Judicial precedent Flashcards
what is the doctrine of precedent (or state decisis)
when judges develop existing law to fit new circumstances + can be used by other judges in later cases
what are the 3 types of precedent
original precedent
binding precedent
persuasive precedent
define original precedent + case
where court deals with an area of law for the first time, as in Donoghue v Stevenson
define binding precedent
when a precedent from an earlier case must be followed even if the judge does not agree with the LP
when is binding precedent created (2) + case
- facts of second case sufficiently similar to original case, and
- decision made by a senior court
As in Howe
what is persuasive precedent
not binding on future case, but may be considered + can be persuaded to follow it
which 4 places can persuasive precedent come from
- a lower court
- part of obiter dicta of a case
- set by Privy Council
- dissenting judgement
case for persuasive precedent
Gotts
explain features of judicial precedent
3 things necessary for judicial precedent to work:
1) hierarchy of courts
2) ratio decidendi
3) law reports
hierarchy of civil courts
supreme court
COA - civil division
High court
county court
magistrates court
criminal court hierarchy
supreme court
COA - criminal division
high court
crown court
magistrates court
explain supreme court (2)
- binding on all lower courts
- bound by its own previous decisions, unless decision was made per incuriam (in error)
is the Court of Appeal generally bound by its own previous decisions
yes
what case gave the 3 exceptions of when COA can refuse to be bound by its previous decisions (+ name exceptions)
Young v Bristol Aeroplane:
1) 2 conflicting decisions of COA
2) there is a SC decision which is effectively overrules the COA
3) decision was made per incuriam
what is the additional exception of COA criminal division when they can refuse to be bound by their previous decisions + case
Gould - where the law has been ‘misapplied or misunderstood’
what are the 2 roles of the divisional courts (high courts)
court of 1st instance
appeal court
who are the QB, chancery and family court bound by
COA, SC and themself
do the Young v Bristol Aeroplane Co. and Gould exceptions apply in divisional courts
yes
who must follow the first instance decision of the high courts
the lower courts
explain inferior courts (2)
- bound by decisions from courts above
- unlikely to create precedent
what is ratio decidendi
LP - ‘reason for deciding’
who said ‘any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion’ (in reference to ratio decidendi
Sir Rupert Cross
is ratio decidendi a binding precedent + case e.g.
yes e.g. Howe
what was the ratio in Howe and which case followed this
defence of duress not available to a charge of murder - followed in Gotts
define obiter dicta
rest of the judgement - ‘other things said’
is obiter dicta binding
no, but may have persuasive authority
what are law reports
reports of the decisions of the superior courts
there was various types and standards of law reports until the … was established in what year
Incorporated Council of Law Reporting established in 1865
what is following
where a judge follows relevant previous precedent
if a new act of parliament contradicts previously decided case, what happens
decision made in case no longer exists + act of parliament is now the law on that point
what is distinguishing
when judge finds case facts sufficiently different to previous case so he is not bound by the previous precedent
what does distinguishing create
a second binding precedent - previous precedent remains binding in cases of the sake facts
give case example of distinguishing
Merritt v Merritt was distinguished from the earlier case of Balfour v Balfour
what is overruling with case
where a court in a later case states the legal rule decided in an earlier case is wrong + therefore the precedent does not have to be followed e.g. BRB v Herrington
list 4 advantages of judicial precedent
1) helps ensure consistency in the interpretation + application of the law
2) allows judges flexibility to fill in any gaps left by parliament e.g. R v R
3) creates certainty + predictability because courts follow past decisions
4) time saving device
list 4 disadvantages of judicial precedent
1) undemocratic - judges unelected + unrepresentative- shouldn’t make law?
2) complexity - sometimes difficult to establish what the ratio of a case is
3) the retrospective nature of the decision can be a disadvantage - unlike legislation made by parliament, law created by judges is backward looking e.g. R v R - marital rape not a crime when D committed the act
4) uncertainty - when judges use the different methods to avoid following precedents e.g. when Murphy v Brentwood overruled Ann’s v Merton
