Judicial Precedent Flashcards
Common law
Case law/judge made law
Has no statutory definition e.g murder
Doctrine of judicial precedent
Rules which state which court is bound by which court
Stare decisis
‘Let the decision stand’
Judge has to follow decision or binding legal principle
Provides certainty and consistency
Ratio decidendi
‘Reason for the decision’
Point of law
Judgement of the courts legally binding for all courts below it in hierarchy
Obiter dicta
Things said by the way
Not binding - persuasive
What the outcome would have been had the facts been slightly different
Binding precedent
One that must be followed by all courts on same level and below
Persuasive precedent
May be followed
Original precedent
Point of law has never been set before
E.g fears and others v board of trustees of the Tate gallery
Methods of avoiding precedent
Supreme Court
Court of appeal
Distinguishing
Avoiding precedent through Supreme Court
Practice statement 1966 - allows Supreme Court to depart from previous decision where appeared right to do so e.g R v R
Used in r v jogee
A v hoare
Supreme Court exercised discretion overruling limitations act 1980
Avoiding precedent through court of appeal
Bound by own decisions
Avoiding precedent through court of appeal
Bound by own decisions
Young v Bristol aeroplanes allows some flexibility - can go against own decision:
-CA decision conflicts with Supreme Court
-2 conflicting CA decisions
-decision made per incuriam (ignorance of the law)
May go against previous decisions in interest of justice
Williams v faucet
Per incuriam
Misunderstanding county court rules
R v cooper
Per incuriam
New safeguarding rules, not clear needed to be changed
R v cooper
Per incuriam
New safeguarding rules, not clear needed to be changed
Distinguishing
Used in order to avoid consequences of earlier inconvenient decision binding on them
Balfour different to Merritt
Balfour still considered married, Merritt not
No consideration Balfour, consideration Merritt
Balfour unsuccessful, Merritt successful
R v brown, r v Wilson
Consent allowed in wilson not brown
Wilson seen as tattoo
Sexual gratification v not
Overruling
Higher court overrule
E.g law not applied correctly, ratio decidendi no longer desirable
A v hoare, r v Howe
Reversing
May change decision when appealed
Sweet v parsley - division court reversed decision of QBD (over when something was strict liability)
Sweet v parsley
division court reversed decision of QBD (over when something was strict liability)
Advantages of jp
Consistency
Predictability
Flexibility
Detailed practical rules
Meet changing needs of society
Disadvantages of jp
Complexity
Uncertainty
Rigidity
Volume
Unconstitutional and undemocratic
Retrospective
Ration decidendi of r v Howe
Duress can’t be a defence for ,murder
RD of r v r
Rape in marriage should be illegal
RD of r v r
Rape in marriage should be illegal
RD of DPP v Smith
Cutting hair abh - all parts of body if not trivial
Obiter dicta of r v Howe
Duress also can’t be used for attempted murder
Obiter dicta for r v Thomas
Touching clothing could amount to battery
Obiter dicta DPP v smith
Could be other things e.g glue, hair remover
Young v bristol aeroplanes
CA go against previous decisions when:
- CA decision conflicts with Supreme Court decision
- 2 conflicting CA decisions
- decision made per incuriam (in ignorance of the law
Practice statement 1966
Allows Supreme Court to depart from previous decision
