Judicial Precedent

1. Judicial Precedent Richard O’Neill University of Hertfordshire

2. Sources of law • Do judges make law? • “..judges do not make law, but merely, by rules of precedent, discover and declare the law that has always been there…” William Blackstone • Case law and precedent doctrine of judicial precedent- stare decisis et non quieta movere (stare decisis) stand by the decision and do not unsettle the established • Case law and precedent • advantages • disadvantages

3. higher and courts bind lower courts like cases are decided alike Sources of lawCase law Doctrine of judicial precedent - stare decisis et non quieta movere (stare decisis) stand by the decision and do not unsettle the establishedcourts are bound in two ways:

4. Hierarchy of the courtscriminal casescivil cases

5. Hierarchy of the courts

6. Judiciary • Roles of a judge • to manage case • ensure rules of evidence followed • decide sentence in criminal cases/award remedy in civil cases • decides verdict in some cases • decide appeals to higher courts * Superior Judges

10. Law Lords 12 Lords of Appeal in Ordinary Life Peers sit in the Appellate Committee of the House of Lords permission required for a case to reach HL Headed by lord Chancellor 5 or 7 Law Lords hear cases (criminal and civil) where a point of law is involved (< 100 per year) decisions binding on all other courts considers matters of law not bound by own decisions - can change a legal rule if the point comes before it again (1966 Practice Statement: power to depart from previous decisions/overrule them when deemed right to do so) Hierarchy of the courtsHouse of Lords

12. Appellate Courts • Divisional courts of the High Court - QB; Chancery; Family • hear appeals from lower courts • 2/3 judges sit to hear appeals QBD hears applications for judicial review ; appeals from Crown Court and Magistrates’ Court; applications for habeas corpus • Court of Appeal • criminal division • deals with appeals from Crown Court • Lord Justices of Appeal • headed by Lord Chief Justice • civil division • deals with appeals from all three divisions of High Court • Lord Justices of Appeal • headed by Master of the Rolls

18. Appeal from Magistrates’ Court • Appeal to Crown Court • only available to defence • conviction/sentence • Appeal to Queen’s Bench Divisional Court • case stated appeals • point of law • Appeal to House of Lords • only if permission (leave) given • Only of a point of law of general public interest

19. Appeal from Crown Court • Appeal to Court of Appeal • defendant • conviction/sentence • only if permission (leave) given by Court of Appeal (typically by single judge) • prosecution • point of law • leniency of sentence • Appeal to House of Lords • only if permission (leave) given • only of a point of law of general public interest

20. Appeal from County Court • Set out in Part 52 Civil Procedures Rules • * ‘Multi-track’ cases (involving large sums or complex points of law) right of appeal to the Court Of Appeal • necessary to have permission to appeal

21. Appeal from High Court • Administration of Justice Act 1969 - cases can ‘leap-frog’ directly to the House of Lords where case is: • subject to an existing binding precedent of CA or HL • involves a matter of statutory interpretation • permission to appeal must be given by House of Lords

22. Appeal to European Court of Justice • Laws which unaffected by European Law – House of Lords supreme court • Article 234 Treaty of Rome - cases can be referred directly to the European Court of Justice (ECJ) by any English court if a matter of European Law is involved • Judges sit in Luxembourg aided by Advocates-General to advise on the law • ECJ prepared to overrule previous decisions if feel it necessary

23. Precedent

24. Judicial Precedent • Key concepts stare decisis follow ratio decidendi overrule orbiter dictum distinguish binding precedent reverse persuasive precedent dissent judgments disapprove

25. Judicial Precedent • Ratio decidendi • that part of the decision which is binding is termed the ratio decidendi – the reason for the decision – the part of the judgment that creates law – identified by lawyers looking at the judgement later • Orbiter dicta • things ‘said by the way’ – other parts of the judgement that do not create law • Binding precedent – a precedent that must be followed – a legal principle made in a superior court – depend on sufficiently similar facts (‘on all fours with’) • Persuasive precedent – not binding but judge may consider and be persuaded to follow

26. Judicial Precedent • Binding precedent • must be followed • Avoiding an awkward precedent • distinguishing; re-defining a ratio • Persuasive precedent • courts lower in hierarchy • orbiter dicta statements • a dissenting judgment • decisions of the Judicial Committee of the Privy council • decisions from courts in other countries

27. Judicial Precedent • Law-making • Use of precedent to create law and develop legal principles • Law of contract • rules come from decided cases • Tort of negligence • major area developed by case law • Donoghue v Stevenson (1932) • nervous shock • Criminal law • development of areas such as ‘intention’ • new crimes • R v R (1991) • Medical law • Gillick v West Norfolk & Wisbech HA (1985) • Airedale HA v Bland (1993) • Re A (children) (2000)

28. Judicial Precedent • Advantages and Disadvantages AdvantagesDisadvantages certainty rigidity consistency bulk and complexity detail/precision illogical distinctions/over-subtlety flexibility and growth slow growth time-saving practicality • Important factors • legal reasons for past decisions must be known • accurate law reporting essential