Judicial Precedent Flashcards
What is judicial precedent?
Case law is created by judges. The same decision will be made in a case with similar legal issues
What is meant by ‘stare decisis’?
We stand by what has been decided
A judge will not disagree with another judge’s ruling
What is meant by ‘ratio decidendi’?
Reasons for deciding
The judge gives a summary of the facts and legal principles used to decide the case
What is meant by ‘Obiter Dicta’?
Other things said
This is not binding but may be found persuasive
What is original precedent?
Precedent is set when a point of law has not yet been decided on
The judge may use decisions in a similar case to guide their decisions
What is binding precedent?
The judge must follow precedent no matter their opinions on the matter
What is persuasive precedent?
The precedent is not binding, though a judge may be persuaded to follow it
Pursuasive precedent is commonly seen when a senior court follows a junior court’s decision
How is persuasive precedent seen in R v R?
The Supreme Court followed the COA’s decision to criminalise marital rape
What is the Practice Statement 1966?
The Supreme Court no longer bind themselves. This is said to bring fairness, flexibility and development in the law
Who introduced the Practice Statement 1966?
Lord Gardiner
Why can’t inferior courts bind themselves?
They can’t set precedent
What acronym can be used to remember the tools used by judges in creating law?
FORD
How does a judge overrule precedent?
A senior court can overrule incorrect precedent set in a senior court
Though this isn’t seen often as it weakens the authority of lower courts
How does a judge reverse precedent?
A decision in a lower court can be appealed to a higher court and reversed
In what case was precedent reversed?
R v Wang
