Features of Precedent (An Exam Question)

Question 1

Judgements

Answer 1

At the end of every case a judgment is given. This is made up of the ratio decidendi (reason for his decision) and the obiter dicta (other statements/words).

Question 2

Ratio decidendi

Answer 2

-This is the judge’s reason for the decision, or the legal principles applied to the case and it is this part that becomes the binding precedent for future similar cases.
 -In Donoghue v Stevenson the reason for the decision was that a manufacturer owed a duty to anyone closely and directly affected by what they did or did not do in relation to their product (the neighbour principle). This was later followed in Grant v Australian Knitting Mills.
 -In Shaw v DPP, publishing a directory of prostitutes was held to be ‘conspiracy to corrupt public morals’. This was later followed in Knuller v DPP where D was found guilty of the offence after he published adverts for homosexuals to meet other men for sex.

Question 3

Obiter Dicta

Answer 3

-This is the other words said by the judge and this is persuasive precedent for future similar cases. It is often something a judge says to help explain/illustrate his decision. Judges can consider the obiter dicta, but do not have to follow it.
 -In Hill v Baxter the hypothetical example of a swarm of bees was used to explain when the defence of automatism could be used.
 -In Howe, the obiter dicta was that duress was should not be available as a defence for any D who had attempted, conspired to or been an accessory to murder. This was considered in the later case of Gotts where it was decided that duress was not available for attempted murder (ratio decidendi). This then became binding.

Question 4

The Court Hierarchy

Intro paragraph

Answer 4

Judicial precedent depends upon the hierarchy of the courts (ranked in order with the most important at the top). Whether a decision is binding will depend on the court it was heard in. The courts at the top of the hierarchy bind all those below it but they are also bound by those above.

Question 5

The Court Hierarchy

Supreme Court

Answer 5

The Supreme Court sets binding precedents on points of law of great importance, which all courts below it must follow. This means it binds the Court of Appeal, High Court, down to the Magistrates Court.
It also generally binds itself although the judges can depart from past precedent where it appears right to do so using the Practice Statement 1966 (PS). It was used in R v G&R (2003) to abolish objective recklessness in Caldwell. However, the Supreme Court are reluctant to use it as seen in Knuller v DPP where they had the opportunity to use the PS and avoid the decision from Shaw v DPP.

Question 6

The Court Hierarchy

• Court of Appeal
• High Court
• Crown/Magistrates

Answer 6

• The Court of Appeal is below the Supreme Court and so must follow all decisions made by them. The Court of Appeal sets binding precedents, which all courts below it must follow. It binds itself in the civil division, unless Young v Bristol Aeroplane applies. It binds itself in the criminal division unless Young applies or, as in R v Taylor and R v Gould, the law has been “misapplied or misunderstood”.
• The High Court is bound by the Supreme Court and the Court of Appeal. It does not bind itself although they tend to follow each other’s decisions.
• The Crown Court and Magistrates Court are bound by the Supreme Court, Court of Appeal and High Court. They do not make binding decisions.

Question 7

Intro of Law Reporting

Answer 7

-The principle of stare decisis can only operate if there are accurate reports of the court’s decisions - In order to follow past decisions, there must be an accurate record of what those decisions were, and the reasons behind them, so that judges can decide whether or not to apply the same reasoning.

Question 8

When did they exist? Problems?

Answer 8

Law reporting has existed since the 13th century, although often the reports were too brief or inaccurate.
From 1535 to 1865 cases were reported by individuals who made a business out of selling the reports to lawyers. The detail and accuracy of these reports varied enormously.

Question 9

More information about law reporting

Answer 9

In 1865 the Incorporated Council of Law Reporting was established. This was controlled by the courts and is usually noted down word for word by SPECIALIST LAWYERS. Without this, judicial precedent would not have been able to develop properly.
The Council still exists today, in addition to other reports: The All England Reports and the Weekly Law Reports are available nowadays, as well as newspapers (e.g. the Times) and journals also report cases (although generally abbreviated versions). The Supreme Court and the Court of Appeal put their full case reports onto the internet. There are also subscription sites that contain virtually all cases. The main two are LexisNexis and Westlaw.

Question 10

What do law reports consist of

Answer 10

Law reports consist of: the case name, date, court, judge, summary, headnotes, statement of decision, references to other cases.