3. Judicial Precedent Flashcards
What is the definition of Stare Decisis?
-To stand by what has been decided
-The lower courts must follow the decisions of higher courts in cases of similar facts
What is the case used for Stare Decisis?
Daniels v White - Followed the precedent set in the earlier case of Donoghue v Stevenson upon the neighbour principle
What does Stare Decisis have to do with the lower courts?
-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
What is binding precedent in relation to stare decisis?
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
What is the definition of Binding Precedent?
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
What is a ratio decidendi?
The binding element of a judgement, it will apply in all future cases and must be followed
What case is used for Ratio Decidendi?
R v Howe - The ratio decidendi here is that duress is not a defence to murder, this must be followed in future cases
What is obiter dicta
-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
What case is used for Obiter Dicta?
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
What is the definition of Original Precedent?
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
Are original precedents binding?
Once made it will become binding in all future cases
What case is used for Original precedents?
Donoghue v Stevenson: the courts created the original precedent that you owe a duty of care to your neighbour in law
What is the definition of persuasive precedent?
This is not a binding precedent; this means that judges don’t have to follow it but may if they want
What is obiter dicta in relation to persuasive precedent?
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.
What are precedents set by lower courts, in relation to persuasive precedent?
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.
Which case is used for precedents set by lower courts?
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
What was the practise statement before 1898?
The HofL could change any of their own previous precedents at any time
What is the practise statement at 1898?
-The HofL decided it was more important to follow their own precedents, so they were now bound to follow previous decisions
What case is used for the practise statement 1898?
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
What is the practise statement in 1966?
The Lord Chancellor created the practise statement 1966, gave the HofL power to change previous precedents when right to do so
In which two cases were the practise statement used?
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
What is the introduction to the Court of Appeal in Judicial Precedent?
-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.
What was established in Young V Bristol Aeroplane?
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
What was established in R v Gould?
The CofA can refuse to follow its own previous decisions if it involves the liberty of the suspect
What is Overruling?
Where a higher court overrules the decisions of a lower court in a previous case if it seems wrong.
Which two cases had overruling happen?
-Hedley Byrne v Heller Partners
-A v Hoare
What is Reversing?
Where a Higher court can overrule the decisions of a lower court in a case if they think earlier precedent is wrong
Which 1 case is used for reversing?
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.
What is distinguishing?
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.
Which case is used for distinguishing?
Merritt v Merritt - was distinguished between Balfour v Balfour as the agreement was written not verbal and was intended to be legally binding.
What are the two advantages of Judicial Precedent?
-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
What are the two disadvantages of Judicial Precedent?
-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
