English Legal System: Judicial Precedent Flashcards
What does Stare Decisis mean?
Stand by what has been decided.
What does judicial precedent refer to?
The source of law where past decisions of judges create law for future judges to follow.
What does the doctrine of precedent mean?
Following the decision of previous cases.
What is Ratio Decidendi?
Reason for decision where the judge will give their reasons as to why they have reached a certain decision which may include the principle of law they have used.
What does Obiter Dicta mean?
Other things said where judges speculate on what their decision would have been if the facts of the case had been different.
What is original Precedent?
A decision in a point of law that has never been decided before.
What are two example cases of original precedent?
Donohue V Stevenson 1932: saw the creation of the neighbour test which is the principle that a person must take responsible care to avoid doing things that could harm others nearby.
Shaw V DDP 1962: The House of Lords in effect created the new crime conspiracy to corrupt public morals.
What is binding precedent?
A decision in an earlier case which must be followed in a later case.
What is an example case of binding precedent?
RE Automatic Telephone and Electric LTD’s agreement the judge was bound to follow the decision in the previous agreement for RE Schweppes LTD.
What is persuasive Precedent?
A decision that does not need to be followed in a later case.
What is an example cases of persuasive precedent?
R V R 1991: The House of Lords followed the same reasoning as the court of appeal in deciding that a man could be guilty of raping his wife.
What is the Privy Council?
A formal body of advisers to the sovereign of the UK.
What is an example case where the Privy council’s decision was used?
In the case R V James and Karimi 2006 the precedent had been set out in the privy council case Attorney General Jersey V Holley 2005.
What is dissenting judgement?
A judgement given by a judge who disagrees with the reasoning of the majority of judges in the case.
What is following?
When a judge decides to follow a previous precedent in a present case.
What is over ruling?
The procedure whereby a court higher up in the hierarchy sets aside a legal ruling established in a previous case.
What are two example cases where over ruling was used?
Pepper V Hart 1992: the House of Lords overruled Davis V Johnson 1878 on the use of Hansard.
R V R 1991: The House of Lords overturned the matrimonial exception to rape.
What is reversing?
The procedure by which a superior court in the hierarchy overturns the decision of a lower court in the same case.
What is an example case where reversing was used?
R V Woollin 1998: The house of Lords overturned the conviction for murder and substituted it for manslaughter.
What is distinguishing?
A method by which a judge avoids having to follow a binding precedent by finding the material facts of the case that are sufficiently different to the previous precedent.
What is an example case where distinguishing was used?
Merritt V Merritt 1971: The Court of Appeal distinguished the case of Balfour v Balfour on the grounds that the parties were separated.
What is the practice statement?
It was issued in 1966 which allowed the House of Lords to change the law if they believed that an earlier case was wrongly decided.
What is wrong with the Practice statement?
The fact that the Practice Statement gave flexibility to refuse to follow an earlier case “when it appears right to do so” gives little guidance as to when the Supreme court might overrule a previous decision.
What is an example case where the Practice statement was used?
British Railways Board v Herrington 1972: The House of Lords departed from their Addie v Dumbreck 1929 decision and held that the defendant railway company did owe a duty of common humanity to trespassers.
