Judicial precedent Flashcards
(28 cards)
What is judicial precedent?
Refers to the source of law where past decisions of judges create new law for future judges to follow.
What is the doctrine of precedent?
- if there has never been a case like yours before, a judgement made by court would make a new law
- new law is called a precedent and would generally be followed by future courts with similar cases.
What is the definition of Stare Decisis?
To stand by whatever has been decided and do unsettle the established.
Explain Stare Decisis?
- supports idea of justice and fairness and provides certainty in law by standing by past decisions.
- doctrine of precedent means courts must follow decisions of courts above them in hierarchy or their own past decisions.
- Judicial precedent is IMMEDIATE
What is a case example of stare decisis?
Schweppes Ltd Registar of Restricted Trading Agreements (1965)
- decision was made in case of Schweppes Ltd in 1965 with regards to a point of law, within hours the same point of law arose on case of Automatic Telephone.
State what the 3 types of precedents.
- Original
- Binding:
- Persuasive
Explain what an original precedent is.
- if point of law in a case has never been decided before, whatever judges decide in that case will form a new precedent for future cases.
- only on future case with similar facts- its an original precedent
example of this : Caparo v Dickman (1990)
Explain what a binding precedent is.
- precedent from a previous case that must be followed, even if judges disagree with legal principle
- only created when fact of second case are similar to original case
- decision made by a court senior
Explain what a persuasive precedent is.
- not binding on court but judge may consider and decide its correct principle so he is persuaded he should follow it
Come from a number of sources:
- Courts lower in hierarchy
- Decisions of judicial committee of privy council
- Statements made obiter dicta
- dissenting judgement
- decisions of courts in other countries
What is the hierarchy of the civil courts?
- supreme court ( formerly house of lords)
- court of appeal ( civil division )
- divisional court
- high court
- county court
- magistrates’ court
What is the hierarchy of the criminal courts?
- supreme court ( formerly house of lords )
- court of appeal ( criminal divison )
- Kings’ bench divisional court
- crown court
- magistrates’ court
What are the courts bound to, as of the rigid doctrine of judicial precedent?
- every court is bound to follow any decision made by court above it in the hierarchy
- appellate courts are bound by their own past decisions.
When are lower courts in the hierarchy not bound follow decisions by the English Appellant Courts?
- there is a decision from Court of Justice of the European Union, English Courts must follow
- when the case involves human rights
What are the courts of first instance for civil and criminal cases?
Civil:
- high court
- county court
- magistrates court
Criminal:
- crown court
- magistrates court
What are the appellate courts for civil and criminal cases?
Civil:
- supreme court
- court of appeal
- divisional court
Criminal:
- supreme court
- court of appeal
- kings bench divisional court
What do judgements include?
- summary of case facts
- review of arguments put forward
- principles of law used to form a decision
- decision made
- reasons for decision
Define ‘ratio decidendi’ and explain what it is.
‘the reason for deciding’
- principles of law referred to - known as ratio decidendi
- only part of a judgement that forms a binding precedent
Case example: R v Chan Fook (1994) - ratio in this case states that actual bodily harm includes psychiatric injury to vicitm.
How many judges can there be in each court?
- courts of first instance- one judgement
- divisional courts and court of appeal- 2 or 3 judges
- supreme court- uneven number either 3, 5, 7 or 9
Define ‘obiter dicta’ and explain what it is?
‘other things said’
- rest of judgement (everything but principles of law used to form a decision) is known as obiter dicta
- judges in future cases don’t have to follow- not binding on courts
- facts and opinions can be considered in future cases but aren’t followed- known as persuasive precedents
What is the definition of ‘per incuriam’?
made in error
How is the Practice Statement used?
- allowed House of Lords to change law if they believed an earlier case has been decided wrongly
- flexibility to refuse an earlier case when ‘it appears right to do so’
When was the Practice Statement first used in Civil Law?
- in case of Conway v Rimmer (1968) only involved small technical point
- first major use- case of Herrington v British Railway Board (1972) - involved law on duty of care owed to child trespasser.
When was the Practice Statement first used in Criminal Law?
- stressed criminal law needs to be certain, didn’t instantly start overruling criminal judgements.
- First use- case of R v Shivupri (1986) which overruled decision in Anderson v Ryan (1985)
What are the exceptions for which decisions within each division bind to their own division- confirmed in Young’s case?
Civil division:
- conflicting decisions in past court of appeal cases, court can choose which to follow and reject
- decisions of Supreme Court overrules Court of Appeal’s decisions
- decisions made per incuriam
Criminal division:
- same 3 exceptions from Young’s case
- can also refuse to follow past decisions if law has been - misapplied or misunderstood- idea recognised in R v Taylor (1950) and again in R v Gould (1968)
