English Legal System and Law making - Paper 1 (Judicial Precedent)
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- Created by: chloefyf3
- Created on: 27-06-22 17:27
In theory, what do the doctrines of the separation of powers and parliamentary supremacy determine about judges?
that judges do not make law
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What is the role of the judiciary and what may this need to involve?
to find and declare the law
+
to apply it to the case before them
interpreting the word of statute law
+
to apply it to the case before them
interpreting the word of statute law
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What is common law?
law not written but developed from local customs and judicial decisions
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When a court arrives at a judgement (usually by a majority) what do they have to do?
it has to deliver and explain its decision
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Who delivers and explains the decision and how do they do this?
senior judges
give a speech
give a speech
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What four things does the judgement consist of?
- facts
- ratio decidendi
- obiter dicta
- decision
- ratio decidendi
- obiter dicta
- decision
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What does stare decisis mean and what idea does it underpin?
''stand by what has been decided and do not unsettle the established''
how judicial precedent operates
how judicial precedent operates
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What is the idea of judicial precedent and so how are like cases decided?
that once a judge in one case has decided a legal principle, judges in subsequent cases that are similar must apply the principle in the same way
like cases are decided alike
like cases are decided alike
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Which subsequent case followed the decision of the court of appeal in 'Schweppes Ltd v RRTA' as the issue was the same?
'Automatic Telephone Co v RRTA'
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What is the legal principle set out in the
judgement known as and what does this mean?
judgement known as and what does this mean?
the ratio decidendi
the reason for the decision and sets out the precedent that must be followed by judges in later cases
the reason for the decision and sets out the precedent that must be followed by judges in later cases
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What principle (and what does this mean) was set out in 'Donoghue v Stevenson'?
the neighbor principle (explains to whom a duty of care in negligence is owed)
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Which case followed the neighbor principle of 'Donoghue v Stevenson'?
'Grant v Australian Knitting Mills'
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What kind of precedent is the decision in 'Donoghue v Stevenson' an example of?
binding precedent
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What does binding precedent mean and what is the key idea?
decision must be followed by lower (and sometimes equal) courts in later cases with similar facts
higher courts bind lower courts
higher courts bind lower courts
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Why can it be difficult for judges to establish the ratio decidendi of a previous case?
judgments are often constructed in a very discursive manner from which it is
difficult to extract the essential reason(s) for the decision
difficult to extract the essential reason(s) for the decision
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In which earlier house of lords case could the court of appeal in the case of 'Harper v NCB' not identify the ratio decidendi?
'Central Asbestos Co v Dodd'
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What are two examples of multi judge courts?
the court of appeal
+
supreme court
+
supreme court
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What can there not be if in multi judge courts each judge reaches the same conclusion by different and even conflicting means?
no single ratio of the whole court despite a majority decision
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What is an example of a case where there was no single ratio of the whole court despite a majority decision?
'Esso Petroleum Ltd v Commissioners of Customs and Excise'
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What does obiter dicta mean?
other comments made by a judge in their judgment which do not relate
exactly to the point of the case, or other such things said
exactly to the point of the case, or other such things said
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Is obiter dicta persuasive or binding precedent?
persuasive precedent
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What does persuasive precedent mean?
that such comments are not binding in later cases but judges may choose to take them into account if they wish
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In which case were the obiter comments made by the house of lords on the defence of suress in attempted murder cases in the case of 'R v Howe' applied as persuasive precedent by the court of appeal?
'R v Gotts'
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What three things allow precedent to operate properly?
- a system of case reporting
- a hierarchy of courts
- a method of identifying parts of the judgment, which bind a judge
- a hierarchy of courts
- a method of identifying parts of the judgment, which bind a judge
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Why does precedent need a system of case reporting and what is this also known as?
allows decisions to be recorded in order for future judges to be able to refer back to them
law reporting
law reporting
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Why does precedent need a hierarchy of courts?
so that each court / judge know whose decisions they should follow
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From what century have law reports existed since?
the 13th century
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What two things did law reports lack in the 13th century?
reliability
+
accuracy
+
accuracy
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What was set up in 1865 to make sure accurate records were kept?
the incorporated council of law reporting
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What two other reports were made?
all england series
+
weekly law reports
+
weekly law reports
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What are some databases / free online resources to search for cases?
LexisNexis
+
BAILII
+
the supreme courts website
+
BAILII
+
the supreme courts website
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When is original precedent created and what is a case example that shows this?
where an issue that has not been decided before comes before the court
Hunter v Canary Wharf
Hunter v Canary Wharf
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What may the judge use from a previous case when reasoning?
analogy
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What did the judge compare in
Hunter v Canary Wharf and to what (with which case) to help him decide?
Hunter v Canary Wharf and to what (with which case) to help him decide?
the loss of a TV signal to the loss of a view in Aldred's case (1611)
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What do higher courts bind?
lower courts
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What are appeal courts usually bound by?
their own decisions
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What do superior courts set?
binding precedents
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What are the four appellate courts?
- european court of justice
- supreme court
- court of appeal
- divisional courts
- supreme court
- court of appeal
- divisional courts
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What are the five superior courts?
- european court of justice
- supreme court
- court of appeal
- divisional courts
- high court
- supreme court
- court of appeal
- divisional courts
- high court
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What are the three courts of first instance?
- high court
- crown court
- county and magistrates courts
- crown court
- county and magistrates courts
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What are the two inferior courts?
- crown court
- county and magistrates courts
- county and magistrates courts
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What is the hierarchy of the courts (top to bottom)?
- the european court of justice
- supreme court
- court of appeal
- divisional courts
- high court
- crown court
- county and magistrates courts
- supreme court
- court of appeal
- divisional courts
- high court
- crown court
- county and magistrates courts
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Which courts does the european court of justice bind and on which matters and under which act is this (with section)?
all lower civil courts on EU matters only
s3(1) european communities act 1972
s3(1) european communities act 1972
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Does the european court of justice bind itself?
no
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Which courts does the supreme court bind and who is the supreme court bound by?
binds all lower courts
bound by european court of justice on EU law matters
bound by european court of justice on EU law matters
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How can the supreme court depart from its own previous decisions?
by using the 1966 Practice Statement
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What two divisions is the court of appeal split into and do they bind each other?
civil and criminal
do not bind each other (unless there are exceptions)
do not bind each other (unless there are exceptions)
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Who is the court of appeal bound by?
the european court of justice
+
supreme court
+
supreme court
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How can the court of appeal depart from its own previous decisions?
if one of the criteria set out in Young v Bristol Airplane Co apply
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What are the three divisional courts?
- queens bench division
- chancery
- family
- chancery
- family
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Who and what are the divisional courts bound by?
the european court of justice
+
supreme court
+
court of appeal
+
own decisions
+
supreme court
+
court of appeal
+
own decisions
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Who is the high court bound by?
european court of justice
+
supreme court
+
court of appeal
+
divisional courts
+
supreme court
+
court of appeal
+
divisional courts
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Who does the high court bind and not bind (with what it usually follows)?
binds lower courts
does not bind itself but it usually follows its own decisions
does not bind itself but it usually follows its own decisions
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Who is the crown court bound by?
european court of justice
+
supreme court
+
court of appeal
+
divisional courts
+
high court
+
supreme court
+
court of appeal
+
divisional courts
+
high court
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Who do the crown court's rulings on point of law technically bind?
the magistrates court
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What do the county court and magistrates court not create?
precedent
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Who are the county court and magistrates court bound by?
- the european court of justice
- supreme court
- court of appeal
- divisional courts
- high court
- crown court
- supreme court
- court of appeal
- divisional courts
- high court
- crown court
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What are the four options appellate courts have when making decisions (FORD)?
- following
- overruling
- reversing
- distinguishing
- overruling
- reversing
- distinguishing
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What is the option of following?
where the court applies the precedent set in a previous case
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What is the case that followed the set precedent in Donoghue v Stevenson?
Grant v Australian Knitting Mills
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What is the option of overruling?
where a court in a later case states that the legal rule decided by a lower court in a previous case is wrong and this new decision then applies throughout the court hierarchy
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Which case overruled the previous
meaning of recklessness in the decision of R v Caldwell?
meaning of recklessness in the decision of R v Caldwell?
R v G&R
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What is the option of reversing?
where a higher court changes the decision of a lower court in the same case
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What is a case example that showed
the option of reversing and why did this show reversing?
the option of reversing and why did this show reversing?
Sweet v Parsley
the house of lords quashed the conviction of a landlord who was unaware her premises had been used for smoking cannabis, even though it had earlier been upheld by the court of appeal
the house of lords quashed the conviction of a landlord who was unaware her premises had been used for smoking cannabis, even though it had earlier been upheld by the court of appeal
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What is the option of distinguishing?
where a judge finds the material facts of the case he is deciding are different, he is not bound to follow the previous precedent
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Why were the two cases Balfour v Balfour and Merrit v Merrit able to be distinguished?
Balfour v Balfour - court decided agreement between husband + wife wasn't legally binding (social and domestic context)
Merrit v Merrit - similar issue, but written agreement + couple had seperated
judge not bound by Balfour as different facts and they co
Merrit v Merrit - similar issue, but written agreement + couple had seperated
judge not bound by Balfour as different facts and they co
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Is persuasive precedent binding on the court and when is it followed?
not binding on a court
may be followed if the judge thinks it is correct
may be followed if the judge thinks it is correct
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What are five sources of persuasive precedent?
- decisions of lower court
- decisions of the judicial committee of the privy council
- statements made obiter dicta
- dissenting judgements
- decisions of commonwealth courts
- decisions of the judicial committee of the privy council
- statements made obiter dicta
- dissenting judgements
- decisions of commonwealth courts
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What is a case example of persuasive precedent set out in the decisions of lower courts and what happened?
R v R
the house of lords followed the court
of appeal's decision that a man could be guilty of ****** his wife
the house of lords followed the court
of appeal's decision that a man could be guilty of ****** his wife
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Why are the decisions of the judicial committee of the privy council not
binding and what does it act as for some commonwealth countries?
binding and what does it act as for some commonwealth countries?
- not part of the hierarchy in england and wales
- acts as the final court of appeal
- acts as the final court of appeal
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Why are the decisions of the judicial committee of the privy council highly respected and often followed?
many of its judges also sit in the supreme court
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What was the decision of the privy council in A-G for Jersey v Holley?
the defendant should be judged
against the standard of the person with ordinary powers of self control when claiming provocation was contrary to an earlier house of lords decision
against the standard of the person with ordinary powers of self control when claiming provocation was contrary to an earlier house of lords decision
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Despite this, in what two cases did the house of lords follow the decision from A-G for Jersey v Holley?
R v Mohammed
+
R v James and Karimi
+
R v James and Karimi
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When will statements made obiter dicta be a source of persuasive precedent?
where a judge makes comments not on the point of the case before him
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In R v Howe what happened and what case later followed this by the court of appeal?
- the house of lords was considering whether the law of duress applied to murder
- the judge commented obiter that it would also not apply to attempted murder
R v Gotts
- the judge commented obiter that it would also not apply to attempted murder
R v Gotts
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When will dissenting judgments be a source of persuasive precedent?
where one or more of the judges hearing an appeal disagrees with the decision of the majority and sets their reasons out
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In which case on contract law was
Lord Atkin's dissenting judgement in the court of appeal followed by the house of lords?
Lord Atkin's dissenting judgement in the court of appeal followed by the house of lords?
Rose & Frank v Crompton Brothers
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What are decisions of commonwealth courts based on?
the english common law
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What are three commonwealth countries that can form persuasive precedent?
australia
+
canada
+
new zealand
+
canada
+
new zealand
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In R v Bentham what canadian case did the house of lords consider (with
what the case concerned) but chose not to follow?
what the case concerned) but chose not to follow?
R v Sloan
possession of a firearm
possession of a firearm
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Who is the predecessor of the supreme court?
the house of lords
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Prior to 1898 what did the house of lords (predecessor of the supreme court) have the right to do?
overrule its own past decisions
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What did the house of lords decide and conclude in London Street Tramways (1898)?
it was completely bound by its own past decisions as certainty was more
important than individual injustice from having to follow precedent
important than individual injustice from having to follow precedent
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What does per incuriam mean?
in error without considering a relevant statute
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What did it being completely bound mean that law could not keep up with?
social conditions unless parliament changed legislation
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How did the 1966 Practice Statement change the prior decision?
stated that although certainty in the
law remained very important, the house of lords would now depart from a previous decision when it is right to do so
law remained very important, the house of lords would now depart from a previous decision when it is right to do so
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In what case was the first use of the practice statement and what was the case on a technical point about?
Conway v Rimmer (1968)
discovery of documents
discovery of documents
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In which case was the first major use of the practice statement?
Herrington v BRB (1968)
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In Herrington v BRB (1968) which case decision did the house of lords overrule and what was this decision?
Addie v Dumbreck (1929)
to impose a duty of care on landlords
to child trespassers as social conditions had changed
to impose a duty of care on landlords
to child trespassers as social conditions had changed
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What court (and house) is reluctant to use the practice statement?
supreme court (house of lords)
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What case is an example of this and elaborate on this?
Jones v SoS for Social Services (1972)
did not change law even though four out of seven judges considered the previous decision in Re Dowling (1967) on national insurance as wrong
did not change law even though four out of seven judges considered the previous decision in Re Dowling (1967) on national insurance as wrong
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Why did they not change the law?
they regarded certainty in the law as more important
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From which time has the practice statement been used more?
mid 1970s
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In Miliangos v George Frank Textiles (1976) what did the house of lords overruling a previous decision allow?
damages can be awarded in currencies other than sterling
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In Pepper v Hart (1993) what was overruled?
a previous ban on the use of hansard in statutory interpretation
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What has to be important for the
practice statement to be used sparingly in criminal law?
practice statement to be used sparingly in criminal law?
certainty
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What act overruled Anderton v Ryan (1985) on attempts to do the impossible?
R v Shivpuri (1986)
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What act overruled MPC v Caldwell (1982) on recklessness in criminal damage?
R v G (2003)
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Following which act, did the supreme court replace the house of lords in 2009?
the constitutional reform act (2009)
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Which case confirmed the practice
statement applied to the supreme court, although it wasn't used due to the need for certainty in tenancy law?
statement applied to the supreme court, although it wasn't used due to the need for certainty in tenancy law?
Austin v Southwark LBC (2010)
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In which case was the practice
statement used as a way to overrule
two past house of lords decisions on the date from which damages in tort should be calculated?
statement used as a way to overrule
two past house of lords decisions on the date from which damages in tort should be calculated?
Knauer v Ministry of Justice (2016)
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Are the decisions of the criminal and civil decisions of the court of appeal binding on each other?
no
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Within each division, are decisions usually binding (include when not)?
yes unless one of the exceptions set out in Young v Bristol Aeroplane Co applies
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What is the first exception set out in Young v Bristol Aeroplane Co?
1 - where there are conflicting decisions in past court of appeal cases, the court can choose which one to follow and which one to reject
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What is the second exception set out in Young v Bristol Aeroplane Co?
2 - where a court of appeal decision has effectively been overruled by a decision of the supreme court / house
of lords, the court of appeal must follow the court of appeal / house of lords decision
of lords, the court of appeal must follow the court of appeal / house of lords decision
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What is the third exception set out in Young v Bristol Aeroplane Co, with a case example?
3 - where the decision was made per incuriam (carelessly or by mistake having not taken a relevant piece of legislation into account)
Williams v Fawcett (1986)
Williams v Fawcett (1986)
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When are these exceptions only to be
used by the court of appeal, with a case example?
used by the court of appeal, with a case example?
to refuse to follow a previous decision in 'rare and exceptional cases'
Rickards v Rickards (1989)
Rickards v Rickards (1989)
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When can the criminal division also depart from its previous decisions, with two case examples?
if the law has been 'misapplied or misunderstood' as people's liberty is at stake
R v Taylor (1950)
+
R v Gould (1968)
R v Taylor (1950)
+
R v Gould (1968)
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Other cards in this set
Card 2
Front
What is the role of the judiciary and what may this need to involve?
Back
to find and declare the law
+
to apply it to the case before them
interpreting the word of statute law
+
to apply it to the case before them
interpreting the word of statute law
Card 3
Front
What is common law?
Back
Card 4
Front
When a court arrives at a judgement (usually by a majority) what do they have to do?
Back
Card 5
Front
Who delivers and explains the decision and how do they do this?
Back
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