Judicial Precedent

These are brief notes on the key factors of judicial precedent

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  • Created by: Ledijana
  • Created on: 30-10-12 15:34

Judicial Precedent

Judicial Precedent 

The system where judges make precedent for future judges to follow in similar cases

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stare decisis

Stare decisis 

It is a Latin phrase that means 'similar cases must be treated the same'

This is crucial for Judicial precedent to work in the legal system.

This creates a fair legal system and makes the law more predictable.

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Judges Speech

At the end of every case the judge makes a speech to explain the reason for his decision.

'Ratio Decidendi'    -     (binding)

  • This is the reason for the judges decision; the judge gives the principle they used to make their decision in the case.

R v Brown (1993)

RD - you can't consent to something that will harm you

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Judges Speech

At the end of every case the judge makes a speech to explain the reason for his decision.

'Obiter Dicta'    -     (Persuasive)

  • things said by the way; not binding but can be used to help or persuade a judge.

R v Howe (1987)

RD  -   duress is not a defence to murder 

OB  -   duress is not a defence to attempted murder

R v Gotts (1992)

The judge transferred the obiter dicta from the previous case to the ratio decidendi

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Precedents

original precedent

  • The first decision made on a brand new case or situation with no previous precedents set to aid the decision.

R v Prince

- ignorance of age is no defence 

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Precedents

Binding precedent

- A precedent that was made in a previous case that must be followed in similar cases.

Donoghue v Stevenson (1932)

- a manufacture owes a care of duty to their consumers

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precedents

Persuasive precedent

  • This is not a binding decision but judges can use them from similar cases to come to a decision in their case.

R v R (1993)

- **** in marriage can happen

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Persuasive Precedents

Persuasive Precedents

  • Obiter Dicta
  • Courts lower in the hierarchy
  • privy council
  • countries with similar legal systems 

    e.g. Canada or Australia

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courts

Court Hierarchy 

  • the higher courts make precedents that lower courts must follow (are bound to)

Create Precedents                                First Instance

-European Court of Justice                                    - High Court

-The Supreme Court                                              - County Court

- The Court of Appeal                                            - Majestrates Court

- High Court                                                          -  Crown Court

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courts

The Supreme Court

This is the most powerful court in the UK legal system

London Tramways v London County Council

In this case London Tramways said that the supreme court must follow previous precedents set by its self.

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supreme court

The Practice Statement 1966

The supreme court can depart from a previous descion 'if it seems right to do so'

This accounts for any social, moral and financial developments.

Addie v Dumbreck  (1929)

- The occupier does not owe any care of duty to look after trespassers unless it is deliberate

Herrington v B&B (1972)

- You owe a care of duty to child trespassers

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Court of Appeal

The Court of Appeal

  • Bound by the supreme court
  • Not bound by other divisions
  • Bound by there own previous decisions

Young v Bristol Aeroplane (1944)

court of appeal is generally bound unless:

  • There is a previous precedent by the Supreme Court
  • Earlier decision was made carelessly or a mistake  
  • There are two conflicting decsions
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Ways to avoid Binding Precedents

Distinguishing

  • judge rules there are significant differences in the two cases to draw a distinction between them

Balfour v Balfour (1919)

a domestic agreement is not legally binding

Merritt v Merritt (1970)

legal agreement because there was a written contract

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Ways to avoid Binding Precedents

Overruling

  • when a higher court thinks that a legal rule in an earlier case is wrong and changes it

Chandler v Crane Christmas & co. (1963)

You can't be sued for something you say

Hedley Bryne v Heller (1963)

you can be sued for something you say

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Ways to avoid Binding Precedents

Reversing

  • where a higher court in the same case over turns the decision of the lower courts

Elliot v C (1983)

subjective test - individuals point or view not general

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ways to avoid Binding Precedents

Per Incurium

  • a decsion made in error - when a judge ignores a binding precedent

DPP v Smith (1961)

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Ways to avoid Binding Precedents

Ways to avoid Binding Precedents?


  • The Supreme Court (1966)
  • Young v Bristol aeroplanes (1944)
  • Distinguishing
  • Overruling
  • Reversing
  • Per incurium
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Criticism

Advantages 

  • Certainty - predictable because you know what to expect
  • Consistency and Fairness- similar case are treated the same
  • Precision - a lot of detail
  • Time saving - easier; saves time passing law
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Criticism

Disadvantages

  • Rigidity - hard to change, bound by higher courts and previous decsions 
  • Illogical distinctions - complicates it, small differences
  • Slow growth - can only be changed in the supreme court
  • Complexity - not easy to find relevant cases
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