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Judicial Precedent
What is it?
Process by which judges follow the decisions of previous cases if material facts are sufficiently similar
Operates through the doctrine stare decisis – to stand by what has previously been decided
Why do we have it?
Certainty/predictability – ensures justice is done
Allows lawyers to predict outcome & advise clients
People have full knowledge of the consequences
How does it operate?
In order for the doctrine to operate effectively it needs:
1. Effective law reporting – must be accurately recorded so judges can refer back to them
2. Clear hierarchy of courts so that each judge knows who should be followed
3. A method of identifying the parts of the judgement that set the precedent:
The legal reason/principle behind the decision is contained in the judgment – the ratio decidendi – this is what sets the precedent (NOT the decision itself)
E.g. R v Bentham 2005: man robbed employer using his fingers in jacket to imitate a gun – court held he could not be guilty of possessing an imitation firearm – legal reasoning for this was: you cannot possess something which is not separate from yourself (that is the ratio and is the binding precedent)
Everything else in judgement = obiter dicta - e.g. legal principles; hypothetical examples (but NOT part of the actual reason for the decision)
E.g. Donoghue v Stevenson 1932 (snail in the bottle) – Lord Atkin said in his obiter comments: there should be a legal principle used when establishing duty of care in negligence cases (became known as the ‘neighbour principle’)
Obiter statements MAY be followed but are not binding
Following: this means you apply the same legal principle from an earlier case in a present case because the material facts are the same and the earlier case came from a court higher up in the hierarchy or from the same court
Types of precedent
1. Original precedent
When a point of law within a case (i.e. part of the ratio) is unique and has not been
What is it?
Process by which judges follow the decisions of previous cases if material facts are sufficiently similar
Operates through the doctrine stare decisis – to stand by what has previously been decided
Why do we have it?
Certainty/predictability – ensures justice is done
Allows lawyers to predict outcome & advise clients
People have full knowledge of the consequences
How does it operate?
In order for the doctrine to operate effectively it needs:
1. Effective law reporting – must be accurately recorded so judges can refer back to them
2. Clear hierarchy of courts so that each judge knows who should be followed
3. A method of identifying the parts of the judgement that set the precedent:
The legal reason/principle behind the decision is contained in the judgment – the ratio decidendi – this is what sets the precedent (NOT the decision itself)
E.g. R v Bentham 2005: man robbed employer using his fingers in jacket to imitate a gun – court held he could not be guilty of possessing an imitation firearm – legal reasoning for this was: you cannot possess something which is not separate from yourself (that is the ratio and is the binding precedent)
Everything else in judgement = obiter dicta - e.g. legal principles; hypothetical examples (but NOT part of the actual reason for the decision)
E.g. Donoghue v Stevenson 1932 (snail in the bottle) – Lord Atkin said in his obiter comments: there should be a legal principle used when establishing duty of care in negligence cases (became known as the ‘neighbour principle’)
Obiter statements MAY be followed but are not binding
Following: this means you apply the same legal principle from an earlier case in a present case because the material facts are the same and the earlier case came from a court higher up in the hierarchy or from the same court
Types of precedent
1. Original precedent
When a point of law within a case (i.e. part of the ratio) is unique and has not been