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AS Law LA2 > Doctrine of Precedent > Flashcards

Doctrine of Precedent Flashcards

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1
Q

What is precedent?

A

Source of law

Past decisions of the judges create law for future judges to follow

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2
Q

What is judicial precedent also known as?

A

Case/ common law

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3
Q

What is precedent bases upon?

A

Latin phrase ‘stare decisis’

- To stand by what has already been decided

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4
Q

How does precedent work?

A

Judges of lower Cts must apply decisions set by higher Cts

Once precedent = made, MUST be followed

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5
Q

What are the 2 parts to a precedent?

What do they mean?

A
  1. Ratio decidendi - Reason for deciding

2. Obiter Dicta - Other things said

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6
Q

What is ratio decidendi?

A

Most important part of the decision - the reason (statement) of why you decided it
What was established
R v R (1991) HL - rape within marriage illegal

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7
Q

What is obiter dicta?

A

Other things said by the judge
Not binding but may influence future judges in future cases
Hypothetical situation

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8
Q

What was the ratio decidendi and the obiter dicta in R v Howe

A

Ratio: duress = unavailable D charged murder

Obiter dicta: judge said that they thought the defence of duress should be unavailable for attempted murder too (Howe = murder case)

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9
Q

What are the 3 types of precedent?

A
  1. Original
  2. Binding
  3. Persuasive
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10
Q

What is persuasive precedent?

A

Precedent judge is not obligated to follow

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11
Q

What is original precedent?

A

When Cts have no previous case law to apply to the facts of their case
Judges look at similar cases + make a decision by ‘reasoning by analogy’
e.g Donoghue v Stephenson (1932) - duty of care

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12
Q

What is binding precedent?

A

Precedent that is binding for other judges to follow

Set by judges in the higher courts

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13
Q

What are the 5 sources of persuasive precedent?

A
  1. Court lower down in the hierarchy (R v R)
  2. Decisions of judicial committee of privy council
  3. Obiter dicta statements (R v Howe -> R v Gotts)
  4. Dissenting judgements
  5. Decisions of Cts from other countries (especially commonwealth)
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14
Q

R v R (1991)

A

HL agreed with the CA that a man could be found G of raping his wife
(persuasive precedent)

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15
Q

Why is the Privy Council a source of persuasive precedent?

A

Not part of the English Ct structure
= final CA for some commonwealth countries, so decisions aren’t binding on Eng Cts
BUT can be followed by Cts
Supreme Ct = superior

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16
Q

R v Gotts

A

Attempted murder case

Supreme Ct was persuaded by obiter in R v Howe - that the defence of duress was unavailable to attempted murder.

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17
Q

What is dissenting judgement?

A

Judge who disagrees with maj = referred as a dissenting judgement
Case is decided by the majority of judges (CA = 2-1)

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18
Q

What happens if there is a dissenting judgement and the case /similar future case gets referred to Supreme Ct?

A

Ct can prefer the dissenting judgement

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19
Q

What is the Ct hierarchy in civil cases?

A 
ECJ
Supreme Ct
CA (Civil division)
High Ct
County Ct
Magistrate's Ct
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20
Q

What is the Ct hierarchy in criminal cases?

A 
ECJ
Supreme Ct
CA (Criminal division)
QBD/ High Ct
Crown Ct
Magistrate's Ct
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21
Q

What was the Supreme Ct previously called?

Why was it changed?

A

HL

Now have clarity over wether = 2nd chamber of P or Ct in our legal system

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22
Q

Whose rulings does the supreme Ct have to follow?

A

European Ct on matters of EU law only

23
Q

What is the 1966 Practice Statement?

A

Supreme Ct can depart form previous decisions (overrule) if they see it ‘right to do so’
ONLY applies to supreme Ct

24
Q

Who issued to PS?

A

Lord Chancellor + Lord Gardiner

25
Q

Why was the PS issued?

A

Create flexibility in law so precedent wouldn’t lead to injustices

26
Q

What was the 1st major civil case that the PS was used in?

A

Herrington v British Railway Board (HL)
overruled
Addie v Dumbreck
on duty of care owed to a child trespasser

27
Q

What is a danger of the PS being used too many times?

A

Too many inconsistencies - sometimes judges refuse to use it, even if they disagree with previous decisions

28
Q

At what time did the HL become more willing to use the PS?

A

Mid 1970s

29
Q

What case lifted the ban on using Hansard in statutory interpretation?

A

Davis v Johnson

HL overruled Pepper v Hart

30
Q

Can the PS be used in criminal law?

A

Yes not too often

Stressed that criminal law needs to be certain

31
Q

When was the 1st time the PS was used in a criminal case?

A

20 years after being issued
Anderton v Ryan (1985) was overruled by R v Shivpuri (1986)
- on attempting to commit a crime that = impossible to commit

32
Q

Do the decisions made by the divisions in the CA bind each other?

A

No

33
Q

What division of the CA must always try to follow the Supreme Ct?

A

Civil

34
Q

What did Lord Denning believe about the PS and the CA?

A

Ca should have the same powers as supreme Ct and be able to depart from previous decisions too

35
Q

What were the 5 points that Lord Denning argued?

A
  1. Not all cases go to supreme Ct (lack of ££)
  2. Would save unnecessary appeals, charter for parties involved
  3. Pressure of time
  4. Permission to appeal is not always given
  5. CA Ct in particular has expertise in crim law
36
Q

In what case did Denning reuse to follow the previous decision?
What happened?

A

Broome v Cassell (1971)
Supreme Ct told him that he couldn’t do this, can’t undermine the supreme Cts power

Didn’t stop Denning, has continued to refuse to follow previous decisions

37
Q

What are the 2 things that could happen if power of PS was extended to CA?

A
  1. Undermine role of supreme Ct - may lead to call for it to be abolished
  2. reduce certainty, undermine precedent system
38
Q

What are the 3 exceptions where the CA doesn’t have to bind itself?

A
  1. Where there is a previous SCt + CA decision, the CA must follow the SCt decision
  2. If 2 previous CA decisions, can choose which to follow
  3. Where an earlier decision was made per incuriam, CA doesn’t have to follow it
39
Q

What case established the fact that the CA binds itself, apart from 3 exceptions?

A

Young v Bristol Aeroplanes Co Ltd

40
Q

William v Fawcett

A

Per Incuriam was used

CA refused to follow previous decision; = based on misunderstanding of County Ct rules in terms of procedures

41
Q

When can the criminal division of the CA depart from its previous decisions?

A

If a D’s liberty is at stake
But should try to act like the civil Ct

R v Spencer

42
Q

What are the 3 divisions in the High Ct?

A
  1. QBD
  2. Chancery division
  3. Family division
43
Q

What Cts are the divisions of the High Ct bound by?

A

All the Cts above it (ECJ, SCt, CA)
DON’T have to follow previous decisions, but frequently do
Its decisions bind all lower Cts (Mag)

44
Q

What are the 3 ways a judge can avoid following a precedent?

A
  1. Overruling (SCt - PS)
  2. Distinguishing
  3. Reversing
45
Q

How can Cts use distinguishing to not follow a precedent?

A

Can distinguish between case facts - not similar enough

Merritt v Merritt said the facts were different to Balfour v Balfour

46
Q

What are the 3 ways Cts can reverse precedent?

A
  1. Higher Cts can overturn a decision made by a lower Ct on appeal in the same case (Kennedy)
  2. Crim division can depart from previous decisions
  3. Judge can say that previous decision = PER INCURIAM (in error)
47
Q

What are the 6 advantages of judicial precedent?

A
  1. Certainty in law
  2. Consistency
  3. Precision - principles of law = gradual
  4. Flexible - old adapted (PS)meet needs S
  5. Time saving -principle = prev established
  6. Practical = based real cases, not hypothetical
48
Q

What are the 5 disadvantages of judicial precedent?

A
  1. Inflexible, lower Cts don’t have choice
  2. Complexity - many cases consider
  3. Difficult extract ratio, confuse obiter dicta
  4. Illogical distinctions - can draw fine line
  5. Slowness of growth
49
Q

What is the declaratory theory?

A

Judges don’t create/ change the law, they declare what it has always been

50
Q

Name 2 judges that disagree with the declaratory theory?

What supporting evidence of their view?

A

Lord Reid + Lord Denning

Judges make/ change law in landmark cases (R v R)

51
Q

What is it called when judges look at similar case law IOT reach a decision?

A

‘Reasoning by analogy’

Used in Original precedent

52
Q

Describe the case of Anderton v Ryan (1986) HL

A

Mrs Anderton = found NG of attempted handling
She brought a video recorder that she thought was stolen but it wasn’t

Overruled the car of R v Shivpuri (1985) HL

53
Q

Describe the case of R v Shivpuri (1985) HL

A

D was found G of the attempted trafficking of drugs
D thought he was smuggling narcotics
Was actually smuggling a harmless herbal substance

Decision in case was overruled by case of Anderton v Ryan (1986) HL

54
Q

Are the inferior Cts bound by their previous decisions?

A

No, they don’t bind themselves
Generally don’t decide any issues of importance so have no need to be bound by their previous decisions

But are bound by all Cts above them

AS Law LA2 (8 decks)

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