judicial precedent Flashcards
What is Judicial precedent?
The way in which the law is made and amended through decisions made by judges in cases
What is the meaning of ‘Stare Decisis’?
To stand by what has been decided,
OR
Let similar cases be decided in a similar way
What are precedents?
Precedents are decisions made on a point of law by senior courts which must be followed by lower courts in the hierarchy when a later case raising the same point of law arises.
What courts is the Magistrates Court bound by?
Crown Court, Queen’s Bench Divisional Court, Court of Appeal, Supreme Court
What courts is the Crown court bound by?
Queen’s Bench Divisional Court, Court of Appeal, Supreme Court
What courts is the Queen’s Bench Divisional Court boundy by?
Court of Appeal, Supreme Court
What court is the Court of Appeal bound by?
Supreme Court
What courts is the County Court bound by?
High Court, Divisional Court, Court of Appeal, Supreme court
What courts is the High court bound by?
Divisional Court, Court of Appeal, Supreme court
What courts is the divisional court bound by?
Court of Appeal, Supreme court
When did law reporting become more uniform and thorough?
When the Incorporated Council of Law Reporting was established in 1865 (ICLR)
What is included in a law report? (6 Points)
- The name of the case
- The date of the hearing
- The court in which the case was heard
- The names of the judge(/s)
- Summary of the facts and legal issues
- Facts and the decision (Ratio Decidendi)
Why is law reporting so important for precedent?
It will fully inform judges about decisions made by previous judges.
What is the meaning of Ratio Decidendi?
The reason for deciding
Explanation of Ratio Decidendi:
it is the decision and the reason for deciding what becomes precedent which the lower courts in later, similar cases must follow. It is binding.
Case example for Ratio Decidendi:
Oxford v Moss (Information is NOT property which can be stolen)
What is the meaning of Obiter Dicta?
other things said
Explanation of Obiter Dicta:
The obiter is everything else in the judgement. It is persuasive.
Case example for Obiter Dicta:
R v Howe and R v Gotts
What are the three types of precedent?
Original, Binding, Persuasive
Explain Original Precedent:
When a case raises a new point of law that has never been decided on before, the judges muse make a decision on that point of law. That decision will become an original precedent.
Example of an original precedent:
Donoghue v Stevenson (snail and bottle case)
Explain Binding Precedent:
The ratio decidendi of a case in a senior court must be followed when a later case raising the same point of law is heard in a lower court. The ratio therefore forms a binding precedent.
Example of a binding precedent:
Grant v Australian Knitting Mills
Explain Persuasive precedent:
This is a decision that a court is not bound to follow but can choose to follow if it wishes. This could be the obiter dicta of a case or a decision of a lower court.
Example of a persuasive precedent:
R v R (the decision of the lower court persuaded the HoL)
What are the 5 sources of persuasive precedent?
Lower courts, Obiter Dicta, Dissenting Judgements, Judicial Committee of the privy council, decisions in other countries
Explain the persuasive precedent of lower courts:
Higher courts are not bound to follow the decisions of lower courts, but they can choose to follow them if they like them.
Case example of persuasive precedent (Lower courts)
R v R - the CoA said marital rape should be illegal. The HoL agreed, they did not have to follow the CoA but were persuaded to make the same decision
Explain the persuasive precedent of Obiter dicta:
Obiter is not the binding point of the judgement in a case. Later cases can choose to follow the obiter if their case is dealing with the issue mentioned by the obiter.
Case example of persuasive precedent (Obiter Dicta)
R v Howe was dealing with murder and said in the obiter that duress should probably not be a defence for attempted murder. R v gotts then chose to follow this decision from R v Howe even though they didn’t have to.
Explain the persuasive precedent of Dissenting Judgement:
A dissenting judgement is a judgement that goes against the majority in that case. Eg. If 2 judges in the CoA think something should be illegal, and 1 Judge thinks it should be legal, that 1 judge is making a dissenting judgement which is NOT binding. However, the dissenting judgement could persuade higher courts to change the law in the future.
Case example of persuasive precedent (Dissenting judgement)
Rose and frank v Crompton bros - most judges in the CoA decided there was a contract. The case then went to the HoL who decided to follow the decision of the judge who disagreed with the majority in the CoA
Explain the persuasive precedent of Judicial committee of the privy council:
The Privy council are not a UK court and so UK courts don’t have to follow their decisions. However, the PC are made up of judges from the supreme court and so the decisions they make are likely to be good authority.
Case example of persuasive precedent (privy council)
The Wagon Mound - the privy council decided the remoteness test for negligence - this test has been adopted in Uk law too
Explain the persuasive precedent of Decisions in other countries
Some other countries have similar legal rules and systems to the UK so cases in these countries could provide useful ideas for UK law. These rules do not bind us but we can choose to adopt them.
Case example of persuasive precedent (decisions made in other countries)
R v Bentham was a Uk case that chose to follow the canadian case of R v Sloan about possession of firearms
What can the supreme court use, but try not to?
The Practice Statement 1966
When can the Supreme Court use the practice statement?
When it is right to do so
What case/s shows that the Supreme Court are reluctant to use the 1966 Practice statement?
Jones v SoSSS, the judges refused to overrule the decision of R v Dowling even though it was wrong. The judges thought certainty was the most important feature of precedent.
When was the first criminal use of the Practice Statement 1966?
20 years later, 1986
What case overruled Anderton v Ryan?
R v Shivpuri
Do the Criminal and Civil divisions of the Count of Appeal bind each other?
No, Each section is bound by itself.
What case created the three exceptions in the CoA?
Young v Bristol Aeroplane co
What is the 1st exception? (CoA)
If there are any conflicting decisions in past CoA cases, the court can choose which decision it will reject.
What is the 2nd exception? (CoA)
If there is a decision of the HoL which overrules the past CoA decision. The CoA must follow the HoL decision.
What is the 3rd exception and case supporting? (CoA)
If the decision is made ‘per incurian’ (carelessly or by mistake)
eg. Rickards v Rickards
There is a 4th exception in the CoA which is just for one division, which one?
The Criminal Division
What is the 4th exception and the case supporting it? (criminal division)
If the law has been misapplied or misunderstood
eg. R v Taylor
Why might a court want to avoid following a precedent?
There might be a mistake, or something may have changed with the time.
Define overruling:
When a senior court in a later case changes a precedent of an earlier case on the same point of law because it is wrong or outdated.
Name the original case, and its principle (Overruling)
Anderton v Ryan
It is NOT a crime to only attempt to do the impossible
Name the case that overruled Anderton v Ryan and its principle:
R v Shivpuri
It is a crime to attempt to do the impossible
Define Distinguishing:
This happens where any court thinks that the material facts of that case are sufficiently different from an earlier case that it can draw a distinction between the two.
How many precedents will exist after distinguishing has been used?
2
What courts can use distinguishing?
any court
Name the two cases involving a husband and a wife: (Distinguishing)
Balfour v Balfour
Meritt v Meritt
Case facts of Balfour v Balfour:
Does it amount to a contract? Why?
There was a verbal agreement about money when the husband and wife were living together. Agreement made does not amount to a contract because there was no intention for legal relations (verbal agreement)
Case facts of Meritt v Meritt:
Does it amount to a contract? Why?
There was a written agreement about the house when the husband and wife were living apart. The agreement does amount to a contract as it was written and there was intention for legal relations.
Define Reversing:
Reversing is when a point of law is decided in a lower court, and then the same case goes to a higher court, who then change that point of law.
How is reversing different to overruling?
It only involves one case
Name the case for reversing?
R v Hasan
What did the CoA decide in R v Hasan?
Duress is not self-induced if D does not know what crime he will be forced to commit.
What did the HoL decide in R v Hasan?
Duress is self-induced whenever D knew or should have known the risk of being threatened with violence - It does not matter if he knew what crime he would be forced to commit.
4 advantages of Jud Prec?
Provides certainty within the law
Provides flexibility in the law
Allows the law to respond to real life situations
Allows for judicial creativity
4 Disadvantages of Jud Prec?
Makes law rigid and slow to develop
makes the law uncertain
precedent is complex
goes against the separation of powers
