Judicial Precendent 2A Flashcards
What is Stare Decisis?
To stand by what has been decided.
What are precedents?
Decisions made on a PoL by Senior courts which must be followed by lower courts when a later case with the same PoL arises
What is a point of law?
Legal principle
What is the privy council court?
European
Not binding but persuasive
Who is the top court and who are they bound by?
Supreme
No one
What cases does the supreme court handle?
Both civil and criminal
What is the court under supreme and who is it bound by?
Court of Appeals
Supreme and itself
What cases does the court of Appeals deal with?
Civil and criminal
Who is the court under court of appeal and who are they bound by?
The divisional courts
Appeal
Supreme
Itself
What are the divisional courts?
Chancery
Family
Kings bench division
Which court is under the Chancery and Family courts? And who is it bound by?
High court
All above but not itself
Which court is under the High court? And who is it bound by?
County court
All above but not itself
Which court is under the kings bench division? And who is it bound by?
Crown court
All above but not itself
Which court is under the crown court? And who is it bound by?
Mags court
All above but not itself
What says that the supreme court is not bound by itself?
The Practice Statement 1996
What is the literal definition of Ratio Decidendi?
Reason for deciding
What is Ratio Decidendi?
Contains PoL which forms precedent which must be followed by lower courts. It is binding.
What is an example of Ratio Decidendi?
R v Howe
What is the literal definition of Obiter Dicta?
Other things said
What is Obiter Dicta?
Everything else said other than ratio and verdict.
Judge may speculate as to what the decision may have been had the facts been different.
This is NOT binding but is persuasive.
What is an example of Obiter Dicta?
R v Howe: Duress shouldn’t be a defence for attempted murder either.
R v Gotts: chose to follow OD. OD from Howe is now in place of RD for Gotts
What are the three types of judicial precedent?
Original
Binding
Persuasive
Explain original precedent.
When a case raises a new PoL that has never been decided upon before, the decision that has been made will be the original precedent.
Give an example of an original precedent.
Donoghue v Stevenson
Explain Binding Precedent.
The ratio decidendi of a case in a senior court must be followed when a later case raises the same PoL in a lower court. The ratio is binding.
Give an example of Binding Precedent.
Donoghue v Stevenson for Grant v Australian Knitting Mills
Explain Persuasive precedent.
This is a decision that court is not bound by. For example a lower court makes a ratio decidendi, another similar cases comes to a higher court, they do not have to follow the ratio decidendi as they are a higher status.
Give an example of persuasive precedent.
R v R, HoL (supreme court) chose to follow the court of appeal.
What are the five sources of persuasive precedent?
Lower courts
Obiter dicta
Dissenting judgement
Privy council
Decisions in other countries
Is the obiter dicta binding?
No but can be followed if case facts are very similar.
What is a dissenting judgement?
A judgement that goes against the majority in that case. Eg. 2 judges in CoA say illegal 1 says legal. It may persuade the higher courts to change the law in future.
Why is the privy council not binding?
It is not a UK court therefore UK courts don’t need to follow it. However it is persuasive as it is good authority.
Why are decisions in other countries persuasive?
Countries that have similar legal systems to UK could provide useful ideas. These can be adopted or not.
R v Bentham (UK case) followed that of Canada’s R v Sloan.
When was the practice statement introduced?
1966
What is the practice statement?
It says that Supreme court is not bound by itself.
When can the supreme court use the practice statement?
When it appears right to do so
In what case was the practice statement first majorly used?
Herrington v BRB
They overruled Addie v Dumbreck
Why was Re Dowling not overruled in Jones v SoSSS?
They wanted to ensure certainty
When was the first criminal use of the practice statement?
R v Shivpuri overruled Anderton v Ryan
What case did the three exceptions for the binding of the court of appeal (both divisions) by their own decisions come from?
Young v Bristol Aeroplane Co. Ltd
What are the three exceptions for the binding of the court of appeal (both divisions) by their own decisions?
- If Conflicting decisions in past cases- can choose what to reject.
- If Supreme court overrules a C/A decision.
- If the decision is made “per incuriam” (carelessly or by mistake)
Which division has a 4th exception to the binding rule?
Criminal
What is the fourth exception for the criminal division?
R v Taylor said that they could overrule past decisions if the law had been misapplied or misunderstood because a persons liberty is at stake.
What are the three ways to avoid following precedent?
Overruling
Distinguishing
Reversing
Who can overrule?
A more senior authority.
What is overruling?
When a senior court in a later case changes the precedent of an earlier case on the same PoL because it is wrong or outdated.
What principle came from Anderton v Ryan?
It is NOT a crime to only attempt to do the impossible.
What principle came from R v Shivpuri?
It IS a crime to attempt to do the impossible.
What court did both Anderton v Ryan and R v Shivpuri take place in?
Supreme
What did the supreme court say about the decision they made in Anderton v Ryan?
They had made a serious mistake and the sooner it was corrected the better.
What is another example of overruling?
Pepper v Hart overruled Davis v Johnson
What is distinguishing?
The court think that the material facts are sufficiently different from the earlier case on the same PoL. If they can draw a distinction between them then they can make a new precedent instead of following the previous.
Who can distinguish?
Any court
What was the decision in Balfour v Balfour?
Agreement made does not amount to a contract.
What was different between Balfour and Merritt?
Balfour was a verbal agreement for money and they were still living together.
Merritt was a written agreement for property and they were living apart.
Distinguishing was made between Balfour and Merritt. What decision was made in Merritt therefore?
That the agreement made did amount to a contract.
Why was Merritt a contract but Balfour wasn’t?
Merritt had intention to create legal relations however Balfour did not.
R v Jordan and R v Smith was also found to be too different. What was the decision in both?
Jordan - Chain was broken so D is NOT guilty of murder.
Smith - Chain was NOT broken so D IS guilty of murder.
What is reversing?
When a PoL is decided in a lower court and the same case is appealed and goes to a higher court. The court can change the PoL.
Give a case example for reversing.
R v Hasan
What is self induced duress?
D voluntarily puts himself in a position expecting threats of violence.
Can self induced duress be used as a defence?
No
What did the C/A decide in R v Hasan?
Duress is not self induced if D doesn’t know what kind of offence he will be forced to commit.
What did the House of Lords decide in R v Hasan?
Duress is self induced whenever D knew or should have known the risk of violent threats regardless of which crime.
What decision is now binding?
The House of Lords decision.
