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JUDICIAL PRECEDENT
Flexibility
A judge is not so free where there is a Limits development of the law
binding precedent. Unless it can be stare decisis is a limiting factor in the
distinguished he must follow it, even development of judge-made law. Practical
Complexity though he dislikes it or considers it law is founded on experience but the scope
very bulk and complexity make bad law. His discretion is thereby for further experience is restricted if the
it increasingly difficult to find limited and the alleged flexibility of first case is binding
the law. The advantage of case law becomes rigidity.
certainty is lost where there are
too many cases or they are too
confusing
Causes injustice
The overruling of an earlier case
may cause injustice to those who
have ordered their affairs in
Too many precedents reliance on it.
The citation of authority in Disadvantage Precedent may produce justice in
court should be kept within the individual case but injustice in
reasonable bounds because the generality of cases.
it can be costly in terms of R v Brown : R v Wilson (Winson
time and money. used obiter dicta statements
from Brown-Different decision)…read more

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European Court of Justice
Binds all other on matter of EU law
House of Lords
Bound by its own decision except P.S. + ECJ-
Binds all other courts in the Eng. Legal system
only on Eng. law
Civil-----------Court of Appeal-----------Criminal
Young v Bristol Aeroplane:3 exceptions- Binds itself+ all
*entitled + bound to decide which of two conflicting decisions of its own it will follow other lower
*bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in courts
its opinion, stare d. of the HOL
*not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam Bound by HOL…read more

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Queen's Bench Division
Binds its own previous decision
Bound by HOL+COA+ECJ
+high court + other lower courts
Crown Court
Binds possibly magistrates' court Bound by all other higher courts
Magistrate's Court
Bound by all other higher courts…read more

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Stare Decisis- stand by what has been decided Three things are essential for the Precedent to work:
·Ratio Decidendi- reason for the decision ·Law reporting
·Court hierarchy
·Obiter Dicta- other things said ·Identifying the parts of a judgement
If a point of law has never been decided before, whatever the judge decides will form a new precedent for future.
In DPP v Smith [2006] QBD the defendant went to the home of his ex-partner and cut of her pony tail with kitchen
Original scissors. The magistrates accepted that there was no actual bodily harm; the DPP appealed to the Queen's Bench
Division. There was no precedent on this type of assault, so the QBD created one.
A binding precedent is a decided case, which a court must follow.
Only binding if the legal principle involved is the same and the facts are similar.
Forms of Binding
precedent A later court can circumvent an inconvenient precedent, which would otherwise be
binding, by distinguishing it on the facts or on the legal principle involved.
Persuasive Precedent is which is not absolutely binding on a court but which may be applied.
Persuasive
Decisions of the Privy Council are not strictly speaking binding but are persuasive. But note can be followed using
the rule of James and Karimi. In this case the Court of Appeal preferred a later Privy Council case to a House of
Lords decision relating to the law of provocation in murder.…read more

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Practice statement has allowed HOL to change the decision if it
Dissent- Disagreed by judges believes that an earlier case was wrongly decided. The first case
where the P.S. used was Conway v Rimmer 1968. [General
Defences - duress of circumstances -necessity - reckless driving -
imminent threat]
This is a method which can be used by a judge, where the judge finds that, the material
facts of the case are different to the previous case. So he is not bound by the previous
Distinguishing case
Balfour v Balfour [1918-19] CA, was distinguished by Lord Denning in Merrit v Merrit
[1970] CA
This is where a court in a later case states that the legal rule decided in an
earlier case is wrong. Overruling can occur when a higher court overrules a
decision made in an earlier case by a lower court.
Avoiding
Overruling The House of Lords held, that there could be liability in English law for
precedent negligent misstatements thereby overruled Candler v Crane Christmas &
Co. [1951].
The dissenting judgment of Denning LJ in Candler was vindicated in Hedley
Byrne.
Reversing A higher court overturns the decision of a lower court on appeal.
In Re Pinochet (1999), the House of Lords reversed a previous decision of its own for the first time.…read more

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