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
