Judicial Precedent

Judicial Precedent

1. Stare Decisis

   • Stand by what has been decided

2. Ratio Decidendi

   • Reason for the decision
   • Binding
   • R v Nedrick confirmed in R v Woollin, if a jury feels the defendant foresaw death or serious injury then oblique intention may be inferred

3. Obiter Dicta

   • Things said by the way
   • Persuasive
   • R v Howe, duress is not a defence for murder (ratio) or attempted murder (obiter)

4. Hierarchy of the Courts

5. Law Reports

   • Contains judge's decision
   • Only a small portion reach the law reports

6. Avoiding Precedent

   • Reversing
   • Overruling
   • Distinguishing
     • Difference between the cases
     • Balfour v Balfour (1919), living together, verbal agreement on money
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7. Advantages

   • Certainty
     • like cases are treated alike
     • Possible to predict decision and plan
     • Solicitors can advise
   • Consistency and fairness
     • Gives legal system a sense of justice
   • Flexible
     • Number of ways to avoid precedent
     • Can adapt to new situations
     • House of Lords can overrule
   • Responses to real life situations

8. Disadvantages

   • Too rigid
     • Lead to injustice
     • Law is hard to change because precedent must be followed
       • Most cases don't go to the House of Lords or Court of Appeal where they can be overruled
         • House of Lords reluctant to overrule
   • Slowness of growth in the law
     • May take many years for a case to challenge the precendent
     • Judges may want to change the law but they can't do so without a case
     • Permission is needed to go to the Lords
       • If refused can't challenge precedent
   • Too much case law and it is very complex
     • Half a million reported cases
       • Hard to find the law
     • Judgements are long and difficult to find ratio
     • Dodd's Case (1973) Court of Appeal said it was unable to find the ratio of a similar case from the Lords
   • Retrospective (Looking backwards)
     • People can be found guilty of a crime that wasn't a crime at the time
     • R v R tried to force his wife to have sex, couldn't be found of rape but later could be found of attempted rape
   • Undemocratic
     • Judges make law