6-Law making: judicial precedent Flashcards
What is judicial precedent?
Where past decisions of judges create law for future judges to follow.
Where past decisions of judges create law for future judges to follow.
Judicial precedent
What is the latin term for judicial precedent?
stare decisis
stare decisis
Latin term for judicial precedent
Original precedent?
A decision on a point of law that hasn’t been decided yet.
A decision on a point of law that hasn’t been decided yet.
Original precedent
Binding precedent
A decision in an earlier case which must be followed in later cases.
A decision in an earlier case which must be followed in later cases.
Binding precedent
What case is an example of judicial precedent?
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.
Automatic Telephone Electric v Registrar of Restrictive Trading Agreements (1965)
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.
What is persuasive precedent?
A decision which does not have to be followed by later cases, but which a judge may decide to follow.
A decision which does not have to be followed by later cases, but which a judge may decide to follow.
Persuasive precedent
Sources of persuasive precedent
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
What case is an example of persuasive precedent from a lower court?
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.
What case is an example of persuasive precedent from a decision made by the Privy Council?
The Wagon Mound (No. 1) (1961)
What case is an example of persuasive precedent from ‘obiter dicta’?
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)
What case did the judgement for R v Gotts (1992) rely on?
In what form?
R v Howe (1987)
Something said obiter dicta in Howe meant D was guilty in R v Gotts (1992)
What is a dissenting judgement?
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 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.
Dissenting judgement
In what circumstances might a court not be bound to follow the decision of superior or their own courts?
1) CJEU (EU law)
2) Human Rights-Human Rights Act 1998 binds courts to follow ECHR judgements
What is an appellate court?
A court that hears appeals?
What is the name for a court that hears appeals?
An appellate court
What are the appellate courts?
1) Supreme Court
2) Court of Appeal
3) Divisional Courts
1) Supreme Court
2) Court of Appeal
3) Divisional Courts
What is the significance of these Courts?
They are the 3 appellate Courts in our legal system.
Hierarchy of the Civil Courts Lowest to Highest
1) Magistrates’ Court
2) County Court
3) High Court
4) Divisional Courts
5) Court of Appeal (Civil Division)
6) Supreme Court
Hierarchy of the Criminal Courts lowest to highest
1) Magistrates’ Court
2) Crown Court
3) Queen’s Bench Divisional Court
4) Court of Appeal (Criminal Division)
5) Supreme Court
What are the 3 divisional Courts?
1) Queen’s Bench
2) Chancery
3) Family
What is the significance of the case of London Street Tramways v London CC (1898) for the House of Lords?
From this point House of Lords was bound by its own previous decisions rather than discretion.
Until the 1966 Practice Statement.
What case meant the House of Lords would be bound by its own previous judgements?
London Street Tramways v London CC (1898)
Until the 1966 Practice Statement.
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?
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.
What case demonstrated the negative effect of the House of Lords decision in 1898 to be bound by its previous decisions?
DPP v Smith (1961)
Facts: D was guilty of murder as a reasonable person would have foreseen such a consequence-but murder requires intent.
DPP v Smith (1961)
What is the significance of this case to the judicial precedent of the House of Lords?
Demonstrates the disadvantage of the House of Lords being bound by its own previous judgements.
Post 1898-House of Lords was bound by its own decisions, which caused rigid and unfair results-what changed this?
1966 Practice Statement changed the rule from the 1898 case.
London Street Tramways v London CC (1898)
What is the significance of the 1966 Practice Statement to the House of Lords regarding judicial precedent?
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.
What was the first case where the 1966 Practice Statement was used to assist in judicial precedent?
Conway v Rimmer (1968)
Conway v Rimmer (1968)
What does this case demonstrate regarding judicial precedent?
It is the first use of the new rules given to House of Lords by the 1966 Practice Statement regarding judicial precedent.
What case was the first major use of the 1966 Practice Statement for judicial precedent?
What case did it contrast with?
Herrington v British Rails Board (1972)
Contrast: Addie v Dumbreck (1929)
Facts: Concerned duty of care owed to a child trespasser.
Herrington v British Rails Board (1972)
What is the significance of this case for judicial precedent?
Contrasting case?
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.
What case shows that the House of Lords was still reluctant to use the 1966 Practice Statement, preferring to maintain the ‘certainty of law’?
Knuller v DPP (1973)
Knuller v DPP (1973)
What is the significance of this case regarding judicial precedent in the House of Lords?
House of Lords were still reluctant to use the 1966 Practice Statement-preferring to maintain the ‘certainty of law’.
What case is a significant use of the 1966 Practice Statement to overrule a previous decision of the House of Lords?
In what way?
Pepper v Hart (1993)
Use of Hansard in statutory interpretation.
Pepper v Hart (1993)
Significance of this case regarding judicial precedent in the House of Lords?
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.
What case is an example of the use of the 1966 Practice Statement in a Criminal case?
What case did it overrule?
R v G (2003)
Met Police v Caldwell (1982)
R v G (2003)
Significance of this case regarding the 1966 Practice Statement?
Example of use of 1966 Practice Statement in a Criminal case.
What Court took on the duty of the House of Lords and when?
Supreme Court
2009
What statute passed on the powers from the House of Lords to the Supreme Court?
Constitutional Reform Act 2005
What case confirmed that in the transfer of powers between HoL and Supreme Court that included powers from the 1966 Practice Statement?
Austin v London Borough of Southwark (2010)
No overrule happened but it was confirmed nonetheless.
Austin v London Borough of Southwark (2010)
Confirmed that when powers transferred between HoL and Supreme Court, that also included the powers in the 1966 Practice Statement.
What case is an example of when the Court of Appeal refused to follow a judgement by the HoL?
Miliangos v George Frank (1976)
Facts: rule in previous case said that damages could only be paid in sterling.
Miliangos v George Frank (1976)
What is this case an example of?
When the Court of Appeal refused to follow a judgement by HoL.
What is the argument for the Court of Appeal being allowed to refuse previous judgements by a higher court?
So that the law can be changed more rapidly, rather than having to get right to the Supreme Court to be changed.
What case shows that judgements in the Court of Appeal are binding to future decisions in the same court?
Young v Bristol Aeroplane (1944)
Young v Bristol Aeroplane (1944)
What is the significance of this case regarding judicial precedent?
Shows that judgements in the Court of Appeal are binding to future cases in the Court of Appeal.
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’?
R v Gould (1968)
R v Gould (1968)
Significance of this case regarding judicial precedent.
Court of Appeal (Criminal Division) does not have to follow previous judgements if the law was ‘misapplied or misunderstood’.
What is ‘ratio decidendi’?
The reason for the decision-this forms a precedent for future cases.
The reason for the decision-this forms a precedent for future cases.
ratio decidendi
What is ‘obiter dicta’?
Other things said, as in, not included in the ‘ratio decidendi’.
Other things said, as in, not included in the ‘ratio decidendi’.
obiter dicta
What two cases demonstrate ‘distinguishing’ in judicial precedent?
Balfour v Balfour (1919) and Merritt v Merritt (1971)
Facts: First case was a contract during a marriage, second was after divorce.
What does ‘distinguishing’ mean regarding judicial precedent?
When a judge looks for a difference between a current and previous case so that they are not bound by the first case.
When a judge looks for a difference between a current and previous case so that they are not bound by the first case.
Distinguishing regarding judicial precedent.
Balfour v Balfour (1919) and Merritt v Merritt (1971)
What are these two cases examples of regarding judicial precedent?
A judge ‘distinguishing’ between 2 cases.
Facts: Both cases involved contracts with a married and formerly married couple.
What statute demonstrates that when a statute contradicts a previously decided case then, that case decision will cease to have effect?
Law Reform (Year and a Day Rule) Act 1996.
Regarding year and a day rule for murder.
Law Reform (Year and a Day Rule) Act 1996
Significance regarding judicial precedent?
When a new statute overrules a previous point of case law, it then becomes the law.
Advantages to precedent?
1) Certainty
2) Consistency
3) Precision
4) Time saving
Disadvantages to precedent?
1) Rigidity
2) Complexity
3) Illogical distinctions-due to distinguishing
4) Law changes slowly
