judicial precedent PAPER 2 SEC A Flashcards by Eduard Apostu

what does star decisis mean

to let similar cases be decided in a similar way or to stand by what has been decided

How well did you know this?

Not at all

Perfectly

what are precedents

decisions made on points of law by senior court which must be followed by lower courts in hierarchy when in later cases a same point of law arises

How well did you know this?

Not at all

Perfectly

what does bound by mean

have to follow decisions

How well did you know this?

Not at all

Perfectly

what is the privy council

a European court that is the highest appeal court in the common wealth

How well did you know this?

Not at all

Perfectly

who is the supreme court bound by

no one

How well did you know this?

Not at all

Perfectly

what are the 2 divisions in the court of appeal

civil and criminal

How well did you know this?

Not at all

Perfectly

who is the court of appeal bound by

the supreme court and itself

How well did you know this?

Not at all

Perfectly

what does bound by itself mean

has to base present decisions on past decisions

How well did you know this?

Not at all

Perfectly

what courts are below the civil division

chancery and family courts

How well did you know this?

Not at all

Perfectly

what court is below the chancery and family courts and who are they bound by

the high court
bound by supreme, court of appeal, chancery and family ,civil division

How well did you know this?

Not at all

Perfectly

which court is below the high court and who is it bound by

county court
supreme, civil division, high court, chancery and family

How well did you know this?

Not at all

Perfectly

who are the divisional courts bound by

court of appeal, supreme court and itself

How well did you know this?

Not at all

Perfectly

what court is below the criminal division

kings bench division

How well did you know this?

Not at all

Perfectly

what is the court below the kings bench division and who is it bound by

crown court
supreme court, criminal division and kings bench division

How well did you know this?

Not at all

Perfectly

what is the court below the crown court and who is it bound by

the magistrates court
criminal division, crown court, kings bench division and supreme court

How well did you know this?

Not at all

Perfectly

what does ratio decidendi mean

the reason for deciding
contains the point of law which forms precedent which lower courts in later similar cases must follow

How well did you know this?

Not at all

Perfectly

what is the case example for ratio decidendi

R v Howe

How well did you know this?

Not at all

Perfectly

what is the obiter dicta

other things said
judges may speculate on what decision would be if case facts where different
its persuasive and means that courts can choose to look the obiter in earlier cases and follow if they wish to

How well did you know this?

Not at all

Perfectly

what is the case for obiter dicta

R v Gotts
chose to follow obiter from R v Howe

How well did you know this?

Not at all

Perfectly

what are the 3 types of judicial precedent

original
persuasive
and binding precedent

How well did you know this?

Not at all

Perfectly

what is the original precedent

when a case raises a new point of law that’s never been decided the judge must make a decision on the point of law.
this will become the original precedent

How well did you know this?

Not at all

Perfectly

what is the case example for the original precedent

donoghue v stevenson (1932)

How well did you know this?

Not at all

Perfectly

what is the persuasive precedent

this is a decision that the court is not bound to follow but can choose to follow if they wish

How well did you know this?

Not at all

Perfectly

what is the case example for persuasive precedent

R v R
house of lords chose to follow the court of appeal decision

How well did you know this?

Not at all

Perfectly

what is the binding precedent

the ratio decendi of a case in a senior court must be followed when a case hearing the same point of law is heard in a lower court. therefore it is a binding precedent

what is the case for binding precedent

donoghue v stevenson (1932) grant v Australian knitting mills (1936)

what are all the sources of persuasive precedent

lower courts obiter dicta comments dissenting judgement privy council decision in other countries

what is the case for lower courts

R v R (1991)

what is the case for obiter dicta comments

R v Howe R v Gotts

what is the case for dissenting judgement

Rose and Frank v Compton bros

what is the case for the privy council

The Wagon mound (1961)

what is the case for decision in other countries

R v Bentham (2003) R v Sloan (1974)

which statute made it so the house of lords(supreme court) weren't still bound by themselves

the practise statement 1966

when can the supreme court use the practise statement

when it appears right to do so

when was the first criminal use of the practise statement

R v Shivpuri (1985)

what is the general rule in the court of appeal

generally in each division in the court of appeal the court is bound by its own decisions

there are 3 exceptions to the general rule and what CASE was this developed in

Young v Bristol aeroplane co. ltd (1944)

what are the 3 exceptions to the general rule

1) if there are conflicting decisions in past CoA cases the court can choose which decision it will reject 2) if there is a decision of supreme court that over rules past CoA decisions the CoA must follow the supreme court decision 3) is the decision is made pre incuriam(carelessly by mistake) which is saying the process it took had a mistake

one division has a 4th exception but which one is it

the criminal division

what is the case for the 4th exception and what is the exception

R v Taylor . suggests the law has been misapplied or misunderstood

why is there a 4th extra exception

this is because a persons liberty may be at stake

why might courts want to avoid following a precedent

law is outdated and can lead to absurd decisions

who is able to overrule a decision

someone senior

what is the definition of overruling

when a senior court changes a precedent of an earlier case on the same point of law because it is wrong or outdated

what are the 2 cases for overruling

R v Shivpuri when it overruled Anderton v Ryan

what is the legal principle for Anderton v Ryan

it is NOT a crime to only attempt to do the impossible

what is the legal principle for R v Shivpuri

is IS A CRIME to only attempt to do the impossible

what did the supreme court say about the decision made in Anderton v Ryan

supreme court said they had made a serious error and it had to be changed

what other cases has overruling been used

Pepper v Hart(1993) Davis v Johnson(1979) both these cases where overruled

what is distinguishing

happen when any court thinks the material facts of the case are sufficiently different from an earlier case that it can draw a distinction between the two

how many precedents will exist after distinguishing has been used

2 precedents come in with 1 precedent and leave with 2

which courts can use distinguishing as a way of avoiding precedent

any courts

what is the type of agreement for balfour v balfour

verbal

what is the type of agreement for merritt v merritt

written

what is the agreement for in balfour v balfour

agreement for money

what is the agreement for in merritt v merritt

agreement for house

what is the living in balfour v balfour

together

what is the living in merritt v merritt

seperated and living together

why does the agreement in balfour v balfour not amount to a contract

no intention to create legal relations

why does the agreement in merritt v merritt amount to a contract

there is intention to create legal relations (intention to make it legally binding)

what is reversing

when a point of law is decided in a lower court then the same case goes to a higher court who changed the point of law

how is reversing different from overruling

reversing involves 1 case whereas overruling involves 2 cases

what is the case for reversing

R v Hasan (2005)