Judicial precedent Flashcards
what does stare decisis mean
stand by whats already been decided
what are precedents
decisions made on a point of law by senior courts which must be followed by lower courts in the heirachy when a later case raising the same point of law arises
what is literal translation of ratio decidendi
reason for deciding
explain ratio decidendi
contains the point of law which forms the precedent which lower courts in similar cases must follow
ratio is binding
what happened in R v Howe
D killed V after D was threatened with death by another man
whats the ratio in R v Howe
duress cannot be a defence to murder
literal translation of obiter dicta
other things said
explain obiter dicta
obiter is everything else in the judgement (other than ratio and verdict).
Judge may spectulate as to what the decision wouldve been if the facts of the case had been different
is obiter dicta pursuasive or binding
PERSUASIVE
what happened in R v Gotts
chose to follow obiter in R v Howe
(duress cannot be a defence to attempted murder)
whats the three types of precedent
original
binding
persuasive
whats the case for orginal precedent
Donoghue v Stevenson
case for binding precedent
Donoghue v Stevenson followed Grant v Australian Knitting Mill
case for persuasive precedent
R v R
ratio of donoghue v stenvenson
manufacteur owes a duty of care regardless of whether they have a contract
what did the COA decide in grant v AKM
follows donoghue v stenvenson bc ratio decidendi was decided in supreme court
whats the COA decisions in R v R
COAS decision not binding on the HOL bc they are a lower status court
HOL made precedent
what are the five sources of persuasive precedent
lower courts
obiter dicta
dissenting judgements
privy council
decisions in other countries
case example for lower courts w definition
R v R - COA said marital rape should be illegal. Supreme agreed but they didnt have to follow the COA but was pursuaded to follow
case example for obiter dicta
r v gotts chose r v howes ratio of duress not being a defence to attempted murder
case for dissenting judgements
Rose and Frank v Crompton Bros- judges except one in the COA decided that there was a contract, went to supreme court and followed judge who disagreed
case for the privy council
Wagon Mound- D decided the remoteness test for negligence been adopted in UK law
case for decisions in other countries
R v Bentham- UK case that chose to follow the candadian case of R v Sioan (possession of firearms)
source of persuasive precedent
explain lower courts
higher courts arent bound to follow the decision of lower courts but can choose to
source of persuasive precedent
explain obiter dicta
isnt binding on other courts as its not usually relevent to the issue in that case
later cases can choose to follow the obiter if their case is dealing with the same issue mentioned by the obiter
source of persuasive precedent
explain dissenting judgements
judgement that goes against the majority in that case.
dissenting judgement may persuade higher courts to change law in the future
source of persuasive precedent
explain privy council
not a uk court so uk courts dont have to follow their decisions
PC made up of judges from uk supreme court so decisions made with good authority
source of persuasive precedent
explain decisions made in other countries
similar legal rules and systems to the uk, so cases in these countries could provide useful ideas for uk
these rules dont bind us but we can choose to adopt them
what does London street Tramways v London countu council say
the HOL ruled that they should abide by their own previous decision to ensure certaintty in the law
the practise statement was introduced which allowed what?
the HOL to depart from its previous decision when appears right to do so
what was the first major use of the practise statement
Herrington v BRB overuled Addie v Dumbreck
why are judges reluctant to use the practise statement
Jones v SoSSS- judges refused to overrule the case of Re Dowling even tho the decision in this case was wrong
why did the judges not over rule the case of Re Dowling
certainty is the most important feature of precedent
what was the first criminal use of the practise statement
R v Shivpuri overuled Anderton v Ryan
the COA has two divisions but they dont bind to each other? what are the 3 exceptions to this rule
- conflciting decisions in past COA cases, courts can choose which decision to reject
- if theres a decision in supreme court which overrules a past COA decision, COA must follow SC decision
- if decisions are made ‘per incurium’ bc a relevent act of P hasnt been considered by court
what division has a 4th exception?
criminal division
whats the two divisions of the COA
civil
criminal
whats the 4th exception
if law has been misapplied or misunderstood
case for 4th exception
R v Tailor
case for 3 exceptions
Young v Bristol Aeroplane
why might courts want to avoid following precedent
decision may be wrong, outdated or absurd
who is able to overrule anothers decision
someone senior
defintion of over ruling
when a senior court in a later case changes a precedent of an earlier case on same point of law
higher courts can either overrule precedents of the courts below or overule their own
principle in anderton v ryan
it isnt a crime to only attmept to do the impossbile
principle in shivpuri
its a crime to attempt to do the impossible
name another case used for overruling
pepper v hart overruled davis v johnson
define distinguishing
where a court thinks that the material facts of that case are suffieciently different from an earlier case
the court in the later case isnt bound by the precedent in the earlier
the later case will create another precedent on the same point of law
how many precedents will exist after distinguishing is used
2
which courts can use distinguishing
any
whats balfour v balfour and meritt v meritt
balfour- agreement made doesnt amount to a contract
meritt- agreement made does amount to a contract
what was balfour v balfour about
agreement for money, lived together
what was meritt v meritt about
agreement for the house, seperated living apart
whats reversing
when a p.o.l is decided in a lower court then the same case goes to a higher court who changes that p.o.l
how is reversing different from overruling
only involves 1 case
in r v hasan what did the COA decide
duress isnt self induced if D doesnt know what crime he will be forced to committ
in r v hasan what did the HOL decide
duress is self indiced when D knew or shouldve known the risk of being threatened with violence
what decision out of the COA or HOL is binding in R v Hasan
HOL
explain advantage of creating certainty
This is because precedent is based on principle of ‘stare decisis’ meaning to stand by the decision. Therefore the same decision will always be made by lower courts and higher courts are reluctant to overrule their own precedents even when they can! For example, Jones v SoSSS refused to overrule Re Dowling to maintain certainty. This benefits lawyers, judges and defendants, as certainty allows them to effectively prepare for cases.
explain advantage of flexibility
This is because there are several ways of avoiding precedent if a bad decision will be made. Higher courts can change and overrule the law, and any court can distinguish. For example, R v Shivpuri was able to overrule Anderton v Ryan, as there was a serious error that needed to be corrected quickly. Therefore precedent being flexible is good because bad decisions can be avoided and allows the law to be updated with society.
explain advnatage of responding to real life situations
Precedent is based on case law and cases deal with real life situations, whereas statutes only deal with theoretical situations. For example, in R v R husband tried to force his wife to have sex without her consent. Society no longer thought this was acceptable, so the court changed law to make marital rape a crime. This responsiveness is good because law can be made and changed in response to real events. This allows the law to develop with the times and be updated with society.
explain advnatage of judical creativity
For example, courts can distinguish if an existing law doesn’t apply to the current facts, and original precedent allows judges to create a law where there is no previous law at all. For instance, judges created a brand new area of law (negligence) in the case of Donoghue v Stevenson when contract law would not solve the problem. OR For instance, Parliament had not given any guidance about marital rape, so judges were able to make this illegal in R v R. This creativity leads to justice, and can save Parliament the time of having to make laws to cover new or minor situations
explain disadvnatage of rigid
This is because precedent is based on principle of ‘stare decisis’ meaning to stand by the decision. Therefore the same decision will always be made by lower courts and higher courts are reluctant to overrule their own precedents even when they can! For instance, in Jones v SoSSS, the court acknowledged that the decision in Re Dowling was wrong, but kept it anyway for the sake of certainty. This rigidity is a problem because bad and outdated law will not be changed quickly enough and so will be repeated in future (resulting in a lack of justice in many cases).
explain disadvanatge of not certain
This is because there are several ways of avoiding precedent if a bad decision will be made. Higher courts can change and overrule the law, and any court can distinguish. For example, Merritt v Merritt distinguished Balfour v Balfour on marital agreements. In a case with a written contract for money between a couple living together, can we really be certain as to the decision now? By having multiple decisions on similar cases, it becomes hard to predict the outcome, which has a negative effect on lawyers, judges and defendants trying to handle cases.
explain disadvnatage of complex
There are nearly ½ a million precedents at the moment and even more get created through distinguishing. Furthermore, it is often hard to tell the difference between obiter and ratio due to judgements being written in lengthy prose, making it hard for judges to actually apply the law. In Re J, the judge could not figure out what the ratio was and so had no idea what decision he was meant to be making. This is bad because it defeats the point of precedent; how can you apply the law if you can’t figure out what the law is meant to be?
explain disadvantage of going against seperation of powers
This is because precedent allows judges to make and change laws, when it should only be Parliament who have this power. For instance, in R v R, judges chose to make marital rape illegal despite Parliament never making a law against this themselves OR Donoghue v Stevenson creating a brand new way for people without contracts to sue, despite Parliament not giving permission for this. This is a problem because judges are not democratically elected, so judges may not reflect Parliament/society’s wishes when making precedent.
