The Hierarchy of English Courts and the Doctrine of Precedent

The hierarchy of courts When a point of European Law is involved, the decisions of the European Court of Justice are binding on all courts in England and Wales The House of Lords used to be the highest court in England and Wales; Hierarchy: The Supreme Court Court of Appeal Divisional Courts High Court Crown Court Inferior courts: Magistrates’ Court, County Court, Tribunals

Inferior courts Magistrates’ courts Lower first-instance criminal courts with limired jurisdiction i family and administrative law matters Magistrates or justices of the peace (lay judges, sit in groups of three, assisted by legal clerks who provide advice on points of law) About 95% of all criminal cases in England and Wales are tried in the Magistrates’ Courts, which deal with summary offences (less serious ones) In certain circumstances, the court may commit an accused person to the Crown Court for more severe punishment County courts Inferior civil courts that have jurisdiction in nearly all civil matters

Superior courts The Crown Court The High Court of Justice The Court of Appeal The UK Supreme Court

The Crown Court Formerly called assizes and quarter sessions Higher criminal court of first instance with exclusive jurisdiction for trials on indictmentappelate jurisdiction - deals with indictable offences (more serious ones) Appelate jurisdiction A professional judge and a jury of twelve people decides whether the defendant is guilty of the crime he or she is charged with

High Court of Justice Civil court with original jurisdiction in civil matters and jurisdiction for appeals against judgments delivered by lower courts; Three divisions: 1.Family Division – for family-related disputes, wardship cases and cases relating to children under the Children Act 1989 2.Chancery Division – mortgages, copyrights and patents 3.Queen’s Bench Division – contract and tort claims The Divisional Court of the Queen’s Bench hears criminal appeals from magistrates’ courts and those concerning extradition Claim criterion

The Court of Appeal Civil and criminal division Panels of (usually) three justices hear appeals against decisions of the county courts and the High Court in civil matters, and the Crown Court in criminal matters

The Supreme Court The highest appeal court in the UK until 2009 was the House of Lords. From 1 October 2009, the Supreme Court of the United Kingdom assumes jurisdiction on points of law for all civil law cases in the UK and all criminal cases in England and Wales and Northern Ireland. Dicsretionary power to choose which appeals to hear

Read the text on pp. 61-63 carefully and decide whether the following statements are true or false. If false, provide the correct information. 1. The jurisdiction of county and magistrates’ courts may differ from court to court. 2. County courts can hear claims in tort regardless of the amount of claim. 3. Magistrates’ court have no civil jurisdiction whatsoever. 4. Trials on indictment start in the Crown Court. 5. There is only one Crown Court for England and Wales. 6. You must have experience as a solicitor or barrister in order to be appointed to judicial office. 7. The Supreme Court hears appeals in civil and criminal matters for the whole of the United Kingdom. 8. The same case may come under the jurisdiction of both a county court and the High Court of Justice.

Match the verbs in the left column with the nouns in the right column Match the verbs in the left column with the nouns in the right column. Multiple matches may be possible. appear sit a. a sentence deliver b. damages award c. a verdict issue d. an appeal pass e. a search warrant render f. an offender commit g. for trial convict h. in court hear i. a judgment prosecute

Sort the noun+verb collocations from previous exercise into the following table according to who can perform the actions expressed in the collocations. a court a judge a jury a solicitor/ barrister a prosecutor

Replace the underlined expressions with expressions from the text. 1. In magistrates’ courts, decision are made by magistrates sitting in panels of 2 or 3. 2. The High Court of Justice can hear appeals against decisions of lower courts. 3. Jurisdiction in civil procedures may depend on the amount of damages sought in a case. 4. The Crown Court has original jurisdiction for serious criminal offences. 5. County courts may have a limit as to the amount of damages they can order to be paid. 6. An appellate court can consider appeals against a judgment of a lower court.

The Doctrine of Precedent

Precedent A previous decision made by a superior court on similar facts - it requires that in certain circumstances a decision made on a legal point made in an earlier case must be followed The doctrine of precedent (stare decisis) The hierarchy of courts

The doctrine of precedent Similar cases must be treated alike The Latin maxim stare decisis (stand by previous decisions) is the basis of the doctrine of precedent The doctrine is: All courts are bound to follow decisions made by courts above them; Appellate courts are normally bound by their own past decisions

Types of precedents Original Declaratory Binding Persuasive

Original Precedent Where there is no previous decision on a point of law that has to be decided by a court, then the decision made in that case on that point of law is an original precedent When the court has to form an original precedent, the court will reason by analogy (considering the cases that are nearest to it in principle)

Declaratory precedent The judges in the case merely declared what the law has always been

Binding Precedent A past decision is binding if: The legal point involved is the same as the legal point in the case now being decided The earlier decision was made by a court above the present court in the hierarchy, or a court at the same level which is bound by its own past judgments The point was argued in the case

Persuasive Precedent The one which the court will consider and may be persuaded by, but which does not have to be followed, such as obiter dicta, a dissenting judgment or ratios from decisions by courts lower in hierarchy

Elements of a judgment findings of material facts; statements of the principles of law; the decision based on these two.

Ratio decidendi The reason for the decision The principles of law that are essential to the decision Defined as ‘any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion’.

Obiter dicta Statements in passing Statements of principles of law that are not relevant to the decision Can be persuasive

Translate the following: It is not the entire decision of a judge which creates a binding precedent. When a judgment is delivered the judge will give the reason for his decision (ratio decidendi) and it is this principle which must be followed in future cases. Thus, only the principles of law that are essential to the decision are the ratio decidendi ('reason for deciding'). Judges sometimes make general comments in the course of their judgment to explain a particular point. Remarks made „by the way“are known as obiter dicta.

Departing from a precedent Where a judge considers that the material facts of the case are sufficiently different from an earlier case, he is distinguishing the case and may refuse to follow the earlier decision. Distinguishing is a major factor in allowing the doctrine of precedent to remain flexible. To distinguish a case – utvrditi bitne razlike između predmetnog slučaja i presedana

Overruling When a court of appeal is considering a precedent, it may approve the principle of law established in the case, or it may disapprove the precedent. It can overrule the principle of law established in a precedent by an inferior court. to overrule a decision – odbaciti prijašnju sudsku odluku

Reversing A decision is said to be reversed when a higher court, on appeal, comes to the opposite conclusion to the court whose order is the subject of the appeal. to reverse a decision – promijeniti (preinačiti) sudsku odluku

Law reports The reasons for decisions of past cases must be properly recorded in order for a system ofprecedent to operate effectively From 1537 to 1863 various private law reports were used Since 1863 the Incorporated Council of Law Reporting has produced the official law reports Judgments of superior courts are available on their official sites on the Internet

Vocabulary Binding precedent – obvezujući presedan Persuasive precedent – neobvezujući presedan, preporučljivi presedan Court of Appeal – Prizivni sud Case law – sudska praksa Divisional courts – sudski odjeli Visokog suda Law Reports – zbirka sudskih odluka Dissenting judgment – sudska odluka uz izdvojeno mišljenje Ratio decidendi – razlog za donošenje odluke Obiter dicta – usputne primjedbe Overrule a decision – odbaciti (prijašnju) sudsku odluku Reverse a decision – promijeniti sudsku odluku, preinačiti odluku

Read the text carefully and discuss the following with a partner: Explain the concept of stare decisis. What is the difference between a binding precedent and a persuasive precedent? Explain the concept of the original precedent. Explain the difference between obiter dicta and ratio decidendi. How can a precedent be avoided? Where are judicial decisions recorded?

Replace the underlined words and phrases with synonymous words and expressions: 1. The courts are compelled to apply the precedent set by a higher court. 2. The Supreme Court will normally regard its own past decisions as obligatory. 3. The judge may note a case cited as precedent by counsel as materially different from the one at trial. 4. The principle of following the decisions of higher courts is fundamental to case law. 5. Since 1863 the Incorporated Council of Law Reporting has produced the official editions of laws.

Match the words and phrases with their definitions: LEGAL TERM DEFINITION 1. stare decisis  a. statement of a judge on a point not directly relevant to deciding the case before him 2. obiter dicta      b. The most important legal principle on which the decision is based 3. ratio decidendi     c. Example to be followed; decision of a higher court that has to be followed    by lower courts 4. precedent d. to stand by a decision

Thank you for your attention!