judicial precedent flashcards
what is judicial precedent?
case law/judge made law
what is judicial precedent based on?
the principle of stare decisis
what is stare decisis?
to stand by what has been decided/let similar cases be decided in a similar way
what is a precedent?
precedents are decisions made on a point of law by senior courts that must be followed by lower courts
what is the order of hierarchy in civil?
-supreme court
-court of appeal
-divisional court (chancery and family)
-high court
-county court
what is the order of hierarchy in criminal?
-supreme court
-court of appeal
-divisional court (kings bench)
-crown court
-mags court
what are law reports?
decisions made by judges at the end of a case
what are 3 ways that the judgement is split?
-ratio decidendi
-obiter dicta
-verdict
what does ratio decidendi mean?
reason for deciding
what does obiter dicta mean?
other things said
what kind of precedent is ratio decidendi? what is the case for this?
-binding precedent
-R v Howe
what kind of precedent is obiter dicta? what is the case for this?
-persuasive precedent
-R v Gotts
what are the 3 types of precedent?
-binding precedent
-persuasive precedent
-original precedent
what is an original precedent? what is the case example?
-judges decision on a brand new point of law
-donoghue v stevenson (created negligence)
what is a binding precedent? what is the case for this?
-the ratio decidendi of a case must be followed in the next case in a lower court
-Grant v Australian Knitting Mills
what is a persuasive precedent? what is the case for this?
-a decision from court that lower courts do not have to follow but can if they want
-R v R
what is the source of persuasive precedent?
ratio decidendi of lower courts
what are the sources of persuasive precedents?
-ratio decidendi of lower courts
-privy council decisions
-obiter dicta
-dissenting judgements
-decisions in other countries
what does London street tramways v london county council say?
that the house of lords (supreme court) is bound by its own decisions, to ensure certainty in law
what does the practice statement 1966 say?
that the supreme court can overrule past decisions ‘when is appears right to do so’
what does Jones v Sec. of state for social services say
certainty is the most important feature of a precedent
which cases were the first major use of the practice statement in a civil case?
Herrington v Brb overruled Addie v Dumbreck
what did Addie v Dumbreck set out?
that the court realised it needed to update the law
what cases were the first major use of the practice statement in a criminal case?
R v Shivpuri overruled Anderton v Ryan
what did Anderton v Ryan set out?
the court realised it needed to correct the law
who are the civil and criminal courts bound by?
they are not bound by each other, however they are bound by themselves
what are the 3 exceptions of the courts being bound by themselves? what is the case for this?
-Young v Bristol Aeroplane Co
-1 two conflicting court of appeal precedents
-2 later conflicting supreme court precedent
-3 precedent made per incuriam
what is the one additional rule for exceptions of the courts being bound by themselves but only in the criminal court?
-R v Taylor
-if the law has been ‘misapplied or misunderstood’
what are the 3 ways of avoiding precedent?
-overruling
-distinguishing
-reversing
what is overruling? what is the case for it?
-when a higher court decides that a precedent of an earlier case in a lower court on the same point of law is wrong or outdated
-r v shivpuri
what is distinguishing? what is the case for it?
-when the court decides that the facts from an earlier case are so different that they are not bound by it
-balfour v balfour distinguishes merritt v merritt
what is reversing? what is the case for it?
-a point. of law from a lower court goes to a higher court and the court decides to change it bc they think it is wrong
-r v hasan
