Judicial Precedent

HideShow resource information
Define Judicial Precedent
Decision made by higher courts that has to be followed by the lower courts in later similar cases. Follows the principle of stare decisis
1 of 35
Define stare decisis
To stand by the decision that has already been made and not unsettle the established
2 of 35
What is the hope for what judicial precedent will be bring?
Judicial Precedent should bring fairness to the legal system
3 of 35
Who does the Supreme Court bind?
The Supreme Court and all lower courts
4 of 35
How can the Supreme Court depart from its own precedent?
By using the practice statement, revering, overruling and distinguishing
5 of 35
Who does the Court of appeal bind?
The Court of Appeal (both decisions) and all lower courts
6 of 35
Who can’t the Court of Appeal bind?
The Supreme Court, the Privy Council and the European courts
7 of 35
Who can the High Court bind
The High court and all lower courts
8 of 35
What is ‘ratio decidendi’?
The reason for the decision, ratio decidendi is binding
9 of 35
What is ‘obiter dicta’?
Any other things said on the matter An example of obiter dicta in use is Lord Denning in the High Trees house case when he stated obiter that ‘had the claimant tried to reclaim the half rent for during the war he would have been estopped from doi
10 of 35
What is ‘per in curium’?
In error. E.g if a precedent was made per in curium it wouldn’t have to be followed
11 of 35
What is the practice statement and who does it apply to?
The practice statement is exclusive to the Supreme Court. If the Supreme court find that their previous precedent is wrong then they can go back on it by using the practice statement. The practice statement only applies to the Supreme Court
12 of 35
Explain what original precedent is
This precedent occurs when the principle of law has not been previously decided. For example, the Donoghue and Stevenson case created the precedent on negligence. Therefore by setting this new ‘original precedent’ a new piece of common law has be
13 of 35
Explain what binding precedent is
A precedent that is already made and must be followed by all lower courts. Those courts are bound to follow the binding precedent. The deciding factor as to whether a court has to follow the previous precedent is if the ratio decidendi in both ca
14 of 35
Explain what persuasive precedent is
A persuasive precedent is NOT binding, it does not have to be followed but it the judge can choose to follow it if there is no binding precedent for the case in which he is working. Persuasive precedent be found in judgements of other countries
15 of 35
Explain what judicial precedent is (as a type of precedent that is set)
Dependent on good law reporting, this is the reporting of all important cases into books. Proper reporting of cases only began in 1865/75. In 1875 the incorporated council for law reporting became a committee. Cases reported pre-2009 all cases wr
16 of 35
Which case brought about Judicial Precedent?
The London Street Tramways case in 1898
17 of 35
Explain the London Street Tramways case
The House of Lords decided that the certainty was more important than the possibility of individual hardship. Therefore all future cases set in the House of Lords (Supreme Court) must be binding to all lower courts. At this point the House of Lor
18 of 35
What problem was found in the courts being bound to a single precedent?
Uncertainty in the law
19 of 35
Can the Court of Appeal use the practice statement?
No
20 of 35
When can the Court of Appeal depart from Supreme Court precedent?
If the previous decision was made per incuriam (in error)
21 of 35
In which case did the Court of Appeal abandon the Supreme Court and follow the European Court of Human Rights?
Re-medicaments vs the Director of General Fair Trading and Proprietary Association with GB (2001)
22 of 35
What was the crime of the R v Smith case in which the Court of Appeal abandoned the Supreme Court to follow the Privy Council
Provocation
23 of 35
What exceptions can the criminal division use to depart from precedent?
The exceptions found in the Young vs Bristol Aeroplanes case -If the court has two precedents it can pick which to use -If the Court of Appeal has a decision and the House of Lords also has a decision then the House of Lords one must be followed
24 of 35
What is the name of the case that gave the criminal division of the Court of Appeal the ability to depart from House of Lords precedent?
The Young vs Bristol Aeroplane case (1944)
25 of 35
In what case was the criminal division allowed to depart from the Court of Appeal as the law had been ‘misapplied’?
R v Simpson
26 of 35
What is an issue with the Court of Appeal being bound to precedent?
The Court of Appeal is not able to depart from its precedent and therefore perpetuates bad decisions and errors
27 of 35
What is an issue with the Court of Appeal being allowed to depart from Supreme Court precedent?
Allowing the Court of Appeal to depart would however bring uncertainty in courts and lower courts and legal personnel would not know which was the correct precedent to follow.
28 of 35
What are the four ways for Judges to avoid precedent?
Distinguishing, overruling, reversing and the practice statement (Supreme Court only)
29 of 35
What is distinguishing?
This is used by judges who do not want to be bound by a decision of a higher court. They avoid having to follow the precedent and therefore they state that the two cases have ‘distinguishing’ differences
30 of 35
What is overruling?
A higher court can overrule a lower court if they think the legal principle used in the lower court was wrong. For example the supreme court can overrule the court of appeal. The European Court of Justice can overrule the Supreme Court and the Su
31 of 35
What is reversing?
This is where a higher court reverses the decision of a lower court on appeal on the same case
32 of 35
Give 3 advantages of Judicial Precedent
It keeps fairness in the courts -It is time saving as a new tariff does not have to be set after every crime -The use of the principle stare decisis holds certainty in the court
33 of 35
Give one disadvantage of Judicial Precedent
The law cannot develop in lowers courts as they cannot set precedents or depart from them
34 of 35
In what case was distinguishing used?
Meritt and Meritt distinguished from Balfar and Balfar
35 of 35

Other cards in this set

Card 2

Front

Define stare decisis

Back

To stand by the decision that has already been made and not unsettle the established

Card 3

Front

What is the hope for what judicial precedent will be bring?

Back

Preview of the front of card 3

Card 4

Front

Who does the Supreme Court bind?

Back

Preview of the front of card 4

Card 5

Front

How can the Supreme Court depart from its own precedent?

Back

Preview of the front of card 5
View more cards

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Judicial precedent resources »