Judicial Precedent - Paper 2 - Section A Flashcards
Key elements of precedent, avoiding precedent, evaluating precedent
Define stare decisis and explain it briefly:
“Let the decision stand”
This principle shows that courts should follow previous rulings when deciding similar cases.
Why is it important that following the way similar cases were treated is a good thing for the legal system?
- Legal stability
- Efficiency
- Fairness
What are the three main elements of judicial precedent?
1) Ratio Decidendi
2) Obiter Dicta
3) Tyres of precedent
What is the translation for ratio decidendi and explain it briefly?
“Reason for a decision”
It is the legally binding part of a judges decision that sets a precedent for a future similar case .
Give and explain the case study for ration decidendi?
Donoghue V Stevenson which had an outcome that said that manufacturers owed a duty of care which was then followed into Daniels V White.
What is the translation for obiter dicta and explain it briefly?
“Other things said”
It is any comments or observations made by a judge that are not part of the ratio decidendi.
Give the case study examples for obiter dicta and explain them:
R V Howe said that duress was not a defence for murder or attempted murder. So then in R V Gotts a boy tried to use duress as a defence for attempted murder and the court was persuaded by the obiter dicta of R V Howe so he was found guilty.
What are the 4 other types of persuasive precedent excluding obiter dicta?
- Dissenting judgements
- Decisions of lower courts
Decisions of foreign courts - Privy council decisions
What is original (new) precedent?
When no binding precedent exists, a judge can user principles from a similar case to make a decision.
Give the case study for original (new) precedent:
Hunter V Canary Wharf
What is the name of the highest court in the UK?
Supreme Court
What was the change in practise for the Supreme Court?
Lord Gardiners practise statement which allowed the court to depart from its own past decisions, which gave it greater flexibility.
Who are the court of appeal and the high court bound by?
Themselves and the courts that are above them. But they can sometimes depart from their own decisions in specific situations.
What is the case study for the court of appeal and the high court?
Young V Bristol Aeroplane
What was the outcomes of Young V Bristol Aeroplane?
a) when it’s own decisions conflict, the court is bound to choose which it will follow
b) when a decision contradicts a decision of the supreme court
c) when a decision is made per incuriam (in error)
What are the 3 inferior courts?
- Crown court
- Magistrates court
- County court
What are the three rules on avoiding precedent?
- Overruling
- Reversing
- Distinguishing
Define overruling with a case study example:
It is when the higher courts set aside a legal ruling made by a previous case in a lower court. For example R V R and R V Miller implied that martial consent was outdated and no longer applicable in modern society.
Define reversing with a case study example:
When a higher court overturns the decision of a lower court in the same case during an appeal. For example, Gillick.
Define distinguishing with a case study example:
When the facts of a current case differ in a meaningful way. For example, Balfour V Balfour and Merritt V Merritt.
What is an advantage and disadvantage of why judicial law making is necessary?
Advantage is that it helps ensure certainty as the rules are predictable, which allows people to know the law will apply similar in their case. A disadvantage is that it is very rigid which means that it can be inflexible, which means that courts have to follow outdated or unsuitable decisions.
