1 Doctrine of judicial precedent
1.1 Common law and equity are a body of judge made laws contained in decisions of the courts called judgements.
1.2 Judge – made law or case law is whereby judges follow the decisions of other judges. The doctrine of precedent is sometimes referred to as 'stare decisis': let the decision stand.
1.3 For case law to be workable as a source of law it needs to achieve consistency. Various 'rules' have therefore developed to achieve this aim.
1.4 ‘Rules’:
1.4.1 Only statements of law made by judges can form precedent. In turn these statements must be divided up into ratio decidendi (the reason for the decision) and obiter dicta (other comments).
Only the ratio decidendi forms the basis of precedent as it is this reasoning which is vital to his decision. Obiter dicta are statements of general law (or hypothetical situations) which are not necessary for the decision in the case and hence are not binding.
1.4.2 As the ratio decidendi of a case stems from specific facts if a precedent is to be followed in a subsequent case the facts of that case must be sufficiently similar.
1.4.3 The precedent must have been set by a court capable of creating precedent and not have been overruled.
1.5 Hierarchy of the courts:
(a) House of Lords – binds all lower courts but not itself (exceptional cases)
(b) Court of Appeal – binds all lower courts and itself
(c) High Court
Judge sitting alone – binds all lower courts not divisional courts
Judges sitting together – binds all lower courts and divisional courts
(d) Crown
Magistrates – bind no-one at all
County
1.6 A precedent ceases to be binding if:
(i) It has been overruled by statute or EU law or by a higher court.
(ii) It can be distinguished on the facts i.e. if the material facts are not the same.
1.7 Advantages:
(i) Detail.
(ii) Flexibility.
(iii) Consistency.
(iv) Fairness.
1.8 Disadvantages:
(i) Bulk.
(ii) Restricts judicial discretion.
(iii) reactive system.
(iv) Lack of democratic accountability.
1.9 Persuasive authority:
These are decisions (e.g. those of commonwealth countries, inferior courts and obiter dicta) which are not binding but may influence the decisions of judges in future cases.
写评论
