judicial precedent

Question 1

what is the doctrine of precedent

Answer 1

principle that past decisions of judges create law to be followed by future judges//case law//STARE DECISIS

Question 2

how does precedent work

Answer 2

when a case has similar facts to an older case decided by a higher court the judge must follow the decision of the higher court//strict hierarchy of courts vital

Question 3

what is radio Decidendi

Answer 3

the reason for deciding- is binding (R v R)

Question 4

what is Obiter Dicta

Answer 4

“other things said”- not binding but may be persuasive (HILL v BAXTER)

Question 5

how does court of appeal avoid precedent

Answer 5

normally it must follow previous decisions but has some flexibility to avoid past decisions

Question 6

how does supreme court avoid precedent

Answer 6

special powers to avoid previous decisions (practice statement)

Question 7

what is the practice statement

Answer 7

supreme court can depart from previous HOL/SC rulings when it appears right to do so- allows for change of outdated law

Question 8

what is distinguishing

Answer 8

material difference found between old case and similar care (BROWN and WILSON)

Question 9

what is overruling

Answer 9

courts can review decisions of lower courts to decide if they are correct law and overrule them if they are not (R v R)

Question 10

advantages of precedent

Answer 10

-allows people to know what law is, lawyers to advise clients, certainty of law is important
-just and fair that similar cases should be decided in a similar way law must be consistent to be credible

Question 11

disadvantages of precedent

Answer 11

-system is too rigid and bad decisions often go unchanged as people very rarely make it to supreme court
-certain areas of law that need updating but judges can’t change law unless case comes before them and they have the power