What does Judicial Precedent mean?
points of law by senior courts that are followed by lower courts when the same point of law arises.
What is Judicial precedent based on? What does it mean?
It is based on the principle of Stare Decisis.
Stare Decisis means that similar cases are decided in a similar way.
How does the Heirarchy of the courts follow?
Supreme court
↓
CoA -(Civil + Criminal)
↓
Divisional courts (Chancery and Family + KBD)
↓↓
High court (Ci) + Crown (Cr)
↓↓
County Court + Magistrates
Why are the lower courts not bound by themselves?
- Points of law should be decided by senior judges.
- The quantity of cases would make this absurd
Explain Ratio Decidendi
- Reason for deciding
- This contains a point of law which sets a precedent that all lower courts have to follow in future similar cases.
E.G.
R v Howe - D was made to murder someone. He did this under duress. The ratio given at the end of the case was that “Duress cannot be defence to murder”
Explain Obiter Dicta
- Other things said
- Everything else in the judgement (other than the verdict) in this the judge may speculate as to what the decision would have been if the facts of the case had been different. **Obiter is Persuasive **
**E.G. **
R v Howe gave the Obiter that duress shouldn’t be defence to attempted murder. **R v Gotts **decided to follow this Obiter making it a ratio.
What is Original Precent?
- When a case raises a new point of law that has never been decided. The Judges will make a decision on that point of law which will then become original precedent.
- They decide by looking at cases which are closest in principle and may apply similar rules known as reasoning by analogy.
E.G. - Donoghue v Stevenson - Created neglegence.
What is Binding Precedent?
and a bit of case law too
Binding precedent is where a decision in a senior court is made to be followed by courts below it where relevant.
E.G. - the Ratio/precedent from Donghue had to be followed in Grant v Australian Knitting mills
What is Persuasive Precedent?
This is a decision that a court is not bound to follow but can chose to follow if it wishes. Persuasive precedents come from a veriety of sources i.e. Obiter or things said in lower courts.
E.G. R v R, where the HoL chose to follow the CoA’s decision.
What happened in Donoghue v Stevenson? And what Ratio was given?
- Donoghue found a decomposing snail in her ginger beer.
- The HoL made a new law that allowed C to sue the manufacturer. Ratio: Manufacturers owe a duty of care to consumers of their products
What happened in Grant v Australian Knittings Mills
- C got a rash from wearing underwear made by D.
- The CoA had to follow the same decision as in Donoghue as that ratio was binding.
What happened in R v R
- Hol considered the question of whether marital rape should be illegal. While doing this they looked at a similar case in the CoA, making that ruling persuasive on the HoL decision.
What are the types of persuasive precedent?
- Lower courts: higher courts = not bound to decision - R v R
- Obiter Dicta: Obiter = usually not relevant to other cases - R v Howe + R v Gotts
- **Dissenting Judgements: **A Judgement that goes against the majority vote by judges is persuasive. Rose and Frank v Crompton Bros
- Privy Council Courts: This isn’t a UK court so UK courts don’t have to follow their decisions.
- **Decisions in other courts: **Some countries have similar legal systems to the UK. These rules dont bind us but we can look at them as persuasive. R v Bentham - chose to follow the Canadian case of R v Sloan about posession of firearms.
What are the ways of Avoiding precedent?
- Overruling
- Distinguishing
- Reversing
Why might courts want to avoid following a precedent?
- the law is outdated
- it could lead to an absurd result
What does Overrulling mean?
This is where a senior court in a later case changes a precedent (becasue of card 2). Higher courts can either overrule precedents of the courts below, or sometimes they can overrule their own, i.e. SC using the 1966 Practice statement.
Case Law for Overruling + case facts.
The courts overruled Anderton v Ryan in R v Shivpuri
- A v R: C bought a video record for cheap. Turned herself in under the impression it was stolen. When police investigated they found it wasn’t stolen. She was then arrested for attempting to handle stolen goods. This point of law was given during the trial ↓
- LP: It is not a crime to only attempt to do the impossible
- R v Shiv: C believed he was smuggling heroine into UK. Got through customs and dropped it off to the customer. Police arrested him, the “heroine” was just dried vegetables.
- The point of law from A v R was overrulled and the not from the previous was removed
SC said that they made a serious error in A v R, so the sooner the fix the better.
What is Distinguishing?
Where any courts think the facts of a case a defferent enough from an earlier case that it could draw a distinction between the two. This means that…
- The court in the later case is not bound by the precedent in the earlier
- The later will create another precedent on the same point of law as the other
This can be done by any court.
Case law for Distinguishing + Case facts.
In Balfor v Balfor the husband said that he would give her money if she pays the mortgage. This was a verbal agreement for money.
However in Merritt v Merritt the husband said he would give the house to wife. This was a written agreement for the hosue.
It was decided in Balfor that the Agreement made does NOT need amount to a contract while in Merritt it does amount to a contract because there were intentions to create legal relations in Merritt.
What is reversing?
When a point of law is decided in a lower court and then the same case goes to a higher court who change the point of law.
Case law + Case facts for reversing
R v Hasan - Hasan worked for a Brothel and was threatened to steal from one of the clients (V) or else his family would hurt D and his family. D broke in to V’s house and tried to steal money from V. D argued duress as a defence to burglary.
CoA - decided that duress isn’t self-induced if D doesn’t know what kind of crime he will be forced to commit
The HoL decided that Duress is self induced whenever D knew or should have known the risk of being under duress - it doesn’t matter what kind of crime he would be forced to do.
Hasan Piker
What is self induced duress?
Where you put yourself in a situation where it is assumed that you will be threatened with violence. D can’t use duress as a defence where it is self-induced
When and how do the Sc over rule themselves?
With the 1966 practice statement, when it appears right to do so
When did the Sc over rule themselves?
Herrington v BRB over ruled Addie v Dumbrek
