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Law > Judicial Precedent (PURPLE BOOKLET) > Flashcards

Judicial Precedent (PURPLE BOOKLET) Flashcards

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1
Q

What principle is judicial precedent based on?

A

Stare Decisis

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2
Q

Translate ‘stare decisis’

A

‘Stand by what has been decided’

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3
Q

What does stare decisis mean in terms of judicial precedent?

A

Let similar cases be decided in a similar way

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4
Q

What is the purpose of the court hierarchy?

A

To create certainty and consistency within the law

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5
Q

Who binds who within the court hierarchy?

A

Higher courts bind lower courts

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6
Q

What two courts bind themselves?

A

Supreme court and court of appeal

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7
Q

What can the supreme court use and when to avoid following it’s past precedent?

A

1966 Practice Statement ‘when it appears right to do so’

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8
Q

How can the court of appeal avoid following it’s past precedent?

A

Using the excpetions outlined in Young v BAC (civil) or R v Young (criminal)

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9
Q

Why is law reporting crucial for judges?

A

So that they can find the ratio decidendi to follow

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10
Q

What made law reporting more thorough and uniform?

A

1865 incorporated council of law reporting

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11
Q

Give 2 examples of law reports

A

All England Law reports, Weekly law reports

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12
Q

List the things included within a law report

A

Parties, judges, date, facts, cases referred to, judgement

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13
Q

What 2 categories is judgement split into?

A

Ratio decidendi and Obiter dicta

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14
Q

Translate ‘ratio decidendi’

A

‘Reasons for deciding’

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15
Q

What is the leading case for ratio decidendi?

A

Oxford v Moss

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16
Q

What was the ratio decidendi from the case of Oxford v Moss?

A

Information is not property which can be stolen

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17
Q

What kind of precedent is ratio decidendi an example of?

A

Binding precendent

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18
Q

What cases outline ratio decidendi as binding precendent?

A

Grant followed the ratio decidendi of Donoghue v Stevenson

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19
Q

What point of law came out of Donoghue v Stevenson which was followed in the case of Grant?

A

That manufacturers owe a duty of care to their ultimate consumer

20
Q

Translate ‘obiter dicta’

A

‘Other things said’

21
Q

What type of precedent is obiter dicta an example of?

A

Persuasive

22
Q

Give an example where the obiter dicta of a case was used in a later case

A

Supreme court in R v Gotts followed the Obiter Dicta from R v Howe

23
Q

What point of law came out of Gotts and Howe?

A

That duress is not a defence for (attempted) murder

24
Q

What are the 3 types of precedent?

A

Original, Binding and Persuasive

25
Q

Give an example of original precedent

A

Donoghue v Stevenson

26
Q

What 2 ways can a court avoid following precedent?

A

Overruling and distinguishing

27
Q

When will a court overrule past precedent?

A

When they decide that a previous precedent is wrong or outdated

28
Q

Who overrules who?

A

Higher courts overrule lower courts (Supreme court and court of appeal can overrule themselves)

29
Q

What is the effect on precedent when a court is overruling?

A

The new precedent will replace the previous one

30
Q

Give a case example of when precedent was overruled in civil law

A

Herrington overruled Addie v Dumbreck

31
Q

What was the point of law that came out of the case of Herrington?

A

That landowners owe a duty of care to trespassers

32
Q

Give a case example when precedent was overruled in criminal law

A

R v Shivpuri overruled Anderton v Ryan

33
Q

What was the point of law that came out of R v Shivpuri?

A

That it is an offence to attempt to do the impossible

34
Q

Which courts can distinguish?

A

Any court

35
Q

When can a court distinguish?

A

When they decide that the material case facts are significantly different from an earlier case

36
Q

Describe the effect that distinguishing has on precedent

A

The later case will create a new precedent on the same point of law thus 2 precedents will exist on this same pint

37
Q

Give the 2 case examples for distinguishing

A

R v Smith distinguished R v Jordan and Merritt v Merritt distinguished Balfour v Balfour

38
Q

What are the 3 advantages of judicial precedent?

A

Provides flexibility within the law, provides certainty within the law and allows the law to respond to real life situations

39
Q

How does judicial precedent provide flexibility within the law?

A

As there are ways of avoiding precedent; Supreme Court can overrule using Practice Statement, all courts can distinguish

40
Q

Give an example where judicial precedent provided flexibility within the law

A

R v Shivpuri - Supreme court overruled precedent from Anderton v Ryan as it was thought to be wrong

41
Q

What is a consequence of judicial precedent providing flexibility within the law?

A

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

42
Q

How does judicial precedent provide certainty within the law?

A

Precedent is based on the principle of Stare Decisis, senior courts will usually follow past precedent (Supreme Court reluctant to use practice statement)

43
Q

Give an example where judicial precedent provided certainty within the law

A

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

44
Q

What is a consequence of judicial precedent providing certainty within the law?

A

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

45
Q

How does judicial precedent allow the law to respond to real life situations?

A

Precedents are made during cases which deal with real life situations whereas statutes are made by Parliament to deal with theoretical situations

46
Q

Give an example where judicial precedent allowed for the law to respond to real life situations

A

R v R - Supreme Court changed the law to make marital rape a crime to respect the improved status of women within society

47
Q

What is a consequence of judicial precedent allowing the law to respond to real life situations

A

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

Law (25 decks)

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