Law making: judicial precedent Flashcards
(21 cards)
What is the doctrine of judicial precedent?
a court is bound by the decisions of a court above it and, usually, by a court of equivalent standing. Superior courts have the power to overrule decisions of lower courts and in certain cases to overrule their own decisions
what is the key principle of judicial precedent?
if a legal principle comes from a higher court and the facts are sufficiently similar, it must be followed! bound by these decisions
appeal courts bind themselves
What are the advantages and disadvantages of the doctrine of judicial precedent?
Provides consistency, efficiency, and flexibility in legal proceedings. Disadvantages of Doctrine of Precedent: Can lead to rigidity, complexity, and uncertainty in the legal system.
What is judicial precedent:
the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis i.e, to stand by the decided. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides consistency and predictability in the law
What is the hierarchy of the courts?
criminal:
ECHR
Supreme court
Court of Appeal
KBD divisional court
Crown court
Magistrates courts
civil:
ECHR
Supreme court
Court of Appeal
Divisional court (KBD, Family, chancery)
High court
county court
magistrates court
what is the supreme court
formerly the house of lords, highest english courts. 1898 - 1966: bound by previous decisions unless made per incurium ( in error)
practice statement
what is the 1966 practice statement?
can depart from previous precedents
London Tramways v London County Council - first use of practice statement 1966 = allows the hol to change the law if they felt that the earlier decisions were wrong
this was later used in Herrington v British Railway Board where social and physical conditions had change since earlier case of 1929
it was first used in criminal in r v shivpuri
Obiter dicta
The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum.
the rest of the judgement, not binding but may be followed
i.e. hill v baxter - gave examples of automatism
moloney - goes to mcr
The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.
Stare decisis:
operates under the principle of stare decisis which literally means “to stand by decisions”. This principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.
what makes the precedent binding
example = donohue v stevenson
applying principle - grant v australian knitting mills
Ratio decidendi:
The ratio decidendi of a case is the principle of law on which a decision is based. When a judge delivers judgement in a case he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason (ratio decidendi).
identify legal principle, creates the precedent (this is the common law) the binding part of the decision
r v dudley and stephens = shipwreck - gave ratio on christian values
Law reporting:
It begins with the names of the parties, the date of the hearing and the names of the judge or judges, and, usually, the court. Then follow catchwords, which are indexing terms and the headnote, which is a summary of the facts and the judgment by the barrister reporting the case. The Law Reports (Appeal Cases, Queens Bench, Chancery, Family etc) include the arguments of counsel.
why do we need it? it sets a precedent.
essential to precedent - the only way to really identify the rule of law after a case and understand the reasoning i.e. Adamako
What is the operation of judicial precedent?
operates under the principle of stare decisis which literally means “to stand by decisions”. This principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.
Distinguishing precedent:
A binding precedent is a decided case which a court must follow. But a previous case is only binding in a later case if the legal principle involved is the same and the facts are similar. Distinguishing a case on its facts, or on the point of law involved, is a device used by judges usually in order to avoid the consequences of an earlier inconvenient decision which is, in strict practice, binding on them.
facts must be sufficiently similar, distinguish facts of two cases i.e. merritt v merritt and balfour v balfour
what is following precedent
applying a principle stated in a previous case - grant v australian knitting mills applied duty of care
Binding precedent:
A binding precedent is where a future judge in a lower court must follow the decision of a previous judge in a higher court, if the case facts are similar. However there are exceptions, for example, if case facts are different and also the Supreme Court are not strictly bound by their previous decisions.
Overruling precedent:
This doctrine allows the court to declare a previous ruling wrong or outdated. This can be due to a change in statute, a change in society or because the previous court was simply mistaken to the law. The key limitation to this doctrine is that a court can only overrule a ‘lower’ court - for example the High Court must always follow precedent of the Court of Appeal while the CoA can overrule the HC. The only court that can overrule itself is the Supreme Court (previously the House of Lords) with the limited exception that the CoA can overrule itself if it has previously made two conflicting judgements, in which case it must pick one
pepper v hart - overruled davis v johnson
Persuasive precedent:
not binding, but they may be statements a previous common law judge has made which can influence a future judge in his own decision. For example, in R v R (1991) the House of Lords overturned marital rape and a case decided by the Scottish High Court of Justiciary was used as part of the reasoning
obiter is not binding but may be relevant to future cases
Original precedent:
An original precedent is where a judge must come to a decision without following a previous decision, as the facts in the case have not come before a court before. For example, in Donoghue v Stevenson (1932) a duty of care was established between manufacturer and consumer for the first time.
Advantages of the operation of judicial precedent:
- There is certainty in the law. By looking at existing precedents it is possible to forecast what a decision will be and plan accordingly.
- There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public.
- Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations.
- Judicial precedent is practical in nature. It is based on real facts, unlike legislation.
- Judicial precedent is detailed. There is a wealth of cases to which to refer.
Disadvantages of the operation of judicial precedent:
Slowness of growth, uncertainty in the law, retrospective law making, unconstitutional
Key cases of judicial precedent:
Donoghue v Stevenson- snail, set a precedent for duty of care,
R v R- marital rape, overruled century old binding precedent
woolmington v DPP- reasonable doubt, binding precedent
