Judicial precedent

What are the two ways judges can make law?

1. Interpreting statutes (government made law)

2. Judicial precedent

What is judicial precedent?

It is where there is no statute in place currently so when a court makes a decision courts lower than it or sometimes those on the same level, must follow the same sentence given the same material facts.

What does stare decisis mean?

Let the previous decision stand so letting the decision of the court above you stand.

What is in a law report?

Ratio decidendi - This is the judge saying why they came to the decision they did. (R v R came to a ratio decidendi)

Obiter Dicta - Given other scenarios, what they would find the person to be (guilty/not guilty)

There are three types of precedent, what are they?

Binding precedent - A ratio decidendi that must be followed
Persuasive precedent - A decision that can influence your decision
Original precedent - A precedent that is the first of its scenario

Types of persuasive precedent:

1) Obiter dicta
2) Lower court decisions (R v R)
3) Textbooks and law commission reports
4) Dissenting judgements (Rose and Frank Co)
5) Privy council decisions

What case used the obiter dicta to decide the outcome?

Howe (1987), Gotts (1992) - In Howe, gang members killed someone, said they were threatened with death to do so by gang leader. The court didn’t allow defence of duress for murder here and in obiter dicta said they wouldn’t allow it for attempted murder either. In Gotts, boy threatened by dad to kill mum, he attacked her but she didn’t die so it was attempted murder. The court used the obiter dicta to say that he couldn’t use the defence of duress for murder.

When can the Supreme Court change a previous set precedent?

As of 1966 they can now change it when it ‘seems right to do so’ by issuing a practice statement.

When did the Supreme Court reverse a previous precedent in the civil court?

Conway V Rimmer 1968 reversed a decision made in war time that no longer applied.

When did the Supreme Court reverse a previous precedent in the criminal court?

Shivpuri overruled Anderton and Ryan. Anderton and Ryan set the precedent that you can’t be guilty of an impossible crime because they thought they were sneaking stolen goods through an airport but they weren’t. Shivpuri did a similar thing, he snuck vegetable powder which he thought was drugs through an airport. The SC said that now you can be guilty of an impossible crime.

The CA must follow it’s previous decisions, what are the 3 exceptions in the civil court?

1. Where two previous CA decisions conflict with one another (then CA follows which one they choose)

2. When an SC judgement conflicts with a CA judgement

3. When a previous decision was a mistake (misunderstanding in the law) (e.g. Williams V Fawcett)

The CA must follow it’s previous decisions, what are the 3 exceptions in the criminal court?

1. Where two previous CA decisions conflict with one another (then CA follows which one they choose)

2. When an SC judgement conflicts with a CA judgement

3. When a previous decision was a mistake (misunderstanding in the law) (e.g. Williams V Fawcett)

4. Since liberty is now at stake, if following the previous precedent will lead to an unjust outcome then don’t follow it.

Advantages of judicial precedent?

1. Binding precedent gives certainty due to consistency

2. As new crimes happen, the gaps are filled therefore saving parliament time

3. Precedent is based on actual events, not theoretical scenarios

4. Time saving for both courts and parliament

Disadvantages of judicial precedent?

• Bad decisions are binding until overruled or reversed. Means injustice which can’t be appealed without money

• Ratio decidendis are hard to find

• Unelected so the law that is made is undemocratic

• Areas of the law are left underdeveloped