Judicial Precedent Flashcards
What are precedents?
Decisions made by higher courts that must be followed by lower courts when dealing with the same point of law.
What principle is precedent based on?
Stare decisis, which means ‘stand by the decision’.
Which court is the highest in the country?
The Supreme Court.
What is the effect of a Supreme Court decision on lower courts?
It is binding on all courts below it.
What are the three parts of a judge’s decision found in law reports?
- Verdict (guilty or not guilty)
- Ratio decidendi (reason for deciding)
- Obiter dicta (other things said)
What does ‘ratio decidendi’ mean?
Reason for deciding.
What is an example of a ratio decidendi?
In R v Howe, the ratio was that duress is not a defence to murder.
What happens if judges in a case have different reasons for deciding?
There can be multiple ratios in one case.
What does ‘obiter dicta’ mean?
Other things said.
What does obiter dicta include?
Everything that isn’t the ratio or verdict and often includes speculation by a judge.
How can obiter dicta influence later cases?
It can act as a persuasive precedent.
What was the obiter dicta in R v Howe?
Duress should not be a defence to attempted murder.
Did R v Gotts have to follow the obiter dicta from R v Howe?
No, they chose to follow it even though they did not have to.
What is an original precedent?
A decision made by judges on a new point of law that has never before been decided
Judges use ‘reasoning by analogy’ to reach a similar conclusion based on the most similar cases.
Give an example of an original precedent.
Donoghue v Stevenson
This case created a brand new tort of negligence.
What is a binding precedent?
A precedent that must be followed by judges in a lower court
It often comes from the ratio decidendi of a higher court.
In which case was the ratio decidendi from Donoghue v Stevenson binding?
Grant v Australian Knitting Mills
The cases were about the same point of law.
What is a persuasive precedent?
A precedent that judges can choose to follow, but do not have to
It may come from sources such as obiter dicta and lower courts.
What was the significance of R v R?
The Court of Appeal decided to make rape within marriage illegal
The House of Lords was persuaded by this decision and chose to uphold it.
Fill in the blank: A binding precedent often comes from the _______.
ratio decidendi of a higher court
True or False: Persuasive precedent must be followed by judges.
False
What are persuasive precedents?
Decisions that judges can choose to follow, but do not have to.
What is one source of persuasive precedent?
Lower courts.
Are higher courts bound to follow the decisions of lower courts?
No, but they can choose to follow them.
In R v R, what did the Court of Appeal say should be illegal?
Marital rape.
Did the House of Lords have to follow the decision of the Court of Appeal in R v R?
No, but they were persuaded to make the same decision.
What is obiter dicta?
Statements made in a judgment that are not binding on other courts.
Can later cases choose to follow obiter dicta?
Yes, if their case is dealing with the issue mentioned by the obiter.
In R v Howe, what was suggested regarding duress?
Duress should probably not be a defence to attempted murder (obiter).
Which case chose to follow the suggestion in R v Howe?
R v Gotts.
Are decisions made by the Privy Council binding on UK courts?
No.
Why are decisions of the Privy Council considered good authority?
Because they are made up of judges from the UK Supreme Court.
What significant test did the Privy Council decide in The Wagon Mound?
The remoteness test for negligence.
Did the remoteness test for negligence from The Wagon Mound get adopted in UK law?
Yes.
Which UK case followed the Canadian case R v Sloan?
R v Betham.
What is a dissenting judgement?
A judgement that goes against what the majority of judges decided.
In Rose and Frank v Crompton Bros, what did the majority of judges in the CoA decide?
That there was a contract.
What did the dissenting judge in Rose and Frank v Crompton Bros believe?
That there should not be a contract.
Which court decided to follow the dissenting CoA judge in Rose and Frank v Crompton Bros?
The House of Lords.
What statement allows the Supreme Court to overrule itself?
The 1966 Practice statement
This allows the Court to overrule itself when it appears right to do so.
Which case overruled Anderton v Ryan?
R v Shivpuri
This case established it as a crime to attempt to do the impossible.
Why did the Supreme Court overrule Anderton v Ryan?
They felt they made a serious error in the original decision.
What is the general stance of the Supreme Court towards overruling its own decisions?
Reluctant
They prefer to keep the law certain, as indicated in Jones v SoSSS.
Can the Supreme Court overrule precedents of lower courts?
Yes, when the decision is wrong or outdated.
What does distinguishing a case involve?
Deciding that material facts in a later case are sufficiently different from an earlier one.
In which case was the precedent distinguished from Balfour v Balfour?
Merritt v Merritt
What was the key difference between the agreements in Balfour v Balfour and Merritt v Merritt?
Balfour involved a verbal agreement, while Merritt involved a written agreement.
What was the outcome regarding the enforcement of the contract in Balfour v Balfour?
Not appropriate to enforce the contract.
What was the outcome regarding the enforcement of the contract in Merritt v Merritt?
Appropriate to enforce the contract due to intentions to create legal relations.
What is reversing in legal terms?
When a higher court changes the decision/point of law of a lower court in the same case.
How does reversing differ from overruling?
Reversing involves only one case.
In R v Hasan, what did the Court of Appeal decide about self-induced duress?
It was only when D knew what type of crime he would be forced to commit.
What was the House of Lords’ ruling in R v Hasan regarding self-induced duress?
It was whenever D should have expected violence, regardless of knowledge of the crime.
