Judicial precedent Flashcards
What is common law and give an example of when this would be used
Judge made laws
-When there is no legislation relevant to the case
What is the doctrine of precedent
A rule which judges must follow due to past cases
What is the hierarchy of criminal and civil courts
Civil law
- European court of justice followed by supreme courts and magistrates
Criminal law
-Supreme court followed by court of appeal with magistrates at the bottom
The European court of justice
Get their authority not just from the English law but also from members of the EU
What is certainty
If law lords don’t follow common law, it could create uncertainty. Therefore the strict law of precedent avoids uncertainty as lawyers would be aware of the precedents
What is flexibility
When the law has not been changed fast enough, which could create a unjust result.
The 1966 practice statement
This indicated although house of lord preferred certainty , the practise statement suggested there should be some flexibility. Issued by Lord Chancellor which allowed house of lords to avoid earlier decisions when appropriate
Exceptions to court of appeal being bound by their own decision
- conflicting CoA decisions which allows judges to choose which past decision to follow
- supreme court/ HoL overrule their decision
- Past decision did not follow precedent. Per incarium
What was the humans right act 1988
Act give all courts freedom to ignore precedent when deciding points about human rights
What is Ratio Decidendi and Obiter Dicta
- the necessary steps taken when making a legal decision and the reason to why the decision was made.
- when there is no necessary law relevant to the case when making a judgement
What is original precedent
a new precedent where the law has no relevant legislation to the case
What is the difference between binding precedent and persuasive precedent
binding precedent sets out what judges are obliged to follow however it is not obliged in persuasive precedent as it is there to offer guidance
What is overruling and reversing
Overruling is when court is asked to examine wether precedents created by lower courts is correct. Reversing is when the CoA have to ‘reverse’ incorrect decisions
What is disapproving
This is not an attempt to avoid precedent however they will make it clear they disapprove of it for the future
