Judicial Precedent

Judicial Precedent 

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

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.

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

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

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 

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

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

Persuasive Precedents

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

    e.g. Canada or Australia

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

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.

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

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

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

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

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

Per Incurium

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

DPP v Smith (1961)

Ways to avoid Binding Precedents?

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

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

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