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Criminal Law - Paper 1 > Judicial Precedent > Flashcards

Judicial Precedent Flashcards

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1
Q

What is judicial precedent?

A

Where the past decisions of judges create law for future judges to follow in similar cases

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2
Q

What does stare decisis mean?

A

Stand by the decisions of past cases

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3
Q

What is a binding precedent?

A

Law from an earlier case which must be followed even if the judge in the current case does not agree with the law

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4
Q

When is a binding precedent created?

A

When facts of the second case are sufficiently similar to the precedent and the decision was made by a court senior to the court hearing the current case

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5
Q

Why is law reporting needed?

A

To publicise a judgement and to ensure that there is an accurate and authorised record of the reasons for decisions so that future judges and lawyers can look back on previous cases

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6
Q

Who are law reports written by?

A

Specialist lawyers

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7
Q

What are two examples of law reports?

A
  • All England Law Reports

* LexisNexis

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8
Q

What does ratio decidendi mean?

A

Reasons for deciding

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9
Q

What does ratio decidendi create?

A

A binding precedent for judges to follow in later similar cases

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10
Q

What is the case example of ratio decidendi creating a binding precedent?

A

R V Howe

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11
Q

What is the binding precedent in R V Howe?

A

Duress can’t be a defence to the crime of murder

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12
Q

What does obiter dicta mean?

A

Other things said

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13
Q

What does obiter dicta do?

A

It isn’t binding but may be persuasive as they are often discussions about hypothetical situations

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14
Q

What is the obiter dicta in R V Howe?

A

Duress can’t be a defence to the crime of attempted murder

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15
Q

What is the order of the court hierarchy?

A
  • Supreme Court
  • Court of Appeal
  • High Court
  • Crown Court / County Court
  • Magistrates Court / Tribunals
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16
Q

What does the court hierarchy make sure of?

A

That every court is bound to follow a relevant decision made by a court above it in the hierarchy and appellate courts are bound by their own past decisions

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17
Q

What is a persuasive precedent?

A

A precedent which the court will consider and may be persuaded by but they don’t have to follow

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18
Q

What is the case examples for when a court lower in the hierarchy set a persuasive precedent for a higher court?

A

R V R

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19
Q

What was the persuasive precedent in R V R?

A

The House of Lords were persuaded by the Court of Appeal in deciding that a man could be guilty of raping his wife

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20
Q

What is the case example for when obiter dicta set a persuasive precedent?

A

R V Howe

21
Q

What was the persuasive precedent in R V Howe?

A

Duress couldn’t be a defence for attempted murder

22
Q

Which case followed the persuasive precedent set in R V Howe?

A

R V Gotts

23
Q

What is a dissenting judgement?

A

When a judge who disagreed will have explained his reasons and it sets a persuasive precedent

24
Q

What is an original precedent?

A

If the point of law has never been decided before, then whatever the court decides will form an original precedent

25
Q

What is the case example of an original precedent?

A

Donoghue V Stevenson

26
Q

What is the reason for courts avoiding a binding precedent?

A

So that case law can be developed and injustice is avoided

27
Q

What is overruling?

A

Where a precedent set by a lower court is said by a higher court hearing a separate case to be wrong

28
Q

What can the Supreme Court do?

A

Overrule any decision

29
Q

What does the Practice Statement 1966 allow?

A

The Supreme Court can overrule it’s own precedents when it appears right to do so

30
Q

What is the case example of when the Supreme Court used the Practice Statement 1966?

A

Herrington V British Railways Board

31
Q

What happened in Herrington V British Railways Board?

A

A boy trespassed on a railway line and was severely injured. He had been able to get on the line due to fencing not being maintained properly

32
Q

Which case did the Supreme Court overrule in Herrington V British Railways Board?

A

Addie V Dumbreck

33
Q

What happened in Addie V Dumbreck?

A

A child was killed by machinery and it was decided that there was no duty to maintain fencing when the trespasser was a child

34
Q

Why did the Supreme Court overrule Addie V Dumbreck when dealing with Herrington V British Railways Board?

A

Because of changed attitudes of society towards child trespassers

35
Q

In which case was it decided that the Court of Appeal must follow their own past decisions?

A

Davis V Johnson

36
Q

Which case provides the three exceptions for when the Court of Appeal can overrule their past decisions?

A

Young’s Case

37
Q

What is the first exception for when the Court of Appeal can overrule their own past decisions?

A

When they have to choose between two conflicting precedents of its own

38
Q

What is the second exception when the Court of Appeal can overrule one of its past decisions?

A

Where there is a decision in the Supreme Court which by implication overrules a Court of Appeal decision, the Court of Appeal must follow the Supreme Court

39
Q

What is the third exception of when the Court of Appeal is not bound by their own past decisions?

A

When the precedents were made per incuriam

40
Q

What does per incuriam mean?

A

In error

41
Q

What does the case R V Taylor say?

A

The Court of Appeal Criminal Division can refuse to follow their previous precedent if the judge in the earlier case misapplied or misunderstood the law

42
Q

Why does the extra exception in R V Taylor series?

A

Because in criminal cases people’s freedom is involved and more flexibility is needed to develop the law and avoid injustice

43
Q

When does distinguishing occur?

A

When a court of any level finds a difference in the material facts between the case it is hearing and a precedent so the court may refuse to follow the precedent

44
Q

What are the case examples of when distinguishing occurred?

A

Balfour V Balfour and Merritt V Merritt

45
Q

What happened in Balfour V Balfour?

A

The husband agreed to pay living expenses to his wife while she was ill, they separated and he stopped the payments. There was no legally binding agreement.

46
Q

What happened in Merritt V Merritt?

A

Agreement to pay maintenance was made after they’d separated and was made in writing which distinguished the case from Balfour V Balfour because there was a legally binding agreement

47
Q

What are the advantages of precedent?

A
  • creates certainty
  • allows lawyers to advise clients on the probable outcome of the case
  • judges remain impartial and base their decisions on legal rules
  • some flexibility to correct bad decisions
  • decisions based on real cases
  • time saving
  • provides detailed rules for later similar cases
48
Q

What are the disadvantages of precedent?

A
  • too rigid
  • bad decisions are difficult to change and makes the law slow to develop
  • changes can’t be made unless a case comes to court (marital rape was legal until R V R in 1991)
  • undemocratic
  • retrospective
  • judges can make trivial or illogical distinctions to avoid precedents they don’t like
  • complex
  • large number of cases reported
  • difficult to separate ratio decidendi from obiter dicta in long law reports

Criminal Law - Paper 1 (12 decks)

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