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Flashcards in Judicial Precedent Deck (13)
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1
Q

What is judicial precedent?

A

Source of law where the past decisions of judges create law for future judges to follow in similar cases

2
Q

What is ‘stare decisis’?

A

Stand by the decisions of past cases

3
Q

What is binding precedent?

A

A statement of law from an earlier case which must be followed even if the judge in current case does not agree with the law

4
Q

When is a binding precedent created?

A

When the facts of the second case are sufficiently similar to the precedent and the decision was made by a court which is senior to

5
Q

What is the court hierarchy?

A

Both

Supreme Court
Court of appeal
High court

Criminal
Crown court
Magistrates

Civil
County court
Tribunals

6
Q

What is persuasive precedent?

A

A persuasive precedent is one which the court will consider and may be persuaded by but doesn’t have to be followed

7
Q

What are the sources of persuasive precedent?

A
  1. Courts lower in the hierarchy that the court hearing the appeal. Example is R v R where the House of Lords were persuaded to follow the same reasoning as court of appeal in deciding that a man could be guilty of raping his wife.
8
Q

Another source of binding precedent?

A

Statements made orbiter dicta. An example is R v Howe that duress could not be a defence to attempted murder m. Was followed in R v Gotts

9
Q

Another source of binding precedent?

A

The judge who disagreed will have explained his or her reasons. Also called a dissenting judgement

10
Q

What is original precedent?

A

If point of law has never been deciding before, then whatever the court decides will form a precedent. An example is Donogue V Stevenson

11
Q

What are the main features of judicial precedent?

A
  1. Law reporting to publicise a judgement and to ensure an accurate and authorised record of the reasons for decisions. For example of all the England law reports and LexisNexis
12
Q

What is overruling?

A

Precedent set by a lower court is said by a higher court hearing a separate case to have been wrong

13
Q

What are the advantages of precedent?

A
  • Creates certainty
  • Allows lawyers to advice clients
  • Judges are impartial and basing their decisions on legal rules