Judicial Precedent Flashcards
A judgement is only binding when the …. Is similar
Facts
A judgement is only binding when the …. Is the same
Legal principle
A decision is only binding on courts if the court is
Of the right standing in the hierarchy, courts do not need to follow the ratio of lower courts
Precedents which have been overruled by these are not biding
Overruled by a higher court, and act of parliament
Precedents which can be are not binding
Distinguished
If the law was made wrong it is not binding
Per incuriam as seen in morelle v wakeling
Give an example of a famous binding decision
R v Howe - duress is not a defence to murder
A judge makes a speech deciding the case which is recorded what is the know as
The judgement
What must the judge do in his judgement
Explain the law and give a reason for his judgement
There are two parts of the judgement what are they
Ratio decindendi
Orbiter dicter
What is the ratio
The reason for the decision and the facts of the case
Is the ratio binding
Yes
Can there be more than one ratio
Yes in courts there can be more than one judge e.g. C of A 3 judges leading to multiple ratios
When can a single judge give more than one reason for their decision
If the case involves a number of points of law
What is the second part of the judgement.
Orbiter
What is the obiter
The other things said
What does the obiter indicate
What should happen if the facts of the case Are different
Is the obiter binding
No
An example of obiter
R v Howe : duress is not a defence to attempted murder
Which case followed the obiter of r v Howe
R v gotts
Which courts have particularly persuasive obiter
Supreme and privy council
What is the privy council
Deals with appeals from commonwealth countries
Is the privy council binding
No because not part of the English legal system but it is persuasive
Which case was persuaded by the privy council and went against a HL judgement
C or A criminal followed r v Holley in Karimi v James
What is persuasive precedent
A precedent a judge can consider but can then chose he correct principle
Foreign courts may be persuasive especially in the common wealth give example
Re A followed foreign ruling
Dissenting judgements from appellate courts can be persuasive give case
Chandler v Christmas
The divisons of the court of appeal are an example of being persuasive on each other give a case
R v Ireland and r v Barstow
What is original precedent
Involves acing of law that has never been decide before
When decided it is original and binding precedent give a case
Re S : refusal of medical treatment
Original precedent form the basis of the development of new legal principles give a case
Donoghue v Stevenson (snail) where the principles where followed in grant v Australian knitting mills where the duty of care was expanded in grant
