Judicial Precedent
jp is a process whereby judges are required to follow the rules of law established in previous cases decide by courts of equal status or higher where the legal principle established is the same and the facts or points of law are sufficiently similar every court is In England and Wales the courts operate a very rigid doctrine of precedent which has the effect that bound by the decisions made by courts above it in the hierarchy and in general courts are bound by their own past decisions.
The doctrine of Precedent is the process whereby judges should follow previous decisions in similar cases to help maintain a degree of consistency in the way the law is applied in similar cases. It is based on the maxim “stare decisis” which means stand by what has been decided. donoghue v Stevenson followed in grant v Australian knitting mills.
The Ratio Decidendi (reasons for deciding) is the only binding part of a judge’s decision but how judges interpret this can vary thus changing the impact it can have on future decisions
Other than ratio decidendi there can be other comments by judges,The obiter dicta (things said by the way) here the judge speculate the outcome of the cases had the facts of the case been different.in the original case it is merely persuasive because it was not strictly relevant to the case before them
Apart from the Obiter dicta there are other forms of persuasive precedent which although are not binding can still have an impact on the decisions of judges e.g. decisions of courts lower in the hierarchy. An example of this is in RvR (marital rape) where the HoL followed a decision made by the Court of Appeal and effectively created a new crime deciding that rape could be committed in marriage.
The court hierarchy plays a big part in deciding which decisions have more weight. Though the rules of precedent are applied rigidly and don’t appear to allow scope for creativity, there are ways in which the doctrine of precedent can be avoided ‘thus allowing
The doctrine of Precedent is the process whereby judges should follow previous decisions in similar cases to help maintain a degree of consistency in the way the law is applied in similar cases. It is based on the maxim “stare decisis” which means stand by what has been decided. donoghue v Stevenson followed in grant v Australian knitting mills.
The Ratio Decidendi (reasons for deciding) is the only binding part of a judge’s decision but how judges interpret this can vary thus changing the impact it can have on future decisions
Other than ratio decidendi there can be other comments by judges,The obiter dicta (things said by the way) here the judge speculate the outcome of the cases had the facts of the case been different.in the original case it is merely persuasive because it was not strictly relevant to the case before them
Apart from the Obiter dicta there are other forms of persuasive precedent which although are not binding can still have an impact on the decisions of judges e.g. decisions of courts lower in the hierarchy. An example of this is in RvR (marital rape) where the HoL followed a decision made by the Court of Appeal and effectively created a new crime deciding that rape could be committed in marriage.
The court hierarchy plays a big part in deciding which decisions have more weight. Though the rules of precedent are applied rigidly and don’t appear to allow scope for creativity, there are ways in which the doctrine of precedent can be avoided ‘thus allowing