Precedent

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  • Created by: 10dhall
  • Created on: 17-05-17 15:06
What is Stare Decisis?
This is the base of the doctrine of Precedent, and states that every Judge should 'stand by/keep to the previous decision'
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What is Obiter Dicta?
This is a comment/comments/speculation made from a Judge about a case which can be used as a persuasive device or be useful to Judges when deciding another case, can transform into the ratio of another case; R v Ahluwalia
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What is an example of Obiter Dicta?
In R v Howe, when the Judge said that duress was NOT available for murder which was decided in the House of Lords
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What is a Binding Precedent?
These are decisions that must be followed, which can either be from; a higher court, the same court, a original precedent. For a decision to be binding it must have similar facts, and it is usually found in the Ratio Decedendi of another case
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Can cases have more than one Binding Precedent?
Yes
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What is a case example of Binding Precedent?
Donoghue v Stevenson 1932
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What is Persuasive Precedent?
This is where it can be persuasive on a Judge's decision, but the Judges do not have to follow it. It can come from lower courts + other countries. Example of this is when the HOL agreed with the COA in the case of R v R concerning marital ****.
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What is Original Precedent?
This is when a new point of law arises which hasn't been decided on before and can arise from social/technological conditions. Original precedents can form the basis of a new legal principle (Grant v Australlian Knitting Mills)
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What is retrospective declaration?
This is where a Judge does not change or make the law but merely explains/states it
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When has the House of Lords / Supreme Court been reluctant to use the Practice Statement 1966?
In Shaw v Dpp (exploiting prostitues)
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When has the House of Lords/ Supreme Court used the Practice Statement?
In Pepper v Hart and in R v G&R
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What did Young v Bristol Aeroplanes set out?
That the COA is bound by it's own decisions with the exceptions of; it can choose one or two conflicting decisions of it's own, can depart if it is per incuriam, and also cannot follow it's own decision if it contradicts one from the HOL
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What are the reasons for extending the powers of the COA?
It would improve the flexibility of precedent, it would avoid unnecessary appeals to the UKSC, it would allow justice faster, and because they already deal with the vast majority of appeals
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What are the arguments against extending the powers of the COA?
It could mess up Precedent, it would undermine the power of the HOL/UKSC, it would cause an increase in appeals, and because it reduce flexibility and certainty
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What is Distinguishing?
This is where a Judge can depart from using precedent if they can find a difference between the cases. Examples: Merritt v Merritt and Balfour v Balfour
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What is Overruling?
This is when a court higher up in the hierarchy overrules a decision made in a lower court. Examples: R v R, and R G&R
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What is reversing?
This is where a higher court reverses a decision from a lower court ON APPEAL. Examples: Gillick, R v Woolin, and Fitzpatrick v Sterling Housing Association
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What is another case involving the COA making a per incuriam decision?
This is shown in William v Fawcett
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What are cases which were used in link with the Practice Statement?
R v Shivpuri - first time it was used in a criminal case, British Railways v Hennington - first major use, Pepper v Hart, Hall v Simon, London Street v Tramways 1898
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Development of the Practice Statement?
Before 1898 the HOL could overrule their own decisions, in 1898 they decided they want more flexibility due to London Street v Tramways so they bound themselves, in 1966 the Lord Chancellor issued PS, in 2009 HOL changed to UKSCK
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Advantages of using Precedent?
Certainty which allows lawyers to more easily advise clients, time saving, precision, flexibility, consistency, enables the law to develop in relation to actual cases
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Disadvantages of using Precedent?
Rigid, bulky, complex, judicial law making (separation of powers), illogical decisions which are confusing and reduces certainty, there are still gaps within the law
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How to find cases?
Law reports, newspapers
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Other cards in this set

Card 2

Front

What is Obiter Dicta?

Back

This is a comment/comments/speculation made from a Judge about a case which can be used as a persuasive device or be useful to Judges when deciding another case, can transform into the ratio of another case; R v Ahluwalia

Card 3

Front

What is an example of Obiter Dicta?

Back

Preview of the front of card 3

Card 4

Front

What is a Binding Precedent?

Back

Preview of the front of card 4

Card 5

Front

Can cases have more than one Binding Precedent?

Back

Preview of the front of card 5
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