Judicial precedent

Question 1

Stare decisis 8m

Answer 1

To stand by a decision
Enforced by binding precedent
They have to stand by the previous decision made
Used by court hierarchy (inferior have to stand by decision of higher)
Require judges to be aware of ratio decidendi and obiter dicta
Exceptions = difference of facts or supreme court
Donoghue v Stevenson set a binding precedent using this

Question 2

Ratio decidendi 8m

Answer 2

Reason or motivation behind a legal decision
Forms = binding, original or persuasive precedent
Can only operate if reasons for past decisions are known
Judge makes a speech giving a reason for the decision
Includes = fact summary, review of arguments and explain principles that influence decision
Sir Rupert Cross, ‘any rule…treated by the judge as a necessary step in reaching his conclusion’

Question 3

Obiter dicta 8m

Answer 3

Other things said
Comments made in court that influences/supports a decision (ratio decidendi)
R v Gotts, influenced by a comment made in the case R v Howe
Done through the types of precedent
Judge says what their decision would have been if the facts were different
Don’t have to be followed in future cases
Continuous to ratio decidendi

Question 4

Court hierarchy 8m

Answer 4

Inferior/lower court - magistrates/crown and county, don’t have the power to create or overrule precedent from previous cases
Superior/higher court - appellate/high and court of appeal, can overrule previous decisions of lower courts, cannot overrule courts higher than them or themselves
Supreme court - can overrule any previous decision from any court, including its own decisions (practice statement)

Question 5

Types of precedent 8m

Answer 5

Original precedent - must come to own decision, point of law hasn’t come before a court before, Donoghue v Stevenson, duty of care 1st time
Binding precedent - lower must follow previous higher decision with similar facts, exceptions = case facts are different/ supreme doesn’t have to follow previous (practice statement), Donoghue v Stevenson set a binding precedent
Persuasive precedent - previous decision/ statement used to support a decision, R v R overturned marital rape using Scottish high court case as it’s reasoning

Question 6

Ways to avoid precedent 8m

Answer 6

Distinguishing - avoid previous decision, facts are different enough to a previous case, Balfour v Balfour and Merritt v Merritt, intention to create legal relation between couple
Overruling - higher court decides previous lower court decision is wrong so make a new precedent, use of practice statement (supreme can overrule own decision), Youngs case
Reversing - higher reverses decision of a lower, case on appeal in the same case

Question 7

Precedent 12m

Answer 7

Adv, flexible, ways to avoid precedent, can be adjusted to each individual case
Adv, fair, cases are decided the same way, harder for a judge to be biased
Adv, certainty, know what the outcome will be (binding), easier to advice
Adv, saves time, court follow previous decision so don’t waste court time reaching decision, cheaper
Disadv, no guidance, supreme court don’t know when to use practice statement, cause uncertainty
Disadv, wrong decisions, judge may be forced to make an unfair ruling, miscarriage of justice
Disadv, complex, small distinctions with diff precedents, courts struggle to know what decision to make
Disadv, rigid, courts can’t make changes as law already exists, lower courts have to rely on an appeal

Question 8

COA powers 12m

Answer 8

Disadv, reduces certainty, lower courts may have conflicting decision from COA and supreme (hard to advise), however can choose the better decision for the case
Disadv, increased appeals, appeal in hope COA makes original precedent, COA will have more cases (slower)
Adv, final court for most cases, very few reach supreme, more cases have chance to correct a legal decision, however undermines supreme
Adv, quicker to serve justice, appealing to supreme takes a long time (proof), in public interest