judicial precedent Flashcards

Booklet 9

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1
Q

what is judicial precedent

A

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

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2
Q

what are the 3 latin rules that are the basis for JP and what they translate to

A

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)

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3
Q

stare decisis- more in depth meaning

A

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.

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4
Q

case of Schweppes and AT&E 1965
clue: judge bound by previous choice in day

A

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

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5
Q

can you ratio decidendi explained in more detail
key word: binding

A

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

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6
Q

can you explain what an obiter dicta is in more detail
clue:
dont fully relate but helpful to judges

A

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

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7
Q

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

A

RD: guilty as duress is not a defence to murder
OD: judge suggested it cannot be defence to attempt murder

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8
Q

what does duress mean

A

legal term that refers to the act of using threats or coercion to force someone to do something that is against their wishes

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9
Q

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

A

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)

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10
Q

types of precedents

A

original, binding, persuasive

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11
Q

what is an original precedent?
donoghue v stevenson can be used to support

A

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

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12
Q

what is a binding precedent
link to r v howe

A

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

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13
Q

persuasive precedent meaning

A

doesnt have to be followed by court. however judges may find it helpful when deciding cases

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14
Q

what does a persuasive precedent include (3)

A

decision of lower courts
obiter dicta comments
decisions of the judicial committee of privy council, decisions of other countries, dissenting judgements

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15
Q

what courts are bound by the supreme court

A

court of appeal, high court, county, crown, magistrates

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16
Q

what courts must the supreme court follow

A

itself with exceptions

17
Q

what courts are bound by the court of appeal

A

high, county, crown, mag

18
Q

what courts must the court of appeal follow

A

supreme n itself with exceptions

19
Q

what courts are high court bound by

A

county, crown, mag

20
Q

what courts must the high court follow

A

supreme, court of appeal, high ALWAYS

21
Q

what courts are the mag, crown and county court bound by

A

none

22
Q

what courts the mag, crown and county court must follow

A

supreme, court of appeal, high

23
Q

what was supreme court formally

A

house of lords

24
Q

exceptions of supreme court being bound by past decisions- case

A

practice statement 1966- gave HoL right to overrule itself ‘‘if only it was right to do so’’

25
Q

exceptions of court of appeal court being bound by past decisions- reason

A

has a criminal and civil division and dont bind to eachother but they hage to follow their own decisions within their division

26
Q

exceptions of court of appeal court being bound by past decisions 1944

A

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

27
Q

methods of handling precedent: Follow
FORD

A

the majority if the time judges will simply follow the existing binding precedent

28
Q

methods of handling precedent: Overruling
FORD

A

overruling the precedent if the judge thinks the decision previously made was wrong- only can be done by a higher court

29
Q

methods of handling precedent: Reversing
FORD

A

similar to overruling but can happen in the same case through the decision being reversed though an appeal

30
Q

methods of handling precedent: Distinguishing
FORD

A

judge decides the facts on the case are very different from the precedent so a diff decision is justified

31
Q

methods of handling precedent: Follow
CASE- shaw v DPP 1962
clue: prossies have no morals

A

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

32
Q

methods of handling precedent: overruling
CASE- r v shivpuri 1986
clue: dealer moment

A

facts: man charged with drugs pffense but turned out to be mashed potatoes
outcome: guilty due to his intention

33
Q

methods of handling precedent: reversing
CASE-sweet v parseley 1970
clue:
got high
more than one decision

A

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

34
Q

methods of handling precedent: distinguishing
CASE- balfour v balfour 1919

A

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

35
Q

law reporting- what courts need to do issue this formal judgement

A

court of appeal and supreme

36
Q

what does a law report include

A

the overall decision and the legal reasoning from each individual appeal judge
this includes the binding or persuasive precedent