Judicial Precedent Flashcards
What does judicial precedent mean and what does this provide?
Judge must follow past decisions that provide fairness, consistence and certainty
What does binding doctrine of precedent mean?
Past decisions of judges
What does ratio decidendi mean?
Legal reason behind a case courts must follow for future cases
What does stare decisis mean?
Stand by what is decided
What does obitar dicta mean?
Other things said by judge
What are the 3 different types of precedent?
Original precedent- decisions never faced in court before
Binding precedent- decisions must be followed in earlier case with similar facts
Persuasive precedent- decisions may be followed but doesn’t have to
What are examples of the 2 cases for original precedent?
Donoghue V Stevenson - manufacture owned a DOC
R V R martial rape- HLS changed and developed laws on women
Persuasive precedent may be followed what are examples where the judge doesn’t have to follow?
Courts lower down hierarchy
Decisions of privvy court
Statements made by judge obitar dicta
Decisions of courts in other countries
What are the 3 features of judicial precedent?
Court hierarchy
Ratio
Law report
What does the European court of justice do to all English courts
Binding on all English courts
Supreme Court is highest court of appeal and all English courts are..
Bound by it
Does the Supreme Court follow its own decision
Yes to create certainty and stop unnecessary litigation and uncertainty
What is the 1966 practice direction
Depart from previous decisions when it appears right to do so
What does the Supreme Court allow for new laws and give example of case used ?
Flexibility to reform new laws as shown in R V R martial rape
The Supreme Court were very cautious about using the practice direction which case shows this?
Addie V dumbreck= boy was a trespasser and done at his own risk
Fast forward to Herrington V British railway board. What happened in this case
When somebody walks on your land and gets injured you’re guilty of their injury because you’re land should be safe
Criminal case direction practice Lynch V DPP and R V Howe
Defence of duress not guilty
Duress is not available as a defence to murder
Do courts of appeal bound to SC
Yes but don’t bind
Young V Bristol Aeroplane
Civil divisional is bound by its own decision unless under 3 exceptions:
-Courts decide which of the two conflicting decisions to follow
-bound to refuse any decisions of their own
-courts cannot follow a decisions unless there’s a previous case
R V Gould
Criminal division is not bound by its own decision because it would cause injustice
Hierarchy of SC?
Bound by previous decision
Bind every court below
Hierarchy of Court of Appeal
Bound by Supreme Court
Bind everyone below
Queen bench divisional
Bound by SC + COA
Bind everyone below
Crown/mag | High/county court
Bound by SC,COA,QBD
Do not bind any court below
What is a law report?
Records of past decisions
When did this exists?
13th century
The law report was very brief and inaccurate so what was set up
1865 incorporated council of law
How do Law reports help?
State law for lawyers/judges
Accurate + authorised record
Include summary of the facts
Written by specialists
All high court cases are reported online
What are the 3 methods of avoiding precedents?
1) Practice direction- depart from previous decisions
2) Distinguishing- Judge will highlight material differences in the facts
3) Overruling- avoiding precedent where judge says previous precedent was wrong
What are the cases for distinguishing?
Belfour V Belfour= domestic agreement do not need to be legally bound
Merrit V Merrit= separate couples would intend to bound by an agreement
R V Brown= Person can’t consent to serious injuries in the cause of sadomasochist activities
R V Wilson= tattooing can be consented
Perrer V hett
Supreme Court overruled earlier decisions in David V Johnson
Evaluation of precedent
Adv-
Certainty
Fairness + consistency
Flexibility= new law reforms
Original precedent
Precision= contains detail info about law reports
Disadv
Complexity- judge may not have enough time to separate ratio and obitar
Volume- too much information
Rigid- too difficult to change previous law
Slowness of growth- reforms have to occur on previous cases
Distinguishing- avoiding precedent usage my lead to injustice
