Judicial Precedent

Question 1

What is judicial precedent?

Answer 1

Decisions made by senior judges, may bind the decisions of the judges in the future

Question 2

General rule

Answer 2

President from an earlier case which must be followed

Question 3

Stare decisis

Answer 3

Judicial precedent is based on the Latin term of ‘stare decisis’. Translates to ‘stand by what has been decided and do not unsettle the established’. Refers to how precedent is established.

Question 4

Ratio decidendi

Answer 4

The legal principle set out in the case decision. Part of the judgement that must be followed in future cases (Donoughue v Stevenson). ‘Reason for deciding’

Question 5

Obita dicta

Answer 5

Other comments made by a judge in their judgement. Not binding but might be used in future cases (R v Howes). ‘The other thing said’.

Question 6

The judgement

Answer 6

1. The case facts 2. Ratio decidendi: reason for decision 3. Obita dicta(other thing said) 4. The decision(based on reasoning)

Question 7

Court hierarchy

Answer 7

Supreme Court<-court of appeal<-high court<-crown<-magistrates and county

Question 8

Types of. Precedent

Answer 8

Binding, original, persuasive

Question 9

Binding precedent

Answer 9

A precedent from an earlier case which must be followed-ratio decidendi. (Elliot v C)

Question 10

Original precedent

Answer 10

If a point of law has never been decided before whatever the judge decides will form a new precedent.(donoghue v Stevenson)

Question 11

Persuasive precedent

Answer 11

A decision which does not have to be followed by later cases but a judge may decide to follow. Decisions judges can be persuaded by: courts in the lower hierarchy, decisions of the judicial committee. Of the privy council, statement that are obiter dicta, dissenting judgement, decisions from courts in other countries

Question 12

Persuasive precedent - courts in the lower hierarchy

Answer 12

(R v R)-HOL agrees with and followed the same reasoning as the CofA in deciding that a man could be guilty of raping his wife

Question 13

Persuasive precedent - decisions of the judicial committee of the privy council

Answer 13

Not in the court hierarchy so decisions aren’t binding but since most members are part of the Supreme Court their judgements are rested with respect and many are often followed (the wagon mound no1)

Question 14

Persuasive precedent - statements that are obita dicta

Answer 14

Means other thing said by the judge as part of their decision (R v Howe)

Question 15

Persuasive precedent - dissenting
judgement

Answer 15

Arises when a decisions made by a majority. Judge who disagrees with the majority will set out their legal reasoning for their decision in a dissenting way. In event of an appeal the higher court may be persuaded by the reasoning of the dissenting judgement

Question 16

Persuasive precedent - decisions from the courts in other countries

Answer 16

Another country that uses the same ideas of common law as in our system their decisions may be considered. This especially applied to common wealth countries

Question 17

Precedent and the Supreme Court

Answer 17

Highest court in the UK but used to be the European court of justice which is now the Supreme Court. (London street tramways) (Herrington) (shivpuri) (Austin v London borough of Southwark)

Question 18

(London street tramways)

Answer 18

HOL decided that certainty in the law by following. Past decision was more important than preventing individual hardship

Question 19

(Herrington)

Answer 19

HOL changed the previous law about occupiers liability to child trespassers

Question 20

(Shivpuri)

Answer 20

A mistaken belief by D that he was committing an illegal act that was in fact innocent can make him liable for attempting even if the act was not illegal

Question 21

(Austin v London borough Southwark)

Answer 21

The Supreme Court confirmed the power to use the practice statement

Question 22

Supreme Court power

Answer 22

The Supreme Court is bound by its own decisions unless there has been an error. Practice directions 3 and 4 allow HOL to change the law when it’s believed that an earlier case was decided wronged. The Supreme Court can decide if the UK law is compatible with the European convention of the human rights-the human rights act 1998

Question 23

Precedent and the court of appeal

Answer 23

The court of appeal is bound by the supreme. Court. 2 divisions-civil and criminal. General rule-decisions by one division of the CofA will not be bind the other division but in each division previous decisions can be binding.

Question 24

Precedent and the court of appeal - the exceptions

Answer 24

Set out in (Young v Bristol aeroplane co LTD). The CofA don’t have to follow one of their own previous decisions where-there may be conflicting decisions in the past(court choose which to follow), there is a decision of the Supreme Court that effectively over rules the CofA decision, there decision was made per incriam(carelessly/by mistake)

Question 25

Methods of handling precedent

Answer 25

Overruling, reversing, distinguishing

Question 26

Overruling (Pepper v Hart)

Answer 26

Court in later cases states that the precedent decided in the earlier case is wrong. May occur when higher court changes a decision made by a lower court. Supreme Court can overrule past decisions of its own (Pepper v Hart)

Question 27

Reversing

Answer 27

Where a court higher in the hierarchy overturns a decision of a lower court on an appeal in the same case. The decision of the appeal court will then be substituted foe that of a lower court (Sweet v Parsley)

Question 28

Distinguishing

Answer 28

Avoiding a past decision which would have otherwise been followed (R v Wilson)

Question 29

Advantages

Answer 29

Certainty, consistency and rareness in the law, flexibility,time saving, filling gaps

Question 30

Disadvantages

Answer 30

Rigidity, against separation of powers, complexity, illogical distractions, slowness of growth, uncertainty