Judicial Precedent Flashcards
(29 cards)
Judicial Precedent
Where judges create rules for other judges to follow in later cases
Stare Decisis
- Standby what has been decided
- Dictates if court makes decision the same court must follow that decision, courts in lower hierarchy follow it.
- Promotes fairness//consistency&certainty in the law.
Ratio Decidendi
- Reason for the decision,
- Judge must say why he’s made that decision
- Binding in court: // 1-facts are sufficiently similar (cases) 2-decision comes from the same court or higher.
Donoghue v Stevenson
Ratio decidendi
- Ratio decidendi was manufactures owing duty of care to ultimate consumer.
Obita Dicta
- Other things said,
- Everything else in judgement that is not the ratio decidendi it could be: 1-judges opinion 2-speculation on the facts 3-summary of the case Judges do NOT have to follow this (non-binding)
Persuasive precedent
- Decision that is not binding on the court, but the judge may consider it and decide that it is a correct principle so he is persuaded that he should follow it
- Many different types of persuasive precedent
Courts lower in the hierarchy (Persuasive precedent)
- Judgment from a case that was decided by a court lower in the hierarchy may be used as persuasive precedent
-R v R (1991) - HOL followed the reasoning of the COA in deciding a man could be guilty of raping his wife
Decisions of the Judicial Committee of the Privy Council
(Persuasive precedent)
- Not part of court hierarchy however presided many Supreme Court justices its reasonable to consider their decisions as precedent.
- EG: Attorney General for Jersey v Holley (2005)
Judicial Committee Case
Attorney General for Jersey v Holley (2005)
- Clarified defence provocation in murder: should be looked from point of reasonable person, not of the D’s individual weakness (eg: mental state//intoxication.
Statements made obiter dicta
(Persuasive precedent)
R V Howe
- Ratio : duress can’t be used as defence to murder
- Obiter : Duress may be valid under manslaughter//attempted murder//less serious crimes.
- This was then followed later in R v Gotts (1992).
A dissenting judgement
(Persuasive precedent)
- When there have been a panel of judges on a previous case, the outcome will be taken from the majority decision
- Sometimes very sensible are persuasive things are said by the judges who formed the minority decision - called the dissenting judgment
- Therefore in a future case the HOL/SC may prefer the dissenting judgment and decide the case in the same way
Decisions of courts in other countries
- Especially happens where the other country uses the same ideas of common law as in our system e.g. Commonwealth countries such as Canada, Australia and New Zealand
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.
- As there is no past law to follow - the judge may reason by analogy - Hunter v Canary Wharf (1995), about loss of TV reception reasoned by analogy with Aldreds case (1611) about loss of view
- Some people argue that creating an original precedent that other courts have to follow is going beyond the powers of the judiciary as they are not elected to make new law - however Parliament cannot be expected to create law for every conceivable scenario
Binding precedent
- Precedent from an earlier case which must be followed even if the judge does not agree with the legal principle
- Only created when the facts of the second case are sufficiently similar to the original case and the decision was made by a court which is senior to (or in some cases the same level as) the court hearing the later case
Ways of avoiding a binding precedent
- Distinguishing
- Overruling
- Reversing
Distinguishing
(Binding precedent)
- Judge must show difference in the material facts of the two cases, if sufficiently different then the instant judge not bound by the earlier case.
- EG: Balfour v Balfour and Merrit v Merrit.
Balfour v Balfour and Merrit v Merrit
(Distinguishing)
- Both cases involved a wife making claim against husband for breach of contract.
- Balfour no claim as no legal intent only domestic agreement during marriage (pay wife maintanance)
- Merrit there was claim as it was a written agreement after separation (give house)
Overruling
(Binding precedent)
- Higher court disagrees with legal principle established by lower court in previous case with similar facts.
- Higher court can change the principle and new principle must be followed by lower courts.
EG: SC overruling decision of CoA
BRB V Herrington Addis v Dumbreck
(overruling)
In Addie v Dumbreck, the HoL held that occupiers only owed a duty to trespassers to avoid intentional harm, offering minimal protection. In BRB v Herrington, this was overruled, and the court introduced a duty of ‘common humanity’, requiring occupiers to take reasonable care if they know of a danger and the likelihood of a trespasser. This is an example of the House of Lords using its power to overrule a previous decision.
Reversing
(Binding precedent)
- Case appealed to higher court and a different decision is reached.
- EG: Sweet v Parsley - HoL reversed the CoA decision and found D not guilty as mens red couldn’t be proved.
Sweet v Parsley
(reversing)
The Court of Appeal convicted a teacher for drug use on her property, but the House of Lords reversed the decision, ruling that mens rea was required for the offence. This is an example of reversing, where a higher court changes the decision of a lower court in the same case.
Tomlinson v Congleton BC (2003)
(reversing)
The Court of Appeal held the council was liable after a man was injured diving into a lake, but the House of Lords reversed the decision, stating he was a trespasser who ignored clear warnings, and the council wasn’t liable. This shows reversing, where a higher court overturns the decision of a lower court in the same case.
Hierarchy of the courts
Every court has to follow the decisions of courts which are above them in the court hierarchy.
London Street Tramways v LCC (1898
-HOL held that certainty in the law was more important than the possibility of individual hardship being caused through having to follow a past decision
-therefore if a bad decision has been made the only way to change it would be a new Act of Parliament
-this rule of precedent became criticised over time and it was argued that allowing the former HOL to change their minds and depart from a previous bad decision would provide justice
