University of Hertfordshire Judicial Precedent Richard O’Neill University of Hertfordshire

Sources of law Do judges make law? Case law and precedent “..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 advantages disadvantages

Sources of law Case law. Doctrine of judicial precedent 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: higher and courts bind lower like cases are decided alike

Hierarchy of the courts criminal cases civil cases

Hierarchy of the courts

Judiciary Roles of a judge to manage case 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 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

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)

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 headed by Master of the Rolls

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

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

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

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

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

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 High Court County Court and Magistrates’ Court All higher courts Usually follow each other’s decisions Crown Court Magistrates’ Court - possibly Unlikely a decision can create precedent

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

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

Judicial Precedent Binding precedent Avoiding an awkward 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

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)

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