Judicial Precedent Flashcards
what is the doctrine of precedent?
judges following the decisions of previous cases.
What is this kind of law also known as?
Case law
What is binding precedent?
A decision in an earlier case which must be followed in later cases even if judge doesn’t agree with principle.
When are binding precedent put into place, created?
Only created when facts of second case is sufficiently similar to original case and decision was made in a court which is senior to court hearing later case.
What is persuasive precedent?
Decisions which does not have to be followed by later cases, but judge may decide to follow.
What does the Latin maxim ‘stare decisis’ mean?
‘Stand by what has been decided and do not unsettle the established’. It is foundation of judicial precedent.
What is ratio decidendi?
This is the reason for the decision. This forms the precedent for future cases.
What is obiter dicta?
This means ‘other things said’. So it is all the rest of the judgement apart from ratio decidendi. Judges in future cases do not have to follow it.
Where does persuasive precedent come from?
Courts lower in hierarchy.
Decisions of the judicial committee of the privy council.
Statements made obiter dicta.
A dissenting judgement.
Decisions of courts in other countries.
Decisions of European court of Human rights.
What is a dissenting judgement?
A judgement given by a judge who disagrees with the reasoning of the majority of judges in the case. Example of when HoL followed this = Rose&Frank v Crompton Bros.
What is original precedent?
A decision on a point of law that has never been decided before. As no past cases to base decision, judges look at cases which are closest in principle. This so called reasoning by analogy.
Donoghue v Stevenson
What is the hierarchy of the criminal courts?
Supreme Court
Court of appeal
Queen’s bench division court
Crown court
Magistrates court
What are the 2 expectations where lower courts are not expected to follow decisions by higher courts?
When there is a decision of the court of justice of the European Union when the English courts have to follow that decision.
In cases involving human rights.
What are the appellate courts in the English legal system?
Court of justice of European Union
Supreme Court
Court of appeal
Divisional courts
What are appellate courts
Those that hear appeals.
What is the Supreme Court?
Most senior national court
Decisions bind all other courts
Replaced HoL in 2009
Not bound by its past decisions although generally will follow them.
What is the court of appeal?
2 divisions; civil and criminal
Bound to follow decisions of Supreme Court
Must usually follow past decisions of its own, although some exceptions to this in the young’s case
What is the divisional courts?
3 divisional courts: queens bench, chancery and family.
Bound to follow decisions of supreme and court of appeal.
What are courts of first instance?
Any court where original trial of a case is held.
High court and the inferior courts.
Who is high court bound by?
All courts above and binds lower courts
Who is inferior courts bound by?
These are= crown court, county court and magistrates.
Bound to follow decisions of all higher courts and unlikely that their decisions would create precedent.
What is the practise statement?
1966 Lord chancellor issued practise statement.
It allows HoL to change law if they believe earlier case was wrongly decided.
Also gives flexibility to refuse to follow an earlier case where it appears right to do so
Major use= Peppar v Hart (1993)
R v Shivpuri
What is overruling?
This is where a court in a later case states that the legal rule in an earlier case is wrong.
Occurs when higher courts overrules decision made in a lower court or when Supreme Court uses practise statement.
What is distinguishing?
A method by which a judge avoids having to follow what would otherwise be binding precedent because facts in a present case are different.
Used in Merritt v Merritt
Previous case was Balfour v Balfour.
What are advantages of judicial precedent?
Certainty as people know what the law is
flexibility, room for change e.g. practice statement
time saving, cases similar to past don’t have to go through lengthy process
disadvantages of judicial precedent
rigidity- lower courts must follow higher courts, Appeal has to follow past decisions, too inflexible and bad past decisions can be perpetuated
complexity- not easy to find relevant law, judgements are long, no distinction between ratio decidendi and obiter dicta
illogical distinctions- distinguishing can lead to complex law
