Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Law making > judicial precedent > Flashcards

judicial precedent Flashcards

You may prefer our related Brainscape-certified flashcards:
Civil Procedure 1L flashcards MBE flashcards MPRE flashcards
1
Q

display the court hierarchy only for criminal

A
  1. supreme court
  2. court of appeal (criminal division)
  3. crown court
  4. magistrates court
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

display the court hierarchy for civil, including all of the high court divisions

A
  1. supreme court
  2. court of appeal (civil division)
  3. high court- family, QBD, chancery,
  4. county courts
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

what is the most important rule (doctrine of precedent) for judicial precedent in the uk

A

the doctrine of precedent is that the courts must follow the ruling of the court above them, appeal courts will usually follow their own previous decisions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

what are the two exceptions to the doctrine of precedent

A
  1. when there is a decision of the Court of Justice of the European Union which the english courts have to follow
  2. in cases involving human rights. section 2 of the Human Rights Act 1988 means that the domestic courts have to take into account opinions, decisions and judgements of the European convention for human rights. it is illegal for a domestic court to act in a way that is incompatible with the convention.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

what is the act that changed the house of lords to the supreme court

A

Constitutional Reform Act 2005

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

what is the rule for the supreme court and its past decisions

A

the supreme court is not bound by its past decisions but will usually follow them

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

what is a case involving trams that said something about HOL decisions when they were bound by their own decisions

A

London Street Tramways. If a house of lords decisions needs to be changed, parliament was required to pass a new act.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what is a case where parliament passed a new act, changing the verdict of a murder

A

Smith, the decision made was changed by the Criminal Justice Act 1967

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

what was the thing called which allowed the HOL not be bound by their previous decisions and what year was this

A

Practice Statement 1966

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

when will the HOL / supreme court divert from their previous decisions

A

‘when it seems right to do so’

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

what is a key example of the HOL using the practice statement for a civil case involving two cases

A

in the case of Addie, the law established that trespassers who get injured are not able to claim for personal injury from the occupiers of the land. This law was overruled in the case of Herrington where it was said that society had changed, so the law should too.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

in what side of the law is the practice statement used less and why

A

criminal because there is a strong need for certainty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

what is an example of the practice statement for criminal law involving two cases

A

Howe overruled Lynch on the rule that duress could be used as a defence to murder

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

when was the first time the practice statement was used in criminal law

A

Shivpuri overruled Anderton, changing the law regarding attempts to commit impossible crimes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

what is the court of appeal bound by

A

decisions of the supreme court and its own decisiosn

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

what case established the three exceptions to the rule that the coa is bound by its own precedent

A

Young

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

what are the three exceptions to the rule that the coa is bound by its own decisions

A
  1. where there are two previous decisions that conflict- the coa will choose which of their decisions to follow and which to reject
  2. where there is a conflicting HOL/ Supreme court decision to a coa decision- the coa must follow the HOL/ supreme court decision
  3. the previous decision was made pur incuriam (by mistake)- the coa may refsue to follow their previous decision however this is only to be done ‘in rare and exceptional circumstances’
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

what is the case for two previous conflicting coa decisions

A

tiverton estates LTD. the coa decided to follow one of their older decisions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

what is the case for when there is a conflicting HOL/ supreme court decision

A

Jones, the coa did not follow one of its previous decisions because they were concerned that it conflicted with a more recent decision by the HOL

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

what is the case for a previous coa decision being per incuriam

A

rickards, the coa refused to follow one of its previous decisions because they ahd misunderstood the HOL decision that they were following in that case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

why does the criminal division of the coa have more liberty than the civil

A

a persons liberty is at stake and justice has to be done

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

what are the rules for the criminal division of the coa

A

the criminal side will follow the three exceptions established in young, but they can also refuse to follow a previous decision if they think the law has been misapplied or misunderstood.

23
Q

in what case did the criminal coa refuse to follow their previous decision because it had been misapplied or misunderstood

A

taylor

24
Q

when will the criminal coa always be able to go against a previous decision

A

when it conflicts with the human rights act 1988

25
Q

what are the three devisions in the high court bound by

A

coa and suoreme court and their own previous decisons

26
Q

what are the inferior courts bound by (mags and county)

A

all the higher courts, it is unlikely that an inferior court will set any precedent

27
Q

what is common law

A

case law, or judge made law

28
Q

what is a civil and criminal example of common law

A

negligence, murder

29
Q

what is the latin term that the doctrine of precedent based on to ensure certainty

A

stare decisis, means ‘stand by the established’ and ‘do not unsetlle the established’

30
Q

what is ratio decidendi

A

when judges made their verdict, they will give a speed explaining their verdict. the part of this speech that explains the legal reasoning for the decision is the ratio decidendi- this is the part that is binding and will be followed.

31
Q

what is obiter dictum

A

the extra parts of a judges speech that are not just the reasoning- for example a judge saying ‘if the facts were different, my decision may have been’. this is known as persuasive precedent and is not binding but is helpful for other judges to follow

32
Q

what will a judge do if there are no previous decisions to follow

A

create an ‘original precedent’

33
Q

what happens to decisions made by judges

A

they are written down and documented in a law report

34
Q

what are two law reporting bodies

A

the incorporated council for law reports and the all england law reports

35
Q

how might a judge make an original precedent (two ways)

A

by ‘reasoning by analogy’ which means that it is based on a similar case, alternatively the judge might look to cases from other countries- in Re S, the judge looked to America

36
Q

how might a judge be persuaded (followed a decision that was not binding) (4 ways)

A

following the decision of a lower court
following decisions of the jduicial commitee of the privy council
following the obiter dicta of another case
following a statement made by a dissenting judge

37
Q

what was a case where the supreme court followed a decision of the coa

A

R v R, following the decision of the coa, the supreme court made raping your wife a cirminal offence

38
Q

what is a case from the judicial committee of the privy council that has been followed in english law

A

the wagon mound, australian case that ahs has great influence on english civil law

39
Q

what is an example of a criminal case where obiter dictum was followed

A

r v gotts followed the obiter dictum in r v howe that duress should not be a defence to attempted murder

40
Q

explain following the statement of a dissenting judge

A

if a case has five judges hearing it, it is unlikely that all will agree. if one judge has not agreed with the precedent set, they will explain why. other judges can be persuaded by this explanation

41
Q

what are the 4 things a judge can do with a precedent (explain)

A

follow- if the facts or more or less the same between the two cases
overrule- if a court decides that a decision in a previous case was wrong or when a higher court decides that a decision made ina lower court was wrong, they can overrule it
reverse- if a decision in a lower court is appealed to a higher court, the higher one may chnage it if thye feel the lower court has wrongly interpreted the law
distinguish- if the facts in the present case are sufficiently different to the previous case, then the judge may distinguish the two cases meaning that they dont have to follow the earlier one

42
Q

what four parliamentary controls are there

A
  1. enabling acts
  2. affirmative/ negative resolutions
  3. scrutiny committees
  4. the legislative and regulatory reform act 2006
43
Q

what does the legislative and regulatory reform act 2006 do

A

sets out the procedure that must be followed when aking certain SI’s. If a government minister is making an si that repeals an existing act or removes a burden form an existing act then they must consult the law commission

44
Q

what three things could an ultra vires DL be

A
  1. it goes beyond the powers stated in the EA
  2. it has been made after the incorrect procedure has been used
  3. A decision has been made unreasonably
45
Q

who is allowed to challenge a DL

A

a person that is ‘standing’ which means that they have been affected in some way by the DL

46
Q

how will it be decided whether a DL has gone beyond the enabling act

A

a judge will conduct a judicial review

47
Q

what are the two types of ultra vires

A

procedural UV and substantive UV

48
Q

what is meant by substantive UV

A

means that the form of Dl is doing more than the enabling act allows.

49
Q

what is a case for substantive UV

A

r v home secretary, the home secretary was challenged by the fire brigades union and the judge agreed that he was doing more than the enabling act allowed

50
Q

what is meant by procedural UV

A

the correct procedure was not followed when making the DL.

51
Q

what is a case for procedural UV.

A

Aylesbury Mushrooms. The DL was challenged by a body called the mushroom growers association because they ahd not been consulted about a change in the law when they should have been. the judge agreed and declared this procedural UV so the law was void

52
Q

what is the thing that defines reasonableness for DL

A

‘Wednesbury reasonableness- ‘unreasonable so that no reasonable person acting reasonably could have done it’

53
Q

which case was wednesbury reasonableness applied in

A

Strickland. the local authority made a bylaw which prohibited the use of obscene language. residents challenged this on the grounds that it was unreasonable, the judge agreed using the wednesbury reasonableness test

Law making (6 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions