- Created by: kiwifruitswirl
- Created on: 02-02-20 20:25
Elements of Precedent
The English legal system is a common law system.
This means that much of the law has been developed over time by the courts, through cases.
The basis of this system of precedent is the principle of stare decisis.
- 'stare decisis': to stand by the previous decision
This requires a later court to use the same reasoning as an earlier court where the two cases raise the same legal issues, which in turn ensures a just process.
The Court Hierarchy
This establishes which decisions are binding on which courts. Decisions of higher courts are binding on lower courts.
Court of Justice of the European Union
- Decisions from this court on European matters bind all English courts on matters of EU law.
- The CJEU is not bound by its own decisions.
- The highest appeal court on civil and criminal matters, the Supreme Court binds all other English courts.
- It was bound by its own decisions as the House of Lords until 1966.
Court of Appeal
- It has criminal and civil divisions that do not bind each other.
- The Supreme Court, and the old House of Lords, bind both divisions.
- The Criminal Division is not usually bound by its previous decisions.
- The High Court consists of the divisional courts:
- Queen's Bench Division
- Chancery Division
- Family Division
- Ordinary High Court
- The Court of Appeal, the Supreme Court and the Old House of Lords binds the High Court.
- All the courts above bind this court.
- Decisions from the Crown Court do not form binding precedent but can form persuasive precedent and they are not bound by their previous decisions.
Persuasive precedent: previous decision that does not have to be followed.
Binding precedent: a previous decision that has to be followed.
Magistrates and County Courts
- Bound by the High Court, Court of Appeal, Old House of Lords and Supreme Court.
- They do not produce precedents and they are bound by their previous decisions.
European Court of Human Rights
- Under s2 Human Rights Act 1998, English courts must take into account decisions from the ECtHR but they are not bound by them.
The Binding Element
The judgement contains four elements:
- Statement of material facts.
- Statement of legal principles relevent to the decision (ratio decidendi)
- Discussion of legal priciples raised in argument but not relevant to the decision (obiter dicta)
- The decision or verdict.
Ration decidendi: 'the reason for the decision'. This is the binding element of precedent, which must be followed.
Obiter dicta: 'things said by the way'. This is not binding and is only persuasive.
Other forms of persuasive authority include:
- Decisions of other common law jurisdictions
- Decisions of the Privy Council
- Writing of legal academics
Flexibility and Certainty
The system of binding precedent, sometimes rederred to as the doctine of Judicial Precedent, does create the certainty needed to allow people to plan and lawyers to advise.
It also creates flexibility, as precedent enables the common law to develop.
How does Judicial Precedent work?