precedent one
DESCRIPTION
PrecedentTRANSCRIPT
Doctrine (rules) Doctrine (rules) ofof
PrecedentPrecedent
Overview, Binding and Persuasive predent
PRECEDENT – a definitionPRECEDENT – a definition
Precedent is a major source of law –
…precedent is all the decisions I have made in the past that other judges now follow.
Precedent is also known as CASE LAWCASE LAW
PRECEDENT – andPRECEDENT – and Stare DecisisStare Decisis
It means – let the previous decision stand.let the previous decision stand.
It’s important because -Points of law decided in previous similar cases must be followed.followed.Earlier decisionsEarlier decisions influence later cases that are similar.Higher courts assume prioritypriority over lower courts.Higher courts therefore BINDBIND lower courts.The system is predictable, fair and consistent.Binding precedent is the most important part of Stare decisis - it provides consistency in law
A Level Law - Hierarchy of courts Civil Courts
High CourtBinds itself
And lower courts
Only court that canOverrule it’s own
decisions
County CourtMagistrates CourtDoesn’t bind any court
Divisional courtsBinds itself And lower courts
Court of Appeal Civil DivisionBinds itself And lower courts
Supreme CourtBinds itself And lower courts
European Court of JusticeBinds all
Courts but onlyOn European law
A Level Law - Hierarchy of courts Criminal Courts
Only court that canOverrule it’s own
decisions
Queens Bench Divisional courtBinds itself And lower courts
Court of Appeal Criminal DivisionBinds itself And lower courts
Supreme CourtBinds itself And lower courts
Magistrates CourtDoesn’t bind any court
Crown CourtDoesn’t bind any court
Stare DecisisStare Decisis – where’s it all written down?where’s it all written down?
For stare decisisstare decisis to work – judges need access to details of past cases.Earliest cases – 13th century.1865 – Council of Law ReportingCouncil of Law Reporting established.Most widely used modern record – All England Law All England Law Reports.Reports.LEXISLEXIS – electronic law reporting system.Huge increase in electronic systems and data-bases on-line through the internet.Web portal to cases and blogs on law - See Matrix Churchill blog.Case notes of A level law. LRC E law student.
PRECEDENT and thePRECEDENT and the ratio decidendiratio decidendi
It means the reason for decidingthe reason for deciding
If the obiter dictaobiter dicta explains how I got to my decision . . .
the ratio decidendiratio decidendiis the heart of the actual
decision itself The ratio decidendi is what later judges must follow - the essence of Stare decisis
The ratio decidendi is the KEY to the decision that has been made.
The ratio decidendi BINDSBINDS later judges hearing similar cases.
This especially the case in lower courts and the same court.
PRECEDENT andPRECEDENT and Obiter DictaObiter Dicta
It means other things said.other things said.
As I make my judgement, I may give supporting arguments and
points that explain how I arrived at my decision in order to make my
judgement clearer.
Obiter dicta may include…
my thought processes why I arrived at this
decision, and not another…
how the decision might affect future
situations
PRECEDENT –PRECEDENT – THE KEY TERMSTHE KEY TERMS
Precedent – all the decisions made in the
past that other judges now
follow
STARE DECISIS
OBITER DICTA RATIO DECIDENDI
Stand by what has been
decided – do not unsettle the established.
‘Other things said’ – judges in future cases do
not have to follow it.
The reason for the decision. Judges in the same or lower courts must follow where
facts are similar.
PROBLEMS
•Cases often end with more than one speech. Upto 9 in the Supreme Court.
•No sub-headings in judgments to help separate ratio decidendi from obiter dicta.