Judicial precedent 1

• Judicial precedent - past decisions create new law for future judges to follow
• Stare decisis - Stand by what has been decided and do not settle the established
• Idea of precedent

  • consistency
  • fairness
  • certainty
• Legal decisions made by the higher courts are followed by the lower courts in the future cases
• judicial precedent to be successful

  • Ratio decidendi - Found in judgement
  • Hierarchical court structure
  • Accurate system of law reporting
• judgement - gives the decision and the reasons behind the decision and:

  • Summary of facts of case
  • Final verdict/decision
  • Explanation of principles of law that the judge used to reach decision (ratio decidendi)
  • Further discussion in argument but not part of the decision e.g. speculation (Orbiter Dicta)
• Ratio decidendi - the legal reasoning behind the decision which provides a precedent that future judges will follow e.g R V Howe
• Obiter Dicta - does not form part of his reasoning is not part of the precedent.

  judge will speculate his decision if the facts of the material was different
• Example of Obiter Dicta - R V Howe = HL held Defence of duress was not available to murder but the orbiter stated it was not available in an attempted murder (orbiter - didnt relate exactly to facts of case because it mentioned murder not attempted murder)
• Orbiter dicta can be used to be put forward in future cases (not binding) which could persuade the judge towards a particular view in the law
• If a judge uses an orbiter from past cases it leads to a ratio of the later case e.g.

  • R V Gotts - followed orbiter in R V Howe and held D couldnt use defence of duress in a charge of attempted murder
• Ratio decidendi - binding precedent

  Orbiter dicta - persuasive precedent
• Types of precedent

  • Original precedent
  • binding precedent
  • Persuasive precedent

  Sources of persuasive precedent

  • Orbiter Dicta statements
  • Courts in lower hierarchy
  • Judicial committee of Privy council decisions
  • A dissenting judgement
  • Decisions of courts in other countries
• original precedent

  • if there is a point of law that has never been decided before , then the decision the judge makes will set a new precedent for future cases
  • Donoghue V Stevenson - decided Manufacturers of the products owe a duty of care to the end consumer
• original precedent - Due to fact there is no past cases to base decision on , they will use a reasoning by analogy

  analogy - looking at similar cases and see what the judge decided in that case

  an original precedent automatically becomes a binding precedent
• Orbiter dicta statements - stated in R V Howe that as an orbiter a defence for duress in attempted murder charge wouldn't be available

  later in R V Gotts it was stated using the orbiter that defence of duress not available for attempted murder charges
• Courts in lower hierarchy

  • In R V R the HOL followed the same decision made from court of appeal to decide that a man is guilty of raping their wife
• dissenting judgement

  • judgement that disagreed with majority view and can be used to overrule the majority of a decision
  • e.g. Candler V Crane Christmas 1951
• Decisions made in other countries

  • use decisions where the same idea of common law is used e.g. USA
  • example Mclouglin V Obrian - nervous shock in negligence cases
• Law reporting

  • to follow past decisions the exact records of what happened needed to be outlined therefore written reports were made for cases in England and wales since 13th century but were brief
  • 1865 - established the incorporated council of law reporting where reports were more accurate with court judgements noted down word for word
• operation of doctrine of precedent

  • every court is bound by court above it in hierarchy
  • Appellate courts are bound by their previous decisions
  • All decisions of high court and higher are put into a law report
  • Lower courts need to know all of the legal reasoning behind the decisions made by higher courts - only able to if its properly reported
• Country court + Magistrates court dont create precedent they are bound by all higher courts
• Awkward precedent - precedent that is outdated or leads to unfair decision

  could also be wrongly made / reported
• binding precedent - precedent from earlier cases to be followed even if the judge doesnt agree with its legal principle or reason

  Only created

  1. facts of second case are similar to original case
  2. decision made was by court higher in hierarchy than the court hearing the later case
• persuasive precedent

  • not binding on court
  • Judge can consider the precedent and decide its the correct principle to follow
  • (the judge was persuaded to follow the decision)