JUDICIAL PRECEDENT

essential elements
1. Ratio Decedendi
  1. REASON FOR DECIDING
    1. Legal reason for the decision.
    2. Most important part of the judgement
    3. Creates a binding precedent for future cases with similar facts to follow where the original was decide in a higher court
    4. R V BROWN
      1. S. 47 ABH & S.20 GBH
      2. Defence of consent cannot be relied on in offences under s.47 & s.20 OAPA 1861 where the injuries resulted in sadomachistic activities
2. Obiter Dicta
  1. THINGS SAID BY THE WAY (EXTRA COMMENTS MADE BY THE JUDGE)
    1. Rest of the judgement
    2. R V BROWN
      1. As obiter the House of Lords stated that defence of consent may be allowed in certain recognised situation such as tattooing, piercing and contact sport
3. Court Hierarchy
  1. Criminal courts
    1. Magistrates court
      1. Crown courts
        Division courts: Queens bench
        Court of Appeal: Criminal Division
        Supreme Court
  2. Civil Courts
    1. County court
      1. High Court
        Division Courts: Family & Chancery
        Court of Appeal: Civil Division
        Supreme Court
4. Law Reporting
  1. Without a system of law reporting, precedent would be impossible
  2. Following cases should be included in reports
    1. 1. All cases which introduce a new principle or a new rule
    2. 2. All cases which modify (change) an existing principle or rule
    3. 3. All cases which settle a question upon which the law is doubtful
    4. 4. All cases which for any reason are peculiarly instructive (particularly useful).
  3. Weekly Law Reports
  4. ICLR (Incorporated Council for Law) officially started to produce law reports - 1865
  5. The Law Reports
Avoiding Precedent
1. Distinguishing
  1. Finding the material differences between two cases and deciding if an earlier cases is sufficiently different to a current case to allow the judge to decide not to follow it
  2. King V Phillips & Broadman V Sanderson
    1. in King V Phillips the child was not injured but the childs tricycle was. The mother wasn't owed a futy of care but in Boardman V Sanderson, the claimants son was injured therefore the claimant was able to recover damages.
  3. R V Brown & R V Wilson
    1. R V Wilson was distinguished from Brown becuase the facts were different. In Wilson injuries were caused by love but in Brown injuries were cuased by sadomachistic injuries. however, some similarities between the two cases include the facts that they were both done in private and consent was given for the both of them
2. Overruling
  1. Occurs when a higher court overrules an earlier decision by a lower court.
    1. Candler V Crane Christmas Co (1951)
    2. Hedley Bryne V Heller (1963)
3. Disapproving
  1. To have an unfavourable opinion
  2. 2 ways
    1. Judges may disapprove of a precedent, which they are nevertheless bound to apply, in the hope that it will be reconsidered
      1. Elliot V C (1983) where Lord Goff disapproved of the House of Lord's decision in R V Caldwell (1981) which established objective recklessness
    2. A superior court may also disapprove of a precedent created by a lower court without actually over-ruling it
4. Young V Bristol Aeroplane
  1. Decisions by one division of the court of Appeal will not bind the other
    1. Decision in the Civil divison of the Court of Appeal will not bind in the criminal divison
  2. within each division decisions are normally binding, especially for the civil division
    1. only exceptions are:
      1. where previous decision was made in ignorance of a relevant law
      2. Two previous conflicting court of appeal decisions, the court can choose which one to follow and which one to reject
      3. Where there is a later HoL decision which overrules the previous decision
5. Practice Statement
  1. Instructions - issued by the House of Lords for the House of Lords
  2. HoL was traditionally bound by its own decisions unless the decision was made 'per incuriam' (in error)
    1. Law could only be changed by Parliament
      1. DPP V Smith (1961) HoL ruled that a person could be guilty of murder if a reasonable person would have foreseen that death or serious injury would result, however this could not be changed by the courts
  3. R V G and R (2003), overruling Caldwell (1981)
  4. Addiee V Dumbreck, overruling Caldwell (1981)
Evaluation
1. Advantages
  1. Certainty & Consistency: Important that the law should be predictable. Lawyers should be able to advise their clients of the likelihood of success. if facts are similar to an earlier case, the outcome will be predicted.
    1. in a case involving consent to harm: Brown or Emmett
  2. Flexibility (avoiding precedent): allows for original precedent to be made. Can overrule an earlier decisions
    1. Practice Statement allows the SC to rectify mistakes that it made in the past. E.g. R V G and R
  3. Flexibility (Original Precedent): sometime there is no law or common law about a particular issue. in such cases, the courts can develop the law much more quickly than parliament could.
    1. RE & A (2001) conjoined twins
  4. Law made by experts: Judges make laws because of their expertise in law
2. Disadvantages
  1. Rigidity: An unjust precedent that can lead to further injustices
    1. R V Brown's decision was applied unjustfuly to R v Emmett
  2. Slow pace of change: can take many years to change. Case has to be appealed for it to change
    1. Took HoL 22 years to overrule R V G and R
  3. Retrospective effect: Law is created, then applied to a situation that has already happened
    1. R V R - case on marital rape. When the act took place, martial rape was NOT illegal but when they went to court the law applied

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JUDICIAL PRECEDENT

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