Precedent Flashcards
Doctrine of Precedent
- judge finds a prev. decision by higher court in a similar case they must follow it -> in Law reports -> fairness+ legal certainty
Judgment
written record of a decision given by a judge in a case -> published Law reports
stare decisis
a decision in an earlier case will stand as guidance for all future cases via. court hierarchy i.e Donoghue V stevenson ->duty of care is owed by manufacturers to
consumers. -> ‘neighbour principle’
Ratio Decendi
- “the reason for deciding”.
Ratio decidendi is the most important part of the judgment because it is the
binding part of the decision. - It must be followed by other judges in future
cases. (in same court or lower down)
R v Howe -> ratio decendi
i.e R v Howe Court ruled that the defence of duress is not
available to a charge of murder
. -> precedent in Ashlea Wilson
D -> 13 not rely on defence despite being too frightened of father
Obiter Dicta
“other things said” by the judge.
Judges in future cases do not have to follow the obiter dicta (i.e. it is not
binding), but it can give useful guidance, e.g. helpful examples or
speculation about how the law might develop in the future.
i.e R v Gotts
R V Gotts
The Court of Appeal were persuaded to follow obiter
dicta from the earlier case of R v Howe, in which the SC expressed the
opinion that duress should not be a defence to attempted murder.
Since Howe was a murder case, comments made about attempted
murder were not binding.
Precedent & Act of law
Act of Law over Parliament
Human Rights Act 2998
- freedom to ignore precedent higher courts if contravenes ECHR
- All courts take into account decisions of ECtHR
- i.e Re Medicaments (No.2), Director of Fair Trading v
Proprietary Association of Great Britain
Re Medicaments (No.2), Director of Fair Trading v
Proprietary Association of Great Britain
the Court of Appeal
refused to follow the House of Lords precedent of R v Gough (1996)
because it conflicted with decisions of the ECtHR.
Types of Precedent
- Binding
- persuasive
- original
Binding precedent
must be followed by future courts, depending on their
position in the court hierarchy (i.e. higher courts bind lower courts).
- based on principle of stare decisis
-precedent
can be binding due to the principle of being bound by a court’s own
previous decision (where no exception applies).
i.e R v Howe
Persusive precedent
- lower courts -> sometimes seen CofA + SC i.e R v R -> ruled a man could be guilty of raping his wife
- Privy Council decisions ->HCA in many commonwealth countries -> presided over by many of our own SCJ -> Wagon Mound (No1) decision
of the Privy Council which has since become one of
the leading cases on remoteness in tort law. - Orbiter dicta - R v Howe -> R v Gotts
- dissenting judgments ->whe a judge disagreed with a majority in CofA SC may be persuaded -> Hedley Byrne v Heller (1964), where an earlier dissenting judgment by
Lord Denning was upheld. - decisions of courts in other countries -> w. similar ideas of common law i.e canada
In R v Bentham (2003), the Court was invited to follow the
Canadian case of R v Sloan
Persuasive precedent
- lower courts
- Privy Council decisions -
- Orbiter dicta
- dissenting judgments
- decisions of courts in other countries
Persuasive precedent: lower courts
- lower courts -> sometimes seen CofA + SC i.e R v R -> HOL persuaded by Cof A -> ruled a man could be guilty of raping his wife
Persuasive precedent: Privy council decisions
- Privy Council decisions
->HCA in many commonwealth countries
-> presided over by many of our own SCJ
-> Wagon Mound (No1) decision
of the Privy Council which has since become one of
the leading cases on remoteness in tort law.
Persuasive precedent: Orbiter Dicta
- Orbiter dicta - R v Howe -> R v Gotts
original precedent
when the point of law in a case has
never been decided before. There are no past cases upon which the judge
can base a decision, so the normal doctrine of judicial precedent cannot
apply as there is no precedent to follow. -> declared binding + original -> i.e Donoghue V Stevenson
uses of precedent
- overruling
- distinguishing
- reversing
- SC + Practice Direction
- Court of Appeal + precedent
Persuasive precedent: Dissenting Judgments
- dissenting judgments ->whe a judge disagreed with a majority in CofA SC may be persuaded -> Hedley Byrne v Heller (1964), where an earlier dissenting judgment by
Lord Denning was upheld.
Persuasive precedent: Decisions of courts in other countries
- decisions of courts in other countries -> w. similar ideas of common law i.e canada
In R v Bentham (2003), the Court was invited to follow the
Canadian case of R v Sloan
overruling
This is where a court in a later case states that the legal rule decided in an
earlier (different) case is wrong and replaces it with a new precedent.
- via. court hierarchy
- certain circumstances SC + CofA may overrule prev. decisions
- i.e R v G
R vG
SC overruled its previous decision
- Caldwell (1982)
- recklessness in crim. law
should be judged subjectively.
reversing
where a court higher up in the hierarchy overturns the
decision of a lower court on appeal in the same case, i.e. the
same case moves higher up the court structure.
- i.e Kingston (1984)
Kingston
The Court of Appeal had quashed D’s conviction for sexual assault by
allowing a defence of intoxication. On appeal, the House of Lords
reversed the CA’s decision and ruled that he was still guilty.
Distinguishing
- the facts of the case being decided are
so different from an earlier precedent that the judge is
not bound to follow the earlier case. - The material facts of the case being decided must be sufficiently different
for the judge to be able to draw a distinction from the earlier decision. - The
judge’s decision then creates a new precedent. - i.e Merritt v Merrit
Merritt V Merritt
- The case concerned an agreement between a
married couple who had separated and were
about to get divorced.
-the earlier case of Balfour v Balfour
(1918). In that case, a wife was unable to sue her husban lacked intention to
create a contract. - the Court of
Appeal distinguished Merritt from Balfour on the basis that there were
sufficient differences in the material facts of the cases.
SC + Practice Direction
Constitutional Reform Act 2005 to
replace the judicial functions of the House of Lords. The case of Austin v
Southwark LBC (2010) confirmed that the powers of the old House of
Lords were transferred to the Supreme Court.
- usually follow own decision -> stare decisis
BUT… it can overrule its own decision
- ‘when it appears right to do so’ using pwrs contained in practice directions 3 + 4
Use of Practice Direction
- Herrington V British Railway Board .
- The HoL overrule Addie v Dumbreck (1929)-> no duty of care
owed to trespassers. - Change law = social conditions
& attitudes had shifted over time
key points of court of Appeal and precedent
- The Court of Appeal must follow decisions of the Supreme Court.
- Decisions of one division of the Court of Appeal will not bind the other
division. - The Court of Appeal is generally bound by its own past decisions,
apart from certain limited exceptions.
Court of Appeal and precedent exceptions
- set out in Young v Bristol Aeroplane (1944)
-Where a previous decision of the CA
has been overruled by the SC, they must
follow the SC. -> rules of court hierarchy - two conflicting CA decisions, the CA can choose between them. -> i.e Parmenter
-If the decision is made per incuriam
(in error), CA can ignore bad law and
create new precedent. i.e Rakhit v Carty - avoid previous precedent where it
is necessary to give effect to human rights, e.g. Mendoza v Ghaidan (2002).
court of appeal criminal division - Precedent exception
The Court of Appeal (Criminal Division) has additional flexibility to depart
from its own previous precedent in criminal cases because a person’s
liberty may be at stake – R v Gould (1969).
Paramenter
CA was forced to
choose between
conflicting decisions in
Spratt and Savage. It
chose Savage.
Rakhit v Carty
CA ignored
earlier case which had
been decided without
reference to the Rent
Act 1977.
adv of precedent
- certainty
- fairness + consistency
- flexibility
- Precision
adv of precedent: certainty
- advise clients accurately -> plan affairs according to likely outcome
- provides stability for business arrangements to be founded on
adv of precedent: Fairness and consistency
- Like cases are treated alike which is fair and promotes justice.
- The law
is not subject to whims of individual judges which lends it greater
credibility.
adv of precedent: flexibility
judicial precedent being fairly rigid overall
- the
law can develop and evolve through distinguishing and overruling.
- This
means judges can develop the law to meet changing social, political or
moral conditions.
Adv. of Judicial precedent: Precision
- refining law over hundreds of years the law -> very precise as minor variations on the same principles arise.
- A case which comes to court is a real (as opposed to theoretical) case
– unlike Parliamentary law which tends to be much more general. - Decisions of the courts can help to clarify the meaning of particular
statutory provisions.
disadv. of precedent
- rigidity
- complexity
- Illogical distinction
- slowness of growth
disadv. of precedent : Rigidity
- law too inflexible w/ bad decisions perpetuated - long time for suitable cases to get to senior courts to change law
- more money, courage, persistence = senior courts to appeal
disadv. of precedent : complexity
- hundreds of 1000s of reported cases -> difficult to identify & locate relevant case law
- judgments sometimes very long -> no clear distinction between obiter dicta & ratio Decendi
-In Re A (2000),
three judges gave different reasons to justify the separation of
conjoined twins.
Disadv. of precedent: illogical distinction
- some cases distinguished in minor/controversial points.
- ‘hairsplitting’ can lead to certain areas becoming over complex
-R v Wilson (1996) and R v Brown (1991): the
defence of consent was allowed in the former case, but not in the latter,
arguably on the basis of sexuality.
Disadv. of precedent: slowness of growth
- some areas unclear/need reform cannot make a decision unless there is a case before the courts to be decided
- For example, judges were not able to reform
the law on marital rape until the case of R v R (1991).
