Judicial Precedent Flashcards
What is stare decisis?
To stand by the decision in the courts.
What is ratio decidendi?
Judgement given by the Judge which fully explains their decision in setting a precedent. It’s extremely important that the Judge is absolutely clear about how and why they’ve reached that decision as this will be binding on any future cases of a similar nature unless, in the meantime, Parliament decides to step in and make a new law.
What is the obiter dicta?
This is not legally binding; it is, or can be, either suggestions from the judge that parliament might want to look into, and create a new law; or it could be a suggestion that in future cases a higher court might want to look at it again and change the law.
What is judicial precedent?
Decisions made by the Higher Courts on unique cases that lower courts have to follow.
When was the House of Lords replaced as the highest court?
The House of Lords was replaced by the Supreme Court from 1st October 2009. The Supreme court exercises the same jurisdiction as the House of Lords and the Law Lords took the same office as Justices of the Supreme Court.
What was the Practice Statement?
In 1966 the Lord Chancellor, Lord Gardiner, issued a Practice Statement allowing the House of Lords to depart from a previous decision where it appears right to do so:
Whilst the House of Lords had this power, they were reluctant to use it in the first few years.
This gradually changed from the mid-1970s onwards.
What was the first use of the Practice Statement in criminal law?
R v a Shivpuri (1986) it overruled a previous decision in Andersonville Arya’s (1985).
What case made the House of Lords decide they are bound to their previous decisions?
London Street Tramways v London County Council (1898).
What was the first use of the Practice Statement in civil law?
Herrington v a British Railways aboard (1972). It specified the duty of care owed to child trespassers.
What is a binding precedent?
Must be applied when the facts of a second case are sufficiently similar to the original case and the decision was made in a higher court. This is even when the judge disagrees.
What is a persuasive precedent?
A decision that doesn’t have to be followed, but by which the judge might decide to do so anyway. Example:
If a higher court feels a lower court precedent was correct. R v R (1991). House of Lords agreed with the Court of Appeal decision that a man could be guilty of raping his wife.
What are some of the advantages of judicial precedent?
Certainty
Consistency and fairness in the law
Precision
Flexibility
Time-saving
What are some of the disadvantages of judicial precedent?
Rigidity
Complexity
Illogical distinctions
Slowness of growth
What is the structure of the Court of Appeal?
There are two divisions within the CoA, the Criminal Division and the Civil Division.
Decisions within each division are usually binding - however:
Where conflicting decisions have been made in the past, the court can choose which one to follow.
When a Supreme Ct or H of L’s decision has overridden it.
When a past decision had been made by mistake, per incuriam. Rare and exceptional, Rickards v Rickards (1989).
The Criminal Division does not have to follow its own past decisions if the law at the time had been misapplied or misunderstood. (R v Gould).
