P6 - Judicial Precedent
The doctrine of judicial precedent is based on stare decisis. That is the standing by of previous decisions. Once a
point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts.
In order for the doctrine of judicial precedent to work, it is necessary to be able to determine what a point of law is. In the course of delivering a judgment, the judge will set out their reasons for reaching a decision. The reasons which are necessary for them to reach their decision amount to the ratio decidendi of the case. The ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future cases containing the same material facts. It is important to separate the ratio decidendi from the obiter dicta. The obiter dicta is things stated in the course of a judgment which are not necessary for the decision.
Binding Precedent
A binding precedent is the part of a judgement that other judges have to follow.
The ratio decidendi (reason for deciding) made by a judge high enough in the hierarchy will bind future decisions of other judges.
Persuasive Precedent
A persuasive precedent need not be followed, but it may be helpful to a judge making a decision. If a judge decides to follow a past decision that was not binding, the decision is said to be persuaded. Persuasive precedents include:
• a decision of a lower court (R v R, 1991)
•a decision of a court outside the English hierarchy (Re S, 1992)
•an obita dicta (R v Howe, 1987)
•a statement of law made by a dissenting judge
Law Reporting
It is essential for judges to research decided cases before they make a decision in case a precedent binds them. Therefore, it is important that all cases are well documented. It is crucial to the operation of the doctrine of precedent that accurate records be kept of the decisions of the superior courts, because it must be made possible for the binding and persuasive precedents to be found.
Records of the decisions of the superior courts are kept in law reports. Until mid-19th century, reporting was published privately. Law reporting became more comprehensive and systematic when the Incorporated Council of Law Reporting was established in 1865.
It is responsible for a series of reports known as the Appeal Cases (AC), which covers cases from the House of Lords, Court of Appeal and all three divisional courts of the High Court.
Publishes a weekly law report.
There are still private law reports – All England Law Reports – published by Buttersworth since 1936
Some are published in the media – The Times, Guardian, Independent.
Journals – New Law Journal, Law Society Gazette
Records of decisions are also kept online – LEXIS, JUSTIS, WestLaw
•Name of case
•Court
•Judge’s name
•Date
•Summary
•Legal issues
•Decision
•Cases/statutes referred to
•Names of Counsel
•Judgement
The formal rule is that law reports must be vouched for by a barrister or solicitor with rights of audience who was present in court when the judgement was delivered – often demonstrated by the appearance of the person’s name at the end of the report. This confirms accuracy and authenticity.
point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts.
In order for the doctrine of judicial precedent to work, it is necessary to be able to determine what a point of law is. In the course of delivering a judgment, the judge will set out their reasons for reaching a decision. The reasons which are necessary for them to reach their decision amount to the ratio decidendi of the case. The ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future cases containing the same material facts. It is important to separate the ratio decidendi from the obiter dicta. The obiter dicta is things stated in the course of a judgment which are not necessary for the decision.
Binding Precedent
A binding precedent is the part of a judgement that other judges have to follow.
The ratio decidendi (reason for deciding) made by a judge high enough in the hierarchy will bind future decisions of other judges.
Persuasive Precedent
A persuasive precedent need not be followed, but it may be helpful to a judge making a decision. If a judge decides to follow a past decision that was not binding, the decision is said to be persuaded. Persuasive precedents include:
• a decision of a lower court (R v R, 1991)
•a decision of a court outside the English hierarchy (Re S, 1992)
•an obita dicta (R v Howe, 1987)
•a statement of law made by a dissenting judge
Law Reporting
It is essential for judges to research decided cases before they make a decision in case a precedent binds them. Therefore, it is important that all cases are well documented. It is crucial to the operation of the doctrine of precedent that accurate records be kept of the decisions of the superior courts, because it must be made possible for the binding and persuasive precedents to be found.
Records of the decisions of the superior courts are kept in law reports. Until mid-19th century, reporting was published privately. Law reporting became more comprehensive and systematic when the Incorporated Council of Law Reporting was established in 1865.
It is responsible for a series of reports known as the Appeal Cases (AC), which covers cases from the House of Lords, Court of Appeal and all three divisional courts of the High Court.
Publishes a weekly law report.
There are still private law reports – All England Law Reports – published by Buttersworth since 1936
Some are published in the media – The Times, Guardian, Independent.
Journals – New Law Journal, Law Society Gazette
Records of decisions are also kept online – LEXIS, JUSTIS, WestLaw
•Name of case
•Court
•Judge’s name
•Date
•Summary
•Legal issues
•Decision
•Cases/statutes referred to
•Names of Counsel
•Judgement
The formal rule is that law reports must be vouched for by a barrister or solicitor with rights of audience who was present in court when the judgement was delivered – often demonstrated by the appearance of the person’s name at the end of the report. This confirms accuracy and authenticity.
P6 - Avoiding Judicial Precedent
How Precedent Works
1.Follow
2.Overrule
3.Reverse
4.Distinguish
5.House of Lords Practice Statement 1966
6.Court of Appeal – Young v Bristol Aeroplane (1944)
1.Follow
2.Overrule
3.Reverse
4.Distinguish
5.House of Lords Practice Statement 1966
6.Court of Appeal – Young v Bristol Aeroplane (1944)
slides_-_methods_of_avoiding_judicial_precedent.ppt | |
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Practice Statement
Before 1966, the House of Lords was bound by its own decisions. This meant that the law was certain but it could not change – unless made ‘per incuriam’
In 1966, the House of Lords passed the Practice Statement, which allows it to change one of its previous decisions when it appears ‘right to do so’, e.g. R v Howe (1987) overruled DPP v Lynch (1973), and R v Shivpuri overruled Anderton v Ryan (1985).
Young v Bristol Aeroplane (1944)
The Court of Appeal should follow its own previous decisions. However, the case of Young v Bristol
Aeroplane (1944) set out three exceptions when it can depart from its own previous decisions:
• If two previous Court of Appeal decisions conflict, it may decide which to reject and which to follow.
• Where there is a conflicting House of Lords decision, the Court of Appeal must follow this and reject its own past decision.
•The previous decision was made per incuriam.
Before 1966, the House of Lords was bound by its own decisions. This meant that the law was certain but it could not change – unless made ‘per incuriam’
In 1966, the House of Lords passed the Practice Statement, which allows it to change one of its previous decisions when it appears ‘right to do so’, e.g. R v Howe (1987) overruled DPP v Lynch (1973), and R v Shivpuri overruled Anderton v Ryan (1985).
Young v Bristol Aeroplane (1944)
The Court of Appeal should follow its own previous decisions. However, the case of Young v Bristol
Aeroplane (1944) set out three exceptions when it can depart from its own previous decisions:
• If two previous Court of Appeal decisions conflict, it may decide which to reject and which to follow.
• Where there is a conflicting House of Lords decision, the Court of Appeal must follow this and reject its own past decision.
•The previous decision was made per incuriam.
P7 - Statutory Legal Rules
For this piece of work you will need to explain:
Stages in making an act of Parliament
Stages in making an act of Parliament
Public and Private Member's Bills
slides_-_the_legislative_process.ppt | |
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Doctrine of Parliamentary Sovereignty (and effect of EU Membership and Human Rights Act 1998)
slides_-_parliamentary_supremacy.pptx | |
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Delegated Legislation
Delegated or secondary legislation is usually concerned with detailed changes to the law made under powers from an existing Act of Parliament. Statutory instruments form the majority of delegated legislation but it can also include Rules or Codes of Practice.
What delegated legislation does:
Delegated legislation allows the Government to make changes to a law without needing to push through a completely new Act of Parliament. The original Act (also known as primary legislation) would have provisions that allow for future delegated legislation to alter the law to differing degrees.
These changes range from the technical, like altering the level of a fine, to fleshing out Acts with greater detail; often an Act contains only a broad framework of its purpose and more complex content is added through delegated legislation.
http://www.parliament.uk/about/how/laws/delegated/
http://en.wikipedia.org/wiki/Delegated_legislation_in_the_United_Kingdom
What delegated legislation does:
Delegated legislation allows the Government to make changes to a law without needing to push through a completely new Act of Parliament. The original Act (also known as primary legislation) would have provisions that allow for future delegated legislation to alter the law to differing degrees.
These changes range from the technical, like altering the level of a fine, to fleshing out Acts with greater detail; often an Act contains only a broad framework of its purpose and more complex content is added through delegated legislation.
http://www.parliament.uk/about/how/laws/delegated/
http://en.wikipedia.org/wiki/Delegated_legislation_in_the_United_Kingdom
unit_23_p7_template.docx | |
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M2
+/- of Parliamentary law-making | |
File Size: | 71 kb |
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slides_-_advantages_and_disadvantages_of_judicial_precedent.ppt | |
File Size: | 152 kb |
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