Judicial precedent

Question 1

what is the doctrine of precedent (or state decisis)

Answer 1

when judges develop existing law to fit new circumstances + can be used by other judges in later cases

Question 2

what are the 3 types of precedent

Answer 2

original precedent
binding precedent
persuasive precedent

Question 3

define original precedent + case

Answer 3

where court deals with an area of law for the first time, as in Donoghue v Stevenson

Question 4

define binding precedent

Answer 4

when a precedent from an earlier case must be followed even if the judge does not agree with the LP

Question 5

when is binding precedent created (2) + case

Answer 5

1. facts of second case sufficiently similar to original case, and
2. decision made by a senior court
   As in Howe

Question 6

what is persuasive precedent

Answer 6

not binding on future case, but may be considered + can be persuaded to follow it

Question 7

which 4 places can persuasive precedent come from

Answer 7

1. a lower court
2. part of obiter dicta of a case
3. set by Privy Council
4. dissenting judgement

Question 8

case for persuasive precedent

Answer 8

Gotts

Question 9

explain features of judicial precedent

Answer 9

3 things necessary for judicial precedent to work:
1) hierarchy of courts
2) ratio decidendi
3) law reports

Question 10

hierarchy of civil courts

Answer 10

supreme court
COA - civil division
High court
county court
magistrates court

Question 11

criminal court hierarchy

Answer 11

supreme court
COA - criminal division
high court
crown court
magistrates court

Question 12

explain supreme court (2)

Answer 12

• binding on all lower courts
• bound by its own previous decisions, unless decision was made per incuriam (in error)

Question 13

is the Court of Appeal generally bound by its own previous decisions

Answer 13

yes

Question 14

what case gave the 3 exceptions of when COA can refuse to be bound by its previous decisions (+ name exceptions)

Answer 14

Young v Bristol Aeroplane:
1) 2 conflicting decisions of COA
2) there is a SC decision which is effectively overrules the COA
3) decision was made per incuriam

Question 15

what is the additional exception of COA criminal division when they can refuse to be bound by their previous decisions + case

Answer 15

Gould - where the law has been ‘misapplied or misunderstood’

Question 16

what are the 2 roles of the divisional courts (high courts)

Answer 16

court of 1st instance
appeal court

Question 17

who are the QB, chancery and family court bound by

Answer 17

COA, SC and themself

Question 18

do the Young v Bristol Aeroplane Co. and Gould exceptions apply in divisional courts

Answer 18

yes

Question 19

who must follow the first instance decision of the high courts

Answer 19

the lower courts

Question 20

explain inferior courts (2)

Answer 20

• bound by decisions from courts above
• unlikely to create precedent

Question 21

what is ratio decidendi

Answer 21

LP - ‘reason for deciding’

Question 22

who said ‘any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion’ (in reference to ratio decidendi

Answer 22

Sir Rupert Cross

Question 23

is ratio decidendi a binding precedent + case e.g.

Answer 23

yes e.g. Howe

Question 24

what was the ratio in Howe and which case followed this

Answer 24

defence of duress not available to a charge of murder - followed in Gotts

Question 25

define obiter dicta

Answer 25

rest of the judgement - ‘other things said’

Question 26

is obiter dicta binding

Answer 26

no, but may have persuasive authority

Question 27

what are law reports

Answer 27

reports of the decisions of the superior courts

Question 28

there was various types and standards of law reports until the … was established in what year

Answer 28

Incorporated Council of Law Reporting established in 1865

Question 29

what is following

Answer 29

where a judge follows relevant previous precedent

Question 30

if a new act of parliament contradicts previously decided case, what happens

Answer 30

decision made in case no longer exists + act of parliament is now the law on that point

Question 31

what is distinguishing

Answer 31

when judge finds case facts sufficiently different to previous case so he is not bound by the previous precedent

Question 32

what does distinguishing create

Answer 32

a second binding precedent - previous precedent remains binding in cases of the sake facts

Question 33

give case example of distinguishing

Answer 33

Merritt v Merritt was distinguished from the earlier case of Balfour v Balfour

Question 34

what is overruling with case

Answer 34

where a court in a later case states the legal rule decided in an earlier case is wrong + therefore the precedent does not have to be followed e.g. BRB v Herrington

Question 35

list 4 advantages of judicial precedent

Answer 35

1) helps ensure consistency in the interpretation + application of the law 2) allows judges flexibility to fill in any gaps left by parliament e.g. R v R 3) creates certainty + predictability because courts follow past decisions 4) time saving device

Question 36

list 4 disadvantages of judicial precedent

Answer 36

1) undemocratic - judges unelected + unrepresentative- shouldn’t make law? 2) complexity - sometimes difficult to establish what the ratio of a case is 3) the retrospective nature of the decision can be a disadvantage - unlike legislation made by parliament, law created by judges is backward looking e.g. R v R - marital rape not a crime when D committed the act 4) uncertainty - when judges use the different methods to avoid following precedents e.g. when Murphy v Brentwood overruled Ann’s v Merton