Judicial Precedent Flashcards
What is stare decisis?
Stand by the decided
What is the hierarchy of courts?
Supreme Court
Court of appeal
Crown court - High Court
Magistrates - County court
What are exceptions to the hierarchy?
Supreme court not bound by past decisions
CoA divisions separate (criminal and civil)
High court isn’t bound by own decisions
What is the ratio decidendi?
Reasons for the decision
Binding part of judgement
What are case examples of ratio decidendi?
R v Brown - not public interest to allow consent to serious activities
R v House - Murder serious crime, duress not allowed
What is the obiter dicta?
Other things said
Persuasive precedent- what if the facts were different
Can become binding if followed in future case
What are case examples of obiter dicta?
R v Brown - Certain circumstances consent to injuries above common assault allowed
What is original precedent?
Original point of law not decided before
Donoghue v Stevenson - Neighbour test
What is binding precedent?
Precedent from earlier case must be followed
What conditions must be met for binding precedent?
Binding if facts sufficiently similar
What is persuasive precedent?
Not binding, for future judge to consider
What are some examples of persuasive precedent?
Statements made obiter dicta
Dissenting judgments
Decision of courts in other countries
How do judges use distinguishing to avoid precedent?
Facts sufficiently different to draw distinction between cases
Balfour v Balfour + Merrit v Merrit
How do judges use overruling to avoid precedent?
Higher court disagrees with lower court
R v R overruled R v Miller
How do judges use reversing to avoid precedent?
Higher court overturns decision of lower court
Flitzpatrcik v Sterling House
HoL overturned
What was the practice statement?
Lord Chancellor
Binding S.C means there could be injustice or prevention in proper development of the law
What was said in Herrington v BRB?
First use of Practice Statement
Precedent inadequate for modern times, anomaly, should be discarded
How is precedent avoided in the court of appeal?
Decisions bind
Criminal + Civil separate
Exceptions:
Can choose between conflicting decisions
Supreme court overrules CoA
Decision made per incurium
Criminal division don’t follow precedent if law misapplied/misunderstood
