THE DOCTRINE OF PRECEDENT Flashcards
When does the doctrine of precedent apply?
A proposition stated in one case is later binding in a later case if it is:
1) a proposition in law
2) part of the ratio decidedi
3) decided in a court whose decisions are binding on a present court
4) no relevant distinctions between the two cases
Define ratio decidendi
- according to Sir Rupert Cross, it is any rule of law expressly or impliedly treated by judge as a necessary step in reaching their conclusion
- ie the legal reasoning in the case which is essential fo decision
What is a narrow ratio and wide ratio?
- narrow ratio is more fact specific
- therefore more limited in straight application to future cases
- wide ratio is less fact specific
- focuses on general principle of law
- allowing it to be applied to a range of future situations
What are the difficulties in finding the ratio?
- very old cases may not state reason for their decisions therefore the authority is weak
- not all reasons given for decision are essential
- there may be more than one ratio
Why may there be more than one ratio?
- judge may give more than one reason for their decision because there are a number of points of law
- the court is an appellate court with more than one judge
- the judges could also reach same decision but for different reasons
What is the obiter dictum?
- a judge’s expression of opinion uttered in court or in written judgement but not essential o decision
- its not legally binding as a precedent
- OR ie, a proposition of law stated by a judge which is not necessary for their conclusion or decision
What is a dissenting judgement?
- a dissenting judgment refers to the situation in an appellate court where one judge (in a three- judge Court of Appeal) or one or two judges (in a five- judge Supreme Court) find(s) for the opposite party to the majority of judges.
Outline the hierarchy of the courts. Which courts are binding?
1) UK Supreme Court
- binds below but not itself
2) Court of Appeal
- binds courts below and usually itself
3) High Court
- appellate binds below and itself
- first instance behinds below but not itself
4) Crown Court
- binds no one but heavily persuaded
5) County Court/ Magistrates Court/ Family Court
- binds no one
What are he exceptions to the Court of Appeal (civil division) being bound to itself?
1) where its own previous decisions conflict
2) where its previous décidons has been implicitly overruled by Supreme Court
3) where previous decision was made per incuriam (through carelessness)
4) where it was interim decision by 2 judges
5) where one previous decision is inconsistent with a later decision of European Court of Human Rights
What are the exceptions tot he Court of Appeal (criminal division) being bound to itself?
- same as civil divison
- however, it has a wider discretion where the liberty of the individual is at stake
What is a distinguishing case?
- this is where the ratio of the prior case is not applied to the case due to difference in material (facts)
Outline the different ways where county’s avoid awkward precedents.
1) overruling
- a court is asked to review whether a precedent from a lower court is correct law
2) departing
- a court can depart from an earlier case
3) reversing
- a higher court charges decision of a lower court on the same facts
What may persuade decisions of a court?
- the decisions of non binding courts
- obiter dicta
- decisions of the privy council
- decisions of foreign courts
- decisions of the ECHR
- statements in legal textbooks or periodicals
What is the impact of the Human Rights 1998?
What are the A and D of the doctrine of precedent over the civil law system?
- DOP provides certainty and consistency
- civil allows for change as the code may be amended if a decision is later considered to be wrong or if attitudes or policy change
