Law Making Flashcards
What is judicial precedent?
Laws that are made by judges
What is common law?
The decisions made by judges in the cases before
What is a example of a common law?
Murder
What is the doctrine of judicial precedent?
The rules which state which court is bound by which court - A court has to abide by rules and decisions made in a higher court
What is stare decisis?
Let the decision stand - The judge has to follow the decision or binding legal principle set out by a judge in an earlier case
What is an example of stare decisis?
A COA judge must be followed by a High Court judge
What are the positives of using stare decisis?
It provides certainty and consistency
May save time and money
What is the ratio decidendi?
The point of law or the reason for the decision - this is the legally binding part of the judgement that all lower courts and judges in the hierarchy must follow
What is an obiter dicta?
Things said by the way - this is merely persuasive advice by a judge where they speculate what the outcome of the case would’ve been if the facts were slightly different
What is a binding precedent?
One that must be followed
What is a persuavive precedent?
It may be followed but it doesn’t have to be followed
Are decisions of other countries’ courts and decisions of the Privy Council binding or persuasive?
Persuavive precedent - R vs R
Are dissenting judgements binding or persuasive?
Persuasive
What is original precedent?
If a point of law arising in a case has never been decided before
What is the hierarchy of the courts?
Supreme Court
Court of Appeal
High Court/Crown Court
County Court/Magistrate’s Court
Small Claims Court
What are the 3 methods of avoiding precedent?
Supreme Court
Court of Appeal
Distinguishing
How can the Supreme Court avoid precedent?
The Practice Statement 1966
What is the Practice Statement 1966?
Allows the Supreme Court to depart from a previous decision where it appeared to be right to do so
Why was the Practice Statement introduced?
To allow for societal and technological changes to modern Parliament when needed
What is an example where the Practice Statement was used?
R vs Jogee
What is the POL from A vs Hoare?
Due to the Limitation Act 1980 a SA victim wasn’t able to claim, but the Supreme Court exercised its decision and said that she could claim from him
What decisions is the Court of Appeal bound by?
The Supreme Court and their own decisions
In which scenarios can the COA go against their own decisions?
- CoA decision conflicts with a Supreme Court decision
- There are 2 conflicting CoA decisions
- Decision was made per incuriam (in ignorance of the law)
Does the CoA follow precedent ridgidly?
The CoA Criminal Decision does not follow precedent as ridgidly as someone’s liberty is at stake - If the court feels it is in the interests of justice they may go against a previous decision
What are 2 instances of per incuriam?
Williams vs Fawcett
R vs Cooper
What is the POL from Williams vs Fawcett?
Said previous decision was based on a misunderstanding of the County Court rules
What is the POL from R vs Cooper?
New safeguarding rules that were not clear needed to be changed
What is the distinguishing method?
Distinguishing a case on its facts or on the POL involved is used to avoid the consequences of an earlier inconvenient decision that is binding. It is used when the court finds a difference in the facts between the case it is hearing and an otherwise binding precedent