Precedent Flashcards
What is needed to be in place for precedent to work W16P1
Court hierarchy - decisions of higher courts are binding on lower courts.
Recorded decisions of cases - case records go back to 1600, so judges can look up old decisions and make sure they are consistent if the same point of law comes up again.
What is the doctrine of precedent and what is it based off P189
Judicial precedent refers to the source of law where past decisions of judges create law for future judges (judges following the decision of previous cases).
The doctrine of precedent is based on the Latin stare decisis which means ‘stand by what has been decided and do not unsettle the established.’ So precedent is ‘standing by’ or following decisions in previous cases. It’s the foundation of judicial precedent. Treating similar cases in the same way promotes the idea of fairness and provides certainty in the law.
What is needed for precedent to operate P190
Precedent can only operate if the past decisions of cases are known, so at the end of each case there will be a judgement.
When judges make a decision they explain the principles of law they are using to come to the decision. This is known as ratio decidendi (this is the reason for the decision and forms a precedent for future cases) which judges can follow.
This is hard because there can be multiple when their are multiple judges so there may be more than one ratio decidendi. The other problem is telling the difference between this and obiter dicta.
What is obiter dicta W17P1 and P190
The ratio decidendi is only part of a judgement that forms a precedent. The rest of the judgement is known as obiter dicta (other things said). Obiter dicta are not binding on other courts. Sometimes judges speculate on what their decision would have been if the facts of the case were different, this may be considered in future cases but is not binding like in Hill V Baxter.
What are the two exceptions where lower courts in our legal system are not bound to follow decisions by the English appellate courts P190 and 191
In England and Wales the courts operate a rigid doctrine of judicial precedent which has the effect that: bound by any decisions of higher courts and in general appellate courts are bound by their own previous decisions.
However, the two exceptions are: where there is a decision of the Court of Justice of the European Union, when the English Courts have to follow that decision and in cases of human rights - S.2 of the Human Rights Act 1998 requires courts to take into accounts decisions of the European Court of Human Rights and it is unlawful for a domestic court to act in a way that is incomparable with a convention right.
What is an original precedent W16P1 and P198
If the point of law has never been decided before, then whatever a judge decides will form a precedent. As there is no pass cases to bass the decision on they are likely to look at cases which are closest in principle and may use a similar rule. This way of arriving at a judgement is called reasoning by analogy.
In Dica the court decided that intentionally passing on HIV was sufficient for GBH. The same point of law applied in Daryll Rowe’s.
When judges must follow a previous case (binding decision) W16P1
The facts are the same so the same point of law arises.
The earlier decisions was made by a higher court SC must be followed by the COA.
The statement of law in the earlier case was necessary to decide the case (ratio decidendi/ratio) - every decided case has a point of law which was needed to come to a decision.
When you don’t have to have to follow a previous case W16P1
A judge may look at other cases for guidance but they don’t have to follow theses: Privy Council (is the Supreme Court hearing appeals from commonwealth countries, such as Jersey) cases, decisions from lower courts, where the statement of law was not necessary to decide the case (obiter statements)
Does the COA have to follow decisions of the SC W16P2
In a previous case the HOLs said that damages could only be awarded in pounds.
In Milangos V George Frank Textiles the COA ignored this and awarded damages in a different currency.
This was appealed to the HOL who said that the COA have to follow rulings of higher courts even if they think they are wrong.
Does the SC have to follow its own previous decisions W16P2
The HOLs made a rule called the Practice Statement in 1966 which changed the way they would apply precedent.
It said precedent is important for certainty, in most cases the SC will follow their own decisions, but they can overrule their decisions to avoid an injustice or where the old law has become out of date.
What were the 3 criteria for a judge being bound by a previous case W16P2
The same point of law, a ratio statement of law and decided by a higher court. So if the point of law is a bit different the judge can distinguish and come to a different outcome.
Is distinguishing a good thing? W16P2
Yes - it recognises that the law deals with many small variations on facts and that each needs to be dealt with on its own merits.
No - it gives judges too much leeway to avoid what should be a binding decision by inventing a small difference in the facts.
What are appellate courts P191 and 192
Courts that hear appeals these are: Court of Justice of the European Union, SC, COA and Divisional Courts.
What are courts of first instance and inferior courts P192
Refers to any court where the original trial of a case is held. The appellant courts only hear appeals and often on points of law, which makes them more important to precedents.
Inferior courts are the Crown Court, County Court and Magistrates Court. They have to follow all the decisions of higher courts and it’s unlikely their decision will make a precedent. A decision by a judge in the Crown Court technically creates a precedent for the Magistrates court
The SC and overruling itself P192, 193 and W16P2
Before 1898 the House of Lords had the right to overrule past decisions.
However, in 1898 in London Street Tramways V London County Council the HOL decided that certainty in the law was most important even if it caused individual hardship and the HOL had to follow it’s own decision. The only exception was if there was an error because a statute had not been considered. The only way to overrule the HOL was to pass a new act. However, the law couldn’t change with society so in 1966 it was agreed that the HOL should have more flexibility, so the Lord Chancellor issued the Practice Statement.
