Judicial Precedent.

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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]
 

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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


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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 

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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 

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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

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Court of Appeal (Criminal)

the two courts of appeal do not bind eachotehr

the court of appeal (criminal) binds inferior courts

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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

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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

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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

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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

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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

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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

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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

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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

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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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