Paper 2: Judicial Precendent Flashcards
What does the stare decisis involve
The doctrine of precedent is based on the Latin maxim stare decisis which means ‘stand by what has been decided’ so where the point of law in the previous case and present case is the same the court hearing the present case should follow the decision in the previous case.
What does the system of stare decisis promote
- hierarchy of the courts
-law reporting
What is an appellate court
Appeal court
What is a court at first instance
First case is heard
What is the difference between a binding and persuasive precedent
Binding has to be followed whilst persuasive can be used but doesn’t have to be followed
Describe the hierarchy of the courts
It’s essential for precedent as the higher courts bind all the courts below it and in general the appellate courts are bound by their own past decisions so the superior courts usually create binding precedent and the inferior courts create persuasive precedent and are bound to follow higher courts. European court of justice, European court of human right.
Hierarchy of the courts 8 marker what to include (SC,COA,HC,IC)
-higher courts bind all the courts below it and appellate courts are bound by their own past decisions
-supreme court- its decisions bind all the courts below it. Before the practice statement was bound by own past decisions but now doesn’t have to be.(usually does)
-court of appeal- decisions form binding precedent for all lower courts. Bound by precedents of Supreme Court. Bound to follow its own decisions- some exceptions-young v Bristol plane
-high court-the divisions within this are bound by SC and COA and bound by own decisions and bind those below. As a court of first instance is bound by all courts above and binds lower courts.
-inferior courts- not bound by own decisions and don’t bind other courts- only create persuasive precedent
What is law reporting
System of Judicial precedent not only depends upon hierarchy of courts but also process of law reporting so judges are aware of previous decisions. Each year reports are complied and made available to the courts e.g all England reports.
Can be available newspaper, internet
What are the 3 types of precedent
Binding
Original
Persuasive
What is binding precedent
Judges decision that must be followed. Courts that are bound by own decisions create binding precedent for themselves and some are bound based on position in hierarchy.
Describe binding precedent what to include in an 8 marker
(Definition of binding precedent)
When a case involves a POL both parties research prev cases to ensure judges follow precedent.
End of case there is a judgement explaining reasons for decisions. Includes: summary of facts, ratio decidendi, ober dicta, the verdict
Ratio decidendi- reasons for decision. Part of judgement which is binding on lower courts (case facts similar) examples: donoghue v Stevenson. Deniels v white- followed ratio decidendi
Ober dicta- other things said which is a decision which may be followed- persuasive precedent. This can become binding precedent in later case. Examples: brown Wilson- ober dicta from brown.
What is original precedent
Arises when a POL involved within a case is unique and has not been considered on a previous occasion
Original precedent what to include in an 8 marker
Unique POL- hasn’t been considered before
If the judge has based their decision on a similar case this is called ‘reasoning by analogy’
Result of changes in technology or modern development
Rare today as there is an AOP or common law to apply to facts of a case.
Example- hunter v Canary Wharf- tv signal gone- was held not to be a nuisance as only for fun- this had not been decided so original precedent.
What is a persuasive precedent and the 5 forms
Precedent that can be used but doesn’t have to be
Courts in other countries
Ober dicta
Lower courts
Dissenting judgements
Decisions of privy council
Describe persuasive precedent 8 marker what to include
Commonwealth courts- countries with common law systems decisions can be referred to only where lack of case law in UK. E.g Australia, Canada, New Zealand.
Ober dicta- can become a BP at later date and made into RD. often happens with SC and COA because of high level of judges. E.g brown. Wilson-ober dicta picked up and made into ratio.
Lower courts- decisions can be looked up and made into law. SC follow COA bc judges very experienced. E.g RvR- SC picked up persuasive P from COA- raping wife offence.
Dissenting judgements- case has been decided by majority of judges the judge who disagreed explain reasons. SC can be persuaded and follow
Decisions of privy council- court rules on cases from commonwealth- not create binding precedent for English courts.
