Judicial precedent

• Stare decisis

  • Creates binding law known as 'Judicial precedent'
  • Higher courts bind lower courts
  • Recorded in law reports
• Stare decisis = Latin for let the decision stand
• Judicial precedent

  Judicial = Judges

  Precedent = Decision
• Law report = A record of a judicial decision on a point of law which sets a precedent
• Elements of Judicial precedent

  • Ratio Decidendi
  • Obiter Dicta
  • Types of precedent
• Ratio Decidendi

  • Translates to reason for decision
  • Importance - Legally binding part of the decision
• Ratio Decidendi (Donoghue v Stevenson

  • Judges can make long speeches
  • The ratio is the core of the judges decision and becomes binding precedent
• Donghue v Stevenson the precedent in this. They follow this precedent in Daniels v White
• Obiter Dicta

  • Translation other things said
  • Importance - Influential in later in similar cases but not binding
• Obiter Dicta

  • Anything apart from the Ratio Decidendi that a judge says is known as 'Obiter Dicta'
  • Not legally binding
• Obiter Dicta - R v Howe and R v Gotts
• Supreme court (formally House of Lords)

  • Most senior court in the UK
  • Used to be absolutely bound by its own decisions
  • Following Lord Gardiners 1966 'Practice Statement the Supreme court is no longer bound by its own decision
• Court of Appeal and the High court

  • Both courts are bound by the courts above them and usually themselves
  • Both courts may depart from their own decisions in specific situations
• Original precedent - (Hunter v Canary Wharf)

  • Where no previous binding precedent exists, the judge will use principles from cases that are comparable (analogous) to reach a decision
• Avoiding precedent - Overruling

  Overruling allows a court higher up in the hierarchy to set aside a legal ruling established in a previous case

  (R v R) and (R v Miller)
• Avoiding precedent - Distinguishing

  A judge may avoid following an earlier precedent because the facts are materially different in some ways

  (Balfour v Balfour) and (Merritt v Merritt)
• Avoiding precedent - Reversing (R v Kingston)

  • This is where a court further up in the hierarchy overturns the decision of a lower court in the same case on appeal
  • Can have the effect of creating a new precedent or passive law making where Parliament enacts a statute in response
• Avoiding precedent

  • Distinguishing
  • Overruling
  • Reversing
• Advantages of precedent

  Certainty: Lawyers and clients can predict the outcome of a case
• Advantages of precedents

  Fairness: The legal system treats people the same. Rules apply equally to each side
• Advantages of precedent

  Flexibility: Judges can develop the law to meet new factual situations

  (R v R) and (Herrington v BRB)
• Advantages of precedent

  Time saving: Legal principles have already been decided, reducing the need for litigation
• Advantages of precedent

  Real life: Deals with events as they occur rather than attempting to provide rules for every eventually
• Advantages of precedent

  Precision: The law is well illustrated as case law builds up. Over 1/2 million reported cases
• Disadvantages of precedent

  • Volume
  • Rigidity
  • Retrospective effect
  • Slowness of growth
  • Unconstitutional
  • Complexity
  • Illogical distinctions
• Disadvantages of precedent

  Volume: Nearly 1/2 million reported cases to choose from
• Disadvantages of precedent

  Rigidity: Law can be slow to change and unjust precedents can be perpetuated (R v R)
• Disadvantages of precedent

  Retrospective effect: Past conduct can became unlawful even though this wasn't known at this time (R v R)
• Disadvantages of precedent

  Slowness of growth: Opportunities for reform are limited. Only about 50 cases are appealed to the Supreme Court each year
• Disadvantages of precedent

  Unconstitutional: Judges engage in law making rather than simply stating what the law is (Hunter v Canary Wharf)
• Disadvantages of precedent

  Complexity: Difficult to find the ratio in any particular case (Re A)
• Disadvantages of precedent

  Illogical distinctions: Distinguishing cases can lead to complexity and unpredictability (Evans v Triplex)
• Types of precedent

  • Binding
  • Persuasive
  • Original
• Binding precedent

  If the precedent is binding on a court, then the court must follow it. A precedent will be binding if the facts of the case are sufficiently similar to the original case
• Persuasive precedent

  This is not considered binding and can be considered as a reference or guide in future cases. Influential but not compulsory to follow
• Types of persuasive precedent

  • Obiter dicta
  • Lower courts can influence high courts
  • Dissenting decision of a judge (the minority decision on cases) - An opinion written by a justice who disagrees with the majority opinion
• Original precedent

  If there is not past cases for a judge to base his decisions on, he will look for cases with similar principles to guide. (Hunter v Canary Wharf)