Judicial Precedent

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  • Created by: Sarah
  • Created on: 06-12-10 19:29

Stare decisis 

All case law rests upon the principle of  'stare decisis', meaning that all previous legal decisions must be respected and the precedents should be followed; this makes the law just and primarily predictable. 

 

Court Hierarchy 

Criminal Courts 

Supreme Court

        ^

Court Of Appeal (Criminal Division) 

        ^

The Divisional Court of the High Court (Queen's Bench Division) 

        ^

Crown Court

        ^

Magistrates' Court

 

Civil Courts

European Court of Justice 

       ^

Supreme Court 

       ^

Court of Appeal (civil division)

       ^

Divisional courts of the High Court 

       ^

High Court (first instance) 

       ^ 

County Court

       ^

Magistrates' Court 

 

The lower courts are bound by the decisions of those courts above them and their own previous decisions except for the Magistrates' court who do not have to follow any precedent due to them having no legal qualifications, and the Supreme Court (a.k.a House of Lords) who do not have to follow their own decisions because of the practice statement they produced in 1966 (see later). 


The Practice Statement, 1966

The Practice Statement of 1966 explains how the House of Lords (now Supreme Court) should have freedom 'to depart from their previous decisions where right to do so'. However, they will always consider the injustices that could occur, and therefore normally see previous precedent as binding.

Before judgements were given in the House of Lords, Lord Gardiner made the statement on behalf of himself and the Lords of Appeal in Ordinary. It states that the 'announcement is not intended to affect the use of precedent elsewhere than in this House', meaning that the House of Lords in the only Court which can depart from their previous decisions. This made the law much more flexible and allowed it to fully develop. 

An example of when the House of Lords (Supreme Court) has departed from a previous civil decision was:

British Railways Board v Herrington (1972) overruled Addie v Dumbreck (1929) on the point that an occupier of premises should have a duty to prevent injury/death to children who trespassed on his/her land. In Addie v Dumbreck the HL decided that the occupier did not have a duty, whereas in British Railways Board v Herrington they decided to overrule the previous decision and say that the occupier was responsible for child trespasser's care.  

An example of when the House of Lords (Supreme Court) has departed from a previous criminal decision was: 

R v Shivpuri (1986) was overruled in Anderton v Ryan because, under the Criminal Attempts Act, you should not be found guilty of doing something that was impossible. In R v Shivpuri, the defendant attempted to smuggle heroin, which was in fact powder, and was found guilty. However, in Anderton v Ryan, the defendant was found not found guilty of attempting to handle stolen goods because it was not possible t

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