Explain what is meant by Judicial Precedent:
- What makes the English law more distinguished from other legal systems is that so much of it is created by judges through case law.
- Judicial Precendent refers to the source of law where past decisions of the judges allow future judges to follow and this is also known as case law.
- If the facts are similar to an earlier one, (especially in a superior court) then the rules laid down by earlier cases must be followed.
- 'stare decisis'
- For the system to be effective, the reports must be accurate law reporting and official law reports do exist.
- Judicial Precedent requires settles court hierarchy SO judges know which precedents they are bound to follow.
- Court structure established by JUDICATURE ACTS 1875
- HOL was the final appellate court UNTIL it was REPLACED by the SUPREME COURT in 2009 under the CONSTITUTIONAL ACT 2005
- Binding Precedent- a precedent from an earlier case which must be followed even if the judge in the later case does not agree with it... it is very significant! The precedent is only created when the FACTS of the second case are SIMILAR enough to the ORIGINAL case and the decision was made by a court which is SENIOR. Case Example: Donoghue v Stevenson 1932 (IMPORTANT)
- Original Precedent- if the point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future judges to FOLLOW. It is an ORIGINAL precedent therefore it will carry a first ruling by creating a new principle of law 'REASONING BY ANALOGY'. The very first case to establish a new principle of law was in the case of Donoghue v Stevenson: 'The Neighbour Principle' Following case example: Gillick v West (underage contraception without parental consent)
- Persuasive Precedent- this is the precedent that is NOT binding on the court but the court may consider it and analyse whether it is a CORRECT principle so he is PERSUADED to follow it and therefore it is OPTIONAL. An example for rulings from other courts OUTSIDE the jurisdiction of England and Wales in The Wagon Mound No1. …