judicial precedent Flashcards
(12 cards)
judicial precedent
judges follow past decisions to ensure consistency and fairness
2 key elements of precedent
ratio decidendi
obiter dicta
ratio decidendi
a legal principle thats established in a case that must be used in future cases
e.g donoghue v stevenson - established doc in negligence
obiter dicta
not legally binding but can still influence future decision
e.g r v howe, obiter said duress , shouldn’t be defence to attempted murder, later followed in r v gotts
2 types of precedent
binding precedent -
must be followed by lower courts if case is similar
persuasive precedent - not binding , can influence judges though
(e.g obiter dicta)
court hierarchy and precedent , Supreme Court
Supreme Court - binds all lower courts , every court must follow its decision
can change it is own past decisions using practice statement 1966
court hierarchy and precedent , court of appeal
usually follows its own past decisions , some expections
- when there’s conflicting past decisions , so must pick one
- if sc ruling sayssoemthigu dffiernet
divisional courts and lower courts -
- most follow decisions from higher courts
- but can distinguish cases
avoiding precedent , 3 ways
overruling - past case was wrong , highr court changes law
distinguishing - judge finds diff between 2 cases, doesn’t follow past one
reversing - higher court changes a lower courts decision in same case .
advantage of judicial precedent
ensures consistency and fairness
saves time - law already established
allows flexibility - overruling and distinguishing
can adapt to social change ( r v r 1991)
disadvtanges of judical precedent
can be rigid , making change slow
too may cases make law copex
- undemocratic , judges not elected ups,
- bad precedents can stay in place for too long
