Today we continued with our revision for the January exam on Law Making. We looked at the topic of judicial precedent.
Judicial Precedent in this country is based on the doctrine of STARE DECISIS – this means do not upset whatever has been established. A law report is broken up into the RATIO DECIDENDI and OBITER DICTA. The RATIO is the legal reason for deciding. This is not the same as the verdict. OBITER DICTA are all the other things said in a judgement – including speeches by dissenting judges. A dissenting judge is one who does not agree with the RATIO of the case.
We reminded ourselves of the importance of the Court Hierarchy in the English System. If you answer a question on this topic you will need to know the order of importance of the courts and when they are bound by previous decisions.
Further – you should re-familiarise yourself with the exceptional circumstances of both the House of Lords (use of the Practice Statement 1966) and the Court of Appeal (bound by its own decisions unless on the exceptions set out in the Young v Bristol Aeroplanes Case are met).
We reminded ourselves that precedent can be binding, persuasive or original. There are four different types of persuasive precedent – decisions from lower courts; decision of the Judicial Privy Council; decisions from outside the English jurisdiction; and obiter dicta in other judgements.
A judge can avoid following a precedent in a number of ways – overruling, reversing or distinguishing.
Overruling is used when a higher court overrules the decisions of a lower court in an earlier case. Remember the ability of the House of Lords and the Court of Appeal to overrule previous decisions.
Reversing is when a higher court reverses the earlier decision in the same case of a lower court – for example a decision is reversed on appeal.
Distinguishing occurs when the facts of the case before the court are sufficiently different to an earlier precedent – the judge can distinguish it.
You will also need to know how to evaluate our system of precedent – that is to say – comment on its advantages and disadvantages.
Look at previous entries on this topic for more information.
You will find all that you need to know by looking in your notes and the revision guides and sheets provided. Any problems – come and see me.