Week 6 – How legal rules are created by precedent Unit 3 – Law for Business Week 6 – How legal rules are created by precedent Fda Business Victoria Grace

Objectives of session Today learners will discuss and apply; The general rules of precedent How the system has been developed An understanding of common law Ways a precedent is created How to avoid a judicial precedent Fda Business Victoria Grace

What is precedent? Precedent is something that has happened in the past In law this refers to previous cases and the decisions that have been held What advantages/disadvantages can you think of that could be applicable to such a system Fda Business Victoria Grace

Where did precedents come from? Development; Developed under ‘common law’ Was the only kind of law until the Magna Carta 1215 What is the Magna Carta 1215, and who signed it? People would receive the same punishment for the same crime throughout the UK Although there have been statutory developments' many precedents are still used for legal sentencing (outcomes) Fda Business Victoria Grace

What is common law? Discuss and define in pairs Common law Fda Business Victoria Grace

How can precedents be created? Law reporting: Can be also called ‘case law’ studying the judgements in old cases Only cases which demonstrate some useful point of law can be used as a precedent therefore will be reported on examples How to find/read a law report; Blunkett v Quinn (2004) Civil case as both parties are named Regina v Abu Hamza (2006) Criminal case this shows the defendants name and the word Regina – what does this mean? Fda Business Victoria Grace

How can precedents be created? Binding authorities: A judgment made in a senior court the Latin term = ‘stare decisis’ Must be based on the reasoning behind the decision not the circumstances of the case – see Donoghue v Stevenson (1932) and compare to your scenario Persuasive authorities: Courts can follow but do not have to Often a recommendation Can be recommended by a lower court Fda Business Victoria Grace

How can precedents be created? Ratio decidendi: The reason for the decision The reasoning behind the initial decision must be applied to all later cases where the same basic issues are involved Examine the case of Donoghue v Stevenson (1932) decide what the ‘ratio decidendi’ is in this case – remember it is not about the detail of the case but about the area of law it has had an impact Obiter statements: Are stated by judges in higher courts and are classed as a good guides for other courts to follow – however they are not binding Fda Business Victoria Grace

Can a judicial precedent be avoided? English law has to adapt to modern society and differences over time Therefore although precedents should be followed if there are justifiable reasons why this should not happen there are rules that can be applied “courts can and do make mistakes. Sometimes the mistakes are very serious and keep innocent people locked up for years, while murderers and others go free and unpunished because the wrong person has been found guilty” (Nick Cullingworth, National Diploma Public Sevices, 2007) Fda Business Victoria Grace

Can a judicial precedent be avoided? Distinguishing previous decisions: Even if a case appears similar to the one setting the precedent there is in the judges view a fundamental difference why the precedent should not apply Reversing decisions: Court hears an appeal and changes the original decision. The law was changed rapidly by Parliament in 2002 and it is now possible for the Court of appeal to reverse the previous decision of the High court. Fda Business Victoria Grace

Can a judicial precedent be avoided? Overruling previous decisions: Higher court in an appeal decides that a lower court was wrong in their decision Practice statements: Done by the House of /lords and the Ministry of Justice they give guidance on handling appeals Research 2 examples, these websites may help: www.publications.parliament.uk www.hmcourts-service.gov.uk Fda Business Victoria Grace

Summary to session We have examined the legal rules surrounding the area of precedent; How it came to be developed How the courts apply precedents How courts can avoid using a precedent You need to view the handout on the intranet and click on the hyperlinks (highlighted in red) and complete case studies, further reading and gathering of examples all necessary for the successful completion of your assessments Fda Business Victoria Grace