Cases and Precedent

Question 1

Describe the conventions on case names in criminal cases

Answer 1

• R v Brown
• R = regina or rex
• Brown = defendant
• The Queen/ The crown against Brown or just Brown
• Appellant and respondent

Question 2

Describe the conventions on case names in civil cases

Answer 2

• Ahmed v Blacksmith
• Claimant (plantiff) and defendant
• V means versus/against but you say and
• Appellant and respondent

Question 3

What is the concept of stare decisis

Answer 3

Let the decision stand - binding precedent and the more general idea of precedence at least probs

Question 4

Describe and explain the operation of precedence

Answer 4

Precedent - principle or rule established in a case that is followed in subsequent cases by lower courts

• courts way of keeping consistency
• precedent binding on all, not just the parties
• decisions of the higher courts bind the lower courts

Question 5

In what 3 situations can the Court of Appeal depart from its previous decisions

Answer 5

• a previous CA decision comes into conflict with and SC decision
• two CA decisions conflict
• A CA decision was made per incuriam (in ignorance of the law) - Young v Bristol Aeroplane (1944)

Question 6

What situations can the Supreme Court depart from its decisions?

Answer 6

Trick question - Supreme Court can depart from earlier decisions whenever they want - London tramways v London County Council 1898 ac 375 & practice statement 1966

Question 7

What impact does HRA 1998 have on precedent

Answer 7

• A court must in so far as possible interpret domestic law so as to be compatible with convention rights
• on any determination concerning a convention right the court must take into account prior decisions of ECtHR

Question 8

Describe the relationship between precedent and the CJofEU

Answer 8

• pre-brexit - UK courts bound by the CJEU on matters of interpretation of regulations, directives etc.
• Post-brexit - Supreme Court not bound by CJEU but may have regard to anything they do

Question 9

What is the ratio decidendi of a case?

Answer 9

• the main necessary step/point/idea employed by the judge in reaching his conclusion

“the ratio decidendi of a case is any rule of law,
expressly or impliedly treated by the judge as a
necessary step in reaching his conclusion, having
regard to the line of reasoning adopted by him.”
Buxton LJ in R (Khadim) v Brent London Borough
Council Housing Benefit Review Board [2001] QB
955 (CA)

Question 10

What are obiter comments?

Answer 10

• Comments that may be significant but are not directly part of the legal principle(s)
• ‘that which is said in passing’
• may be persuasive in future cases but not binding
• examples: hypothetical discussion, what might have happened if the facts were slightly different, side issues

Question 11

precedent vs common law - what are the schools of thought on the difference of these

Answer 11

• precedent and common law are interchangeable terms
• others believe precedent to be the authoritative and binding interpretations of the law meanwhile the common law is the unwritten law that is wider in scope then precedence

Question 12

Break down this neutral citation - R v Mirza [2004] UKHL 2

Answer 12

Crown against Mirza 2004 (case year), House of Lords (court), 2 (case number)

Question 13

Break down this law report citation - R v Mirza [2004] 1 AC 1118

Answer 13

Crown against Mirza, 2004 (case year), 1 (volume), AC (series of report - AC = appeal cases, WLR = Weekly Law Reports, ALL ER = All England Law Reports, Crim LR = Criminal Law Review etc.), 1118 (page number)

Question 14

information from cases will help you:

Answer 14

To argue the legal precedent that you think should be followed.
• To be able to separate out the facts and the law
• To be able to apply the law to a set of facts
• To be able to separate out hierarchy of laws
• To know which precedents were cited and which were
distinguished
• To use obiter comments as persuasive arguments & understand
context and nuance.
• To understand development of law and problematic areas of law
Ratio and Obiter Dictum
Ratio
• Legal reason why one side won
and the other lost.
• The absolute key to deciding the
case.
• It may relate to one point of law or
many, to UK only law or non-UK
law too.
• The part that has precedent value
Obiter dictum
• Additional legal reasoning on
related points of law.
• Think of it as a judge indicating
“by the way, the law on this point
is…”
• Persuasive authority but not
binding.