Paper 2: judicial precedent Flashcards
What does stare decisis mean?
‘Stand by what has previously been decided’
What does stare decisis aim to do?
This is the basis of the doctrine of judicial precedent and it ensures that points of law decided in past cases are followed by judges in later cases , these legal principles set by judges in higher courts set precedents to be followed by that court, and all courts below it in future cases
How does stare decisis work?
- Only works if judges actually follow previous decisions and follow the rules of precedent
- Stare decisis is created through following a ratio decidendi through accurate law reports and through a settles court hierarchy
What is ratio decidendi?
This is the legal reason for a decision, the part of a judgment in which the judge explains the principles of law upon which his decision is based
Why is ratio decidendi important?
If the judgment is by a higher court, then all lower courts must follow it in subsequent cases
What was the ratio decidendi in Donoghue v Stevenson?
We owe a duty of care to our neighbours, in this case, the manufacturers to the ultimate consumers of their product
What was the ratio decidendi in R v Brown?
The defence of consent is not available in respect for sadomasochistic practices to defendants charged with such offences
What is obiter dicta?
This means ‘other things said’, which refers to a statement of law by a judge which does not form binding precedent, this can be persuasive which becomes the ratio of a new case
What was the obiter in R v Howe?
This opinion was clearly made obiter, as it didn’t directly relate to the case as Howe was charged with murder not attempted murder
What was the obiter in R v Gotts?
The HL decided to follow the obiter of Howe and found the defendants guilty as duress was no defence to attempted murder
What was the obiter in R v Wilson?
The CA decided that this was a form of body decoration similar to tattooing using the obiter of Brown. They said that in this case, consent was a defence
What are the advantages of law reports?
- They enabling solicitors and barristers to access them in order to advice their clients and when presenting cases in court
- Judges also need to know what legal principles were applied by judges in earlier similar cases to make a reasoned decision in the case present and achieve stare decises
Who are the superior courts?
Supreme court, CA, Divisional Courts
What precedent do superior courts follow?
Binding precedent
What are the inferior courts?
High court, County court, Crown court, Magistrates court
What precedent do inferior courts follow?
Persuasive precedent
Definition of original precedent
If the point of law on a case is unique and hs never been considered before, then whatever the judge decides will form a new judgement for future cases to follow
Definition of binding precedent
This is a precedent from an earlier case which must be followed even if a judge in the later case does not agree with the legal principle
Definition of persuasive precedent
This is precedent that is not binding on the court, but the judge may consider it and decide that the principle is correct and is ‘persuaded’ to follow
Types of persuasive precedent
1) Courts lower in the hierarchy
2) Statements made obiter dicta
3) Decisions of courts in other countries
4) A dissenting judgement
5) Decisions of the Judicial Committee of the Privy Council
What was held in R v R?
The HL agreed with and followed the same reasoning as the CA in deciding that a man could be guilty of raping his wife
What is a dissenting judgement?
When a case has been decided by a 2-1 majority, the dissenting judge will have explained his reasons. If a case with similar point comes to higher court, then they may be persuaded to follow the dissentingg judgement
Why may precedents be necessary?
The law may be outdated so judges may need to change the law, causing the law to be more flexible and achieving justice
What was held in London Tramways case?
The HL held that certainty in the law was more important, and therefore they were completely bound by their own past decisions unless a decision was made per incuriam, that is ‘in error’
Practice Statement 1966
“whilst the Lords is normally bound by its own previous decisions, it can depart from it ‘in the interests of justice’ or when it appears right to do so”
Herrington v British Railways Board (1972)
The HL overruled their earlier precedent and stated that the social and physical conditions had changed and therefore the law needed to change, therefore a duty was owed to the child
Miliangos v George Frank Textiles (1976)
HL used the Practice Statement and awarded damages in Swiss Franls recognising the change in economic conditions
R v Shivpuri (1986)
The HL answered in the affirmative and in doing so, it overrules its own ruling the year before in Anderson v Ryan, applying the Practice Statement
R v G&R (2003)
Using the Practice Statement, the HL departed from its decision in R v Caldwell on the law on recklessness, making it a subjective test. On the basis, the boys conviction was quashed as they hadn’t realised their risk
CA exception one
- In Royal College Nursing v DHSS, the CA held that nurses were not registered medical practitioners, on appeal, the HL held that they were and could perform abortions. IF the same question arose in the CA, it wold have to follow the HL rather than itself
CA exception two
This should never happen as the CA should always follow its own previous decisions, however:
Ingram v Little
Lewis v Avery
This now means there are 3 conflicting CA decisions, and so CA can follow either
CA exception three
It was held in Rickards v Rickards that the use of the per incuriam rule could only be used in ‘rare and exceptional’ circumstances
R v Gould (1968)
They can depart from a previous decision if the law is misapplied or misunderstood, this exception arises because in criminal cases, a persons liberty is involved and is at stake
Distinguishing: Balfour v Balfour (1919)
The claim would not succeed because there was no intention to create legal relations; it was merely a domestic arrangement between husband and wife therefore no binding contract existed. As a result of this ratio, the wife did not succeed in her claim
Distinguishing: Merritt v Merritt (1971)
The claim did succeed although they were husband and wife, the agreement was after they had separated and was in writing.
Overruling: Hedley Byrne v Heller/ Chandler v Crane Christmas
Hedley Byrne v Heller the Lords overruled the Ca’s decision in Chandler v Crane Christmass deciding that there can be liability for a negligent misstatement
Can the SC overrule their own decisions?
Yes using the practice statement
Who can overrule the European Court of Justice?
The ECJ can overrule a past decision it has made and that of any lower court
Reversing: RCN v DHSS
- The High Court stated that the nurses were RMP and therefore had to carry out abortions
- CA disagreed with this and said that they were not RMP and did not have to carry abortions
- HL disagreed with the CA stating that they were RMP and therefore had to carry out abortions
