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THE DOCTRINE OF JUDICAL PRECDENT (L2) - Coggle Diagram
THE DOCTRINE OF JUDICAL PRECDENT (L2)
RATIO DECIDEN
'The legal reason for the decision'
The binding part of a judicial decision which creates legal precedent or a principle that is applied in similar subsequent cases
FINDING THE RATIO
Look for the rule upon which the decision is based
Sometimes, it is summarised in the headnote
You have to read the case
OBITER DICTA
Statements regarding the law that do not affect the outcome of the case
Not binding but can be persuasive
May persuade a judge in a subsequent case and become precedent
HOW DO JUDGES DECIDE CASES?
Two basic tasks of a judge;
1) establish the facts
2) apply the law to the facts
The process of applying the law to the case creates precedent
Judge listens to evidence and legal submissions of counsel
When faced with a case on which there is a relevent earlier decision, the judge has a choice;
If the facts are similar, follow the earlier case
Where the facts of the case before the judge are different to the earlier case, the judge can distinguish the earlier case and create a new precedent
If the earlier decision was made in a lower court, the judge can overrule that earlier decision of disagrees with the lower courts statement of the law
If the decision of a lower court is appealed to a higher one, the higher court may reverse the lower court decision in the same case.
DOCTINE OF PRECEDNT
Underlying the doctrine is a desire to promote certainty, allow the law to develop in an orderly way
Requires a court hierarchy
Process by which judges follow previously decided cases (stare decisis)
A system of court reporting also important
COURT HIERARCHY
HIGH COURT
Mainly a civil court (exception is the QBD criminal jurisdiction)
Consists of 3 divisions (Senior Courts Act 1981, s 5) and within divisions sit specialist courts - e.g., Business and Property courts
Queens Bench Division (Divisional Court of QBD hears criminal appeals, Administrative Court etc); Chancery Division (patents court etc); Family Division
Has both a first instance and appellant jurisdiction
First instance jurisdiction - hears cases with evidence
Supervisory jurisdiction - judicial review applications are considered by the QBD
Appellate jurisdiction - bound by the SC, CA and its own previous decisions subject to the principles in Young v Bristol Aeroplane Co Ltd
CROWN COURT
Bound by all higher courts
Court of first instance for indictable crimes
Decisions do not form binding precedent
Its own decisions are persuasive only - given serious consideration but not obligatory to follow
COUNTY COURT
Known as an 'inferior court' - lowest civil court
Bound by High Court, Court of Appeal, Supreme Court (House of Lords)
It is a court of first instance
Generally, decisions not reported
Does not produce binding or persuasive precedent
Not bound by own decisions
COURTS OF APPEAL - CIVIL
Normally bound by own decisions unless the 4 principles established in Young v Bristol Aeroplane; and R (on the application of Kadhim) v Brent London Borough Housing Benefit Review Board apply
HOW THE CA (CIVIL) AVOIDS ITS OWN PREVIOUS DECISIONS
Young v Bristol Aeroplane Co Ltd (1946) AC 163
There are two previous conflicting CA decisions
There is a supreme court decision which conflicts with an earlier court of appeal decision
The previous CA decision was made in ignorance of the relevant law
R (on the application of Kadhim) v Brent London Borough Housing Benefit Review Board (2001) QB 955
Aproposition of law was assumed to exist by an earlier court and was not subject to argument or consideration by the court
Binds lower courts (High court, County court)
Bound by higher courts
MAGISTRATES COURT
Lowest court in criminal jurisdiction
All criminal matters commence here - serious or indictable offences are then transferred to the Crown Court
Also deals with some family matters
Not bound by its own decisions
Does not produce precedent
Bound by all higher courts
SUMPREME COURT (FORMLY HL)
Traditionally HL (now SC) was bound by its own decisions
1966 Practice statement issued by Lord Chancellor confirmed that decision of the SC are 'normally binding but the SC can depart from a previous decision when it appears right to do so'
SC is bound by the decision of CJEU on matters of EU law
SC rarely departs from its own previous decisions
SC decisions bind all lower courts
Examples of cases in which it has departed from previous decisions
Hall v Simons (2000) 3 WLR 543
R v Caldwell (1982) AC 341
Rondel v Worsley (1969) 1 AC 191
R v G and another (2003) UKHL 50
Replaced the HL in 2009
COURT OF APPEAL CRIMINAL
Bounded by lower courts
Binds lower courts (Crown court, Magistrates court)
Normally bounded by own decisions but has a more flexible approach because its decisions relate to personal liberty
Does not follow previous CA (criminal) decision if to do so would cause injustice
Examples
R v Taylor (John William) (1950) 2 KB 368
R v Gould (1968) 2 QB 65
COURT HIERARCHY
England and Wales; Supreme court, Courts of Appeal; Civil and Criminal Divisions, High court; Divisional courts, Crown court, Magistrates court, County court
Tribunal system
The doctrine needs a hierarchy of courts, and a way of reporting judgements to work effectively
OTHER COURTS THAT INFLUENCE
EUROPEAN COURT OF HUMAN RIGHTS
Does not fit within UK legal hierarchy but s 2 of the Human Rights Act 1998 requires an English court to take into account cases decided by the ECtHR
Court established by the Council of Europe which is a separate organisation to the European Union
Hears cases alleging a breach of the European Convention on Human Rights
International Court based in Strasbourg
PRIVY COUNCIL (JCPC)
Final appeal Courts for some Commonwealth countries, mainly Caribbean and smaller Pacific Island countries
Has the hearing chamber in the supreme court building in London
Established by the Judicial Committee Act 1833
Rules of the precedent outlined in Williers v Joyce (No 2) (2016) UKSC 44
The starting point is that decisions of the JCPC cannot bind the courts of England and Wales / cannot override any decision of a court of England and Wales
But given that judges in JCPC are also justices of the supreme court and apply the common law, decisions are to be treated by all England and Wales courts as of great weight and persuasive value
The JCPC should regard itself as bound by decisions of the Supreme Court, particularly if applying the law of England and Wales
COURTS OF JUSTICE OF THR EUROPEAN UNION (CJEU)
European Union (Withdrawal) Act 2018, ss 2-7; European Union (Withdrawal Agreement) Act 2020
Post - Transition Period; Concept of Retained EU law relevant
CJEU caselaw persuasive
Any national acts adopted in implementation or transposition of EU law remain valid until national authorities decide to amend / repeal - political will
Decisions of the CJEU no longer binding on all UK courts
LAW REPORTING
All ER, Appeals cases, weekly law reports (WLR) etc
Now databases too Westlaw, LexisNexis
Need an accurate and effective law reporting system
Courts publish judgements with neutral citations
Need a mechanism to discover the legal principles established by judges
DOCTRINE
ADVANTAGES
Consistency
Flexibility
Certainty
Free market in legal ideas
DISADVANTAGES
Complexity and volume
Rigidity
Illogical distinctions
Unpredictable
Dependence on chance
Unsystematic progression
Lack of research
Retrospective effect
Undemocratic