Judicial Precedent

Question 1

what is the doctrine of precedent?

Answer 1

judges following the decisions of previous cases.

Question 2

What is this kind of law also known as?

Answer 2

Case law

Question 3

What is binding precedent?

Answer 3

A decision in an earlier case which must be followed in later cases even if judge doesn’t agree with principle.

Question 4

When are binding precedent put into place, created?

Answer 4

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

Question 5

What is persuasive precedent?

Answer 5

Decisions which does not have to be followed by later cases, but judge may decide to follow.

Question 6

What does the Latin maxim ‘stare decisis’ mean?

Answer 6

‘Stand by what has been decided and do not unsettle the established’. It is foundation of judicial precedent.

Question 7

What is ratio decidendi?

Answer 7

This is the reason for the decision. This forms the precedent for future cases.

Question 8

What is obiter dicta?

Answer 8

This means ‘other things said’. So it is all the rest of the judgement apart from ratio decidendi. Judges in future cases do not have to follow it.

Question 9

Where does persuasive precedent come from?

Answer 9

Courts lower in hierarchy.
Decisions of the judicial committee of the privy council.
Statements made obiter dicta.
A dissenting judgement.
Decisions of courts in other countries.
Decisions of European court of Human rights.

Question 10

What is a dissenting judgement?

Answer 10

A judgement given by a judge who disagrees with the reasoning of the majority of judges in the case. Example of when HoL followed this = Rose&Frank v Crompton Bros.

Question 11

What is original precedent?

Answer 11

A decision on a point of law that has never been decided before. As no past cases to base decision, judges look at cases which are closest in principle. This so called reasoning by analogy.
Donoghue v Stevenson

Question 12

What is the hierarchy of the criminal courts?

Answer 12

Supreme Court

Court of appeal

Queen’s bench division court

Crown court

Magistrates court

Question 13

What are the 2 expectations where lower courts are not expected to follow decisions by higher courts?

Answer 13

When there is a decision of the court of justice of the European Union when the English courts have to follow that decision.

In cases involving human rights.

Question 14

What are the appellate courts in the English legal system?

Answer 14

Court of justice of European Union

Supreme Court

Court of appeal

Divisional courts

Question 15

What are appellate courts

Answer 15

Those that hear appeals.

Question 16

What is the Supreme Court?

Answer 16

Most senior national court
Decisions bind all other courts
Replaced HoL in 2009
Not bound by its past decisions although generally will follow them.

Question 17

What is the court of appeal?

Answer 17

2 divisions; civil and criminal
Bound to follow decisions of Supreme Court
Must usually follow past decisions of its own, although some exceptions to this in the young’s case

Question 18

What is the divisional courts?

Answer 18

3 divisional courts: queens bench, chancery and family.

Bound to follow decisions of supreme and court of appeal.

Question 19

What are courts of first instance?

Answer 19

Any court where original trial of a case is held.

High court and the inferior courts.

Question 20

Who is high court bound by?

Answer 20

All courts above and binds lower courts

Question 21

Who is inferior courts bound by?

Answer 21

These are= crown court, county court and magistrates.

Bound to follow decisions of all higher courts and unlikely that their decisions would create precedent.

Question 22

What is the practise statement?

Answer 22

1966 Lord chancellor issued practise statement.
It allows HoL to change law if they believe earlier case was wrongly decided.
Also gives flexibility to refuse to follow an earlier case where it appears right to do so

Major use= Peppar v Hart (1993)
R v Shivpuri

Question 23

What is overruling?

Answer 23

This is where a court in a later case states that the legal rule in an earlier case is wrong.
Occurs when higher courts overrules decision made in a lower court or when Supreme Court uses practise statement.

Question 24

What is distinguishing?

Answer 24

A method by which a judge avoids having to follow what would otherwise be binding precedent because facts in a present case are different.

Used in Merritt v Merritt
Previous case was Balfour v Balfour.

Question 25

What are advantages of judicial precedent?

Answer 25

Certainty as people know what the law is
flexibility, room for change e.g. practice statement
time saving, cases similar to past don’t have to go through lengthy process

Question 26

disadvantages of judicial precedent

Answer 26

rigidity- lower courts must follow higher courts, Appeal has to follow past decisions, too inflexible and bad past decisions can be perpetuated

complexity- not easy to find relevant law, judgements are long, no distinction between ratio decidendi and obiter dicta

illogical distinctions- distinguishing can lead to complex law