Essay
P6 explain how precedents are applied in court
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P6 BTEC Business Level 3 Extended Diploma Unit 23
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Are you aware of Original precedent?FactSheet Original precedent arises before the
court has never been considered and
Explain how precedents are applied in the court there has been no previous judicial
decision on it.
In that case a judge must use their
A precedent means… own discretion in reaching a final
‘what went before, let it stand’. In the legal system there are three types of precedent: judgment.
original, binding, and persuasive. It is also known as a common law, whereby judges Finally a judge will adopt an approach
creates law in order others to follow.
known as reasoning by analogy, whereby
they will look at cases which involve a
Did you Know that Ratio Decidendi is the… similar principle to the one they are
Reason for making the decision dealing with and apply similar rules.
Have you ever heard of Binding precedent?
Precedent
It is the ratio that creates the precedent
Binding precedent is ‘normal’
for judges in the future to follow
Original precedent. It requires a court to follow
a previous court decision made in a
……But Obiter Dictum is…….
previous case in the same way.
For a precedent to be binding on a
Other things said
Speculation Binding judge in a later case, the material facts
of the two cases must be similar.
Obiter The precedent is only binding on
dictum
Hypothetical
Persuasiv courts lower or equal to the court
where the precedent was made.
situations e
Have you ever thought that precedent can be avoided? Did you know of Persuasive precedent?
A judge can avoid a precedent if it appears to be binding in the following circumstances: Persuasive precedent is where a
lower court makes a decision and a
Where the decision was made in a way which – either through carelessness higher court may be allowed to use the
or forgetfulness – was inconsistent with a statutory provision. precedent or decision, but they are not
Overruling – where a decision made in a lower court is overturned as the legally obliged to.
judges hearing a case in a higher court do not agree with it. The previous Also it has been cases where
decision will stand but will not be followed in later cases. lawyers brought up evidence to show
Reversing – upon successful appeal to a higher court, if the lower court that the material facts of their case
wrongly interpreted the law, the higher court could reverse the lower court’s
was the same as a decision made in
an inferior court.
decision, overruling its statement of law. However it is up to the judge to
Distinguishing – where the judge finds that the material facts in the case they decide if the case is sufficiently similar
are hearing are significantly different from an earlier case. The judge to allow them to take the merits of the
distinguishes the two cases and need not follow the earlier one. case into consideration when they are
making their judgment.
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