Judicial Precedent Flashcards
what is judicial precedent
when past decisions of judges, create law for future judges to follow
what is judicial precedent also known as?
case law
common law
what is Stare Decisis
stand by what has been decided and do not unsettle the established
what is stare decisis supposed to help make the law..?
certain
fair
what is the ratio decidendi
The part of the judgement, which forms the precedent for future cases
“the reason for the decision”
what is the obiter dicta
comprises the rest of the judgement, apart from the ratio decidendi
judges in future cases do not have to follow it, but it can give useful guidance
types of precedent
Binding
Original
Persuasive
Binding Precedent
A decision in an earlier case and a higher court, which must be followed in later cases
Original Precedent
A decision which comes about when the point of law in the case has never been considered before. There are no past cases upon which the judge can base the decision, so the normal doctrine ofjudicial president cannot apply as there is no president to follow.
Persuasive Precedent
A decision which does not have to be followed by later cases, but which the judge may decide to follow.
-may come from courts that do not bind
-may come from courts lower down the hierarchy
-or be part of the decision known as ‘obiter dicta’
Binding case example
CALDWELL (1982)
HoL set out guidance for cases involving arson
-when deciding if D is guilty, the court must ask whether a reasonable person would have foreseen the risk
ELLIOT V C (1983)
14yo girl with learning disabilities ran away from home and slept in a shed- set fire to some carpet to keep warm
court of appeal had to follow the binding precedent from HoL in CALDWELL (found guilty)
Original Precedent examples
AIREDALE NHS TRUST V BLAND (1993)
new precedent- declared lawful to withdraw life support and feeding from a patient who is brain dead
DONOGHUE V STEVENSON (1932)
-mrs donoghue found a decomposed snail in a can of ginger beer
new precedent- court said it was possible to sue the manufacturers for negligence
London Street Tramways 1898
the HoL (supreme court) held that they were found to follow their own previous decisions even if they were wrong/outdated
1966
HoL issued a practice statement which held that they were now allowed to depart from their own decisions when it appears right to do so
case examples of practice statement
HERRINGTON (1972)
-used practice statement to overrule
Addie v Dumbrek (1929)
-the HoL decided that the railway company owed a duty of care to trespassers
SHIVPURI (1986)
-used practice statement to overrule
Anderton v Ryan (1985)
