JUDICIAL PRECEDENT Flashcards
(17 cards)
COURT HIERARCHY
- Supreme Court
- Court of Appeal
- High Court
- Crown Court
- Magistrates Court
WHAT IS JUDICIAL PRECEDENT
Decisions made by senior judges which may bind the decisions of other judges in the future
GENERAL RULE
A Precedent from a earlier cases must be followed if :
- the facts are similar
AND
- the decision must come from a higher court
STARE DECISIS
“Stand by what has been decided and do not unsettle the established”
- Refers to how precedent is established
- Means that inferior courts are bound by the superior courts in earlier cases
OBITER DICTA
- Other comments made by a judge in their judgements
- Do not relate exactly to case
- Not binding but may be followed
- R v Howe : the obiter comments made by HOL on the defence of duress in attempted murder cases were applied as persuasive precedent by CofA in the later case of R v Gotts
RATIO DECIDENDI
- Legal principle set out in the case judgement
- Binding decision
- Donoghue v Stevenson : Lord Atkin set out the neighbour principle explaining to whom a duty of care in negligence is owed which was followed in the later case of Grant v Australian Knitting Mills
LAWS COME FROM
- Act of Parliament
- Judicial Precedent
TYPE OF PRECEDENT: BINDING PRECEDENT
A precedent from an earlier case that must be followed if facts are similar
- CALDWELL : HOL set out guidance involving arson
- ELLIOTT v C : 14 year girl with learning difficulties - CofA had to follow the binding precedent from Caldwell
TYPE OF PRECEDENT : ORGINAL PRECEDENT
- If a point of law has never been decided before whatever the judge decides will form a new precedent
- Airedale NHS Trust v Bland :
It was declared lawful to withdraw life support and feeding from a patient who is brain dead
TYPE OF PRECEDENT : PERSUASIVE PRECEDENT
- Courts lower in the hierarchy
- Decisions of the Judicial Committee of the Privy Council
- Statements that are obiter dicta
- Dissenting judgement
- Decisions from courts in other countries
AVOIDING PRECEDENT : OVERRULING
- Court in later cases states that the precedent decided in an earlier different case is wrong
- May occur when a higher court changes a decision made by a lower court
- The Supreme Court can overrule a past decision of its own
- Pepper v Hart
AVOIDING PRECEDENT : REVERSING
- Where a court higher in the hierarchy overturns the decision of a lower court on a appeal on the same case
- The decision of the appeal court will then be substituted for that of a lower court
- Sweet v Parsley
AVOIDING PRECEDENT : DISTINGUSHING
- Avoiding a past decision which would have otherwise been followed
- A judge finds material facts of the present case are sufficiently different to allow a distinction to be drawn between the present case and the previous precedent so that the precedent in the previous case is not binding
COURT OF APPEAL
- CofA is bound by the Supreme Court
- CofA has two divisions : Civil and Criminal
- Decisions by one division will not bind the other
- Young v Bristol Aeroplane :
○ CofA do not have to follow one of their own previous decisions if :
1- There may be conflicting decisions in the past
2- A decision of Supreme Court effectively overrules a CofA decision
3- The decision was made by mistake or made carelessly
SUPREME COURT
- London Street Tramways : HOL decided that certainty in the law by following a past decision was more important than preventing individual hardship
- The SC is bound by its own decisions unless there has been an error
- The SC can decide if the UK law is compatible with the Human Rights Act 1988
ADVANTAGES
- Certainty
- Consistency and fairness in the law
- Flexibility
- Time saving
- Filling gaps in the law
DISADVANTAGES
- Rigidity
- Judges making law goes against separation of powers
- Complexity
- Illogical distinctions
- Slowness of growth
