Detailed Revision Notes on British Judicial Precedent

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.