THE DOCTRINE OF PRECEDENT-Orginal&Binding&Persuasive precedent Flashcards
When is an original precedent created?
If the point of law in a case has never been decided before, then what the judge decides will form a new precedent for future cases to follow
When creating original precedent, as there are no past cases for the judge to follow to base his decision on, what may they do ?
-look at cases which are the closest in principle and decide to use similar rules
When a judge uses similar cases to decide on an original precedent, what is this called?
Reasoning by analogy
What is a binding precedent ?
A previous case of legal decision which must be followed in subsequent similar cases
or
A precedent from an earlier case which must be followed even if the judge in the later case does not agree with the legal principle
When does a binding precedent apply?
Only created when the facts of the second case are sufficiently similar to the original case and the decision was made by a court which is senior to the court hearing the later case
What is persuasive precedent
A precedent which is not binding but the judge may consider it and decide that it is a correct principle so he is persuaded that he should allow it
In what case was the HOL persuaded by the Court of Appeal?
R v R 1991
A man could be found guilty of raping his wife
What court is not apart of the court hierarchy in England and Wales?
Judicial Committee of the Privy Council
How is the Judicial Committee of the Privy council different from other courts in England and Wales?
its decisions are not binding
Why can decisions made by the Judicial Committee of the Privy Council be persuasive in UK courts?
Contains many judges who are also members of the Supreme Court (HOL) and so their judgements are treated with respect and may often therefore be followed
In what case can the decision from the Judicial Committee of the Privy Council be seen as persuasive in a UK court?
The Wagon Mound (no.1) 1961
- law on remoteness of damages in the law of tort
- Courts in England and Wales followed this
In what case did the Court of Appeal use the reasoning from the Privy Council over the House of Lords, why?
`A-G fro Jersey V Holley 2005
In the cases R v Howe 1987 and R v Gotts 1992, what did the point of law did the obiter statement involve?
the law on duress (being forced to e.g kill someone)
In the case of R v Howe 1987 what did the HOL rule?
That duress could not be defence to a charge of murder
In the case R v Howe 1987 was the obiter statement ?
That duress would not be available as a defence for attempted murder