Judicial Precedent - English Legal System & Criminal Law

'Stare decisis' meaning:

'Stare decisis' meaning:

let the decision stand

General description of how precedent works with the court hierarchy:

every court is bound to follow the decisions made by the courts above and itself

What are Law reports and why are they necessary:

Law reports include:

1. the facts of the case

2. the outcome

3. the legal reasoning so judges can look back at similar cases to make sure that alike cases get alike outcomes

Two examples of law reports:

Lexis Nexus All England

Meaning of binding precedent:

A statement of law from a previous case must be followed even if the judges disagree

Meaning of persuasive precedent:

the courts may consider the statement of law but do not have to follow

What is ratio decidendi and its status:

'vital reason for deciding' - binding precedent

An example of a ratio decidendi:

R v HOWE (1987) - duress could not be a defence to the crime of murder as you should not be able to take an innocent life to save your own

What is obiter dicta and its status:

'other things said' - persuasive precedent

An example of an obiter dicta:

R v HOWE (1987) - duress could not be a defence to the crime of attempted murder

Two other types of persuasive precedent:

Courts lower in the hierarchy Dissenting judgement

What is 'overruling' in precedent?

Higher courts may decide to overrule an earlier case if they disagree with that decision e.g. HERRINGTON v BRITTISH RAILWAY BOARD (1972) overrules Addie v DUMBRECK (1929)

What is distinguishing?

The material facts of the case are sufficiently different to draw a distinction between the present and previous case.

An example of distinguishing:

BALFOUR v BALFOUR (1919) - married with no written agreement MERRITT v MERRITT (1971) - already separated with a written contact

Which courts can overrule other courts?

Courts can overrule the decisions of the courts below them in the hierarchy. The supreme court can overrule their own decisions

What allows the Supreme Court to overrule itself?

It can overrule its own precedents' when it appears right to do so', as provided for in THE PRACTICE STATEMENT OF 1966.

One example of the House of Lords (now the supreme court) overruling itself, with reasoning:

ADDIE v DUMBRECK (1929) - a child killed by machinery after trespassing, no duty of care for the child. HERRINGTON v BRITISH RAILWAYD BOARD (1972) - boy trespassed on railway line and was severely injured. Supreme court overruled their previous decision of no duty of care as children trespass and companies should make their sites 'safe'.

When can the Court of Appeal overrule itself and where are these rules found?

The Court of Appeal can overrule itself when:

1. when there are two conflicting precedents

2. if its own precedents were made 'per incuriam' Rules found in YOUNG v BRISTOL AEROPLANE (1944)

What are the additional situations in which the Criminal Division can overrule itself, with the case?

They can also overrule a precedent of their own if the judges 'misapplied or misunderstand' the law. R v TAYLOR (1950)

Two benefits of judicial precedent:

Creates certainty in law which allows lawyers to advise clients on the outcome of the case. Decisions are based on real cases which makes it easier to understand the law and apply it to future cases.

Two problems with judicial precedent:

Its retrospective which can make someone liable for a crime even though it was not a crime when they first committed the act. Too rigid so bad decisions are difficult to change and the law can be slow to develop