Judicial Precedent Flashcards
Stare Decisis
Stand by the decision and do not unsettle the established
Ratio Decidendi
Reason for the decision
Obiter Dicta
Other things said
Binding Precedent
• A precedent that is binding in all courts lower in the hierarchy, including the one in which it was established
- some courts have additional exceptions to avoid precedent
• The ratio decidendi is binding
- The obiter dicta is not
• This follows the latin term of stare decisis and it ensures decisions are followed the majority of the time
Original Precedent
A precedest that is unique and has not been heard before
Persuasive Precedent
A precedent that is influential but not binding
R v Howe
• Binding precedent and original precedent
• Supreme Court
• Ratio
- the defendant cannot use duress for the offence of murder
• Obiter
- the defendant should not be able to use the defence of duress for attempted murder
Reason for Precedent
• the doctone of judicial precedent is based on the principle of stare decisis
- translated as stand by what has been
decided
• This means that like cases should be treated alike
• The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decion
• Rules established in law should be fair, just, objective, consistent end rational
- the system of precedent, if operated properly provides certainty, predictability and stability to the legal system
How precedent works in practice
In order for precedent to run smoothly, it is vital that:
• there is a clear hierarchy of the courts
- higher courts bind lower courts
• a clear method is established which identifies the parts of a judgement that bind a judge in a future case (ratio decidendi) and those which read not to be followed (obiter dicta) but can persuade
• cases with similar or same material facts should be decided in the same way
• all cases are reported
- recording all judgements made
Ratio and Obiter
Ratio Decidendi
• binding
- what judges must follow
• in giving judgement in a case, the judge will set out the material facts of the case, state the law applicable to the facts and then provide his or her decision
• it is only the ratio decidendi ( the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent
Obiter Dicta
• other things said
- not always relevant to case
• any observation made by the judge on a legal question suggested by the case before him or her but not rising in such a manner as requiring a decision is known as an obiter dicta (things said by the way)
- this may be speculation
• it is not always easy to distinguish ratio decidendi from obiter dicta when evaluating the effects of a particular decision
Methods of Avoidance
• The courts follow the hierarchy in relation to binding precedent, however, they can avoid past precedent in certain circumstances
Follow
• The next court chooses to follow the previous precedent
Overrule
• The higher court chooses to overrule the precedent in the same court or the lower court
• This always involves 2 cases
Reverse
• Reversing takes place when one case is appealed to higher courts
• The higher court chooses to reverse the decision of the lower court in the same case
Sweet v Parsley
R v Kingston
Distinguish
• The courts can distinguish from a binding precedent if they decide the material facts are sufficiently different in the second case
R v Brown and others
- R v Wilson
R v Sharp
- R v Shepherd
• Causes multiple precedents on the same topic
Airedale NHS Trust and Bland
• Original Precedent
• House of Lords
• Persistent vegetative state as a result of injuries sustained at Hillsborough
• Could breathe independently
• Courts were asked if they could withdraw life sustaining treatment
• Life sustaining treatment was allowed to be withdrawn
Re A
• Original Precedent
• Supreme court
Jodie and Mary
• Fused at lower abdomen
• Mary depended completely on Jodie
- blood supply
- vital organs
• If separated, Mary would die
• Parents were devoted catholics
• Courts ruled to separate the two girls, killing Mary
• Jodie has less than a 60% survival expectation
- still alive
• Estimated that if they remained conjoined, neither would live past 9
Reversing - Sweet v Parsley
• A teacher rented out her house to students
• The students grew cannabis in the house
• She was initially convicted of owning a property involved in drug distribution
• She had no knowledge of what the students were doing
• Convicted in both crown and QBD courts
• Reversed in the court of appeals
Reversing - R v Kingston
• Involuntary intoxication
• Given drugs by his friend
• Taken to a room where a young boy was
• Sexually assaulted the young boy
• Acquitted in crown court
• Convicted in the court of appeals
- still had the mens rea
Distinguishing -
R v Brown and others
R v Wilson
R v Brown and others
• 5 homosexual males injure each other in sado masochistic activities over the course of 10 years
- ABH and wounding
• All were consenting
• All were convicted by the supreme court
• The defence of consent cannot be relied on in offences under s47 and s20 OAPA 1861 where the injuries resulted from sado masochistic activities
R v Wilson
• Branded his initials on his wife’s buttock with a hot butter knife with her consent
• Became infected and the doctor reported it to the police
• Charged with ABH under s47
• Held consent was valid and was more akin to tattooing than pain for sexual gratification
• Between husband and wife
- held that consensual activity in the matrimonial home was not a matter for the courts
• Acquitted by Court of Appeal
Distinguishing -
R v Sharp
R v Shepherd
R v Sharp
• Joined a gang who carried out armed robbery
• Wished to leave but was threatened with violence
• Took part in robbery of post office
- post master was killed
• Convicted of murder
- appeal dismissed
- couldn’t use duress as defence
R v Shepherd
• Member of a gang of shoplifters
• Wanted to leave but was threatened with violence to him and his family
• Charged with burglary
- trial judge withdrew defence of duress so was convicted
• Conviction quashed by Court of Appeal
- gang different from paramilitary organisation or armed robbery gang
- the defence of duress should have been left