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The Legal System and Law Making > Judical precedent > Flashcards

Judical precedent Flashcards

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1
Q

Judicial precedent

A

Source of law where decisions create law for future judges to follow.

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2
Q

Stare decisis

A

Decisions can be looked at by other judges in later cases.

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3
Q

Ratio decidendi

A

Judges reason for deciding the court case.

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4
Q

Obiter Dicta

A

Anything which isn’t ratio decidendi.

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5
Q

Original precedent

A

A new law created and followed.

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6
Q

Persuasive precedent

A

Court decisions that are advisory only.

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7
Q

Overruling

A

Power of court to decide that a previous decision was wrongly made and not followed.

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8
Q

Reversing

A

When a court higher up in the hierarchy on appeal overturns a lower court decision in same case.

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9
Q

Distinguishing

A

When the facts of the case are deemed sufficiently different so the previous case is no longer binding.

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10
Q

Whats the order of the courts?

A

Supreme
Court of appeal
High court
County and crown court
Tribunals and Magistrates

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11
Q

What did sir Rupert Cross say about ratio decidendi ?

A

‘Any rule expressly or impliedly treated by the judge as a neccesary step to reaching his conclusion’

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12
Q

Howe

A

Obiter dicta Hl duress no defence to murder.

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13
Q

Gotts

A

Hl followed Howe and in ratio decidendi ruled duress can not be a defence for attempted murder.

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14
Q

Examples of original precedent

A

Donoghue
Hunter
Fearn

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15
Q

Binding precedent

A

Legal principle must be followed.

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16
Q

When is a precedent binding?

A

If its from higher courts.

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17
Q

Example of binding precedent

A

Scruttons

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18
Q

Persuasive precedent

A

Obiter dicta statements
Discussion of hypothetical situation
Decisions by privy council
Dissenting judgement
Decisions from other countries

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19
Q

Obiter dicta statements case

A

Howe

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20
Q

Discussion of hypothetical situation case

A

Baxter

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21
Q

Decisions by privy council case

A

mound

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22
Q

Dissenting judgement case

A

Brown

23
Q

Decisions from other countries

A

Lister

24
Q

London street tramways

A

HL decided bound unless error in the law.

25
Q

British railways

A

Lord chancellor and HL announced change allowed to depart if it felt right to do so.

26
Q

Example of HL choice case

A

Adie

27
Q

EU Law

A

Less significant following Brexit

28
Q

ECHR

A

Must take account of decisions but are not bound to them.

29
Q

Court of appeal must follow previous decisions except

A

Conflicting decisions
Decision of UKSC overrules court of appeal
Decision made by mistake

30
Q

Court of appeal must follow previous decisions case

A

Young-v-Bristol Aeroplane

31
Q

Decision made by mistake case

A

Fawcett

32
Q

Whats the extra exception for criminal?

A

Where law misapplied or misunderstood

33
Q

Where law misapplied or misunderstood case

A

Taylor

34
Q

ford:

A

Follow
Overrule
Reverse
Distinguish

35
Q

Reverse case

A

parsley

36
Q

Distinguish case

A

Merritt

37
Q

Law reports

A

Efficient system of law reporting is required.
Half a million exist.
Law reports now available online.

38
Q

where are law reports available online?

A

Court service website

39
Q

Advantages of Judical precedent

A

Certainty
Consistency and fair
Flexibility
Time saving

40
Q

certainty

A

Judges follow past decisions
Lawyers able too advise clients
Practise statement made clear keeping certainty was essential.

41
Q

certainty case

A

Jones

42
Q

Consistency and fair

A

Just and fair cases decided similar way, Law must be consistent if credible.

43
Q

Flexibility

A

Judges can overrule previous precedent, Law keeps updated with changes in society

44
Q

Flexibility case

A

merritt

45
Q

Time saving

A

Lengthy process of changing legislation in parliament is avoided
Lawyers clearly advise so saves clients money and time

46
Q

Time saving case

A

R

47
Q

Disadvantages

A

Rigid
Complex
Violates parliament supremacy
Slow to growth

48
Q

Rigid

A

Lower courts bound by higher courts
bad decisions repeated by lower courts cause injustice
change in precedent is limited

49
Q

Rigid case

A

Jones

50
Q

Complex

A

Million reported cases so difficult to cross refer
court judgements can be long with no clear distinctions between comments and reasons.

51
Q

Complex case

A

Rickards

52
Q

Violates parliament supremacy

A

Judges able to make precedent goes against going through parliament
less democratic

53
Q

Violates parliament supremacy case

A

R

54
Q

Slow to growth

A

Only 50 cases go through supreme court a year.

The Legal System and Law Making (16 decks)

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