Presentation on theme: "UNIT 5 The Hierarchy of the Courts The Doctrine of Precedent."— Presentation transcript:
1 UNIT 5The Hierarchy of the CourtsThe Doctrine of Precedent
2 The Hierarchy of the Courts European Court of JusticeSUPERIOCOURTSCIVIL CRIMINALJURISDICTIONSupreme Court of the UKCourt of Appeal(Civil Division)Court of Appeal(Criminal Division)High Court (Family, Chancery, and Queen’s Bench Divisions)High Court(Queen’s Bench Division)Crown CourtCounty courtsMagistrates’ courts
3 Hierarchy of Civil Courts The Supreme Court of the UK – the highest court of appeal The Court of Appeal – appeals from the High court and county courts The High Court of Justice – first instance court for complex cases, defamation; second-instance court for appeals from magistrates’ courts Magistrates’ courts – first-instance court for family cases
4 Hierarchy of Criminal Courts The Supreme Court of the UK – the highest court of appeal The Court of Appeal – appeals from the Crown court and the Hight Court of Justice (Queen’s Bench Division) The High Court of Justice – Queen’s Bench Division – appeals from the Crown Court or magistrates’ courts Crown Court – first-instance court for serious criminal cases (indictable offences) Magistrates’ courts – first-instance court for summary offences
5 Courts of England and Wales Use the diagram to answer these question.What are the two main areas of jurisdiction of English courts?Which courts exercise jurisdiction in both areas?Which are the superior courts in England and Wales?Which court is the last resort court?Which division of the High Court exercises the criminal jurisdiction?Do county courts hear all civil cases?Which court is superior to the Supreme Court of the UK?
6 Courts of England and Wales Match the courts and their definitions: Court of Appealmain civil court in England and WalesCounty Courtcourt 0f both civil and criminal jurisdiction to which a person may go to ask for an award or a sentence to be changedMagistrates’ Courthighest court of appeal in both civil and criminal casesCrown Courtcourt which hears local civil casesHigh Courtcourt, formed of a circuit judge and a jury, which hears criminal casesSupreme Court of the UKcourt presided over by magistrates
7 Courts of England and Wales - Key Court of Appeal =court of both civil and criminal jurisdiction to which a person may go to ask for an award or a sentence to be changedCounty Court =court which hears local civil casesMagistrates’ Court =first instance criminal and civil court presided over by magistratesCrown Court =court, formed of a circuit judge and a jury, which hears criminal casesHigh Court =main civil court in England and WalesSupreme Court of the UK =highest court of appeal in both civil and criminal cases
8 Royal Courts of Justice It housesa) The Court of Appeal of England and Walesb) The High Court of Justice of England and Wales
9 How do courts contribute to the development of English law? A – The development of common law(many principal doctrines have been established through casesdetermined in the higher courts - case law)B – Statutory interpretation(courts play a crucial role in the interpretation of the statutesenacted by the Parliament)C – Procedural law(courts make important contributions to the development of theprocedures which the courts follow)
10 The Doctrine of Precedent THE DOCTRINE OF PRECEDENT = STARE DECISIS (Latin – stand by the decision) - policy of courts to abide by or adhere to principles established by decisions in earlier cases consistency and fairnessplays a crucial role in the English legal system because common law is an important source of law in the English legal systemdistinguishes common law from civil-law systemsunder stare decisis, once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction- The crucial thing – HIERARCHY OF COURTS
11 Judicial Precedent Binding on - all courts of inferior jurisdiction a judicial decision that serves as a rule for future determinations in similar or analogous cases - an authority to be followed in courts of justicecan be made only by superior courtsthe source of law where past decisions of the judges create law for future judges to follow = CASE-LAW or JUDGE MADE LAW – a major source of law both historically and todaysome areas of law (such as the law of torts) are found mainly in casesBinding on - all courts of inferior jurisdiction+ frequently followed by courts of equal status(Court of Appeal has to follow its past decisions)-criminal courts are traditionally more relaxed on stare decisis, especiallywhere an individual’s liberty is at stake – concerned more with points of fact
12 Major problem – to divide ratio decidendi from the obiter dicta Judicial precedentA judgement consists ofA Ratio decidendi = ‘the reasons for deciding’- principle of law on which the decision is based- precedent can only operate if the legal reasons for past decisions areknown (at the end of the case – a judgement –a speech of the judgegiving the decisions and explaining the reasons for the decision) –BINDINGB Obiter dicta – ‘other things said’- the remainder of the judgement – remarks or observations made bythe judge – NON-BINDINGMajor problem – to divide ratio decidendi from the obiter dicta
13 Judicial precedentA) Original precedent – when there are no past cases for the judge to base his decision on, he will look at cases which are the closest in principle and he may decide to use similar rules – this way of arriving at judgments is called reasoning by analogyB) Binding Precedent – a precedent from an earlier case which must be followed (even if the judge in the later case does not agree with the legal principle)The facts must be sufficiently similar.The court must be more senior or on the same levelC) Persuasive Precedent – a precedent that is not binding on the court, but the judge may consider it and decide that it is a correct principle to followSources:Ratio of courts lower in the hierarchy - Privy Council decisions Obiter Dicta Statements - Dissenting Judgments Decisions of courts in other countries (eg. Scotland, Ireland)
14 Point of law vs. Point of fact An issue that is within the province of the judge, as opposed to the jury, because it involves the application or interpretation of legal principles or statute ( that are potentially applicable to other cases) – a legal matter involving primarily proof of evidence (the rules of precedent apply only to rulings on point of law)POINT OF FACTAn issue that involves the resolution of a factual dispute or controversy and is within the sphere of the decisions to be made by a jurypoint of fact requires an interpretation of circumstances surrounding the case at hand
15 Distinguishing, overruling and reversing (ways of avoiding precedents) I DISTINGUISHING – a method which can be used by a judge to avoid following a past precedent – facts are sufficiently different – not bound by the previous case II OVERRULING – when a higher court decides not to follow a previous decision of a lower court because it thinks it was wrongly decided (a higher court overturns and changes a precedent) III REVERSING – a higher court overturns the DECISION of a lower court on appeal (in the same case) because it disagrees with it (and then it reverses it)
16 Advantages and disadvantages of precedents Think about different advantages and disadvantages of the doctrine of precedent.Discuss your ideas in pairs.
17 Advantages of precedent A) Certainty(since courts follow past decisions, people know what the law is andhow it is likely to be applied on their case)Consistency and fairness in the law(it is just and fair that similar cases are decided in the same way)Precision(principles of law are set in actual cases – the law becomes very precise)D) Flexibility(Supreme Court can change the law by overruling cases)E) Time-saving(where a principle has been established, cases with similar facts are unlikelyto go through the lenghty process of litigation)
18 Disadvantages of precedent A) Rigidity(in time fixed principles may not correspond to changing circumstances - inflexible law, bad decisions may be perpetuated)B) Complexity(nearly half a million cases – not easy to find the relevant case law; long judgments with no clear distinction between comments and the reasons for decision)Illogical distinctions(differences between some cases may be very small and appear illogical)D) Slowness of growth(some areas of law are unclear or in need of reform – few cases appealed as far as the House of Lords/Supreme Court)
19 Law reportingLAW REPORTS – an accurate record of the past court decisions(published volumes)has existed in England and Wales since 13th centuryaccuracy of reports - one of the factors in the development of the strict doctrine of precedentnowadays newspapers and journals also publish law reports – often abbreviatedInternet law reports – High Court, Court of Appeal and House of Lords cases(summaries of important cases)(House of Lords cases)(cases from the Court of Appeal and below)
20 Essential terms to abide by = poštivati, pridržavati se to bind / to be binding / non-binding onto be bound bybinding precedent = obvezujući presedanpersuasive precedent = neobvezujući presedanto follow / accept / apply a precedent = slijediti presedanto distinguish = razlikovati; to overrule = odbaciti; to reverse = poništiti, preinačitito give / pass judgement = donijeti presudupoint of law = pravno pitanjepoint of fact = činjenično pitanjelaw reports = zbirke sudskih presudato hear a case = održati raspravu, suditifirst-instance court = prvostupanjski sudsecond-instance court = drugostupanjski sudcourt of last resort = najviši sud, zadnja sudska instancasuperior=higher = / inferior=lower courts= viši / niži sudovicourts of civil jurisdiction= građanski sudovicriminal jurisdiction = kazneni sudovistare decisis = pridržavati se ranijih odluka viših sudovato establish a precedent = stvoriti presedanratio decidendi / obiter dicta = dijelovi presudeto adhere to = pridržavati se
21 Vocabulary practice – Word formation Turn the following verbs into nouns.to precede precedentto departto applyto emphasizeto ruleto adhereto establish
22 Supply the correct preposition. Judicial precedents are binding ____ lower courts.According to the doctrine of precedent the Court of Appeal is bound ______ the judgments of the Supreme Court of the UK.The Supreme Court can depart _____ a previous decision when it appears right to do so.The English and Welsh courts must abide ______ the principles established by decisions in earlier cases.In practice, the doctrine of precedent means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases ______ similar cases.