Judicial Precedent 12 Markers

‘Stare decisis’ means the same decision will be made by lower courts and higher courts don’t want to overrule precedent.

Jones v SoSSS - refused to overrule Re Dowling.

Lawyers, judges and defendants can effectively prepare for cases.

COUNTER - lead to rigidity.

Decisions don’t change as judges make the same decisions as higher courts.

Jones v SoSSS - decision in Re Dowling was wrong but kept it anyway for certainty.

Bad and outdated law will not be changed quickly enough.

COUNTER - creates certainty.

Ways of avoiding precedent, as higher courts can overrule and any court can distinguish.

R v Shivpuri - overruled Anderton v Ryan as there was serious error.

Bad decisions are avoided and the law stays updated.

COUNTER - created uncertainty.

Avoiding precedent made it hard to make decisions in the future.

Merritt v Merritt - distinguished Balfour v Balfour on marital agreements.

Hard to predict the outcome, having a negative effect on lawyers, judges and defendants.

COUNTER - help avoid injustices.

Precedent is based on case law and real life situations.

R v R - marital rape made a crime.

Law can be made and changed in response to real events and updated with society.

COUNTER - complex.

½ million precedents and more are getting created through distinguishing.

Re J - could not figure out what the ratio was.

Defeats the point of precedent.

COUNTER - respond quickly to real life situations.

Existing law doesn’t apply the current facts it can be distinguished and original precedent allows judges to create a law where there is no previous law.

R v R - Parliament had no guidance about marital rape, so judges made it illegal.

Leads to justice and saves Parliament’s time.

COUNTER - goes against the separation of powers.

Allows judges to make and change laws when only Parliament should have this power.

R v R - judges chose to make marital rape illegal.

Judges are not democratically elected and may not reflect Parliament/society’s wishes.

COUNTER - save Parliament’s time.