The Doctrine Of Precedent
The English system of precedent is based on the latin maxim stare decisis et non quieta movere. Usually shortened to 'stare decisis' this means, stand by what has been decided and do not unsettle the established.
The Doctrine Of Precedent
The speech made at end of case by judge. The Judge will give the decision and the reasons for the decision. The Judge then gives a summary of the facts of the case, reviews the arguments put to him and explains the principles of law used to come to a decision.
Principles are an important part of the speech. Other wise known as ratio decidendi which means "reason for deciding". This creates precedent for future cases.
The rest of the judgement is referred to as obiter dicta which means "other things said"
Only part of judgement that forms precedent.
All lower courts must follow the ratio of an earlier court. A higher court may wish to consider it but does not have to follow.
Is the remainder of the speech.
Judges do not have to follow
Can act as a persuasive precedent
Not binding but the judge may consider and decide that it is the correct principle so he is persuaded that he/she should follow it.
Can come from number of sources:
- Courts lower in hierarchy- Seen in RvR. HoL agreed with Court of Appeal in deciding man could be quilt of ****** his wife.
- Judical Committee of Privy Council- they are not part of court heirarchy but their decisions are respected and may be followed.
- Obiter dicta- R v Howe ruled that duress could not be a defence to murder. In obiter, Lords also said it could not be used in charge of attempted murder. Later in R v Gotts defendant tried to use duress when charge with attempted murder but obiter was followed.
- Dissenting judge- where the majority judges are not followed.
- Other country courts- where countries use same ideas of common law as our system.
Is a precedent from earlier case that must be followed even if judge does not agree.
Only created when facts of second case are similar to original case and decision was made by a court senior to the court hearing it.
Used when a point of law has never been decided.
Will form a new precedent for future cases.
Look at case which is closest in pinciple. Reasoning by analogy.
The Hierarchy of the courts
Every court is bound to follow any decision made by a court above it.
Since 1973 European Court of Justice is highest court affecting us.
For points of european law, a decision made by them is binding on all other courts.
There are laws which are unaffected by EU law and for these Supreme court is supreme.
Distinguishing, Overruling and Reversing
Method to avoid past decision that would otherwise have to be followed.
Judge looks at facts of one case and another and sumarises that though they are similar they differ on certain points. He then is not bound by the previous case.
Where court in later case states legal rule decided in earlier case was wrong. A higher court can overrule decision of lower court eg HoL overruling CoA.
Where court higher up in hierarchy overturns decision of lower court on appeal in the same case.
Advantages of Precedent
1.Certainty- Courts follow past decisions so people know what the law is and how it will be applied. Allows lawyers to advise clients.
2.Fairness in law- Seen as just and fair that similar cases should be decided in a similar way.
3.Precision- As principles of law are set out in actual cases the law becomes very precise. Gradually builds up through different variations of facts in cases.
4.Flexibility- Room for law to change as HoL have the Practice Statement to overrule cases. Ability to distinguish also gives courts freedom to avoid past decisions and develop the law.
5.Time saving- Precedent is considered to be time saving. Where principles have already been decided, cases with similar facts are unlikely to go through lengthy process of litigation.
Disadvantages of Precedent
1.Rigidity- Fact that lower courts have to follow higher courts and the fact that CoA have to follow it's own decisions can make law inflexible so that bad past decisions keep being used. So few cases go to HoL as its costly and time consuming.
2.Complexity- As there are large amount of cases its not easy to find relevant case law. Also judgements are very long with no clear distinction between ratio and obiter.
3.Illogical decisions- Use of distinguishing can lead to "hair splitting" so that some areas of law have become complex. Differences between some cases may seem small and appear illogical.
4.Slowness of growth- Judges are aware that some areas of law are in need of reform, however they cannot make a decision unless there is a case brought to them to be decided. This is one of the criticsms of the need for the CoA to follow its own decisions as only a few cases go to HoL. May be long wait for suitable case to be appealed.
In order to follow past decisions there has to be a record of cases where decisions have been made.
Today we have All England Series and Weekly Law Reports.
There are also law reports published on the internet.