judicial precedent Flashcards
stare decisis definition, and what it means?
to stand upon a decision
- This means that court decisions set, particularly, by the superior courts must be followed by courts lower down if the facts of the cases are sufficiently similar.
- This in turn, should lead to consistency & fairness in the law but especially certainty.
RATIO DECIDENDI means…
This means the reason for the decision.
- It is this that creates a precedent for judges to follow in future cases.
RATIO DECIDENDI - the reason for the decision.
CASE EXAMPLE
HOWE
- duress of threats is not allowed as a defence for murder due to the violent society we live in
orbiter dicta meaning…
things said by the way
Original precedent is…
If a point of law has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow i.e it is an original precedent.
- As there are no past cases for the judge to base his decision on, he is likely to look at cases closest in principle & he may decide to use similar rules. This is known as reasoning by analogy
binding precedent is…
a precedent from an earlier case which must be followed even if the judge in the later case does NOT agree with the legal principle.
- A binding precedent can only be created when the facts of the case are similar to the original case & the decision was made by a court which is senior /higher up in the hierarchy.
Persuasive precedent is…
This is not binding but the judge MAY consider it & decide that it is a correct principle so he is persuaded to follow it.
gotts case… PERSUASIVE PRECEDENT
16 yr old boy threatened by dad to kill him mother. he stabbed her but she survived (AM) . they were persuaded by the earlier precedent in HOWE.
SHIVPURI CASE…
attempting the impossible
GEMMEL AND RICHARDS CASE…
2 11 yr old boy set wheels bins on fire which spread causing millions of £ in damage.
Re A CASE
conjoined twins case
BROWN CASE
sadomasochistic activity - all men guilty for assault despite them consenting.
WILSON CASE
husband branded wife consensually- courts didn’t want to get involved with what couples do together
kingston case (drugged intent is still consent)
def was spiked and invited to have sex with an underage boy. he argued that he only abused him as he was drugged.
- drugged intent is still intent
when do judges make law?
include an example…
judges do use precedent to create new law& to extend legal principles.
-Criminal law as seen in R V R where rape in marriage was declared a crime.
