Judicial Precedent Flashcards
What is the Doctrine of precedent?
The system of Judicial Precedent works. This involves common law which is formed from decisions made in cases that have been heard in court
What is the order of criminal courts? (most power to least)
Supreme Court
Court of Appeal (criminal division)
Crown Court
Magistrates’ Court
What is the order of civil courts? (most power to least)
Supreme Court
Court of Appeal (civil division)
High Court (has the QBD, family court and chancery court)
County Court
What courts does the Supreme court bind?
In the criminal division, it binds the Court of Appeal, the crown court and the magistrates’ court.
In the civil division, it binds the Court of Appeal, the High Court, and County Court
Since Lord Gardiner’s practice statement in 1966, the Supreme court does not bind itself
What courts does the Court of Appeal bind?
In the criminal division, it binds the crown court and magistrates’ court
In the civil division, it binds the high courts and county court
It does not bind the Supreme Courts as it is inferior to it.
It binds itself with the exceptions set out in Young v Bristol Aeroplane 1944
What courts does the High Courts bind?
It only binds the county courts and itself. The Queen’s Bench Division has very small influence over inferior courts in the criminal division
Why do the Crown Courts, Magistrates’ Court and County Court not bind any court?
These courts are classed as ‘inferior courts’. They do not create precedent as they do not have the power to. They do not bind themselves as they only apply precedent.
What is the practice statement of 1966?
The practice statement allows the Supreme Courts (previously known as the House of Lords) to change/move past their previous decision “when it appears right to do so”
What cases were overruled using the practice statement of 1966?
British Railway Board v Herrington (1972) overruled Addie v Dumbreck (1929) - occupiers of land now owe a duty of care to trespasser
Pepper v Hart (1993) overruled Davis v Johnson (1979) - judges can now use Hansard when interpreting acts
R v Howe (1987) overruled DPP v Lynch (1973) - the defence of duress is no longer available for murder
R v Shivpuri (1986) overruled Anderton v Ryan (1985) - it is now a crime to attempt to commit an impossible
Before the practice statement, why couldn’t the Supreme Court move away from their own past decisions?
The case of London Street Tramways v London County Council (1898) decided that the House of Lords should be bound by their own decisions. If they wanted to change the law, parliament had to pass a new act. This was seen in Smith v DPP (1961) which resulted in the passing of the Criminal Justice Act (1967)
What are the 3 expectations set out in Young v Bristol Aeroplane 1944
- Where there are two previous COA decisions that conflict, the COA can chooses which to follow and which to reject
- Where there is a conflicting HOL and COA decision, the COA must abandon their own past decision
- If a previous decision was made per incuriam, the COA can refuse to follow
The criminal division has more flexibility than the civil division as a person’s liberty is at stake
What are the different types of precedent?
Original Precedent - when there is an area of law that has no precedent, original precedent is created
Persuasive Precedent - precedent that is not binding but can be persuasive and help a judge form their decision
Stare decisis - precedent that is binding so must be followed by a judge
When questioning precedent, what options does a judge have?
Follow - if the current case has similar material facts to a previous decision, a judge should follow it
Overrule - a superior court can overrule a decision made by an inferior court. The Supreme Court can overrule its own past decisions
Reverse - if a person appeals a decision, a higher court can change flip it to the opposition. If it is appealed again, The court can flip it again back to the original decision
Distinguish - if a case has significantly different material facts from a similar previous case, the judge can distinguish between the two
Name and outline the case that was reversed
Gillick v West Norfolk AHA:
Mrs Gillick sought a declaration for it to be unlawful for a doctor to prescribe contraceptives to children under 16 without the knowledge and consent of the parents or carers. The first court that dealt with this case rule in favour of West Norfolk AHA. Gillick appealed this to the COA. The COA then flipped the decision so that it was now in favour of Gillick. West Norfolk AHA appealed this to the HOL who then reversed the decision back to being in favour of West Norfolk AHA
Name and outline cases that were distinguished
R v Wilson was distinguished from R v Brown and others. In R v Brown and others, the defendants were charged with and found guilty of GBH as they inflicted injuries upon each other. In this case it was said that consent was only allowed for body piercing, tattoos and violent sports. In R v Wilson the defendant branded his wife on the buttocks using a knife. The defendant was found not guilty as branding was considered to be tattooing.
Merritt v Merritt was distinguished from Balfour v Balfour. In Balfour v Balfour, the wife was unable to sue her husband for breach of contract as they were married. In Merritt v Merritt, the parties had separated and so suing for breach of contract was allowed.
