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A-LEVEL LAW > JUDICIAL PRECEDENT > Flashcards

JUDICIAL PRECEDENT Flashcards

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1
Q

What are the types of persuasive precedent? (5)

A

-courts lower in the hierarchy
-statements made obiter dicta
-decisions of the judicial committee of the privy council
-a dissenting judgement
-decisions in other countries

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2
Q

what is judicial precedent? (1)

A

refers to the source of law where past decisions of the judges create law for future judges to follow.

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3
Q

what does stare decisis mean? (1)

A

stand by what has been decided and so not unsettle the established.

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4
Q

what is meant by original precedent? (1)

A

a decision on a point of law that has never been decided before.

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5
Q

what is persuasive precedent? (1)

A

a decision that does not have to be followed by later cases, but which a judge may decide to follow.

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6
Q

what is duress? (1)

A

threats, violence, constraints or other actions used to coerce someone into doing something against their will or better judgement.

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7
Q

how does a judge make an original precedent? (1)

A

as there are no past cases for the judge to base the decision on they likely look at cases which are the closest in principle. this is called reasoning by analogy.

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8
Q

what is an example where courts in the lower hierarchy, in terms of persuasive precedent have impacted a case? (1)

A

RvR (1991)

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9
Q

which courts make precedent? (2)

A

the supreme court (civil and criminal)
the court of appeal (civil and criminal)

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10
Q

what is an example where decisions of the judicial committee of the privy council have impacted a case, in terms of persuasive precedent? (1)

A

the wagon mound (No.1) (1961)
A-G for jersey v Holley (2005)

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11
Q

what courts must the court of appeal follow? (2)

A

(previously) the European court of justice
the supreme court.

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12
Q

how is a binding precedent formed? (1)

A

only created when the facts of the second case are sufficiently similar to the original case and the court creating it is senior.

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13
Q

what is a dissenting judgement? (1)

A

a judgement by a judge who disagrees with the reasoning of the majority of judges in the case.

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14
Q

what is a summary of the R v Howe (1987) case? (2)

A

the house of lords ruled that duress could not be used as a defence to a charge or murder, in the judgement they stated as an obiter dicta that duress should not be available as a defence to someone charged with attempted murder.

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15
Q

what is a binding precedent? (1)

A

a decision in an earlier case which must be followed in later cases. (even if a judge does not agree)

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16
Q

what is the doctrine of precedent based on? (1)

A

based on the Latin maxim stare decisis.

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17
Q

what are the types of precedent? (3)

A

-original precedent
-binding precedent
-persuasive precedent

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18
Q

what is a summary of the RvR (1991) case? (1)

A

house of lords agreed with and followed the same reasoning as the court of appeal that a man could be guilty of raping his wife.

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19
Q

what is a summary of the wagon mound (No.1) (1961) case?

A

the supreme court used an Australian case to decide whether negligence was applicable to the defendant after oil spill from his ship and onto a harbour where wielding repairs were being carried out by the claimant which resulted in it catching alight.

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20
Q

what courts must the crown court follow? (1)

A

all higher courts

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21
Q

what is an example where statements made by obiter dicta have impacted a case, in terms of persuasive precedent? (2)

A

R v Howe (1987)
R v Gotts (1992)

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22
Q

what courts must the supreme court follow? (1)

A

(previously) the European court of justice

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23
Q

what is meant by decisions made in other countries in terms of persuasive precedent? (1)

A

where judges use decisions in other countries to come to their own conclusion this is especially so where the countries use the same ideas as common law such as in countries Canada, New Zealand and Australia.

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24
Q

what are the rules of the doctrine of judicial precedent? (2)

A

-every court is bound to follow any decision made by a court above it in the hierarchy.
-in general, appellant courts are bound by their own past decisions

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25
Q

what courts are bound by precedent made in the supreme court? (1)

A

all other courts in the English legal system.

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26
Q

what courts are bound by the county court? (1)

A

possibly the magistrates court.

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27
Q

what courts are bound by the crown court? (1)

A

possibly the magistrates court

28
Q

what are the appellant courts? (3)

A

supreme court
court of appeal
divisional courts

29
Q

who can use a dissenting judgement? (1)

A

the supreme court because they are thee highest in the hierarchy.

30
Q

what courts must the county court follow? (1)

A

all higher courts

31
Q

what courts are bound by precedent made in divisional courts? (3)

A

-itself (exceptions)
-high court
-all other lower courts

32
Q

what is a summary of the R v Gotts (1992) case? (2)

A

as mentioned in the R v Howe (1987) case, duress could not be used as a defence to manslaughter but a defendant claimed that he could, the house of lords followed the obiter dicta statement and followed as persuasive precedent.

33
Q

what courts are bound by precedent made in the court of appeal? (3)

A

-itself (exceptions)
-all other lower courts
-divisional courts

34
Q

what courts must the high court follow? (4)

A

-(previously) the European court of justice
-supreme court
-court of appeal
-divisional courts

35
Q

what does obiter dicta mean? (1)

A

means statements made in a judgement that were not part of the point of law in deciding the case.

36
Q

what was the point of the issue of the practice statement? (1)

A

it realised that the house of lords needed more flexability.

37
Q

when was the practice statement issued? (1)

A

1966

38
Q

what courts are bound by the precedent made in the high court? (2)

A

-county court
-magistrates court

39
Q

what courts must the divisional courts follow? (3)

A

-(previously) the European court of justice
-supreme court
-the court of appeal

40
Q

what is per incuriam? (1)

A

that is carelessly or by mistake because a relevant act of parliament or regulation has not been considered by the court.

41
Q

what is an example of when a dissenting judgement have impacted a case, in terms of persuasive precedent? (1)

A

Re Schweppes ltds agreement (1965)
Re automatic telephone and electric co ltds agreement (1965)

42
Q

when did the court of appeal go against the house of lords? (2)

A

Broome v Cassell and co ltd (1971)
Rookes v Barnard (1964)

43
Q

what did the London street tramways v London county council (1898) decide? (1)

A

that the house of lords were bound by their past decisions.

44
Q

what was the outcome of the Knuller ltd v DPP case? (1)

A

in 1973, it became apparent that certainty of law was important making the lords reluctant to use the practice statement.

45
Q

when was the practice statement first used in a criminal case? (1)

A

R v Shivpuri (1986)

46
Q

when did the supreme court replace the house of lords? (1)

A

2009

47
Q

what are the limitations of per incuriam? (1)

A

only used in ‘rare and exceptional’ cases

48
Q

what is the doctrine of precedent? (1)

A

following the decisions of previous cases, especially of appellant courts.

49
Q

what did the Herrington v British railways board involve? (1)

A

first major use of the practice statement on the duty of care owed to child trespassers.

50
Q

what did the Conway v Rimmer case involve? (1)

A

involves technical law on discovery of documents.

51
Q

what are the disadvantages of the practice statement? (2)

A

-very vague and gives little guidance
-house of lords are reluctant to use this power.

52
Q

what did the practice statement allow the house of lords to do? (2)

A

-allowed the lords to change the law if they believed that an earlier case had been wrongly decided
-they have the flexibility to refuse to follow an earlier case where it appears right to do so.

53
Q

which case started the decision to allow certain exceptions to the court of appeals binding decisions? (1)

A

Young v Bristol aeroplane co ltd (1944)

54
Q

what is a case that shows the use of distinguishing? (2)

A

Balfour v Balfour (1919)
Meritt v Meritt (1971)

55
Q

when was the first time the house of lords used the practice statement? (2)

A

first case: Conway v Rimmer (1968)
major case: Herrington v British railways board (1972)

56
Q

what was the first case in which the court of appeal went against its own decisions? (1)

A

Davis v Johnson (1979)

57
Q

what is the summary of the Davis v Johnson (1979) case? (3)

A

wife tried to obtain a court order excluding a violent husband from a house that had been bought or leased by the husband. earlier rulings held that domestic violence and matrimonial proceedings act did not include this. judges departed from this decision and it was accepted by the house of lords.

58
Q

what is a summary of the A-G for jersey v Holley (2005) case? (3)

A

the privy council ruled that in the defence of provocation a defendant is to be judged by the standard of a person having ordinary powers of self control. this contradicted an earlier judgement by the house of lords and followed the privy council instead.

59
Q

what are the advantages of judicial precedent? (5)

A

-certainty
-consistency and fairness
-precision
-flexibility
-time saving

60
Q

what is a case that shows the use of overruling? (2)

A

Pepper v Hart (1992)
Davis v Johnson (1979)

61
Q

what does distinguishing mean? (1)

A

method by which a judge avoids having to follow what would otherwise be a binding precedent.

62
Q

when are lower courts allowed to divert from decisions made by the English appellant courts? (2)

A

-if the UK was still in the EU we would have to follow the decisions of the European court of justice.
-in cases involving human rights - act required courts to take into account judgements, decisions and opinions of the European court of human rights.

63
Q

what does ratio decidendi mean? (1)

A

the reason for the decision. this forms a precedent for future cases.

64
Q

when can the court of appeal go against their decisions? (3)

A

-when there are conflicting decisions (they must chose which one they follow)
-where there is a decision of a higher court that overrules
-where the decision was made per incuriam

65
Q

what are the disadvantages of judicial precedent? (4)

A

-rigidity
-complexity
-illogical distinctions
-slowness of growth

A-LEVEL LAW (50 decks)

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