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The doctrine of precedent involves "common law", otherwise known as case- law or judge made law. There are some areas of both civil and criminal law which have not been codified by parliament. For example the criminal law of murder and the civil law of negligence. These laws have developed through decisions made by judges in
A judge in the court room has to decide whether s/he is bound to follow a precedent that has already been made
The crime of murder has not been written in statute by parliament, instead, it has been created through a series of cases.
A superior court may overrule the decision of a court below it.
The HL/Supreme Court can use the Practice Statement 1966 to overrule one of their earlier decisions.
The C/A can overrule one of its previous decisions if it is in one of the three exceptions in Young v Bristol Aeroplane (1944)
A superior court may reverse the decision of a lower court in the same case. In Gillick v West Norfolk and Wisbech Area Health Authority (1985) the High Court found in favour of the Health Authority. This was then reversed by the Court of Appeal in favour of Mrs.Gillick. The case was reversed again by the House of Lords who found in favour of the Health Authority.
different cases. The doctrine of precedent tries to ensure there is a consistent application of these laws. The doctrine is based on the latin term "stare decisis" which means "stand by the decision."
Murder
the crime of murder is committed, where a person:
of sound mind and discretion (i.e. sane);
unlawfully kills (i.e. not self-defence or other justified killing);
any reasonable creature (human being);
in being (born alive and breathing through its own lungs - Rance v Mid-Downs Health Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936;
under the Queen's Peace;
with intent to kill or cause grievous bodily harm (GBH).
If the facts are sufficiently similar to an existing precdent, the judge should always follow the previous decision.
If the material facts of a case are significantly different from the facts of an earlier case, the judge in any court does not have to follow the precedent that is already established.
In R v Wilson the Court of Appeal distinguished from the House of Lords decision in R v Brown and others.
This need to be followed, but it might help the judge come to a decision.
A binding precedent is the part of the judgement that other judges have to follow. The ratio decidendi made by a judge high enough in the courts will bind future decisions of other judges.
Persuasive precedents include:
When a judge decides a case, they make a speech explaining their decision, this is the judgement.
During the judgement the judge will:
The court is not part of the hierarchy in England and Wales and so its decisions are not binding. However as many of it's judges are also members of the supreme court, their judgements are treated with great respect and often followed.
A decision is only binding on the same court or one below it in the hierarchy.
R
The defendant was charged with the attempted rape of his wife. At the time of the offence the couple had separated although no formal legal separation existed and neither party had petitioned for divorce.
The facts of the new case must be sufficiently similar.
This case was decided based on an American Authority.
A woman had been in labour for more than two days. Labour was obstructed and the lives of mother and child were at risk. There was evidence that in order to save both lives it was necessary to perform a Caesarean section on the mother.
Both she and her husband refused consent to the operation on religious grounds.
The health authority applied to the courts for permission to do the operation without the consent of the mother.
Held: In a situation in which the lives of mother and the unborn child would both be at risk if the operation were not performed, it was open to the court to make a declaration that the operation could be performed notwithstanding the mother's refusal of consent.
Oil was negligently spilt into Sydney Harbour. Some drifted under a wharf where the claimant was doing some welding. The oil caught fire and damaged several ships.
Held: The trial judge held the damage was foreseeable but the Privy Council reversed the decision as the type of damage was not foreseeable.
Other courts later followed this decision even though it was not binding.
He was found guilty.
This is an example of an ‘Original Precedent’. It is now illegal for a man to rape his wife.
This is why knowing cases is so important to lawyers, they can research decisions made in earlier cases and if the facts are
similar enough. speculate what might
happen in their own case.
In R v Howe (1987) the House of Lords (now known as the Supreme Court) set the precedent that duress is not a defence for murder. They also made an obiter dictum that duress should not be a defence for attempted murder. In the later case of R v Gotts, the Court of Appeal followed this Obiter Dictum.
Complete the questions on page 5-6 of your work booklet.
If a case has five judges hearing it, it is possible they will not all agree. The majority will set the binding precedent, but what the dissenting judge says may be persuasive.
The defendant was part of a gang
who were charged with murder. The defendant raised the defence of DURESS in that he was scared of what would happen to him if he did not do as the gang leader told him.
Held: Lord Hailsham decided that the defence of duress was not available for the crime of murder (overruling the earlier case of DPP v Lynch).
The defendant attempted to murder his mother after his father had threatened him. He was not allowed the defence of duress.
The Court of Appeal was persuaded by the obiter dictum from Howe.
The judges will research decisions in earlier cases which they may need to follow, if not they create "Original Precedent" when they decide the case.
The defendant branded his wife on the buttocks with his initials.
The defendant raised the defence of consent and the Court of Appeal allowed the defence as branding was similar to tattooing.
The Court did not think that Mr or Mrs Wilson got sexual pleasure from the act, therefore, the case was different to
R v Brown.
Q. Which Latin term describes the whole system of precedent?
A. Stare Decisis – stand by the decision
Q. Which part of a judge’s judgement is binding on future courts?
A. Ratio Decidendi
Q. Name a case where the judge was persuaded by a decision made in another country
A. Re S
Q. What is the translation of ‘obiter dictum’?
A. Other things said by the way
Q. What is the effect of obiter dictum?
A. Persuasive
The defendants were homosexual sado-masochists who inflicted injuries amounting to ABH & GBH on each other.
The defendants raised the defence of consent but the Court of Appeal & House of Lords decided that they could not raise the defence as:
- ‘Such violence is injurious to the participants and unpredictably dangerous’. (Lord Templeman)
The hierarchy of the courts is essential in the system of judicial precedent. The superior courts bind the inferior courts and some courts are bound by their own previous decisions. Precedent is based on judges following the previous decisions of "higher" courts to try and make the law more certain.
The European Court of Justice makes binding decisions on matters of European law. These must be followed in all member states of the EU. The UK is also part of the European Convention of Human Rights and since the Human Rights Act 1998; UK courts must also follow the decisions of the European Court of Human Rights.
(Formerly known as the House of Lords.)
This is the most senior court in England and Wales. Decisions made here bind all the courts below it.
What are the facts of the cases?
Are the facts "sufficiently similar"? Should the Precedent be followed?
How and WHY did the House of Lords avoid following their own precedent?
In 1966, the House of Lords passed the Practice Statement, which allows them to change one of their previous decisions when ‘it appears right to do so’.
The Lord Chancellor (Lord Gardiner) said:
‘Their lordships nevertheless recognise that the rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.’
A case reaches the Supreme Court. A case with very similar facts was decided there one year earlier.
1. Is the Supreme Court bound by their own decision? Why?
In London Street Tramways v London County Council (1898) it was established that the House of Lords was bound by their own decisions.
This gave the law certainty but meant the law could not be easily changed. If a House of Lords Decision needed to be changed, parliament was required to pass a new Act.
choose one and explain the facts.
2. Use relevant case law to explain your answer.
Extension: Give one strength and one weakness of using the practice statement.
3. Give one strength and one weakness of this system.
In groups of three, discuss the points below. One of you should argue FOR judge made law, one argue AGAINST the third is the scribe and decides who wins.
3. The previous decision was made per incuriam (carelessly or by mistake.)
1. Where there are two previous Court of Appeal decisions that conflict they can decide which to reject and which one to follow.
Lord Donaldson said this should only be used in "rare and exceptional cases."
The Court of Appeal is bound to follow the decisions of the Supreme Court. It is also bound by its own decisions.
However there are three exceptions as established in Young v Bristol Aeroplane (1944)
2. where there is a conflicting House of Lords decision they must follow this and abandon their own previous decision.
Should the Court of Appeal have more power to change the law?
Parliament is democratically elected so it would seem that they are the best people to make laws for the country.
Reasons for:
Reasons Against:
Yes – more cases reach the Court of Appeal than ever make it to the Supreme Court. This means that a law may need to be changed but it cannot because a case has not made it up to the Supreme Court.
No – If the Court of Appeal & the Supreme Court can both change the law this could lead to uncertainty if the law was to change too often.
No
Yes
Parliamentry sovreignty
Parliament elected- the people have chosen them to make the laws
Parliamentry intention.
Judges very experienced
Not all scenarios are covered by the law, which is why case law has to cover the gaps.
Allows law to be organic and meet the needs of an ever-changing society.
The High Court is bound by the court above and its own decisions but also binds the courts below it.
The inferior courts are not bound by their decisions, nor do they bind other courts. They do not set precedents they just apply the precedent of higher courts.
The Court of Appeal does not have to follow the decisions of the courts below it.
The divisional High Court binds itself and the High Court ordinary.
The second case is after the Practice Statement 1966, so the House of Lords can overrule the 1954 case.
The House of Lords can overrule their previous decision using the Practice Statement 1966.
The Court of Appeal is bound by the decisions of the House of Lords and must follow them if the case is similar.
Before the Practice Statement 1966, the House of Lords was bound by its own previous decisions.
If the facts are only slightly different, the court should not distinguish. The only way to avoid this precedent is to use one of the three exceptions from the case of Young v. Bristol Aeroplane (1944). Unless it was made per incuriam, it looks like they will have to follow their previous decision.
The Court of Appeal does not have to follow an obiter dictum but they may be persuaded by it.
The Court of Appeal should follow the decision of the Privy Council if it is a case heard by the Supreme Court judges who make it clear that they wish the law to change in England and Wales.
. The criminal division of the Court of Appeal is bound by its previous decisions but it does have a bit more freedom than the civil division, as it is more important to get criminal cases correctly decided.
1. Due to lack of parliamentary time, it may be important for some laws to be made by judges.
2. Judges are legal experts whereas politicians are not always.
3. Judges can change the law much quicker than parliament and it avoids the drafting problems associated with statutory interpretation.
4. Judges may be biased or out-of-touch with modern society.
5. If the judiciary were more representative of society, it may be more appropriate for them to be involved in law making.
Rigidity of the system of precedent prevents the law being changed.
Illogical distinctions may be made by judges in a case to avoid following a previous decision.
It is unpredictable and dependent on chance that a case will reach a high enough court that is able to change the law.
The ratio decidendi of a case may be difficult to find in the law report and misapplied in a future case.
It is undemocratic to allow judges to make laws.
The system creates certainty within the law.
The judgements give detailed practical rules for other judges to follow.
The outcome of a new case can be predicted from earlier decision so that it avoids unnecessary litigation.
Flexibility within the system allows the law to develop when necessary and it can be changed quicker than an Act of Parliament can be changed.