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Judicial Precedent Richard O’Neill University of Hertfordshire.

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Presentation on theme: "Judicial Precedent Richard O’Neill University of Hertfordshire."— Presentation transcript:

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 Sources of law Case 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: higherand courts bind lower courts like cases are decided alike

4 Hierarchy of the courts criminal cases civil cases Europea n Court of Justice House of Lords Court of Appeal (criminal division) Queens bench Divisional court Crown Court Magistrates’ court Europea n Court of Justice House of Lords Court of Appeal (civil division) Divisional courts High Court County court

5 Hierarchy of the courts Europea n Court of Justice House of Lords Court of Appeal (civil) Divisional courts (QB; Chancery; Family) High Court (QB; Chancery; Family) County court

6 Judiciary CourtJudge House of LordsLords of Appeal in Ordinary (Law Lords)* Court of AppealLord Justices of Appeal* High CourtHigh Court (Puisne) Judges* Crown CourtHigh Court Judges (QBD)* Circuit Judges Recorders County CourtCircuit Judges District Judges Magistrates’ CourtDistrict 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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10 Hierarchy of the courts House 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 (< 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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12 Appellate Courts Europea n Court of Justice House of Lords Court of Appeal (criminal; civil) Divisional courts QBD; Chancery; Family 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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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 Europea n Court of Justice House of Lords  Queens bench Divisional court Crown Court Magistrates’ court

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 Europea n Court of Justice House of Lords Court of Appeal Criminal Division  Crown Court

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 Europea n Court of Justice House of Lords Court of Appeal (civil division) Divisional courts  County court *

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 Europea n Court of Justice House of Lords Court of Appeal (civil division)  High Court

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 European Court of Justice House of Lords Court of Appeal Queens bench Crown Court Magistrates’ court European Court of Justice House of Lords Court of Appeal Divisional courts High Court County court

23 Precedent CourtCourts bound by this court Courts it must follow Whether bound by own decisions European Court of Justice All other CourtsNoneNo House of Lords All other English courtsEuropean CourtNo (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 courtsUsually follow each other’s decisions Crown Court Magistrates’ Court - possibly All higher courtsUnlikely a decision can create precedent

24 Judicial Precedent Key concepts stare decisisfollow ratio decidendioverrule orbiter dictumdistinguish binding precedentreverse persuasive precedentdissent judgmentsdisapprove

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 certaintyrigidity consistencybulk and complexity detail/precisionillogical distinctions/over-subtlety flexibility and growthslow growth time-saving practicality Important factors –legal reasons for past decisions must be known –accurate law reporting essential


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