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Judicial Precedent (How Judges use Precedent (Overrule (Judge states the…
Judicial Precedent
How Judges use Precedent
Follow
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Used by Supreme Court in Davis v Johnson: Court of Appeal tried to challenge the rule established in Young v Bristol Aeroplane Co that they must follow their own previous decisions. Supreme Court followed Young
Distinguish
Judge states case facts are sufficiently different, so doesn't need to follow previous decision.
Two wives claimed a breach of contract against their husbands. Balfour v Balfour: unsuccessful claim because it was merely a domestic agreement. Merritt v Merritt: claim successful as agreement was made in writing
Overrule
Judge states the law in a previous case is wrong and should be overruled, establishing a new precedent for future cases
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Herrington v British Railways: overruled decision made in Addie v Drumbeck that occupiers liability is not owed to a trespassing child.
Reverse
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Gillick v Health Authority: Supreme Court reversed Court of Appeals decision that girls under 16 could not get contraceptives without parents consent.
There are two competing aims of the legal system: flexibility and certainty. Binding precedent allows for certainty and there are many ways to use precedent to allow flexibility
Binding Element
Judges’ speech
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A speech is made where they state their decision and explain why, as well as the legal principles they used
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Binding precedent
Can have a much bigger impact by creating a new offence: R v R, which made marital rape a crime, or whole new area of law!: Donoghue v Stephenson, which created the law of negligence. This is known as an original precedent as there was no previous laws on these issues
Usually effects only a small area of law: R v Howe, where it ruled the defence of duress cannot be used as a defence to murder
Obiter Dicta
Other things said by the judge in his speech, judges do not have to follow it but can if they wish (persuasive precedent)
Usually made when judges speculate a similar hypothetical situation: R v Howe, ruled duress should not be a defence to attempted murder, this was followed in R v Gotts
Persuasive Precedent
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- A decision of a court lower in the hierarchy: R v R, Supreme Court followed Court of Appeals ruling on marital rape
- Judicial Committee of the Privy Council: The Wagon Mound case defined the remoteness of damage test which is now used in every negligence case
- Decisions made by courts in other countries
- Judges sit in a panel of three in certain courts and may not all agree. The judge who disagrees with the ruling is described as "dissenting". The dissenting judgement is recorded along with the others.
Court Hierarchy
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Supreme Court
History
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19th Century: London Street Tramways v London City Council court ruled past decisions should always be followed even if this created 'injustice'
1966: Lord Chancellor issued a Practice Statement allowing Supreme Court to change the law if they believed an earlier case was wrong
Practice Statement 1966
Emphasised that while the Court is "free to depart from a previous decision", this freedom should be used sparingly in order to maintain certainty
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First major use was in 1972 in Herrington v British Railways (overruling Addie v Drumbeck): which caused occupiers liability to include a child trespasser, due to development of health and safety laws
Courts are reluctant to use PS and follow past decisions even when they consider them to be wrong: Lord Reid said the PS "does not mean that whenever we think a precedent is wrong we should reverse it"
Reluctant to use in criminal cases due to life altering penalities, not used until 1986: R v Shivpuri (overruling Anderton v Ryan): allowing someone to be guility of an 'impossible crime' as D thought he was smuggling heroin but was in fact smuggling vegetable powder
Court of Appeal
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Rule that Court is bound by past decisions was confirmed in Davis v Johnson, when they tried to ignore their past decision
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Law Reporting
In order to follow past decisions, there must be an accurate record of those decisions.
Early Reporting
16th century: cases were reported by individuals who sold the reports to lawyers. Accuracy varied enormously, but some are still used today
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