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Lawww > Judicial Precedent > Flashcards

Judicial Precedent Flashcards

1
Q

What does judicial precedent mean and what does this provide?

A

Judge must follow past decisions that provide fairness, consistence and certainty

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2
Q

What does binding doctrine of precedent mean?

A

Past decisions of judges

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3
Q

What does ratio decidendi mean?

A

Legal reason behind a case courts must follow for future cases

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4
Q

What does stare decisis mean?

A

Stand by what is decided

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5
Q

What does obitar dicta mean?

A

Other things said by judge

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6
Q

What are the 3 different types of precedent?

A

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

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7
Q

What are examples of the 2 cases for original precedent?

A

Donoghue V Stevenson - manufacture owned a DOC
R V R martial rape- HLS changed and developed laws on women

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8
Q

Persuasive precedent may be followed what are examples where the judge doesn’t have to follow?

A

Courts lower down hierarchy
Decisions of privvy court
Statements made by judge obitar dicta
Decisions of courts in other countries

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9
Q

What are the 3 features of judicial precedent?

A

Court hierarchy
Ratio
Law report

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10
Q

What does the European court of justice do to all English courts

A

Binding on all English courts

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11
Q

Supreme Court is highest court of appeal and all English courts are..

A

Bound by it

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12
Q

Does the Supreme Court follow its own decision

A

Yes to create certainty and stop unnecessary litigation and uncertainty

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13
Q

What is the 1966 practice direction

A

Depart from previous decisions when it appears right to do so

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14
Q

What does the Supreme Court allow for new laws and give example of case used ?

A

Flexibility to reform new laws as shown in R V R martial rape

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15
Q

The Supreme Court were very cautious about using the practice direction which case shows this?

A

Addie V dumbreck= boy was a trespasser and done at his own risk

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16
Q

Fast forward to Herrington V British railway board. What happened in this case

A

When somebody walks on your land and gets injured you’re guilty of their injury because you’re land should be safe

17
Q

Criminal case direction practice Lynch V DPP and R V Howe

A

Defence of duress not guilty
Duress is not available as a defence to murder

18
Q

Do courts of appeal bound to SC

A

Yes but don’t bind

19
Q

Young V Bristol Aeroplane

A

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

20
Q

R V Gould

A

Criminal division is not bound by its own decision because it would cause injustice

21
Q

Hierarchy of SC?

A

Bound by previous decision
Bind every court below

22
Q

Hierarchy of Court of Appeal

A

Bound by Supreme Court
Bind everyone below

23
Q

Queen bench divisional

A

Bound by SC + COA
Bind everyone below

24
Q

Crown/mag | High/county court

A

Bound by SC,COA,QBD
Do not bind any court below

25
Q

What is a law report?

A

Records of past decisions

26
Q

When did this exists?

A

13th century

27
Q

The law report was very brief and inaccurate so what was set up

A

1865 incorporated council of law

28
Q

How do Law reports help?

A

State law for lawyers/judges
Accurate + authorised record
Include summary of the facts
Written by specialists
All high court cases are reported online

29
Q

What are the 3 methods of avoiding precedents?

A

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

30
Q

What are the cases for distinguishing?

A

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

31
Q

Perrer V hett

A

Supreme Court overruled earlier decisions in David V Johnson

32
Q

Evaluation of precedent

A

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

Lawww (13 decks)

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