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Judicial Precedent - Coggle Diagram
Judicial Precedent
avoidance techniques
overruling: where a court, in a later case, states that the precedent/legal rule decide in an earlier case is wrong
may occur when higher court changers a decision made by a lower court - supreme overruling court of appeal
can happen when supreme uses practice statement to overrule past decision of its own
reversing: where court higher in hierarchy (in an appeal) overturns the decision of lower court on appeal in same case
e.g. court of appeal may disagree with ruling of the high court and come to a different view of the law - in this situ the decision is reversed, the decision of appeal court will then be substituted for that of lower court
distinguishing: method to avoid past decision which would otherwise have to be followed - judge finds that the material facts of the present case are sufficiently different to allow distinction to be drawn between current case and past case - precedent of previous case is not binding -
doctrine of judicial precedent: where decisions of judges create law for future judges to follow - source of law is known as case law. remains a major source of law - important to consider whether other judges have to follow it depending on the court making the decision
decisions of judges were originally very important to development of common law
stare decisis: 'stand by what has been decided and do not unsettle the established'
judges are able to make decisions in court, either to interpret parliamentary law/decide a rule where there is no parliamentary law - decisions once reported can be looked at by other judges in later cases
if similar rules, then judge in later case can follow earlier decision - supports idea of fairness/provides certainty
ratio decidendi: 'reason for deciding'
precedent can only operate if legal reasons for past decision are known - at the end of every case there will be a judgement made by judge giving decision and legal reason for it
the judge is likely to give a summary of the facts of the case/review arguments, and then explain principles of law used to come to that decision
appeal cases where particularly important/complicated point of law - more than 1 judge may want to explain legal reasoning - can cause problems in later cases as each judge may have differing reasons
obiter dicta: 'other things said' - judges in future cases do not have to follow it/not binding precedent
sometimes judge will speculate on what the decision would have been if the facts of the case had been different - hypothetical situation is part of obita dicta and legal reasoning may be considered - not binding precedent
big problem - to divide ratio decidendi from obiter dicta as judgement is in continuous form - lawyers/judges will have to make their own decisions
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court structure
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criminal cases: supreme court > court of appeal (criminal division) > high court > crown court > magistrates court
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Ads & Disads
Advantages
certainty: judges follow past decisions, people know what the law is and how it is likely to be applied in their case
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flexibility: room for law to change with society - supreme court can use practice statement to overrule past cases that may not reflect society
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filling gaps: where there is no statute law on a topic, judges are able to fill gaps to ensure law does not stand still
Disadvantages
rigidity: following decisions of higher courts can make law too inflexible, previous bad decisions can be changed
complexity: nearly 1/2 million cases - may not be easy to find relevant case law & judgements may be long with no distinction
illogical distinctions: use of distinguishing to avoid past decisions can lead to hair splitting, leading to areas of the law becoming very complex
slowness of growth: reform of the law is not possible unless a case becomes before the courts to be decided
Practice Statement: created in 1966 by house of lords - allows house of lords now supreme court to depart from previous decisions. court of appeal does not have use of practice statement - although lord denning was an advocate of it
instead the court of appeal has a number of conditions for when they can depart from their own precedent - established in young v bristol aeroplane - if there are 2 conflicting precedents they can choose which one to follow - if there is another precedent from house of lords they must follow that one
if previous decision was made per incuriam which means judge did not pay attention to other relevant facts