Judicial Precedent Flashcards
What is judicial precedent?
Where the past decisions of judges create law for future judges to follow in similar cases
What does stare decisis mean?
Stand by the decisions of past cases
What is a binding precedent?
Law from an earlier case which must be followed even if the judge in the current case does not agree with the law
When is a binding precedent created?
When facts of the second case are sufficiently similar to the precedent and the decision was made by a court senior to the court hearing the current case
Why is law reporting needed?
To publicise a judgement and to ensure that there is an accurate and authorised record of the reasons for decisions so that future judges and lawyers can look back on previous cases
Who are law reports written by?
Specialist lawyers
What are two examples of law reports?
- All England Law Reports
* LexisNexis
What does ratio decidendi mean?
Reasons for deciding
What does ratio decidendi create?
A binding precedent for judges to follow in later similar cases
What is the case example of ratio decidendi creating a binding precedent?
R V Howe
What is the binding precedent in R V Howe?
Duress can’t be a defence to the crime of murder
What does obiter dicta mean?
Other things said
What does obiter dicta do?
It isn’t binding but may be persuasive as they are often discussions about hypothetical situations
What is the obiter dicta in R V Howe?
Duress can’t be a defence to the crime of attempted murder
What is the order of the court hierarchy?
- Supreme Court
- Court of Appeal
- High Court
- Crown Court / County Court
- Magistrates Court / Tribunals
What does the court hierarchy make sure of?
That every court is bound to follow a relevant decision made by a court above it in the hierarchy and appellate courts are bound by their own past decisions
What is a persuasive precedent?
A precedent which the court will consider and may be persuaded by but they don’t have to follow
What is the case examples for when a court lower in the hierarchy set a persuasive precedent for a higher court?
R V R
What was the persuasive precedent in R V R?
The House of Lords were persuaded by the Court of Appeal in deciding that a man could be guilty of raping his wife
What is the case example for when obiter dicta set a persuasive precedent?
R V Howe
What was the persuasive precedent in R V Howe?
Duress couldn’t be a defence for attempted murder
Which case followed the persuasive precedent set in R V Howe?
R V Gotts
What is a dissenting judgement?
When a judge who disagreed will have explained his reasons and it sets a persuasive precedent
What is an original precedent?
If the point of law has never been decided before, then whatever the court decides will form an original precedent
What is the case example of an original precedent?
Donoghue V Stevenson
What is the reason for courts avoiding a binding precedent?
So that case law can be developed and injustice is avoided
What is overruling?
Where a precedent set by a lower court is said by a higher court hearing a separate case to be wrong
What can the Supreme Court do?
Overrule any decision
What does the Practice Statement 1966 allow?
The Supreme Court can overrule it’s own precedents when it appears right to do so
What is the case example of when the Supreme Court used the Practice Statement 1966?
Herrington V British Railways Board
What happened in Herrington V British Railways Board?
A boy trespassed on a railway line and was severely injured. He had been able to get on the line due to fencing not being maintained properly
Which case did the Supreme Court overrule in Herrington V British Railways Board?
Addie V Dumbreck
What happened in Addie V Dumbreck?
A child was killed by machinery and it was decided that there was no duty to maintain fencing when the trespasser was a child
Why did the Supreme Court overrule Addie V Dumbreck when dealing with Herrington V British Railways Board?
Because of changed attitudes of society towards child trespassers
In which case was it decided that the Court of Appeal must follow their own past decisions?
Davis V Johnson
Which case provides the three exceptions for when the Court of Appeal can overrule their past decisions?
Young’s Case
What is the first exception for when the Court of Appeal can overrule their own past decisions?
When they have to choose between two conflicting precedents of its own
What is the second exception when the Court of Appeal can overrule one of its past decisions?
Where there is a decision in the Supreme Court which by implication overrules a Court of Appeal decision, the Court of Appeal must follow the Supreme Court
What is the third exception of when the Court of Appeal is not bound by their own past decisions?
When the precedents were made per incuriam
What does per incuriam mean?
In error
What does the case R V Taylor say?
The Court of Appeal Criminal Division can refuse to follow their previous precedent if the judge in the earlier case misapplied or misunderstood the law
Why does the extra exception in R V Taylor series?
Because in criminal cases people’s freedom is involved and more flexibility is needed to develop the law and avoid injustice
When does distinguishing occur?
When a court of any level finds a difference in the material facts between the case it is hearing and a precedent so the court may refuse to follow the precedent
What are the case examples of when distinguishing occurred?
Balfour V Balfour and Merritt V Merritt
What happened in Balfour V Balfour?
The husband agreed to pay living expenses to his wife while she was ill, they separated and he stopped the payments. There was no legally binding agreement.
What happened in Merritt V Merritt?
Agreement to pay maintenance was made after they’d separated and was made in writing which distinguished the case from Balfour V Balfour because there was a legally binding agreement
What are the advantages of precedent?
- creates certainty
- allows lawyers to advise clients on the probable outcome of the case
- judges remain impartial and base their decisions on legal rules
- some flexibility to correct bad decisions
- decisions based on real cases
- time saving
- provides detailed rules for later similar cases
What are the disadvantages of precedent?
- too rigid
- bad decisions are difficult to change and makes the law slow to develop
- changes can’t be made unless a case comes to court (marital rape was legal until R V R in 1991)
- undemocratic
- retrospective
- judges can make trivial or illogical distinctions to avoid precedents they don’t like
- complex
- large number of cases reported
- difficult to separate ratio decidendi from obiter dicta in long law reports
