Judicial Precedent Flashcards
(40 cards)
Define doctrine of precedent
Following decisions of previous case especially higher court. Based on stare decisis, meaning stand by what ya been decided and don’t unsettle the established
What’s an example of the doctrine of precedent
Automatic telephone and electric co ltd v registrar of restrictive trading agreements (1965)
Court of appeal had made a decision in Schweppes ltd registrar of restrictive trading agreements (1965) on discovery of documents. One judge (Wilmer LJ) disagreed with other two. Same point arose in aforementioned case on same day and now the judges did not disagree as Wilmer bound by precedent
What’s original precedent
A decision on a point of law never been decided before
What’s binding precedent
A decision in an earlier case which must be followed in later ones
What’s persuasive precedent
A decision which a judge doesn’t have to follow in later cases but might decide to (ie R v R (1991) HoL followed CoA in which man is guilty of raping wife )
What happens in reference to Decisions of the Judicial Committee of the privy council
Not part of England and Wales hierarchy so decisions not binding but many judges SC members so respected and maybe be followed, ie law on remoteness of damage in fort law and the decision made by P C in Wagon Mound (no.1) (1961)
More recent example: a-g for Jersey v Holley (2005) PC ruled defence of provocation a defendant should be judged by standard of ordinary self control. In cases in 2005/6 CoA followed PC decision
What does obiter dicta mean
Statements made in a judgment that were not part of law in deciding case, ie HoL in R v Howe (1987) ruled duress not a defence to murder, obiter dicta used to say it wouldn’t be available as attempted murder defence. R V Gotts (1992) tried to use defence of duress but courts used obiter dicta from previous case
What’s a dissenting judgment
A judgment given by a judge who disagrees with the reasoning of the majority of judges in the case
Points in the doctrine of judicial precedent
Every court is bound to follow any decision made by court above it in hierarchy and appellate courts generally bound by past decisions
What are the two exceptions of lower courts being bound by higher ones
1) where there is a decision of the coj of EU when English courts have to follow that decision
2) cases involving human rights, as they need judgments opinions and decisions of EU court of human rights
What’s the court hierarchy in civil cases
SC CoA (civil division) Divisional courts (family chancery) High court County court Magistarates court
Criminal case court hierarchy
SC CoA (crim division) Queens bench divisional court Crown court Magistrates court
Courts, courts bound by it and courts it follows?
SC: all other courts in English legal system: EU court
CoA: itself with some exceptions, divisional courts and all lower courts: EU court
SC court
Divisional: itself with some exceptions, High court, all lower courts
High: county and magistrate (doesn’t have to follow other high court judges decisions but usually will, seen in Colchester estates (Cardiff V Carlton industries plc (1984) held were two conflicting decisions held then provided first decision has been fully considered then later one will be followed): EU, SC, CoA, divisional courts
Crown court: possible magistrates: all above courts
County court: possible magistrates: all above courts
What is the practice statement
1966 lord chancellor issued a practice statement announcing a change to the rule of being completely bound by past decisions in ‘London Street Tramways V London County Council’ saying ‘they therefore proposed to modify their present practice and while treating former decisions of this house as binding, to depart from a previous decision when it appears right to do so’
What case happened in 1898 and what happened
London street tramways V London county council, HoL bound by previous decisions, certainty of law decided as more important than potential hardship caused by it to an individual
What happened in 1966 that’s relative to judicial precedent
Me Practice statement, HoL will depart from previous decisions when ‘right to do so’ however phrase is vague and gives little detail about when specifically to use it. HoL reluctant to sue it
What happened in 1968 in regards to the practice statement
First use of statement in Conway V Rimmer (1968) on a technical point on document discovery
What happened in 1972 in regards to the practice statement
First major use in Herrington V British Railways Bosrd which involved duty of care owed to a child trespasser. Previous case (Addie V Dumbreck (1929) decided occupier of land would only have duty of care for child trespasser if injuries happened delibarelty or recklessly but in Herrington lords decided social conditions changed so law should too
What happened in 1973 in regards to PS
Knuller (publishing, printing and promotions) Ltd v DPP, certainty in law was important and PS would not always be used, Lord Reid saying ‘our change of practice in no longer regarding previous decisions as absolutely binding does not mean whenever we think a previous precedent was wrong we should reverse it. In the general interest in certainty of law we must be sure there is some very good reason before we so act’
What happened in 1986 in relation to the practice statement
R v Shivpuri. First criminal use of PS, overruled a decision made in Anderton v Ryan (1985)
What happened in 1993 in relation to the practice statement
PS used to allow courts to view Hansard for statutory interpretation purposes
Give another example of a major use of the PS in the criminal system in 2003
R v G (2003), HoL overruled previous decision in Metropolitan police commissioner v caldwell (1982) on law of crim damage. In Caldwell it was ruled recklessness included the situation where defendant hadn’t realised the risk of his action would cause damage but an ordinarily careful adult would. R v G held that this was the wrong test to use, and the defendant is only reckless is he realises there’s a risk and does it anywya
What happened in 2009 to the House of Lords
Replaced by Supreme Court
What Act gave SC same power as HoL
Constitutional reform act 2005
