by analogy, and what doctrine is it in close link to?
Reasoning by analogy is where if there are no past cases dealing with an area of law, the judge must look at cases which are closest in principle, and if deemed close enough, similar rules are applied
> Finding similarities between one case and another even if they are not exactly alike, making sure law is consistent
> Serves as an extension to stare decisis / doctrine of ‘like for like’
What is binding precedent?
Binding precedent is where a precedent from an earlier case must be followed, making the law certain, even if the sitting judge does not agree with the judgement in the earlier case
> Facts in the later case must be sufficiently similar to the earlier case
> Earlier cases must have been decided by a court senior/superior (i.e. Supreme Court, Court of Appeal) to or possibly at the same level as the later court.
What is persuasive precedent?
Persuasive precedent is precedent that is not binding, but which may be followed
