Judicial precedent - OCR A Level Law

stare decisis

Let like cases be decided alike

Original precedent

When a case raises a point that has never been decided upon before

Judgement

The speech a judge gives at the end of the case outlining their decision

Binding Precedent

A decision of a higher court that must be followed by lower courts in the same hierarchy.

Obiter Dicta

Other things said

Persuasive precedent

A precedent that a court does not have to follow but can be very influential when determining a case

Ratio decidendi

The reason for a decision (the binding part of a decision).

Overruling

When a higher court says a decision made in a different case in a lower court on the same point of law is wrong

Distinguishing

When a court rules that the material facts of two cases are different to avoid following the precedent. This creates two different precedents

Reversing

When the decision in a case on appeal is changed or reversed by the judge in the higher appeal court.

Law reports

In 1865 law reporting became more uniform and thorough. It was when the incorporated council of law reporting was established.

Which law reports is the incorporated council of law reporting responsible for?

Law reports of judicial decisions of the superior and appellate courts.

e.g.

All England Law Reports From 1936+

Family Law Reports

Who writes law reports

ICLR

Barristers and Solicitors

What is included within a law report

- Name of case

- Court it was heard in

- Judges name(s)

- Date

- Facts and legal issues

- Decision made (judgement)

Why is law reporting so important for precedent?

Because judges can not follow previous decisions unless they have a way of knowing about them.

Case example of Ratio Decidenti

Oxford v moss

Case example of obiter dicta

R v Howe (1987) and R v Gotts (1992)

Case example for original precedent

Donoghue v Stevenson

Case example for binding precedent

Grant v Australian Knitting Mills

Case example for persuasive precedent

R v Howe (1987) and R v Gotts (1992)

The house of Lords and its own precedents

Until 40 years ago decisions of the house of lords were binding on the house of lords itself.

London Street Tramways v London County Council.

Practice Statement (Judicial Precedent) 1966

Made it so the HoL can overrule themselves when it appears right to do so;

Keep in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property & fiscal arrangements have been entered into.

First major use of the practice statement

Harrington v British rail overruled the case of Addie v Dumbreck

Fist criminal use of the practice statement

R v Shivipuri overruled the case of Anderson v Ryan

2 divisions of the court

The 2 different divisions, civil and criminal, do not bind each other

Is the CoA bound by its passed decisions

Generally yes,

However there are 3 exceptions

3 exceptions to the CoA general rule

- If there are conflicting decisions in past court of appeal cases the court can choose which decision to reject

- If the decision was made 'pericardium', meaning carelessly or by mistake (haven't considered relevant acts of parliament or regulations)

- If there is a decision of the HoL which overrules a past CoA decision.

Criminal court CoA 4th exception

Can also refuse to follow past decisions if misapplied or misunderstood.

Case of young.

This extra exception is due to a persons liberality being at stake.

Ways of avoiding precedent

- Overruling

- Distinguishing

- Reversing

Overruling case

Criminal;

R v Shivipuri overruling Anderton v Ryan

Civil;

Herrington v BRB overruling Addie v Dumbreck

Distinguishing case

Merrit v Merrit distinguished Balfour v Balfour

Reversing case

R v George