section a- Judicial Precedent Flashcards
What does the stare decisis involve
The doctrine of precedent is based on the Latin maxim stare decisis which means ‘stand by what has been decided’ so where the point of law in the previous case and present case is the same the court hearing the present case should follow the decision in the previous case.
What does the system of stare decisis promote
- hierarchy of the courts
-law reporting
What is an appellate court
Appeal court
What is a court at first instance
First case is heard
What is the difference between a binding and persuasive precedent
Binding has to be followed whilst persuasive can be used but doesn’t have to be followed
Describe the hierarchy of the courts
It’s essential for precedent as the higher courts bind all the courts below it and in general the appellate courts are bound by their own past decisions so the superior courts usually create binding precedent and the inferior courts create persuasive precedent and are bound to follow higher courts. European court of justice, European court of human right.
Hierarchy of the courts 8 marker what to include (SC,COA,HC,IC)
-higher courts bind all the courts below it and appellate courts are bound by their own past decisions
-supreme court- its decisions bind all the courts below it. Before the practice statement was bound by own past decisions but now doesn’t have to be.(usually does)
-court of appeal- decisions form binding precedent for all lower courts. Bound by precedents of Supreme Court. Bound to follow its own decisions- some exceptions-young v Bristol plane
-high court-the divisions within this are bound by SC and COA and bound by own decisions and bind those below. As a court of first instance is bound by all courts above and binds lower courts.
-inferior courts- not bound by own decisions and don’t bind other courts- only create persuasive precedent
What is law reporting
System of Judicial precedent not only depends upon hierarchy of courts but also process of law reporting so judges are aware of previous decisions. Each year reports are complied and made available to the courts e.g all England reports.
Can be available newspaper, internet
What are the 3 types of precedent
Binding
Original
Persuasive
What is binding precedent
Judges decision that must be followed. Courts that are bound by own decisions create binding precedent for themselves and some are bound based on position in hierarchy.
Describe binding precedent what to include in an 8 marker
(Definition of binding precedent)
When a case involves a POL both parties research prev cases to ensure judges follow precedent.
End of case there is a judgement explaining reasons for decisions. Includes: summary of facts, ratio decidendi, ober dicta, the verdict
Ratio decidendi- reasons for decision. Part of judgement which is binding on lower courts (case facts similar) examples: donoghue v Stevenson. Deniels v white- followed ratio decidendi
Ober dicta- other things said which is a decision which may be followed- persuasive precedent. This can become binding precedent in later case. Examples: brown Wilson- ober dicta from brown.
What is original precedent
Arises when a POL involved within a case is unique and has not been considered on a previous occasion
Original precedent what to include in an 8 marker
Unique POL- hasn’t been considered before
If the judge has based their decision on a similar case this is called ‘reasoning by analogy’
Result of changes in technology or modern development
Rare today as there is an AOP or common law to apply to facts of a case.
Example- hunter v Canary Wharf- tv signal gone- was held not to be a nuisance as only for fun- this had not been decided so original precedent.
What is a persuasive precedent and the 5 forms
Precedent that can be used but doesn’t have to be
Courts in other countries
Ober dicta
Lower courts
Dissenting judgements
Decisions of privy council
Describe persuasive precedent 8 marker what to include
Commonwealth courts- countries with common law systems decisions can be referred to only where lack of case law in UK. E.g Australia, Canada, New Zealand.
Ober dicta- can become a BP at later date and made into RD. often happens with SC and COA because of high level of judges. E.g brown. Wilson-ober dicta picked up and made into ratio.
Lower courts- decisions can be looked up and made into law. SC follow COA bc judges very experienced. E.g RvR- SC picked up persuasive P from COA- raping wife offence.
Dissenting judgements- case has been decided by majority of judges the judge who disagreed explain reasons. SC can be persuaded and follow
Decisions of privy council- court rules on cases from commonwealth- not create binding precedent for English courts.
What is stare decisis
Judges follow each others decisions when dealing with cases with similar facts
The 3 ways of avoiding a binding precedent
Reversing
Overruling
Distinguishing
Avoiding binding precedent 8 marker how to answer
Reversing- case goes on appeal and higher court reverses decisions of a lower court. E.g COA may disagree with HC and form different view of the law- reverse decision. Example: sweet v parsley-COA decided didn’t know knowledge of drugs to be guilty- HOL reversed this- non guilty
Overruling- higher court in later case states that legal rule decided in an earlier one from a lower court is wrong. Some courts overrule their own decisions e.g SC can overrule itself using practice statement or COA using exceptions from young v Bristol place. RVR- overrule R wife
Distinguishing- where material facts of a case are significantly different from earlier- find differences so new precedent. Brown and Wilson
What is the practice statement
Agreed HOL should have flexibility so lord chancellor issued- continues to apply to SC. Allows judges to change law where it appears right to do so.
Background of the practice statement
Originally HOL had right to overrule past decisions- which made it flexible but uncertain. Held certainty was important to comply with ROL. 1898- 1966 was completely bound by past decisions. This was bad as law could not adapt to society and only way was by passing an act of parliament. Passes criminals justice act. 1966 practice statement could be used where it appears right to do so and first used in Conway v rimmer.
Civil law use- addie v dumbrek- railway HOL decided rsilswy owed duty of care not parents
Criminal law- Anderson v Ryan- attempting impossible was a defence- overruled
How can the court of appeal overrule itself
Power to overrule itself- COA is bound by Supreme Court and also bound by own decisions. There are 2 divisions- criminal and civil which are separate and do not bind each other but binds themselves. However exceptions wheee court can overrule one of its decisions like young v Bristol plane.
What are the exceptions where COA can overrule its decisions
-2 conflicting court of appeal decisions - judge picks most appropriate and overrules previous
- COA decision conflicts with a Supreme Court/ HOL decision- follow SC which overrule COA
-COA dsecision was made in error- overrule and make new decision
What is the 4th exception only for criminal division
Criminal decision needs to have more freedom than civil because liberty is at stake so can refuse the right not to follow one of its previous decisions if the law has been missapplied or misunderstood.
What are other powers of COA
Can hear appeal from lower courts
Consider referrals from attorney general on POL
If prev decision conflicts with human rights act they must ignore previous case law
How to structure stare decisis 8 marker
Intro- define stare decisis
Hierarchy of courts
How law is reported
Binding precedent
Avoiding following precedent
Advantages of judicial precedent
Stare decisis creates certainty
Able to make changes to adapt
Lay people able to predict case outcomes
Principles of law
Disadvantages of judicial precedent
Rigid as little flexibility apart from stare decisis
Complexity and sheer volume of cases- difficult to understand
Takes Long time to change and expensive
Illogical decisions and different outcomes
Donoghue v Stevenson case
Binding
Found snail in ginger beer
HOL stats manufacturer owed a duty of care to the customer
Daniel’s v white case
Corrosive substance found in lemonade
Followed ratio decidendi from DvS- owed duty of care
Brown case
Binding.
Activities caused GBH that couldn’t be consented
Ober dictated- can consent to tattoo and branding
Wilson case facts
Man’s initials was branded on wife’s buttocks she was unhappy as it caused infection
Ober dicta from brown- can consent to branding
Hunter v Canary Wharf case facts
Original
New building interfered with TV signal
Not nuisance as only for fun and this was first time decided
R V R case facts
Persuasive
Man could not be guilty of raping his wife and COA made criminal offence
HOL picked this persuasive precedent and followed it
The wagon mond case facts
Persuasive
Welding and oil leaked onto harbour and damaged ships
Judge held foreseeable damage but privy council reversed thus as it was too remote and now used in English law to decide negligence
