Judicial Precedent

    Cards (30)

    • Judicial is anything relating to judges.
      'Setting a PRECEDENT' is when you create a rule to be followed in similar situations in the future.
      Judicial Precedent = when judges create rules to be followed in similar cases in the future.
    • The Rules of Judicial Precedent:
      • Stare Decisis = Stand by the Decision
      • Ratio Decidendi = Reason for the Decision
      • Obiter Dicta = Other Things Said
    • Stare Decisis:
      • Forms the basis of the rules of Judicial Precedent.
      • Means that when there is no existing Act of Parliament to follow, judges must stand by decisions of other judges in previous similar cases, even if they disagree with them.
      • Schweppes 1965 and AT&E 1965
    • Schweppes 1965 and AT&E 1965:
      • Decision made in Schweppes with 3 judges where one judge disagreed but decision was made on a 2-1 majority.
      • Later that day same point arose in AT&E and was presided over same three judges - but was no dissenting judgement.
      • Judge who dissented in Schweppes said: 1I am now bound by decision of majority in previous case, I have no alternative but to concur'.
      • Decision in Schweppes had become precedent to be followed by later cases.
    • Ratio Decidendi:
      • Reason why decision was made in specific case.
      • Sets precedent to be followed in later cases.
      • What we call binding precedent because other judges/ courts are bound to follow it.
    • Obiter Dicta:
      • Other things said by the judge in the case, which did not direct relate to the reason for the decision.
      • These do not set a precedent but can be helpful for future judges if they are stuck when making a decision. It is called persuasive precedent as it can persuade future judges.
      • Usually includes speculation over different outcomes in different situation.
    • R v Howe 1987:
      • D and friends murdered two men. They claimed duress as they were under threat.
      • Ratio Decidendi: They were GUILTY as duress is not a defence to murder.
      • Obiter Dicta: The judge suggested it cannot be a defence to attempted murder either.
    • R v Gotts 1992:
      • D was charged with attempted murder of his mother and pleaded duress as his father had threatened him.
      • He was GUILTY - the judge was not required to follow Howe because this was attempted murder, but he decided to be persuaded by the obiter dicta from that case, creating a new binding precedent which no must be followed by others.
    • Types of Precedent:
      1. Original Precedent
      2. Binding Precedent
      3. Persuasive Precedent
    • Original Precedent:
      • This is where there are no previous cases or Acts of Parliament on a topic, so it is the first time the subject has been looked at.
      • It then becomes binding precedent for future cases.
      • Happened in Donoghue v Stevenson.
      • Judges will use 'reasoning by analogy' to find an answer by looking at the closest types of cases and decisions.
      • Aldred's Case 1610
      • Hunter v Canary Wharf 1998
    • Aldred's Case 1610:
      • You can sue in nuisance if you cannot enjoy your home life because your neighbors have installed a pig stew and the smell is unbearable.
      • However, you cannot sue because something has restricted your view, as a nice view is not a necessity.
    • Hunter v Canary Wharf 1998:
      • 690 residents complained that when Canary Wharf was built in London it disrupted their TV signal.
      • Decision: You cannot sue for disruption to TV signal because it is not a necessity.
    • Binding Precedent:
      • This is a rule that other courts MUST follow - they are bound by it once he precedent has been set.
      • An example would be the rule from R v Howe saying duress is no defence to murder - all future courts must follow this.
      • The facts of the cases must be sufficiently similar.
      • Also if Parliament have introduced an Act of Parliament since the precedent was set, the court must follow Parliament.
    • Persuasive Precedent:
      • Precedent that does not have to be followed by the court. However, judges may find it helpful when deciding cases. Includes:
      1. Decisions of lower courts.
      2. Obiter Dicta comments
      3. Decisions of the Judicial Committee of the Privy Council
      4. Decisions from other countries
      5. Dissenting judgements.
    • The Courts and Judicial Precedent:
      • Every court is required (bound) to follow decisions of higher courts).
      • The Court of Appeal and Supreme Court are usually the only ones who set original precedents.
      • They usually have to follow their own decisions, but there are exception.
    • The Courts and Judicial Precedent:
      • The general rule is that the Supreme Court (formerly House of Lords) and the Court of Appeal are bound by their own past decisions.
      • However, there are some exceptions to this.
    • Supreme Court (HoL):
      • London Street Tramways 1898 -> stated that the court cannot overrule itself, this is because the law requires certainty.
      • Practice Statemen 1966 -> gave the House of Lords the right to overrule itself, only "if it was right to do so".
      • Supreme Court -> when this was created in 2009 it was assumed the rule from the House of Lords applied here too, Austin v Southwark 2010 confirmed this and it is now in Practice Directions 3&4.
    • Court of Appeal:
      • Has a Civil and a Criminal Division -> they are separate and do not bind one another, however they have to follow their own decisions within their Division.
      • Young v Bristol Airplane -> outlined three exceptions when the Court of Appeal can overrule itself:
      1. If are 2 conflicting CA decisions.
      2. If CA decision conflicts with House of Lords/ Supreme Court decision.
      3. If decision was made 'per incuriam' (in error)
      • R v Gould -> confirmed a 4th exception exists in the Criminal Division ONLY as liberty is at stake, 4. where the law has been misapplied or misunderstood.
    • Methods of Handling Precedent:
      1. Follow
      2. Overruling
      3. Reversing
      4. Distinguishing
    • Follow - the majority of the time judges will simply follow the existing binding precedent.
      • Shaw v DPP 1962
      • Knuller v DPP 1973
    • Overruling - a court in a later case decides that a judge in the earlier case was wrong and overrules the precedent created. This can only be done by a higher court.
      • Anderton v Ryan 1985
      • R v Shivpuri 1986
    • Reversing - similar to overruling, but this happens in the same case - so a decision is reversed on appeal.
      • Sweet v Parsley 1970
    • Distinguishing - the judge decides the facts of the case are sufficiently different from the precedent, that a different decision is justified.
      • Balfour v Balfour 1919
      • Merritt v Merritt 1971
      • Balfour v Balfour 1919:
      • A couple had an informal, verbal agreement whilst married for the husband to send money to the wife when he worked away.
      • The Court decided this DID NOT need to continue after they separated.
      • Merritt v Merritt 1971:
      • A couple had a formal, written agreement created after separation for the husband to pay the wife to help pay off their mortgage.
      • The court decided this DID continue after separation as it was distinguished from Balfour due to agreement being made after separation.
    • Sweet v Parsley 1970:
      • D rented out her house to students who - without her knowledge - smoked and grew cannabis on the property.
      • GUILTY at High Court
      • NOT GUILTY at House of Lords who REVERSED the High Court decision - due to impact on her reputation and livelihood.
      • Shaw v DPP 1962:
      • D created a 'ladies directory' where prostitutes could advertise their services.
      • GUILTY as the House of Lords created a crime of outraging public morals.
      • This set a binding precedent.
      • Knuller v DPP 1973:
      • D ran a magazine where gay men advertised to meet with other men.
      • GUILTY as the court FOLLOWED the decision from Shaw, even though they did not agree with it.
      • Anderton v Ryan 1985:
      • Woman charged with handling stolen property as she though the camcorder she had was stolen.
      • NOT GUILTY as there was no evidence it was stolen so the crime was impossible.
      • R v Shivpuri 1986:
      • Man charged with drugs offences but the drugs turned out to be other legal substances.
      • GUILTY as the intention was there even if the crime was impossible - overruling Anderton.
    • Law Reporting:
      • Judges find decisions of previous cases through law reports.
      • All Court of Appeal and Supreme Court cases issue a formal judgement:
      • Decision and legal reasoning for each appeal judges.
      • This includes the binding or persuasive precedent.
      • They can be searched via:
      • The Time law reports
      • Law libraries (Actual books!)
      • Online Law libraries (LexisNexis, Westlaw)
      • Lower court s don't produce judgements but reported via media
    • Advantages of Judicial Precedent:
      • Certainty in the law
      • There is some flexibility
      • Consistency
      • Time Saving
      • Allows original precedents to be set
    • Disadvantages of Judicial Precedent:
      • It makes the law too rigid
      • Complexity and volume of case law
      • Slowness of Growth in the law
      • Retrospective Effect
      • Illogical distinctions drawn for distinguishing
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