Unit 1 - Judical Precedent Flashcards
Where do our laws come from?
- Statute
- Common Law
- Delegated Legislation
- EU law
What is precedent?
Common/case law - s piece of law where the past decisions of judges create law for future judges to follow. Lower court must follow higher court
What are the types of precedent?
Binding - higher courts, human rights activists 1998, all uk courts must take this into account
Persuasive - don’t have to follow: lower court, commonwealth, obiter dicta, dissenting judgements
Orignal - new precedent for that case
Law reporting???
Precedent will only work if efficient law reporting happens. Before 1865, cases were reported by unqualified individuals. The council of law reporting is controlled by the court and law reports are written by barristers and published on the times law reports and online.
Hierarchy of courts
EUCJ -> SCUK -> CoA -> divisional courts -> high court -> crown court -> county & magistrates
Latin phrases + cases!?!
Stare Decisis - don’t unsettle the established, stick to decisions already made
Res judicata - decision judge makes at the end of a case, including ratio decidendi
Ratio Decidendi - rational behind decision - reason behind change of law
R v R - husband accused of raping wife. ‘Sexual relations are consensual by nature’ - upheld conviction - ratio = concept of a wife’s irrevocable consent to her husband is unacceptable.
R v Bentham - charged with possessing an imitation firearm - it was fingers under his jacket, revoked conviction, person doesn’t possess their fingers
Obiter Dicta - something said by the way, not necessarily related to the facts of the case
R v Howe- defence to duress is not a defence to murder. Obiter dicta - it is not a defence to attempted murder either
Hill v Baxter - driver fell asleep at wheel and caused severe injury. He was at fault. Obiter dicta that if bees attack while driving you’re not at fault
Original precedent ⁉️‼️⁉️
Donoghue v Stevenson - woman was ill because decomposed snail in drink. She couldn’t sure cafe for breach of contract (she didn’t buy the drink) or negligence (they didn’t make the drink). Could sue the supplier - lord Atkin said that if the supplier makes something knowing it will reach the ultimate consumer in the same way without inspection and it causes harm, they are liable.
Grant v Australian knitting mills - guy got dermatitis from underwear containing sulphites. Succeeded in his cases for breach of contract and negligence, rolling the principles set out in donoghue v stevenson
Departing from precedent 😜⁉️⁉️
London Street Tramways v London City Council - court is bound by its previous decisions. 2009, HoL changed to the Supreme Court
The practice statement 🫑
Basically. Judicial precedent is important, but it should be used in cases where it doesn’t work. Sticking to precedent may prevent laws from properly developing, but courts must take into account the consequences of departing from precedent - there’s a need for certainty. This only affects the House of Lords
Herrington v British Railways Board
Court changed its previous judgment - b4 it was that even if a train company was reckless and caused injury, they were not liable. This was changed in 1972 when more children traveled on trains. You can’t depart from precedent for no readon
Departing from precedent criminal cases
Anderton v Ryan (stolen cassette found in house with no evidence she bought it knowing it was stolen, objective innocence) overruled by Shivpuri (man thought he was pain £1000 to smuggle drugs but the case was clean, he had confessed and he was ok with committing a crime. He believed he was committing a crime and was therefore found guilty even though objectively he was innocent)
R v R changed the law on marital rape
MPC v Caldwell - employee got drunk and started a fight, argued that he was intoxicated. Caldwell’s Recklessness = acts with obvious risk but doesn’t recognise it. This was overruled by R v G & R where young boys set fire to newspapers and put them in a bin causing £1 million in damages. Not guilty as they were too young to know the risk
Young v Bristol Aeroplane Co
CoA is bound by EuCJ. Must follow their own precedent with 3 exceptions:
- decision was overruled by a higher court
- conflicting decisions - they choose one and stick to it
- per incuriam - grave mistake. They can ignore the decision
Avoiding precedent. 😈🆘⁉️
Distinguishing = spot as many differences as possible - Balfour v Balfour & meritt v meritt
Overruling - different case states that the earlier case is wrong and should not be followed
Reversing - higher court overturns a lowe court’s decision on the same case - basically just appealing
Advantages and disadvantages of judicial precedent.
Adv = certainty, consistency, laws can change over time, efficient bc use already established precedent, departing from precedent prevents injustices, set hierarchy means courts know what to follow
Disadv = rigid& slow in growth, departing from precedent means it’s in inconsistent, judges may be unwilling to depart from precedent which leads to injustices, precedent may be outdated, not many cases reach the Supreme Court so not many opportunities for change
