Judicial precedent Flashcards
What is the doctrine of precedent?
Following the decisions of previous cases, especially of higher courts, based on the concept of stare decisis.
What is common law / case law?
Law developed by judges over the centuries.
Explain the Automatic Telephone Case 1965
Earlier that morning Schweppes had been in the court of appeal. One judge out of three disagreed, however in the afternoon in a case with similar facts, they all agreed. The previously disagreeing judge said that he was “bound by the decision of the majority in the previous case”. The judge had to follow original precedent.
What is original precedent?
If the point of law in a case has never been decided before, it forms a new precedent for future cases to follow. The judge will look at cases which are the closest in principle and decide to use similar rules.
What is binding precedent?
A precedent from an earlier case which must be followed even if the judge in the later case doesn’t agree with the principal. In order to be binding the facts must be sufficiently similar and the decision must be made by a senior or in some cases same level court.
What is a persuasive precedent?
A decision that does not need to be followed in future cases, but may be if the judge decides it’s the correct principle.
Where could a persuasive precedent come from?
Courts lower in the hierarchy, e.g. R v R 1991
Judicial Committee of the Privy Council - not part of the court system s not binding, but many of its judges are also part of the Supreme Court, e.g. The Wagon Mound (No 1) 1961
Statement made obiter dicta - other things said by the judge, e.g R v Howe (1987) and R v Gotts (1992)
Dissenting judgements - a judge who disagrees explains their reasons, and a higher court may prefer the dissenting judgement.
Decisions of courts in other countries - especially commonwealth countries which use the same ideas about common law
Explain R v R 1991
The House of Lords agreed with and followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife
Explain R v Howe (1987) and R v Gotts (1992)
In R v Howe (1987) the judge said obiter dicta that being under duress was not a defence for attempted murder, which the Court of Appeal used as persuasive precedent in R v Gotts (1992)
What is the hierarchy of civil courts?
Supreme court (previously the House of Lords) > Court of Appeal (Civil Division) > Divisional Courts > High Court > County Court
What is the hierarchy of criminal courts?
Supreme Court (previously HOL) > Court of Appeal (Criminal Division) > Queen’s Bench Divisional Court > Crown Court > Magistrates’ Court
What are the appellate courts?
Supreme Court, Court of Appeal, Divisional Courts, Queen’s Bench Divisional Court
What are the courts of first instance?
High Court, County Court, Crown Court, Magistrates’s Court
What courts are higher than Supreme?
European Courts of Justice, for EU law
And European Courts of Human Rights
