Unit 5 - The Doctrine of Precedent Flashcards

1
Q

what is the latin name for doctrine of precedent

A

stare decisis

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2
Q

what is the criteria for precedent?

A

a proposition of law

part of the ratio decidendi of a case

decided in a court whose decisions are binding on the present court

there are no relevant distinctions between the two cases

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3
Q

what are the reasons for having doctrine of precedent?

A

consistency and clarity

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4
Q

what is a proposition of law?

A

proposition must be one of law not fact

a good way to distinguish whether something is fact is consider whether it can be proved/inferred from evidence

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5
Q

what is the ratio decidendi?

A

forms part of the judgement of a case

the reason for the outcome of the case

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6
Q

how to decide the ratio decidendi

A

decide the material facts

state the relevant law

apply the law to the facts

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7
Q

narrow and wide ratios

A

narrow ratio - more specific facts are considered relevant

wide ratio - the more general the statement of facts, the greater the number of subsequent cases will be caught by the principle

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8
Q

what are the difficulties in finding the ratio?

A

very old cases may state no reason for their decision

not all the reasons given for a decision are essential

a subsequent case may decide there was more than one ratio

judges may have reached same decision for different reasons

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9
Q

what is the obiter dictum

A

a proposition of law which is not necessary for the conclusion

the remainder of the judgement that isn’t legal reasoning

obiter if its wider than necessary to decide a particular case

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10
Q

what counts as being obiter?

A

DISSENTING JUDGEMENT

if it is wider than necessary to decide a case

if the judge speculates about the decision they may or may not have made on different facts

if the judge says what his or her decision would have been if they were not bound by precedent

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11
Q

who binds whom?

European Court of Justice

A

not bound by its own previous decisions - doesn’t have concept of precedent

does usually explain itself when it has departed from a previous decision

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12
Q

who binds whom?

Supreme Court

A

binds courts below but not itself

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13
Q

who binds whom?

court of appeal

A

normally bound to its previous decisions

subject to exceptions:

  • where previous decisions conflict
  • where previous decision has been overruled by supreme court
  • where previous decision was per incuriam
  • where was an interim decision by two judges
  • where one of its previous decisions is inconsistent with European Convention on Human Rights
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14
Q

what does per incuriam mean

A

‘through carelessness’

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15
Q

who binds whom?

High Court - appellate jurisdiction - Divisional court

A

bound by its own decisions

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16
Q

who binds whom?

decisions of individual high court judges

A

binding out county courts

not bindin gon other high court judges

17
Q

who binds whom?

crown court

A

not bound by previous decision

strongly persuaded by them

18
Q

who binds whom?

inferior courts - magistrates, county court, family court

A

do not bind any courts

are not bound by their own decisions

19
Q

why inferior courts not bound by themselves?

A

decisions are all first instance

only one judge hears a case in the county court

magistrates - decisions made by lay magistrates - not legally qualified

  • hundreds of inferior courts in the country
20
Q

what does distinguishing cases mean?

A

the material facts of the current case must be different from the binding (previous case)

on a point of fact or law

21
Q

what are the other ways of avoiding precedent?

A

overruling

departing

reversing

22
Q

what does overruling mean?

A

principle laid down by lower court declared incorrect by higher court in a later case

higher court sets correct new precedent

23
Q

what does departing mean?

A

a court can depart from an earlier case

usually occurs when house of lords practice statement is used

24
Q

what is the house of lords practice statement?

A

saying that the supreme court can depart from previous decisions

25
Q

what does reversing mean?

A

decision of the court in a same case is altered by a higher court on appeal

26
Q

what are persuasive decisions?

A

the decisions of non-binding courts

obiter dicta

decisions of the privy council - members are usually same as supreme court

decisions of foreign courts

decisions of European court of human rightd

27
Q

what is the impact of the human rights act 1998 on the doctrine of precedent

A

courts and tribunals of England and Wales must take into account all relevant judgement, decisions, declarations and opinions of the European Court of Human Rights, The EU commission and the Committee of ministers of the Council of EU

28
Q

advantages of precedent

A

certainty and consistency