- Created by: Shannon Louise Farrell
- Created on: 24-05-15 23:31
The English system of precedent is based on the latin maxim 'stare decisis et non quieta movere' meaning standing by what has been decided and do not unsettle the established. This is the doctrine which case law precedent is based on.
Precedent is the practice where the past decisions of judges are followed in future cases when the facts of the case are similar and made in a higher court.
Mechanics of precedent:
The term precedent is also known as case low/common law. Three things are important to the way the system works.
1) The judges' judgement
2) The hierarchy of the courts
3) A good system of law reporting.
The judges' Judgement: is divided into three parts:
a) The Decision - This is the outcome of the case, the actual decision. Criminal is guilty or not guilty verdict, Civil is liable or not liable.
b)The Ratio Decidendi - This is the legal reason for the decision and is the binding part of the judgement, the binding precedent that would be applied to future cases with similar facts and from lower courts.
The judge will usually set out what he considers are the material facts of the case,
Then they will look at the legal arguement each side,
Then they will explain the principle of the law they are going to use to make their decision (Ratio decidendi),
The Ratio Decidendi is binding so a court must follow it where the facts are similar in future cases.
c) Obiter Dictum - The judgement may contain 'Obiter Dictum' which means other things said. This is persausive precedent which judges in the future do not have to follow but can be 'persauded' by it.
The judge may explain what his decision might have been if the facts had been a little different.
R v Howe 1987 - The Ration decidendi was that duress should not be a defence in murder. The Obita Dictum was that duress should not be a defence in attempted murder.
R v Gotts 1992 - The judge was persauded by Griffiths LJ obita dictum in R v Howe and turned it into his Ratio Decidendi.
Different Types of Precedent:
1) Original Precedent - Where the point of law has not been made before i.e. Donoghue v Stevenson, Negligence and the Neighbour test ; DPP v Smith 2006, Cutting hair is ABH ; Hunter v Canary Wharf, interuption in TV reception is not nuisance.
2) Binding Precedent - Precedent from a previous case which must be followed even if the judge disagrees. The facts must be the same or similar and the judge/court it was set in must be superior.
3)Persausive Precedent - Judgement made may be persausive but not binding:
a court lower in the hierarchy - R v R 1991 HoL followed and agreed with the CoA in deciding that a man can **** his wife and be convicted.
Statements made Obita Dictum - R v Howe and R v Gotts.
Decisions of the Judicial Committee…