Judicial precedent Flashcards

1
Q

What is judicial precedent

A

Past decisions of judges create a law for new judges to follow

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Who must follow judicial precedent

A

Any judge in a court lower than the judge who set it who’s case has similar facts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are the 3 things that fall under judicial precedent

A

Ratio decidendi, Obiter dicta, Stare decisis

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is stare decisis

A

Stand by what has been decided meaning you will follow the rules of judges higher than you- principle

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is ratio decidendi

A

The legal principle set out in the case, this is what is to be followed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is obiter dicta

A

The other comments that a judge makes. These are not legally binding however they can be taken into account.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What are the 3 types of precedent

A

Binding, Original, Persuasive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is binding precedent

A

Precedent from an earlier case that must be followed if the case facts are similar

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is a case that supports binding precedent

A

Caldwell

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is original precedent

A

If a point of law has never been decided before what this judge decided will be the new precedent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What case is an example of original precedent

A

Donoghue v Stevenson

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are the 5 things a judge can be persuaded by

A

Courts lower in the hierarchy, the privy council, obiter dicta, dissenting judgements and other countries

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Why might courts lower in the hierarchy be persuasive

A

If they have the same reasoning as a court higher than them

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Why might the pricy council be persuasive

A

As they are in the hierarchy they decisions aren’t binding however their decisions are respected so may be looked at if a similar case has been present

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Why might obiter dicta be persuasive

A

They may agree with a statement already made that doesn’t fall within the law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Why might a dissenting judgement be persuasive

A

As this looks why a decision in court wasn’t unanimous so can over look it as a whole and can agree with those that apposed the prior law

17
Q

Why might other countries be persuasive

A

If a certain idea/ rule works well in another country it may influence the decision

18
Q

What did the house of lords decide about judicial precedent

A

Following a past decision was more important than creating individual hardships creating certainty in the law

19
Q

What is the supreme courts power

A

Bound by their own decisions unless they are wrong and they can decide if the law is compatible with the European convention on human rights

20
Q

What do practise directions 3 and 4 state

A

The house of lords can change a previous law when it is deemed to have been decided wrong

21
Q

What is the precedent of the court of appeal

A

Bound by the supreme court. It has 2 divisions (civil and criminal) and the decision made in one doesn’t bind the other.

22
Q

You don’t have to follow the decisions previously set out under 3 conditions…

A

May be conflicting decisions in the past so the court can choose which to follow, If there is a decision in the supreme court that overturns the court of appeal and the decision was made carelessly/ by mistake

23
Q

What are the three methods of handling precedent

A

Overruling, Reversing, Distinguishing

24
Q

What is overruling

A

When they decide precedent from an earlier case was wrong either by a higher court of the supreme court on one of its own

25
What is reversing
When the court higher in the hierarchy overturns the decision of a lower court on the same case, the new rule will then be set in place for that lower court
26
What is distinguishing
voiding a past decision that otherwise would have been followed as the judge finds a fact that makes them sufficiently different enough so the old precedent is not binding to this case
27
What are advantages of judicial precedent
Certainty, Consistency, Flexibility, Filling gaps, Time saving
28
What are disadvantages of judicial precedent
Judges making laws, Complexity, Illogical distinctions, Uncertainty