Judicial Precedent G152 Flashcards

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  • Created by: bananaaar
  • Created on: 16-04-14 14:49
What is precedent?
The term used to refer to the body of law built up by judges over hundreds of years in the courts of common law. It is arguable the oldest and most important source of law and forms the basis of some of our most fundamental areas of law.
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What is precedent based on?
'stare decisis' which means stand by what has been decided and do not unsettle the established.
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Why is stare decisis needed?
For fairness in the law. Also High Courts need flexibility to develop the law.
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What do courts need in order to follow previous decisions?
Law reporting. They have existed since the 13th century but until 1865 they were variable in quality and reliability.
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When was the Incorporated Council of Law Reporting set up?
1865. These Law Reports are thus more accurate and reliable and remain one of the principle sources of the superior appellate courts.
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Give examples of well-established law reports?
All England Series Reports (reported major cases from 1936 onwards), NexisLexis, WestLaw and free online resources such as Supreme Court website and BAILII.
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What is the ratio decidendi?
The legal rule and associated reasoning behind the decision.
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What is obiter dicta?
'Other things said' in a judgement once the ratio has been established. It is not binding but can be persuasive
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A02 for ratio decidendi?
Must be clear for other judges, unclear ratio makes it problematic to follow.
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Example of a ratio decidendi?
R v Bentham 2005, a man robbed his former employee so he held his hands inside his jacket to make it look like a gun. Lord Bingham said that 'one cannot possess something which is not seperate from oneself' so he won the appeal. The reason =ratio.
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Case for Obiter Dicta?
High Trees House 1947 where Lord Denning ruled that if the people renting were advised before hand, it would be a different situation, thus the doctrine of equitable estoppel was developed, despite no relevance to facts of case.
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Example of Obiter Dicta being followed?
In the case of [Howe] 1987 the HOL decided obiter that duress shouldn't be defence to attempted murder. In [Gotts] 1992 the D used duress as defense for attempted murder. Followed [Howe]'s Obiter to set binding precedent.
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What is original precedent?
No case is similar so court will set an original, binding precedent. E.g. in the case of Donoghue v Stevenson 1932 where it was ruled by Lord Atkin that manufacturers who sell items that cant be inspected owe a duty of care to the ultimate consumer.'
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What is binding precedent?
Precedent from an earlier case must be followed if the material facts of the case are sufficiently similar.
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What is persuasive precedent?
A court can use previous legal principles etc to come to a decision but are not bound by previous decisions.
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What can judges so in terms of precedents?
Follow, reverse, overrule, distinguish. (FORD)
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How to remember precedent?
BOP (binding, original, persuasive) and FORD (follow, overrule, reverse, distinguish.)
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What does the supreme court hear appeals on?
A point of law of general public importance.
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How many applicants and cases in supreme court?
200 applicants, only 50-70 cases heard per year.
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What did the Practice Statement 1966 allow?
The HOL to depart from previous decisions 'when it appears right to do so'.
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When did the HOL first use the practice statement?
1968 in the case of [Conway v Rimmer], however this case only involved a technical point of law on discovery of documents. It was not that important and did not involve criminal law.
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Who is the COA bound by?
Supreme Court and CJEU and usually by its previous decisions.
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Card 2

Front

What is precedent based on?

Back

'stare decisis' which means stand by what has been decided and do not unsettle the established.

Card 3

Front

Why is stare decisis needed?

Back

Preview of the front of card 3

Card 4

Front

What do courts need in order to follow previous decisions?

Back

Preview of the front of card 4

Card 5

Front

When was the Incorporated Council of Law Reporting set up?

Back

Preview of the front of card 5
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