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The differences between the different precedents

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Unit 2: P1

In this assignment I will be going into and explaining how precedent applies to the case study, I will also be going over all the precedents and explaining the differences between the different precedents.

Judicial precedent: The process where judges use past decisions which have similar facts to the current case and use the previous case to help make a verdict on the current case.

Stare decisis: It means “let the decision stand by what has been decided.” This means that the points that have been decided in previous cases that are similar must be followed in the current case. This helps make proceedings fair consistent and reliable as similar cases have similar verdicts so it’s hard to dispute against rulings in courts if all similar cases have the same results. For example Daniels v white which was followed by Donoghue v Stevenson. The second principle is the ‘higher courts bind lower courts. This practically means that precedent must follow a strict hierarchy system that the lower courts must follow the decisions that were made by higher courts. As for higher courts they have flexibility some room for a bit of leniency and flexibility when it comes down to using their own past decisions to help come to a verdict for the present case.

Original precedent

An original precedent is one. Original precedent means a precedent that creates and applies a new legal rule. An original precedent is made when there is no previous judicial decision on a point of law. When the court has to form an original precedent, a judge will come to their decision by analogy. This will more often happen in cases where the law isn’t specific enough and the judge will need to make a ruling that hasn’t been made before. The judge will usually make a verdict based on principles similar to the case and use common sense when trying to reach a verdict. This is called ‘reasoning by analogy’. As the judicial system has existed for hundreds of years there will be a time where ‘original precedents’ are harder to find.

Ratio Decidendi

The judgement made by the court is split into three parts and these are Material facts, the principle of law and the decision of the court. The ratio decidendi is the legal reason on which the judges base their decision on so therefore any other statement of law that are not necessary to the decision are obiter dicta. Ratio judgment is not always easy to identify as this proven through the Donoghue v Stevenson of 1932 where the ratio was thought to have been the neighbour principle furthermore another case is the Rylands V Fletcher 1868 which there were 3 ratios. A problem for the cases is that there may be no ratio at all especially if the case has been decided in the House of Lords or The Supreme Court. “Let the decision stand by what has been decided” Therefore points in previous cases that similar must be used as stepping stones when reaching a verdict, this will enable the system to remain consistent fair and reliable.

Binding precedent

A binding precedent is a precedent that a judge has to follow. A precedent can only be classified as binding if they meet two criteria’s. The first one is, if the current case is if the facts of the case are very similar to previous cases in similar circumstances, or if the previous similar case was decided by a higher court compared to the court it is being heard in currently then the judge would have to use the same precedent that was used by the higher court.

Persuasive precedent

A persuasive precedent is a precedent that the judge doesn’t have to follow but they can if they want to as in some circumstances it may seem the be the most logical thing to do. Although the judge is not obliged to follow the persuasive precedent the judge may consider it and decide for themselves if it is the correct principle and he wants to follow it. Persuasive precedent originally comes from the sources listed below.

1) Judgements made by courts lower in the hierarchy – such an example can be seen in R v R (1991) where the House of Lords (as it was then) agreed with and followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife.

2) Decisions of the Privy Council – This court is not part of the court hierarchy in England and Wales and so its decisions are not binding. However, as many of its judges are also members of the Supreme Court, the judgements of the Privy Council are treated with respect an may be followed. An example of this would be the case of Holley (2005).

3) Statements made obiter dicta – As we saw, sometimes judges may make committer obiter. In later cases, these comments may be followed as they may be particular persuasive, particularly if made in the Supreme Court.

4) A dissenting judgement- Where a case has been decided by a majority of judges, the judge who disagrees will have explained his reasons. If that case goes on appeal to the Supreme Court, it is possible that the Supreme Court may prefer the dissenting judgement and decide the case in the same way. The dissenting judgement has persuaded them to follow it.

5) Decisions of courts in other countries- This is usually the case where the other country uses the same ideas of common law as in our system. R v Parks (1992) The Supreme Court of Canada held that sleepwalking is not a disease of the mind and hence the defence of insanity will fail.

Ideally following stare decisis the C/A (Mr. Wilkin’s) should follow the precedent of R v Savage and others as the facts are similar enough and the Supreme Court is higher in the hierarchy and higher courts bind lower courts. R v Savage and others decide that consent was available as a defence to harm inflicted. And since Mr. Wilkin’s is part of a cult and you have the choice to leave whenever you like and you consent to everything. Similarly to the R v Savage and others case where the new university students consented to it all. And all the charges were dropped. If this precedent is chosen Mr. Wilkins will have chance of getting the charges dropped and be acquitted.

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GradesFixer. The differences between the different precedents [Internet]. GradesFixer; 2019 [cited 2019 January 28]. Available from: https://gradesfixer.com/free-essay-examples/the-differences-between-the-different-precedents/
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