Judicial Precedence (Criminal) Flashcards
What is the doctrine of judicial precedence?
The principle that past decisions of judges create law for future judges to follow
What do Judges have to look for?
A decision made by a higher court that dealt with similar cases/issues and apply the same principle to the current case
What does stare decisis mean?
Stand by what has been established and do not settle the unestablished
What does precedent rely on?
It relies on a system of law reporting by the Council of Law Reporting
What do law reports contain?
Full judgment of previous cases so similar cases can follow the same judgment
When are cases published?
Not always, only when the case sets a new principle of law
What does the judge do at the end of a case?
A speech called a judgment
What is The Ratio Decidendi?
When a judge gives a speech, they will explain the principles behind it (reason for the deciding) which creates a precedent for judges to follow
What does Ratio Decidendi translate to?
The reason for the deciding
What has The Ratio Decidendi been described as?
Any rule treated by the judge as a necessary step in reaching a decision - Sir Rupert Cross
Examples of legally binding ratio decidendi
R v Roberts - escape attempt made then it won’t break the chain of causation
What does The Orbita Dicta translate to?
Other things said
What is The Orbita Dicta?
Other parts that don’t form the ratio decidendi, judges in later cases may be influenced by it (persuasive precedent)
What are some examples of Obirta Dicta?
decisions of lower courts and decisions of other countries
A popular example of persuasive precedent?
Lord Denning’s hypothetical example in Hill x Baxter - if D was attacked by bees whilst driving, he would have the defense of automatism in a crash
What is binding precedent?
Must be followed by lower courts
What is not binding precedent?
Persuasive precedence only
Why is the hierarchy of the Courts important?
Lower courts are bound to follow the precedents set by courts on the same level or higher but will not bind the Supreme Court
Binding order for Criminal?
European, Supreme, Appeal, Queen’s Bench, Crown, Magistrates
Binding order for Civil?
European, Supreme, Appeal, Divisional, High, County
What unique power does the Supreme Court have?
It can depart from its previous decisions using the Practice Statment issued in 1966 when it is right to do so
Example of Practice Statement?
R v R: the law stated that a married woman could not refuse sex, something based on 19th-century views so it was changed
What methods may a judge use to avoid precedent?
Distinguishing, Overruling
What is Overruling?
When a court is asked to review whether a precedent created by a court at a lower level is the correct law (R v R 1991)
