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)