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Year 1 A level Law AQA Textbook > 6-Law making: judicial precedent > Flashcards

6-Law making: judicial precedent Flashcards

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1
Q

What is judicial precedent?

A

Where past decisions of judges create law for future judges to follow.

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2
Q

Where past decisions of judges create law for future judges to follow.

A

Judicial precedent

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3
Q

What is the latin term for judicial precedent?

A

stare decisis

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4
Q

stare decisis

A

Latin term for judicial precedent

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5
Q

Original precedent?

A

A decision on a point of law that hasn’t been decided yet.

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6
Q

A decision on a point of law that hasn’t been decided yet.

A

Original precedent

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7
Q

Binding precedent

A

A decision in an earlier case which must be followed in later cases.

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8
Q

A decision in an earlier case which must be followed in later cases.

A

Binding precedent

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9
Q

What case is an example of judicial precedent?

A

Automatic Telephone Electric v Registrar of Restrictive Trading Agreements (1965)

Facts: This case was same point of law from a case the previous day-beforehand, Wilmer LJ had disagreed but in the above case he had to agree.

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10
Q

Automatic Telephone Electric v Registrar of Restrictive Trading Agreements (1965)

A

Example of: judicial precedent

Facts: This case was same point of law from a case the previous day-beforehand, Wilmer LJ had disagreed but in the above case he had to agree.

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11
Q

What is persuasive precedent?

A

A decision which does not have to be followed by later cases, but which a judge may decide to follow.

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12
Q

A decision which does not have to be followed by later cases, but which a judge may decide to follow.

A

Persuasive precedent

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13
Q

Sources of persuasive precedent

A

1) Lower courts-R v R (1991)
2) Judicial members of the Privy Council-Wagon Mound (1961)
3) Obiter dicta
4) Dissenting judgement
5) International courts-like the Commonwealth

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14
Q

What case is an example of persuasive precedent from a lower court?

A

R v R (1991)

Facts: House of Lords agreed on a point of law with the Court of Appeal-man found guilty of raping his wife.

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15
Q

What case is an example of persuasive precedent from a decision made by the Privy Council?

A

The Wagon Mound (No. 1) (1961)

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16
Q

What case is an example of persuasive precedent from ‘obiter dicta’?

A

R v Gotts (1992)

Facts: in R v Howe (1987) judges ruled duress could not be a defence to murder and ‘obiter dicta’ nor for attempted murder as in R v Gotts (1992)

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17
Q

What case did the judgement for R v Gotts (1992) rely on?

In what form?

A

R v Howe (1987)

Something said obiter dicta in Howe meant D was guilty in R v Gotts (1992)

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18
Q

What is a dissenting judgement?

A

A judgement given by a judge who disagrees with the reasoning of the majority of judges in the case-his or her judgement is then used in future cases.

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19
Q

A judgement given by a judge who disagrees with the reasoning of the majority of judges in the case-his or her judgement is then used in future cases.

A

Dissenting judgement

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20
Q

In what circumstances might a court not be bound to follow the decision of superior or their own courts?

A

1) CJEU (EU law)

2) Human Rights-Human Rights Act 1998 binds courts to follow ECHR judgements

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21
Q

What is an appellate court?

A

A court that hears appeals?

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22
Q

What is the name for a court that hears appeals?

A

An appellate court

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23
Q

What are the appellate courts?

A

1) Supreme Court
2) Court of Appeal
3) Divisional Courts

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24
Q

1) Supreme Court
2) Court of Appeal
3) Divisional Courts

What is the significance of these Courts?

A

They are the 3 appellate Courts in our legal system.

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25
Q

Hierarchy of the Civil Courts Lowest to Highest

A

1) Magistrates’ Court
2) County Court
3) High Court
4) Divisional Courts
5) Court of Appeal (Civil Division)
6) Supreme Court

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26
Q

Hierarchy of the Criminal Courts lowest to highest

A

1) Magistrates’ Court
2) Crown Court
3) Queen’s Bench Divisional Court
4) Court of Appeal (Criminal Division)
5) Supreme Court

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27
Q

What are the 3 divisional Courts?

A

1) Queen’s Bench
2) Chancery
3) Family

28
Q

What is the significance of the case of London Street Tramways v London CC (1898) for the House of Lords?

A

From this point House of Lords was bound by its own previous decisions rather than discretion.

Until the 1966 Practice Statement.

29
Q

What case meant the House of Lords would be bound by its own previous judgements?

A

London Street Tramways v London CC (1898)

Until the 1966 Practice Statement.

30
Q

What was the main issue from the House of Lords decision in 1898 to be bound by its own decisions?

What case highlighted this issue?

A

It could no longer adapt to societies needs.

DPP v Smith (1961)-D guilty of murder due to foresight of reasonable person-murder requires intent.

31
Q

What case demonstrated the negative effect of the House of Lords decision in 1898 to be bound by its previous decisions?

A

DPP v Smith (1961)

Facts: D was guilty of murder as a reasonable person would have foreseen such a consequence-but murder requires intent.

32
Q

DPP v Smith (1961)

What is the significance of this case to the judicial precedent of the House of Lords?

A

Demonstrates the disadvantage of the House of Lords being bound by its own previous judgements.

33
Q

Post 1898-House of Lords was bound by its own decisions, which caused rigid and unfair results-what changed this?

A

1966 Practice Statement changed the rule from the 1898 case.

London Street Tramways v London CC (1898)

34
Q

What is the significance of the 1966 Practice Statement to the House of Lords regarding judicial precedent?

A

It allowed for flexibility in decision making once again.

Since London Street Tramways v London CC (1898) the House of Lords had been bound by its own previous decisions.

35
Q

What was the first case where the 1966 Practice Statement was used to assist in judicial precedent?

A

Conway v Rimmer (1968)

36
Q

Conway v Rimmer (1968)

What does this case demonstrate regarding judicial precedent?

A

It is the first use of the new rules given to House of Lords by the 1966 Practice Statement regarding judicial precedent.

37
Q

What case was the first major use of the 1966 Practice Statement for judicial precedent?

What case did it contrast with?

A

Herrington v British Rails Board (1972)

Contrast: Addie v Dumbreck (1929)

Facts: Concerned duty of care owed to a child trespasser.

38
Q

Herrington v British Rails Board (1972)

What is the significance of this case for judicial precedent?

Contrasting case?

A

First major use of the 1966 Practice Statement by the House of Lords for judicial precedent.

Contrast: Addie v Dumbreck (1929)

Facts: Concerns duty of care owed to child trespassers.

39
Q

What case shows that the House of Lords was still reluctant to use the 1966 Practice Statement, preferring to maintain the ‘certainty of law’?

A

Knuller v DPP (1973)

40
Q

Knuller v DPP (1973)

What is the significance of this case regarding judicial precedent in the House of Lords?

A

House of Lords were still reluctant to use the 1966 Practice Statement-preferring to maintain the ‘certainty of law’.

41
Q

What case is a significant use of the 1966 Practice Statement to overrule a previous decision of the House of Lords?

In what way?

A

Pepper v Hart (1993)

Use of Hansard in statutory interpretation.

42
Q

Pepper v Hart (1993)

Significance of this case regarding judicial precedent in the House of Lords?

A

An example of significant use of the 1966 Practice Statement to overrule a previous decision by the House.

In this case, Hansard was used for statutory interpretation when it wasn’t previously allowed.

43
Q

What case is an example of the use of the 1966 Practice Statement in a Criminal case?

What case did it overrule?

A

R v G (2003)

Met Police v Caldwell (1982)

44
Q

R v G (2003)

Significance of this case regarding the 1966 Practice Statement?

A

Example of use of 1966 Practice Statement in a Criminal case.

45
Q

What Court took on the duty of the House of Lords and when?

A

Supreme Court

2009

46
Q

What statute passed on the powers from the House of Lords to the Supreme Court?

A

Constitutional Reform Act 2005

47
Q

What case confirmed that in the transfer of powers between HoL and Supreme Court that included powers from the 1966 Practice Statement?

A

Austin v London Borough of Southwark (2010)

No overrule happened but it was confirmed nonetheless.

48
Q

Austin v London Borough of Southwark (2010)

A

Confirmed that when powers transferred between HoL and Supreme Court, that also included the powers in the 1966 Practice Statement.

49
Q

What case is an example of when the Court of Appeal refused to follow a judgement by the HoL?

A

Miliangos v George Frank (1976)

Facts: rule in previous case said that damages could only be paid in sterling.

50
Q

Miliangos v George Frank (1976)

What is this case an example of?

A

When the Court of Appeal refused to follow a judgement by HoL.

51
Q

What is the argument for the Court of Appeal being allowed to refuse previous judgements by a higher court?

A

So that the law can be changed more rapidly, rather than having to get right to the Supreme Court to be changed.

52
Q

What case shows that judgements in the Court of Appeal are binding to future decisions in the same court?

A

Young v Bristol Aeroplane (1944)

53
Q

Young v Bristol Aeroplane (1944)

What is the significance of this case regarding judicial precedent?

A

Shows that judgements in the Court of Appeal are binding to future cases in the Court of Appeal.

54
Q

What case shows that in the Court of Appeal (Criminal Division) a previous judgement doesn’t have to be followed if the law had been ‘misapplied or misunderstood’?

A

R v Gould (1968)

55
Q

R v Gould (1968)

Significance of this case regarding judicial precedent.

A

Court of Appeal (Criminal Division) does not have to follow previous judgements if the law was ‘misapplied or misunderstood’.

56
Q

What is ‘ratio decidendi’?

A

The reason for the decision-this forms a precedent for future cases.

57
Q

The reason for the decision-this forms a precedent for future cases.

A

ratio decidendi

58
Q

What is ‘obiter dicta’?

A

Other things said, as in, not included in the ‘ratio decidendi’.

59
Q

Other things said, as in, not included in the ‘ratio decidendi’.

A

obiter dicta

60
Q

What two cases demonstrate ‘distinguishing’ in judicial precedent?

A

Balfour v Balfour (1919) and Merritt v Merritt (1971)

Facts: First case was a contract during a marriage, second was after divorce.

61
Q

What does ‘distinguishing’ mean regarding judicial precedent?

A

When a judge looks for a difference between a current and previous case so that they are not bound by the first case.

62
Q

When a judge looks for a difference between a current and previous case so that they are not bound by the first case.

A

Distinguishing regarding judicial precedent.

63
Q

Balfour v Balfour (1919) and Merritt v Merritt (1971)

What are these two cases examples of regarding judicial precedent?

A

A judge ‘distinguishing’ between 2 cases.

Facts: Both cases involved contracts with a married and formerly married couple.

64
Q

What statute demonstrates that when a statute contradicts a previously decided case then, that case decision will cease to have effect?

A

Law Reform (Year and a Day Rule) Act 1996.

Regarding year and a day rule for murder.

65
Q

Law Reform (Year and a Day Rule) Act 1996

Significance regarding judicial precedent?

A

When a new statute overrules a previous point of case law, it then becomes the law.

66
Q

Advantages to precedent?

A

1) Certainty
2) Consistency
3) Precision
4) Time saving

67
Q

Disadvantages to precedent?

A

1) Rigidity
2) Complexity
3) Illogical distinctions-due to distinguishing
4) Law changes slowly

Year 1 A level Law AQA Textbook (22 decks)

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