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JUDICIAL PRECEDENT Stare Decisis '"let the decision stand"
JUDICIAL PRECEDENT
Stare Decisis
'"let the decision stand"
Binding precedent
Law that must be followed. Created by a higher court for a lower court to follow - binding part is the ratio decidendi.
Brown:
Sadomasochism case,
GBH cannot be consented to
.
Howe:
Duress isn't a defence to murder
Donaghue v Stevenson
Snail in a bottle case
Love thy neighbour principle, duty of care from manufacturers to consumers
Original Precedent
When a point of law involved in a case is unique and has not been considered before, may occur if the law doesn't provide for a modern development, rare today but when it does occur a new original decision is made and that decision will be binding.
Donaghue v Stevenson
Manufacturer owes a duty to the consumer
Bland
Hillsborough disaster -made original precedent by legalising 'passive euthanasia' (turning off life support*
Re S
Mother opposed c-section, court allowed them to give her one anyway - OP was allowing court to demand a C-section w/o consent if mother and baby are in danger
Persuasive Precedent
Does not have to be followed, however a judge can look at the legal principles in other cases and may be persuaded and decide to follow it
Decisions from other courts
eg commonwealth*
Re S
#
Obiter Dicta
'by the way' statements from judges
R v Brown
#
Wilson
Consenting activity within a marital home isn't th court's business*
AO3 = this contradicts brown
Lower Courts
Courts lower in the hierarchy's decisions
R v R
Man can rape his wife, HoL agreed with CoA
Decisions from the Privy Council
Not part of the hierarchy, but can be looked at
Wagon Mound
Boat leaked oil, ignited by sparks, caused damage to boats. Privy council said D will be responsible for damage that is reasonably forseeable
Dissenting Judgements
Judges that go against the decision of other judges
Candler v Crane Christmas & Co
Denning LJ delivered an important dissenting judgment, arguing that a duty of care arose when making negligent statements.
Avoiding a binding precedent
#
Distinguishing
Differences between the binding precedent and the facts of the case are highlighted
Dias
Injected themselves
Rogers
Distinguished from Dias because they didn't inject themselves
Reversing
Where an appeal court overturns the decision of a lower court. Higher courts are allowed to reverse an incorrect decision of a lower court (in the SAME CASE)
For example, the CoA may disagree with the ruling of the high court, and so reverse their decision
Sweet v Parsley
Tenants @ her house growing marijuana - decision reversed
Overruling
If a court overturns the precedent of same level or lower court . Where precedent is permanently overruled, it is permanently removed and the new decision forms a precedent.
Shivpuri overruled Anderton v Ryan
Overruling in the Court of Appeal
The CoA must follow ECJ and the Supreme Court. They create binding precedent for all courts below, however each decision of the CoA doesn't bind each other
Young v Bristol Airplane
Set out:*
Two conflicting decisions
CoA can choose which CoA decision they wish to overrule
Parmenter
Injured his baby - Savage or Sprat, Parmenter followed Savage and discarded Sprat
CoA decision conflicts with a Supreme Court decision
CoA must overrule their own decision and follow the supreme court decision
Fitzsimmons
Departed from decision in Steel v Camel
Per Incuriam (in error)
In this situation, the CoA can overrule their own decision has been made in error
Williams v Fawcett
Previous decision was per incuriam
Law has been misapplied and misunderstood
,
Criminal division only
Gould