Judicial precedent

• The English and Welsh legal system is a common law system, which means that much of our law has been developed over time by the courts.
• Judicial precedent refers to the source of law where past decisions of the judges create law for future judges to follow.
• Why do we need judical precedent?

  1. Certainty and consistency
  2. Time saving
  3. Flexibility
  4. Judges are legal experts
  5. Development of the law
• The system of precedent is based on Stare decisis:

  • This means stand by what has been decided, and is split into:

  1. Like cases are decided alike - A later court must use the same reasoning as a previous case where the two cases raise the same legal issues.
  2. Higher courts bind lower courts - Decisions of higher courts are binding on lower courts.
• What are the two parts of Stare decisis?

  1. Like cases are decided alike
  2. Higher courts bind lower courts
• 1. Like cases are decided alike:

  • The judegement is split into 2:
  • Ratio decidendi - reasons for deciding (Binding precedent)
  • Obiter dicta - other things said (persuasive precedent)
• Examples of Ratio and obiter come from the case of R v Howe - D killed someone while under duress. The SC rules that duress could not be a defence to a charge of murder (ratio), the court went on to say that it could not be a defence to a charge of attempted murder either (obiter).

  In the case of R v Gotts - D attempted murder while under duress.

  The obiter statement in howe was followed by the CA in this case, meaning the obiter became the ratio.
• What are the 3 types of precedent?

  1. Original - When the point of law hasnt been decided before.
  2. Binding - When a decision was made by a higher court and all lower courts must follow it in similar cases.
  3. Persuasive - When the judge does not have to follow previous decision but may be persuaded to do so.
• Original Precedent - Judge made law

  • R v R 1991 - First time it was recognised that marital rape could be an offence and was made illegal - before this case there was no law on this area.
  • Donoghue v Stevenson 1932 - COA held in this case theat there is no DOC between a manufacturer and a consumer. The SC changed this decision to state there is a duty owed.
• Briefly outline the case facts of Donoghue v Stevenson 1932?

  Mrs D went to a cafe with her friend who bought her a ginger beer which caused Mrs D to fall ill due to a snail in the beer.

  • Law at the time said only the customer can sue, not consumer.
• Persuasive precedent is judgements which do not have to be followed, but can provide good law for judges to follow:

  1. Courts lower in the hierarchy - R v R where the SC agreed with the CA in deciding what a man could be guilty of raping his wife.
  2. Decisions made in emergency situations - Re A conjoined twins
  3. Statements from obiter - R v Howe (Duress is no defence to murder or attempted murder) and R v Gotts (followed obiter from howe)
• What are the 3 sources of perusasive precedent?

  Statements from obiter

  Decisions made in emergency situations

  Decision from lower courts
• What are the Avoidance techniques?

  Overrule

  Reverse

  Distinguish
• Overrule means higher courts can overrule lower court.

  • Candler v Crane was overruled in Hedley v Heller - COA a person cant claim for pure econmic loss, this was overruled by SC which said you can if it is due to negligent misconduct.
• Reverese means on appeal a higher court may change the decision of a lower court.

  • Donoghue v Stevenson - CA said a manufacturer does not owe a DOC to the end consumer, the SC reversed this decision and said a DOC is owed by the manufacturer to the consumer.
• Distinguish is when a lower court is able to point to material differences that justify the application of different principles.

  • Balfour v Balfour was distinguished in Merritt v Merritt
  • In BVB man left his wife and agreed to pay monthly but did not, this was a domestic agreement, whereas in MVM man left his wife and signed paper stating he will pay monthly, this was deemed a contract.
• Until 1966, the HOL (now SC) was bound by its own decision as held in London Tramways v LCC. Previously the SC were only allowed to depart from their decision when Law was made in error.
• In 1966, the Lord chancellor issued the Practice statement allowing the HOL to depart from their previous decisions 'where it appears right to do so'.
• Why was the Pratice statement issued?

  It was recognised by law lords that 'too rigid and adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law'.
• Practice statement in civil cases:

  First use: Conway v Rimmer 1968

  Major use: Herrington v BRB 1972 - Departed from Addie v Dumbreck 1929

  Famous use: Pepper v Hart 1993 Departed from Davis v Johnson 1979

  Reluctant use: Jones v Secretary of state 1972

  Direction to use: Knuller v DPP 1973
• Practice statement in Criminal cases:

  First use: R v Shivpuri 1986 departed from Anderton v Ryan 1985

  Direction to use: C v DPP
• The Court of appeal is normally bound by itself and the Supreme Court - but the 4 exceptions come from Young v Bristol Aeroplane Co 1944.
• What are the 4 exceptions under Young v Bristol Aeroplane Co 1944?

  Civil Division

  1. Where there are 2 conflicting previous decisions
  2. Where a previous decision has been overturned by a later SC decision
  3. Where the previous decision was per incuriam (in error)

  Criminal division

  4. Where the previous case the law was misapplied resulting in a crimnal conviciton.
• Which CIVIL case was the first use of the practice statement?

  Conway v Rimmer
• Which CIVIL case was the first major use of the practice statement, and what did it state?

  BRB v Herrington which departed from Addie v Dumbreck, this case said that a DOC is now owed to child trespassers.
• Which case is the first famous use of the Practice statement?

  Pepper v Hart which departed from Davis v Johnson, it states judges can now use hansard in Statuatory interpretation.
• What is the first use of the Practice statement in CRIMINAL cases?

  R v Shivpuri which departed from the case of Anderton v Ryan, stating you can commit an impossible crime.
• What is the significance of the case of C v DPP in CRIMINAL cases?

  It provided guidance on how to use the Practice statement in criminal cases.
• What are the 3 sources of PERSUASIVE precedent?

  1. Decision from lower courts
  2. Statements in obiter dicta
  3. Decisions made in emergency situations
• What case is an example of persuasive precedent coming from LOWER courts?

  R v R - The supreme court agreed with the Court of appeal in deciding that a man can be guilty for raping his wife.
• Which case is an example of persuasive precedent coming from EMERGENCY situations?

  Re A Conjoined Twins 2000 - situations made in emergencies are not only persuasive
• Which case is an example of persuasive precedent from OBITER DICTA?

  R v Gotts followed the Obiter from R v Howe
• What are the 3 avoidance techniques?

  Overrule, reverse and distinguish
• Under the Practice statement, when are the Supreme court allowed to depart from their previous decisions?

  When it appears right to do so