judicial precedent

• what is judicial precedent?

  a source of law where the past decisions of judges create law for future judges to follow. judges follow past decisions of other judges in courts above them
• what is meant by stare decisis?

  a Latin word for let the decision stand. it means that judges must follow decisions made previously and that lower courts are bound by the higher courts precedent.
• what is ratio decedeni?

  judges give a speech called a judgement which explains the reasons for their decisions. there are two parts to their decisions - the ratio and the obiter. the ratio is the binding part of the judgment that all future cases must follow. for example in the case of Ireland, the ratio was that silent phone calls can amount to assault. normally 5 judges hear a case where a majority verdict should be found. a judge who disagrees with the majority is called a dissenting judge.
• the case of brown - ratio decedendi

  5 men in a group of consenting adult sadomasochists were convicted of abh and s20 gbh. they carried out harmful sexual acts that didn't cause any injury or despair as all were consenting adults. their convictions were upheld in the House of Lords. the ratio of the case was that you cannot consent to abh or gbh unless it is a recognized exception. harmful sexual activities do not count as an exception.
• what is obiter dicta?

  obiter means other things said. after judges decide the ratio of a case they discuss other related matters. they consider what their decision would have been if the case facts were different. obiter is not binding which means future judges do not have to follow it. it is a persuasive precedent and can be used in the future only if needed.
• howe - ratio and obiter

  defendant and others took part in torturing and abusing a man who was strangled to death. d claimed that he was threatened which is why he committed the crime. the trial judge ruled that duress was not available and that it was a murder charge. the ratio of the case was that duress of threats is never a defense to murder. the obiter of the case was that it is not a defense for attempted murder either.
• gotts - ratio and obiter

  d was 16 years old with separated parents. his father threatened to kill him if he did not stab his mother. the boy attacked his mother but did not kill her. the court of appeal upheld his conviction on the basis that duress of threats was not available to him. they used the obiter from the case howe to show that it was not a defense for attempted murder. This then set a new precedent through a ratio that duress is not a defense for attempted murder.
• what is the criminal court hierarchy?

  supreme court, court of appeal, high court kings bench division, crown court, magistrates court
• what is the civil court hierarchy?

  supreme court, court of Appeal, high court kings bench division - family division - chancery division, county court, magistrates court.
• what is a binding precedent?

  a precedent that must be followed in future cases. for example the Supreme court binds all future cases with similar points of law
• what is a binding precedent case example?


  R v R - the court decided in 1991 to make it illegal for a man to rape his wife. this was a binding precedent and all future cases had to follow it.
• what is a persuasive precedent?

  these are not binding but can be followed if judges wish to follow them. some examples of persuasive precedents are obiter dicta, dissenting judgements, other countries decisions etc
• what is a case example of persuasive precedent?

  gotts - they used the obiter dicta from the case of howe to set precedent that duress is not a defence to attempted murder
• what is an original precedent?

  a decision on a point of law that has never been decided before. there are no past cases with a similar point of law
• what is a case example of original precedent?

  dica - set a new and original precedent stating that giving someone HIV can amount to gbh
• the Supreme Court and precedent

  the case of London Street Tramways 1898 said that the Supreme Court must follow its own past decisions. this created certainty but judges lacked certainty and changed the law.
• practice statement 1966

  in 1966 the lord chancellor issued a practice statement. The Supreme Court can depart from its previous decision when it appears right to do so. judges are very cautious about using this power and won't do so unless there is an error in the law. the practice statement was changed to practice directions 3 and 4 when the Supreme Court was created in 2009
• first major civil use of precedent - Addie v Dumbreck

  a 4 year old child was killed when he fell through the unprotected cover of a wheel on a colliery land. no compensation could be claimed by the parents as the kid was a trespasser. occupiers of land do not owe a duty of care to children trespassers unless their injuries were caused deliberately or recklessly.
• major civil use of precedent - Herrington

  a 6 year old boy was badly burned when he trespassed onto an electrified railway line through vandalized fencing. British rail was aware of the gaps in the fencing and that children played in the area. The Supreme Court used the practice statement to change the law and overrule its previous decision. occupiers do owe a duty of care to all trespassers. herrington set a new binding precedent for future judges to follow.
• first major criminal use of the practice statement - Anderton

  Mrs. Ryan bought a video recorder very cheaply thinking it was stolen. She admitted this to the police who were investigating a burglary in her home. her conviction was quashed because the recorder was not actually stolen.
• the case following Anderton using the practice statement - Shivpuri

  less than a year later the Supreme court realised that an error was made in the case of Anderton and so they used the practice statement to overrule Anderton. d agreed to receive a suitcase that he thought contained drugs. the suitcase only contained snuff and harmless vegetable powders. they were convicted of attempting to be knowingly concerned in dealing prohibited.
• The Court of appeal and precedent

  the court of appeal is bound by the decisions of the Supreme Court. if a previous case has only got as far as the court of appeal then they have to follow their own past decisions e.g. the civil division would have to follow previous civil division decisions. the case of Young v Bristol aeroplane company states some exceptions to the rule at the Court of Appeal is bound by its own past decisions. these are called the three young exceptions
• what are the three young exceptions?

  if the previous decision was made per incurian or in error. the supreme Court makes a decision that effectively overrules the Court of appeals decision. if there are inflicting court of appeal decisions the court of appeal can choose which one to follow.
• what does the case of Rickards tell us about the curt of appeal and precedent?

  that the court of appeal will only be justified in not following its previous decisions in rare and exceptional cases
• court of appeal criminal division

  the court of appeal does not have to follow its own past decision if the law has been misapplied or misunderstood. the reason for this is because someone's liberty is at stake in a criminal case.
• what are the three ways of avoiding precedent?

  overruling distinguishing and reversing
• what is overruling?

  this is when judges decide that an earlier decision is wrong and should no longer be law. the supreme Court can overrule decisions made by any court as it is the highest in the court hierarchy. it can also use practice statements to overrule its own decision.
• what is a case example where overruling was used?

  shivpuri - the supreme court used the practice statement to overrule its decision in Anderton
• what is reversing?


  this is when a case is appealed and the previous decision is changed. this is because there was an error in the law or a repugnant result was caused.
• what is a case example of reversing?

  K - a school boy put acid in the handryer at school. the magistrates acquitted him of ABH but the prosecution appealed to the king's bench division in the high court which reversed the magistrate's decision and convicted him.
• what is distinguishing?

  this is when a judge can avoid applying precedent to cases if the case facts are materially different. any court has the power to use distinguishing as an avoiding precedent technique.
• what is a case example where distinguishing was used?

  Wilson - he branded his wife with her consent. the court of appeal should have followed the Supreme Court precedent from brown as they are higher in the hierarchy. however they used distinguishing and stated that the case was materially different. branding is like a tattoo and is a recognized exception where you can consent to abh. therefore under the rule of distinguishing his conviction was quashed.
• what are the advantages of using judicial precedent?

  certainty, flexibility, saves time, precision
• what are the disadvantages of using judicial precedent?

  undemocratic, takes time, illogical distinctions, too rigid
• advantage of using judicial precedent - certainty

  certainty means that lawyers can advise their clients on the likely outcome of their case. this allows people to plan ahead. for example businesses can predict the result of a case and choose their next steps. the clear court hierarchy means that judges know which court decisions are legally binding which makes their job easier. the law is therefore applied equally to everyone as they follow the ratio decedendi from earlier cases.
• advantage of judicial precedent - flexibility

  distinguishing the practice directions and young exceptions provide an escape route for judges as they don't have to follow precedent. this is good if there has been an error in the law. injustice would be caused if they continued to follow laws that caused absurd results. flexibility is also important as society evolves because it allows judges to stop following out of date laws.
• advantage of judicial precedent - saves time

  precedent saves judges time as new laws don't need to be made. this reduces delays in the legal system. judges don't have to wait for parliament to change the law. sometimes parliament doesn't make a new act so to prevent injustice judges will change the law. creating precedent may also be quicker than the process of making a whole new law so this is a positive for the legal system.
• advantage of judicial precedent - precision

  judges have spent a lifetime in the legal profession and are therefore legal experts. this means that precedents are clear and reflect on previous cases to ensure they make an informed decision.
• disadvantage of judicial precedent - undemocratic

  unelected judges are making law. this goes beyond their role of applying the law and could be seen as unjust. parliament is sovereign and only they should make the law. MPs are accountable to the electorate whereas judges are not. if judges make unpopular decisions or set unfair precedents they won't be sacked as they have tenure.
• disadvantage of judicial precedent - takes time

  it takes a long time for cases to be appealed. for example it can take two years for a case to move from the Court of Appeal to the Supreme Court. this means that bad precedents may be law for years or they get stuck at the court of appeal and the Supreme Court doesn't get the opportunity to overrule unfair laws. a party may be refused to leave and there is little that they can do about this which may lead to injustice