judicial precedent Flashcards
Booklet 9
what is judicial precedent
a legal principle or rule that is established by a previous decision of a court and followed by lower courts in future cases with similar facts or issues
what are the 3 latin rules that are the basis for JP and what they translate to
stare decisis- stand by the decision
ratio decidendi- reasons for the decision
obiter dicta- other things said
(remember as s- stand, r- reasons, o- other)
stare decisis- more in depth meaning
means there is no existing Act of Parliament to follow, judges must stand by the decisions of other judge in previous similar cases, even if they disagree with them.
case of Schweppes and AT&E 1965
clue: judge bound by previous choice in day
schewppes 1965- decsion made is schweppes with 3 judges where 1 judge disagreed but it was a 2-1 majority. there was no act of parliament governing this area and no previous case that dealt with it so schwepps not bound to a precedent. later that day AT&E case the same point rose and presided pver by the same 3 judges and there was no disagreement in this one but the judge was bound to the decision of the other case
can you ratio decidendi explained in more detail
key word: binding
the reason why a decision was made in a specific case which sets the precedent to be followed in later. this is what we call a binding precedent as other judges are bound to follow it
can you explain what an obiter dicta is in more detail
clue:
dont fully relate but helpful to judges
other things said by the judge in the case which didnt directly relate to the reason for. these arent set a precedent but are helpful for future judges if theyre stuck on decision making
R V Howe 1987
D and friend murder 2 men. claimed duress (defence) as they were under threat. what is the RD and OD?
clue: both similar
RD: guilty as duress is not a defence to murder
OD: judge suggested it cannot be defence to attempt murder
what does duress mean
legal term that refers to the act of using threats or coercion to force someone to do something that is against their wishes
donoghue v stevenson 1932
case: decomposed snail in ginger beer caused tummy ache and the manufacture was liable to pay compensation. what was the RD and OD?
clue: responsiblity
RD: manufactures owe a duty of care for consumers of their products
OD: the ‘neighbors principle’ (people owe responsiblity for actions of harm they have caused agaonst people)
types of precedents
original, binding, persuasive
what is an original precedent?
donoghue v stevenson can be used to support
first time the subject is being looked at. it then becomes a binding precent for future cases. judges will use ‘reasoning by analogy’ to find an answer by looking at the closest types of cases and decisions
what is a binding precedent
link to r v howe
a rule that other courts must follow- theyre bound by it once the precedent has been set. an example would be r v howe saying duress is no defence to murder-all future courts follow this
persuasive precedent meaning
doesnt have to be followed by court. however judges may find it helpful when deciding cases
what does a persuasive precedent include (3)
decision of lower courts
obiter dicta comments
decisions of the judicial committee of privy council, decisions of other countries, dissenting judgements
what courts are bound by the supreme court
court of appeal, high court, county, crown, magistrates
what courts must the supreme court follow
itself with exceptions
what courts are bound by the court of appeal
high, county, crown, mag
what courts must the court of appeal follow
supreme n itself with exceptions
what courts are high court bound by
county, crown, mag
what courts must the high court follow
supreme, court of appeal, high ALWAYS
what courts are the mag, crown and county court bound by
none
what courts the mag, crown and county court must follow
supreme, court of appeal, high
what was supreme court formally
house of lords
exceptions of supreme court being bound by past decisions
practice statement 1966- gave HoL right to overrule itself ‘‘if only it was right to do so’’
exceptions of court of appeal court being bound by past decisions- reason
has a criminal and civil division and dont bind to eachother but they hage to follow their own decisions within their division
exceptions of court of appeal court being bound by past decisions (3)
1) if there are 2 conflicting CoA decisions
2) if CoA decision conflicts with HoL/ supreme decision
3) if the decision was made in error
in r v gould a fourth- where the law has been misunderstood
methods of handling precedent: Follow
FORD
the majority if the time judges will simply follow the existing binding precedent
methods of handling precedent: Overruling
FORD
overruling the precedent if the judge thinks the decision previously made was wrong- only can be done by a higher court
methods of handling precedent: Reversing
FORD
similar to overruling but can happen in the same case through the decision being reversed though an appeal
methods of handling precedent: Distinguishing
FORD
judge decides the facts on the case are very different from the precedent so a diff decision is justified
methods of handling precedent: Follow
CASE- shaw v DPP 1962
clue: prossies have no morals
facts: D created a ‘ladies directory’ where prositiutes can advertise their services
outcome: guilty as the HoL made it a crime of outraging public morals
methods of handling precedent: overruling
CASE- r v shivpuri 1986
clue: dealer moment
facts: man charged with drugs pffense but turned out to be mashed potatoes
outcome: guilty due to his intention
methods of handling precedent: reversing
CASE-sweet v parseley 1970
clue:
got high
more than one decision
facts: D rented out her house to students who with out her knowledge smoked and grew cannabis on the property
outcome:
decision at high court: guilty
descision at HoL: not guilty due to impact on reputation
methods of handling precedent: distinguishing
CASE- balfour v balfour 1919
facts: couple had an informal agreement which was verbal whilst married that the husband would send money to the wife when he worked away
outcome: court said this didnt need to continue once seperated
law reporting- what courts need to do issue this formal judgement
court of appeal and supreme
what does a law report include
the overall decision and the legal reasoning from each individual appeal judge
this includes the binding or persuasive precedent
