Judicial Precedent (OCR)

  • Created by: Holly
  • Created on: 22-05-13 18:13

The Supreme Court

  • House of Lords used to consider itself completly bound by precedent unless the decision was per incurium.
  • Creation of the Practice Statement in 1966.
  • PS allows HoL/Supreme Court to change the law if it is believed the earlier case was wrongly decided, and can refuse an ordinary case 'where it appears right to do so'
  • Reluctant use.
  • Conway v Rimmer, Herrington, Miliangos, Pepper v Hart, R v Shivpuri, R v R&G
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Court of Appeal

  • Both divisions of the Court of Appeal are bound by decision of the ECJ + Supreme Court
  • Miliangos
  • Must take into account any judgement or decisions of the ECHR.
  • Re: Medicaments
  • One division will not bind the other. Young v Bristol exceptions.
  • Davis v Johnson, Rickards v Rickards
  • The criminal division can refuse to follow a past decision of its own if the law has been misapplied or misunderstood.
  • R v Taylor
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Other ways in which precedent can be avoided

  • Distinguishing
  • The judge finds that the material facts of the case he is deciding are sufficently different from the facts of the previous case, so precedant does not apply.
  • Balfour v Balfour, Merrit v Merrit.
  • Overruling
  • Court decided that the legal rule in an earlier case is wrong. Overruling may occur when a higher court overrules the decision made in an earlier case made by a lower court, although some courts can overrule decisions of their own.
  • Reversing
  • A court higher in the hierarchy overturns the decision of a lower court on appeal in the same case.
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Advantages of Precedent

  • Certainty
  • People know what the law is and how it is likely to be applied. Allows lawyers to advise clients on the outcome of cases.
  • Consistency and fairness
  • Similar cases are decided in similar ways.
  • Precision
  • Principles of law are set out in actual cases, the law becomes very precise.
  • Flexibility
  • Room for the law to change as the supreme court can overrule previous decisions. Ability to distinguish
  • R v R
  • Time-Saving
  • Where a principle has already been established, cases with similar facts are unlikely to go through the lengthly process of litigation.
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Disadvantages of precedent

  • Rigidity
  • Lower Courts have to follow the decisions of higher courts, and the CoA has to follow its own past decisions. This can make the law inflexible. So few cases go to the supreme court
  • Complexity
  • Not easy to find relevant case law and the difference between the obiter dicta and ration decidendi is often unclear.
  • Illogical distinctions
  • Distinguishing can lead to 'hair-splitting' and making the law more complex.
  • Slowness of growth
  • Some areas of law are unclear or in need of reform but cannot make a decision unless there is a case before the courts to be decided.
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