1. 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

2. 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

3. 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

4. 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

5. What is common law? Discuss and define in pairs Common law
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Victoria Grace

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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:
Fda Business
Victoria Grace

12. 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