Precedent & Acts of Parliament Flashcards
What 3 powers are precedent subordinate to
precedent is subordinate to
statute law
delegated legislation
European regulations
What does it mean by precedent is subordinate to
statute law, delegated legislation and European regulations ?
This means that if (for example) an Act of Parliament is passed and that Act contains a provision which contradicts a previously decided case, the case decision will cease to have effect, the Act of Parliament is now the law on that point
In what situation did an Act of Parliament overrule precedent ?
when Parliament passed the Law Reform Act in 1996
Until the Law Reform Act 1996 passed by Parliament, what had precedent previously stated?
Judicial decisions meant that a person could only be charged with murder or manslaughter if the victim died within a year and a day of receiving his injuries
What had the Law Reform Act 1996 decided against judicial decisions that a person could only be charged with a murder or manslaughter if the victim died within a year and a day of receiving his injuries?
the Act enacted that there was no time limit and a person could be guilty even if the victim died several years later
What are the 5 advantages of precedent ?
1) certainty
2) consistency
3) precision
4) flexibility
5) time saving
What is certainty an advantage of precedent ?
4
- People know what the law is and can apply it to their case
- allows lawyers to advise clients on the likely outcome
- allows people to operate their businesses knowing that financial and other arrangement they make are recognised by law
- Practise Statement pointed out the importance of certainty
Why is certainty important for lawyers?
So that they know what the law is and can therefore advise clients on the likely outcome
What is consistency important in precedent as an advantage?
It is seen as just and fair that similar cases should be decided in a similar way, making the law credible
Why is precision an advantage of precedent?
As the principles of law are set out in actual cases the law becomes very precise, it is well illustrated and gradually builds up through the different variations of facts in the case that comes before the courts
Why is flexibility an advantage of precedent ? (2)
There is room for change as UKSC can overrule its own previous decisions
-distinguishing gives all courts freedom to avoid past decisions and develop the law
How can English courts be made more flexible, give an example?
if the English courts adapt the same attitude to precedent as in some other countries such as the USA where a previous precedent is likely to be ignored if it fails to meet with academic approval
What case in England is similar to USA attitude towards precedent where a previous precedent is ignored if it fails to meet with academic approval?
R v Shivpuri 1986
Why is time saving an advantage of precedent ?
Precedent is a useful time saving device, where a principle has already been decided, cases with similar facts are unlikely to go through the lengthy process of litigation
What are the 4 disadvantages of precedent ?
1) Rigidity
2) Complexity
3) Illogical distinctions
4) Slowness of growth
Why is rigidity of precedent a disadvantage?
- lower courts have to follow decisions of higher courts
- court of appeal has to follow own past decisions making the law inflexible
- few cases go to supreme court
Why is the fact that lower courts have to follow decisions of higher courts and the court of appeal has to follow own past decisions making the law inflexible a disadvantage of precedent through its rigidity ?
bad decisions made in the past may be perpetuated
Why is it a disadvantage that few cases go to the UKSC in terms of rigidity?
Change in the law will then only take place if parties have the courage, the persistence and the money to appeal their case
How is the fact that there are half a million reported cases create a disadvantage for precedent ?
it is not easy to find all the relevant case law even with computerised databases
How does the complexity of a judgement create a disadvantage for precedent ?
they are very long with no clear distinction between comments and the reason fro the decision making it hard to extract the ratio decidendi
In what case did the judges in the Court of Appeal say the were unable to find the ration in a decision of the House of Lords?
Dodds Case 1973
What happened in Dodds Case 1973
the judges of the Court of Appeal said they were unable to find the ratio decidendi in the HOL decision
How have illogical distinctions become a disadvantage of precedent?
The use of distinguishing to avoid past decision can lead to ‘hair splinting’ so that some areas of the law may become very complex while the differences between some cases may be intact very small and appear illogical
How is the slowness of growth a disadvantage of precedent?
Although judges are aware that some areas of law are unclear or in need of reform, they cannot make a decision unless there is a case before the courts to be decided.
