Chapter 3- Judicial precedence

Question 1

what does the word ‘precedent’ mean

Answer 1

‘an example serving for the future’

Question 2

what does Judicial precedence mean

Answer 2

This is where decisions of judges create law for future judges to follow.

Question 3

reasons for judicial precedence

Answer 3

-serves as a guidance for the future
-encourages certainty and predictability of the law
-in order to not offend judges from the past
-practicality.

Question 4

The latin word ______ _________ encourages both uniformity, fairness and certainity in the law (‘stand by what has been decided and do not unsettle the established)

Answer 4

stare decicis

Question 5

The types of precedent are

Answer 5

-binding precedent
-persuasive precedent
-original precedent

Question 6

What is to happen in binding precedent

Answer 6

This means that past decisions in cases MUST be followed to the current case due to the similarities that they share

Question 7

Precedent can only operate if the legal reasons for past decisions are known, therefore at the end of a case there will be a judgement – a speech made by the judge giving the decision and, more importantly, explaining the reasons for that decision. What is the latin word for this

Answer 7

RATIO DECIDENDI

Question 8

what is persuasive precedent

Answer 8

This is a decision that is not binding and does not have to be followed but a judge may be persuaded/considering to follow it

Question 9

what are the 5 sources that persuasive precedent looks at

Answer 9

-obiter dicta
-courts lower in the hierarchy
-decisions from the privy council
-dissenting judgements
-decisions made from other countries

Question 10

Give a case example of persuasive precedent from courts lower in Hierarchy

Answer 10

R v R
-the supreme court agreed with the COA that a husband can be guilty of rape

Question 11

Give a case example of the privy council

Answer 11

Jersey V Holley
-whether a person can have the freedom of self control. The Supreme Court was persuaded to follow decisions made by the privy council even though they are not binding of the English courts

Question 12

What does obiter dicta mean

Answer 12

-This means “other things said” whereby a comment, suggestion or observation made by a judge in an opinion which does not necessarily resolve the case but may be persuasive

Question 13

example case of Obiter dicta

Answer 13

-R v Hone
The term “duress” means a defence against a criminal charge.
in this case the judges ruled that in the case of murder, duress will not apply.

Question 14

what is the major problem between Obiter dicta and ratio decidendi

Answer 14

In the judgements because it is in continuous format, it does not specify which is the obiter dicta and which is ratio decidendi so can be confusing

Question 15

what is dissenting judgement

Answer 15

when a case has been decided based on a majority however theres a few disagreements. when the case is appealed, often at times the Supreme Court will follow the dissenting judgement and the decision will pass.

Question 16

state and define the types of judicial tools

Answer 16

1) reversing- this is when a higher court overturns a decision made by a lower court
2)Distinguishing- this is when a judge tries to differentiate both cases to avoid following that precedent
3)overruling- this is when the decision made in an earlier case has been decided wrong by a current case

Question 17

State hierarchy of courts for criminal cases

Answer 17

• SUPREME COURT
• COURT OF APPEAL
• QUEENS BENCH DIVISION
• CROWN COURT
• MAGISTRATE COURT

Question 18

State the hierarchy of courts for civil case

Answer 18

-EUROPEAN COURT OF JUSTICE
-SUPREME COURT
-COA
-HIGH COURT
-COUNTY. COURT

Question 19

what did the practice statement ensure

Answer 19

-It ensured that the HOL can deviate from past decisions only if it is the right thing to do

Question 20

how was the practice statement used , use case examples of 3 where they followed and 3 they did not follow

Answer 20

1) to deviate from past decisions that were wrongly decided.
Conway V Rimmer (1968) that was overruled in Duncan V camel (1942) was whether documents should be disclosed or open to the public
OR “In a decided case”
2)

Question 21

give a case example of a time the HOL went with precedence

Answer 21

Jones V Secretary of State for social services
followed the decision of the case Re Dowling

Question 22

what are the circumstances that require the COA to not follow its own past decisions

Answer 22

1)When there is a conflict in the decisions
2)when there has been a per incurum
3)when the Supreme Court has overruled that decision

Question 23

Advantages of Judicial precedence

Answer 23

1)certainty
2)fairness and consistency
3)precise
4)Time saving

Question 24

Disadvantages of judicial precedence

Answer 24

1)Rigidity/inflexible
2)illogical distinguishing
3)complexity
4)slow growth