Judicial precedent Flashcards
What does judicial precedent refer to?
- The source of law where law is created by the past decisions of courts
What is judicial precedent also known as?
- Case law
What does stare decisis mean?
- Stand by what has been decided
What does stare decisis ensure?
- That the law is certain and fair
What is the speech made at the end of the case known as?
- The judgement
What does ratio decidendi mean and what does it form?
- Stands for the reason for deciding
- Forms the binding precedent
What is a difficulty of the judgement?
- Usually in a continuous form (with no headings) therefore can be difficult to distinguish the ratio decidendi from the obiter dicta
What does obiter dicta mean and what is it?
- Other things said
- It is the remainder of the judgement
- It is not binding precedent
What do the courts in England and Wales operate?
- A rigid doctrine of precedent which has the effect that;
- every court is bound to follow the decisions made by a court above it in the hierarchy
- appellate courts and bound by past decisions (appeal courts)
What are two exceptions in which lower courts do not have to follow decisions in appellate courts?
- If it conflicts with a judgement in the ECJ
- If the decision violates human rights
What are appellate courts and what are some examples of them?
- Courts which hear appeals
- Court of Justice of the EU
- Supreme court
- Court of appeal
- Divisional court
What is the highest court?
- Court of Justice of the EU
- For European law, a decision made by ECJ is binding in all courts
- However Supreme Court is most senior for laws not affected by European law
What are the two divisions of the Court of Appeal?
- Civil and criminal
What are the 3 courts of divisional courts?
- QBD
- Chancery
- Family
What is meant by “court of first instance”?
- Any court where original trial of case is heard
What do appellate courts hear?
- Appeals not trials
What are inferior courts and what to they have to do?
- Inferior courts are courts such as the Crown, County and Magistrate’s court
- Bound to follow decisions of higher courts
What is the main debate in regards to the SC?
- Whether they should follow its own past decisions
- The ideas on this have changed over years
What was determined by the HL in the case of London Street Tramways v London County Council 1898?
- Certainty in the law was more important than any possible hardship to an individual caused by past decisions
What happened in 1898-1966?
- SC regarded itself as being completely bound by its own past decisions
Why was bounding itself by past decisions unsatisfactory?
- Because law could not alter to meet the changing social conditions, nor could “wrong” decisions be changed by the courts
What was issues in 1966 by the Lord Chancellor?
- A practice statement that announced a change to the law in London Street Tramways
What did this practice statement allow the HL to do?
- Depart from previous decisions “when it appeared right to do so”
What was the first case in which the practice statement was used?
- Conway v Rimmer but first MAJOR case was Herrington v British Railways Board 1972
What is a case in which the HL were reluctant to use the practice statement?
- Jones v Secretary of state for social services 1972
When did the HL become more willing to use the practice statement?
- From the mid 1970s
- E.g. Pepper and Hart 1993
What was the first criminal case to use the practice statement?
- R v Shivpuri 1986
What occurred in october 2009?
- House of lords was replaced by the supreme court
- In case of Austin v London Borough of Southwark 2010, SC confirmed practice statement still applied
What are both divisions in the court of appeal bound by?
- Decisions of the court above it
What are the rules of the courts of appeal in regards to their past decisions?
- Rule 1, decisions by one division do not bind other division
- Rule 2, with each division decisions are normally binding (Young v Bristol Aeroplane Co Ltd 1944)
When can the criminal division refuse to follow their past decisions?
- If law has been misapplied or misunderstood
- If a person’s liberty is at stake (R v Taylor 1950)
What is meant by binding precedent and why is it created?
- Precedent from earlier case which must be followed
- Only created when material of facts of second case are sufficiently similar to original case
What is persuasive precedent?
- Precedent which is not binding but judge may consider and decide to follow it
What was a case in which courts lower in hierarchy used persuasive precedent?
- R v R 1991
- HL followed CA judge when he decided a man can be guilty of raping his wife
How is obiter dicta relevant to persuasive precedent?
- Judges sometimes follow comments made in obiter dicta e.g. R v Howe 1987
What is meant by dissenting judgements?
- Decision has been made by a majority, judges who dissented/disagreed will have explained their reasons
