Judicial Precedent Flashcards
What is meant by common law?
Case law or judge made law
What does Stare Decisis mean
Follow decision made in previous case law
What does Ratio Decidendi mean?
Point of law
What does Obiter Dicta mean?
Comments that judges make (persuasive)
What is a binding precedent?
Must be followed
What is a persuasive precedent?
It may be followed but does not have to be
What is an original precedent?
First time a binding precedent is stated
What allows decisions in the Supreme Court to not be binding?
Practice Statement 1966
What decision is the court of appeal bound by?
Supreme Court and its own decisions
What are the three reasons that the court of appeal can go against a previous decision?
CA decision conflicts with Supreme Court decision
Two conflicting CA decisions
Decision made was per incuriam (in ignorance of the law)
What does per incarium mean?
In ignorance of the law
What is distinguishing?
If there are enough differences then a point of law does not apply from another case
What are some case examples of distinguishing?
Balfour v Balfour
Merritt v Merritt
R v Brown
R v Wilson
What is overruling?
Higher court can overrule decision made in earlier case by lower court
What is reversing?
If decision in lower court appealed to higher one the higher court may change back to original decision if it was correct
What are some advantages of judicial precedent? (4)
-consistency
-predictability
-flexibility
-meet the changing needs of society
What are some disadvantages of judicial precedent? (5)
-complexity
-uncertainty
-rigidity
-volume
-undemocratic
Case example of Ratio decidendi?
DPP V Smith - Cutting hair can amount to ABH
Case example obiter dicta?
DPP V Smith - Throwing paint on persons hair could be hurt or damage so ABH
Example of when court of appeal went against previous decision?
Young v Bristol Airoplanes
What where the differences between Merritt v Merritt and Balfour v Balfour?
Balfour v Balfour - agreement between family not binding
Merritt v Merritt - Husband left wife living with other women so binding as weren’t considered family
Case example Overruling?
R v Howe - duress not defence to murder
Case example Reversing?
Sweet v Parsley - teacher cottage drugs
Example of original precedent?
Donoghue v Stevenson - introduced negligence
