Sources of law Case law Doctrine of judicial precedent - stare decisis

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Judicial Precedent
Richard ONeill University of Hertfordshire
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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

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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 established courts are bound in
two ways

• higher and
• courts
• bind
• lower
• courts

• like cases are
• decided alike

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Hierarchy of the courtscriminal cases civil
cases
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Hierarchy of the courts
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Judiciary
Court Judge
House of Lords Lords of Appeal in Ordinary (Law Lords)
Court of Appeal Lord Justices of Appeal
High Court High Court (Puisne) Judges
Crown Court High Court Judges (QBD) Circuit Judges Recorders
County Court Circuit Judges District Judges
Magistrates Court District Judges (Magistrates Court)

• 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

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Hierarchy of the courtsHouse of Lords

• 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 (lt 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)

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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

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Appeal from Magistrates Court

• Appeal to Crown Court
• only available to defence
• conviction/sentence
• Appeal to Queens 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

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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

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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

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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

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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

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Precedent
Court Courts bound by this court Courts it must follow Whether bound by own decisions
European Court of Justice All other Courts None No
House of Lords All other English courts European Court No (Practice Statement 1966)
Court of Appeal Divisional Courts and all lower courts European Court House of Lords Yes (with some minor exceptions)
Divisional Courts High Court and all lower courts European Court House of Lords Court of Appeal Yes (with some minor exceptions)
High Court County Court and Magistrates Court All higher courts Usually follow each others decisions
Crown Court Magistrates Court - possibly All higher courts Unlikely a decision can create precedent
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Judicial Precedent

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

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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

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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

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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)

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Judicial Precedent

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