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Flashcards in Precedent Deck (36)
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1

What is judicial precedent?

Judicial precedent is judge made law, it's where judges previous decisions create law for future judges to follow

2

What is judicial precedent also known as?

Case law or common law

3

What is the system of precedent based on?

'Stare decisis'

4

What does stare decisis mean?

To stand by what has already been decided

5

What is the principle of binding precedent?

The process whereby judges of lower courts apply the decisions set by the higher courts

6

What are the two parts to precedent?

Ratio decidendi
Obiter dicta

7

What is the most important part of precedent?

The ratio decidendi

8

What is the ratio decidendi?

It sets out the legal principle established by the case

9

What case is relevant to ratio decidendi?

Donoghue v Stevenson (1932)

10

What did the case of Donoghue v Stevenson (1932) establish?

A general duty of care in negligence

11

What does obiter dicta mean?

Things said by the way

12

What does the obiter dicta consist of?

Everything else said by the judge which doesn't form the main judgement i.e what would have been his decision were the facts of the case different (in a hypothetical situation)

13

Which part of prevent is binding on judges?

The ratio decidendi, not the obiter dicta

14

What can the obiter dicta act as?

Persuasive precedent

15

What is an example of an obiter dicta acting as persuasive precedent?

In the obiter dicta in R v Howe (1987) the Supreme Court said that they thought the defence of duress should be unavailable for attempted murder as well as murder. In the later case of R v Gotts (1992) the Supreme Court was persuaded by the obiter in Howe.

16

What are sources of persuasive precedent?

Courts lower down in the hierarchy
Decisions from judicial committee of the privy council
Obiter dicta statements
Dissenting judgements
Decisions of courts from other countries

17

What is an example of courts lower down in the hierarchy acting as persuasive precedent?

In R v R (1991) the House of Lords agreed with the ruling if the court of appeal that a man could be guilty of raping his wife

18

What happened in relation to the case of R v R (1991)?

In R v R (1991) the House of Lords agreed with the ruling if the court of appeal that a man could be guilty of raping his wife

19

What happened in relation to the case of R v Gotts (1992)?

In the obiter dicta in R v Howe (1987) the Supreme Court said that they thought the defence of duress should be unavailable for attempted murder as well as murder. In the later case of R v Gotts (1992) the Supreme Court was persuaded by the obiter in Howe.

20

What is an example of a decision of judicial committee of the privy council acting as pressuring precedent?

In the court of appeal cases of R v James (2005) and R v Karimi (2006) the CA followed the decision in A-G for jersey v Holley (2005) instead of a conflicting decision by the Supreme Court in the case of R v Smith (2001) - this is binding precedent and should have been followed

21

What is a dissenting judge?

A judge who disagrees with the majority

22

When may a dissenting judgement act as persuasive precedent?

If the case goes into a further appeal to the Supreme Court or there is a later case on the same point of law that goes the the Supreme Court the judges there may prefer the dissenting judgement and chose to follow it

23

Which countries decisions are most likely to act as persuasive precedent?

Commonwealth countries such as Canada and New Zealand

24

Briefly, what are the advantages and disadvantages of judicial precedent?

Certainty
Consistency
Precision
Flexibility for change
Time saving
Practical

25

Explain the 'certainty' advantage point...

As the court follow past decisions people know what the law is and how it will be applied to their case. This makes it easier for lawyers to advice clients

26

Explain the 'consistency' advantage point...

It is fair and just that similar cases should be decided in a similar way. The law must be consistent if it is to be credible

27

Explain the 'precision' advantage point...

The law is very precise because it is set out in actually cases. It is well illustrated and builds up through different factual variations in cases

28

Explain the 'flexibility for change' advantage point...

There is a scope for the law to change and develop, particularly with the 1966 practice statement. New laws can be made or old ones can be adopted to meet the changing needs of society

29

Explain the 'time saving' advantage point...

Precedent can save time where the legal principle has already been established in a similar case

30

Explain the 'practical' advantage point...

Legal principles are bass on real cases rather than hypothetical situations making it more practical and reliable