Judical Precedent Flashcards
(22 cards)
Certainty in law
A fundamental principle of the English legal system and therefore places some limits on judicial discretion.
The ‘doctorine of precedent’
Courts must follow the decisions reached in previous cases in superior courts, when ruling a judgement.
Stare decisis
‘Let the decision stand’. Certainty of the law always overrides the uniqueness of the case.
UK Courts
Civil and criminal:
1)Supreme Court 2)Court of appeal 3)High court
Criminal:
4))Crown court
5)Magistrates court
Civil:
4)County court
5)Tribunals
Original, binding precedent
A point of law that had not been decided, however if a decision is met in court, next similar cases must make a similar decision, making precedent binding. Only superior courts can set precedent, and precedent is expected to be followed by inferior courts.
Original, binding precedent - case
Schweppes v Registrar of Restricted Trade Agreements 1965 - dissenting judgement occured (one judge disagreeing with another) were bound by precedent in a similar case.
Persuasive precedent
Instances where a judge is not obligated or bound by precedent, but is persuaded to follow it nevertheless.
Persuasive precedent - case
RvR 1991 - pressure to follow the same ruling as the Court of Appeal.
Ratio Decidendi
‘The reason for deciding’. When a judge reaches a point of law, the fundamental basis upon which the decision rests is reffered to as ratio decidendi. It forms the basis of precedent where established and hoped to be as concise and as clear as possible to promote clarity and consistency in the law.
Ratio Decidendi - case
Chan Fook 1994 - no evidence to convict d, that was the ratio decidendi.
Problems in identifing ratio decidendi
It ought to be clear in providing the basis for a definitive ruling on a case. Identifing it precisely can be difficult in practice since it must be extracted from the obiter dicta (everything else). In historical cases, judgements are often incredibly detailed, and the ratio decidendi is not identified seperately from the rest of the obiter dicta as it is today. This can make it difficult for a judge in a present case to be sure that a ratio even exists. In cases where there is more than one judge, it can be difficult to agree on precisely what the ratio is. Interpreting the law inevitably involves some degree of subjectivity which is difficult to avoid.
Law reports
Judges must be able to consult documentation that logs outcomes of cases to recognise whether or not precedent had been set. This is avaliable in the form of law reports. Historically, this has been difficult due to missing information, however now with the Council of Law Reporting overlooking the documenting of case outcomes and the internet, it is easy and efficient for all legal personnel to access law reports and to know whether precedent exists or not. All Supreme Court, High Court and Court of Appeal outcomes are meticulously logged.
Must precedent always be followed?
Unless there’s a good reason not to, judges are expected to follow precedent if established by a superior court, to help ensure consistancy and fairness in the law.
Overruling
If a superior court decides that a decision made in a lower court was wrong, it can overrule. A decision reached previously is now considered to be a mistake and an attempt is made to rectify this.
Distinguishing
If a judge feels that the facts specifics to their case are sufficiently different enough from those which allowed precedent, they may not need to follow precedent.
Distinguishing - cases
Balfour v Balfour 1919 to Merritt v Merritt 1971 - an example of judges distinguishing.
The Practice Statement 1966
The Supreme Court is expected to abide by its own previous decisions whenever possible. However, the Practice Statement granted legal permission for the legal permission for the Supreme Court to depart from precedent that it has set when right and necessary. The Practice Statement will not be used lightly, and can be used when the Supreme Court recognises a past decision that was, in hindsight, wrong.
The Practice Statement 1966 - case
Pepper v Hart 1993 - the court ruled that its previous decision to ban the use of Hansard could be overturned.
Controvery in Courts of Appeal
There are civil and criminal divisions in the Courts of Appeal. Precedent set in one divison is not binding on the other, however, both devisions are expected to follow own precedent when set and precedent set by the Supreme Court. Controvery exists where instances of the Court of Appeal refusing to follow precedent established by the Supreme Court can be cited. It can show that precedent can be too rigid in keeping up with the changing world.
Controvery in Courts of Appeal - case
Havana Railways 1961 - Lord Denning refused to follow rulings set by the House of Lords (now supreme court). Denning’s critics point out that the entire concept of precedent is undermined if courts choose to ignore what was set by superior courts, allowing us to question what the point of the whole court stucture was in the first place.
Advantages of Judical Precedent
- Helps provide certainty and a degree of predictability in the law, especially since it increases consistancy across cases that pass through the courts
- Helps ensure there is fairness in the way courts hear cases, ensuring the English Legal System maintains its respectability
- Precedent helps save time in ruling decisions for cases by being refrences for the Judges to take into account
Disadvantages of Judical Precedent
- Judical precedent prevents each case from being judged completely on its merit and on unique, individual circumstances that make it what it is
- Identifying the ratio decidendi and refrencing the obiter dicta can be difficult, especially in complex cases. This can make it difficult for precedent to be established
- Instances of bad/poor precedent can influence Judges and steer the course of a case. It is difficult to depart from precedent, making overruling not as easy
- Allowing Judges to ‘distinguish’ defeats the whole point of precedent
- Judical precedent is undemocratic since it allows non-elected judges to shape the law
