Judicial Precedent - Finished Flashcards
What is meant by Judicial Precedent
A priinciple that means a court must follow and apply the law as set out in the decisions of higher courts in previous cases.
What is the basic rule of Judicial Precedent
A court must follow the precedents from a higher court and all courts lower than it bind
Why is judicial precedemt used
Ensuring cases which are alike are treated in the same way, therefore maintaining justice in the system
What is the hierarchy of courts
List all the courts in order
European Court of Justice
Supreme Court
Court of Appeal
Divisional Courts
High Court, Crown Court etc.
If the Court of Appeal was to create a precedent, does the Supreme court have to follow it
No
- Supreme court is higher in hierarchy so doesn’t need to follow lower courts
After the ________________, no courts below it can make precedents
Court of Appeal
What is the role of any other courts below the Division Courts following Judicial Precent
Both Criminal and Civil courts do not have any power to create precedents
What are the 3 elements of JP
Ratio Decidendi
Stare Decisis
Obiter Dicta
Define Stare Decisis
Standing by previous decisions
Recent law to be applied to current cases
What is the Doctrine of JP based on
Stare Decisis
What is meant by Ratio Decidendi
The ratio decidendi is the reason for a court’s decision of the case and is part of the judgement delivered at the end of a case.
What is meant by Obiter Dicta
Things stated in course of a judgement which are not necessary for the decision
Known as the judge’s ‘notes’
What are the 2 exceptions to using a precedent in court
Whenever an English court must follow a decision made by the European Court of Justice
When cases of Human Rights are involved
Why is the European Court of Justice no longer binding to the UK Courts
Due to the UK leaving the EU, the precedents are no longer binding
Who issued the Practice Statement
Lord Gardiner
What is the Practice Statement
Practice Statement allows a court to depart from a previous decision where it appears right to do so
What was the first case to used the practice statement
R v Shivpuri
What are the 3 types of Precedents
Binding Precedent
Persuasive Precedent
Original Precedent
Explain what is meant by a Binding Precedent
A rule that must be applied when the current case is similar to previous precedent and the previous decision was made in a higher court.
Explain what is meant by a Persuasive Precedent
A decision that does not need to be followed by the previous precedent but can influence the case
What court is an exemption to others that can make persuasive precedents
Privy council
Explain what is meant by an Original Precedent
Where a case’s decision is a first of a kind, the judges decision will set a new precedent for future cases to follow
Give an example of an Orginial Precedent
Donoghue and Stevenson case created the precedent on negligence. Therefore by setting this new ‘original precedent’
What are the 3 methods of dealing with JP’s
- Give a simple definition of each
Overruling - When a higher court overrules a decision from a lower court because it is wrong
Reversing - When the legal reasoning is wrong in a previous case so higher court overturns/changes the ruling
Distinguishing - When a judge makes a distinction between the case and the precedent
Advantages of JP
Consistency
Easier to make decisions
Time Saving
2 Disadvantages of JP
Inflexible
Complex at times
12 Marker on JP
- What to write in order
Define JP
Elements of JP
Hierarchy of Courts
Types of JP
Practice Statement
Adv&Disadv
Briefly explain what Judicial Precedent is (12 Marker)
Judicial Precedent is known as the decision that is meant to be followed. It follows the latin principle Stare decisis. Which defines as to stand by a decision. JP is broken down into 3 elements : Stare decisis, Ratio Decidendi and Obiter Dicta. Stare Decisis portraits the idea of the court standing by / following a previous case (precedent). Ratio decidendi is the legal reason as to why the decision was made. And then obiter dicta is the judgement made by the judge for the findings of the case. It is not a decision and is more seen as an acuity which is why it is described as the Judge’s notes.
For a court to make a precedent to be relayed to other courts, it is dependant on the ‘power’ of the courts. This is why a Hierarchy of the Courts was introduced. The hierarchy highlights which court has power over others, and which courts bind to others. Orginally, speaking in perspective of a UK Citizen, the European Court of Justice was seen as the highest power court. However after political maintenance, the UK had left the EU which meant that currently it is not the highest ranked court for the UK. Now, it is the Supreme Court. The Supreme Court is the most powerful court and it binds no other court and any precedent that is made must be followed by all court below. The supreme court does have an alternative path in JP. They can use the Practice Statement. The practice statement was created by Lord gardinor and provided judges an alternative choice when it was shown right to do so. The courts below rank as the Court of Appeal, Divisional Courts etc. All courts below the Division Courts do not have the power to create precedents. However the privy council has power to create persuasive precedents but not binding. If there is any point where a higher court may believe a lower court’s decision was right, they can choose to follow the lower court. This was shown in the R v R case in the Court of Appeal where the defendant was accused of rape. The house of lords(now supreme court) agreed with the court of appeal’s decision.
There are 3 main types of precedent. The 1’st type of precedent is persuasive. A persuasive precedent can by made by any court above and including Divisional Courts,and also including the privvy council. A persuasive precedent is not a decision and does not need to be followed but can influence the case. It does not need to be used which means it is not binding. A binding precedent is a previous decision that must be followed when the 2 cases are similar and the decision was made in a higher court. Finally, an original precedent is a first of it’s kind, where the decision made creates a precedent itself for future cases of similar nature. For example, Donoghue v Stevenson was a first of its kind and created a precedent for Negligence.
Precedents are made by past cases so it would imply that it can make a case much easier to solve and also would mean that it is time efficient because there is no need for extensive research when it can easily be referenced. However on another note, it can be complex because there can be alternates to a case which may alter its direction and the cases may not be similar enough to use the precedent. Along with complex, it can become rigidity (not able to change).
