judicial precedent Flashcards
what word means let the decision stand
stare decisis
why would stare decisis be god
creates fairness, uniformity and saves time
why would stare decisis be bad
may overlook facts, makes the law outdated
how are the decisions made in court recorded
law reports that are privately produced
who prepares law reports
barristers
what is outlined in a judgement speech
the decision and explanation of the outcome, the facts of the case, a review of the arguments and an explanation of the principles of law used in the decision
who makes the judgement speech
the judge
what is the ratio decidendi
the reason for the decision
how does the ratio decidendi affect other cases
it’s binding to future cases
what case did the ratio decidendi of donoghue v stevenson(1932) affect
daniels v white (1938)
what happens in the case of daniels v white
a man bought lemonade whilst drinking it he felt a burning sensation in his throat as it contained a corrosive metal
what is ment by obiter dicta and what can it create
other things said
can create a persuasive precedent in future cases
how was obiter dicta used in r v howe (1987)
the obiter dicta stated that ‘the defence of duress should not be available to one who attempts murder’
what is the structure of the civil court system
supreme court
civil court
chancy family
county court
what is the structure of the criminal court system
supreme court
criminal court
high court-kings bench division
crown/magistrates court
what was issued in 1966
the practice statement
what does the practice statement allow the supreme court to do
it allows the supreme court to change previous decisions if they believe it’s right to do so
after addie v dumbreck what other case changed the law
brb v herrington 1972- said that land owners could owe a duty of care over trespassers on their land
post breaksit what only court should the supreme court regard
the CJEU
which court is the court of appeal bound to
the supreme court
what case changed the changing of law in the court of appeal
young v bristol aeroplane 1944
what were the three exceptions made in young v bristol aeroplane 1944
-if there are two conflicting decisions
-the decision ‘cannot stand’ with a decision of the house of lords
-the decision was given ‘per incurium’
what extra yvba is there in the criminal division and why is it there
they can refuse to follow its own previous decisions where the law has been misapplied
incase the statute had been interpreted wrong
how are courts bound
by those above them
what does binding president mean
it has to be followed
what does persuasive precedent mean
it could be followed
what does original precedent mean
when there’s never been a case like that they will look at others and reason by analogy
name 4 examples of persuasive precedent
-following the precedent of lower courts e.g. R v R overruled R v miller
-cases used by other courts to enhance our law eg the wagon mound
- obiter dicter R v gotts followed R v howe
-dissenting opinions candler v crane
what is judicial precedent
a decision made by a judge that must be followed
what are the three ways precedents are avoided
overruling
distinguishing
reversing
what’s overruling and give a case example
the believing that the lower court is wrong (so the decision is changed)
pepper v heart overruled david v johnson
what’s distinguishing and give a case example
the judge shows the material facts in a case are different so they are not bound
r v brown and r v wilson
what’s reversing and give a case example
when the SAME case goes up to a higher court and they believe the decision of the lower court is wrong
R v kingston
what is a dissenting judgment
when a minority of judges have an opposing view
what are the advantages of precedent
certainty
fairness
reliability
time saving
flexibility
precision
what are the disadvantages of precedent
volume
slowness of growth
rigidity
complexity
illogical distinctions
what the difference between r v r and r v miller
in r v miller a husband raped his wife and was not guilty as this was legal
in r v r a husband attempted to rape his wife- they were not together however as they were separating and the law then changed
