Precedent Flashcards
Explain sources persuasive precedent
Decisions judges can choose to follow but do not have to
Lower courts
Not bound by but can choose to follow decision
Eg. RvR HoL chose to follow CoA making marital rape illegal
Obiter dicta
Not binding, later cases can choose to follow suggestion
Howe suggested duress should also not be used for attempted murder (Gotts followed)
Privy Council not UK court so not binding
Made of judges Uk Supreme Court so respected
Wagon Mound decided remoteness test for negligence (UK law since adopted)
Other countries with similar legal systems
Betham chose to follow Canadian Sloan case on possession of firearms
Dissenting judgement
Rose & Frank v Crompton Bros only 1 judge through there should not be a contract (CoA)
HoL decided to follow dissenting judgement
Explain how surpreme court can avoid precedent structure
Overruling para
+ distinguishing OR reversing para
Supreme Court avoiding precedent- overruling para
Overrule itself 1966 practice statement ‘when it appears right to do so’
Eg. Shivpuri overruled Anderton v Ryan
Felt they had made a serious error
Reluctant to use practice statement to keep certainty (Jones v SoSSS)
Supreme can overrule any other court if wrong or outdated (hierarchy)
Rids of original decision and replaced with new
Distinguishing para
Facts are so different making the same decision may not be appropriate
Creates 2 precedents on same point of law
Merritt v Merritt distinguished Balfour v Balfour as Merritt was a separated married couple and a written agreement
Reversing para
Higher court changed decision of lower court in the same case
Different to overruling as only uses one case
Hassan CoA said self induced duress is only when D knows type of crime would be forced to commit, HoL said self induced duress was whenever D should have expected violence
Higher court changed decision
CoA avoiding precedent structure
Overruling para
& reversing or distinguishing para
CoA overruling para
CoA bind themselves other than exceptions made in Young v BAC
1: conflicting decisions (court can choose which to follow)
2: Supreme Court make decision against CoA (have to follow higher court)
3: decision was made ‘per incurium’ by mistake
Or 4: (for criminal division) Taylor shows when law is misapplied or misunderstood
CoA can overrule any lower courts if decision is wrong or outdated- replacing old decision with new
Explain key features
Decisions made by higher courts must be followed in lower and same PoL
Based on stare decisis
- court hierarchy to see which courts are senior
Sc highest and binding on all lower eg. Crown
Allows to see which decisions are binging in each court
- 3 parts to judgement
Verdict (guilty/not)
Ratio decidendi ‘reason for deciding’ sets binding precedent (Howe) duress not defence for murder
Can be multiple ratios in one case
Obiter dicta ‘other things said’ everything not ratio/verdict
Often speculating what would happen if case facts different (persuasive precedent)
Howe obiter (attempted) followed in Gotts
Law reports record of precedents written by lawyers trained by ICLR contain name of case, facts, court, judgement
Eg. All England Law Reports and The Times
Important as this is where judges find precedents to follow
Explain types precedent
Original precedent (raises new PoL never before decided)
Reasoning by analogy (look at similar cases and come to similar conclusion)
Eg. Donoghue v Stevenson new tort
- binding precedent (must be followed by lower courts)
Often ratio from higher court
Eg. HoL Donoghue v Stevenson binding in Grant v Australian Knitting Mills
- persuasive precedent (judges can choose to follow)
Various sources (obiter dicta, lower courts)
Eg. R v R CoA made marital rape illegal then HoL were persuaded by CoA argument and chose to follow decision
Discuss if 1966 practice statement is effective- avoids absurd decisions
Let’s SC overrule past decisions when it ‘appears right to do so’
Eg. Shivpuri overruled Anderson v Ryan as there was a serious error to correct
- prevents bad decisions that will have to be followed by lower courts
Discuss if 1966 Practice statement is effective- uncertain
‘Appears right to do so’ vague and subjective
Eg. 1 year between Anderson v Ryan and Shivpuri (law changes drastically in short period of time)
- lawyers unable to prepare for cases
Discuss if 1966 practice statement is effective- not uncertain
Reluctant to use because they value certainty
Eg. Jones v SoSSS refused to overrule Re Dowling for the sake of certainty
- lawyers can effectively prepare and clear to lower courts which decision to follow
Discuss if 1966 practice statement is effective- not used
Not using it can lead to injustice/outdated law
Eg. Jones v SoSSS acknowledged Re Dowling decision was wrong but refused to use statement
- defeats point of practice statement- to change law when it appears right to do so- makes it ineffective
Advantage of precedent- certainty
State decisis
Eg. Jones v SoSSS refused to overrule Re Dowling to keep law certain
Allows lawyers and D to prepare effectively for cases
Disadvantage of precedent- rigid
Judges always make same decision as higher courts
Eg. acknowledged decision in Re Dowling was wrong
Outdated law not changed and mistakes repeated
