Judicial Precedent

Created by MEMcLaughlin 

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What is "Binding Precedent"?

Binding precedent means that within the hierarchical structure the English courts a decision of a higher court will be binding on a court lower than it in that hierarchy.

What is the basic principle of the doctrine of precedent?

Like cases should be treated alike.

What presumptions is the doctrine of precedent based upon?

1. Cases with the same or similar material facts.
2. Court is normally bound by courts which are higher or equal to them.
3. Legal reasons for the decision in the previous case (the ratio decindendi) must be identified.

What is a persuasive precedent?

Precedents which are not binding. For example:
1. Decisions of lower courts.
2. Decisions of the High Court at first instance [i.e. the trial stage].
3. Decisions of the Judicial Committee of the Privvy Council.
4. Decisions of the Scottish and Northern Irish courts.
5. Decisions of other Commonwealth Courts.

What is the order of the hierarchy of the courts?

1. European Court of Justice (CJEU).
2. Supreme Court/House Of Lords.
3. Court Of Appeal: Criminal Division and Civil Division.
4. High Court: Family Division, Chancery Division and Queens Bench Division.
5. County Court and Crown Court.
6. Magistrates Court.

When will a case be binding?

1. Contains a statement of law.
2. Forms part of the ratio decidende of the later case.
3. Decided by a Superior Court whose decisions are binding upon the court dealing with the later case.
4. Does not contain any significant difference to the later case.

How do Magistrates Courts and County Courts interact with the court hierarchy and the doctrine of precedent?

1. Bound by decisions of the High Court, the Court of Appeal and the Supreme Court/House of Lords.
2. Magistrates and County Courts are not bound by their own decisions and they do not bind any other court although they are expected to exercise consistent decision making.

How does the Crown Court interact with the court hierarchy and doctrine of precedent?

1. Bound by decisions of the Court of Appeal and the Supreme Court/House of Lords.
2. Those decisions reported as interest are generally regarded as persuasive and worthy of being used in argument, particularly those made by High Court judges sitting in the Crown Court.

How does the High Court interact with other courts and the doctrine of precedent?

1. Decisions of this court are binding upon all below.
2. High Court decisions are not binding upon the Divisional Courts (Civil or Criminal) where two or more High Court judges sit together.
3. All Court of Appeal and Supreme Court/House of Lords decisions are binding upon the High Court.

How does the Divisional Courts of the High Court interact with other courts and the doctrine of precedent?

1. Decisions of the Divisional Courts of the High Court are binding upon High Court judges sitting alone and also inferior courts except Employment Appeal Tribunals.
2. Divisional Courts are bound by the Court of Appeal and the Supreme Court/House of Lords and also by its own decisions.

How does the Court of Appeal (Civil Division) interact with other courts and the doctrine precedent?

1. Generally decisions are binding upon the Divisional Court of the High Court, individual High Court Judges and the inferior courts, including the Employment Appeal Tribunal.
2. It must follow decisions of the Supreme Court/House of Lords.

How does the Court of Appeal (Criminal Division) interact with other courts in the doctrine of precedent?

1. Bound by the Supreme Court/House of Lords decisions and is generally bound by its own decisions. (not as rigidly as the Civil Division since the liberty of the appellant is often at stake.)

How does the Supreme Court/House of Lords interact with other courts in relation to the doctrine of precedent?

The Supreme Court/House of Lords need no longer be bound by its own decisions. In the practice statement (Judicial Procedure) [1966] it states that this rule should be used cautiously, especially in property and taxation matters and also in Criminal Law.

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