Role of the judiciary in law making

Meaning of judicial precedent

judicial precedent is the principle key to the english legal system that decisions made previously should be followed unless overruled by a higher court or in rare cases by the same court. It is based on this principle that common law was made.

An example of this principle

In Shaw v DPP D published a magazine listing numbers for local escorts and was charged under the obscene publications act with corrupting public morals. D argued the legislation never stated this could be a crime but the courts decided this sort of case was what the legislation aimed to deal with so D was guilty effectively creating a new crime. In Knuller v DPP D made a similar publication listing men looking for other men. He was charged with the same crime as Shaw and although the court stated it disagreed with the earlier ruling it was followed nonetheless in the interest of certainty in the law.

Hierarchy of the courts

Magistrates < Crown < Appeal < Supreme. Any decision will be handed down the system meaning the crown has to follow the ruling of the appeal court for example.

Stare Decisis - Let the decision stand

This is the principle that the decision is binding and should be followed later. Donoghue v Stevenson - Ruled the consumer must be protected by the producer. A new duty of care. Followed in Grant v Australian knitting mill.

Ratio decidendi - Reason for the decision

This is given by the judge in their closing speech and is the binding precedent being set that from then on must be followed until overruled.

Obiter Dicta - other things said

This is the non-binding information given in the closing speech normally giving examples of situations that other judges can then use as a reference for similar cases. e.g. Hill v Baxter - a swarm of bees flying in your car would be enough to constitute automatism.

Persuasive precedent

This is where the decision does not have to be followed such as coming from a lower court or the privy council but could be useful to making a well rounded final decision.

Binding precedent

This is where the decision has been made in a higher court and must be followed. Appeal courts generally bind themselves.

Ways to change precedents

Overruling - a higher court taking a different decision to the one previously made in a lower court so changing the law.

Disapproving - This is when a court says it disagrees with a previous precedent, but it still has to follow it because it's bound by that decision.
It expresses doubt or criticism, and this may lead to overruling later.

Distinguishing - This is when a judge finds that the facts of the current case are sufficiently different from the earlier case, so the precedent does not apply.

Reversing - This is when a higher court in the same case changes the decision of a lower court on appeal. Overruling before it became law.

Precedent in the supreme court

Supreme Court

• Generally follow their own precedent.

• Practice Statement 1966 allows them to depart from precedent.

• Will depart ‘when it appears right to do so’ i.e. injustice/preventing development of law.

Precedent in the court of appeal

Court of Appeal

• Must follow the Supreme Court’s precedent.

• Must follow their own precedent
  Unless it comes under one of the rules from the Young’s case.
  ○ The CoA can choose between their own conflicting precedent.
  ○ The Supreme Court overrules their precedent.
  ○ Where the decision was made per incuriam - by mistake or carelessly.