Describe The Ways In Which Judges Can Avoid Judicial Precedent Flashcards
What is the most common way judges handle judicial precedent?
Following a precedent is the most common way of handling a precedent, whereby the judge makes their decision in accordance with the precedent that has been previously set.
What does overruling mean in the context of judicial precedent?
Overruling is where a court in a later case states that the legal rule decided in an earlier case is wrong.
How can overruling occur?
Overruling can occur in two ways: firstly, when a higher court overrules a decision made in an earlier case by a lower court, and secondly, when a court can overrule its own decision.
Can you give an example of a higher court overruling a lower court’s decision?
In R v R, the House of Lords overruled previous decisions made in lower courts when making marital rape illegal.
What is the significance of the House of Lords Practice Statement 1966?
The Supreme Court can overrule its own decision under the House of Lords Practice Statement 1966 ‘where it appears right to do so’.
What is an example of the House of Lords overruling itself?
An example is the House of Lords overruling itself in the case of Pepper v Hart.In the case of Davis Johnson,the house had held that Hansard cannot be used as an extrinsic aid
What does reversing mean in judicial precedent?
Reversing only occurs in the specific case being appealed and is where the court hearing the appeal disagrees with the decision of the court below in the same case.
Can you provide an example of a case where the House of Lords reversed a decision?
In Gillick v West Norfolk and Wisbech Area Health Authority, the House of Lords reversed the decision of the Court of Appeal and held that it was lawful for a doctor to prescribe contraceptives to girls under 16 without the knowledge or consent of the parent.
What was the outcome of Sweet v Parsley?
In Sweet v Parsley, the House of Lords reversed the decision in the Court of Appeal and held that for D to be guilty, she had to have the mens rea for the offence of being concerned in the management of premises used for the purpose of smoking cannabis resin.Students were sub-letting her premises to smoke cannabis.She was found not guilty as was not aware it was happening.
What is distinguishing in legal context?
Distinguishing allows a judge to avoid following a precedent by deeming the facts of the current case sufficiently different from the case where the precedent was set.
Who can apply the principle of distinguishing?
Distinguishing is available to a judge of any level.
What was the precedent set in Balfour v Balfour?
The Court of Appeal held that a verbal agreement to pay allowance money from husband to wife was not a legally binding contract as it was just a domestic arrangement.
How was the precedent distinguished in Merritt v Merritt?
The Court of Appeal distinguished the precedent due to factual differences: the husband and wife were separated when the agreement was made, and it was made in writing, making it a legally binding contract.
