Judicial processes

• Judicial precedent

  • Laws made by judges in courts. When a case appears before them, they must make a judgement and this forms the law. It must be followed in similar cases in the future.
  • This called ‘common law’, that is judge made law.
  • There is a court hierarchy system and lower courts must abide by the decisions and rules made by higher courts.
• Statutory interpretation

  This is where judges in senior courts are called upon to interpret words and phrases within a law. They have the ability to interpret the meaning of the law and make a verdict on the case.
• Overruling past decisions

  There are several options for not following a past decision if it is deemed inappropriate, such as distinguishing or overruling. This is only permitted by the very senior courts.
• Advantage of judicial precedent - quick and doesn't have to go through Parliament.

  Disadvantage of judicial precedent - may be biased towards a particular case
• Judges have three main interpretation rules to hep them with statutory interpretation:

  1. The literal rule
  2. The golden rule
  3. The mischief rule
• statutory interpretation

  when there is existing law already created by parliament, the judges job is to apply and interpret the law to the case that they are hearing. this is called statutory interpretation. it is down to the presiding judge how they interpret the law made by parliament to the case they are hearing (although their are some guidelines). in reality judges should not be making their own laws as this goes beyond their powers as judicial decision makers. however, where there is no law make by Parliament, sometimes judges do have to create law as they go along. this is known as judicial precedent.
• Definition 'judicial precedent refers to the source of law where the decisions of judges create law for future judges to follow (this is known as binding precedent).' When a decision is made by a judge in a higher court it will always be binding on the court below it. It is also referred to as judge made law, common law and case law.
• How does judicial precedent work?

  A decision of a higher court is binding on a lower court. This means that judges must stand by a decision that has been made in a case and not to unsettle what has already been established by the court with more authority. This supports the idea of fairness and provides certainty in the law so that similar cases which are heard by the court can be treated the same.
• What effect does Judicial Precedent have on the Court Hierarchy?

  Every court is bound by a decision above it in the court hierarchy. The exception to this is the Court of Appeal which is bound by its own previous decisions and no other.
• Case example of Judicial Precedent (Donoghue v Stevenson 1932)

  This case involved a decomposed snail in the bottom of a ginger beer drink. This case established the law on negligence and therefore is a good example of judicial precedent.