Precedent Flashcards
“Stare decisis”
to stand by what has been decided
precedent definition
decisions made on a point of law by senior courts. must be followed by lower courts in similar situations
types of judgements (2)
- ratio decidendi
- obiter dicta
ratio decidendi and case
reason for deciding
R V Howe
obiter dicta and case
other things said
R V Gotts
hierarchy of courts
- Supreme court
- Court of Appeal
- Divisional court
- High court and Crown court
- County court and Magistrates court
Ratio principles (3)
- must be followed by all lower courts
- contains point of law which forms precedent
- binding
Obiter dicta principles (3)
- doesnt need to be followed- purely persuasive
- can speculate what the decision would of been if the facts had been different
- persuasive precedent- can choose to follow if persuaded
types of precedent
- original
- binding
- persuasive
original precedent def and case
when a case raises a new point of law where no statute or case has covered it previously. the judges decision will create an original precedent
Donoghue and Stevenson
Binding precedent def and case
ratio of the case in a senior court must be followed when a later case raising the same point of law is heard in a lower court.
Grant V Australian Knitting Mills
Persuasive precedent def and case
a decision that a court is not bound to follow but can choose to follow if it wishes
R V R
sources of persuasive precedent (5)
- ratio of lower courts
- privy council decisions
- obiter dicta
- dissenting judgements
- decisions in other countries
ratio of lower courts and case
higher courts not bound to follow ratio of lower courts but can choose to do so if they want to
R V R
Privy council decisions and case
not a UK court so they don’t need to follow their decisions. made up of judges from the SC so decisions are likely to be good authority
The Wagon Mound
obiter dicta and cases (2)
isnt binding on any other courts but other courts can choose to follow it if case before is on the same issue
R V Howe and R V Gotts
dissenting judgements and case
judgement that goes against the majority in that case, isn’t binding but could persuade higher courts to change law in the future
Rose and Frank V Crompton Bros
decisions in other countries and case
some other countries have similar legal rules and systems to the UK. UK courts are not bound to follow decisions but can choose to follow if they wish
R V Bentham
practise statement year and info
1966
introduced and allowed the HOL (SC) to depart from previous decisions when appears right to do so
Herrington V BRB overruling Addie V Dumbreak
land owner doesn’t owe a duty of care to a trespasser- first major use of the practise statement
Jones v SOSSS and RE Bowling
refused to overrule Re Bowling even though decision was wrong. judges= reluctant to use practise statement as they want certainty
R V Shivpuri and Anderton V Ryan
first use of practise statement in criminal law
2 COA divisions
- criminal
- civil
3 exceptions to the divisions being bound by the SC and its self
- 2 conflicting COA precedents
- later conflicting SC precedent
- precedent made per incursion (in error where a relevent case or statute was overlooked)
case for the 3 exceptions
Young V Bristol aeroplance co
4th exception for the criminal division and case
if the law has been misapplied or misunderstood- incase liberty is at stake
R V Taylor
3 ways of avoiding precedent for a wrong or outdated precedent
- overruling
- distinguishing
- reversing
overruling and case example
when a higher court in a later case decides a precedent of a lower case is wrong or outdated, can replace the precedent with a new one
Shivpuri and Anderton V Ryan
distinguishing and case examples (2)
where any court decides in a later case that the facts are sufficiently different from an earlier case so can draw a distinction between the two precedents after
Merrit V Merrit
Balfour V Balfour
reversing and case example
when a point of law is decided in a lower court and the same case goes to a higher court who change that point of law because they feel its wrong
R V Hasan
R V Hasan
COA decided duress isnt self induced- was aquitted
SC decided duress is self induced- was convicted
