Judicial Precedent (PURPLE BOOKLET) Flashcards
What principle is judicial precedent based on?
Stare Decisis
Translate ‘stare decisis’
‘Stand by what has been decided’
What does stare decisis mean in terms of judicial precedent?
Let similar cases be decided in a similar way
What is the purpose of the court hierarchy?
To create certainty and consistency within the law
Who binds who within the court hierarchy?
Higher courts bind lower courts
What two courts bind themselves?
Supreme court and court of appeal
What can the supreme court use and when to avoid following it’s past precedent?
1966 Practice Statement ‘when it appears right to do so’
How can the court of appeal avoid following it’s past precedent?
Using the excpetions outlined in Young v BAC (civil) or R v Young (criminal)
Why is law reporting crucial for judges?
So that they can find the ratio decidendi to follow
What made law reporting more thorough and uniform?
1865 incorporated council of law reporting
Give 2 examples of law reports
All England Law reports, Weekly law reports
List the things included within a law report
Parties, judges, date, facts, cases referred to, judgement
What 2 categories is judgement split into?
Ratio decidendi and Obiter dicta
Translate ‘ratio decidendi’
‘Reasons for deciding’
What is the leading case for ratio decidendi?
Oxford v Moss
What was the ratio decidendi from the case of Oxford v Moss?
Information is not property which can be stolen
What kind of precedent is ratio decidendi an example of?
Binding precendent
What cases outline ratio decidendi as binding precendent?
Grant followed the ratio decidendi of Donoghue v Stevenson
What point of law came out of Donoghue v Stevenson which was followed in the case of Grant?
That manufacturers owe a duty of care to their ultimate consumer
Translate ‘obiter dicta’
‘Other things said’
What type of precedent is obiter dicta an example of?
Persuasive
Give an example where the obiter dicta of a case was used in a later case
Supreme court in R v Gotts followed the Obiter Dicta from R v Howe
What point of law came out of Gotts and Howe?
That duress is not a defence for (attempted) murder
What are the 3 types of precedent?
Original, Binding and Persuasive
Give an example of original precedent
Donoghue v Stevenson
What 2 ways can a court avoid following precedent?
Overruling and distinguishing
When will a court overrule past precedent?
When they decide that a previous precedent is wrong or outdated
Who overrules who?
Higher courts overrule lower courts (Supreme court and court of appeal can overrule themselves)
What is the effect on precedent when a court is overruling?
The new precedent will replace the previous one
Give a case example of when precedent was overruled in civil law
Herrington overruled Addie v Dumbreck
What was the point of law that came out of the case of Herrington?
That landowners owe a duty of care to trespassers
Give a case example when precedent was overruled in criminal law
R v Shivpuri overruled Anderton v Ryan
What was the point of law that came out of R v Shivpuri?
That it is an offence to attempt to do the impossible
Which courts can distinguish?
Any court
When can a court distinguish?
When they decide that the material case facts are significantly different from an earlier case
Describe the effect that distinguishing has on precedent
The later case will create a new precedent on the same point of law thus 2 precedents will exist on this same pint
Give the 2 case examples for distinguishing
R v Smith distinguished R v Jordan and Merritt v Merritt distinguished Balfour v Balfour
What are the 3 advantages of judicial precedent?
Provides flexibility within the law, provides certainty within the law and allows the law to respond to real life situations
How does judicial precedent provide flexibility within the law?
As there are ways of avoiding precedent; Supreme Court can overrule using Practice Statement, all courts can distinguish
Give an example where judicial precedent provided flexibility within the law
R v Shivpuri - Supreme court overruled precedent from Anderton v Ryan as it was thought to be wrong
What is a consequence of judicial precedent providing flexibility within the law?
Allows wrong decisions to be avoided and removed so that they aren’t repeated in the future. Allows the law to be updated in line with changes in society
How does judicial precedent provide certainty within the law?
Precedent is based on the principle of Stare Decisis, senior courts will usually follow past precedent (Supreme Court reluctant to use practice statement)
Give an example where judicial precedent provided certainty within the law
Jones v Secretary of state of social services - Supreme court refused to overrule Re Dowling even though they agreed that the precedent from Re Dowling was wrong
What is a consequence of judicial precedent providing certainty within the law?
Good for citizens who know what the law is so can act legally, also lawyers can advise clients more easily as they can prepare for a likely outcome
How does judicial precedent allow the law to respond to real life situations?
Precedents are made during cases which deal with real life situations whereas statutes are made by Parliament to deal with theoretical situations
Give an example where judicial precedent allowed for the law to respond to real life situations
R v R - Supreme Court changed the law to make marital rape a crime to respect the improved status of women within society
What is a consequence of judicial precedent allowing the law to respond to real life situations
Law can be made and changed in response to real events, this allows the law to develop with the times and reflect changes within society
