Judicial Precedent Flashcards
What is the doctrine of precedent?
Judges following previous decisions/law made in previous cases by previous judges.
What is Stare Decisis?
To stand behind what has previously been decided, judges creating law based on past decisions by judges. It is the Latin phrase for precedent.
How does Stare Decisis work?
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.
Give an example of Stare Decisis in action?
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.
What is Ratio Decidendi?
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.
Give an example of Ratio Decidendi in action?
Cunningham - ratio was that to be reckless you have to know there is a risk of unlawful consequence and decide to take that risk.
What is Obiter Dicta?
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the judge may make comments during their ruling which do not relate directly to the facts of the case, in turn it is not binding precedent.
What makes Obiter Dicta persuasive precedent?
Other judges do not have to follow it although it may influence their decisions in cases.
Give an example of Obiter Dicta in action?
The obiter dicta in Howe that duress was not available for an attempted murder charge was followed later in the case of Gotts.
Explain the European Court of Justice?
- 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.
Explain the Supreme Court?
- 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”.
Give 2 examples of the Supreme Court overruling earlier decisions?
- 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.
Explain the Court of Appeal?
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.
Explain the Criminal Division of the Court of Appeal?
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.
Explain the Civil Division of the Court of Appeal?
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).
