THE DOCTRINE OF PRECEDENT-Orginal&Binding&Persuasive precedent Flashcards

1
Q

When is an original precedent created?

A

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

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2
Q

When creating original precedent, as there are no past cases for the judge to follow to base his decision on, what may they do ?

A

-look at cases which are the closest in principle and decide to use similar rules

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3
Q

When a judge uses similar cases to decide on an original precedent, what is this called?

A

Reasoning by analogy

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4
Q

What is a binding precedent ?

A

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

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5
Q

When does a binding precedent apply?

A

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

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6
Q

What is persuasive precedent

A

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

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7
Q

In what case was the HOL persuaded by the Court of Appeal?

A

R v R 1991

A man could be found guilty of raping his wife

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8
Q

What court is not apart of the court hierarchy in England and Wales?

A

Judicial Committee of the Privy Council

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9
Q

How is the Judicial Committee of the Privy council different from other courts in England and Wales?

A

its decisions are not binding

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10
Q

Why can decisions made by the Judicial Committee of the Privy Council be persuasive in UK courts?

A

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

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11
Q

In what case can the decision from the Judicial Committee of the Privy Council be seen as persuasive in a UK court?

A

The Wagon Mound (no.1) 1961

  • law on remoteness of damages in the law of tort
  • Courts in England and Wales followed this
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12
Q

In what case did the Court of Appeal use the reasoning from the Privy Council over the House of Lords, why?

A

`A-G fro Jersey V Holley 2005

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13
Q

In the cases R v Howe 1987 and R v Gotts 1992, what did the point of law did the obiter statement involve?

A

the law on duress (being forced to e.g kill someone)

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14
Q

In the case of R v Howe 1987 what did the HOL rule?

A

That duress could not be defence to a charge of murder

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15
Q

In the case R v Howe 1987 was the obiter statement ?

A

That duress would not be available as a defence for attempted murder

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16
Q

How did the case of R v Gots 1992 , a case of attemoted murder, use R v Howe 1987 to make a decision?

A

the obiter dicta of R v Howe 1987 as persuasive precedent by the Court of Appeal

17
Q

What is a dissenting judgement ?

A

Where a case has been decided by a majority of judges, the judge who disagrees will explain his reasons

18
Q

How can a dissenting judgement be appealed?

A

The dissenting judge can appeal to the Supreme Court

-It is possible that the Supreme Court may prefer the dissenting judgement and decide the case in the same way

19
Q

How can a dissenting judge persuade precedent?

4

A
  • If a dissenting judge appeals to the Supreme Court
  • Supreme court may prefer the dissenting judgement
  • If they do, the dissenting judgement has persuaded them to follow it
  • persuasive precedent
20
Q

What countries can persuade precedent in the UK?

A

Commonwealth countries

e.g Canada, Australia and New Zealand