judicial precedent (P1) Flashcards

1
Q

what is the doctrine of judicial precedent?

A

-decisions of judges in cases that apply to future cases
-common law
-stare decisis
-2 types; binding and persuasive

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2
Q

what is binding precedent?

A

-hierarchical court structure means higher courts bind lower ones
-a decision made in an earlier case by a high court must be obeyed by lower courts

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3
Q

what is persuasive precedent?

A

-a decision which does not have to be followed by later cases
-may come from courts that don’t bind, eg the judicial committee of the privy council
-may come from courts lower in the hierarchy
-may be a part of a decision known as obiter dicta

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4
Q

where is the judicial committee of the privy council in court hierarchy?

A

-bound by no-one, not even itself
-binding on all domestic courts of the commonwealth, including england
-the wagon mound case
-regarded as persuasive precedent only in england

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5
Q

where is the supreme court in the court hierarchy?

A

-bound by the european court of justice on EU issues, but not by itself
-binding on all other UK courts
-r v Brown
-has the power to reopen appeals

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6
Q

where is the court of appeal (civil division) in the court hierarchy?

A

-bound by the supreme court, and itself (with exceptions)
-binding on all lower courts and itself
-young v bristol aeroplane co. ltd
-need not follow its own decisions when the previous decision was made per incuriam (in error), when there are two conflicting previous decisions, or when there is a later conflicting supreme court decision

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7
Q

where is the court of appeal (criminal division) in the court hierarchy?

A

-bound by the supreme court and itself
-binding on all lower courts and itself
-flexible to its approach in binding itself, won’t follow previous decision that would cause injustice

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8
Q

where is the kings bench division of the high court in the court hierarchy?

A

-bound by the supreme court, court of appeal and itself
-binding on the high court (generally), lower courts and itself
-follows similar rules to CoA (criminal division) in terms of binding itself

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9
Q

where is the chancery and family divisions of the high court in the court hierarchy?

A

-bound by the supreme court, the CoA and itself
-binding on the high court (Generally), lower courts and themselves

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10
Q

where is the high court in the court hierarchy?

A

-bound by the supreme court, the CoA, divisional courts, but not itself
-binding on lower courts

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11
Q

why do the crown court, magistrates court and county court not create precedents?

A

-too many cases going through them
-don’t publish judgements that could be used

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12
Q

what is the practice statement 1966?

A

-constitutional reform act 2005 transferred HoL’s powers to the supreme court
-supreme court doesn’t have to follow its own previous decisions, but must explain why if they choose not to

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13
Q

what is stare decisis?

A

-the fundamental principle of precedent
-means a decision in an early case will stand as guidance for all future cases
-decision made by the court is the ‘judgement’, which contains a decision and an explanation as to how it was reached

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14
Q

what is ratio decidendi?

A

-part of the judgement that forms the precedent for future cases
=the reasoning for the decision

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15
Q

what is obiter dicta?

A

-the rest of the judgement aside from the ratio decidendi
-judges dont have to follow it but it can be useful guidance
-hill v baxter

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16
Q

what is law reporting?

A

-to follow past decisions there must be an accurate record of what those decisions were
-judgement is noted down word for word then published
-accuracy is overseen by independent lawyers
-codes at the end of case names are called citations and tell you what reports to access, which are published weekly in the times and yearly in leather-bound volumes

17
Q

what are the three options for dealing with precedents?

A

-follow
-overrule
-distinguish

18
Q

what is the option of following?

A

-judge applies the same principle
-michael v chief constable of south wales

19
Q

what is the option of overruling?

A

-court in a lower case states the decision of the earlier case is wrong
-higher court can overrule decisions of lower courts
-r v jogee overrules r v powell

20
Q

what is the option of distinguishing?

A

-judge avoids all precedent
-if judge finds the facts are sufficiently different from the case setting the precedent
-white lion hotel v james VS geary v JD weatherspoons

21
Q

what are some advantages of judicial precedent?

A

-certainty - allows the law to be predictable, which promotes ADR
-consistency
-fairness - can see how the decision was arrived at
-precision - exact details are known by all parties
-flexibility - bad precedents can be avoided
-time-saving - making ADR more likely decreases time

22
Q

what are some disadvantages of judicial precedent?

A

-rigidity - can restrict decisions made in the interests of individual justice
-complexity - judgements are long and difficult to read
-slowness of growth - waiting for a similar case to evolve the law
-not democratic