Judicial precedent

Question 1

What is judicial precedent

Answer 1

Past decisions of judges create a law for new judges to follow

Question 2

Who must follow judicial precedent

Answer 2

Any judge in a court lower than the judge who set it who’s case has similar facts

Question 3

What are the 3 things that fall under judicial precedent

Answer 3

Ratio decidendi, Obiter dicta, Stare decisis

Question 4

What is stare decisis

Answer 4

Stand by what has been decided meaning you will follow the rules of judges higher than you- principle

Question 5

What is ratio decidendi

Answer 5

The legal principle set out in the case, this is what is to be followed

Question 6

What is obiter dicta

Answer 6

The other comments that a judge makes. These are not legally binding however they can be taken into account.

Question 7

What are the 3 types of precedent

Answer 7

Binding, Original, Persuasive

Question 8

What is binding precedent

Answer 8

Precedent from an earlier case that must be followed if the case facts are similar

Question 9

What is a case that supports binding precedent

Answer 9

Caldwell

Question 10

What is original precedent

Answer 10

If a point of law has never been decided before what this judge decided will be the new precedent

Question 11

What case is an example of original precedent

Answer 11

Donoghue v Stevenson

Question 12

What are the 5 things a judge can be persuaded by

Answer 12

Courts lower in the hierarchy, the privy council, obiter dicta, dissenting judgements and other countries

Question 13

Why might courts lower in the hierarchy be persuasive

Answer 13

If they have the same reasoning as a court higher than them

Question 14

Why might the pricy council be persuasive

Answer 14

As they are in the hierarchy they decisions aren’t binding however their decisions are respected so may be looked at if a similar case has been present

Question 15

Why might obiter dicta be persuasive

Answer 15

They may agree with a statement already made that doesn’t fall within the law

Question 16

Why might a dissenting judgement be persuasive

Answer 16

As this looks why a decision in court wasn’t unanimous so can over look it as a whole and can agree with those that apposed the prior law

Question 17

Why might other countries be persuasive

Answer 17

If a certain idea/ rule works well in another country it may influence the decision

Question 18

What did the house of lords decide about judicial precedent

Answer 18

Following a past decision was more important than creating individual hardships creating certainty in the law

Question 19

What is the supreme courts power

Answer 19

Bound by their own decisions unless they are wrong and they can decide if the law is compatible with the European convention on human rights

Question 20

What do practise directions 3 and 4 state

Answer 20

The house of lords can change a previous law when it is deemed to have been decided wrong

Question 21

What is the precedent of the court of appeal

Answer 21

Bound by the supreme court. It has 2 divisions (civil and criminal) and the decision made in one doesn’t bind the other.

Question 22

You don’t have to follow the decisions previously set out under 3 conditions…

Answer 22

May be conflicting decisions in the past so the court can choose which to follow, If there is a decision in the supreme court that overturns the court of appeal and the decision was made carelessly/ by mistake

Question 23

What are the three methods of handling precedent

Answer 23

Overruling, Reversing, Distinguishing

Question 24

What is overruling

Answer 24

When they decide precedent from an earlier case was wrong either by a higher court of the supreme court on one of its own

Question 25

What is reversing

Answer 25

When the court higher in the hierarchy overturns the decision of a lower court on the same case, the new rule will then be set in place for that lower court

Question 26

What is distinguishing

Answer 26

voiding a past decision that otherwise would have been followed as the judge finds a fact that makes them sufficiently different enough so the old precedent is not binding to this case

Question 27

What are advantages of judicial precedent

Answer 27

Certainty, Consistency, Flexibility, Filling gaps, Time saving

Question 28

What are disadvantages of judicial precedent

Answer 28

Judges making laws, Complexity, Illogical distinctions, Uncertainty