Judicial Precedent P1 Flashcards
What is judicial precedent
The decision making process which is referred to as the binding doctrine of precedents
(Where past decisions of judges create law for future judges to follow)
What were the facts and out come if Donoghue V Stevenson (1932)
2 friends visited a cafe one drank ginger beer, once finished a decomposed snail fell out. Woman fell I’ll and sues manufacturer
Successful sue
What case was used in Daniels V White (1938) even though the cases were slightly different
Donoghue v Stevenson (1932)
How many different types of precedent are there
3
What is the first type of precedent and what does it mean
Original precedent
Court is faced with a decision that has never been faced before
What is the second type of precedent and what does it mean
A binding precedent
Decision from other cases that must be followed
What is the last kind of precedent and what does it mean
A persuasive precedent
Case which is helpful to the courts but does not have to be followed
What court does a persuasive precedent happen
Courts of appeal
Is a ratio decidendi binding
Yes
Is an obiter dicta binding
No
If majority of judges hearing a case disagree with the decision…
It forms a persuasive precedent
What is the highest court in England
Supreme court
What kind of precedent does the Supreme Court set
Binding precedents - all other English courts are bound by it
Which case showed that the Supreme Court would always follow its own past decisions
London street tramways Co Ltd V London County Council (1898)
If cases were different in decisions what would it do
Make it difficult for people to know what the law is
What is the 1966 Practice Direction
It gives the HoL the right to ‘depart from previous decision when it appears right to do so’
Which case is an example of the courts using 1966 Practice Direction
R V R (marital rape)
Overturned the legal principle as societies views had changed
On the case of Addie V Dumbreck (1929) was the Practice Direction used or not
Practice Direction not used
In the case of Herrington V British RailwaysBoard (1972) what changed between this case and Addie V Dumbreck (1929)
Practice Direction used
HOL held that ‘a common duty of humanity was owed when their presence was known when trespassing’
In the case of Lynch V DPP for Northern Ireland (1975) was Practice Direction used or not and what plea was used
Practise Direction not used
Plea the defence of duress was allowed by the courts
Which case with similar facts to Lynch V DPP was not allowed the defence of duress and the Practice Direction was used
R V Howe (1987)
What court is below the Supreme Court
The courts of appeal
Are the civil and criminal courts split or not in the courts of appeal and who are they bound by
Split
Bound by the Supreme Court
Which case said that the courts of appeal - civil division is usually bound by own decision
Young V Bristol Aeroplane Co Ltd (1944)
How many exception are there to Youngs statement of the civil division in the court of appeal usually being bound by its own decision
3 exceptions
What is the first exception to the Young V Bristol Aeroplane CoLtd (1944)
The courts decisions conflict with a later Supreme Court decision the court of appeal must ignore there’s and go with the supreme
What is the second exception to Young
Where two previous decisions of the court of appeal conflict them must go with the one of best fit
What is the last exception to Young
When the previous decision was made pre incurium (in error) the court can avoid it
Which case showed the criminal division is more flexible and does not follow previous decisions where doing so would cause an injustice
R V Gould (1968)
What court is under the courts of appeal
High court
What two courts is the high court split into and what courts are they bound by
Divisional court
Ordinary high court
Both bound by court of appeal
Which court binds which in the high court
The divisional binds ordinary high court
Which court is not bound by its own previous decisions in the high court
Ordinary high court
What court is below the high court
Crown court
What courts are the crown court bound by and does it form binding precedents
All court above and it does not form binding precedent
What are the lowest courts
Magistrates and county courts
What is obiter dicta
Other things said
What is a ratio decidendi
Legal reasons for deciding
Is an obiter dicta binding
No
What are the three essential things for judicial precedent
Clearly defined court hierarchy
A legal reason for the case decision
Reliable law reports
Who brought in law reports and when
1865 incorporate council of law Reporting
Why is it important to have accurate and reliable law reports
It allows cases to be used as precedent in later cases
Contains accurate and clear reasons for deciding
Everyone can access them
Summarised versions
If not then the law and decision would be unclear
What are the 3 ways to avoid judicial precedent
1966 Practice Direction
Distinguishing
Overruling
What is distinguishing
When the material facts of the case he is deciding are sufficiently different for him to draw a distinction between the present and previous case therefore it is not bound by the previous decision
What case said that the agreement between the husband and wife was purely social and domestic agreement. Presume parties did not intent to be legally bound
Balfour V Balfour (1919)
Which case distinguished Balfour V Balfour on the grounds that they were separate and in this case they had a written agreement
Merrit V Merrit (1971)
What was the ratio of R V Brown (and others) (1993)
Defence of consent cannot be relied on in offences under S47 OAPA and S20 1861 where injuries resulted from sadomasochist activities
Which case distinguished R V Brown (1993) and give a brief description of the ratio
R V Wilson (1996)
Wife’s consent was valid. Branding was more a kin to tattooing rather than inflicting pain for sexual gratification. Activities between husband and wife stay in the privacy of the marital home
What is overruling
Used when a legal decision in an earlier case is wrong legally
