Judicial Precedent.
- Created by: Megan Porter
- Created on: 30-12-13 11:41
What is Judicial Precedent
Previously made decissions.
Stare Decisis - "stand by what has been decided and do not unsettle the established"
Court Hierarchy. European Court of Justice - Supreme Court (HoL) - Court of Appeal (Civil and Criminal Division) - Crown court (Criminal) & high court (civil) - Magistrates (criminal) & County court (civil)
Incorporated Council of Law Reporting (1865)
[London Street Tramways v London County Council]
European Court of Justice (ECJ)
top of the hierarchy when eu law is involved
it binds member states including the UK on any point of EU law
Da Costa Case 1963
Supreme Court (HoL)
Civil and Criminal law
London Street Tramways v London CC 1989
Certainty and Consistency
Per incurium (by mistake)
Criticised too rigid
Practice Statement 1966
sticking to past decisions might be unjust could restrict development of the law
RIGHT TO DO SO
Herrington v British Railways Bord 1972
The Practice Statement
example of overruling
no lower courts have a practice statement
only the Supreme court can part from its past decisions if felt neccessary
Herrington v British Rail Board 1972
Miliangos v George Frank Textiles Ltd
it took 20 years for the HoL to use it in a criminal case
R v Shivpuri 1986 - Anderton v Ryan 1985
is better to encourage legislative change rather than judicial ruling because law can be changed prosepctively rather than retrospectively
Court of Appeal (Civil)
Bound by the decisions made by the courts above it
It can refuse to a follow a decision made by a higher court if it conflicts with the Human Rights Act 1988
Binds lower courts
Bound by its own previous decisions
Young v Bristol Aeroplane Co.1944
conflicting decisions from the CA can decide which one to follow
if inconsistent with one of its own it has to follow the decision by the supreme court and ignore its own
Court of Appeal (Criminal)
the two courts of appeal do not bind eachotehr
the court of appeal (criminal) binds inferior courts
Reversing
A hiher courty in the hierarchy overturns a decision of a lower court in the same case
if this happens it is the final decision that is followed
Overruling
later case states an earlier judgement in a different case was wrong.
the supreme court can now overrule itself by using the practice statement
Acts retrospectively there is a reluctance to overrule by the courts
there is no retrospection when overruling by a statute
R v R 1991
Distinguishing
Avoids following a prevuisous decision
allows judges flexibility and allows judges to avoid a decision they dislike
development of the law
Merrit v Merrit 1971 - Balfour v Balfour 1919
Ratio Decidendi
Reasons for decisions
the judge in the later case that determines what the ratio is. it has to be determined by a later case.
helps develop the law
difficult to find
very old cases state no reason for there decision
a judge may give one or more reasons for there decision
Donohughe v Stevenson 1932 and R v Howe 1987
Obiter Dicta
Other things said
It might be used to indicate what should happen if facts are different.
Denning Central London Properties v High Trees House 1947
Original Precedent
If there is no precedant to follow a judge will decide on a new precedent to be followed in later cases
Airedale NHS Trust v Bland 1993
Binding Precedent
The courts must follow a decision even if they believe it has been wrongly decided
a judgement isonly binding if the legal principle is the same
Precedents have been overruled by a higher court or act of parliament are not binding
precedents which can be distinguished are not binding
statements of law per incuriam are not binding
Persuasive Precedent
is not binding on a court but may be applied
it may have come from a lower court decision. the HoL chose to follow the precedent set by the Court of Appeal (Criminal) in R v R 1991
Advantages and Disadvantages
Advantages
certainty to the law, precision, flexibility, cost and time saving, judges are not free to impose their own ideas.
Disadvantages
inflexible, law changes slowly, reluctant to the practice statement, unwieldy and complex, distinguishing is overused (illogical decisions), difficult to find the ratio decidendi, law changing retrospectively
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