Transcript Sources of law Case law Doctrine of judicial precedent

Judicial Precedent
Richard O’Neill
University of Hertfordshire
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
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
courts
bind
lower
courts
and
like cases are
decided alike
Hierarchy of the courts
criminal cases
civil cases
European Court of Justice
European Court of Justice
House of Lords
House of Lords
Court of Appeal
(criminal division)
Queens bench
Divisional court
Court of Appeal
(civil division)
Divisional courts
Crown Court
High Court
Magistrates’ court
County court
Hierarchy of the courts
European Court of Justice
House of Lords
Court of Appeal
(civil)
Divisional courts
(QB; Chancery; Family)
High Court
(QB; Chancery; Family)
County court
Judiciary
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
Circuit Judges
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
•
European 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
Appeal from Magistrates’ Court
• Appeal to Crown Court
European Court of Justice
House of Lords

Queens bench
Divisional court
Crown Court
Magistrates’ 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
European Court of Justice
House of Lords
Court of Appeal
Criminal Division

Crown Court
• 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
European Court of Justice
House of Lords
Court of Appeal
(civil division)
Divisional courts

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
European Court of Justice
House of Lords
Court of Appeal
(civil division)

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
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
•
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
European Court
House of Lords
Court of Appeal
Yes (with some minor
exceptions)
High Court
County Court and
Magistrates’ Court
All higher courts
Usually follow each
other’s decisions
Crown Court
Magistrates’ Court possibly
All higher courts
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
– 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
consistency
detail/precision
flexibility and growth
time-saving
practicality
rigidity
bulk and complexity
illogical distinctions/over-subtlety
slow growth
• Important factors
– legal reasons for past decisions must be known
– accurate law reporting essential