Essay
Judicial Precedent evaluation 12/12
- Institution
- OCR
This is an evaluation model answer on the doctrine of precedent 12/12
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Doctrine of precedent-12 markerThe doctrine of precedent is based on the concept of stare decisis which means let the decision stand. It
is a common law meaning judges are bound to follow previous precedent if the case facts are similar
enough. This is also known as binding precedent.
Judges look for cases to follow in the old law reports of previous judges. Law reports contain the case
name and the name of the judge handling the case as well as the date and summary of the case facts.
The ration decidendi is the legal reasoning behind a judge’s judgement. This was used in the case of
Donoghue v Stevenson 1932 and it states that manufacturers owe a duty of care to their consumer to
prevent injuries.
The rest of the law reports consist of obiter dicta statements, meaning other things said. It can be seen
in the case of R v Howe and R v Gotts 1992. Obiter dicta statements can sometimes be used as
persuasive president by courts higher in the hierarchy. An example where obiter dicta has been used as
persuasive precedent is in the case of Attorney- General for Jersey v Holley followed by the case of R v
Mohamed 2005.
Another type of precedent is original president made when judges have no previous case to follow and
make precedent using their analogy, this can be seen in the case of Hunter v canary wolf.
The English legal system consists of 2 courts being the civil and criminal. The European courts of justice
and human rights bind all courts below them being the supreme court which doesn’t binds itself
anymore due to the Practice Statement 1966. The court of appeal come right bellow the supreme court
and is bound by the supreme court and the European courts. Bellow the court of appeal are the
divisional courts of the high court set up to hear appeals. They also bind themselves as well as the courts
of first instance being the Crown and Magistrate’s court. The last two courts cannot make precedent.
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