Precedents Flashcards
(16 cards)
What is original precedent ?
Law made by judges originating entirely from judicial precedent
Case for original precedent
R v R - attempted rape on wife made a crime
What is persuasive precedent
Judgment do not have to be followed but could provide good law for judges to be followed
Where does persuasive precedent come from ?
1) Courts lower in hierarchy
2) Statement in obiter dicta
3) decisions of courts in other countries
What year was practice statement introduced and by who
1966 - Lord Chancelor
What does practice statement allow ?
House of Lords to depart from previous decisions where it appears right to do so
Who does practice statement apply to
Only Supreme Court
Criminal cases explaining practice statement
Shivpuri 1986 overruled Anderson
A mistaken belief D was committing an illegal act but innocent but can be liable for a tremor even if act wasn’t illegal
What happened in shivpuri?
Shivpuri was caught by customs officers in possession of a suitcase he believed contained illegal drugs. The suitcase contained harmless vegetable matter. Shivpuri confessed he thought he was dealing with illegal drugs and intended to distribute them.
POL- The House of Lords held that a person can be guilty of attempting to commit a crime even if the completion of the offence is impossible, as long as they have the intention and take steps more than merely preparatory toward committing the offence.
What happened in Ryan v Anderson?
Mrs. Ryan bought a video recorder, believing it to be stolen. Later, during a police investigation (about an unrelated matter), she admitted this to the police. However, it turned out the video recorder was not actually stolen.She was charged with attempting to handle stolen goods
POL- The House of Lords quashed the conviction, ruling that you cannot be guilty of attempting to commit an offence if the full offence was factually impossible — i.e., there was no crime to attempt because the goods were not stolen.
What are two avoiding precedent techniques
Overrule
Distinguish
What does overrule mean and give a case
Higher courts can overrule lower courts if they consider principle to be wrong
Anderson v Ryan
Overruled by Shivpuri
What does distinguish mean and give example
Lower courts able to point to material differences that justify application of different principles
Balfour v Balfour distinguishing in Meritt v Merrit
Advantages of judicial precedent
1) encourages consistency and enables people to fully understand law
2) Practice statement allows law to develop and adapt to keep up with modern society
3) new laws can be created to deal with difficult and new dillemas
Case to support advantage of judicial precedent
Airedale NHS trust v Bland -
Disadvantages of judicial precedents
1) System cannot initiate change as it has to wait for a case to come before the courts
2) Judges less likely to be representative of general public
3) Judgements long and unclear so finding RD is hard
