Precedent Flashcards
What is ratio decidendi?
-The reason for a decision
-If set by a lower court it is not binding on higher courts but can act as persuasive precedent
-If set by a higher court, it is binding on all lower courts for similar cases
What are the cases for ratio decedendi?
R v Brown- for cases involving S&M, consent can only be a defence for assault and battery but not for ABH
R v Howe- the defence of duress can never be used for murder
What is obiter dicta?
-Other things said
-Not binding
What are the cases for obiter dicta?
Wilson- the court followed the obiter dicta statement in R v Brown and said that a person can give consent to branding/tattooing. Defendant was found not guilty
Gotts- the court followed the obiter dicta statement in R v Howe and said that duress can’t be a defence to attempted murder. Defendant was found guilty
Name the three types of precedent
-Binding precedent
-Original precedent
-Persuasive precent
What is binding precedent?
A precedent that has been set by a higher court in a previous case which must be followed by a lower court in a case with similar facts
Case: Gotts
What is original precedent?
Where a point of law has never been decided before and so the decision that the judge makes will form a new precedent for later cases to follow
Case- Donoghue v Stevenson
What is persuasive precedent?
Not binding precedent but courts can consider it
List the 5 types of persuasive precedent
-Decisions of lower courts
-Obiter dicta statements
-Decisions of the Judicial Committee of the Privy Council
-Decisions of other countries
-Dissenting judges
What is decisions of the lower courts?
Higher courts don’t have to follow decisions made by lower courts but they can if they want
R v R
What is obiter dicta statements?
As part of judges decision they summarise the facts, give a reason for their decision and then they make other comments
What is decisions of the judicial committee of the privy council?
The privy council includes Supreme Court judges who hear cases in commonwealth countries- is in other legal systems
What is decisions of other countries?
When other countries make decisions in their courts, it is not binding on our domestic courts but they can use them for help
What is dissenting judges?
In the appeal courts, there will always be an odd number of judges hearing the case so there is a majority decision. If a judge disagrees they will be known as the dissenting judge
