Judicial Precedent Flashcards
What Latin saying is this source of law based on
‘Stare decisis’- stand by decisions of past cases
law reports
Law reports: needed to publicise judgement and to ensure that there is an accurate and authorised record of the reasons for the decisions (must be authorised by the judge in the case)
Three examples of law reports
The weekly law reports
The all England law reports
LexisNexis
ratio and obiter- mmehtod of what?
A method of identifying the parts of a judgment which bind a future judge from the other parts which need not be followed
ratio
Ratio decidendi
- in a judgement, the judge will explain the principles of law he used to decide why a particular party won
- principles are known as ratio decidendi (reason for deciding)
- ratio creates binding precedent for judges to follow in later similar cases
Give an example of a ratio in a binding principle
HOWE (1987): that duress cannot be a defence to murder as you should not be able to choose to kill an innocent person to save your own life
obiter
Obiter dicta:
- all other points of law that are not ratio are called orbiter dicta
- not essential to outcome of the particular case and are often discussions in hypothetical situations
- no obiter forms part of the case law, it’s not binding
- judges in later similar cases may be persuaded to follow it in reaching a decision
Name an example of obiter dicta
The comment in HOWE (1987): a murder case, that duress could not be a defence to the crime of attempted murder
court hierachy
Court hierarchy:
- so that judge knows who they should follow
- Every court bound to follow a relevant decision made by a court above it in hierarchy
- appellate courts bound by their own past decisions
Criminal court hierarchy
Magistrates> crown> high> court of appeal (criminal division)> Supreme Court
Civil court hierarchy
Tribunals> county> high> court of appeal (civil division)> Supreme Court
Name of the most senior national court
Supreme Court
Who must follow the supreme courts decisions
All other courts in the English legal system
Is the Supreme Court bound to follow its own past decisions
Usually yes
When does SC hear appeals
In both civil and criminal cases when a legal principle of general public importance is involved
What are the two divisions in the court of appeal
Civil and criminal
Which court are both divisions of the court of appeal bound by
The Supreme Court- only persuasive in relation to each other
Is the court of appeal bound to follow its own past decisions
Yes
Who’s decisions are the high court bound by
All the courts above it in the hierarchy
Who does the high court bind
It minds the lower courts
Do high courts have to follow each others decisions
No but they usually do
Who’s decisions must the crown, county and magistrates court follow
By all higher courts. Don’t usually create precedents themselves
What is a persuasive precedent
One which the court will consider and may be persuaded by, does not have to be followed
Name one source that persuasive precedent comes from
Courts lower in the hierarchy hearing the appeal
Eg. R V R where House of Lords persuaded to follow same reasoning as court of appeal in deciding that a man could be guilty of raping his wife
Name another source that persuasive precedent comes from (not hierarchy)
Statements made from obiter dicta
Eg. R V Howe duress couldn’t be a defence to the crime of attempted murder. Persuasive precedent followed in later case of R v Gotts
What does following a precedent involve
Applying the same legal principle from an earlier case to a present case because the material facts are the same and the precedent was set by higher/same court
Two reasons why courts would want to avoid binding precedent
Case law can be developed and injustice in an individual case avoided
overruling
Overruling
Where a precedent set by a lower court is said by a higher court hearing a separate case to have been wrong
Earlier case ceases to be a precedent for any point of law
Some appellate courts can overrule their own precedents
Which statement states that the Supreme Court can overrule its own precedents
Practice statement 1966 ‘when it appears right to do so’
Examples of when the Supreme Court overruled its own precedents
Herrington v British railways board
R v shivpuri
Herrington V British railways board
Boy aged 6 trespassed on railway line and was severely injured
Able to get on railway because railway board hasn’t maintained fence properly
Earlier case of Addie v dumbeck: decided there was no duty of care to maintain fencing where trespasser was a child
Herrington: House of Lords used practice statement to overrule 1929 precedent because of changed attitude of society towards child trespassers
Railway board owed duty of care to child tresspassers and was liable
R v shivpuri
Defendant arrested by customs officers and confessed to having heroin in his luggage
Heroin was in fact ground cabbage
Earlier case of Anderson V Ryan it had been help that you couldn’t be guilty of attempting something that was impossible on the acts
Court in shivpuri held that Anderson had been wrongly decided and overruled it to correct mistake
What case meant that h/l held that the court of appeal must follow its own past decisions unless it could overrule itself
Davis V Johnson
In what case are the 3 exceptions stated where Court of appeal can overrule itself
Young V Bristol Aeroplane
What are the exceptions that mean the court of appeal can overrule itself
- may choose between two conflicting precedents of its own. Once it has chosen it can’t go back on choice
- where there is a decision of the Supreme Court which by implication overruled a court of appeal decision, court of appeal must follow Supreme Court
- not bound made by its own precedents made per incuriam
What does per incuriam mean
In error
When does distinguishing occur
When a court of any level finds a difference in the material facts between the case it is hearing and a precedent
What may the court do in response to distinugising
Refuse to follow the precedent
What does distinguishing allow
Precedent to remain flexible and allow case law to develop
Cases where distinguishing occurred:
Balfour V Balfour
Merritt V Merritt
Balfour v Balfour
- Mr B agreed to pay living expenses to his wife while she was ill in this country and he was forced to work abroad
- they separated and he stopped payments
- decided that a claim by the wife for breach of contract shouldn’t succeed because there was no intention to create legally binding promises and thus no contract
Merritt V Merritt
- also involved wife suing husband for breach of contract
- successful this time because court heard that material facts of the two cases were different
- agreement to pay maintenance made after couple had separated
- agreement made in writing unlike Balfour
- agreement in Merritt was a contract because there was an intention to create legally binding promises
What is disapproving
Where a judge states in his/her judgement that he/she believed that the decision in an earlier case is wrong but it is not directly relevant to the case they’re deciding
Is ratio binding or persuasive
Binding
Is obiter binding or persuasive
Persuasive
Where are cases recorded
Law reports
Who are cases recorded by
Specialist lawyers
Three pieces of information that are found in a written judgement
- facts
- decision
- reason for decision
U.K. Supreme Court is usually bound by
It’s own past decisions
When can the criminal division refuse to follow a precedent of its own
If the judges in the earlier case have misapplied/misunderstood the law and life/liberty is at stake
Which case did the criminal division refuse to follow a precedent of its own in
R V Taylor
Why does this extra exception exist
People’s freedom is involved in criminal cases so more flexibility to develop the law is needed to avoid injustice
Advantages of judicial precedent: creates certainty in the law which allows lawyers to…
Advise clients on the probably outcome of a case; citizens know what the law is; and businesses can operate knowing that financial arrangements are recognised by law
Disadvantages of judicial precedent: Counter argument to “creates certainty in the law…”
- can be considered too rigid because bad decisions are difficult to change and the law is slow to develop
- court hierarchy means bad decisions cannot be changed unless they’re made by a higher court-overrule
- whether a case gets to higher court may be a lottery based on lawyers advice and availability of funding
A case that demonstrates that precedent is too rigid
It was not until 1991 that case of R v R overruled the precedent that stated a man who forced his wife to have sex cannot be convicted of rape
Advantages of judicial precedent: degree of flexibility to correct bad decisions. Supreme Court can use the…
*practice statement to overrule bad decisions
Advantages of judicial precedent: cases that demonstrate degree of flexibility
- shivpuri when Anderton overruled
* addie v dumbreck overruled in Herrington v brb to allow law to develop with social change
Advantages of judicial precedent: degree of flexibility
What case contains the rules that the court of appeal has to follow to overrule its own decisions?
Young V Bristol aeroplane
Disadvantages of judicial precedent: case law is retrospective so overruling a case can make…
*someone liable for something that wasn’t a crime when they did it
Disadvantages of judicial precedent: case law is retrospective so overruling a case can make…
A case that this happened in:
R v R: husband made liable for attempted rape of his wife
At the time he had sex without her consent the case law stated clearly that this was not a crime
Advantages of judicial precedent: ability to distinguish cases
As happened in…
Merritt V Merritt: also gives judges flexibility to avoid inappropriate case
Disadvantages of judicial precedent: distinguishing has been criticised because…
Judges may suggest trivial/illogical distinctions just to avoid precedents they don’t like
Disadvantages of judicial precedent: Judges may suggest trivial/illogical distinctions just to avoid precedents they don’t like, this can make law…
Very complex
Advantages of judicial precedent: decisions are based of real cases which means…
There are already examples of how the law should be applied in many situations.
Advantages of judicial precedent: There are already examples of how the law should be applied in many situations. As a result…
Fewer cases will need to go to court for a decision
Disadvantages of judicial precedent: large number of reported cases which can make it difficult to…
Find the relevant law, even with computerised databases
Disadvantages of judicial precedent: there is also the problem of finding the ratio decedendi which forms the binding precedent because…
Each judge in a case give their own judgement and they may disagree on the reason for decision
Disadvantages of judicial precedent: there is also the problem of finding the ratio decedendi which forms the binding precedent because…
What case did this happen in
Dodds case: court of appeal said they were unable to find ratio of a House of Lords decision
