Session 9, judicial precedent Flashcards
What is Judicial precedent?
Source of law where past decisions of judges create law for future judges
What is the doctrine of precedent?
Courts must follow decisions of courts above
What are the three types of judicial precedent?
- original precedent
- binding precedent
- persuasive precedent
What is original precedent?
- decision made in a case where there is no existing legal rule to follow
What is binding precedent?
- decision in earlier case from higher court which must be followed by lower courts in similar cases
What is persuasive precedent?
- decision from lower courts not binding but may influence or persuade judge in making decision
What are appellate courts?
Courts which hear appeals
- Supreme Court
- Court of Appeals
- Divisional Courts
Court of Justice of the European Union
- highest court
- EU law is binding on all courts in England and Wales
- can overturn own decisions
Supreme Court
- most senior national court
- all decisions bind to other courts in England
- must follow EU courts
- not bound by past decision
Court of Appeal
- two divisions: Civil & Criminal
- bound to decisions of EU court and Supreme Court
- usually follow past decisions
Divisional courts
- queens bench, chancery, family
- bound by past decisions
- bound by EU,Supreme, Appeal courts
High court, Crown court, County court, Magistrates court
High court:
- binds lower court
- bound by EU, Supreme, Appeal,Divisional
Crown, Country courts:
- binds magistrates possibly
- bound by all higher courts
Magistrates court:
- bound by all higher
Number the courts from top of the hierarchy to lowest
- EU court
- Supreme Court
- Court of Appeals
- Divisional Courts
- High Court
- Crown & County Court
- Magistrates Court
What are courts of first instance?
Any court where original trial is held
What do appellate courts deal with?
- only appeals decisions from of other courts
What is stare decisis?
- legal principle by which courts follow precedents set in previous decisions
- “ to stand by things decided”
- binding & persuasive precedent
What is ratio decidendi?
- legal principle of law which courts decision is based
- “ reason for decision”
What are the way judges can follow past decisions?
- following: judge follows decision
- overruling: when rule decided in earlier case is wrong
- distinguishing: judge avoids having to follow what would otherwise be binding
What are the advantages of judicial precedent?
- consistency
- certainty
- promotes fairness
- promotes precision, flexibility, time saving
What are the disadvantages of judicial precedent?
- failure of parliament to implement reforms
- lack of parliamentary time
