judicial precedent Flashcards
(24 cards)
what is judicial precedent
a principle used in the legal system where past judicial decision are used to decide similar future cases
stare decisis
means to stand by things decided
courts are bound by decision made in earlier cases in higher courts
Ratio decidendi
The reason for the decision
When a judge delivers a decision he outlines the facts he find have proved on the evidence
The binding part of the decision is the ratio decidendi
Obiter dicta
A judge may talk about other issues involved and speculate what would happen had the facts been different.
What are the 3 type of precedent
Binding
Original
Persuasive
Binding precedent
When a case comes to court that is similar to a previous case it must follow the decision made by the higher court as its a binding precedent
Carlill v carbolic smoke ball
Original precedent
Where a point of law has never been decided in a case the court has the opportunity to form a new law
DPP v Smith
Persuasive precedent
Courts lower in hierarchy
Decisions of the judicial committee of the privy council
Statement made obiter dicta
Dissenting judgement
Decisions of courts in other countries
Courts lower in the hierarchy
Where decisions of lower courts might persuade judges in higher courts
RvR
Decisions of the judicial committee of the privy council
Decisions arent binding but since many of its judges are members of the Supreme Court so judgement is treated with respect
Mohammed and jersey v holley
Statements made obiter dicta
A judges comments on a matter arising in a case which doesn’t require a decision. May be persuasive in cases similar to the hypothetical situation
Gotts and Howe
A dissenting judgement
Where a case has been decided with majority of judges, the judges who disagree will have to explain their reasoning
Candler v crane and Hedley v heller
Decisions in courts of other countries
Where another country uses the same ideas of common law as our system the decisions may also be considered
Cuerrier and Dica
Ways to avoid precedent
Follow
Overrule
Reverse
Distinguish
Follow
When a court follows an earlier decision on the basis of reasoning by analogy
Overruling
When a court reviews a previously created precedent
RvR overruled R v miller
Reversing
When a specific case is being appealed and the court hearing the appeal disagrees with the legal reasoning of the court below.
Sweet v parsley
Distinguishing
Allows the judge to look at 2 cases which appear to be similar but can be distinguished because of the different case facts
Balfour v Balfour
Merritt v Merritt
Supreme court and JP
HoL decided they would be completely bound by their own decisions in london street tramways v London CC
in 1996 they passed a practice statement which allowed the HoL to overrule previous decisions where it appears right to do so via practice directions 3 and 4
Court of appeal and JP
Its bound by supreme court
It binds itself
One division of the CoA will not bind the other
Exceptions the CoA basic rules
Young v bristol aeroplane:
1)Can refuse to follow a decision of the supreme court if it cannot in its opinion stand with the decision - family housing association v Jones
2) court is entitled to decide which of the 2 conflicting decisions of its own it will follow - tiverton v wearwell
3) the court isnt bound to follow a decision of its own if it’s satisfied it was made per incuram(lack of care) - william v Faucett
CoA rules of the criminal division
As well as using the rules in Young it can also refuse to follow a last decision of its own if the law has been misapplied or misunderstood
R v Gould
Advantages of precedent
People know what the law is and how it applies to their particular case
Useful time-saving device as similar cases are unlikely to go through a lengthy litigation process
Judges can change law much quicker than parliament
Judges are legal experts whereas politicians aren’t always
Disadvantages of precedent
Judicial mistakes of the past may continue to be made
Case law is very bulky and complex
Judges may be bias and out of touch with society
The ratio decidendi of a case may be difficult to find and misapplied in future cases
