Judicial Precedent
What does the Latin phrase 'stare decisis' mean?
Stare decisis means “to stand by what has been decided.” It means courts should follow previous judicial decisions when the facts of the case are similar.
"The method used when a judge decides that the facts of the current case are sufficiently different from those of an earlier case, meaning the earlier precedent does not have to be followed."
Distinguishing
This case established the modern law of negligence and introduced the "neighbour principle."
Donoghue v Stevenson (1932)
These reports contain summaries of recent cases before they appear in more detailed law reports.
What are the Weekly Law Reports (WLR)
These legal professionals usually have direct contact with clients and prepare cases before they reach court.
Solicitors
Define judicial precedent.
Judicial precedent is the system where past decisions made by judges create legal rules that must be followed by judges in later cases with similar facts.
The method used when a judge decides that the facts of the current case are sufficiently different from those of an earlier case, meaning the earlier precedent does not have to be followed.
Overruling
This case is famous for distinguishing a previous precedent because the facts were materially different.
Balfour v Balfour (1919)
This feature of a reported case identifies the legal principle that forms a binding precedent.
Ratio
This standard of proof is used in criminal cases and requires the jury to be sure of the defendant's guilt.
Beyond reasonable doubt
Explain what is meant by obiter dicta.
Obiter dicta means “things said by the way.” These are comments made by judges that are not binding but may be persuasive in later cases.
This court can avoid its own previous decisions in several circumstances, including where there are conflicting past decisions, where a previous decision conflicts with a Supreme Court ruling, or where a decision was made per incuriam."
Court of Appeal
This case demonstrated the operation of persuasive precedent when the House of Lords departed from an earlier approach to marital rape.
R v R (1991)
This section of a law report contains comments or observations made by the judge that are not binding.
Obiter Dicta
This standard of proof is used in civil cases and requires the claimant to prove their case on the balance of probabilities.
Balance of probabilities.
Explain two conditions that must be met for a precedent to be binding.
The facts of the current case are similar to the earlier case.
- The earlier decision was made by a court higher in the court hierarchy (or the same level).
If a judge wants to reach a different decision without applying an existing binding precedent, what two legal techniques could they use
Distinguishing and overruling.
This case was followed in R v Emmett and established that consent is generally not a defence to actual bodily harm in sadomasochistic activities.
R v Brown (1993)
If a case is not reported, it becomes far more difficult for judges to do this fundamental task within the doctrine of judicial precedent
Find the Ratio
This court hears approximately 95% of criminal cases in England and Wales.
Magistrates court
Briefly explain the legal principle (Ratio) established in R v Brown (1993).
The case established that consent is not a defence to ABH/GBH caused during sadomasochistic activities
Lord Gardiner introduced this judicial development in 1966, stating that while certainty is important, "too rigid adherence to precedent may lead to injustice in a particular case." Identify the development and explain its effect on judicial precedent
the Practice Statement 1966
This case is often used to explain why judges create law when deciding novel issues not covered by existing precedent.
Re A (Children) (Conjoined Twins: Surgical Separation) (2001)?
These reports are generally regarded as less authoritative than the Law Reports because they do not contain counsel's arguments.
What are the All England Law Reports?
What is the intent behind a civil case
Unlike criminal law, the main aim of this area of law is not to punish wrongdoing but to restore the claimant to the position they would have been in had the wrong not occurred.