judicial precedent Flashcards
what is persuasive precedent
a decision which doesn’t have to be followed by later cases , but which a judge may decide to follow
decision of courts in other countries
where the other country uses the same ideas of common law as in our system . australia , canada, new zeeland
what is the hierarchy of the courts that have power to create precedents
EU COURT OF JUSTICE
SUPREME COURT
COURT OF APPEAL
DIVISIONAL COURTS
which are the appelant courts
supreme court
court of appeal
divisional courts
what is the doctrine of precedent
following the decision of previous cases , especially of higher courts.
what is original precedent
a decision on a point of law that has never been decided before
binding precedent
a decision in an earlier case which must be followed in later case
what is persuasive precedent
a decision which does not have to be followed by later cases, but which a judge may decide to follow
what are statements obiter dicta
statements made in a judgement that were not part of the point of law in deciding the case
example of statements obiter dicta
R v Howe 1987 ruled that duress could not be a defence to a charge of murder
what is a dissenting judgement
a judgement given by a judge who disagrees with the reasoning of the majority of judges in the case
how does the hierarchy actually works
every court is bound to follow any decision made by a court above it in the hierarchy
in general, appellate courts are bound by their own past decision
civil cases
supreme court
- court of appeal
- divisional court
- high court
- county court
- magistrate’s court
criminal cases
supreme court
- court of appeal
- queen’s bench division
- crown court
- magistrate’s court
supreme court
its decision bind all other courts in the english legal system
its not bound by its own past decision
court of appeal
civiland criminal division
bound by the supreme court
usually bound by its own decision
courts of first instance
any courts where the original trial of a case is held
what happened in 1966
the lord chancellor issued a Practice Statement
use of the practice statement
conway v rimmer(1968)
herrington v British railway board (1972)
jones v secretary of state for social service (1972)
knuller ltd v dpp
miliangos v george frank
pepper v hart
what is the practice statement
It allows the House of Lords to depart from a previous decision where it appears right to do so
What were the first case to be overruled and what was the earlier case Ex:1
1) British Railway Board v Harrington(1972) overruled Addie v Dumbreck(1929)
2) R V Shivpuri(1986) overruled Anderton v Ryan (1985)
3) R v G(2003) overruled MPC V Caldwell(1982)
4) Austin v London Brough of Southwalk(2010) overruled Brent London Council v Knightley (1997)
By who is bound the court of appeal
The Court of Appeal is bound by judgments from the ECJ, the House of Lords and Supreme Court
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