Judicial Precedent Flashcards
(37 cards)
What is it?
- past decisions of judges create law for future judges to follow
- they follow decisions from higher courts
- decisions in higher courts bind those courts below them
- everything which happens in courts is recorded
Why is there precedent?
- fairness and consistency
- so all judges follow the same rules
- stare decisis (stand by what is dictated)
Judges summary
- Summing up of the facts and arguments put forward by both sides
- Ratio decidendi - the reason for deciding - the principles of law for deciding the outcome
- Obiter dicta - other things said - the judge may put forward hypothetical decisions had the facts been different
- The judgement
Court hierarchy
- every court in the hierarchy must follow decisions made by courts above it
- appeal courts are bound by their own previous decisions
- precedent from 1973 and only on European law
Where does precedent come from?
European Court of Justice
- since 1973
- only for areas of European laws
- prepared to overrule its own past decisions - if necessary
Where does precedent come from?
Supreme Court
- they replaced the House of Lords in 2009
- not bound by its own past decisions (will generally follow them)
Where does precedent come from?
Court of Appeal
- bound to follow decisions of the European court of justice and Supreme Court
- usually follow past decisions of their own (some limited exceptions)
- more flexible when involves liberty of subject
Where does precedent come from?
Divisional courts
- bound by decisions of the European Court of Justice, Supreme Court and Court of Appeal
- bound by own past decisions, they operate similar exceptions to those operated by the court of appeal
Where does precedent come from?
High Court
- bound by decisions of all courts above and binds lower courts
- don’t have to follow each other’s decisions but usually will
Where does precedent come from?
Inferior Courts
- Crown Court, County Court and Magistrates Court
- bound to follow decisions by all higher courts and it is likely that a decision can create precedent
- ruling on a point of law in Crown Court can create precedent for Magistrates Court (this is very rare)
Where does precedent come from?
Court of First Instance
- any court where original trial of a case is held
- they don’t create precedent
Types of precedent
- there are 3 types
1. Original: when a point of law has never been decided upon before
2. Binding: where the facts of a second case are sufficiently similar to the first, the decision in the second must follow
3. Persuasive: this is not binding but may be considered in helping the judge reach a decision
Persuasive precedent
There are 5 origins
- Lower courts in the hierarchy
- A dissenting judgement
- Decisions of the judicial committee of the Privy Council
- Statements made obiter dicta
- Decisions of the courts in other countries
Persuasive precedent
Origin: lower courts in the hierarchy
- if there has been a similar case in a lower court, then the judge in the higher court can follow that decision
- RvR 1991
- House of Lords followed a decision made in the Crown Court that a man could be guilty of marital rape
Persuasive precedent
Origin: a dissenting judgement
- where a case has been decided by a majority of judges (2-1) the judge who disagrees has to explain his reasons
- the dissenting judgement has persuaded other courts to follow it
- Hedley Byrne v Heller & Partners
Persuasive precedent
Origin: decisions of the judicial committee of the Privy Council
- this is not part of the court hierarchy so decisions not binding
- courts can follow past decisions of the Privy Council ( all living former government ministers)
- the Wagon Mound 1961
Persuasive precedent
Origin: statements made obiter dicta
- can’t use duress as a defence to murder
- R v Gotts followed obiter dicta in R v Howe 1987
Persuasive precedent
Origin: decisions of courts in other countries
- decisions from other countries are considered
- Re: A 2000
Stare decisis
Definition and how it works
- standing by previous decisions
- follows hierarchy of the courts - decisions made in higher courts need to be followed in lower courts
Stare decisis
How it’s decided
- created through the ratio decidendi of previous cases
Stare decisis
How it can be avoided
- distinguishing: proving case facts are sufficiently different. This applies to any court
- e.g. Merritt v Merritt not following Balfour v Balfour
- overruling: changing a previous decision as legal rule in earlier case was wrong. This applies to higher courts
- reversing: when a higher court overturns the decisions of a lower court on appeal on the same case
The Supreme Court: avoiding its own past decisions
A history of the changes with practice statement
1898: London Street Tramways - decides that certainty in the law is more important than fairness in individual cases therefore Supreme Court must follow its own past decisions (bound)
1966: the Practice Statement - it was finally decided that the decision in 1898 was not fair/right and the House of Lords should be allowed to overrule past decisions when it was right to do so. Introduced by Lord Gardiner
1968: Conway v Rimmer 1968 - first use of the practice statement, but only involving a technical issue regarding evidence in a trial
1972: Herrington v BRB 1972 - first major use, where the House of Lords believed the law was not outdated and needed changing
1986&87: R v Shivpuri / Anderton v Ryan - first criminal use of practice statement
2003: practice statement used to overrule the decision in Caldwell on recklessness in the criminal law
- the House of Lords were reluctant to use the practice statement - only 8 times in the first 20 years
Court of Appeal
Current powers
- binds all courts below it
- for many is final appeal court
Court of Appeal
Limitations
- bound by decisions of the House of Lords / Supreme Court
- bound by own previous decisions
- if decision from ECHR or ECJ conflicts with House of Lords / Supreme Court then this must be followed - Re: Medicaments
