Judicial Precedent Flashcards
What is judicial precedent
Where courts make decisions dues to past judge made decision
2 Reasons why we need precedent
- Time saving
- Judges are legal experts
What is the principle of Stare decisis
Stand by what has been decided
Ratio decidendi (reasons for deciding) - Binding
Obiter dicta (other things said) - Persuasive
What’s an example of where Obiter became ratio
R v Howe (obiter) - cannot use duress for attempted murder either - obiter
R v Gotts followed above becoming ratio
What is the courts hierarchy
Supreme Court > Court of Appeal > High court > Crown/County > Mags/Tribunals
What are the three types of precedent
Binding - higher courts bind lower courts
Persuasive - judge does not have to follow but may
Original - point of law has not been decided on before
Where is persuasive precedent used
- Lower hierarch courts (R v R)
- Emergency situations (Re A (Conjoined twins))
- Statements made obiter
What are avoidance techniques (3)
Ways courts can ignore precedent
- Overrule, higher courts overrule lower courts
- Reverse (on appeal, Donoghue v Stevenson)
- Distinguish (lower court points at material differences)
When was the practise statement introduced, and what did it mean
1966 - Lord Chancellor issued PS
Beforehand, courts were bound to own precious decisions (as held in London Tramways v LCC)
When were courts pre PS allowed to depart from decisions
When law was made ‘per incuriam” (in error)
What did the practise statement allow courts to do
- Supreme Court to depart from previous decision “where it appears right to do so”
Why was the Practise statement issued
- Law Lords recognised too rigid application of precedent could lead to injustice in particular cases
What are 3 important points of the practise statement
- should be used reluctantly
- only to be used my sc
- main role of judge is to apply law not make it
What was the first ever use of the PS in civil cases
Conway v Rimmer
What was the major use of the PS in civil courts
Herrington v BRB
What’s the most famous use of PS in Civil courts
Pepper v Hart
What was the first ever use of the practise statement in criminal cases
R v Shivpuri
What case and Lord gave directions to use ps
C v DPP
- Lord Lowry
Where do the 4 exceptions come from
Young v Bristol Aeroplane Co
What do the 4 exemptions from Young v Bristol allow the CoA to do
Allow CoA to not be bound by previous decisions in the circumstances
What are the 4 exceptions for the CoA from Young v Bristol
Civil courts
1) Two conflicting previous decisions
2) Previous decision overruled by SC
3) Previous decision was ‘per incuriam’ (wrongly decisions)
Criminal Divisions
4) Previous case law was misapplied resulting in a conviction
