Judicial Precedent.
Introduction.
§ Judicial precedent means the use of decisions made by judges in the past as a source of law, where a similar case arises the past decision is used as a guideline.
§ It is also known as case law.
§ It is a major source of law both today and historically.
§ If law on a particular source of law is not found in legislation - law will be found through common law reasoning.
§ That is to say that if no Act of parliament or Dl to follow then judges look at the past decision of a similar case to find a solution to the case before them
§ The hierarchy of the courts is also important to know as the lower courts must follow the past decisions of the higher courts- also known as biding precedent.
Stare decisis.
§ Jp is known as stare decisis where judges extend and modify existing rules.
§ This means `stand by what has been decided.
§ The system of JP allows for consistency and gives sufficient flexibility for law to develop.
Ration Descidendi.
§ Judge explains his reasons for a decision,
§ States the statement of facts
§ Summarizes the arguments of the lawyers
§ And gives an account of how the decision was reached.
Types of precedent.
1. Declaratory Precedent.
§ Where a point of law has not yet been decided.
§ Decisions will be made to form new precedent for future cases to follow.
§ Therefore judges do have a rolw in making law.
§ However they usually look at cases which are closet in principle- Called Reasoning by Analogy- the judge may decide to use similar rules.
2. Binding Precedent.
§ Only created when the facts of thhe second case are ...
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...w their own past decisions in Addie v Dumbreck.
§ They felt that certainty was the most important feature of English Law.
§ In the Early 70's- Shown in the case of Joned v sec of social services- where an earlier decision in RE Dowling was wrong but refused to change it.
§ However from the 70's onwards they were more willing to use it- Miliangos case and Pepper v Hart.
House of Lords and Criminal Cases.-
Practice statement stated that Criminal law needs to be certain
However it was first used in R V Shivuri which overruled the case of Anderton V Ryan .
**** Also not neglect the fact that, It has been suggested that law cannot be satisfactorily updated by the House of Lords overruling their past decisions- Society demands an more thorough Reform - Meaning legislation rather than Judicial reform.