CAPE Law Unit 1 flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

Ratio decidendi

The legal principle or reason for the decision in a case, which binds lower courts in the same hierarchy when the material facts are sufficiently similar.

Obiter dicta

Remarks by a judge that are not necessary to the decision. They are persuasive only and do not bind later courts, though they may be followed if convincing.

Constitutional supremacy

The principle that the constitution is the highest law; any statute or executive act inconsistent with it is void to the extent of the inconsistency, enforced by the courts.

Entrenched provision

A constitutional section amendable only by a special majority, often two-thirds or three-quarters of all members of each House, and sometimes requiring a referendum.

Separation of powers

The division of governmental functions among legislature (making law), executive (implementing law) and judiciary (interpreting law), designed to prevent concentration of power.

Judicial independence

Security of tenure, salaries charged on the Consolidated Fund and removal only through a prescribed address or tribunal procedure, ensuring judges decide free from executive pressure.

Subsidiary legislation

Rules, regulations or orders made by a body authorised by an Act of Parliament. Valid only within the powers conferred; ultra vires provisions are void.

Equity prevails over common law

Where the rules of equity and the common law conflict on the same matter, equity prevails. Equitable remedies are discretionary and subject to equitable maxims.

CCJ Original Jurisdiction

The Caribbean Court of Justice's power under the Revised Treaty of Chaguaramas to interpret and apply Community law, binding on CARICOM member states.

Actus reus

The external physical element of an offence: a voluntary act, or an omission where a legal duty to act exists, together with any required consequences and circumstances.

Mens rea

The mental element of an offence, ranging from intention and knowledge through recklessness to negligence, depending on how the offence is defined.

Oblique intention

Intention inferred where the result is a virtual certainty of the accused's conduct and the accused appreciates that fact, even without desiring the result.

Recklessness

Consciously taking an unjustified risk that a prohibited consequence will occur or a circumstance exists, where the risk is one the reasonable person would not take.

Coincidence principle

Actus reus and mens rea must exist at the same moment for liability; a continuing act may satisfy this, but a completed act followed by later intent cannot.

Malice aforethought

The mens rea for murder: an intention to kill or an intention to cause grievous bodily harm to the victim, established by direct or oblique intention.

Involuntary manslaughter

Unlawful killing without malice, either by an unlawful dangerous act or by gross negligence involving a serious and obvious risk of death.

Loss of control defence

A partial defence reducing murder to manslaughter where the accused lost self-control from a qualifying trigger, judged partly by the objective standard of a person of like characteristics.

Diminished responsibility

A partial defence reducing murder to manslaughter where an abnormality of mental functioning substantially impaired the accused's ability to understand conduct or exercise self-control.

Self-defence

A complete defence where the accused used force reasonably necessary and proportionate to repel an imminent unlawful attack, defend another or prevent crime.

Duress by threats

A defence where the accused committed an offence because of a threat of death or serious injury, with no reasonable safe avenue of escape available.

Automatism

A complete defence where the accused acted involuntarily through total loss of voluntary control, not caused by self-induced intoxication, and not amounting to insanity.

Specific intent intoxication

Voluntary intoxication may negate mens rea for specific-intent offences such as murder, but generally does not excuse basic-intent offences such as manslaughter or assault.

Inchoate offence

An incomplete offence such as attempt, conspiracy or encouragement, punishable even where the substantive offence is never carried out.

Attempt

An act more than merely preparatory to committing an offence, done with the intention of committing that offence, which falls short of completion.

Duty of care

A legal obligation to take reasonable care toward another, arising from established categories or from reasonable foreseeability plus proximity, subject to policy considerations.

Breach of duty

Failure to meet the standard of the reasonable person, or of the ordinary skilled practitioner in that field, measured against the foreseeable risk and cost of precautions.

But-for test

The factual causation test asking whether the damage would have occurred but for the defendant's breach; if it would have occurred anyway, factual causation fails.

Novus actus interveniens

A new, independent act or event that breaks the chain of causation between the defendant's breach and the claimant's damage, relieving the defendant of liability.

Thin-skull rule

The defendant must take the victim as found, so an unforeseeably severe consequence of a foreseeable type of injury remains compensable in full.

Contributory negligence

A defence reducing damages to reflect the claimant's own share of responsibility for the harm, apportioned by the court under statute.

Volenti non fit injuria

A complete defence where the claimant freely and with full knowledge consented to the risk of harm, distinct from mere awareness of danger.

False imprisonment

Complete restriction of a person's freedom of movement without lawful justification, actionable without proof of actual damage.

Vicarious liability

Strict liability of an employer for torts committed by an employee acting in the course of employment, based on control, integration and the closeness of the connection to the employment.