3. Judicial Precedent Flashcards

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1
Q

What is the definition of Stare Decisis?

A

-To stand by what has been decided
-The lower courts must follow the decisions of higher courts in cases of similar facts

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2
Q

What is the case used for Stare Decisis?

A

Daniels v White - Followed the precedent set in the earlier case of Donoghue v Stevenson upon the neighbour principle

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3
Q

What does Stare Decisis have to do with the lower courts?

A

-There is a court structure that details the lowest court to the highest court, stare decisis is represented through how the lower courts must follow the decisions of the higher courts

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4
Q

What is binding precedent in relation to stare decisis?

A

Binding Precedent is a precedent that has been set in a case and will be the law to apply in all future cases, all courts must follow the binding precedents that have been set

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5
Q

What is the definition of Binding Precedent?

A

This is a precedent that has been set in a previous case, it is binding so it means that it must be followed, all lower courts must follow this precedent

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6
Q

What is a ratio decidendi?

A

The binding element of a judgement, it will apply in all future cases and must be followed

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7
Q

What case is used for Ratio Decidendi?

A

R v Howe - The ratio decidendi here is that duress is not a defence to murder, this must be followed in future cases

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8
Q

What is obiter dicta

A

-Other things said by the judge, they are persuasive and don’t have to be followed
-If a judge uses obiter dicta from a previous case, it will become binding precedent in the new case

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9
Q

What case is used for Obiter Dicta?

A

R v Gotts: This case followed the obiter dicta of R v Howe, creating the new binding precedent that duress is not a defence to attempted murder

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10
Q

What is the definition of Original Precedent?

A

In some cases, there will be an area of law with no precedents, in these cases judges don’t have a previous precedent so they create a new one called an original precedent

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11
Q

Are original precedents binding?

A

Once made it will become binding in all future cases

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12
Q

What case is used for Original precedents?

A

Donoghue v Stevenson: the courts created the original precedent that you owe a duty of care to your neighbour in law

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13
Q

What is the definition of persuasive precedent?

A

This is not a binding precedent; this means that judges don’t have to follow it but may if they want

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14
Q

What is obiter dicta in relation to persuasive precedent?

A

Other things said by the judge, they’re persuasive and don’t have to be followed. If a judge uses obiter dicta from a previous case it will become binding precedent.

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15
Q

What are precedents set by lower courts, in relation to persuasive precedent?

A

A higher court can choose to follow a precedent set by a lower court, for example the supreme court can follow the precedents of the CofA.

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16
Q

Which case is used for precedents set by lower courts?

A

R v R - the House of Lords followed the precedent set by the Court of Appeal stating that a husband can not rape his wife

17
Q

What was the practise statement before 1898?

A

The HofL could change any of their own previous precedents at any time

18
Q

What is the practise statement at 1898?

A

-The HofL decided it was more important to follow their own precedents, so they were now bound to follow previous decisions

19
Q

What case is used for the practise statement 1898?

A

London Street Tramways v London City Council: The certainty of the law was more important, so the House of Lords is now bound to follow previous precedents

20
Q

What is the practise statement in 1966?

A

The Lord Chancellor created the practise statement 1966, gave the HofL power to change previous precedents when right to do so

21
Q

In which two cases were the practise statement used?

A

R v Shivpuri - HofL used practise statement to change precedent set in Anderton V Ryan
A v Hoare - HofL used practise statement to change previous precedent set in Stubbings v Webb

22
Q

What is the introduction to the Court of Appeal in Judicial Precedent?

A

-The CofA must follow decisions of the Supreme Court, it is made up of 2 divisions, civil and criminal. They dont bind to each other.

23
Q

What was established in Young V Bristol Aeroplane?

A

CofA doesn’t have to follow previous precedent if one of following applies:
-Previous decisions made per incurium
-Two conflicting decisions
-Later decision of the HofL

24
Q

What was established in R v Gould?

A

The CofA can refuse to follow its own previous decisions if it involves the liberty of the suspect

25
Q

What is Overruling?

A

Where a higher court overrules the decisions of a lower court in a previous case if it seems wrong.

26
Q

Which two cases had overruling happen?

A

-Hedley Byrne v Heller Partners
-A v Hoare

27
Q

What is Reversing?

A

Where a Higher court can overrule the decisions of a lower court in a case if they think earlier precedent is wrong

28
Q

Which 1 case is used for reversing?

A

Sweet v Parsley - The HofL reversed the CofA decisions to convict the D, stating the word knowledge implied mens rea. And the D had no knowledge of the cannabis.

29
Q

What is distinguishing?

A

Where a court refuses to follow previous decision in a case, by finding a distinguishing fact. Showing the two cases are different and justifying the decison.

30
Q

Which case is used for distinguishing?

A

Merritt v Merritt - was distinguished between Balfour v Balfour as the agreement was written not verbal and was intended to be legally binding.

31
Q

What are the two advantages of Judicial Precedent?

A

-Allows flexibility within the law, when supreme court uses practise statement they change old precents and keep law up to date.
-Creates certainty within the law, because when the courts use stare decisis the courts have to follow the previous precedents that have been set

32
Q

What are the two disadvantages of Judicial Precedent?

A

-Precedent allows judges to make the law, when using practise statement they change law
-Precedent makes the law too rigid, when courts use stare decisis the courts have to follow the previous precedents that have been set, lower courts follow outdated