Precedent

Practice Statement (1966)

The house of lords could overrule their past decisions if it was seen as vital or necessary to do so. It therefore provides a compromise between having full power or none. Lord Gardiner provided this.

Distinguishing

When a judge feels that the material facts of a case are materially different to those of a previous case where the precedent was held is a method of avoiding an otherwise binding precedent. For example, the judge in R V Wilson distinguished from R V Brown (could be seen as homophobic).

Reversing

When a court higher up in the hierarchy overturns the decision of a lower court in the same case. R V Miller (1950) and R V R (1991) is an example of this.

Disadvantages of precedent

- Doesn't allow the law to develop in terms of advances in society, economy and technology. - Undemocratic to allow unelected judges to create law. - Having such a large body of law can become very complex and confusing.

Reason for a hierarchy?

- so that courts know which precedents they must follow (ones made in higher courts) - so that courts can deal with cases of different importance, meaning cases are split up so they can handle them all

Why was the Practice Statement brought about?

-The law was too rigid, it couldn't evolve due to London Street Tramways (1898) -It would enable them to change the law so that it can adapt to the changing needs/ values/ morals of society. -The PS would bring the supreme court up to the same level as courts in other countries, giving them the same level of authority and power.

Advantages of precedent

-to make judgements fair as other people who have committed similar crimes will have gotten similar if not the same judgements. - so that legal advisors can give accurate advice with full knowledge of the possible outcomes - precedent provides certainty, predictability and consistancy to the legal system - has some flexibility as it can allow the law to adapt in some respects - well established system from hundreds of years of refining and testing the law

Hierarchy of courts from the bottom to the top?

1- Magistrates Court 2-Crown Court 3- Queen's Bench Division 4- Court of Appeal 5- Supreme Court (House of Lords) 6- European Court of Justice

Original Precedent

A precedent that involves a point of law that has never been decided before. These can be created to deal with changes in economy, society and technology. If important enough this will be seen by the Supreme court. For example, in R V Brown a new precedent was created that consent cannot be a defence to harming another person.

Binding Precedent

A precedent that must be followed. This usually operates as a lower court being bound by the decision made by a higher court. For example, Daniels V White was bound by the decision made in Donoghue V Stevenson.

First case to use the PS in civil law.

Conway V Rimmer (1968) 2 y after it was introduced only in a minor way due to a minor technical fault

Magistrates Court

Deals with cases of minor offenses such as failing to pay your TV license, drinking and driving, being drunk and disorderly etc.

Supreme Court

Deals with cases of national importance (that will affect a large majority of the population). Bound by its own past decisions with the exception of the practice statement (1966).

Court of Appeal

Highest court in the country that deals with cases not of national importance. They are bound by their past decisions and cannot depart from precedents made in higher courts (the supreme court and ECJ). The criminal division and civil division do not bind each other.

London Street Tramways (1898)

House of Lords were bound by its own previous decisions in the interests of certainty in the law. Before then the house of lords were free to depart from its past decisions.

First case to use PS in criminal law

R V Howe (1972) Held that duress cannot be a defence to murder. First major use of the practice statement in criminal law. It took21 years for this and shows how reluctant the HoL were to use the practice statement. It took longer for the use of it in criminal law because the consequences are more severe and criminal cases tend to be more controversial, so it would be irresponsible to take that away from Parliament. As parliament will research and gain public opinions before the creating law where judges do not.

Three methods of avoiding precedent

Reversing, Overruling and Distinguishing

How reluctant were the House of Lords to use the Practice Statement?

Took 2 years for the first change in civil law y a minor change for a small technical error. It also took 21 years for the first change in criminal law. CAUTIOUS. There was the fear of making law uncertain and unreliable again as this was the reason their power was taken from them in the first place. In Knuller V DPP, Lord Reid stated that in the interest of certainty there must be a very good reason before we act.

Persuasive Precedent

When a judge seeing a case in a higher court can look at the legal principles of a previous case and decide whether to be 'persuaded' to follow the decision made in that previous case. For example, R v R (1991) decided to look at the obiter dicta of R V Miller (1950) which they were bound to follow the precedent at the time that a woman was the property of a man yet stated in their obiter dicta that they would like to change the law but do not have the power to do so.

Overruling

When a later court determines that the decision made in and earlier court was wrongly decided. R v R overruled the commonly held rule that a man cannot be held guilty for raping his wife.

Obiter dicta

all other parts of the decision once the ratio decidendi has been identified

Precedent

the process by which judges follow the decisions made by previous judges, where the facts of the case are sufficiently similar to those of the earlier case

Ratio decidendi

the reason the judge gives for their decision

Stare Decisis

to stand by what has been decided, do not unsettle the established