Judicial Precedent AS Law
Young v Bristol Aeroplane
- If there are 2 conflicting previous decisions of the Court of Appeal - CHOOSE which one to follow (R v Parmenter CA chose to follow R v Spratt which was heard on the same day as R v Savage but had a different result - When R v Parmenter went to the House of Lords they overruled Spratt instead) - If the Supreme Court has already made a decision that contradicts the CA case - FOLLOW the Supreme Court -If the previous decision was made 'per incuriam' - for example if the decision was made without considering a relevant Act of Parliament.
Advantages of Judicial Precedent
- Provides detailed rules for judges and lawyers to follow - principles in cases respond to real life situations rather than just being ideas of law that are created out of real life situations. This is better than having Parliment legislate in a theoretical way ( Caparo v Dickman) - Flexibility - this arises through overruling distinguishing and reversing - allows the law to evolve in which the Supreme Court can use practise Statement. Also allows COA in Young Case to develop the law eg through overruling( R v R) - Consistency - system enables cases with similar facts to be treated in the same manner, preventing judges from making random decisions and promotes justice and equal treatment. ( Donoghue v Stevenson)
Disadvantages of Judicial Precedent
-Criticised for being too rigid - for a rule to be changed s smiliar case to the original has to arise, due to the fact this takes a long time whilst then judges can wrongfully distinguish to avoid a restrictive precedent. ( BRB v Herrington) - Complexity..thousands of judgements are made each year and run too many pages - Makes finding law very difficult and due to complexity judges are unable to find the ratio decidendi of cases. ( Rickards v Lothian) -Unconstitutional..judges essentially overstepping their constitutional role. People believe that judges should be reinforcing the law and not making it. ( Montesquieu)
Judicial Precedent
A judicial precedent is a decision of the court used as a source for future decision making. This is known as stare decisis (to stand upon decisions) and by which precedents are authoritative and binding and must be followed.
Practise Statement 1966
AVOID FOLLOWING PRECEDENT: - Allows the Supreme Court to overrule a previous precedent that it has set "When it appears right to do so"
Distinguishing
AVOID FOLLOWING PRECEDENT: - The judges find that the facts are sufficiently different for them to draw a distinction between the past case and the one they are considering. [NB: The previous case is not overruled and would still be 'good law' on similar facts].
Court of Appeal (Civil Division)
AVOID FOLLOWING PRECEDENT: - It can overrule lower courts - It can distinguish ( R v Wilson and Brown) - The Court of Appeal is bound by its own decision. However they follow the three stage test set out in the case of Young v Bristol Aeroplane in order to depart from its own decisions.
Overruling
AVOID FOLLOWING PRECEDENT: 1)Is where all judges in the higher courts can overrule the decisions of the lower courts if they consider the legal principles to be wrong. In R v Parmenter the House of Lords overruled the decision of. R v Spratt that was made in the Court of Appeal 2)The Supreme Court has special rules to allow it to overrule itself - it uses the Practice Statement 1966 'when it appears right to do so' ( Pepper v Hart) 3)the Court of Appeal ALSO has to use special rules to overrule itself - the three reasons set out in the case of Young v Bristol Aeroplane A v Hoare The House of Lords overruled Stubbings v Web to allow women who had been sexually attacked / abused by men when they were younger to sue them after the usual 'limitation' period had expired.
Montesquieu
Believes that the powers of the state should be separated between the execute( who says what laws should be passed), the legislate( who makes the laws) and the judiciary (who puts the laws into effect)
R v R
Changes in society's attitudes can be taken into account as it encouraged Parliament to amend the Sexual Offences Act and allow a man to be found guilty of raping his wife
BRB v Herrington
It was first used in British Railway Boards v Herrington which overruled Addie v Dumbreck ON the duty of care owed to child trespasser. This is because times and attitudes towards child trespassing had changed. Lord Pearson stated that "circumstances in societies had changed and therefore as conditions had changed so should the law. It was also used in Pepper v Hart which overruled Davis v Johnson that banned the use of Hansard in statutory interpretation.
Res judicita
KEY FEATURE OF JUDICIAL PRECEDENT: - "A thing decided". Once a judicial matter has been decided, it is final.
Obiter dicta
KEY FEATURE OF JUDICIAL PRECEDENT: - "Other things said". This can also be persuasive for all cases as shown in the case of DPP v Smith where they suggested that putting paint into somebody's hair can still be a form of ABH.
Ratio decidendi
KEY FEATURE OF JUDICIAL PRECEDENT: - "Reasoning for decision". This becomes the binding precedent for future cases where the facts are sufficiently similar Eg the judgement in Cunningham that to be reckless you have to know there is a risk of an unlawful consequence and decide to take the risk.
Stare decisis
KEY FEATURE OF JUDICIAL PRECEDENT: - "To stand by the decision"
Persuasive precedent
KEY FEATURE OF JUDICIAL PRECEDENT: - Is precedent that judges in future cases may choose to follow, but they are not bound to. Sometimes judges may make comments that are not directly related to the reasons for the decision in the case, this is known as obiter dicta. - Persuasive precedent may also arise from decisions of the lower courts. For example the House of Lords agreed with the reasons that the Court of Appeal gave in the case of R v R when deciding that a man could be found guilty of raping his wife.
Law reports
KEY FEATURE OF JUDICIAL PRECEDENT: - This helps judges and lawyers find past precedents and find out if there are binding precedents in existence. Lawyers are able to find the ratio decidendi of a case to follow and also the obiter dicta to persuade a judge. They contain essential information such as the judges in the case parties in the case and the list of refereed cases. The most authoritative set of law reports are those produced by the Incorporated Council of Law Reporting. Law reports can be found in newspapers and also be looking at the citation of the case . They can find what court in the hierarchy the cases is coming from.
Binding precedent
KEY FEATURE OF JUDICIAL PRECEDENT: - This is where decisions from the higher courts must be followed by lower courts. The Supreme Court have established a binding precedent for courts with similar cases. This is a concept of stare decisis to stand by the decision.
DPP v Smith
Ratio of cutting someone's hair without consent , cases with smiling facts would revive the same offences, this causes fairness to the defendant and their victim.
R v Brown
The Court of Appeal felt able to avoid following Brown and found Mr Wilson 'not guilty' because they said the facts were sufficiently different. The case of Brown still remains the law for all cases with similar facts
Hierarchy of Courts
There is a hierarchy of courts which means that the more experienced judges in the superior courts set precedents that judges in the inferior courts must follow if their cases are sufficiently similar. The hierarchy means that judges know what decision will bind them. The court hierarchy in the civil courts in descending order starts with the European Court of justice, followed by the Supreme Court then Court of Appeal (Civil division), High Court and finally County Court. Whereas in the Criminal division it starts in descending order with Supreme Court followed by Court of Appeal ( Criminal Division), Crown Court and finally Magistrates. The County Court, Crown and Magistrates Courts have no power to create precedent and must follow all precedent established by the higher courts. For example the QBD Division in the High court is higher than the Crown Court which is higher than the Magistrates, so it binds both of these. However it is lower than the Court of Appeal (Criminal Division) which is lower than the Supreme Court so it bound by the decision of both courts.
Donoghue v Stevenson
They established a principle of negligence that had been followed since 1932.
Caparo v Dickman
Three stage test was set up to make clearer the rules on working out ether duty of care was owed is owned or not.
BRB v Herrington and Addie v Dumbreck
Where it took decades for a new law on child trespassing to be passed because judges had to wait for a similar case to come along.
Rickards v Lothian
Where the court made their decision based on the rule of Rylands v Fletcher however Lord Moulton had established two reasons as to why the defendant wasn't liable.