Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
31 Cards in this Set
- Front
- Back
|
What are the four things that are considered to be persuasive precedents? |
1. Obiter dicta: a) legal rules summarised in judgment but not directly applied to case b) some obiter will include statements of how decision would have differed if facts differed in some way 2. Decisions of foreign courts: especially USA, Canada, Australia 3. Dissenting judges decision in a case: so this will be dissenting judge in CA or SC case 4. Decisions of the Judicial Committe of the Privy Coucil: they hear appeals of remaining common wealth countries like Caribbean. Also hear appeals against decisions of some professional bodies |
|
|
Why are the decisions of the Judicial Committe of the Privy Council strongly persuasive? |
Because the judges of the Judicial Committee of the Privy Council are the same judges that sit in SC (ie Supreme Court Justices) |
|
|
Are the decisions of the Judicial Committee of the Privy Council binding on Any UK court? |
No Just strongly persuasive |
|
|
Name 1 case heard by Judicial Committee of the Privy Council that other UK courts have followed. |
The Wagon Mound [1961] |
|
|
What did the Wagon Mound [1961] case establish? |
Important principles relating to causation, in the law of negligence |
|
|
If you saw the following notation what does it mean: James; Karimi [2006] |
R v James and Karimi [2006] |
|
|
What is the James; Karimi case known for with regards to judges decision? |
The CA judges followed the decision of the JCPC as opposed to a HL decision. The JCPC decision was made unanimously by Law Lords (ie HL judges) A statement was given in judgement that this deviation was not a licence to do it in future. |
|
|
What case was it that the CA in James; Karimi followed? |
AGR for Jersey v Holley [2005] |
|
|
The law needs to achieve a balance between which two aims? |
Certainty & Flexibility |
|
|
What are the 4 methods used to ensure a balance between certainty and flexibility in the system of precedent ? |
1. Overrule: decision to overrule the deciaion of a different earlier case 2. Reverse: decision to reverse decision on an apeal in the same case 3. Distinguish: court usually bound by higher courts, BUT if lower court can find any fact(s) that they can say are different to those of the earlier case (tgus meaning different legal principles shoukd apply) then can use that in order to avaoid following higher court. 4. Depart: CA and SC can as previously learnt. |
|
|
Three advantages of the system of stare decisis? |
1. Vast: able to provide for many circumstances 2. Equality: ensures like cases treated alike 3. Certainty: lawyers can advise their clients on possible outcomes |
|
|
Four disadvantages of the system of stare decisis? |
1. Vast: each case needs to consider relevant precedents 2. Rigid: lower courts (County, High court) are bound by precedents. Even if means injustice 3. Precedents can only change at CA & SC level, meaning parties have to appeal 4. Not in subject order: reports in chronological order |
|
|
Why was the EU formed in the first place? |
To "foster harmony" between the European nations after WW2 |
|
|
Outside of the EU, what other entity was formed after WW2 and why? |
Council of Europe Formed because there was international concern over the atrocities that took place in WW2 |
|
|
Is the Council of Europe part of the EU? |
No |
|
|
What was it that the Council of Europe wrote in response to the atrocities that took place in WW2? |
European Convention on Human Rights |
|
|
Since its creation, how have additional rights been added to the ECHR? Via... |
Via protocols (Protocols are used to add to treaties ( |
|
|
What were three additional rights added to the ECHR through the First Protocol? |
1. Free education 2. Protection of property 3. Right to vote in free and secret elections |
|
|
In what Protocol was the death penalty addressed and what was said about it? |
Sixth protocol It is abolished. But can be reintroduced in times of war. |
|
|
All of the Human Rights un the ECHR are categorised into the different types of right. What are the 3 types of right? |
1. An absolute right: cannot be excluded or amended. 2. A Limited right: can be varied by a Member State if necessary 3. Qualified rights: these can be interfered with as long as the public authority can show that there was a social need to restrict right to achieve legitimate aim. Restriction must also be proportionate and not excessive. |
|
|
It used to be that a UK citizen wanting to claim for breach of Human Rights had to go to the European Court of Human Rights. Whatvis the process now? |
You have to exhaust all domestic courts and then you can apply to ECrtHR You must also apply within 6 months of the final domestic ruling. |
|
|
What are 2 things that put people off of appealing to the ECrtHR? |
1. Expensive 2. Takes a long time |
|
|
What are 3 UK laws that have been changed as a consequence of appeals to the ECrtHR? |
1. Coporal punishment 2. Phone hacking 3. What constitutes a fair trial |
|
|
What does section 3 of the Human Rights Act state? |
That all legislation is to be interpreted in line with the rights set out in the ECHR. |
|
|
What does s4 of the Human Rights Act state? |
That if an Act is incompatible the courts can make a "declaration of incompatibility " |
|
|
Does a declaration of incompatability change an Act? If not, then what does it do? |
No it does not change it It may lead to it being amended. |
|
|
What does s6 of the Human Rights Act state? |
It is unlawful for any public body to act in a way that infringes a persons rights under the ECHR. |
|
|
What is a public authority? |
Any authority with the mandate to govern an aspect of public life. |
|
|
Only after what may a person take a case for breach of human rights to the ECrtHR? |
After having exhausted possible routes to remedy in UK. |
|
|
If permission to appeal at any stage against a decision in a human rights case is refused: can a person still take case to ECrtHR? |
Yes |
|
|
What does s2 of the Human Rights Act state with regard to deciding cases in the UK? |
That the courts must take account of the ECHR rights. Therefore, they cannot develop new precedents that are incompatible with the ECHR. |
