Criminal Mini Topic 2- Judicial Precedent

Question 1

What rules does a judge follow when making a decision in a case?

Answer 1

Doctrine of judicial precedent.

Question 2

What is judicial precedent?

Answer 2

The principle that the past decision of judges judges create law for future judges to follow (also known as ‘Case Law’).

Question 3

What is the first step that judges follow when making law?

Answer 3

1. They begin with looking for a decision made by a higher court that dealt with the same issues/facts.

Question 4

What is the second step judges follow when making law?

Answer 4

2. They will look at the law that was applied in the case and apply the same principles of the law in their own case. (latin term=stare decisis)

Question 5

What system does judicial precedent rely on?

Answer 5

Law reporting

Question 6

What does stare decisis mean?

Answer 6

‘Stand by what has been established and do not unsettle the established.’

Question 7

What is law reporting?

Answer 7

The Council of Law Reporting have law reports that contain the full judgement from the case so that future cases can follow.

Question 8

What is the name of the speech that the judge gives at the end of a case?

Answer 8

Judgement- can be very long and contain the number of different things.

Question 9

What does ratio decidendi mean?

Answer 9

‘The reason for deciding’

Question 10

What does obiter dicta mean?

Answer 10

‘Other things said’

Question 11

What is the ratio decidendi?

Answer 11

The part of the judgement that creates the precedent for judges to follow in future cases. A binding precedent.

Question 12

What is binding precedent?

Answer 12

A precedent that must be followed by all lower courts.

Question 13

What is the obiter dicta?

Answer 13

Other things said in the case that may influence judges in later cases.

Question 14

What does it mean if a precedent is not binding?

Answer 14

The precedent is persuasive only.

Question 15

What is the hierarchy of the criminal courts.

Answer 15

1. Supreme Court
2. Court of Appeal
3. Queen’s Bench Division
4. Crown Court
5. Magistrates Court

Question 16

What is the hierarchy of civil courts?

Answer 16

1. Supreme Court
2. Court of Appeal
3. Divisional Courts
4. High Court
5. County Court

Question 17

What is the European Court of Justice?

Answer 17

Used in points of EU law and binding on all courts in England and Wales. It does not affect other areas of law.

Question 18

What is the Supreme Court?

Answer 18

Precedents made in the Supreme Court bind all lower courts, the SC does not have to follow past decisions.

Question 19

How does the Supreme Court change previous laws?

Answer 19

Through the Practice Statement that was issued in 1966 and is used when ‘right to do so.’

Question 20

What is the Practice Statement 1966?

Answer 20

Allows the Supreme Court to change previous precedents if an earlier was was wrongly decided. It has the flexibility to refuse to follow an older case when it has the ‘right to do so.’

Question 21

What is an example of when the Practice Statement was used?

Answer 21

R v R (1991)- The law stated a married woman could not refused sex with her husband. Their Lordships decided that the law was outdated, therefore it was changed.

Question 22

What two ways can precedent be avoided?

Answer 22

Distinguishing and overruling.

Question 23

What is distinguishing?

Answer 23

If the facts of a case are different then there is no obligation to follow the previous case, this is known as a distinguishing case.

Question 24

What is overruling?

Answer 24

When a higher court is asked to review a precedent created by a lower court they can overrule.

Question 25

What are the advantages of judicial precedent?

Answer 25

1. Consistency and fairness in the law- it is just and fair that similar cases should be judges similarly
2. Flexibility- gives room for the law to change

Question 26

What are the disadvantages of judicial precedent?

Answer 26

1. Complexity- Judgments can be very long and there are many reported cases
2. Rigidity- Precedent can make the law too inflexible.