judicial precedent 2

• How it works

  • follow
  • overrule
  • reverse
  • distinguish
• follow

  • judges follow earlier precedent which ensures, fairness, certainty and consistency in court decisions
  • precedent can lead to unfair decision in a particular case - awkward precedent - outdated
  • judges try to avoid awkward precedent through leaving previous decision to make a fair result.
  • usually done if the precedent for the particular case is out of date
• Ways how judges avoid an awkward precedent

  1. overruling

  • when the court states the legal ruling made in an earlier case is wrong

  1. Supreme court can overrule its own decision through the 1966 practice statement
  2. court higher in hierarchy overrules the decision made in earlier case made by lower court
  3. CA can overrule its own decision by using exceptions in the young case
• overruling -the original precedent is changed but the decision in the case is the same
• Court of appeal

  • bound by decisions of courts above and own decisions
  • decisions by 1 division (civil) does not bind the other (criminal)
  • Within each division the decision is binding - Young V Bristol aeroplane co Ltd
• Court of appeal

  exceptions where CA dont follow old decisions

  • 2 conflicting previous decisions made by CA, they can choose which one to follow( the one not chosen loses binding force)
  • If decision conflicts with SC or HOL decision they have to follow their decision
  • decision was made per incuriam (error) - only used in rare and exceptional cases (per incuriam loses the binding force)
• Court of appeal

  Special exception for criminal division

  • if law was misapplied or misundertood (R v Taylor)
• HOL and Supreme court

  • HOL bound by its own past decisions unless decision is Per incuriam (error) - London street tramways V london county council
  • there is no flexibility to reflect changes in social conditions , opinions
  • 1996 practice statements - HOL can depart from its own decisions "when it appears right to do so"
• Advantages of JP

  • consistency
  • flexibility
  • original precedents
  • detailed practical rules
• disadvantages of JP

  • complexity
  • volume
  • Uncertainty
  • Rigidity
  • Unconstitutional and undemocratic
  • Lack of research
  • Retrospective effect
• Reversing

  • (Similar to overrule)
  • court in higher hierarchy overturns the decision of a lower court on appeal of same case
  • example court of appeal reverse decision of High court
• reversing

  • allowing higher courts to reverse decisions of lower courts is important element of precedent because it means that they allow decisions to be changed in a controlled way
  • For SC to be allowed to overturn earlier decisions means the law can develop
  • by not allowing the CA to have the same freedom as SC it ensures some degree of certainty remains
• Distinguishing

  • judges able to decide the material facts of the case they are dealing with is different to the facts of the case containing the precedent
  • If they do then they are not bound by the precedent - Balfour V Balfour
• Distinguishing

  material facts - most important facts central to the case
• distinguishing

  • can avoid awkward precedent
  • advantage - can be changed to reflect new circumstances
  • judge take individual circumstances into account
  • can result into more complexity if judge tries to distinguish between minor differences as it leads to more precedents
  • Also create uncertainty as lawyers wont be sure how law is applied in the future