Judicial Precedent

GemmaCoton
Mind Map by GemmaCoton, updated more than 1 year ago
GemmaCoton
Created by GemmaCoton almost 6 years ago
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A Levels Law Mind Map on Judicial Precedent, created by GemmaCoton on 03/24/2014.
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Judicial Precedent
1 Stare Decisis
1.1 Stand by what has been decided
2 Ratio Decidendi
2.1 Reason for the decision
2.2 Binding
2.3 R v Nedrick confirmed in R v Woollin, if a jury feels the defendant foresaw death or serious injury then oblique intention may be inferred
3 Obiter Dicta
3.1 Things said by the way
3.2 Persuasive
3.3 R v Howe, duress is not a defence for murder (ratio) or attempted murder (obiter)
4 Hierarchy of the Courts
5 Law Reports
5.1 Contains judge's decision
5.2 Only a small portion reach the law reports
6 Avoiding Precedent
6.1 Reversing
6.2 Overruling
6.3 Distinguishing
6.3.1 Difference between the cases
6.3.2 Balfour v Balfour (1919), living together, verbal agreement on money
6.3.3 Enter text here
7 Advantages
7.1 Certainty
7.1.1 like cases are treated alike
7.1.2 Possible to predict decision and plan
7.1.3 Solicitors can advise
7.2 Consistency and fairness
7.2.1 Gives legal system a sense of justice
7.3 Flexible
7.3.1 Number of ways to avoid precedent
7.3.2 Can adapt to new situations
7.3.3 House of Lords can overrule
7.4 Responses to real life situations
8 Disadvantages
8.1 Too rigid
8.1.1 Lead to injustice
8.1.2 Law is hard to change because precedent must be followed
8.1.2.1 Most cases don't go to the House of Lords or Court of Appeal where they can be overruled
8.1.2.1.1 House of Lords reluctant to overrule
8.2 Slowness of growth in the law
8.2.1 May take many years for a case to challenge the precendent
8.2.2 Judges may want to change the law but they can't do so without a case
8.2.3 Permission is needed to go to the Lords
8.2.3.1 If refused can't challenge precedent
8.3 Too much case law and it is very complex
8.3.1 Half a million reported cases
8.3.1.1 Hard to find the law
8.3.2 Judgements are long and difficult to find ratio
8.3.3 Dodd's Case (1973) Court of Appeal said it was unable to find the ratio of a similar case from the Lords
8.4 Retrospective (Looking backwards)
8.4.1 People can be found guilty of a crime that wasn't a crime at the time
8.4.2 R v R tried to force his wife to have sex, couldn't be found of rape but later could be found of attempted rape
8.5 Undemocratic
8.5.1 Judges make law
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