The Legal System Flashcards
(34 cards)
what is judicial precedent
the legal principle that decisions of higher courts are binding on lower courts
what does stare decisis mean
let the decision stand
point of law established in previous cases should stand
lower court will follow the decision
what does stare decisis promote
fairness and cerntainty
what does ratio decidendi mean
reasons for the decision
the explanantion for a decsion is known as ratio
helps judges see how a decision was made
what is meant by obiter dicta
other things said
its the reasoning and discussion not part of the ratio
often hypothetical discussions
NOT BINDING PRECEDENT
supreme courts are not bound by their previous decisions but when must they take other courts decisions into account?
IN HUMAN RIGHTS CASES
section 2 of human rights act 1998
must take into account decisions of the European court of human rights
hierarchy of criminal courts
supreme court
court of appeal
crown court
magistrates court
hierarchy of civil courts
supreme court
court of appeal
higher courts of justice–family chancery and queens bench
county courts
what are the 3 types of legal personnel
barristers
solicitor
legal executive
what is a colletive of barristers known as
the bar
what is the name of the professional body that controlls the bar
the general council of the bar
name the four inns of courts
lincolns inn
grays inn
inner temple
middle temple
when barristers are self employed working for the bar they usually sit in….. of…..
chambers of 15-20 barristers
what is majority of barristers main role
advocacy
what is meant by full rights of audience
can present cases in any court in england and wales
which specialist barristers rarely appear in court
tax and company law
when was practice statement brought in
1966
what case was first use of practice statement and outline it?
Herrington v British railway boards 1972
-A six year old boy was electrocuted and suffered severe burns when he wondered from a play park onto a live railway line.
- part of the fence had been pushed down and the gap created had been used frequently as a short cut to the park.
-The defendant was aware of the gap in the fence which had been present for several months
- Under existing authority of Addie v Dumbreck no duty of care was owed to trespassers.
-However, the House of Lords departed from their previous decision using the 1966 Practice Statement and held that the defendant railway company did owe a duty of common humanity to trespassers.
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what are law reports?
who writes them, why they needed and whats in them?
-accurate records of precedents
-written by specialist lawyers
-ratio decedi and obidicter included
-used to find and apply precedents
what is binding precedent and 3 rules?
precedent from earlier case must be followed
rules
1. even if judge doesn’t agree
2.facts of case one must be similar to case 2 (significantly)
3. court of case1 must be higher than case 2
what is original precedent and what’s the rule
If a point of law has never been considered before, then whatever the judge decides will form Original Precedent (new case law) for other judges below them in the hierarchy to follow.
RULE: There is no past case law on which they can base their decision, so the J is creating case law for future judges to follow
persuasive precedent
previous law which is not binding
-can be considered and used but not necessary
list 3 advantages of judicial precedent
certainty
consistency
detail and precision
flexibility
time saving and practical
restricts arbitrary power
list 3 disadvantages of judicial precedent
rigidity
bulk and complexity
illogical distinctions /over subtlely
slow growth
