Judicial Precedent

HideShow resource information
  • Created by: Amy
  • Created on: 05-02-14 17:21

Introduction And Judgment

  • Judicial precedent refers to the source of law where past decisions of the judges create law for further judges to follow
  • Also known as case law
  • Major source of law - historically and today
  • Based on Latin maxim STARE DECISIS ET NON QUIETA MOVERE
  • Means to stand by what has been decided 
  • Supports fairness and provides certainity in the law

Judgment

  • End of a case
  • Speech made by the judge
  • Give the decision and the reason for the decision 
  • Gives a summary of the facts, reviews argument, explain the point of law
  • RATIO DECIDENDI - reason for the decision, is what creates the precident
  • OBITER DICTA - rest of the judgement - other things said
  • Major problem when looking for the precident is dividing the ratio decidendi and obiter dicta 
1 of 10

Original and Binding precedents

Original

  • If a point of law in a case has never been decided on before, then what the judge decides will form a new and original predident. In order to make the decision the judge may look at cases which are closest in principle and he may decide to use similar rules.

Binding

  • Precedent from an earlier case which must be followed, whether or not the judge agrees with it. Only created when the facts of the 2nd case are sufficiently similar and the precedent was set by a court which is senior or the same level as the court hearing the case.
2 of 10

Persuasive Precedent

  • Not binding but the judge may consider it and decide that its correct, so is persuaded to follow it. 
  • Can come from a number of sources:
    • 1) Courts lower in the hierarchy - R v R HofL agreed with Court of appeal in deciding that a man could **** his wife
    • 2) Decisions of the Judicial Committee of the Privy Council 
    • 3) Statements made obiter dicta
    • 4) A dissenting judgement
    • 5) Decisions of the courts in other countries
3 of 10

Hierarchy of the Courts

(see handout for modle of hierarchy of the courts)

European Court of Justice - Highest court since 1073, points of EU law, all courts are bound to in and it doesnt have to follow any courts but can overrule its own past decisions.

Supreme Court - Decisions bind all other courts in the English Legal System, only bound by European court. Not bound by its own previouse decisions, genrally will follow them.

Court of Appeal - 2 divisions, civil and criminal. Both bound to decisions of EU and Supreme, must follow there own past decisions with some exceptions, divisional and all lower courts are bound.

Divisional Courts - 3 divisional courts (queens bench, chancery and family). Bound by all courts above it and itself with exceptions this was decided in Police Authority for Huddersfield v Watson, like COA more flexible when points involve a persons liberty.

High Court -  Bound by all above courts and bind all below (crown and magistrates). High courts dont have to follow each other but usually do.

Inferior Courts - Crown, County and Magistrates bound to all higher courts, unlikely what they decide will make a precident 

4 of 10

Distinguishing and Overruling

Distingusing

  • method used by judges to avoid following a past decision
  • Judge finds that the material in the case he is deciding is sufficiently different to the facts of the case where the precident was set
  • Case: Balfour v Balfour and Merit v Merit. Both cases are wifes making claims about there husbands breeching contract, in Balfor this claim was unsuccessful as they did not like each other and there was no intention to create legal relations - domestic argument. However in Merit the couple were seperated and the agreement was written up and was meant as a legally enforced contract

Overruling

  • Court in a later case state that the legal ule decided in an earlier case is wring
  • Higher court overruling the decision made by a lower court
  • When the EJC or supreme court overrules a past decision they have made
5 of 10

Disapproving and Reversing

Disapproving

  • Judge states in the judgement that he thinks a precident is wrong
  • May occur if its on a related point of law but is not sufficiently similar
  • May also occur if where the judge is in a court lower in the hierarchy that the court which made the original decision
  • Disapproving of the House of Lords dosnt change the precedent. However it is possible that of the same point has to be decided again the disapproving judgment by the HofL might lead to precedent being overruled

Reversing

  • A court higher up overturns the decision made in a lower court on appeal in the same case
6 of 10

Precedent and Acts of Parliament

  • precedent is below to statute law, delegated legislation nd European Regulations
  • Meaning if a act contains a provision which contradicts a previouse decision, the decision will ceese to have effect. - the Act is now the law on that point
  • Case R v Preddy about electronic bank transfers that where priviously not involved in the theft act
7 of 10

Advantages

1) Certainty - people know what the law is and how it is likely to be applied, allows lawers to advise their clients on the likely outcome of their cases

2) Consistency and fairness in the law - just and fair similar cases decided in a similar way. Must be consistent in order to be credible

3) Precision - principles of law are set out in cases, vert precise, well illustrated ad builds up through the different variations of facts in the cases that come before the courts

4) Flexibility - Room for the law to be changed as the Supreme court can use the Practice Statement to overrule cases. Distingusing also gives all courts some freedom to avoid decisions and develop the law

5) Time saving - Where a principle has been established, cases with similar facts are unlikely to go though the lengthy process of litigation

8 of 10

Disadvantages

1) Rigidity - lower courts have to follow the decisions of higher courts can make the law too inflexible so that bad decisions made in the past may be perpetuated, so few cases go thought the supreme court that changes in the law will only take place if parites have the courage, presistance and money to appeal their case

2) Complexity - half a million cases, hard to find all the relevant case law even with computers. Judgement is often very long and hard to extract to ratio desidendi.

3) Illogical Distinction - Distingushing to avoid decisons can lead to hair splitting making areas of law complex, differences that are distinguished ae sometimes very small and illogical.

4) Slowness in growth - some areas of law are unclear or in need of reform, cant make a decision unless there is a case to be decided

9 of 10

Law Reporting

  • To follow past decisions must be an acurate record of what those decisions were
  • Reports from 1275 - 1535 were called Year Books (short and french)
  • 1535 - 1865 cases reported individually and sold to lawyers , detain and acurcy varied
  • 1865 - Incorporated Council of Law Reporting was set up - controlled by courts. Reports were accurate with the judgement noted down word for word
  • Also other well established reports today - all england reports and the weekly law report
  • Newspapers also publish reports
  • All High Court, Court of Appeal and Supreme Court cases are now reported on the internet eg Westlaw
10 of 10

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Judicial precedent resources »