Judicial Precedent

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Judicial Precedent

Judicial Precedent- A decision made by higher courts that has to be followed by all the lower courts in similar cases. Follows the principle of stare decisis.

Stare decisis- To stand by the decision made and not unsettle the established.

The input of stare decisis and judicial precedent should lead to fairness as it shows common law in all courts being the same. The majority of decisions we follow come from the Supreme Court and the Court of Appeal.

Judicial precedent is set in the Higher Courts but it binds all the lower courts for example the Supreme Court makes precedent that binds itself and the lower courts.

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Courts that set Precedent

Supreme Court
The Supreme Court binds all lower courts and itself. However, the Supreme Court can depart from its own decisions when it feels right to do so this is the use of the practice statement. Therefore if there is an issue with the law then the Supreme Court can rectify it and set new precedent for lower courts to follow.

Court of Appeal
Both divisions of the Court of Appeal bind all lower courts and themselves but do not bind eachother as they set different laws.

High Court
The High Court is bound by all courts above it (Supreme Court and the Court of Appeal). The High Court can bind all the courts below however if a case comes along where new precedent needs to be made it is often sent to the Supreme Court

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Mechanisms of Judicial Precedent

Ratio Decidendi- The reason for the decision in a case. This is binding.

Obiter Dicta- The other things said at the end of the case. This is not binding. An example of this is the Tall Trees case.

Per in curiam- In error. For example if a precedent was made per in curiam then it shouldn't be followed as the precedent was made in error.

Practice statement- The practice statement is exclusive to the Supreme Court. If the Supreme Court find that their previous decision was wrong then they can go back on it by using the practice statement.

Stare decisis- To stand by the decision made and not unsettle the established. This is the principal that Judicial Precedent follows.

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Types of Precedent

Original Precedent
This precedent occurs when the principle of law has not been previously decided. For example, the Donoghue and Stevenson case created the precedent on negligence. Therefore by setting the new original precedent a new piece of common law had been made for all lower courts to follow.

Binding Precedent
A precedent that is already made and must be followed by all lower courts and the founding court. Those courts are bound to follow the binding precedent. The deciding factor as to whether the court has to follow the previous precedent is if the ratio decidendi for both cases would be the same. If so then the binding precedent is followed, if not then a new precedent is made. The purpose of this is to create a consistant common law across the country.

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Types of precedent (continued)

Persuasive precedent
A persuasive precedent is NOT binding, it does not have to be followed but the judge can choose to follow it if there is no binding precedent for the case in which he was working. Persuasive precedent can be found in judgements of other countries and decisions made by the privy council. For example if the privy council had a similar case but not similar enough for a precedent to be set then the judge can follow the privy councils decision as the case was similar so the punishment should be similar.

Judicial Precedent- Dependant on good law reporting, this is the reporting of all important cases into books. Proper reporting of cases only began around 1865/75. In 1875 the incorporated council for law because a committee. Cases reported pre-2009 and all cases wraped in [square brackets] came from the House of Lords. All cases wraped in (curved brackets) meant the case was from the Court of Appeal. This made finding previous precedents more efficient.

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How Precedent works

1898 case law. The London Street Tramways case. In this case the House of Lords decided that certainty was more important than the possibility of individual hardship. Therefore all future cases by the House of Lords would not only bind the lower courts but would also bind itself. Up to this point the House of Lords didn't bind itself and could therefore change its mind about cases as it pleased, making the law uncertain.

Although this lead to uncertainty, it also lead to no flexibility or adaption in the law and meanth there was no room for development. The only exception to this was the rule of per in curiam. This meant that the House of Lords made a decision that had to be followed unless it had been made in error.

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The Court of Appeal

The Court of Appeal has two divisions, civil and criminal. Both are bound by the Supreme Court and the European Court of Justice. Each division binds itself but not eachother as they deal with different kinds of law. The only way that either division could use eachothers precedent would be if the judge on the case used persuasive precedent. This would only apply for similar aspects of the cases even though they weren't the same crime. The court of appeal cannot use the practice statements as it is exclusive to the Supreme Court. There is some flexibility for the Court of Appeal in the Criminal Division from the Young vs Bristol Aeroplane case. This case brought in three criteria that meant that the court of appeal could depart from precedent. (The three criteria are explained later in this revision cards pack).

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Court of Appeal Civil Division

The Court of Appeal civil division appear now to not always follow the previous precedent set in the Supreme Court. If the precedent in thre Supreme Court goes against the precedent in a European Court then it has been known that the Civil Division can follow the European court. In the case of Re-madicaments vs the Director of general fair trading and property association with GB 2001 the Court of Appeal used the precedent set by Europe as it felt the House of Lords precedent went against human rights.

The General rule is that the Court of Appeal should follow the precedent set by the Supreme Court unless there are human rights issues. However in 2003 court of appeal decided to ignore the House of Lords and follow a decision of the privy coucil. The privy council deal with matters of the Commonwealth. In the case of R v Smith the Court of Appeal civil division departed from the House of Lords. This was the second time that they had abandoned precedent. The cases that the Court of Appeal abandoned the precedent on was a provocation case. They later did the same on a similar case. The rebellion caused controversy as the Court of Appeal is bound legally to follow the Supreme Court.

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Court of Appeal Criminal Division

The criminal division is bound by its own decisions. The criminal division can use the expceptions of Young vs Bristol Aeroplane when avoiding precedent whereas the civil division has no such departure method. The exceptions from the Young v Bristol Aeroplane case are that precedent can be departed from if...
-The previous decision was made per in curiam
-If the previous precedent conflicts with two Court of Appeal decisions then the court must follow the latter
-If there is a precedent in the Court of Appeal that conflicts the House of Lords, the House of Lords precedent must be followed.

In R vs Simpson the law had been misapplied and therefore the Criminal division could overrule the previous precedent because of the misapplication of the law.

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The Court of Appeal vs the Supreme Court

-Very few cases reach the Supreme Court
-The court of appeal deals with far more cases
-If the Court of Appeal or lower court makes an error it takes years to get to the Supreme Court for rectification
-The Court of appeal is not able to depart from its own precedent and therefore this perpetuates bad decisions and errors
-Allowing the Court of Appeal to depart would however bring uncertainty in the courts and lower court/legal personnel would not know whose precedent to follow.

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Ways of avoiding precedent

Distinguishing- This is used by judges who do not want to be bound by a decision of a higher courts. They avoid having to follow the precedent by stating that there are differences in the cases and therefore the ratio decidendi would be different. Merritt vs Merritt distinguished from Balfar vs Balfar.

Overruling- A higher court can overrule a lower court if they think the legal principle used in the lower court was wrong. For example the Supreme court can overrule the Court of Appeal. European Courts can overrule all British courts.

Reversing- This is where the higher court reverses the decision of the lower court on an appeal.

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Evaluation of Judicial Precedent

Advantages
+Fairness is kept in the Courts
+Judicial precedent saves time making new tariffs for every crime
+The use of the principle of stare decisis gives the courts certainty

Disadvantages
-The law cannot develop in the courts as not all courts can develop precedents or depart from them.
-The Court of Appeal against judicial precedent and cause rebellion and controversy

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Evaluation of Judicial Precedent

Advantages
+Fairness is kept in the Courts
+Judicial precedent saves time making new tariffs for every crime
+The use of the principle of stare decisis gives the courts certainty

Disadvantages
-The law cannot develop in the courts as not all courts can develop precedents or depart from them.
-The Court of Appeal against judicial precedent and cause rebellion and controversy

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