judicial precedent Flashcards
what does star decisis mean
to let similar cases be decided in a similar way or to stand by what has been decided
what are precedents
decisions made on points of law by senior court which must be followed by lower courts in hierarchy when in later cases a same point of law arises
what does bound by mean
have to follow decisions
what is the privy council
a European court that is the highest appeal court in the common wealth
who is the supreme court bound by
no one
what are the 2 divisions in the court of appeal
civil and criminal
who is the court of appeal bound by
the supreme court and itself
what does bound by itself mean
has to base present decisions on past decisions
what courts are below the civil division
chancery and family courts
what court is below the chancery and family courts and who are they bound by
the high court
bound by supreme, court of appeal, chancery and family ,civil division
which court is below the high court and who is it bound by
county court
supreme, civil division, high court, chancery and family
who are the divisional courts bound by
court of appeal, supreme court and itself
what court is below the criminal division
kings bench division
what is the court below the kings bench division and who is it bound by
crown court
supreme court, criminal division and kings bench division
what is the court below the crown court and who is it bound by
the magistrates court
criminal division, crown court, kings bench division and supreme court
what does ratio decidendi mean
the reason for deciding
contains the point of law which forms precedent which lower courts in later similar cases must follow
what is the case example for ratio decidendi
R v Howe
what is the obiter dicta
other things said
judges may speculate on what decision would be if case facts where different
its persuasive and means that courts can choose to look the obiter in earlier cases and follow if they wish to
what is the case for obiter dicta
R v Gotts
chose to follow obiter from R v Howe
what are the 3 types of judicial precedent
original
persuasive
and binding precedent
what is the original precedent
when a case raises a new point of law that’s never been decided the judge must make a decision on the point of law.
this will become the original precedent
what is the case example for the original precedent
donoghue v stevenson (1932)
what is the persuasive precedent
this is a decision that the court is not bound to follow but can choose to follow if they wish
what is the case example for persuasive precedent
R v R
house of lords chose to follow the court of appeal decision
what is the binding precedent
the ratio decendi of a case in a senior court must be followed when a case hearing the same point of law is heard in a lower court. therefore it is a binding precedent
what is the case for binding precedent
donoghue v stevenson (1932)
grant v Australian knitting mills (1936)
what are all the sources of persuasive precedent
lower courts
obiter dicta comments
dissenting judgement
privy council
decision in other countries
what is the case for lower courts
R v R (1991)
what is the case for obiter dicta comments
R v Howe
R v Gotts
what is the case for dissenting judgement
Rose and Frank v Compton bros
what is the case for the privy council
The Wagon mound (1961)
what is the case for decision in other countries
R v Bentham (2003)
R v Sloan (1974)
which statute made it so the house of lords(supreme court) weren’t still bound by themselves
the practise statement 1966
when can the supreme court use the practise statement
when it appears right to do so
when was the first criminal use of the practise statement
R v Shivpuri (1985)
what is the general rule in the court of appeal
generally in each division in the court of appeal the court is bound by its own decisions
there are 3 exceptions to the general rule and what CASE was this developed in
Young v Bristol aeroplane co. ltd (1944)
what are the 3 exceptions to the general rule
1) if there are conflicting decisions in past CoA cases the court can choose which decision it will reject
2) if there is a decision of supreme court that over rules past CoA decisions the CoA must follow the supreme court decision
3) is the decision is made pre incuriam(carelessly by mistake) which is saying the process it took had a mistake
one division has a 4th exception but which one is it
the criminal division
what is the case for the 4th exception and what is the exception
R v Taylor . suggests the law has been misapplied or misunderstood
why is there a 4th extra exception
this is because a persons liberty may be at stake
why might courts want to avoid following a precedent
law is outdated and can lead to absurd decisions
who is able to overrule a decision
someone senior
what is the definition of overruling
when a senior court changes a precedent of an earlier case on the same point of law because it is wrong or outdated
what are the 2 cases for overruling
R v Shivpuri when it overruled Anderton v Ryan
what is the legal principle for Anderton v Ryan
it is NOT a crime to only attempt to do the impossible
what is the legal principle for R v Shivpuri
is IS A CRIME to only attempt to do the impossible
what did the supreme court say about the decision made in Anderton v Ryan
supreme court said they had made a serious error and it had to be changed
what other cases has overruling been used
Pepper v Hart(1993)
Davis v Johnson(1979)
both these cases where overruled
what is distinguishing
happen when any court thinks the material facts of the case are sufficiently different from an earlier case that it can draw a distinction between the two
how many precedents will exist after distinguishing has been used
2 precedents
come in with 1 precedent and leave with 2
which courts can use distinguishing as a way of avoiding precedent
any courts
what is the type of agreement for balfour v balfour
verbal
what is the type of agreement for merritt v merritt
written
what is the agreement for in balfour v balfour
agreement for money
what is the agreement for in merritt v merritt
agreement for house
what is the living in balfour v balfour
together
what is the living in merritt v merritt
seperated and living together
why does the agreement in balfour v balfour not amount to a contract
no intention to create legal relations
why does the agreement in merritt v merritt amount to a contract
there is intention to create legal relations (intention to make it legally binding)
what is reversing
when a point of law is decided in a lower court then the same case goes to a higher court who changed the point of law
how is reversing different from overruling
reversing involves 1 case whereas overruling involves 2 cases
what is the case for reversing
R v Hasan (2005)
