Judicial Precedent Flashcards
What is common law?
Law that comes from court outcomes
What is legislation?
Law that has been passed by parliament
What is the hierarchy of the courts ?
Every court is bound to follow the decisions made by a court above it in the hierarchy
What is the hierarchy of the criminal courts?
Supreme court
Court of appeal (criminal division)
Queens bench divisional court
Crown court
Magistrates court
What is the hierarchy of civil courts?
Supreme court
Court of appeal (civil division)
Divisional courts
High court
County court
What are the 3 types of judicial precedent?
Binding precedent
Original precedent
Persuasive precedent
What is binding precedent?
When a case comes to court as is similar to an existing case the court have to follow the previous decision. The first case is the binding precedent
What is original precedent?
A situation where the point has never been before decided meaning there is an opportunity to make new law
What is persuasive precedent?
Does not have to be followed but may be taken into account such as
-courts lower in the hierarchy
-decisions of the judicial committee of the privy council
-statements made obiter dicta
-a dissenting judgement
-decisions of courts in other countries
How may a court avoid the rules of binding precedent? (F.O.R.D)
Follow
Overrule
Reverse
Distinguish
How does follow : reasoning by analogy work?
Being able to identify important similarities between the facts of a case. An example is how donoghue v Stevenson reasoning was followed in Grant v Australian knitting mills
How does overruling binding precedent work?
Where a court higher up reviews a previous case such as the R v R overruling R v Miller as it became known a man can be guilty of marital rape
How does reversing work for binding precedent?
Where a case when being reviewed is disagreed with the original outcome for example sweet v parsley as it was not an offence of strict liability so without the mens rea should not be guilty
How does distinguishing work with binding precedent?
Where they look at the differences within the cases to show they can’t have the same outcome as it would be unfair, an example is Balfour v Balfour and Merritt v Merritt
What is ratio decidendi?
The reason for the decision
What is Per incuriam?
A legal ruling in a last case is wrong because it was made ‘through lack of care’
What is obiter dicta?
Everything else said in the judgement that isn’t directly relevant to the facts of the actual case
What is stare decisis?
To stand by what has been decided
Ratio decidendi and the case donoghue v Stevenson
The ratio decidendi is the reason for the decision so here it is that the defendant had gotten ill so would be unfair for nothing to happen
What is the practice statement 1966?
Though the decision is meant to be final from the supreme court they are able to depart when suitable
How was the practice statement used in Herrington v BRB overruling Addie v Dumbreck?
The practice statement was used to overrule a previous decision about not owing a duty of care to child trespassers
How was the practice statement used in shivpuri and Anderton V Ryan?
Overruled statement from previous year to correct an error of interpretation
What did London street tramways v London county council establish?
A decision made by the supreme court is conclusive and cannot be reargued
What does the human rights act do?
Required all UK courts to take account of desions of the European court of human rights but can decline to follow them
