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.