Judicial precedent Flashcards
What is the hierarchy of the courts criminal
- European court of justice
- Supreme court
- Court of appeal
- divisional courts
- High court
- Crown court
- Magistrates
What does stare decisis mean
‘stand by the decided’
the idea of fairness in law and creates certainty by treating similar cases in the same way.
What does Ratio decidendi mean
REASONS FOR DECISION
The speech at the end of each case that states the decisions and reasons for it (summary of the facts , review the arguments put forth by both parties and explain the principles of law used to come to the decision)
What are the three essential elements needed for precedent to work
- a comprehensive reliable system of law reporting, J wouldn’t be able to follow previous decisions unless they know about them
- A court hierarchy so that J know what decisions they must follow and which they are allowed to overrule
- Some way of identifying what parts of the judgement that are binding and separating from any other things that the judge might say.
What is the orbiter dicta
‘other things said’
sometimes the J may talk about what his decision would’ve been if the facts of the case were different (hypothetical).
What is original precedent
If a point of law in a case has never before been discussed or decided by judges then whatever the judge sitting the case decides will create precedent for future cases to follow.
Give cases for original precedent
Donoghue v Stevenson - Snail in root beer, established the neighbor principle
Hunter v Canary wharf - canary wharf building interrupted local people in many ways- ruled that the owner of the land can do whatever they like upon it
What is binding precedent
when precedent from an earlier case MUST be followed even if the J in the later case doesn’t agree with the legal principle.
ONLY used when the facts of the second case are SUFFICIENTLY similar to the original case and the decision made in the original case was made by a senior court to the one in the second case.
What is persuasive precedent
Where a judge in another court may decide to follow similar decisions made by other courts (often superior ones)
NOT BOUND TO THE DECISION
Examples of persuasive precedent
R V R 1991 where the House of Lords agreed and followed the same reasoning as the court of appeal decided that a man could be guilty of raping his wife.
Discuss in further detail the court hierarchy
- every court is bound by the decisions of a court above it in the hierarchy
- appellate courts generally bind themselves (courts that take appeals SC, C of A, divisional courts, C of J of the EU)
- exceptions when lower courts are not bound by english appellate court, when C of J of EU make decision and English courts have to follow, in cases involving human rights.
european court of justice
Highest court affecting English and Welsh law (whilst it remains in the EU)
Decide on the point of law which the case then comes back to England for the law to be applied
It is able to overrule its past decisions if necessary (contrasts the more rigid approach of english courts)
Supreme court
The most senior NATIONAL court .
It’s decisions bind all other courts in the English legal system.
NOT BOUND by its last decisions nor by the decisions of the HOL (what it was until 2009) but generally follows them.
What does the court of appeal do?
Under the Supreme court
Two divisions (civil and criminal)
Both divisiona are bound to follow the decisions of the Supreme court.
BOUND BY THEIR PAST DECISIONS
The C of A is more flexible where the point involves the liberty of the subject.
Divisional courts(Chancery, family, QBD)
Bound by the European court, C of A, SC
They are also bound by their own past decisions they bind all lower courts (including high court).
