Judicial precedent Flashcards
What is judicial precedent
Past decisions of judges create a law for new judges to follow
Who must follow judicial precedent
Any judge in a court lower than the judge who set it who’s case has similar facts
What are the 3 things that fall under judicial precedent
Ratio decidendi, Obiter dicta, Stare decisis
What is stare decisis
Stand by what has been decided meaning you will follow the rules of judges higher than you- principle
What is ratio decidendi
The legal principle set out in the case, this is what is to be followed
What is obiter dicta
The other comments that a judge makes. These are not legally binding however they can be taken into account.
What are the 3 types of precedent
Binding, Original, Persuasive
What is binding precedent
Precedent from an earlier case that must be followed if the case facts are similar
What is a case that supports binding precedent
Caldwell
What is original precedent
If a point of law has never been decided before what this judge decided will be the new precedent
What case is an example of original precedent
Donoghue v Stevenson
What are the 5 things a judge can be persuaded by
Courts lower in the hierarchy, the privy council, obiter dicta, dissenting judgements and other countries
Why might courts lower in the hierarchy be persuasive
If they have the same reasoning as a court higher than them
Why might the pricy council be persuasive
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
Why might obiter dicta be persuasive
They may agree with a statement already made that doesn’t fall within the law
Why might a dissenting judgement be persuasive
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
Why might other countries be persuasive
If a certain idea/ rule works well in another country it may influence the decision
What did the house of lords decide about judicial precedent
Following a past decision was more important than creating individual hardships creating certainty in the law
What is the supreme courts power
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
What do practise directions 3 and 4 state
The house of lords can change a previous law when it is deemed to have been decided wrong
What is the precedent of the court of appeal
Bound by the supreme court. It has 2 divisions (civil and criminal) and the decision made in one doesn’t bind the other.
You don’t have to follow the decisions previously set out under 3 conditions…
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
What are the three methods of handling precedent
Overruling, Reversing, Distinguishing
What is overruling
When they decide precedent from an earlier case was wrong either by a higher court of the supreme court on one of its own
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
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
What are advantages of judicial precedent
Certainty, Consistency, Flexibility, Filling gaps, Time saving
What are disadvantages of judicial precedent
Judges making laws, Complexity, Illogical distinctions, Uncertainty
