Judicial Precedent - Types Flashcards Preview

Law - Law Making > Judicial Precedent - Types > Flashcards

Flashcards in Judicial Precedent - Types Deck (18):

What is a binding precedent?

E.g. a ratio decidendi in a judgement, is set by a court and must be followed in future cases of similar facts by all courts below and sometimes by a court at the same level, even if the judge in the later case doesn’t agree with the legal principle.


What is a persuasive precedent?

A decision that isn’t binding on a court and so doesn’t have to be followed in future cases, but judges may be persuaded to follow it. It comes from a number of sources.


What is the first example of persuasive precedent?

Obiter dicta (other things said) statements in judgement as in Howe – ratio decidendi was that duress can’t be a defence to murder. The obiter dicta also said this. Followed in Gotts as a persuasive precedent when the D tried to argue the defence of duress to attempted murder.


What is the second example of persuasive precedent?

Dissenting judgement. A judgement given by a judge who disagrees with the majority of judges in a case that has been decided by a majority e.g. 2 to 1 - Rose and Frank v Crompton HoL followed a dissenting judgement in the CoA.


What is the third example of persuasive precedent?

Decisions of lower courts. R v R – HoL followed CoA reasoning in deciding that a man could be guilty of raping his wife.


What is the fourth example of persuasive precedent?

Decisions of courts in other countries that use our common law
E.g. Commonwealth countries like Canada and Australia.


What is the fifth example of persuasive precedent?

Decisions of the Judicial Committee of the Privy Council. Members include SC judges – The Wagon Mound (No.1), established the law on the remoteness of damage in the tort of negligence.


What is the sixth example of persuasive precedent?

Decisions of the European Court of Human rights


What is original precedent?

A new precedent that is made when the point of law in a case has never been decided before. There are no past cases for the judge to base a decision on, he is likely to look at previous cases which are closest in principle “by analogy”.


Which case applies to original precedent?

Airedale NHS Trust v Bland – HoL made original precedent legalising “passive euthanasia” when deciding that medical treatment could be withdrawn from Anthony Bland, who was in a vegetative state following the Hillsborough disaster in 1989.


What is overruling?

In a later case a court states that the legal rule in the previous case is wrong.


What is the first method of overruling?

Higher court overrules a decision made in an earlier court case by a case in lower court e.g. HoL in Hedley Byrne v Heller O/R CoA decision in Candler v Crane Christmas.


What is the second method of overruling

A court can O/R a decision of its own made in the previous case, e.g. Supreme Court under 1966 House of Lords Practice statement and CoA under Young v Bristol Aeroplane exceptions.


What is reversing?

Only occurs in the specific case being appealed – its where the court hearing the appeal disagrees with the court below and so O/R’s it.


Which case applies to reversing?

Gillick v West Norfolk & Wisbech Area Health Authority – HoL reversed decision of CoA (doctors can to prescribe contraceptives to girls under 16 without parental consent.


What is distinguishing?

Available to any judge, allowing them to avoid precedent. Occurs when the judge regards the facts of the case he's hearing as different to the one in which the precedent was set, so it's not bound to follow precedent.


Which is the first case that applies to distinguishing?

Balfour v Balfour – binding precedent set by CoA (verbal agreement was not a legally binding contract). The decision was distinguished by CoA in later case Merrit v Merrit.


Which is the second case that applies to distinguishing?

Merrit v Merrit – due to factual the differences that the husband and wife were separated when the agreement was made, and it was made in writing so the contract was more than a domestic arrangement as there was a legally binding contract.