judicial precedent

• what is stare decisis?

  stand by what has been decided and do not unsettle the established
• how is stare decisis seen in the real world?

  1. judges make decision in court either to interpret parliamentary law or decide a new law
  2. these decisions can be looked at by other judges
  3. if later case has the same or similar rule and case facts then earlier decision can be followed
• what is the ratio decidendi?

  the reason for deciding
• what will the judgement by the judge include?

  THE JUDGEMENT WILL INCLUDE:

  1. a summary of the facts of the case
  2. review of the arguments put forward
  3. an explanation of the principles of law being used to come to the decision
• does a lower court have to follow the ratio decidendi of the higher courts?

  Yes.
• what happens if there is more than ratio decidendi?

  the judge in any later cases can choose which ratio they prefer and which to use
• what is the obiter dicta?

  the other things said
• is the obiter dicta binding?

  No.
• what will the obiter dicta contain?

  what the decision would have been had the case facts been different
• what are potential problems when looking at a judgement?

  it can be difficult to split the ratio decidendi from the obiter dicta
• what type of precedent is the obiter dicta?

  persuasive
• did the house of lords used to be bound by its decisions?

  yes.

  London street tramways v London County Council - certainty in the law is more important than individual hardship caused by the law
• what was the only exception to the HOL being bound by its past decisions?

  if the decision had been made per incuriam (in error)
• what situation did per incuriam cover?

  where a decision had been made without considering the effect of a relevant statue. LIMITED USE
• when was the practise statement introduced?

  1966
• what did the practice statement allow the HOLto do?

  depart from a previous decision when it "appears right to do so"
• what is the issue with the practice statement?

  the phrase "appears right to do so" is vauge and there is no guideance on how to use it.
• when was the first major use of the practice statement?

  1972, Herrigton v British Railways Board
• what case did Herrigton v British Railway Board depart from?

  Addie v Dumbreck
• in what other case was the practice statement used?

  pepper v hart
• can the pracice statement be used in criminal law?

  Yes but the statement stressed that criminal law needs to be certain
• when was the PS first used in criminal law?

  R v Shivpuri to overrule the decision in Anderton v Ryan
• what happened to the HOL in 2009?

  it became the supreme court due to the constitutional reform act 2005
• was the PS transfered to the supreme court?

  yes, the power was transfered - Austin v London Borough of Southwark
• when was the PS first used by the supreme court

  Knauer v Ministry of Justice
• before the UK left the EU were we bound by ruling of the CJEU on EU law

  before the UK left the EU the supreme court was bound by the CJEU on EU law
• what happened after brexit

  after leaving the EU, existing ruling of the CJEU on EU could technically overuled by a ruling by the supreme court
• can a case be referred to the CJEU

  a case can be reffered to the CJEU for an opinion but there is no right of appeal to the CJEU from a UK court
• is the supreme court bound by the rulings of the european court of human rights

  the supreme court must take into account any decision of the ECHR but is not bound to follow it
• what are the 2 divisions of the COA?

  criminal division

  civil division
• what does the case of Young v Bristol Aeroplane Co tell us?

  young v bristol aeroplane co - decision by one division of the COA does not bind the other
• what instance is the COA (civil) not bound by its previous decisions

  COA (civil) - Young v Bristol Aeroplane Co.

  1. where there are confliction decision in the past - choose which one to follow
  2. where the supreme court overrules a COA decision - new precedent must be followed
  3. where the decision was made per incuriam because a relevant act was not considered
• in what instances is the COA (criminal) not bound by it previous decision?

  COA (criminal)

  1. the same exceptions as for the civil division
  2. where the law has been misapplied or misunderstood as D's librety is at stake R v Taylor
• what are the 3 types of precedent?

  1. binding precedent
  2. persuasive precedent
  3. original precedent
• what is binding precedent?

  precedent from an earlier case which must be followed. even if the judge does not agree with the legal princaple
• when is binding precedent folowed?

  when the facts of the case are sufficently similiar to the original case
• what is one source of binding precedent?

  the ratio decidendi
• what is persuasive precedent

  a form of precedent that is not binding but the judge may follow it because he is presuaded to follow it
• what are some source of persasuve precendent?

  1. a decision made in a lower court
  2. decisions of the judicial committee of the privy council
  3. statements made obiter dicta
  4. a dissenting judgement
  5. decisions of courts in other countries
• a decision made in a lower court

  an example: R v R - HOL agreed with the COA and followed the decision that a man could be guilty of raping his wife