Precedent

• Stare decisis: standing by what has been decided. Judge will follow any decision made by a higher court
• Ratio decidendi: reason for decision forms the binding element

  R v dudley and stephens
• Obiter dicta: other things said, not binding but can be persuasive

  Hill v baxter
• Precedent needs a clear system of reporting cases: the law reports

  And a clear court hierarchy: supreme, appeal, divisional, high and crown court
• The practice statement 1966:

  Supreme court do not have to follow their own early decisions if it’s not right to do so

  Used in conway v rimmer
• Binding precedent:

  Decision made by a higher court that all lower courts have to follow in similar cases
• Original precedent:

  If the point ofnlaw has never been decided before the judge will create a new precedent

  donoghue and stevenson
• Persuasive precedent:

  Obiter dicta statement - r v howe, r v gotts duress not a defence for murder or attempted murder.

  Dissenting judgement - if a judge doesn’t agree with a decision they will give reasons and it will be a dissenting judgement. If the case appeals the dissenting judgement may be used

  hedley v heller
• Courts lower in hierarchy - supreme court agreed with and followed the same reasoning as th pe courts below that a man could be guilty of raping his wife rvr
• Decision of courts in other countries - supreme court of canada stress can’t contribute to automatism r v rabey

  Decisions of privy council - they follow decisions of supreme court, but can follow other countries law. Wagon mound
• Avoding precedent

  • Distinguishing: judge finds case fact sufficiently different to draw a distinction - merritt v merritt
  • Overruling: earliear decision was wrong - shivpuri
  • Reversing: higer court overturns the decison of lower court on appeal - r v kingston