Judicail Precedant Flashcards
What is Judicial Precedent ?
requires judges to follow decisions made on same points of law by higher courts in earlier cases, judges in subsequent cases are obliged to follow
based on principle of state decisis (let the decision stand)
What is court hierarchy ?
courts organised into hierarchy , court placed in superiority/inferiority
precedent operates top down on system
binding on all courts below it not above
current hierarchy est. by Judicator Acts 1873-5
What is the order of the hierarchy of courts ?
Supreme Court (binds all)
Court of Appeal (binds ⬇️)
High court (bind county)
County courts (not binding)
Crown court (not binding, persuasive)
Magistrate court (not binding)
Why are law reports important ?
the effectiveness of a doctrine of precedent depends on the availability of full & accurate reports of decided cases
When would a case need a law report ?
if it introduces a new principle/rule of law, materially modify existing principle of law or settle doubtful question of law
OR interpretations/new applications of existing principles
Who produces the most highly regarded Law reports and when was it set up ?
produced by Incorporated Council for Law Reporting (ICLR) set up 1865 publ. seperate vol. of Appeal Cases
What are some other examples of All-England Law Reports ?
newspapers, journals e.g The Times, The New Law Journal and many online
What is Racio Decidendi ?
‘reason for deciding’ - key reason 4 judge decis., part of judgement which forms binding precedent
example of ratio decedendi ?
Donoghue V Stevenson 1932 - neighbour test est. to determine when a person would be under a duty of care
What is Obiter Dicta ?
‘other things said’ statements included in a judgement which are incidental and not necessary for judges decision
When would a judge use obiter dicta ?
where there is no binding precedent, judge must look for persuasion and can be persuaded by a variety of sources
How does R V Howe 1987 illustrate that judges may look at previous decisions in cases from other judges for guidance ?
defence of duress to murder charge, HoL suggested duress shouldn’t be available for attempted murder this was picked up in R V Gotts and became ratio decedendi
What happened in R V R 1991 in relation to decisions of foreign jurisdictions ?
HoL created new binding precedent that a man could be guilty of raping his wife - based on scottish courts intro of matrimonial rape
What happened in Lister V Hester Hall 2001 in regards to decisions of foreign jurisdiction ?
HoL create new binding precedent based on Canadian SC decision that residential school vicariously liable for SA of its residents by warden
What can the decision of lower courts change about how a judge uses the law ?
they can be persuasive to superior judges
