Paper 2.4 - Judicial Precedent Flashcards
What is judicial precedent (or ‘stare decisis’)?
Stand by what has been decided; all courts are bound by their own decisions and the courts above it.
What are the two parts of a judgment?
Ratio decidendi and obiter dicta.
What is a ratio decidendi? What was it in Dica?
Binding part of a judge’s decision that specifically mentions the case details; the intentional transmission of HIV could be classed as GBH.
What is an obiter dicta? What was it in Dica?
Non-binding part of a judge’s decision that theorises about the case facts being different; the intentional transmission of lesser STDs could be ABH.
Name one example of one case’s obiter being applied as another case’s ratio.
Howe: Obiter - Duress should not be a defence for attempted murder.
Gotts: Ratio - Duress is no longer a defence for attempted murder.
What courts are binded by a decision made in the Court of Appeal?
CoA and everything below.
What are the three types of precedent?
Binding.
Persuasive.
Original.
What is binding precedent? Give an example.
Binding precedent is when a case follows another case’s ratio decidendi - it must be enforced; ratio decidendi.
What is persuasive precedent? Give an example.
Persuasive precedent is when a case follows another case’s suggestion - it does not have to be enforced; obiter dicta.
What is original precedent? Give a case example.
Original precedent is a decision on a point of law that has never happened before; Dica.
What are the five ways Supreme Court can avoid precedent?
Practice Directions 3 and 4.
Distinguishing.
Overruling.
Reversing.
Precedent violates human rights.
What case introduced the doctrine of precedent in the House of Lords (now the Supreme Court)?
London Street Tramways (1898).
In 1966, the Lord Chancellor issued a Practice Statement. What was it?
‘The House of Lords (SC) can depart from precedent when it appears right to do so.’
Upon the creation of the Supreme Court in 2009, what was the Practice Statement 1966 changed to?
Practice Directions 3 and 4.
What was the first major civil use of Practice Statement 1966 (now Practice Directions 3 and 4)?
Addie v Dumbrek
4 year old killed when he fell through unprotected cover on private land. Occupier not liable as they did not intend injuries.
OVERTURNED BY
Herrington
6 year old burned by an electrified railway after trespassing a broken fence. Occupier liable as they were negligent toward the broken fence.
What was the first major criminal use of Practice Statement 1966 (now Practice Directions 3 and 4)?
Anderton
D brought a camera she thought was stolen, however it turns out it wasn’t. D was not guilty because no crime was committed.
OVERTURNED BY
Shivpuri
D transported a suitcase of ‘drugs’ over border; turns out it was vegetables. D was guilty of attempting to transport drugs because he had the mental state.
What is distinguishing?
Judges find factual differences in cases in order to justify not following precedent.
Give one example of a judge distinguishing between two cases.
Brown (1993)
5 consenting adults performed violent sexual activities. Guilty of GBH because consent is not a defence.
DISTINGUISHED
Wilson (1997)
D branded his initials on his wife’s bum. Branding was not deemed GBH, and D was acquitted.
What is overruling?
A higher court can overrule all lower court precedents and set their own.
Give one example of a judge overruling a case.
Anderton
D brought a camera she thought was stolen, however it turns out it wasn’t. D was not guilty because no crime was committed.
OVERRULED BY
Shivpuri
D transported a suitcase of ‘drugs’ over border; turns out it was vegetables. D was guilty of attempting to transport drugs because he had the mental state.
What is reversing?
A higher court can reverse a lower court’s decision on appeal.
Give one example of a judge reversing a case.
K (1990)
D hid sulphuric acid in a school hand dryer, causing another student to be injured. Charged with ABH, acquitted in Magistrates’, reversed and convicted in Crown on appeal.
What are the three Young exceptions to Court of Appeal precedent?
Previous decision was made ‘per incurram’ (in error).
SC has made a decision which effectively overrules CoA.
The CoA may decide between two conflicting precedents.
The Court of Appeal is only justified in ignoring precedent in ‘rare and exceptional’ cases according to what case?
Rickards.
Give four advantages of judicial precedent.
Certainty.
Flexibility.
Saves time.
Legal experts are deciding.
Give four disadvantages of judicial precedent.
Undemocratic.
SC & CoA cases can take ages.
Distinguishing can be used for judicial bias (eg Wilson).
Can be too rigid.
