Judicial Precedent

what is the definition of Judicial Precedent?

refers to the system of law where past decisions of judges create law for future judges to follow "doctrine" of precedent, judges decisions from case law known as common law

What does stare decisis mean?

stand by what has previously been decided

what is original precedent?

A point of law which is being decided on for the first time and creates a new precedent

what cases are used for original precedent?

Re A 2001

what is persuasive precedent?

Precedent that is not binding, however can influence a Judge's decision if he should follow it

what is the case for persuasive precedent?

R v Gotts 1992 - followed obiter dicta that duress is not a defence for attempted murder (R v Howe 1987)

what is binding precedent?

A precedent set in a higher court that must be followed by all lower courts

what is the case for binding precedent?

R v Brown 1993

what is dissenting judgement?

A judgement given by a judge who disagrees with the reasoning of the majority of judges in the case

what are the key elements of juicial precedent?

ratio decideni

obiter dicta

court hierarchy

law reporting

what does ratio decideni mean?

legal reason for the decisions

what does ratio decideni do?

includes an explanation of the principles of law used by court to come to a decision in the cases thus creating the binding precedent for the future

what case is used for ratio decideni?

R v Brown 1993 - consent not defence for ABH or GBH in consensual sadomasochism activities

what does obiter dicta mean?

other things said, things said by the way

what does obiter dicta do?

can be considered for other cases and is used for persuasive precedent

what is the case for obiter dicta?

R v Wilson 1996

what is the court hierarchy?

a structured ranking of courts in England and Wales

order the court hierarchy

Supreme Court

Court of Appeal

High Court

Lower Courts of first instance

what does court hierarchy do?

- higher courts bind lower courts but lower courts can be persuasive on higher courts

- creates consistency and predictability

- helps the doctrine of judicual precedent function effectively

what is law reporting used for?

for accurate records of past decisions

what is contained in a law report?

facts, decision, ratio decideni

what was the incorporated council of law reporting 1865?

the official production of law reports so more authoritative and trustworthy

what does the incorporated law reporting 1865 include?

- all cases which introduces a new principle or new rule

- all cases which modifies an existing principle or rule

- all cases which settle a question upon which the law is doubtful

- all cases which for any reason are paricularly instructive

what does the law reports 1865 do?

report cases from SC, CoA, and divisional courts of HC

who are the law reports 1865 checked by and why?

judges for accuracy

what does a law report include?

- the case name

- the court hearing the case/appeal

- the judge involves a summary of facts, key legal issues, and the decisions made in the case

what does the SC instruct solicitorts to do in regard to the law report?

2001 - only refer to cases from law reports if possible

what 3 choices do judges have when avoiding precedent?

- follow precedent

- distinguish

- overrule

what does following a precedent mean?

if the facts of a case are similar to a previously decided case then the judge has to follow the prior decision

what does distinguish mean?

if the facfs in two cades are different judges could say there is a difference and not follow the earlier precedent from a case

what are the cases used for distinguish?

- Balfour v Balfour 1919

- Merrit v Merrit 1971

what does overrule mean?

original precedent may be overruled when a higher courts own decision or a lower courts decision is wrong and should no longer be considered as good law though the original decision stands for previous cases

the supreme court used to be bound by its decisions when?

1898 by per incuriam (in error)

what does the 1966 practice statement state?

can depart from their own previous prevedent where it "appears right to do so" in the interest of achieving justice in a case

what cases are used for the 1966 practice statement?

- British Railway Board (BRB) v Herrington 1972

- Addie v Dumbreck 1929

do the CoA devisions bind eachother?

no

what case outlined the devisions on which the CoA wont follow its own decision?

Young v Bristol Aeroplane Co Ltd 1994

what are the three exceptions in which the CoA wont follow its previous decision?

- previous decision was made in ignorance of a relevant law

- two conflicting decisions the court can choose which one to follow

- later SC devision which overrules the previous CoA decision they must follow SC

what is particular about the criminal devision of CoA in regard to these conditions?

can use the three conditions as it can refuse to follow a past decision in the interest of justice especially when someones liberty is at stake