Precedent Flashcards
what is judicial precedent
the English and welsh legal system is a common law system where law has been developed over time by courts. the law is developed by judges through judicial precedent.
basis of JP
the basis of judicial precedent is Stare Decisis (stand by what’s been decided) where like cases are decided alike and high courts bind lower courts
Grant v Australian Knitting Mills
like cases are decided alike…
the judgement is based on two sections
Ratio Decedent which is binding precedent and means “reason for decision” that a later court must use the same reasoning as a previous case where the two cases raise the same legal issue
Obiter Dicta which is a persuasive precedent and is “other things said” where decisions of higher courts are binding to lower courts
what is a persuasive precedent
judgement which do not have to be followed but can provide good law for
courts lower in hierarchy
decisions of the Privy Council
statements made obiter dicta. precedent is persuasive if
decisions are from a lower court (R v R) or from the Privy Council (Thabo Meli)
what is original precedent
law created entirely from judicial precedent (law made by judges)
R v R
Donoghue v Stevenson
what are avoidance techniques
judges will follow earlier precedent unless they have means of avoiding having to follow a difficult precedent
what are the avoidance techniques
Overrule - high courts can overrule lower courts
Candler v Crane Christmas & Co was overruled in Hedley Byrne v Heller & Partners
Reverse - on appeal a higher court may change the decision of a lower court
Re Pinochet
Distinguish - where a lower court is able to point to material differences that justify the application of different principles
Balfour v Balfour distinguished in Merrett v Merret
explain the court hierarchy
explain the 1966 HoL change
until 1966 the HoL was bound by its own previous decisions as held in London Tramways v LCC unless the decisions had been made per incuriam. The HoL issued the Practice Statement by Lord Gardiner in 1966 which allowed the HoL to depart from its previous decisions “where it was right to do so”
- this only applies to the Supreme Court
- “where right to do so” doesn’t give much guidance of what this means and is very vague.
what are examples of the PS being used
civil -
Conway v Rimmer
Pepper v Hart
criminal -
R v R departed from R v Caldwell
C v DPP
explain where a decision can be departed from in the Court of Appeal - civil division
it is normally bound by its previous decisions but Young v Bristol Aeroplane Co established that it can depart where:
the previous decision was made per incuriam
there are two conflicting decisions from previous cases
a previous decision has been overturned by the HoL or Supreme Court
explain where a decision can be departed from in the Court of Appeal - criminal division
the same as the civil division, it is not bound where:
the previous decision was made per incuriam
there are two conflicting decisions from previous cases
the law was misapplied or misunderstood in a conviction - R v Taylor
what is s2 of the HRA 1998
this sections requires all judges to take account of case law in the ECHR which effectively created a new source of case law.
Vinter v UK - appealed to the CoA that a “life order” breached A3 ECHR which was then rules that a life sentence order should be no longer than 25 years.
what are some advantages of JP
- a just system as like cases will be treated the same
- certainty as it encourages consistency with alike cases meaning the system is predictable and can be planned ahead
- allows flexibility as judges can distinguish cases on their facts and the PS allows the law to develop and adapt
what are some disadvantages of JP
- the system is rigid as lower courts have to follow decisions of higher courts
- judgements can be long and unclear so finding the ratio decededi is not always easy
- it has a retrospective aspect as case law applies to events which took place before it came to court - R v C
what is ratio decedendi
part of the judgement identifying the legal principles in a case which creates precedent to be followed in future cases. it is common law and the binding part of the decision - R v Dudley & Stephens
what is obit dicta
this is the rest of the judgement which is not binding but may be followed or relevant in future cases or can provide guidelines for particular legal rules
what is a binding precedent
a legal principle that must be followed. precedent is binding if it comes from a court higher in the hierarchy and the fact of the case are sufficiently similar.
