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Z - AS Law - Precedent > Precedent > Flashcards

Precedent Flashcards

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1
Q

What is judicial precedent?

A

Judicial precedent is judge made law, it’s where judges previous decisions create law for future judges to follow

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2
Q

What is judicial precedent also known as?

A

Case law or common law

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3
Q

What is the system of precedent based on?

A

‘Stare decisis’

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4
Q

What does stare decisis mean?

A

To stand by what has already been decided

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5
Q

What is the principle of binding precedent?

A

The process whereby judges of lower courts apply the decisions set by the higher courts

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6
Q

What are the two parts to precedent?

A

Ratio decidendi

Obiter dicta

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7
Q

What is the most important part of precedent?

A

The ratio decidendi

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8
Q

What is the ratio decidendi?

A

It sets out the legal principle established by the case

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9
Q

What case is relevant to ratio decidendi?

A

Donoghue v Stevenson (1932)

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10
Q

What did the case of Donoghue v Stevenson (1932) establish?

A

A general duty of care in negligence

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11
Q

What does obiter dicta mean?

A

Things said by the way

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12
Q

What does the obiter dicta consist of?

A

Everything else said by the judge which doesn’t form the main judgement i.e what would have been his decision were the facts of the case different (in a hypothetical situation)

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13
Q

Which part of prevent is binding on judges?

A

The ratio decidendi, not the obiter dicta

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14
Q

What can the obiter dicta act as?

A

Persuasive precedent

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15
Q

What is an example of an obiter dicta acting as persuasive precedent?

A

In the obiter dicta in R v Howe (1987) the Supreme Court said that they thought the defence of duress should be unavailable for attempted murder as well as murder. In the later case of R v Gotts (1992) the Supreme Court was persuaded by the obiter in Howe.

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16
Q

What are sources of persuasive precedent?

A 
Courts lower down in the hierarchy 
Decisions from judicial committee of the privy council 
Obiter dicta statements 
Dissenting judgements 
Decisions of courts from other countries
17
Q

What is an example of courts lower down in the hierarchy acting as persuasive precedent?

A

In R v R (1991) the House of Lords agreed with the ruling if the court of appeal that a man could be guilty of raping his wife

18
Q

What happened in relation to the case of R v R (1991)?

A

In R v R (1991) the House of Lords agreed with the ruling if the court of appeal that a man could be guilty of raping his wife

19
Q

What happened in relation to the case of R v Gotts (1992)?

A

In the obiter dicta in R v Howe (1987) the Supreme Court said that they thought the defence of duress should be unavailable for attempted murder as well as murder. In the later case of R v Gotts (1992) the Supreme Court was persuaded by the obiter in Howe.

20
Q

What is an example of a decision of judicial committee of the privy council acting as pressuring precedent?

A

In the court of appeal cases of R v James (2005) and R v Karimi (2006) the CA followed the decision in A-G for jersey v Holley (2005) instead of a conflicting decision by the Supreme Court in the case of R v Smith (2001) - this is binding precedent and should have been followed

21
Q

What is a dissenting judge?

A

A judge who disagrees with the majority

22
Q

When may a dissenting judgement act as persuasive precedent?

A

If the case goes into a further appeal to the Supreme Court or there is a later case on the same point of law that goes the the Supreme Court the judges there may prefer the dissenting judgement and chose to follow it

23
Q

Which countries decisions are most likely to act as persuasive precedent?

A

Commonwealth countries such as Canada and New Zealand

24
Q

Briefly, what are the advantages and disadvantages of judicial precedent?

A 
Certainty 
Consistency 
Precision
Flexibility for change 
Time saving
Practical
25
Q

Explain the ‘certainty’ advantage point…

A

As the court follow past decisions people know what the law is and how it will be applied to their case. This makes it easier for lawyers to advice clients

26
Q

Explain the ‘consistency’ advantage point…

A

It is fair and just that similar cases should be decided in a similar way. The law must be consistent if it is to be credible

27
Q

Explain the ‘precision’ advantage point…

A

The law is very precise because it is set out in actually cases. It is well illustrated and builds up through different factual variations in cases

28
Q

Explain the ‘flexibility for change’ advantage point…

A

There is a scope for the law to change and develop, particularly with the 1966 practice statement. New laws can be made or old ones can be adopted to meet the changing needs of society

29
Q

Explain the ‘time saving’ advantage point…

A

Precedent can save time where the legal principle has already been established in a similar case

30
Q

Explain the ‘practical’ advantage point…

A

Legal principles are bass on real cases rather than hypothetical situations making it more practical and reliable

31
Q

Explain the ‘rigidity’ disadvantage point…

A

Precedent is rather rigid as the lower courts have to follow decisions of higher courts. Particularly with the court of appeal being self-binding. This can make the law inflexible

32
Q

Briefly, what are the disadvantages of precedent?

A 
Rigidity
Complexity 
Difficult to extract ratio decidendi 
Illogical distinctions 
Slowness of growth
33
Q

Explain the ‘complexity’ disadvantage point…

A

There are so many cases that even with computerised databases an experienced lawyer may overlook an important point

34
Q

Explain the ‘difficult to extract the ratio decidendi’ disadvantage point…

A

Sometimes with long judgements it can be difficult to find the ratio decidendi or distinguish it from the obiter dicta and this detracts from the element of certainty

35
Q

Explain the ‘illogical distinctions’ disadvantage point…

A

Sometimes when a judge does now want to follow a decision in a previous case they may find draw a fine distinction which can lead to elements of inconsistent and artificiality of law

36
Q

Explain the ‘slowness of growth’ disadvantage point…

A

The system is dependant on cases coming to court for rules to emerge

Z - AS Law - Precedent (4 decks)

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