Judicial Precedent

Question 1

What is precedent?

Answer 1

Source of law where past decisions create law for future judges to follow
Judges must follow any decision by a higher court where the material facts are the same

Question 2

What is the Judgement?

Answer 2

Speech the judge makes at the end of the case

Question 3

What does the judgement include?

Answer 3

Summary of case facts
Review case arguments
Look at principles of law the judge used when making the decision
Ratio Decidendi
Obiter Dicta

Question 4

What is the Ratio Decidendi?

Answer 4

Reason for the decision

Binding for lower courts

Question 5

What is the Obiter Dicta?

Answer 5

Hypothetical outcomes if the case facts had been different

Non-binding and merely persuasive

Question 6

What is the Stare Decisis?

Answer 6

Principle of standing by what has been decided and to not unsettle the established
A judge must follow any decision by a higher court where the material facts are the same

Question 7

What 2 things does precedent need to operate?

Answer 7

A system of case reporting (because there are so many laws they must be accurately reported so judges can refer back to them)
A clear court hierarchy (so it’s clear who are the higher courts and who’s decisions must be followed)

Question 8

What is the hierarchy of criminal courts?

Answer 8

Supreme Court
Court of Appeal (Criminal Division)
Queen's Bench Divisional Court
Crown Court
Magistrates Court

Question 9

What is the hierarchy of civil courts?

Answer 9

Supreme Court
Court of Appeal (Civil Division)
Divisional Court
High Court
County Court

Question 10

What’s an example of a Ratio Decidendi

Answer 10

R v Dudley and Stephens

Question 11

What’s an example of an Obiter Dicta?

Answer 11

Hill v Baxter

Question 12

What are the problems with following the decisions of past cases all the time?

Answer 12

Laws can become outdated
Can’t change laws with the changes to the social and economic climate
Parliament would have to create a new law in order to change the law

Question 13

What solved the problem of not being able to change past laws?

Answer 13

The Practice Statement

Question 14

What is the Practice Statement?

Answer 14

Supreme Court do not have to follow past decisions if it ‘appears right to do so’

Question 15

When does it appear right to change law using the Practice Statement?

Answer 15

If it aids the proper development of the law
Allows justice in individual cases
If the social and economic climate has changed

Question 16

Which courts can use the Practice Statement?

Answer 16

Only the Supreme Court

Question 17

When is the Practice Statement used?

Answer 17

Only when it is completely necessary

Rarely

Question 18

When was the first use of the Practice Statement?

Answer 18

Conway v Rimmer

Question 19

Where can the courts reluctance to use the Practice Statement be shown?

Answer 19

Jones v SSSS

Question 20

When was the first major use of the Practice Statement?

Answer 20

Herrington v British Railways Board

Question 21

How long was it till the Practice Statement was used in a criminal case and which case?

Answer 21

20 years

R v Shivpuri

Question 22

What is a more recent example of the use of the Practice Statement?

Answer 22

R v R and G

Used to overrule the decision in R v Caldwell on recklessness in criminal law

Question 23

What is the main rule of the Court of Appeal?

Answer 23

Generally bound by previous decisions however there are exceptions set out in Young v Bristol Aeroplane

Question 24

What are the exceptions to the main rule of the Court of Appeal?

Answer 24

Where a previous decision of the of the Court of Appeal has been overruled by the Supreme Court the new decision must be followed
If there are two conflicting decisions the Court of Appeal can choose between them
If the decision if made in error (Williams v Fawcett and Rickards and Rickards) however this is ‘rare and exceptional’

Question 25

Which division of the Court of Appeal as an extra exception?

Answer 25

Criminal division

Question 26

What is the extra exception in the criminal division of the Court of Appeal?

Answer 26

Where the law has been misapplied or misunderstood then the court can overrule the earlier decision
R v Taylor and R v Gould
Because the punishments are bigger in the criminal division and they need to be more careful before sentencing

Question 27

What are the 3 types of precedent?

Answer 27

Binding Precedent
Original Precedent
Persuasive Precedent

Question 28

Binding Precedent

Answer 28

Decisions made by a higher court in an earlier case that have to be followed by a lower court in a later, similar case

Question 29

Original Precedent

Answer 29

If the point of law in a case has never been decided before, then whatever the Judge decides will form a new precedent for future cases to follow
Donoghue v Stephenson

Question 30

Persuasive Precedent

Answer 30

Precedents Judges may choose to follow, but which they are not bound to do so
Non-binding

Question 31

What are the types of persuasive precedent?

Answer 31

Obiter Dicta statements (e.g. R v Howe and R v Gotts when the Supreme Court ruled that duress could not be a defence to murder and also could not be a defence for attempted murder)
Dissenting Judgement (When a Judge disagrees with the majority opinion, they will give their reasons. A later Judge can then choose to follow the dissenting judgement e.g. Hedley Byrne v Heller)
Courts Lower In the Hierarchy (can follow the decisions of lower courts e.g. R v R)
Decisions of Courts in Other Countries e.g. R v Rabey

Question 32

What are the 3 ways of avoiding precedent?

Answer 32

Distinguishing
Overruling
Reversing

Question 33

Avoiding Precedent

Distinguishing

Answer 33

Finding significant differences between the previous and present case so the precedent is not relevant
e.g. Merritt v Merritt and Balfour v Balfour

Question 34

Avoiding Precedent

Overruling

Answer 34

When higher courts overrule the past decisions of lower courts if they decide they are wrong
e.g. R v Shivpuri and Anderton v Ryan

Question 35

Avoiding Precedent

Reversing

Answer 35

When a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case
e.g. R v Kingston

Question 36

Advantages of Precedent

Answer 36

Certainty (because the court follows past decisions people know what the law is and how to follow it, also lawyers can advise clients)
Fairness (the law must be consistent and fair to be credible)
Precision (Principles of law are set out in actual cases e.g. Donoghue and Stephenson)
Flexibility (There is room to change and the use of distinguishing also gives all courts some freedom to avoid decisions and develop the law. The law can change quickly to reflect changes in society e.g. R v R)
Time Saving (Cases with similar facts are unlikely to go through the lengthy process of litigation)

Question 37

Disadvantages of Precedent

Answer 37

Rigidity (Hard to change past decisions as courts are reluctant to use practice statement and few cases go to the Supreme Court so change will only happen with patience and money and also lower courts have to follow higher courts)
Complexity (not easy to find all relevant cases. Also, judgements in cases are lengthy and it's not always easy to find the relevant one)
Illogical Distinctions (Some areas are more complex and differences between some cases are so small they seem illogical)
Slowness of Growth (change in law cannot be made unless a case comes to the court to be decided and very few cases go to the Supreme Court)