Unit 5 - The Doctrine of Precedent Flashcards
what is the latin name for doctrine of precedent
stare decisis
what is the criteria for precedent?
a proposition of law
part of the ratio decidendi of a case
decided in a court whose decisions are binding on the present court
there are no relevant distinctions between the two cases
what are the reasons for having doctrine of precedent?
consistency and clarity
what is a proposition of law?
proposition must be one of law not fact
a good way to distinguish whether something is fact is consider whether it can be proved/inferred from evidence
what is the ratio decidendi?
forms part of the judgement of a case
the reason for the outcome of the case
how to decide the ratio decidendi
decide the material facts
state the relevant law
apply the law to the facts
narrow and wide ratios
narrow ratio - more specific facts are considered relevant
wide ratio - the more general the statement of facts, the greater the number of subsequent cases will be caught by the principle
what are the difficulties in finding the ratio?
very old cases may state no reason for their decision
not all the reasons given for a decision are essential
a subsequent case may decide there was more than one ratio
judges may have reached same decision for different reasons
what is the obiter dictum
a proposition of law which is not necessary for the conclusion
the remainder of the judgement that isn’t legal reasoning
obiter if its wider than necessary to decide a particular case
what counts as being obiter?
DISSENTING JUDGEMENT
if it is wider than necessary to decide a case
if the judge speculates about the decision they may or may not have made on different facts
if the judge says what his or her decision would have been if they were not bound by precedent
who binds whom?
European Court of Justice
not bound by its own previous decisions - doesn’t have concept of precedent
does usually explain itself when it has departed from a previous decision
who binds whom?
Supreme Court
binds courts below but not itself
who binds whom?
court of appeal
normally bound to its previous decisions
subject to exceptions:
- where previous decisions conflict
- where previous decision has been overruled by supreme court
- where previous decision was per incuriam
- where was an interim decision by two judges
- where one of its previous decisions is inconsistent with European Convention on Human Rights
what does per incuriam mean
‘through carelessness’
who binds whom?
High Court - appellate jurisdiction - Divisional court
bound by its own decisions
who binds whom?
decisions of individual high court judges
binding out county courts
not bindin gon other high court judges
who binds whom?
crown court
not bound by previous decision
strongly persuaded by them
who binds whom?
inferior courts - magistrates, county court, family court
do not bind any courts
are not bound by their own decisions
why inferior courts not bound by themselves?
decisions are all first instance
only one judge hears a case in the county court
magistrates - decisions made by lay magistrates - not legally qualified
- hundreds of inferior courts in the country
what does distinguishing cases mean?
the material facts of the current case must be different from the binding (previous case)
on a point of fact or law
what are the other ways of avoiding precedent?
overruling
departing
reversing
what does overruling mean?
principle laid down by lower court declared incorrect by higher court in a later case
higher court sets correct new precedent
what does departing mean?
a court can depart from an earlier case
usually occurs when house of lords practice statement is used
what is the house of lords practice statement?
saying that the supreme court can depart from previous decisions
what does reversing mean?
decision of the court in a same case is altered by a higher court on appeal
what are persuasive decisions?
the decisions of non-binding courts
obiter dicta
decisions of the privy council - members are usually same as supreme court
decisions of foreign courts
decisions of European court of human rightd
what is the impact of the human rights act 1998 on the doctrine of precedent
courts and tribunals of England and Wales must take into account all relevant judgement, decisions, declarations and opinions of the European Court of Human Rights, The EU commission and the Committee of ministers of the Council of EU
advantages of precedent
certainty and consistency
