Doctrine of Precedent: Original, Binding, Persuasive

Question 1

When is an original precedent created?

Answer 1

If the point of law in a case has never been decided before, then what the judge decides will form a new precedent for future cases to follow

Question 2

When creating original precedent, as there are no past cases for the judge to follow to base his decision on, what may they do ?

Answer 2

-look at cases which are the closest in principle and decide to use similar rules

Question 3

When a judge uses similar cases to decide on an original precedent, what is this called?

Answer 3

Reasoning by analogy

Question 4

What is a binding precedent ?

Answer 4

A previous case of legal decision which must be followed in subsequent similar cases
or
A precedent from an earlier case which must be followed even if the judge in the later case does not agree with the legal principle

Question 5

When does a binding precedent apply?

Answer 5

Only created when the facts of the second case are sufficiently similar to the original case and the decision was made by a court which is senior to the court hearing the later case

Question 6

What is persuasive precedent

Answer 6

A precedent which is not binding but the judge may consider it and decide that it is a correct principle so he is persuaded that he should allow it

Question 7

In what case was the HOL persuaded by the Court of Appeal?

Answer 7

R v R 1991

A man could be found guilty of raping his wife

Question 8

What court is not apart of the court hierarchy in England and Wales?

Answer 8

Judicial Committee of the Privy Council

Question 9

How is the Judicial Committee of the Privy council different from other courts in England and Wales?

Answer 9

its decisions are not binding

Question 10

Why can decisions made by the Judicial Committee of the Privy Council be persuasive in UK courts?

Answer 10

Contains many judges who are also members of the Supreme Court (HOL) and so their judgements are treated with respect and may often therefore be followed

Question 11

In what case can the decision from the Judicial Committee of the Privy Council be seen as persuasive in a UK court?

Answer 11

The Wagon Mound (no.1) 1961

• law on remoteness of damages in the law of tort
• Courts in England and Wales followed this

Question 12

In what case did the Court of Appeal use the reasoning from the Privy Council over the House of Lords, why?

Answer 12

`A-G fro Jersey V Holley 2005

Question 13

In the cases R v Howe 1987 and R v Gotts 1992, what did the point of law did the obiter statement involve?

Answer 13

the law on duress (being forced to e.g kill someone)

Question 14

In the case of R v Howe 1987 what did the HOL rule?

Answer 14

That duress could not be defence to a charge of murder

Question 15

In the case R v Howe 1987 was the obiter statement ?

Answer 15

That duress would not be available as a defence for attempted murder

Question 16

How did the case of R v Gots 1992 , a case of attemoted murder, use R v Howe 1987 to make a decision?

Answer 16

the obiter dicta of R v Howe 1987 as persuasive precedent by the Court of Appeal

Question 17

What is a dissenting judgement ?

Answer 17

Where a case has been decided by a majority of judges, the judge who disagrees will explain his reasons

Question 18

How can a dissenting judgement be appealed?

Answer 18

The dissenting judge can appeal to the Supreme Court

-It is possible that the Supreme Court may prefer the dissenting judgement and decide the case in the same way

Question 19

How can a dissenting judge persuade precedent?

4

Answer 19

• If a dissenting judge appeals to the Supreme Court
• Supreme court may prefer the dissenting judgement
• If they do, the dissenting judgement has persuaded them to follow it
• persuasive precedent

Question 20

What countries can persuade precedent in the UK?

Answer 20

Commonwealth countries

e.g Canada, Australia and New Zealand