Judicial precedent

Question 1

What is judicial precedent?

Answer 1

Refers to the source of law where past decisions of judges create new law for future judges to follow.

Question 2

What is the doctrine of precedent?

Answer 2

• if there has never been a case like yours before, a judgement made by court would make a new law
• new law is called a precedent and would generally be followed by future courts with similar cases.

Question 3

What is the definition of Stare Decisis?

Answer 3

To stand by whatever has been decided and do unsettle the established.

Question 4

Explain Stare Decisis?

Answer 4

• supports idea of justice and fairness and provides certainty in law by standing by past decisions.
• doctrine of precedent means courts must follow decisions of courts above them in hierarchy or their own past decisions.
• Judicial precedent is IMMEDIATE

Question 5

What is a case example of stare decisis?

Answer 5

Schweppes Ltd Registar of Restricted Trading Agreements (1965)
- decision was made in case of Schweppes Ltd in 1965 with regards to a point of law, within hours the same point of law arose on case of Automatic Telephone.

Question 6

State what the 3 types of precedents.

Answer 6

• Original
• Binding:
• Persuasive

Question 7

Explain what an original precedent is.

Answer 7

• if point of law in a case has never been decided before, whatever judges decide in that case will form a new precedent for future cases.
• only on future case with similar facts- its an original precedent
  example of this : Caparo v Dickman (1990)

Question 8

Explain what a binding precedent is.

Answer 8

• precedent from a previous case that must be followed, even if judges disagree with legal principle
• only created when fact of second case are similar to original case
• decision made by a court senior

Question 9

Explain what a persuasive precedent is.

Answer 9

• not binding on court but judge may consider and decide its correct principle so he is persuaded he should follow it

Come from a number of sources:
- Courts lower in hierarchy
- Decisions of judicial committee of privy council
- Statements made obiter dicta
- dissenting judgement
- decisions of courts in other countries

Question 10

What is the hierarchy of the civil courts?

Answer 10

• supreme court ( formerly house of lords)
• court of appeal ( civil division )
• divisional court
• high court
• county court
• magistrates’ court

Question 11

What is the hierarchy of the criminal courts?

Answer 11

• supreme court ( formerly house of lords )
• court of appeal ( criminal divison )
• Kings’ bench divisional court
• crown court
• magistrates’ court

Question 12

What are the courts bound to, as of the rigid doctrine of judicial precedent?

Answer 12

• every court is bound to follow any decision made by court above it in the hierarchy
• appellate courts are bound by their own past decisions.

Question 13

When are lower courts in the hierarchy not bound follow decisions by the English Appellant Courts?

Answer 13

• there is a decision from Court of Justice of the European Union, English Courts must follow
• when the case involves human rights

Question 14

What are the courts of first instance for civil and criminal cases?

Answer 14

Civil:
- high court
- county court
- magistrates court

Criminal:
- crown court
- magistrates court

Question 15

What are the appellate courts for civil and criminal cases?

Answer 15

Civil:
- supreme court
- court of appeal
- divisional court

Criminal:
- supreme court
- court of appeal
- kings bench divisional court

Question 16

What do judgements include?

Answer 16

• summary of case facts
• review of arguments put forward
• principles of law used to form a decision
• decision made
• reasons for decision

Question 17

Define ‘ratio decidendi’ and explain what it is.

Answer 17

‘the reason for deciding’
- principles of law referred to - known as ratio decidendi
- only part of a judgement that forms a binding precedent
Case example: R v Chan Fook (1994) - ratio in this case states that actual bodily harm includes psychiatric injury to vicitm.

Question 18

How many judges can there be in each court?

Answer 18

• courts of first instance- one judgement
• divisional courts and court of appeal- 2 or 3 judges
• supreme court- uneven number either 3, 5, 7 or 9

Question 19

Define ‘obiter dicta’ and explain what it is?

Answer 19

‘other things said’
- rest of judgement (everything but principles of law used to form a decision) is known as obiter dicta
- judges in future cases don’t have to follow- not binding on courts
- facts and opinions can be considered in future cases but aren’t followed- known as persuasive precedents

Question 20

What is the definition of ‘per incuriam’?

Answer 20

made in error

Question 21

How is the Practice Statement used?

Answer 21

• allowed House of Lords to change law if they believed an earlier case has been decided wrongly
• flexibility to refuse an earlier case when ‘it appears right to do so’

Question 22

When was the Practice Statement first used in Civil Law?

Answer 22

• in case of Conway v Rimmer (1968) only involved small technical point
• first major use- case of Herrington v British Railway Board (1972) - involved law on duty of care owed to child trespasser.

Question 23

When was the Practice Statement first used in Criminal Law?

Answer 23

• stressed criminal law needs to be certain, didn’t instantly start overruling criminal judgements.
• First use- case of R v Shivupri (1986) which overruled decision in Anderson v Ryan (1985)

Question 24

What are the exceptions for which decisions within each division bind to their own division- confirmed in Young’s case?

Answer 24

Civil division:
- conflicting decisions in past court of appeal cases, court can choose which to follow and reject
- decisions of Supreme Court overrules Court of Appeal’s decisions
- decisions made per incuriam

Criminal division:
- same 3 exceptions from Young’s case
- can also refuse to follow past decisions if law has been - misapplied or misunderstood- idea recognised in R v Taylor (1950) and again in R v Gould (1968)

Question 25

Which 3 options can Judges/Courts choose when dealing with precedents?

Answer 25

• Following- judge decides previous precedent is relevant, judge should follow that decision- must apply same principle of law
• Distinguishing- avoid following past decisions, not bound by a previous case- if case facts are sufficiently different
• Overruling- Court in later case states that legal rule decided in earlier case is wrong; can occur in same level of court, or when a higher court overrules a decision made by a lower court.

Question 26

What are some advantages of Judicial Precedent?

Answer 26

• Certainty- as court follows past decisions, people know what law is and how it is likely to be applied in their case.
• Flexibility- room for law to change as Supreme Court can use Practice Statement to overrule cases.
• Fairness in Law- Seen as just and fair similar cases should be decided in a similar way.

Question 27

What are some disadvantages of Judicial Precedent?

Answer 27

• Complexity- use of distinguishing to avoid past decisions can lead to ‘ hair-splitting’ so that some areas of law have become very complex
• Slowness of Growth- judges aware areas of law are unclear or in need of reform, however cannot make decisions unless there’s a case before courts to be decided.
• Illogical Decisions- Nearly half a million cases, not easy to find all the relevant case law even with computerised databases.

Question 28

What was the Constitutional Reform Act 2005?

Answer 28

• Supreme Court replaced HoL in 2009.
• Transferred HoL’s powers to Supreme Court.
• Case of Austin v London Borough of Southwark (2010) confirmed Practice had been transferred although not used in this case