Judicial Precedent Flashcards

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1
Q

What is the doctrine of precedent?

A

Judges following previous decisions/law made in previous cases by previous judges.

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2
Q

What is Stare Decisis?

A

To stand behind what has previously been decided, judges creating law based on past decisions by judges. It is the Latin phrase for precedent.

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3
Q

How does Stare Decisis work?

A

It is reliant upon hierarchical nature of the UK court system, higher courts will always bind lower courts through their decision making, for example all lower courts will follow the court of appeal.

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4
Q

Give an example of Stare Decisis in action?

A

Schweppes LTD made a precedent which was immediately applicable to future cases. Later that day the ruling in Automatic Telephone LTD v restrictive trading involved the same point of law as schwepes.

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5
Q

What is Ratio Decidendi?

A

It is the reason for deciding, these are legal principles that are part of a judges judgment. These become binding precedent for all future similar cases.

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6
Q

Give an example of Ratio Decidendi in action?

A

Cunningham - ratio was that to be reckless you have to know there is a risk of unlawful consequence and decide to take that risk.

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7
Q

What is Obiter Dicta?

A

Other things said, the judge may make comments during their ruling which do not relate directly to the facts of the case, in turn it is not binding precedent.

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8
Q

What makes Obiter Dicta persuasive precedent?

A

Other judges do not have to follow it although it may influence their decisions in cases.

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9
Q

Give an example of Obiter Dicta in action?

A

The obiter dicta in Howe that duress was not available for an attempted murder charge was followed later in the case of Gotts.

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10
Q

Explain the European Court of Justice?

A
  • The ECJ’s decisions are binding in all UK courts in matters of UK courts.
  • Not bound by it’s past decisions and can overrule them.
  • Points of EU law can be referred to the ECJ from English Courts. ECJ decides upon points of law and refers back to UK to apply said law.
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11
Q

Explain the Supreme Court?

A
  • It is bound by the decisions of the ECJ.
  • It is the highest court of appeal in England and binds all lower courts.
  • In 1966 the Lord Chancellor issued a Practice Statement which allows the supreme court to depart from earlier decisions “where it appears right to do so”.
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12
Q

Give 2 examples of the Supreme Court overruling earlier decisions?

A
  • Howe overruled Lynch by stating that duress was not a defence to murder charge.
  • Herrington overruled Addie v Dumbreck on whether occupiers owe a duty of care to trespassers.
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13
Q

Explain the Court of Appeal?

A

The Court of appeal has two divisions these being the Criminal and Civil. They are bound by the ECJ and Supreme Court but the decisions of one division do not bind another.

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14
Q

Explain the Criminal Division of the Court of Appeal?

A

usually bound by it’s own previous decisions. But can depart if the previous law has been misapplied or misunderstood. Also will flexible if the liberty of an individual at stake - R v Spencer.

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15
Q

Explain the Civil Division of the Court of Appeal?

A

Bound by its own previous decisions, Young v Bristol Aeroplane confirmed this but set out 3 exceptions.

1) The Previous decision was made per Incuriam (by mistake). Williams v Fawcett - Judges misunderstood the law.

2) Two Previous Court of Appeal decisions conflict - The Court can choose which one to follow (though it is usually the latter one).

3) A later decision of the House of Lords overrules a previous CoA decision (The Court has to follow the House of Lords Decision).

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16
Q

How does the Divisional Court Work?

A

The Divisional Courts are bound by the decisions of the ECJ, Supreme Court and Court of Appeal. The Family and Chancery divisions are bound by their own decisions. There is flexibility for the Queen’s Bench division when hearing criminal appeals.

17
Q

How does the Crown Court Work?

A

The Crown Court is bound by all higher courts, the decisions made by it are not binding and it is not bound to follow its own decisions.

18
Q

How does the magistrates Court and County Court Work?

A

They are bound by the courts above them and are not bound by their own previous decisions.

19
Q

What is the practice statement?

A

In 1966 the Lord Chancellor issued a practice statement which allowed the house of lords to depart from earlier decisions “when it appears right to do so”.

20
Q

Why was the practice statement created?

A

The Court felt that they needed more flexibility with the Lord Chancellor stating that “Although the use of precedent is fundamental and provides certainty, the court recognizes then occasional need to depart from precedent when it appears right to do so”.

21
Q

Give an example of the Practice Statement being used?

A

The first major use was in the case of Herrington overruled Addie v Dumbrek about whether occupiers owe a duty of care to children.

22
Q

Give an example of the Court refusing to use the Practice Statement?

A

In the case of Knuller Lord Reid said they weren’t going to use the practice statement as certainty of law is still important.

23
Q

Give an example of practice statement use in criminal law?

A

The Practice statement was not used until 1986 under the basis that Criminal Law needs to be certain. In 1986 Shivpuri overruled Anderton v Ryan.

24
Q

When did the Supreme Court first use the practice statement?

A

After the 2005 constitutional reform act there were questions of whether the court would retain this power. In the case of Knauer the Supreme Court held it did have this power and used this to overrule the law on damages.

25
Q

How do the two divisions of the Court of appeal interact with each other?

A

The decisions of one court do not bind another court, they merely persuade each other as seen in R v Ireland.

26
Q

What did Rickards v Rickards set out regarding the Civil division of the Court of Appeal?

A

They would only depart from precedent in “rare and exceptional” circumstances.

27
Q

What are the other minor ways in which the Court of Appeal can avoid precedent?

A

Distinguishing.
Following an ECJ decision that overruled a previous Supreme Court decision - Sharp v Caledonia.
Following a European Statute that is in conflict with previous precedent - Mendoza v Ghaidan.

28
Q

What is Original Precedent?

A

It is a point of law being decided for the first time