Law Paper One
Parliamentary Law Making
Judicial Precedent
Lay People
Structure Of The Courts
Top: Supreme Court
Court Of Appeal
Criminal Division
Civil Devision
High Court
Queen's Bench Division
Chancery Division
Family Division
Crown Court
Magistrates' Court
County Court
Key Principles
Ratio Decidendi
The Reason For Deciding
The Binding Part Of The Judgement
Courts Higher Lower In The Structure Are Bound To Follow The Decisions Of The Higher Courts
Forms Of Precedent
Original Precedent
A Point Of Law Which Has Never Been Decided before
HUNTER AND OTHER V. CANARY WHARF
Binding Precedent
Precedent From Earlier Cases Which Must Be Followed, Even If The Judge Does Not Accept The Legal Prinicple
Persuasive Precedent
Non Binding Decisions Persuading A Judge To Accept The Legal Prinicple
Courts Lower In The Hierarchy
Decisions Of The Judicial Committee Of The Privy Council
R V. R
HOLLEY Followed By KARIMI AND JAMES
Obiter Dicta
A Dissenting Judgement
DONOGHUE V. STEVENSON
The Neighbour Test
GOTTS And HOWE
Decisions From Courts In Other Countries
R V. PARKS
Law Reports
Precedents Relies On Accurate, Comprehensive Law Reports
Guidance For Judges From Previous Decisions
Written By Specialist Lawyers
Authorised By The Judge Of The Case
Structure
Name Of Case
Court In Which It Was Heard
Name Of The Judges
Date Of Decision
Summary Of Facts And Legal Issues
List Of Cases And Statutes Referred To
Names Of Counsel Appearing
Judgement Given
Publishers
The Times
Guardian
The England Law Report
Avoiding Precedent
Overruling
Distinguishing
Disapproving
ANNS V. MERTON
MURPHY V. BRENTWOOD
When A Court Is Asked To Review Whether A Precedent Created By A Court Lower In The Hierarchy Is Correct In Law
ECJ And Supreme Court Can Overrule Their Own Previous Decisions
The Use Of The Practice Statement
YOUNG V. BRISTOL AEROPLANE
Per Incuriam
PEPPER V. HART Overrulled DAVIS V. JOHNSON
HEDLEY BYRNE V. HELLER Overruled CANDLER V. CRANE CHRISTMAS
When A Judge Can Use This Method To Avoid Following A Past Decision He Would Otherwise Be Bound By Precedent To Follow
MERRITT V. MERRITT And BALFOUR V. BALFOUR
R V. BROWN And R V. WILSON
Different Material Facts
Advantages And Disadvantages
Advantages
Certainty
Consistency And Fairness In The Law
Precision
Flexibility
Timesaving
People Know What The Law Is Which Has Benefits For All
. Lawyers Can Advise Their Clients Accurately
The Public At Large Know What Is And Is Not A Criminal Offence And Gauge Their Behaviour Accordingly
Cases That Have Similar Facts Will Decided In The Same Way
It Prevents Judges Making Random Decisions And Ensures Justice Is Achieved By Treating The Same Issue In The Same Way.
The Law Becomes Extremely Precise And Well- Illustrated And Is Built Up Over A Period Of Time Through The Variations That Make It To Court
Judgements Are Responses To Real Life Situations Which Set Out Legal Principles To Be Applied In The Future.
There Is Room For The Law To Be changed By The Courts
Out Dated Precedent Can Be Overruled
Allows The Courts To Deal With Situations Not Envisaged By Parliament
Once A Principle Is Clear, Few Are Likely To Clog The Courts Challenging The Law
Disadvantages
Rigidity
Complexity
Illogical Distinctions
Slowness Of Growth
Undemocratic
Retrospective Effect
Unlike Parliamentary Law Which Comes Into Force On A Set Date, Judge-Made Law Takes Effect On The Case In Question.
This Can Be Considered Extremely Unjust Because At The Time,Those Involved Would Have Considered Themselves To Be Acting Lawfully.
R V. R
The Basis Of This Criticism Is That Judges Are Not Elected And Constitutionally, It Is Parliament That Should Make The Law, Judges Interpret It
Judges Do Make Law To A Greater Or Lesser Extent But There Is No Redress Should We Feel Decisions Made Are Bad, Unlike With Our Politicians That We Can Vote Out Every 5 Years.
Allowing The Court Of Appeal Flexibility In Following Its Own Previous Decisions As The System Of Precedent Does Not Allow For Swift Change
Distinguishing Allows For ‘Hair- Splitting’ To Avoid A Precedent You Don’t Want To Follow.
Judgements Are Long And It Is Sometimes Difficult To Find What The Ratio Is
R V. BROWN
Given The Time Taken And Hurdles To Be Jumped For Cases To Make It To The Most Significant Appellate Courts, If Bad Decisions Are Made By Those Courts, We Are Often Stuck With Them For A Long time.
The Supreme Court
Flexible View On Its Own Past Decision
LONDON STREET TRAMWAYS V. LONDON COUNTRY COUNCIL
Certainty In The Law Is More Important Than Individual Hardship
DPP V. SMITH
Parliament Changed The Law In This Regard In The Criminal Justice Act 1967
Practice Statement 1966
Changing The Rule In LONDON STREET TRAMWAYS
Can Depart From Previous Decisions When It Appears Right To Do So
Only Applicable To The Supreme Court
HERRINGTON V. BRITISH RAILWAYS BOARD
A Duty Of Care On British Rail To look After Their Fences
Authority Changed From ADDIE V. DUMBRECK
PEPPER V. HART Overruled In DAVIS V. JOHNSON
The Court Of Appeal
An Appeal Court That Has Greater Influence On The Changing Of Precedent As It Hears Far More Cases Than The Supreme Court
Has To Follow The Supreme Court Decisions
Lord Denning Tried To Alter This
BROOME V. CASSELL & CO
MILIANGOS
Bound By Its Own Decisions
YOUNG V. BRISTOL AEROPLANE COMPANY
The Court Of Appeal Can Choose Between Its Own Conflicting Decisions
If Its Own Previous Decision Has Been Disapproved By The Supreme Court, It Should Not Be Followed
The Court Of Appeal Is Not Bound By Decisions Of Its Own Made Per Incuriam
Used In Rare And Exceptional Cases
RICKARDS V. RICKARDS
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