Judicial Precedent

Question 1

What is judicial Precedent?

Answer 1

The process that demands that courts will follow the decisions of higher/ equal courts

Question 2

What is the Latin for “stand by what has been decided and do not unsettle the established”?

Answer 2

“Stare Decisis et non quieta movere”

Question 3

What two elements do judgments contain?

Answer 3

1) Ratio Decidendi= “reasons for decision”
2) Obiter Dicta= “other things said”

Question 4

What is Ratio Decidendi?

Answer 4

-This is not the decision itself, instead it is the legal reasoning that led to the outcome

Question 5

What type of precedents do Ratio comments set?

Answer 5

Binding Precedents that future judges hearing similar cases must follow
e.g The Neighbour Principle from Donoghue v Stevenson explains why a manufacture should owe a duty of care to an unknown consumer

Question 6

What is obiter dicta?

Answer 6

-This describes the remainder of judgment and means “other things said” such comments include:
-Speculation
-Opinions
-Instructions
(Do not create binding precedent so can be ignored, instead create persuasive precedent that judges can choose to follow)

Question 7

What is Speculation?

Answer 7

Type of Obiter Dicta comment
(Speculation on how the law might apply to factual variations of the case)
e.g In R v Howe the HL ruled that duress could not be used as a defence to murder and said in obiter that duress should also not be sued for attempted murder. In R v Gotts the CA applied this variation to an attempted murder case

Question 8

What is an opinion?

Answer 8

A type of Obiter Dicta comment
(Good or bad about the biding precedent being applied)
e.g In Elliot, Lord Goff disapproved of the objective test for determining recklessness
“I would be lacking in candour if I were to conceal my unhappiness about the conclusion I feel compelled to reach”

Question 9

What is an instruction?

Answer 9

A type of Obiter Dicta comment
(An instruction to future judges about a change judges would like to be made)

Question 10

What are the 3 types of precedent?

Answer 10

• Original Precedent
  -Binding Precedent
  -Persuasive Precedent

Question 11

Describe Original Precedent

Answer 11

-When an area of law is brand new and has never been decided upon before this is known as original precedent
-Whatever the judges decide will be the precedent future judges have to follow
-As judges are dealing with a new legal issue and have no precedent to follow they will look at other cases closest in principle and have inspiration- known as “reasoning by analogy”
e.g Donghue v Stevenson (Original Precedent)

Question 12

Describe Binding Precedent

Answer 12

This precedent must be followed
-It will only be binding when the facts of the new case are sufficiently similar to the binding case and it was set b a equal or more senior court

Question 13

Commonly Original Precedent = Binding Precedent However the binding precedent is not necessarily still the original precedent as it may have been altered. State an example

Answer 13

e.g Donghue
then comes along
Caparo

Question 14

Describe Persuasive Precedent

Answer 14

This precedent does not have to be followed but a judge has discretion to be inspired or persuaded by it. Therefore, persuasvie precedent can also turn into binding precedent when “used”

Question 15

State 5 sources that persuasive precedent can come from

Answer 15

1)Obiter Dicta
e.g In Howe the HL ruled that duress could not be a defence to murder and said in obiter that duress should not be used for an attempted murder. In Gotts, when listening to an attempted murder and duress case the CA were persuaded by this statment and offically applied it to the case.
2)Dissenting Judgments
In a majority ruling the disagreeing appeal judge is entitled to explain their reasoning. If the case were to be appealed again the higher court may prefer the dissenting judgment and use it, thus turning it into a binding precedent
3)Lower Court Decisions
In R v R the HL argreed with the CA that a man could be guilty of raping his wife and so were presuaded by a lower court
4)Privy Council
Hears appeals from Commonwealth countires, though not in our main court hierarchy their decisions are highly repsected and in exceptional cases a Privy Council decision may be followed over a binidng English court decision
5) Commonwealth Countries
These countries use similar law principles therefore they can persuade our judges and inspire their decisions on similar cases

Question 16

What are the appellate Courts?

Answer 16

1) The Supreme Court (Binds all courts below but itself is the exception to the self-binding rule to allow the law to stay up to date with society)
2) Court of Appeal (Bound by the Supreme Court, exception to the self-binding rule, binds all courts below)
3) Divisonal Courts (Bound by the Supreme Court and the Court of Appeal, binds all courts below)

Question 17

What are the courts of First Instance?

Answer 17

1) High Court (bound by all above and binds all below)
2)Crown Court , County Court and Magistrate Court (bound to follow all above and do not set precedent as new legal points wil generally be appealed to confirm them)

Question 18

When is there an exception to judical precedent?

Answer 18

Lower courts do not need to follow decisions by higher domestic courts when there is an incompatability with the ECHR, however such cases are commonly appealed by the losing party so that it can be reviwed by a superior court
e.g Mendoza (when the CA decided not to follow an earlier HL decision as to do so would have been incompataible with Article 14 Prohibitation of discrimination) Whne the Hl heard the CA decision they agreed

Question 19

What was the original view on the Supreme Court regarding its right overule past decisions?

Answer 19

The SC had the ultimate right to overule its own past decisions and change precedent whenver it saw fit to ensure justice in each case.
However this was an extremely borad power that came with little guidance and was overused

Question 20

During the 19th century what happened to the Supreme Courts power to change precedent when they saw fit?

Answer 20

This extreme flexibility disappeared in favour of rigidity and consistency

Question 21

What did the House of Lords confirm in London Street Tramways Co (1898)?

Answer 21

HL decided that certainty in the law was more important than indiviudal hardship being caused throguh having to follow a past decision and do they decided they should be COMPLETELY BOUND BY THEIR OWN PAST PRECEDENTS

Question 22

Post 1898 how could a HL precedent be altered?

Answer 22

Only way if in “per incuriam” = in error
e.g Decided without haivng considered a relevant statute by mistake
But this was a rare occurances
or Parliament could intervene and alter the law however this was a rare occurrance e.g S.8 Criminal Justice Act 1967 was introduced to provide a subjective test for oblique intention to overrule Smith which created an objective test oringinally

Question 23

Why was the post 1898 Supreme Court (house of lords) being completely bound by a previous decision bad?

Answer 23

Not allowing for change stifled legal developement and meant hat law was unable to reflect an evolving society
-“wrong” decisions could only be righted by Parlamient

Question 24

When was the Practice Statement introduced?

Answer 24

1966

Question 25

How did the Practice statement restore flexibility to the HL?

Answer 25

Reversed the rules set in London Street Tramways co
but also gave more guidance as to when to overruel a binding precedent to over some limitations to its use
-Gave the HL flexibility to depart from a previous decision when it “appears right to do so”

Question 26

Who introduced the Practice Statement?

Answer 26

Lord Gardiner

Question 27

When the PS 1966 is used to change the law, what is it know as?

Answer 27

Overrulling
It deletes the olding bidning ratio and replaces it with a new ration which must be followed by all courts in the future

Question 28

What was confirmed in Austin?

Answer 28

The Practice Statement was transferred from the old House of Lords to the new Supreme Court after the Constitutional Reform Act 2005

Question 29

When was the first use of the PS 1966 in Civil law?

Answer 29

Conway (concerned a minor technical point of law)

Question 30

When was the first major use of the PS 1966 in Civil law?

Answer 30

Old Deleted Precedent:
Addie (original)
Oringinally, there was no duty of care owed to a landowner towards a tresspasser. Only if injuries were deliberately caused could the tresspasser form a basis for civil damage.
New Replacement Precedent:
BRB v Herrington (Binding)
BRB was aware of gaps along its fence running alongisde electrified railway lines and knew that people often used this as a shortcut. A 6 year old boy went through the fence and was severly burnt on the tracks. The HL felt it was time to alter the law to impose a general duty of care towards trespassers in situations where the risk is forseeable and should ahve been corrected.

Question 31

How did the HL use the Practice Statement in regards to Hansard?

Answer 31

The HL in Pepper v Hart, overuled the Davis v Johnson ratio on the use of Hansard

Question 32

Why was the HL less in a hurry to use the PS 1966 in Criminal Law?

Answer 32

Criminal law needs to be certain due to individuals liberty being at stake and it took 20 years before a case reached them that triggered a precedent they wanted to alter

Question 33

What was the first use of the PS 1966 in criminal law?

Answer 33

Old Deleted Precedent:
Anderston
D bought a video recorder very cheaply (making her think it was stolen goods). Following a buglary, the D told a police officer about the video recorder and her suspicions. D was charged for “attempting to dishonestly handle stolen goods”. The HL quashed the conviction and stated that all her acts were inoccent and she should not be convicted for what she thoguht she had done.
(This decision was quickly critised as the HL had gone agaisnt the wording of the act)
New Repalcement Precedent:
Shivpuri
D believed his was dealing controlled drugs. He had been caught trying to deliever drugs to a third party and he made a full confession after multiple packages of a powdered substance were found at his flat, however they were found to be vegtable matter. Therefore, D could only be charged with attempting to commit the offence of being “knowingly concerned in dealing with prohibited drugs”. D was convicted. D appealed agaisnt his conviciton arguing Anderston however the HL held the belief that D had intended to commit the offence

Question 34

state another significant use of the PS 1966

Answer 34

Law relating to mens rea
Old Deleted Precedent:
Caldwell
Hl decided that a D is considered reckless and thus guilty of criminal damage if the risk of damage from their behaviour was obvious to the reasonable person. It did not matter if D did not appericate the risk, this set an objective standard.
New replacement Precedent:
R v G & R
HL now decided that a D is only reckless of D realises there is a risk of damage and goes on to take that risk. This set a subjective standard.

Question 35

Why did Lord Denning believe the court of appeal should be given the powers from the PS 1966?

Answer 35

Argued that the CA was often the highest appeal court for many cases and therefore it should have the flexibility to not be bound to allow for legal evolution

Question 36

What did Lord Hailsham state about the possibility of the Court of appeal having access to the powers of the PS 1966?

Answer 36

“it is necessary for each lower tier, including the CA, to accept loyally the decisions of the higher tiers”

Question 37

What case confirmed the Court of Appeals self-binding rule for civil law but also the exceptions to the rule?

Answer 37

Young v Bristol Aeroplane Co Ltd (1944)

Question 38

What are the exceptions to the self-binding rule for the CA in civil law?

Answer 38

“young exceptions”

Question 39

What are the three “young exceptions” that allow the CA to reject some past decisions in certain situations?

Answer 39

1) Where there are conflicting past court of appeal cases, the present day court of appeal chooses which one to follow
2)Where there has been a later decision by the HL/SC this is now the binding precedent to follow
3)Where the previous decisions was “per incuriam”

Question 40

In Gallie what did Lord Denning try to do?

Answer 40

Attempted to challenge the rule from Young arguing that “it was a self-imposed limitation and we who imposed it can also remove it” as Denning wanted the rules to be more flexible, however his opinion was not shared

Question 41

What is the rules for criminal law and the CA in regards to judicial precedent?

Answer 41

-Criminal Division can refuse to follow precedent- it has more flexibility
Can utilise the exceptions stated in Young 1944 but can also refuse to follow a past decision
Where the law has been misapplied or misunderstood
This is a wider exception in recognition that someone’s liberty is at stake and therefore stare decisis applies less strictly

Question 42

In R v Spencer what was said?

Answer 42

In general there should not be any difference in how precedent operates in civil and criminal divisions “except that we must remember that we may be dealing with the Liberty of the Subject”

Question 43

What is following?

Answer 43

If the facts are sufficiently similar, the precedent set by the earlier case is followed and the law is applied in the same way to produce the outcome 9abides by stare decisis)

Question 44

What is overruling?

Answer 44

Higher courts deletes the outdated precedent set by the lower case and the higher court sets a new precedent . it does not change the outcome of the now overruled case.

Question 45

State some examples were overruling occurred

Answer 45

pepper v hart overruled Davis v Johnson on the use of Hansard

Question 46

What is distinguishing?

Answer 46

On first glance, a precedent appears to be binding, but if the judge finds the material facts to be sufficiently different they can draw distinctions between the previous and the present case to avoid following the precedent. Any court. Nothing is deleted. There will now be two precedents.

Question 47

State an example where distinguishing occurred

Answer 47

Meritt v Meritt was distinguished from Balfour v Balfour to avoid the precedent. Both cases involved the wife making a claim against her husband for breach of contract to pay maintenance. However in Balfour, the wife and husband did not intent to make legal relations when the agreement was made. Whereas, in Meritt, they had in writing the intention to create a legally binding agreement. Both are now precedents in their own way.

Question 48

What is reversing?

Answer 48

This is where a decision made by a court is overturned by a higher court on appeal in the same case. They will come to a different view on the law.

Question 49

State an example of reversing

Answer 49

Tate Gallery 2023
The supreme court reversed the decision of both the high court and the court of appeal concerning a viewing platform at a gallery

Question 50

What is disapproval?

Answer 50

Any court. When a court must follow a decision but don’t want to, they can disapprove it in the obiter dicta and that possibly the law needs changing

Question 51

State an example of disapproval

Answer 51

Elliot
Referring to the objective approach used for judging recklessness. Lord Goff stated “I would be lacking in candour if I were to conceal my unhappiness about the conclusion I feel compelled to reach”

Question 52

State some Advantages of Precedent

Answer 52

-precedent allows for certainty, consistency and fairness
-Allows the law to be flexible and adapt to changing requirements of society as courts can make changes faster than Parliament
-Precedent can save time as judges reason by analogy
-New situations can be catered for through the creation of original precedent e.g Donoghue v Stevenson

Question 53

State some disadvantages of Precedent

Answer 53

-Rigid as lower courts must follow a binding precedent which could result in more cases having wrong outcomes
-Illogical distinctions as distinguishing can lead to some areas of the law becoming very complicated and the differences can appear small and illogical
-Retrospective Changes made apply to events that happened before the case came into court
-Judicial background tend to have a limited background and not very representative which could effect how the law is applied (though the judiciary is suppose to be independent)

Question 54

State some examples where the courts deemed it was beyond their power to change the law

Answer 54

C v DPP HL refused to abolish the “doli incapax” presumption, despite agreeing it was outdated they did not change it, leaving the matter to Parliament
Nicklinson SL refused to modify the law that permits doctors to help end a persons life, they reaffirmed the matter to parliament.