Precedent Flashcards
What is judicial precedent?
Judicial precedent is judge made law, it’s where judges previous decisions create law for future judges to follow
What is judicial precedent also known as?
Case law or common law
What is the system of precedent based on?
‘Stare decisis’
What does stare decisis mean?
To stand by what has already been decided
What is the principle of binding precedent?
The process whereby judges of lower courts apply the decisions set by the higher courts
What are the two parts to precedent?
Ratio decidendi
Obiter dicta
What is the most important part of precedent?
The ratio decidendi
What is the ratio decidendi?
It sets out the legal principle established by the case
What case is relevant to ratio decidendi?
Donoghue v Stevenson (1932)
What did the case of Donoghue v Stevenson (1932) establish?
A general duty of care in negligence
What does obiter dicta mean?
Things said by the way
What does the obiter dicta consist of?
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)
Which part of prevent is binding on judges?
The ratio decidendi, not the obiter dicta
What can the obiter dicta act as?
Persuasive precedent
What is an example of an obiter dicta acting as persuasive precedent?
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.
What are sources of persuasive precedent?
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
What is an example of courts lower down in the hierarchy acting as persuasive precedent?
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
What happened in relation to the case of R v R (1991)?
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
What happened in relation to the case of R v Gotts (1992)?
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.
What is an example of a decision of judicial committee of the privy council acting as pressuring precedent?
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
What is a dissenting judge?
A judge who disagrees with the majority
When may a dissenting judgement act as persuasive precedent?
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
Which countries decisions are most likely to act as persuasive precedent?
Commonwealth countries such as Canada and New Zealand
Briefly, what are the advantages and disadvantages of judicial precedent?
Certainty Consistency Precision Flexibility for change Time saving Practical
Explain the ‘certainty’ advantage point…
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
Explain the ‘consistency’ advantage point…
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
Explain the ‘precision’ advantage point…
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
Explain the ‘flexibility for change’ advantage point…
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
Explain the ‘time saving’ advantage point…
Precedent can save time where the legal principle has already been established in a similar case
Explain the ‘practical’ advantage point…
Legal principles are bass on real cases rather than hypothetical situations making it more practical and reliable
Explain the ‘rigidity’ disadvantage point…
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
Briefly, what are the disadvantages of precedent?
Rigidity Complexity Difficult to extract ratio decidendi Illogical distinctions Slowness of growth
Explain the ‘complexity’ disadvantage point…
There are so many cases that even with computerised databases an experienced lawyer may overlook an important point
Explain the ‘difficult to extract the ratio decidendi’ disadvantage point…
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
Explain the ‘illogical distinctions’ disadvantage point…
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
Explain the ‘slowness of growth’ disadvantage point…
The system is dependant on cases coming to court for rules to emerge
