Judicial Precedent

• Doctrine of Precedent

  • Refers to the source of law where past decisions of judges who created law for future judges to follow
  • Based on latin terms - stare decisis and non quieta movere
• Original

  • A decision on a point of law that has never been decided before
  • Judges look at similar cases - reasoning by analogy
• Binding

  • A decision in an earlier case which must be followed in later cases
  • facts of second case must be sufficiently similar to original case
• Persuasive

  • a decision which doesn't have to be followed by later cases but a judge may decide to follow
• Dissenting judgement

  A judgement given by a judge who disagrees with the reasoning of the majority of the judges in the case
• Hierarchy of courts

  1. Supreme court
  2. Court of Appeal
  3. King's Bench Divisional court
  4. Crown Court
  5. Magistrates Court
• Supreme court + Practice Statement

  • Originally House of Lords had the right to overrule past decisions
  • In London Street Tramways v London County Council (1898) - certainty in law was more important
  • Not satisfactory as law could not meet changing societal conditions and opinions
  • 1966 - given flexibility to overrule past decisions
• Stare Decisis

  • Stand by what has been deicided - follow the law in previous cases for certainty
• Ratio Decidendi

  • The reason for the decision which forms a precedent for future cases
• Obiter Dicta

  • 'other things said'
  • Judges don't have to follow
• Operation of Precendent

  1. Overruling
  2. Distinguishing
• Overruling

  • A decision which states that a legal rule in an earlier case is wrong
• Distinguishing

  • Avoiding a previous decision because facts in the present case are different
• Adv + Dis

  • Adv = Certainty as it allows lawyers to advise their clients, Consistency and fairness in law
  • Dis = Rigidity as lower courts have to follow higher courts, Complexity not easy to find all previous and relevant cases