judicial precedent

• what are the types of judicial precedent?

  types

  • original precedent
  • binding precedent
  • persuasive precedent
• original precedent

  when there are no cases before with similar facts and a new precedent is made
• example of original precedent

  Donoghue v Stevenson - negligence
• binding precedent

  where a court of appellate jurisdiction has made a ruling on a case, lower courts must follow it where the case is of a similar nature
• example of binding precedent

  Daniels v White - chemicals in lemonade following Donoghue v Stevenson's notion of negligence (stare decisis)
• persuasive precedent

  decisions that are not binding but, may pursuade a judge to follow them
• persuasive precedents example

  decisions made in other countries, dissenting judgements, decisions made by the Privy counsel
• key features of judicial precedent

  features:

  • clear court hierarchy
  • ratio decidendi / obiter dicta
  • an accurate system of law reporting
• clear court hierarchy

  hierarchy

  1. supreme court
  2. court of appeal
  3. divisional court of the high court
  4. courts of first instance (ie county/magistrates)
• ratio decidendi/obiter dicta

  reason for decision and other comments
• accurate report system

  the incorporated council of law reporting set up in 1865
• what are the methods of avoiding judicial precedent?

  methods

  • distinguishing
  • overruling
  • the practice statement 1966
• distinguishing

  can be used by all courts, where judges find material facts of the case are sufficiently different from previous case decisions that it is not reasonable to follow it.
• example of distinguishing

  R v Brown and others- activities likened to torture / R v Wilson- activities likened to tattooing
• overruling

  used by the supreme court, where in later case states that the legal rule decided in earlier case was wrong
• overruling example

  Davis v Johnson/ Pepper v Hart-

  The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and the teacher was not required to pay tax on the perk he received.
• The Practice Statement 1966

  only used by supreme court, whereby they can depart from a previous decision 'when it appeals right to do so'
• example of the Practice Statement 1966

  Lynch v DPP for NI / R v Howe- duress is no defence to murder
• advantages of judicial precedent

  advantages

  • certainty
  • consistency and fairness
  • precision
  • flexibility
  • original precedents
• disadvantages of judicial precedent

  disadvantages

  • rigidity
  • complexity
  • volume
  • illogical decisions
  • slow rate of growth