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Detailed Revision Notes on British Judicial Precedent

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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 ...

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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.
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