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Detailed Revision Notes on British Judicial Precedent

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682 words
682 words
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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 ...

... middle of paper ...

...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.

In this essay, the author

  • Explains that judicial precedent means the use of decisions made by judges in the past as a source of law.
  • Explains that if law on a particular source of law is not found in legislation, law will be found through common law reasoning.
  • Explains that if no act of parliament or dl to follow then judges look at the past decision of a similar case.
  • Explains that the hierarchy of courts is important to know as the lower courts must follow the past decisions of the higher courts.
  • Explains that the system of jp allows consistency and flexibility for law to develop.
  • Explains that the judge may decide to use similar rules in cases called reasoning by analogy.
  • Explains that a second case is only created when the facts of th the second are sufficiently similar to the original case.
  • Opines that the original decision had not been over- ruled (no longer good law).
  • Explains that obita dicta statements- if the situation was to be different treated with respect- high trees case.
  • Explains that the courts in england and wales operate a rigid doctrine of jp, where each court is bound to follow any decision made by an heirachy.
  • Compares the ecj's flexible approach to past precedents to that of the u.k.
  • Explains that it only hears 60 - 70 cases each year so doesn't have much opportunity to change the law.
  • Explains that the house of lords had the right to overrule past decisions but this flexible approach disappeared after the 19th century.
  • Explains that the house of lords decided that it was important to have certainty in law after the london street tramways case.
  • Explains that the law could not be changed to meet the social changing needs of society. dpp v smith changed the meaning of intention as mr for criminal cases in the criminal justice act.
  • Explains that the lord chancellor issued a practice statement in the london street tramways case.
  • Opines that previous ho of l decisions are binding but they should depart from it where it appears right.
  • Opines that the phrase is vague and no guidance is given to judges on how to determine when it is right to depart.
  • Explains that the huse of lords did not follow their own past decisions in addie v dumbreck.
  • Explains that in the early 70's, an earlier decision in re dowling was wrong but refused to change it.
  • Opines that miliangos case and pepper v hart were used in the 70's.
  • Opines that the house of lords cannot update the law satisfactorily overruling their past decisions. society demands a more thorough reform, meaning legislation rather than judicial reform.
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