judicial precedent Flashcards
criminal law
what is binding precedent?
this is when a desicion made in an older case must be followed in later cases
hat is persuasive precedent?
this is a decision that doesn’t have to be followed in later cases but a judge can chose to follow it if they wish
what is obiter dicta
things said ‘in passing’ in the judgement
what is stare decisis
means to stand by what has been decided and do not unsettle the established
what are the different types of persuasive precedent with a case example
- courts in lower hierarchy(r v r)
2.decisions of the judicial committee of the privy council(willers v Joyce)
3.statements made obiter dicta(r v howe/r v gotts)
4.dissenting judgement (r v radmacher)
what is ratio decidendi
legal reason for the decision
what is original precedent
a decision on a point of law that has never been decided before
what does the practice statement all uksc to do
allows the Supreme Court to depart from previous decisions they have made if it seems ‘right to do so’
in what circumstances can the coa make their own precedent
- conflicting past decisions(can pick one)
2.if a decision was overruled by hoc/uksc - judge made a legal error per incurium
- they can make their own decision if a law was misapplied or misunderstood-criminal cases due to threat of liberty
what does following mean
where there is previous precedent and the judge in the present case decided its relevant the judge should follow that decision
what does overruling mean
this occurs if a later case is ongoing and the court find out that an earlier cases legal ruling was wrong
what does distinguish mean
a method by which a judge avoids having to follow what would otherwise be binding precedent because the cases are materially different from previous precedent and doesn’t follow that precent due to this
