judicial precedent Flashcards
what is judicial precedent
this principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.
what is the court heirachy
supreme court
court of appeal
high court
crown court
magistrates courts
what precedent do all the courts have to follow
binding precedent
what does binding precedent mean
each court is bound by the decisions made by a higher court
what does the term ratio decidendi mean
“the reason for the decision” this is the binding element and must be followed.
what does the term stare decisis mean
“to stand by previous decisions” binding precedent. refers to the follow aspect of judicial precedent means to stick with that decision and apply it to other similar cases. e.g. Donahue v Stevenson and Daniels v white.
what does the term obiter dicta mean
“things said by the way” persuasive precedent. this points to other things that may have been mentioned during the verdict
what is persuasive precedent
previous decisions made by lower courts that don’t have to be followed by higher courts. they can use it as influence but they do not have to follow it
what is awkward precedent
precedent that cannot be followed therefore the judge has to overrule, distinguish, reverse or depart.
what is original precedent
a decision in a case where there has been nothing like it before therefore it is completely new and original.
what are all the possible methods of judicial precedent
follow
overrule
reverse
distinguish
depart
what does “follow” mean
if the facts of one case fit the ones of a previous case then that previous decision can be followed and used.
what is a case example for follow
Donoghue v Stevenson and Daniels v white
what does overrule mean
a higher court can overrule the decision made in a lower court
what are case example of overrule
rondel v Worsley (1969) and hall v Simons (2000)
what does reverse mean
on appeal a higher court can change the decision of a lower court
what is a case example for reverse
re Pinochet 1998
what does distinguish mean
when a lower court points top material differences between cases to justify the application of different principles
what is a case example of distingish
Balfour v Balfour
what does depart mean
in certain circumstances a court can depart from its previous decision
what is a case example of depart
Addie v Dumbreck 1929 and British railway board v Herrington 1972
what are the advantages to judicial precedent
1- just system- similar cases will be treated the same
2- flexibility- case law can change quickly to adapt to society
3- practice rules- due to case law coming out of real life scenarios, there is a lot of material and detailed rules
what are the disadvantages to judicial precedent
1- undemocratic - judges are not elected in so why should they be allowed to change or adapt law
2- rigid- lower courts have to follow decisions from h9gher courts
3- complex- case law gives us thousands of cases and pieces of law identifying relevant principles can be time consuming.
