Judicial precedent Flashcards
(38 cards)
What does judicial precedent refer to?
Judicial precedent refers to the source of law where past decisions of the judges create law for future judges to follow. ( Also known as case law)
It means that courts must follow decisions of the courts above. Also appeal courts will usually follow their own previous decisions.
What is one element of Judicial precedent?
Stare decisis- Stand by what has been decided. ( Once an issue has been decided by a court, other courts should not change it)
Where the point of law in the previous case and the present case are the same, the court hearing the present case should follow the decision in the previous case. This concept of treating similar cases in the same way promotes fairness and provides certainty in the law.
What do ‘‘like cases are decided alike.” mean? Give a case example.
It means when a judge decides a case that is similar to the facts of the previous case, he should follow the decision taken by the judge in that previous case.
Case example:
Donoghue v Stevenson- Lord Atkin decided that the manufacturer of ginger beer owed a duty of care in negligence to a consumer who drank the product and found the remains of a decomposed snail in his bottle and was ill as a result of it.
Few years later
In Grant v Australian Knitting Mills- The purchaser of a pair of underpants ended up with severe dermatitis from sulphur compounds.
As the material facts in the two cases were similar, the Privy council followed the principle established in Donoghue v Stevenson and held that the manufacturers of the underpants owed a duty of care to the consumer.
What is the judgement?
When a judge makes a decision in case, he or she sets out their reasoning in a judgement. Judgements usually contain an outline of the facts of the case, the reason for the decision, other things said and the decision itself.
The legal reason for the decision is the part that can set a precedent that other courts must follow. This part of the judgement is known as the ratio decidendi.
Obiter dicta- Persuasive precedent
Ratio decidendi- Binding precedent
What is ratio decidendi?
Means the reason for deciding.
For example the ratio decidendi in Donoghue v Stevenson was that a person owes a duty of care to those that it is reasonably foreseeable could be affected by his act or omission.
The ratio decidendi of a case is the part that forms binding precedent which must be followed.
What is a original precedent?
If a point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow. It is an original precedent. As there are no past cases for the judge to base his decision on he is likely to look at cases which are the closest in principle and he may decide to use
similar rules. This way of arriving at a judgement is called reasoning by analogy.
What are the different types of persuasive precedent?
- Decisions of lower courts
- Privy council decisions
- Commonwealth courts
- Obiter dicta
- Dissenting judgements
What does is mean by decisions of lower courts?
A court may be persuaded by the decision of a lower court.
E.g. In R v R (1991), the House of Lords followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife.
What does it mean by Privy council decisions?
This court is not part of the court hierarchy in England and
Wales therefore its decisions are not binding. However, as many of its judges are also part of the Supreme Court, its judgments are often followed.
E.g. the decision made by the Privy Council in the case of Re Wagon Mound (1961) in relation to remoteness of damage in tort law has since been followed by the courts in England
What does it mean by commonwealth courts?
Particularly so where the other country uses the same ideas of common law as in our system. This applies to Commonwealth countries such as New Zealand, Canada and Australia. Courts often refer to precedent from these jurisdictions.
What does it mean by obiter dicta?
“Other things said” in the judgment of the court that are not binding but can be persuasive.
E.g. In the case of R v Gotts (1992) the court relied on statements made obiter in the earlier case of R v Howe (1987) in relation to whether or not the defence of duress was available to a defendant charged with attempted murder.
What does it mean by dissenting judgement?
A judgment given by a judge who disagrees with the reasoning of the majority of judges in the case.
What are the options when deciding a case?
- Follow
- Overrule
- Reverse
- Distinguish
What happens if the judge follows?
Provide case example
If the facts are similar enough to the previous case, the law will be applied in the same way to reach a decision
Case- In Robison v chief constable of Yorkshire police the court followed the decision in Hill v Chief Constable of West Yorkshire Police.
What happens if a judge overrules?
Provide case example
Overruling means that the previous case was wrong, but it does not alter the decision. It involves changing the leading case in that area of law. It can only be done by a court with the authority to overrule. It is a way of correcting the mistakes of the lower courts.
This is where a higher court, hearing a different and later case, overturns a principle that has been laid down by a lower court in an earlier case. The House of Lords can also overrule its own previous decisions, and the Court of Appeal can overrule a decision if there are conflicting cases.
Case example - The House of Lords overruled Anderton v Ryan in R v Shivpuri because they had made a mistake interpreting the Criminal Attempts Act
What does it mean when a judge reverses?
Provide case example
This is where a higher court overturns the decision of a lower court in the same case (i.e. when it is on appeal). This can only be carried out by a court with enough authority.
Case- In R v Kingston, the House of Lords reversed a Court of Appeal (Criminal Division) decision that said a person could claim involuntary intoxication as a defence even if they had formed the mens rea of the crime (i.e. D argued that the intoxicant removed his inhibitions/control over resisting the urges).
What does it mean when a judge distinguishes?
Provide a case example
A legal case will only be binding to a later case if the facts are sufficiently similar. Distinguishing occurs when a Judges wants to avoid applying the previous case and demonstrates that the facts of the two cases are different in some important aspect. If he can do this, there is no obligation to apply the precedent. Although, sometimes the distinguishing of a case is uncontroversial, distinguishing is rather artificial. Judges overuse it because they are trying to avoid a precedent that is seen as problematic. Any judge can distinguish a case on minute details and the differences are often seen as illogical (and in no practical terms a difference at all).
In R v Smith (1959), they distinguished the case of R v Jordan (1956). In Jordan, the victim was stabbed and received “palpably wrong” medical treatment (given an injection to which he was allergic, causing side effects that led to pneumonia). The perpetrator of the wound was not liable for the death because he received bad medical treatment and this was the direct and immediate cause of death. In Smith, the victim was also stabbed, and on his way to the army hospital he was dropped twice and then given “thoroughly bad treatment” (his wound went unnoticed until it was too late). The case was distinguished on the grounds that in Smith, the original wound was still an operating and substantial cause of death, whereas in Jordan, it had healed.
What is the hierarchy of the civil courts?
Supreme court - House of Lords
Court of appeal- civil division
Divisional courts- KBD, family, chancery
High court
County court
What is the hierarchy of the criminal court?
Supreme court
Court of appeal- criminal division
Kings bench divisional court
Crown court
Magistrates
Who is the Supreme court bound by and who does it have to follow?
Courts bound by it- all other courts in the English legal system.
-Most senior national court. It replaced the
House of Lords in 2009.
Must follow
-European Court.
-Not bound by its own past decisions nor decisions of House of Lords but will generally follow them.
Who is the Court of appeal bound by and who does it have to follow?
Courts bound by it- itself (with some exceptions); Divisional Courts; all
other lower courts.
-Must follow
European Court & Supreme Court.
Young v Bristol Aeroplane Co Ltd (1944) - The Court of Appeal (Civil Division) held that it was bound by its own previous decisions subject to the following three exceptions:
Where there are conflicting decisions in past CoA cases, the Court can choose which one it will follow and which one it will reject.
Where there is a decision of the Supreme Court/House of Lords which effectively overrules a CoA decision, the CoA must follow the decision of the Supreme Court/House of Lords
Where the decision was made per incuriam, i.e. carelessly or by mistake because a relevant Act of Parliament or other regulation was not considered by the Court
Who is the Divisional court bound by and who does it have to follow?
Courts bound by it- itself (with some exceptions); High Court; all other
lower courts.
-Must follow
European Court, Supreme Court & Court
of Appeal.
Who is the High court bound by and who does it have to follow?
Courts bound by it- County Court, Magistrates Court
-Must follow
European Court, Supreme Court, Court of Appeal, Divisional Courts.
-High Court judges don’t have to follow each other’s decisions but usually do
Who is the Crown court bound by and who does it have to follow
Courts bound by it- possibly the Magistrates’ Court – ruling on a point of law by Crown Court judge technically binds the Magistrates’ Court however such rulings are rarely recorded in law reports and are therefore of little practical effect.
-Must follow
All higher courts
