judicial precedent

• judicial precedent is the rules on how judges make decisions in cases
• when a judge hears a case they must decide what facts are, they then decide how the law applies to the facts ( the law that comes from these decisions is known as case law or common law )
• “stare decisis et non quieta movere” means “stand by what has been decided and do not unsettle the established“

  
  

  this means that once an issue has been decided by a court, other courts should not change it

  
  

  the phrase “stare decisis“ is used as shorthand for the rules of the operation of precedent generally
• stare decisis

  like cases are decided alike - when a judge decides on a case that is similar to a previous case, he should follow the decision taken by the judge in the previous case (Donoghue v Stevenson [1932] 3 years later Grant v Australian Knitting Mills [1935])
• when a judge makes a decision in a case they set out their reasoning in a judgement, judgements usually contain an outline of the facts of the case, the reason for the decision, other things said and the decision itself

  
  

  the legal reason for the decision is the part that can set a precedent that other courts must follow, this part of the judgement is known as the ratio decidendi, which is latin for the reason for deciding
• the ratio decidendi of a case is the part that forms binding precedent which must be followed
• if a new situation arises that hasn’t previously come before the court then the court dec will form an original precedent (Hunter v Canary Wharf)
• persuasive precedent

  *decision of lower courts : R v R [1991] HOL follows Court of appeal decision on marital rape

  * privy council decisions : Willers v Joyce - these should not be preferred to binding precedent, unless the Privy Council directs otherwise

  * common wealth courts : the Australian decision in Sutherland Shire Council v Herman [1985] was adopted in Campari v Dickman [1990]

  * obiter dicta : “other things said” Ivey v Genting Casinos [2017]
• if a judge hears a case and an earlier decision is relevant the judge can choose to follow, overrule, reverse or distinguish the previous precedent
• higher courts bind lower courts
• the following courts can set precedents :

  UK supreme court

  Court of Appeal (Criminal Division ,Civil Division)

  Divisional Court

  High Court (Chancery Division ,King’s Bench Division, Family Division)
• The Hierarchy of the court

  • uk supreme court
  • court of appeal

  1. criminal division
  2. civil division

  • divisional court
  • high court

  1. chancery division
  2. king’s bench division
  3. family division

  • crown court
  • magistrates’ court county court
• THE SUPREME COURT

  The supreme court came into existence in 2009 following the Constitutional Reform Act 2005 and replaced the judicial Committee of the House of Lords

  Importantly this reform ensures not only that our highest court is independent of parliament but is seen to be so, in accordance with the doctrine of the separation of powers
• THE SUPREME COURTS DECISIONS

  • these are binding on all lower courts
  • In London Street Tramways [1898] it was decided that decisions of the House of Lords (now supreme court) were binding on itself
  • However, in 1966 the House of Lords issued the Practice Statement, which provided that it can depart from previous decisions when it is “right to do so”
• The 1966 practice statement

  LORD GARDANIER : “their lordships…recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unruly restrict the development of the law”

  
  

  ”they propose, therefore, to modify their present practice and while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so
• USE OF THE 1966 PRACTICE STATEMENT

  The first use came in Conway v Rimmer [1968] in which the House of Lords overruled its previous decision in Duncan v Cammel, Laird and Co [1942] on disclosure of documents
• FIRST MAJOR USE OF PRACTICE STATEMENT

  The first major use came in British Railways Board v Herrington [1972] in which the House overruled its earlier decisions in Addie v Dumbreck [1929] to decide that an occupier did owe a duty of care to a child trespasser

  Addie had decided that a duty was only owed for injuries deliberately or recklessly caused. However, the House of Lords changed the law as social and physical conditions had changed since 1929
• The House of Lords have been reluctant to use the practice statement. This is partly due to the need for certainty in the law and partly it is Parliament’s role to make law
• What is an advantage of judicial precedent regarding certainty in law?

  Like cases are decided alike
• How does judicial precedent allow for flexibility in law?

  It keeps up-to-date with social change
• Why is it considered just and fair that like cases are decided alike?

  Everyone should be treated in the same way
• What is a disadvantage of the judicial precedent system related to complexity?

  It can be hard to find out what the law is
• Why is the complexity of the judicial precedent system a disadvantage?

  Judgements are not always clear
• What is a disadvantage of the judicial precedent system regarding judges?

  Judges are not elected
• How can the judicial precedent system lead to rigidity?

  Lower courts must follow higher court decisions
• What is a disadvantage of the judicial precedent system concerning past decisions?

  Courts must usually follow their own past decisions