judical precedent Flashcards
describe stare decisis
Judical precedent means decision of judges in past cases creates law for future judges to follow.
stare decisis= stand by your what has been decided
case = dodnoghue v stevenson: found a decomposing snail in her drink, d.o.c owed by manufactors to consumers. created 2 predents:
narrow ratio;any manufactor oweds a d.o.c to their end consumer allowing donoghue to sue manufactors.
wide ratio;everybody owes d.o.c to neighbour (anyone hurt by our actions) called the neighbour test, d.o.c towads neighbour is binded
ratio stands for reasoning of decision often a point of law which future judges have to stnd by.
hierachy o courts which decided who the precedeng is binding on , ratio created y higherr coruts binding on loweer courts eg sc binding on coa
stare decisi thereofre means stand by what ahs been decided and do notbunsettle the established me sing lower corurt cant change whats bindimg on them.
ratio decidendi
ratio decidendi = part of law that must be followed , ratio stands for reasoning behind the decision, precedent can olu operate id reasons for past decison are knowm, at the end of a case judges explain primciples of law used to come to the decision
case = donoghue v stevenson found a decompsing snail in her drink taht her friend nrought her , narrow ratio used to decide that manufa tores owe a d.o.c to consumers
wide ratio; must take reasobale care to neighbour to not cause any harm (neighbour test)
two things make iy bndimg , craeted by a vourt higher than them and if cases have very similar facts
obiter dicta
obiter dicta = translates to other things said ny the judge , the remainder of the judgmengt , judges in future cases are not bound to follow it e.g specualtions
called persuasive precedmet , judges may consider it decide that it is correct and be persuaded to follow it
example; courts lower in the hiercajhy ; higher courts not binded to follow however higher court could be perusafec by case in lower court seen in r v r where h.o.l agreeed with coa in deciding that man can be guilty for rapimh jis wife
decisions od courts in other countries ; eg australia new zealnd and canada
case; basley v crook which was about possession of firearm court considered whether to follow candian cse lister v hesely hall but decide d not to
statemnets made in obuter dicta if the coiurt is not boud by a cases fratio it may decide to loook at the obiter difta esp if the case was decided by tye sc or hol
; r v howe
ratio; duress nota defence to a chatger of murder
obiter dicta; defence should not be avaliable to those who attempt mjrder
this was then followed in r v gotts where attempted mjurder tried to argue duress
binding predent
biding predent; precedet that must be followed and is binding on the couirt itself and courts lower it
2 thigs make it bindimg, same cases and lower in the hiercahy
case = donogue v stevenson; use of narrow ratio manufactors awe a d.o,c to the end cosnumer , allowimh dooghue to sue teh amunfactors dfor a eecompsing snail in her drink
ratio in howe: dutess not a defence to charge or murder decided by hol so bindig on every simgle court below it and sc itself
original precedent
o.p = point fo law never been decided before , no predent to follow so judges will try to follow primcipal of similar previous cases (reasoning by anology)
case=hunter v canary wharf; loss of tv reception reasoned by aology with alfreds case whoch was a loss of view , not a nuisance so case was lost but nrext closest thing
point of law which judges decided will for, a new precedent
case = dpp v smity; ex bf cuts odff gfs hair whilsy ahe ia sleeping withoyt consent , classed as abh asw court decided hair is an extension od body npw binding on future cases as ratio is abh which is a legal reasoning abh includes damaging not just harm
distinguishing
binding precedent is a precedent which must be followed as it comes from a higher court and yas similar facts
distinguishing: used to avo0id a precdent,
judge must show there is a diiferent in material facts of both cases, if the cases are sufficently diiferrent the judge isnt bound to follow it and a fresh precedent may be set.
case: balfour v balfour and merit v merit, in both cases wifes sued hisbandf for breach of contract as stopped sending money married not sepreating only went abroad , however in b v b claim failed as it was a verbal agreement so not lgeally binding , in m v m contract was wriyten agreement as they were separtinga nd provided for her future , claim succeded
overuling
when a hugher court disgarees with a decison made in a lower court inna case wuth simiar facts, to do with a legal principle. higher court can cahnge the primciple and must be followed in the future by lower courts and the court itsdelf.
supreme court has the powere to reverse precdent set by lower courts eg ca and itslef using the practise statement 1966.
case: brb v herrington overuling addie v dumbreck;
av d: ratio; no d.o.c owed to trespassers including children overuled by brb v ehrrin gton; decided taht d.o.c oweed to child tresppasers as children cant take care of themselves after child in jured on railway tracks
reversing
case is appeleas to an higehr court and a diff decsion is made, typically after the first or second appeal
case: sweet v parsley; hol supreme court reversed a decison od the ca , found d not guilty as mens rea couldnt be proved
tomlinson v congleton; ca decidec occupier was liable for injuries of tresspassers after he ignored signs and dived into lake, sc reversed this and so tresspassers claim failed.
can only happen if court hearing the appeal disagrees with the reasoning oc the decision made by a court below it.
powers of supreme court
sc highest court in the hiearchy, prevosulybknow as hol until 2009 until powers of uk tarbsafeerred to sc
WHEN IN EU sc had to followed precdednet o ccourt of justice but no longer since 202 leave of brexit
decisiosn of sc bind any crim/civil courts belownit eg ca and divisonal court
sc has power to overule any precdent set by courts lwoer than thme.
in 1898 london street case decided that sc bound by its own past decisonjs however this changed in 1966 when hol issued the ps stating they can overule their own past decisonswhen it appaers right to do so
can ahppen in both crim and civilm courts
case: addie v dumbreck overuled by brb v herrington overuling decison that no doc owed to tresppaser with doc owed to child trespassers
crim; r v shipuri; overuled anderton v ryan about whether crim attempt occurs where actual crime is impossible
powers of ca
court of appeal is below sc , bound by decisons of courts above it as well as the past decisons of ca only within the same divison eg crim or civil
can only be persuaded not binded by each others precedents
case re a (conjoine twins) ; decided in civil division as mostly concerned with famoly law, questiom was whether operation can be performed without consent, but also raised crim div questiosn of whteher drs wud be guilty for murder of weaker twon , given defence of nessitty
3 exceptions to rule of bound by past decsion in same division isted in young v bristol aeroplane
1.appeal case, court can choose which case to follow
2.decisonj of sc that effictevly overules csa descion
3.decision made per incuriam , eg carelessly or by mistake
