Judicial Precedent

Question 1

What is common law?

Answer 1

Law that comes from court outcomes

Question 2

What is legislation?

Answer 2

Law that has been passed by parliament

Question 3

What is the hierarchy of the courts ?

Answer 3

Every court is bound to follow the decisions made by a court above it in the hierarchy

Question 4

What is the hierarchy of the criminal courts?

Answer 4

Supreme court
Court of appeal (criminal division)
Queens bench divisional court
Crown court
Magistrates court

Question 5

What is the hierarchy of civil courts?

Answer 5

Supreme court
Court of appeal (civil division)
Divisional courts
High court
County court

Question 6

What are the 3 types of judicial precedent?

Answer 6

Binding precedent
Original precedent
Persuasive precedent

Question 7

What is binding precedent?

Answer 7

When a case comes to court as is similar to an existing case the court have to follow the previous decision. The first case is the binding precedent

Question 8

What is original precedent?

Answer 8

A situation where the point has never been before decided meaning there is an opportunity to make new law

Question 9

What is persuasive precedent?

Answer 9

Does not have to be followed but may be taken into account such as
-courts lower in the hierarchy
-decisions of the judicial committee of the privy council
-statements made obiter dicta
-a dissenting judgement
-decisions of courts in other countries

Question 10

How may a court avoid the rules of binding precedent? (F.O.R.D)

Answer 10

Follow
Overrule
Reverse
Distinguish

Question 11

How does follow : reasoning by analogy work?

Answer 11

Being able to identify important similarities between the facts of a case. An example is how donoghue v Stevenson reasoning was followed in Grant v Australian knitting mills

Question 12

How does overruling binding precedent work?

Answer 12

Where a court higher up reviews a previous case such as the R v R overruling R v Miller as it became known a man can be guilty of marital rape

Question 13

How does reversing work for binding precedent?

Answer 13

Where a case when being reviewed is disagreed with the original outcome for example sweet v parsley as it was not an offence of strict liability so without the mens rea should not be guilty

Question 14

How does distinguishing work with binding precedent?

Answer 14

Where they look at the differences within the cases to show they can’t have the same outcome as it would be unfair, an example is Balfour v Balfour and Merritt v Merritt

Question 15

What is ratio decidendi?

Answer 15

The reason for the decision

Question 16

What is Per incuriam?

Answer 16

A legal ruling in a last case is wrong because it was made ‘through lack of care’

Question 17

What is obiter dicta?

Answer 17

Everything else said in the judgement that isn’t directly relevant to the facts of the actual case

Question 18

What is stare decisis?

Answer 18

To stand by what has been decided

Question 19

Ratio decidendi and the case donoghue v Stevenson

Answer 19

The ratio decidendi is the reason for the decision so here it is that the defendant had gotten ill so would be unfair for nothing to happen

Question 20

What is the practice statement 1966?

Answer 20

Though the decision is meant to be final from the supreme court they are able to depart when suitable

Question 21

How was the practice statement used in Herrington v BRB overruling Addie v Dumbreck?

Answer 21

The practice statement was used to overrule a previous decision about not owing a duty of care to child trespassers

Question 22

How was the practice statement used in shivpuri and Anderton V Ryan?

Answer 22

Overruled statement from previous year to correct an error of interpretation

Question 23

What did London street tramways v London county council establish?

Answer 23

A decision made by the supreme court is conclusive and cannot be reargued

Question 24

What does the human rights act do?

Answer 24

Required all UK courts to take account of desions of the European court of human rights but can decline to follow them

Question 25

Desions before and after Brexit , are they binding?

Answer 25

Desions made by the CJEU before Brexit are binding but may depart from it where it is right to do so
Desions after are persuasive precedent

Question 26

Court of appeal and judial precedent

Answer 26

Court of appeal is that
-bound by decisions of the supreme court
-it binds itself
-one division of CofA will not bind the other

Question 27

What are the exceptions in young v Bristol aeroplane for the CofA

Answer 27

1. Supreme court/ house of lords overruled
2. conflicting court of appeal decisions
3. Per incuriam

Question 28

What is shown in Family housing association v Jones

Answer 28

The court of appeal did not follow a previous decision as they were concerned if may conflict with a recent house of lords decision

Question 29

What does Tiverton v Wearwell show?

Answer 29

The CofA decided to go with an older decision regarding the law of property rather than their most recent decision in the area of law

Question 30

What does the case William v Faucett show?

Answer 30

The court of appeal did not follow a previous decision a it was based on an incorrect understanding of the civil procedure

Question 31

CofA (criminal division)

Answer 31

Can refuse to follow past decision with extra exception as people’s liberty are at stake stated in R v Gould

Question 32

Court of appeal and Europe

Answer 32

Like the supreme court the court of appeal can depending the ‘retained EU law’ which lower courts cannot