Judicial Precedent
Judicial Precedent is the idea of following previous decisions made in courts before. The courts are structured in a hierarchy which has the Magistrates' court at the bottom of the hierarchy. The lower courts are bound by decisions made in cases by the court above it in the hierarchy. The Magistrates' Court is bound by decisions made by the Crown Court for example. We will be looking at the reasons for why the courts have to follow these rules.
The key features of Judicial Precedent are Latin Principles, Hierarchy of Courts and Law Reporting.
Latin Terms
There is some Latin phrases involved which are very important for understanding Judicial Precedent:
Judicial Precedent is the idea of following previous decisions made in courts before. The courts are structured in a hierarchy which has the Magistrates' court at the bottom of the hierarchy. The lower courts are bound by decisions made in cases by the court above it in the hierarchy. The Magistrates' Court is bound by decisions made by the Crown Court for example. We will be looking at the reasons for why the courts have to follow these rules.
The key features of Judicial Precedent are Latin Principles, Hierarchy of Courts and Law Reporting.
Latin Terms
There is some Latin phrases involved which are very important for understanding Judicial Precedent:
- Stare Decisis - Let the decision stand. Stand by what has been decided previously.
- Ratio Decidendi - It has been decided. Usually a phrase, sentence or paragraph in a judgement. An example of this is DPP v Smith, when it said that cutting of the hair can amount to an ABH.
- Obiter Dicta - other things said. The rest of the judgement that is not the binding ratio is called the obiter. This can be used as persuasive precedent in the future. An example of obiter is when the case of DPP v Smith said that paint or other substances in the hair could also amount to an ABH.
- Per Incuriam - through lack of care, of law and fact. If a case has been judged without knowledge of a provision or case in precedent then it can be reopened.
- Res Judicata - a matter already judged. Once this has happened then cases cannot be opened again and cannot be appealed.
The Hierarchy of the Courts
The Courts have to follow the court's decisions made above them in the hierarchy.
The Courts have to follow the court's decisions made above them in the hierarchy.
- The Magistrates' Court is the court of first instance. They reside at the bottom dealing with civil and most criminal cases. The magistrates' Court deals with Summary offences and can deal with triable either way offences. They can give warrant for search of premises and for arrests. They are made up of panels of lay magistrates who are upstanding members of the community, who work on a volunteer basis to support the legal system.
- Tribunals are used equally on the civil side to deal with employment disputes and some contract cases.
- The Crown Court is above the Magistrates's Court and creates binding precedent for the lower courts. The Crown Court has a judge and jury to decide the criminal cases. A jury is made up of 12 peers who have to find a defendant guilty or not guilty on a point of fact. It is the judge's role to direct the jury to the law and allow them to make the factual decisions.
- The County Court is the equivalent to the Crown Court but deals with civil cases. There is a judge in here too but there is no jury within the Country Court.
- The High Court is a court that is split into three different sections; the Queen's Bench Division, The Chancery and the Family court. They deal with a range of cases.
- The Court of Appeal deal with case appeals from convicted criminals and civil disputes. They are the first court that deals with appeals in the justice system. The CoA binds all the lower cases with binding precedent. The Court of Appeal indeed deals with appeals to cases and these have to be on a point of law. They can also have appeals if a convicted offender has new evidence come to light that throws doubt on the original verdict.
- The Supreme Court is the highest court in the land and has binding precedent on all the lower courts below it. It is not bound by its own decisions and can depart from the other cases it decided. The Supreme Court only has to answer to the European Courts. The law is made by Parliament and as elected leaders of the country, government decides what is made into law. It is up to the courts to apply the law into the scenarios that come up in courts. The Supreme Court used to be called the House of Lords. Now the Supreme Court is found in a completely separate building from the House of Lords.
Law Reporting
To make this hierarchy useful and productive, there needs to be a way to find the previous cases that are reported and create precedent so that we know as judges what we have to follow. This is done by law reports within the courts. The highest courts and some of the other courts have their judgements and cases recorded and reported. These are done by barristers, legal clerks, legal executives and all of the legal people who are forgotten about. The best example of these are the All England Law Reports, which give comprehensive documentation of what has been said in court, when and who said it.
There are also online databases which can be accessed; they have reports and records of case files in there so that we can use these privately to find precedent and predict future cases. These include examples such as LexisNexis, JustCite and WestLaw. The ICLR also record cases and keep files. These are public law reports so everyone can find them.
To make this hierarchy useful and productive, there needs to be a way to find the previous cases that are reported and create precedent so that we know as judges what we have to follow. This is done by law reports within the courts. The highest courts and some of the other courts have their judgements and cases recorded and reported. These are done by barristers, legal clerks, legal executives and all of the legal people who are forgotten about. The best example of these are the All England Law Reports, which give comprehensive documentation of what has been said in court, when and who said it.
There are also online databases which can be accessed; they have reports and records of case files in there so that we can use these privately to find precedent and predict future cases. These include examples such as LexisNexis, JustCite and WestLaw. The ICLR also record cases and keep files. These are public law reports so everyone can find them.