Judicial Precedent Flashcards
What does stare decisis mean?
Stand by the decisions of past cases.
What is a binding precedent?
A statement of law from an earlier case which must be followed even if the judge does not agree. A binding precedent is only created when the facts of the second case are sufficiently similar to the precedent and the decision was made by a court higher than the one currently hearing the case.
How does precedent work with the court hierarchy?
Tells judges who/ what they should follow. Usually every court is bound to follow relevant past decisions by courts above it in the hierarchy.
What are law reports and why are they necessary?
A system of reporting the cases that come before the court so that lawyers and judges in later cases can refer back to the relevant statements of law.
It is needed to publicise a judgement and to ensure that there is an accurate and authorised record of the reasons for decisions.
What are 2 examples of law reports?
All England law reports
LexisNexis (a computerised database)
What does persuasive precedent mean?
A persuasive precedent is one that the court will consider and may be persuaded by, but which does not have to follow.
What is a ratio decidendi? What is its status?
Reason for deciding.
The principles of the law the judge uses to decide who wins. It is the ratio that creates a binding precedent for judges to follow in later cases.
What is an example of a ratio decidendi?
The binding principle in R v HOWE (1987) that duress could not be a defence to the crime of murder because the law should not allow one person to decide that their life is more important than another’s.
What is an obiter dicta? What is their status?
Other things said.
These comments are not vital to the outcome of the case and are often discussions of hypothetical situations. It is not binding though judges could be persuaded to follow it in reaching a decision.
What is an example of an obiter dicta?
The comment in R v HOWE that duress could not be a defence to the crime of ATTEMPTED murder.
What are two more types of persuasive precedent that could be taken into account?
a. Courts lower in the hierarchy than the court hearing the appeal.
b. Statements made obiter dicta.
What is overruling?
Overruling is where a precedent set by a lower court is said by a higher court hearing a separate case to have been wrong. The earlier case ceases to be a precedent for any point of law.
What is distinguishing?
When a court of any level finds a difference in the material facts between the case it is hearing and a precedent. As a result the court may refuse to follow the precedent.
What is an example of distinguishing?
EVANS v TRIPLEX SAFETY GLASS (1936) and
DONOGHUE v STEVENSON (1932)
Which courts can overrule which other courts?
The Supreme Court can overrule any decisions made by lower courts, as well as its own past decisions (Practice Statement 1966).
The court of appeal can overrule the high court and courts below it, but is bound by its past decisions.
