Case Law Flashcards
what are the four sources of law
legislation
common law
european union law
european convention of human right
what is common law
law made in the courts, made by judges
constantly evolving and adapting
what is european union law
our membership of the EU ensures that this law actually takes precedence over our own
what is the european convention of human rights
ensures all of our courts protect the rights identified within the ECHR
magistrates court
summary/triable either way cases
traffic offences, minor assaults
what is the biggest sentence in magistrates court
£5000 fine or 6 months imprisonment
crown court
indictable offences
murder, rape, robbery
what is the biggest sentence in crown court
no limit
court of appeal
2 divisions (criminal and civil)
hears appeals of sentences and convictions given by crown court
heard by lord justices of appeal or high court judges
supreme court
hears cases of the most importance in criminal or civil where outcome impacts public
heard by supreme court justices
how does common law work
built on process of judicial precedent which means the process of judges making decisions based on what has happened there
what does the latin phrase ‘Stare Decisis’ mean
stand by the decision
means that judges must follow the actions of that case, regardless of their agreement in what they mean or whether they agree
pillars of judicial precedent
for judicial precedent to exist, the judges must be applying the law in a broadly similar way, the judges must follow decisions made in similar cases before them
name 6 law reports
all england law reports criminal appeal reports times law reports criminal law review the law reports online transcripts/twitter/websites
what is binding
not everything that a judge says is binding, the only part that will bind future judges is that ‘ratio decidendi’ or the ‘reason for the decision’
what is the ratio decidendi
the rule of law, expressly or impliedly treated by the judges as a necessary step in reaching his conclusion, having regard to the reasoning adopted by him
what is obiter dicta
when judges discuss other issues which contributed to the issue but were not directly relevant
it is not binding but may be persuasive
what is quashing
if the CoA allows an appeal on conviction, then that conviction is quashed
what is overruling
if CoA supreme court choose not to follow a precedent from court that which does not bind them, it has been overruled
what is reversing
if a case goes on appeal from the CoA to SC, and is allowed than the judgement of the lower court is reversed
what is disapproval
court may express disapproval at a decision, but do not want to or are unable to overrule it, but their expression of disapproval invites dissent and allows a court with higher authority to overrule if they so wish
what are decisions per incuriam
if a court has failed to spot something which is an obvious error through legislation or precedent and therefore feel it would be inappropriate to follow
give two advantages of case law
consistency = ensures that cases with similar material facts are treated the same and that neither receive different or inappropriate treatment at the hands of a judge
predictability = allows lawyers to advise their clients as to what is a likely outcome of the case. they may know whether a plea is good or bad idea
give two disadvantages of case law
inflexibility = can mean law remains the same with no change for many years
continual bad decisions = same ideas are perpetrated and therefore result in the same old, outdated or inappropriate law remains in place
