Judicial Precident - Topic 3 Flashcards
What is the definition of judicial precedent?
The source of law where past decisions of the judge create law for future judges to follow
What does stare decisis mean?
Stand by what has been decided and do not unsettle the established
What is the hierarchy of the court structure in civil cases?
Supreme Court - court of appeal - divisional courts - high court - county court - magistrates court
What is the hierarchy of the court structure in criminal cases?
Supreme Court - court of appeal - queens bench divisional court - crown court - magistrates court
Why is the hierarchy of courts important?
Courts are bound by the courts above them in the hierarchy
Which courts make precedent?
The Supreme Court, the court of appeal and high court
Which courts don’t make precedent?
High court on first instance, county court and magistrates court
why are law reports important to the doctrine of judicial precedent?
depends on the availability of full and accurate reports of decided cases
when will a case be reported?
- if it introduces a new principle or rule of law
- modify an existing principle of law
- settle doubtful questions of law
what are the most highly regarded law reports?
incorporated council for law
reports set up by the law society and inss of court
where else might you find law reports?
the all England law reports
lexis
newspapers
what is ratio decidendi?
the reason for deciding
what was the ratio decidendi in Donoghue v Stevenson?
development of the neighbour principle
what was the ratio decidendi in R v R and G?
test for recklessness was confirmed as a subjective test
what was the ratio decidendi in R v Howe?
duress is not a defence of murder
what is the definition of obicta dicta?
things said by the way
what was the obicta dicta in the case R v Howe and Bannister?
the defence of duress should not be available for attempted murder
what was the ratio decidendi in the case R v Brown?
defence of consent wasn’t available for ABH caused by sadomasochistic acts
what was the obiter dicta in the case R v Brown?
the defence of consent would be available for ABH caused by body art, tattoos or piercings
what is the definition of overruling?
where a court in a later case states the legal rule decided in an earlier case is wrong
what are two reasons a court may wish to avoid precedent?
- outdated
- an earlier case is wrong
Can the supreme court overrule its own previous precedents?
give details of the practice statement
Yes
practice statement 1966 the supreme court isn’t bound by its own precedents and will decorate from them when ‘right to do so’.
what was the ratio decidendi in addie v dumbreck?
occupiers of land didn’t own a duty to trespassers
what was the ratio decidendi in british railways board v Herrington?
the defendant of the railways company did owed a duty of common humanity to trespassers
what two cases illustrate distinguishing in the supreme court?
Fairchild v Glenhaven Funeral Services
Wilsher v Essex Health Authority
is the court of appeal civil division bound by previous precedents?
Young v British Aeroplane Co Ltd
Yes except for 3 conditions:
- conflicting decisions
- decisions made in error
- high court overrules a decision
is the court of appeal bound by its own previous decisions in the criminal division?
no because a persons liberty may be at stake
what’s the definition of distinguishing?
a method which can be used to avoid following a past decision which he would otherwise have to follow
what happened in the case Balfour v Balfour?
- husband and wife were in Sri Lanka but the wife got ill and so had to go back to England
- husband stayed in sri Lanka but promised to send over £30 every month
- he stopped sending the money over because he had an affair
what happened in the case merritt v merritt?
- husband and wife wanted to separate so husband moved out the house and stopped paying the mortgage
- wife said she would pay off the mortgage and once that’s done the husband could sign over the house to her
- they met and wrote this down and signed it in the husbands van
- once the mortgage was paid off the husband refused to sign over the house
why did the judge in merritt v merritt decide they did not have to follow the precedent in balfour v balfour?
the facts were different
1. they were divorced
2. there was a written contract
give an example of distinguishing in the supreme court
Wilsher v Essex Health authority
explain why the law is fair and consistent is an advantage of judicial precedent
even if the precedent is unpopular, it cannot be denied by the public that the rule has been fairly and consistently applied to all people who find themselves in similar legal situations
explain why precdent creates flexibility within law is an advanatge
the courts can reinterpret the law when a new legal situation arises
Burstow and Constanza - courts recognised mental injury for the first time
Dica - recognised biological injury for the first time
explain why precdent makes law too complex is a disadvantage
precedents may be lost or forgotten by the courts
Case: Dodds
explain why the law develops by chance is a disadvantage
an unjust precedent can lead to further injustices
