A precedent is a ruling that a judge must follow when considering a case that raises similar legal issues. It's a foundation of common law legal systems. But how are precedents established? ...
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- Hi, my name's Matt Firth and welcome to TransLegal's lesson of the week.
- Today I'll be talking about how precedents are established. A precedent is a ruling that a judge has to follow when considering a case that raises similar legal issues. It's a foundation of common law legal systems.
- So, how are precedents established?
- I'm going to use the example of a fictional act, let's call it the Dogs Act. This is a fictional act, it doesn't exist, you won't find it anywhere. So the Dogs Act.
- The Dogs Act is introduced into England and the Dogs Act says that by the first of January 2012 all dogs have to be handed in to be put to sleep. For whatever reason, England wants to get rid of all of the dogs. OK.
- The second of January 2012 I haven't given my dog in, I love my dog and I'm out taking my dog for a walk, somebody sees me and reports me and I get arrested. And I get arrested under the Dogs Act.
- My case is a criminal case and in England all criminal cases, begin at the Magistrate's Court. And serious cases then get sent up for trial at the Crown Court. And the Crown Court is the first major criminal court in the UK.
- So what am I going to argue? Well, lets' say the text of the Act says simply that all dogs have to be handed in to be put to sleep. How can I argue that my dog isn't a dog. Well, maybe I could argue that my dog is actually a hound. I could try and argue the difference between a dog and a hound. I could try and say look, if you think of a dog most people think of a domestic animal, a nice sort of cuddly pet. If you think of a hound, it's a working dog. Dogs that used to be used for hunting.
- Maybe the judge likes my argument, maybe he’s a hunter himself and he says,
- “Yes, ok, I can accept that. I think in most people's eyes a dog is a domestic animal, a domestic pet. Yours isn't a dog, it's a hound. I don't think that was the intention of Parliament. I'm going to allow it.”
- Now that's then set a precedent. Future cases that come up to the Crown Court, would rule that there is a distinction between a dog and a hound and under the Dogs Act hounds do not have to be handed in. However, the state aren't happy with that. The prosecutor (Procurador do MP), the prosecution (Procuradoria / Ministério Público) aren't happy with that. They don't like that interpretation of the Dogs Act.
- They appeal the decision. It goes up to the Court of Appeal, the Criminal Division. Now, the Court of Appeal can uphold the judgment (manter/confirmar a sentença) of the Crown Court or they can overrule it (revogar, anular). In this case, they decide to overrule it. So, what then happens?
- Well, the final Court of Appeal within the UK legal system, before going on to Europe, is the Supreme Court and the Supreme Court could, again, they could uphold the judgment of the Court of Appeal or they could overrule it and reinstate the original judgment. And in this case let's say they decide to reinstate (restabelecer) the original judgment. That's fantastic for me. I don't have to go to prison. That's then set a precedent.
- The Supreme Court is generally bound by its own decisions. There are certain circumstances under which it will depart from previous decisions but for reasons of predictability it's very important that, as far as possible, they stick to their own decisions and all lower courts have to then follow that precedent. And in this case the precedent is that a hound under the Dogs Act is a working animal, it is not the type of dog that was meant under the Dogs Act. So I'm free.