Judicial Precedent Flashcards
(28 cards)
Judicial Precedent
Decisions ; precedents made by senior judges may bind the decisions of other judges in the future
It is the process where judges follow previously decided cases where facts are similar
Refers to the rules governing the way in which judgments in cases interpret and create law
Doctrines of SOP and PS determine that in theory at least, judges do not make law. It is the role of judiciary to ‘find and declare’ the law and to apply it to the case before them, which may involve interpreting the wording of statute law
Stare Decisis
“Stand by what has been decided and do not unsettle the established”
Refers to how precedent is established
Like cases decided alike , higher courts bind lower courts , ratio decidendi and obiter dicta ways of avoiding precedent
The doctrine of judicial precedent involves the application of the principle of stare decisis — means inferior courts are bound by the superior courts in earlier cases
Ratio Decidendi
The legal principle set out in the case decision ; judgement
This is the reason for the decision and sets the precedent that must be followed by judges in later cases
(Donoghue v Stevenson) Lord Atkin swt out the neighbour principle explaining to whom a duty of care in negligence is owed. Followed in the case of (Grant v Australian Knitting Mills) binding precedent
Key idea that higher courts bind lower courts
Obiter Dicta
Other comments made by a judge in their judgment
“Other things said” do not relate exactly to the point of the case
These comments are not binding in later cases , but judges may choose to take them into account (persuasive precedent)
(R v Howe) the obiter comments made by the HOL on the defence of duress in attempted murder cases were applied as persuasive precedents by the CoA in the later case of (R v Gotts)
A judgment usually contains
The case facts
Ratio decidendi
Obiter dicta
The decision (based on reasoning)
Court Hierarchy
Supreme Court
Court of Appeal
High Court
Crown Court
Magistrates and County Court
-Every court is bound to follow a decision made by a court above it in the hierarchy
General Rule
A precedent from an earlier case must be followed if case facts are similar AND decision must come from a higher court
Types of Precedent
Binding
Original
Persuasive
Binding Precedent
A precedent from an earlier case which must be followed if case facts are similar and decision must come from a higher court
(Caldwell [1982]) HOL set out guidance for cases involving arson when deciding if D is guilty the court must ask would a reasonable person have foreseen the risk? Objective test
(Elliot v C [1983]) 14 y/o girl w learning difficulties ran away from home and slept in a shed, set fire to some carpet to keep herself warm, CoA had to follow binding precedent from HOL in (Caldwell) D found guilty
Binding precedent can only be created by…
The Supreme Court
The Court of Appeal : Civil & Criminal divisions
The Divisional Court of the High Court
The High Court as an appeal Court for Civil or Criminal cases
Original Precedent
If a point of law has never been decided before whatever the judge decides will form a new precedent
(Donoghue v Stevenson [1942]) Mrs. Donoghue found a decomposed snail in a can of ginger beer.
New precedent : Court said it was possible to sue the manufacturers for negligence.
(Airedale NHS Trust v Bland [1993]) New precedent : it was declared lawful to withdraw life support and feeding from a patient who is brain dead
Persuasive precedent
A decision which does not have to be followed by later cases but a judge may decide to follow
5 decisions judges can be persuaded by
•Courts Lower in the Hierarchy
•Decisions of the Judicial Committee of the Privy Council
•Statements that are Obiter Dicta
•A Dissenting Judgement
•Decisions from Courts in Other Countries
Courts Lower in the Hierarchy
(R v R) House of Lords agreed with and followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife.
Decisions of the Judicial Committee of the Privy Council
This court is not part of the court hierarchy in England and Wales and so its decisions are not binding, but since many of its judges are also members of the Supreme Court, their judgements are treated with respect and may often be followed. (The Wagon Mound No1) Decided by Privy Council : A party can only be held liable for damage that was reasonably foreseeable.
Statements that are Obiter Dicta
This simply means ‘other things said’ by the judge as part of his or her judgment. (R v Howe (1987) – Duress is not a defence to murder Obiter dicta: Duress will not be defence to attempted murder (R v Gotts (1992) – Judges were influenced by the obiter dicta statement made in (R v Howe) and held duress was not a defence to attempted murder.
Dissenting Judgment
This arises where a case has been decided not by a unanimous decision but by a majority of the judges ( for example 3-2 or 2-1). The judge who disagrees with the majority will set out their legal reasoning for their decision in a dissenting judgment. In the event of an appeal, the higher court for example the House of Lords may be ‘persuaded’ by the reasoning of the dissenting judgment and give a ruling which reflects their preferred reasoning.
Decisions from Courts in Other Countries
Where another country uses the same ideas of common law as in our system, their decisions may be considered. This especially applies to Commonwealth countries such as Canada, Australia and New Zealand.
Precedent and the Supreme Court
Highest court in the UK used to be the European Court of Justice (ECJ) , since 2009 it is now the Supreme Court and comprises of 12 justices
(London Street Tramways) HOL decided that certainty in the law by following a past decision was more important than preventing individual hardship
In 1996 the Lord Chancellor issued a practice statement announcing a change from the above case which allowed them to depart from the previous decision when it appears right to do so
(Austin v London Borough of Southwark) The Supreme Court confirmed the power to use the practice statement
(Herrington) HOL changed the previous law about Occupiers Liability to child trespassers
(Shivpuri) A mistaken belief by D that he was committing an illegal act was in fact innocent can make him liable for attempt even if the act was not illegal
Supreme Court Power
The Supreme Court is bound by its own decisions unless there has been an error
Practice directions 3&4 allow HOL to change the law when believed that an earlier case was decided wrongly
The Supreme Court can decide if the UK law is compatible with the European Convention on Human Rights (The Human Rights Act 1998)
Precedent and The Court of Appeal
The CoA is bound by the Supreme Court
General rule - decisions by one division of the CoA will not bind the other division. However, previous decisions can be binding within each division
The Exceptions
(Young v Bristol Aeroplane Co LTD)
The CoA does not have to follow one of their own previous decisions where :
- There may be conflicting decisions in the past — court can choose which to follow
- There is decision of the Supreme Court that effectively overrules a CoA decision
- The decision was made per incuriam
(R v Gould) Court held there should in general be no difference in the way precedent is followed in the criminal and civil division
Methods of Handling Precedent
Overruling
Reversing
Distinguishing
Over Ruling
Courts in later cases states that the precedent decided in an earlier case is wrong (Pepper v Hart)
May occur when a higher court overrules / changes a decision made by a lower court
The Supreme Court can overrule a past decision of its own
