Judicial Precedent Flashcards
Definition of the Doctrine of Precedent?
Following the decisions of previous cases
What are the three types of Judicial Precedents?
Original Precedent
Binding Precedent
Persuasive Precedent
Definition of Original Precedent?
A decision on a point of law that has never been decided before
Case for Original Precedent?
Donoghue v Stevenson
Definition of Binding Precedent?
A decision is an earlier case which must be followed in later cases
Case for Binding Precedent?
Caparo v Dickman
Definition of Persuasive Precedeent?
A decision which does not have to be followed by later cases, but a judge may decide to follow
Case example of Persuasive Precedent?
R v R
Rules of Hierarchy of Courts?
Every court is bound to follow any decision made by a court above it in the hierarchy
Appellate courts are bound by their own decisions
What courts are Appellate Courts?
Supreme Court
Court of Appeal
Divisional Courts
What are the two exceptions where lower courts do not have to follow Appellate Courts?
Where there is a decision of the Court of Justice of the European Union when the English court must follow that decision
Cases involving human rights
Do Crown Courts have Binding Precedent?
No, but judges can use persuasive precedent and is not bound by its own decisions
What case states Court of Appeals are bound by their own decisions?
Young v Bristol Aeroplan Co
What are the 3 exceptions where Court of Appeal can depart from earlier decisions?
Earlier made mistakes (per incuriam)
Two Court of Appeal decisions conflict
Later decision in Supreme Court overrules decisions in Court of Appeal
What are the 3 judgements?
stare decisis
ratio decidendi
obiter dicta
Definition of stare decisis?
Stand by what has been decided and do not unsettle the established
Definition of ratio decidendi?
The reason for the decision. This forms a precedent for future cases
Definition of obiter dicta?
“Other things said” so it is all the rest of the judgement apart from the ratio decidendi. Judges in future cases do not have to follow it.
What year was the Practice Statement?
1966
What does the Practice Statement state?
The supreme court can depart from its own decisions when it appears right to do so. “it is right to do so”
Cases where the Practice Statement has been used?
Herrington v British Railways Board - child trespasser duty owed
R v Shivpuri - first use in criminal cases
R v G and R - overrule decision in (Caldwell) on recklessness
Definition of Overruling?
When the court decides that a precedent is incorrect and should no longer be considered good law.
Judges in higher courts can overrule the decisions in lower courts if they decide the legal principles are wrong
Cases where Overruling was used?
Young v Bristol Aeroplane Co
Pepper v Hart
Davis v Johnson
Definition of Distinguishing?
A method by which a judge avoids having to follow what would otherwise be a binding precedent. Where a judge finds that the case being heard has different material facts from the facts of the precedent. The judge can come to a different conclusion. Courts may be able to distinguish the present case from that in which the precedent was set if the judge finds that the facts of the case are sufficiently different.
Cases for Distinguishing?
Balfour v Balfour and Merritt v Merritt
Advantages of Judicial Precedent?
Flexibility - R v R
Gives a Just Outcome
Authoritative
Time Saving
Disadvantages of Judicial Precedent?
Undemocratic
Rigidity - bad decisions difficult to change
Uncertainty
Difficult to identify ratio as different in all cases
