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Judicial Precedent 1 - Coggle Diagram
Judicial Precedent 1
Judicial tools
Following
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The supreme court does not have to follow any courts in the UK. The court of appeal must follow precedents set by judges from the supreme court.
The high court and the crown court have to follow precedents from the supreme court and the court of appeal.
The country and the magistrates court do not make precedents, this means they must follow those made by all the courts above them.
Overruling
Overruling is where a court, in a later case, states that the precedent (or legal rule) decided in an earlier case is wrong.
Overruling may occur when a higher court changes a decision made in an earlier case by a lower court. E.g. The supreme court overruling a decision of the Court of Appeal. This may also happen when the Supreme Court uses the Practice Statement to overrule a past decision of its own.
Pepper (Inspector of Taxes) v Hart (1993)
The House of Lords ruled that Hansard (The record of what is said in Parliament) could be consulted when trying to decide what certain words in an Act of Parliament meant. This decision overruled in the earlier decision in Davis v Johnson {1979}, when the House of Lords had held that it could not consult Hansard.
Distinguishing
This happens where the judge finds that the facts of the present case are sufficiently different to allow a distinction between the present case and the previous precedent. In this case the precedent is not binding and so they don't have to follow it.
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Departing
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It is the same as overruling however it can only happen in the Supreme court and the court of appeal.
Reversing
Reversing is when a court that is higher up in the hierarchy turns a decision to a lower court that is in the same hierarchy to appeal in the same case.
An example of this could be that a court of appeal may disagree with the ruling of the High Court and come to a different view of the law. This reverses the decision that has been made by the high court. The decision that has been made by the court of appeal with be replaced for that of the lower court.
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Types of precedents
Persuasive
A previous decision or statement made in court that is not binding but can influence decision making in future cases
5 types
- Decisions of courts lower in the hierarchy (R v R)
- Decisions of the Judicial Committee of the Privy Council (the wagon mound(No 1))
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- Dissenting judgements- when judges disagree with the decision made by the majority of the judges
- Decisions of foreign courts- decisions made by courts in other countries
Original
A point of law that is being decided for the first time and therefore creating an original legal rule
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Binding
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These are previous decisions of courts that are higher in the hierarchy(or in the same level of court) on the same subject.
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