Judicial Precedent Flashcards
1
Q
The Supreme Court was bound by its own decisions until what came about? What did it do?
A
- 1966 Practice Statement
- Allows the court to change its mind on the outcome of a case, rather than just following the precedent
2
Q
What was significant about Jones v Secretary of State for Social Services (1972)? (4)
A
- Illustrated the reluctance in the House of Lords to use the practice statement
- Involved interpreting the National Insurance Act 1946
- 4/7 judges regarded the earlier decision in Re Dowling (1967), as being wrong
- Despite this, the Lords refused to overrule the earlier case, preferring to keep to the idea that certainty was the most important feature of precedent
3
Q
Explain distinguishing. Example?
A
- Where the facts of the case are deemed different enough that the previous case is no longer binding
- Merritt v Merritt was distinguished from Balfour v Balfour: both cases involved maintenance pay, Balfour v Balfour was held to be unenforceable because it was an oral agreement while Merritt v Merritt had a written agreement and so was deemed to be enforceable
4
Q
Explain reversing (3). Example?
A
- Where a higher court departs from the decision made by a lower court on appeal
- Re Pinochet (1999)
- Chilean dictator convicted for his crimes
- Outcome reversed because the judge was deemed to be biased
5
Q
Explain overruling. Example?
A
- Where a court that is higher in the hierarchy departs from a decision of a lower court
- BRB v Herrington (1972) overruled Addie v Dumbreck (1929) and set a new precedent that a duty of care is owed to a trespasser
6
Q
What was the issue in Re v A (2000)?
A
- Whether or not Siamese twins should be separated in an operation which is recommended by the hospital, but has clearly been opposed by the patient
7
Q
What was the issue in Airedale NHS Trust v Bland (1993)?
A
- Whether a life support machine should be switched off if a person is in a persistent vegetative state
8
Q
What are the disadvantages of precedent? (9)
A
- Judges are usually old, white men, so don’t necessarily represent the general public
- System is rigid - lower courts have to follow decisions of higher courts
- Judgments can be long and unclear - finding the ratio decidendi can be difficult
- To avoid precedent, judges may make decisions which are neither logical nor in line with the general rules that have been developed
- Case law not designed for coherent legal development
- Only the Supreme Court can give an ultimate ruling and it’s long and expensive to get a case through
- Precedent cannot initiate legal change, as it has to wait for an appropriate case
- Some judges don’t like the restrictions, believing them to create injustice at times
- Leads to complex and imprecise bodies of law (encouraging speculative litigation)
9
Q
What was significant about R v R (1991)? (3)
A
- Defendant charged with attempted rape of his wife
- The House of Lords overturned the marital exception to rape and the husband was convicted
- Set an original binding precedent which is now followed
10
Q
What is persuasive precedent?
A
- Judgments which do not have to be followed, but can be considered if the judge wishes
11
Q
What happened in Donoghue v Stevenson? What was significant about this case? (5)
A
- Donoghue’s friend bought her a ginger beer
- It had a dead snail in it
- She got sick
- Attempted to claim against the manufacturer, claiming that he owed her a duty of care
- The case held, setting the original precedent that manufacturers do owe a duty of care to the ultimate consumer of their product
12
Q
What is Ratio Decidendi?
A
- The legal reason for the decision
13
Q
What happened in R v Shivpuri? (4)
A
- Shivpuri was persuaded to act as a drugs courier
- He thought he was smuggling heroin, but it turned out to be snuff
- Claimed he couldn’t be found guilty as snuff was legal
- Overruled Anderton v Ryan and set a new precedent - attempting the impossible was now deemed to be a criminal offence and Shivpuri was prosecuted
14
Q
The Court of Appeal has no Practice Statement, but what is an example of an exception?
A
- Young v Bristol Aeroplane Co
15
Q
Explain the following advantage of precedent: Certainty (3)
A
- System encourages consistency as like cases are decided alike (stare decisis)
- Means that the system is predictable
- In turn means that people can plan ahead with reasonable confidence that they are not breaking the law
