Judicial Precedent Flashcards
(22 cards)
Describe
Stare Decisis
5 bullet points
Apart of JP - Principles Question
- To stand by what has been decided.
- Once a precedent has been decided, it should be used in future cases of similar facts
- Legal reasons for deciscion (ratio decidendi) apply.
- Based of the court heirarchy, where higher courts bind lower courts.
- Relies on law reports, to find previous ratio decidendi, judgement and obiter dicta.
Describe
Ratio Decidendi
R v Howe, R v Brown, 4 bullet points
Apart of JP - Principles Question
- The reason for the deciscion.
- The legal principle and binding element, which will apply in future cases of similar facts.
- Some complex cases have more than one ratio decidendi.
- Any by lower courts is persuasive precedent for higher courts.
R v Howe - RD is Duress is not a defence to murder R v Brown - RD is Consent only defence to assault or battery
Describe
Obiter Dicta
Gotts to Howe, Wilson to Brown, 3 bullet points
Apart of JP - Principles Question
- Other things said in the judgement.
- Not binding but can be persuasive precedent in future cases.
- If used in another case it becomes the ratio decidendi in the new case.
R v Gotts followed Obiter Dicta of R v Howe, that duress is not a defence to attempted murder. R v Wilson followed Obiter Dicta of R v Brown, that consent can be a defence to tattooing and other related acts.
Introduce
Precedent
2 bullet points
Apart of JP - Type of Precedent
- Legal principle decided in the case, and should be follwed in the future.
- Judges follow previous deciscion of higher courts in cases with similar facts
Describe
Binding Precedent
Gotts to Howe, 5 bullet points
Apart of JP - Type of Precedent
- Ratio Decidendi of the case.
- It is binding on all future cases of similar facts.
- Lower courts bound to follow higher court precedent
- Some cases have more than one Ratio Decidendi.
- The Obiter Dicta of another case, becomes binding precedent if used in future case.
R v Gotts followed Obiter Dicta of R v Howe - Duress is not a defence to attempted murder.
Describe
Original Precedent
R v R, Donoghue v Stevenson, 3 bullet points
Apart of JP - Type of Precedent
- Set when there is no precedent on a area of law.
- Becomes binding in all future cases of similar facts.
- Usually made through Reason by Analogy.
R v R - Created principle that marrital rape is a crime, driven by social change for womens rights. Donoghue v Stevenson - The ratio decidendi created neighbour principle for duty of care in Negligence
Introduce + Describe
Persuasive Precedent
Lower Court Deciscion
Obiter Dicta Statement
Judicial Committee of Privy Council
Courts of other Countries
R V R, Gotts to Howe, Wagon Mound, R v Bentham
Apart of JP - Type of Precedent
- Not binding but can be considered when deciding a case.
Lower Court Deciscion
Higher Judge may use earlier deciscion from lower court to form precedent.
R v R - HOL agreed with COA, that man can rape his wife,
Obiter Dicta Statement
Statement made by judges in higher courts can be used as precedent.
R v Gotts followed Obiter Dicta of R v Howe - Duress is not a defence to attempted murder
Judicial Committee of Privy Council
In session with commonwealth, Supreme Court judges sit and make deciscions, which can be used.
Wagon Mound - Created rules on remoteness, now the main case for this law.
Courts of other countries
With same principles behind common law, other countries decisons or law (mainly west/commonwealth) can be persuasive.
R v Bentham - Judge used US Law on fake guns in crime.
Describe
Avoiding Precedent - Supreme Court [1]
Before 1898 -
London Street Tramways v London County Council [1898] -
Practice Statement [1968] -
First Major Use [1972] -
London Street Tramways v London County Council 1898,Conway v Rimmer 1968
BRB v Herrington [1972], Addie v Dumbrek - Apart of JP - SC Avoid Precedent
HOL had right to change and avoid own past precedent, with lots of flexibility.
Certainty within law is more important than individual hardships, up to 1968 bound by past deciscion unless they were per incurium.
Agreed HOL should have more flexiblity, can avoid own precedent, when it was right to do so, used sparingly.
Conway v Rimmer - Only used to cover a technical point.
HOL used PS to overrule decisicon in Addie v Dumbrek, that a duty of care was owed to child tresspassers.
Describe
Avoiding Precedent - Supreme Court [2]
First Use in Criminal Law [1986]
Modern Use [2008]
2010
R v Shivpuri-Anderton v Ryan, A v Hoare-Stubbings v Webb,
Constitutional Reform Act 2005, Practice Direction 3,4 , Practice Statement 1966, Austin v Southwark
R v Shivpuri - HOL used PS to overule decision in Anderton v Ryan, that a person can be guilty of attempting the impossible.
A v Hoare - HOL used PS to overule deciscion in Stubbings v Webb, that in sexual offences there is no time limit to claim damages.
Constitutional Reform Act 2005, Practice Direction 3,4 - Transferred appellate power from HOL to SC, unsure if Practice Statement 1966 would transfer
Austin v Southwark - Made it clear that Practice Statement applies to SC.
Introduce
Avoiding Precedent in the COA
Young v Bristol Aeroplanes - Three Situations from this
Apart of JP - COA Avoid, 3 bullet points
- COA is bound by it’s own deciscion.
- Each Division is bound to their own deciscion, but not to eachother.
- Unless
Young v Bristol Aeroplanes - One of these situations have to apply. 1) The deciscion was 'per incurium' 2) Two conflicting past COA deciscions, judges choses which to follow. 3) Later Deciscion of Supreme Court
Explain
Cases in COA Avoiding Precedent
Davis v Johnson, Rickards v Rickards, R v Gould
Apart of JP - COA Avoid
Davis v Johnson - HOL confirmed COA justified in refusing to follow past precedent, if case involves a manifest error. Rickards v Rickards - COA overuled their previous wrongly applied law using the per-incurium exception. R v Gould - Criminal Division, has additional power to avoid past precedent, if the previous law had been applied in error.
Explain
Over-Ruling
Hedley Byrne v Heller Partners - Candler v Crane, 2 bullet points
A v Hoare - Stubbings v Webb - Apart of JP - Other Way of avoiding Precedent
- Higher court overules decision made by lower court, or their own decisicon.
- A new precedent is set that affects all current and future cases.
Hedley Byrne v Heller Partners - HOL overuled COA desciscion in Candler v Crane, stating that you can sue for negligent mistreatments. A v Hoare - HOL used PS to overule own descision in Stubbings v Webb, that in secual offences, there is no time limit for claiming damages.
Explain
Reversing
Sweet v Parsley, Gillick, 2 byllet points
Apart of JP - Other Way of avoiding Precedent
- Higher Court overturns decision in same case of lower court.
- Higher Courts only use this if lower court incorrecrtly used precedent in a desiscion.
Sweet v Parsley - HoL reversed CoA deciscion, D required knowledge of activity to be convicted. Gillick - HoL reversed CoA deciscion, if child is competent there is no requirement to inform parents of private medical treatment.
Explain
Distinguishing
Merritt v Merritt - Balfour v Balfour, Wilson - Brown
Apart of JP - Other Way of avoiding Precedent, 3 bullet points
- Judge refuses to follow precedent, and will distinguish between two similar cases.
- They will find the difference, and use it to not follow past-precedent.
- Any court can use this method.
Merritt v Merritt distinguished from earlier case of Balfour v Balfour, as the agreement was not intended to be legally binding. Wilson distinguished from Brown, as involved tattooing causing an injury, instead of Sadomasochism causing an injury.
Evaluate
Stare Decisis
- Judicial Precedent follows the rule of Stare Decisis which bring certainty.
- What happens if precedent made in higher court? What does this make the law?
- How was this shown in R v Howe?
R v Howe
Apart of JP - Advantage
- Lower courts have to follow that no matter what, so the law is certain, as someone can always predict that the lower court will be bound by the higher court deciscion and predict the case.
- HoL set that duress is not a defence to murder, the law is certain from this, as you can predict that every lower court in a case of similar facts will follow this precedent.
Evaluate
Avoid Absurd
- Judicial Precedent allows to avoid absurd results.
- What can a higher court do if a lower court makes an absurd decision? What does this remove?
- How is this shown in Sweet v Parsley?
Sweet v Parsley
Apart of JP - Advantages
- Higher Court can avoid and reverse the lower decision, making a new decision, which is fair and removed any absurd errors, as the error is reversed and corrected by the higher court.
- HoL reversed CoA decision, unfair to have D be guilty of something they had no knowledge of happening.
Evaluate
Social Change
- Judicial Precedent allows social change to be reflected into the law.
- What can a higher court do if precedent does not match social change? What can this new decision be based on?
- How is this shown in Herrington v BRB? [Child Tresspassers]
Herrington v BRB
Apart of JP - Advantages
- Higher Court can change the existing precedent, or go against the precedent at times, and bring it up to date with modern social change implemented into the precedent, reflecting society.
- HoL used PS to update lae, so occupeirs have duty of care to child tresspassers, which is in line with modern social attitude.
Evaluate
Consistency
- The rigid structure of judicial precedent ensures consistency.
- What is this structure? This means? What can each court know as a result?
- How was this shown in Daniels v White? [Negligence]
Daniels v White
Apart of JP - Advantages
- Set into place with no chance of changing, so the hierarchy will always be the same and the lower courts know that they have to follow the higher courts as a result.
- Courts knew they were below HoL so had to follow precedent for the Negligence, which shows consistency
Evaluate
Certainty
- Judicial Precedent does not allow certainty
- What happens often? What can a higher court always to do a lower court decision? Is this consistent?
- How is this shown in Hedley Byrne v Heller Partners?
Hedley Byrne v Heller Partners
Apart of JP - Disadvantage
- Precedent gets changed often, higher court can always change a lower court decision which will erode any certainty, due to the changes in the precedent, not being applicable to all.
- HoL overuled CoA, changing law on Negligent Mistreatment, no one can predict this would’ve happened in the case, uncertain.
Evaluate
Absurd
- Judicial Precedent does not avoid any absurdity.
- What do lower courts always have to do? Why is this a problem?
- How was this absurd in R v Brown?
R v Brown
Apart of JP - Disadvantage
- Always follow the decision of a higher court, even if the higher court decision will lead to an absurdity, so can’t avoid an absurdity in the lower courts.
- Decided by HoL so all lowers court had to follow it, absurd as not all courts would agree with not allowing consent in SadoMasochism but have to follow the decision, unfair.
Evaluate
No Social Change
- Judicial Precedent does not allow social change to be reflected in the law.
- What do lower courts always have to do? Any way to change if lower court?
- How is this shown in R v Brown?
R v Brown
Apart of JP - Disadvantage
- Lower follow the higher courts due to binding, so as such, there is no way for the lower courts to ever implement any social changes in the law, as they must follow the higher court always.
- Not allowing consent for serious sado-masochism sex is widely outdated and unfair for consenting adults to not be allowed pain, but this can’t be changed unless another similar case goes to Supreme Court for appeal.
Evaluate
No supremacy
- Judicial Precedent doesn’t uphold P supremacy.
- What can the higher courts do? What does this go against for a judge? How can Supreme Court avoid precedent?
- How was this shown in A v Hoare?
A v Hoare
Apart of JP - Disadvantage
- Higher can change law, but this isn’t their constitutional role, as they are modifying and making law instead of just leaving it to Parliament.
- HoL canged law on time to claim for compensation in sexual offences, this may not be P’s intention, and as such only Parliament should only be able to make the law.
