Judicial Precedent Flashcards
What is judicial precedent defined as?
judge made law.
judicial- of, by/appropriate to a law court/judge relating to administration of justice.
precedent- court must follow decisions of previous decision of same/higher court.
what is the system of precedent based on?
stare decisis- ‘stand by what’s been decided’. way of ensuring some certainty in the law as judges can’t keep changing the rules with every new case
what is a binding precedent, what makes a precedent binding?
-must be followed because it comes from a higher/the same court, that made the earlier decision (unless exception applies)
- to be bound case facts must be similiar
- usually found in the ration decidendi
- operate through system based on court hierarchy
what is the ratio decidendi part of a judgement?
the part that must be followed by future (lower/same) courts.
means ‘reason for deciding’ n explains why the case was decided the way it was
e.g manager is responsible for condition of their product to the end consumer from donoghue v stevenson
it’s found by reading thru published judgements of past cases
What is the obita dicta?
something said ‘by the way’ or hypothetically speaking or not binding bc of court hierarchy’s persuasive precedent. it’s often considered but not part of binding precedent.
what’s the persuasive precedent?
precedents which aren’t binding on a court but the judge may decide that it’s a correct principle and be persuaded to follow it
where can persuasive precedents come from?
-courts lower in the hierarchy eg. R v R 1991 hol agreed w the court of appeal in deciding that a man could be guilty of raping his wife
-decisions of the judicial committee of the privy council (not part of court hierarchy but their decisions are considered as worthy precedent eg. Holley)
- statements made obiter dicta e.g. R v Howe- ratio(duress shouldn’t be a defence to murder) obiter(duress shouldn’t be a defence to attempted murder) the obiter statement was followed by COA in the case of r v gotts
- a dissenting judgement(a different/disagreeing judgement judges can be persuaded from)
- decisions of courts in other countries- esp former empire ones w common law e.g aus, nz, canada.
what’s the original precedent and how does a judge decide this type of case?examples?
involves a point of law that’s never been decided before. judge would try to follow principles from previous similiar cases (reasoning by analogy) n the point of law which the judge decides will form a new precedent.
e.g. hunter v canary wharf( loss of tv reception) reasoned by analogy withe alfred’s case(loss of view).
Describe DPP v Smith 2006. what was the og precedent?
d’s ponytail was cut off by her ex-partner. magistrates accepted their was no abh n the dpp appleade to the queens bench division. there was no precedent on this type of assault(cutting hair) so the qbd created one.
what are the 3 ways to avoid a binding precedent?
distinguishing
overruling
reversing
what is distinguishing? examples
judges must show there’s a difference in the material facts of the 2 cases. if facts are sufficiently different then the judge isn’t bound by the earlier case. earlier decision need not be followed and a fresh precedent may be set e.g. merritt v merritt was distinguished from balfour v balfour
what’s overruling?example?
when a higher court disagrees w a legal principle established by a lower court in a previous case w similiar facts . higher courts can change the principle n the new principle must be followed by lower courts in future usually by the same court which set the precedent. also SC has power to overrule its own past decisions by using 1966 practice statement. SC can overrule a decision of CA n past decisions e.g. BRB v Herrington overrules Addie V Dumbreck
what’s reversing? examples?
when a case is appealed to a higher court n a different decision is reached. this could happen on either a first or second appeal. e.g. sweet v parsley (hol reversed via decision to not guilty bc mens rea couldn’t be proved)
tomlinson v congleton( SC reversed decision for coa who’d decided occupier was liable for injuries to a trespasser who ignored signs n dived into a lake. trespassers claim failed
what’s the doctrine of precedent?
the court of appeal is bound by decisions of the court above n normally its own past decision within the same division
what did the case of Young v Bristol aeroplane do?
listed the 3 exceptions to the doctrine of precedent
