Judicial Precedent

Question 1

What does stare decisis mean?

Answer 1

To stand by what has been decided which means that similar cases will be decided in a similar way. This ensures certainty and stability in the law.

Question 2

What are judicial precedents?

Answer 2

Decisions made on a point of law by senior courts that must be followed by lower courts when a later case raising the same point of law arisis.

Question 3

What is the court hierarchy?

Answer 3

Shows which courts are more senior than others so we know which decisions are binding on which courts.

Supreme Court and Judicial Committee of the Privy Council (not binding)

Court of Appeal (civil and criminal division)

Divisional Courts- Chancery and family (civil) and KBD (criminal)

High Court (civil) and Crown Court (criminal)

County Court (civil) and Magistrates Court (criminal)

Question 4

When and how did law reporting become more uniform and thorough?

Answer 4

The Incorporated Council of Law Reporting was established in 1865. It consists of solicitors and barristers.

Question 5

Which law reports is the Incorporated Council of Law Reporting responsible for?

Answer 5

Cases from the divisional courts, the Court of Appeal and the Supreme Court.

Question 6

What are 2 examples of private law reports?

Answer 6

All England Law Reports which are published weekly

Newspapers like The Times

Question 7

What is included in a law report and which part is most important?

Answer 7

The name of the case, the court in which the case was heard, the name of the judge (s), the date of the hearing, a summary of the facts and legal issues and the decision of the court. The decision is most important as that is what judges will use as precedent for future cases.

Question 8

Why is law reporting important for precedent?

Answer 8

It allows judges to find out about decisions made by previous judges in higher courts as they wouldn’t know about these otherwise.

Question 9

What is the ratio decidendi?

Answer 9

The reason for deciding. It is the decision and the reason for deciding that becomes the precedent which lower courts must follow in similar cases. It is binding on lower courts. e.g. the ratio in Oxford v Moss was that information is not property which can be stolen.

Question 10

What is the obiter dicta?

Answer 10

It means other things said and is everything else a judge says in the judgement that is not the ratio. In this the judge may speculate as to what the decision would have been if the facts of the case had been different. This is not binding but has a persuasive value on other courts.

Question 11

What is original precedent?

Answer 11

When a case raises a point of law that has never been decided, the judge must make a decision on the point of law and that becomes an original precedent. Judges can use cases which are close in principle (sometimes from other countries) and apply similar rules- reasoning by analogy.

Question 12

What is an example of original precedent?

Answer 12

Donoghue v Stevenson. This case created the area of law of negligence as the law of contract didn’t cover the facts of this case- snail in beer but V’s friend was the one that bought the beer. The HoL said that a manufacturer owes a duty of care to the ultimate consumer of a product.

Question 13

What is binding precedent?

Answer 13

The ratio decidendi of a case in a senior court must be followed when a later case raising the same point of law is heard in a lower court. The ratio is therefore a binding precedent.

Question 14

What are the types of judicial precedent?

Answer 14

-Original precedent
-Binding precedent
-Persuasive precedent

Question 15

What is persuasive precedent?

Answer 15

This is a decision that a court is not bound to follow but can choose to follow if it wishes. This can be anything said obiter dicta.

Question 16

What is an example of binding precedent?

Answer 16

In Grant v Australian Knitting Mills, the CoA had to follow the HoL decision made in Donoghue v Stevenson and find the employer liable under the new law of negligence as the HoL is a higher court.

Question 17

What are the sources of persuasive precedent?

Answer 17

Lower courts
Obiter dicta
Dissenting judgements
Judicial Committee of the Privy Council
Decisions from other countries

Question 18

How are lower courts a source of persuasive precedent?

Answer 18

Higher courts are not bound to follow their decisions but they can choose to follow them if they like. e.g. R v R where the CoA said that marital rape should be illegal and the HoL agreed. They didn’t have to follow the CoA but they were persuaded to make the same decision.

Question 19

How is obiter dicta a source of persuasive precedent?

Answer 19

Obiter is not binding but later cases can choose to follow the obiter if their case is dealing with the issue mentioned by the obiter. e.g. R v Howe was dealing with murder but the judge said that duress should not be a defence for attempted murder either. R v Gotts which was dealing with attempted murder and the judge chose to follow the obiter from R v Howe.

Question 20

How are dissenting judgements a source of persuasive precedent?

Answer 20

It is a judgement that goes against the majority in that case. e.g. in Rose and Frank v Crompton Bros, most judges in the CoA decided there was a contract but the case went to the HoL where they decided to follow the decision of the judge who disagreed with the majority in the CoA.

Question 21

How is the Judicial Committee of the Privy Council a source of persuasive precedent?

Answer 21

They are not a UK court and so UK courts don’t have to follow their decisions but they are made up of judges from the UK Supreme Court so decisions made are likely to be good authority. e.g. in The Wagon Mound case, the Privy Council decided the remoteness test for negligence and this test has since been adopted in UK law.

Question 22

How are decisions in other countries a source of persuasive precedent?

Answer 22

Some countries have similar legal rules and systems to the UK so their decisions can be useful for UK law. These rules don’t bind us but we can choose to adopt them. e.g. R v Bentham was a UK case that chose to follow the Canadian case of R v Sloan about posession of firearms.

Question 23

Which case ruled that the HoL should abide by their own previous decisions?

Answer 23

London Street Tramways v London County Council

Question 24

When was the Practice Statement introduced and what does it allow the Supreme Court to do?

Answer 24

1966- it allows the Supreme Court to depart from its previous decisions when it appears right to do so.

Question 25

Which case showed that the HoL was reluctant to use the Practice Statement?

Answer 25

Jones v SoSSS where the HoL refused to overrule Re Dowling even though they admitted the decision in that case was wrong. They said certainty is more important than injustices for a minority.

Question 26

When was the first use of the Practice Statement in a civil case?

Answer 26

In 1972 when Herrington v BRB overruled the case of Addie v Dumbreck. The HoL said that changes in society meant the law had become out of date.

Question 27

When was the first use of the Practice Statement in a criminal case?

Answer 27

In 1986 (20 years after the Practice Statement was introduced) in R v Shivpuri which overruled the case of Anderton v Ryan. Changed their minds in one year to say that it should actually be a crime to attempt to commit the impossible offence.

Question 28

Does the criminal division of the CoA bind the civil division and vice versa?

Answer 28

No, but each division’s past decisions binds itself. e.g. criminal is bound by criminal.

Question 29

What are the 3 exceptions to the general rule that the CoA is bound by its own past decisions?

Answer 29

1) If there are conflicting decisions in past CoA cases, the court can choose which decision it will reject.

2) If there is a decision in the Supreme Court which overrules a past CoA decision, the CoA must follow the Supreme Court decision.

3) If the decision is made per incuriam (carelessly or by mistake) because a relevant Act or regulation wasn’t considered. e.g. Rickards v Rickards.

Question 30

Which case set out the 3 exceptions when the CoA is not bound by itself?

Answer 30

Young v Bristol Aeroplane Co Ltd

Question 31

What is the 4th exception in the criminal division of the CoA?

Answer 31

If the law has been misapplied or misunderstood e.g. R v Taylor. This exception is here because a person’s liberty might be at stake.

Question 32

What are the ways of avoiding precedent and how many cases do they each involve?

Answer 32

Overruling- 2 cases
Distinguishig- 2 cases
Reversing- 1 case

Question 33

What is overruling?

Answer 33

This is when a higher court in a later case decides that a precedent of an earlier case on the same point of law is wrong or outdated. Higher courts can overrule precedents of lower courts or sometimes they can overrule their own e.g. the Supreme Court using the Practice Statement.

Question 34

What are some examples of overruling?

Answer 34

R v Shivpuri (D thought he was dealing drugs and said so to the police and was found guilty of attempting to deal drugs even though it was only vegetable powder) overruled Anderton v Ryan (D thought her video player was stolen and said so to the police but was found not guilty). Made it illegal to attempt to commit the impossible offence.

Herrington v BRB overruled Addie v Dumbreck (changes in society meant the law was outdated).

Question 35

What is distinguishing?

Answer 35

This happens when any court decides that the material facts of a case are sufficiently different from an earlier case that it can draw a distinction between the two and the court in the later case is not bound by the precedent of the earlier case. The later case will create another precedent on the same point of law as the earlier case. 2 precedents now exist on the same point of law to deal with 2 different factual situations.

Question 36

What are some examples of distinguishing?

Answer 36

Merritt v Merritt distinguished Balfour v Balfour where Merritt v Merritt said the agreement made did amount to a contract as there was intention to create legal relations, whereas Balfour v Balfour didn’t. Both cases involved a husband and wife but the agreement was written in Merritt v Merritt, the agreement was after they stopped living together and it was for a house whereas Balfour v Balfour was only about some money.
Can also use R v Jordan and R v Smith where medical treatment did break the chain of causation in Jordan but not in Smith.

Question 37

What is reversing?

Answer 37

Reversing is when a point of law is decided in a lower court and then the same case goes to a higher court who change that point of law. This is different to overruling because overruling is when a later case overrules an earlier case.

Question 38

What is an example of reversing?

Answer 38

R v Hasan where the HoL reversed the CoA decision to say that duress is self-induced whenever D knew or should have known the risk of being threatened with violence and it didn’t matter if he knew what crime he would be forced to commit.

Question 39

What are the advantages of judicial precedent?

Answer 39

-Provides certainty within the law
-Promotes flexibility within the law
-Allows the law to respond to real life situations
-Allows for judicial creativity which saves Parliament’s time

Question 40

Why is certainty an advantage of judicial precedent?

Answer 40

Based on stare decisis so the same decision will always be reached by lower courts and higher courts are reluctant to overrule their own precedents even when they can- Jones v SoSSS where HoL refused to overrule Re Dowling as they knew the importance of certainty in the law. Lawyers, D, judges can prepare for trials and there is respect for the law so it will be followed.

Question 41

Why is flexibility an advantage of judicial precedent?

Answer 41

There are several ways of avoiding precedent e.g. overruling, distinguishing (all courts can do this) and reversing. R v Shivpuri overruled Anderton v Ryan as there was a serious error that had to be corrected quickly. This means bad decisions can be avoided and the law can easily be updated.

Question 42

Why is allowing the law to respond to real life situations an advantage of judicial precedent?

Answer 42

Precedent is based on case law so real life situations whereas statues deal with hypothetical situations. Able to change the law in R v R to reflect changes in society and make marital rape illegal. Law can be made and changed in response to real events so the law can develop and update with society.

Question 43

Why is judicial creativity an advantage of judicial precedent?

Answer 43

Courts can distinguish when the law doesn’t apply to the facts of the case and original precedents allow judges to create new law when there was no previous law. Judges created a whole new area of law- negligence in Donogue v Stevenson when contract law wouldn’t solve the problem. Leads to justice and saves Parliament’s time as they don’t have to create new law to cover new or minor situations.

Question 44

What are the disadvantages of judicial precedent?

Answer 44

-Makes the law too rigid and slow to develop
-Makes the law uncertain
-Precedent is complex
-Goes against separation of powers

Question 45

Why is making the law too rigid a disadvantage of judicial precedent?

Answer 45

Judges always make the same decisions as higher courts and don’t change decisions even when they can. HoL acknowledged that the decision in Re Dowling was wrong but kept it anyway for the sake of certainty. This means bad and outdated law won’t be changed quickly enough and will be repeated in future cases, leading to injustice.

Question 46

Why is making the law uncertain a disadvantage of judicial precedent?

Answer 46

Several ways of avoiding precedent so it is hard to know which decision will actually be made in a future case. Merritt v Merritt distinguished Balfour v Balfour but it makes future cases involving agreements for money between a couple living together uncertain. Having multiple decisions on similar cases makes the outcome hard to predict so lawyers, judges and D can’t prepare for trials properly and the law is hard to understand for the general public.

Question 47

Why is precedent being complex a disadvantage of judicial precedent?

Answer 47

There are over half a million precedents and even more get created through distinguishing. Can also be hard to tell the difference between obiter dicta and ratio decidendi so it’s hard for judges to apply the law. In Re J, the judge couldn’t figure out what the ratio was and so didn’t know what decision he was meant to be making. Law can’t be applied if judges can’t figure out what the law is meant to be.

Question 48

Why is going against separation of powers a disadvantage of judicial precedent?

Answer 48

Precedent allows judges to make and change laws and only Parliament should be able to do this. In R v R, the judges chose to make marital rape illegal despite Parliament never making a law against this themselves. Judges aren’t democratically elected so their laws may not represent what Parliament and society wants.