Chapter 3- Judicial precedence Flashcards
what does the word ‘precedent’ mean
‘an example serving for the future’
what does Judicial precedence mean
This is where decisions of judges create law for future judges to follow.
reasons for judicial precedence
-serves as a guidance for the future
-encourages certainty and predictability of the law
-in order to not offend judges from the past
-practicality.
The latin word ______ _________ encourages both uniformity, fairness and certainity in the law (‘stand by what has been decided and do not unsettle the established)
stare decicis
The types of precedent are
-binding precedent
-persuasive precedent
-original precedent
What is to happen in binding precedent
This means that past decisions in cases MUST be followed to the current case due to the similarities that they share
Precedent can only operate if the legal reasons for past decisions are known, therefore at the end of a case there will be a judgement – a speech made by the judge giving the decision and, more importantly, explaining the reasons for that decision. What is the latin word for this
RATIO DECIDENDI
what is persuasive precedent
This is a decision that is not binding and does not have to be followed but a judge may be persuaded/considering to follow it
what are the 5 sources that persuasive precedent looks at
-obiter dicta
-courts lower in the hierarchy
-decisions from the privy council
-dissenting judgements
-decisions made from other countries
Give a case example of persuasive precedent from courts lower in Hierarchy
R v R
-the supreme court agreed with the COA that a husband can be guilty of rape
Give a case example of the privy council
Jersey V Holley
-whether a person can have the freedom of self control. The Supreme Court was persuaded to follow decisions made by the privy council even though they are not binding of the English courts
What does obiter dicta mean
-This means “other things said” whereby a comment, suggestion or observation made by a judge in an opinion which does not necessarily resolve the case but may be persuasive
example case of Obiter dicta
-R v Hone
The term “duress” means a defence against a criminal charge.
in this case the judges ruled that in the case of murder, duress will not apply.
what is the major problem between Obiter dicta and ratio decidendi
In the judgements because it is in continuous format, it does not specify which is the obiter dicta and which is ratio decidendi so can be confusing
what is dissenting judgement
when a case has been decided based on a majority however theres a few disagreements. when the case is appealed, often at times the Supreme Court will follow the dissenting judgement and the decision will pass.
state and define the types of judicial tools
1) reversing- this is when a higher court overturns a decision made by a lower court
2)Distinguishing- this is when a judge tries to differentiate both cases to avoid following that precedent
3)overruling- this is when the decision made in an earlier case has been decided wrong by a current case
State hierarchy of courts for criminal cases
- SUPREME COURT
- COURT OF APPEAL
- QUEENS BENCH DIVISION
- CROWN COURT
- MAGISTRATE COURT
State the hierarchy of courts for civil case
-EUROPEAN COURT OF JUSTICE
-SUPREME COURT
-COA
-HIGH COURT
-COUNTY. COURT
what did the practice statement ensure
-It ensured that the HOL can deviate from past decisions only if it is the right thing to do
how was the practice statement used , use case examples of 3 where they followed and 3 they did not follow
1) to deviate from past decisions that were wrongly decided.
Conway V Rimmer (1968) that was overruled in Duncan V camel (1942) was whether documents should be disclosed or open to the public
OR “In a decided case”
2)
give a case example of a time the HOL went with precedence
Jones V Secretary of State for social services
followed the decision of the case Re Dowling
what are the circumstances that require the COA to not follow its own past decisions
1)When there is a conflict in the decisions
2)when there has been a per incurum
3)when the Supreme Court has overruled that decision
Advantages of Judicial precedence
1)certainty
2)fairness and consistency
3)precise
4)Time saving
Disadvantages of judicial precedence
1)Rigidity/inflexible
2)illogical distinguishing
3)complexity
4)slow growth
