Judicial Precedent

Question 1

features of doctrine of the precedent

Answer 1

doctrine of precedent

stare decisis

ratio decidendi

obiter dicta

Question 2

doctrine of the precedent

Answer 2

precedent refers to the source of law where past decisions of judges create law for future judges to follow

also known as case or common law, it is created by judges in the course of deciding cases

judges state the law as they find it and apply it to the case before them, they write a judgement which explains their reasoning and this may itself become precedent applied in later cases

they look at previous decisions made in earlier cases with similar facts

if the decision was made by a higher court they must follow it

but they are not bound to follow the previous decision if there are material differences of fact between the cases

Question 3

stare decisis

Answer 3

stare decisis is the principle that underlines the operation of doctrine of precedent

translates to stand by what has previously been decided, legal principles set down in earlier cases are followed

operates through the court hierarchy

requires accurate law reporting to operate effectively

CASE EXAMPLE = Donoghue v Stevenson (1932)
the claimant’s friend bought her a bottle of ginger beer but V fell ill when she found a snail inside the bottle. the court held that a duty of care is owed by the manufacturer to the consumer and this case established the neighbour principle and the modern law on negligence. now anyone who suffers as a result can claim compensation

Question 4

how can judges avoid stare decisis?

Answer 4

reversing

overruling

distinguishing

supreme court can use the practice statement

court of appeal can use the Young exceptions

Question 5

ratio decidendi

Answer 5

translates to “the reason for deciding”

most important part of the judgment because it is the binding part of the decision and must be followed by other judges in similar cases

CASE EXAMPLE = R v Howe (1987)
D took part in a murder but claimed he was acting under duress because of threats to kill him if he didn’t. the ratio decidendi was that the defence of duress is not available for murder and this rule was later followed by the CA in Ashlea Wilson (2007)

Question 6

obiter dicta

Answer 6

translates to “other things said”

refers to any statements of law by the judge in his decision that are not an essential part of the ratio decidendi

obiter dictum statements do not form part of the binding precedent so judges are not bound to follow them but they may be a persuasive authority and used in future cases

CASE EXAMPLE = R v Gotts (1992)
D tried to kill his mother because his father threatened him with violence if he didn’t, she survived the stabbing. the CA held that the defence of duress is not available for attempted murder and they were persuaded by obiter dicta in R v Howe where the SC said the same thing

Question 7

separating ratio and obiter statements

Answer 7

judges do not separate their judgments into the ratio and obiter

it can be difficulty when reading the case to determine what the ratio is, it is hardly ever stated expressly and in appeal courts there may be more than one judgment with diffident ratios

Question 8

hierarchy of courts

Answer 8

under the doctrine of precedent, every court is bound to follow any decision by a court above it in the hierarchy

appellate courts are bound by their own past decisions

Question 9

hierarchy of courts: civil cases

Answer 9

magistrates court

county court

high court

divisional courts

court of appeal (civil division)

supreme court

CJEU (court of justice of the european union)

Question 9

hierarchy of courts: criminal cases

Answer 9

magistrates court

crown court

queen’s bench divisional court

court of appeal (criminal division)

supreme court

CJEU (court of justice of the european union)

Question 10

hierarchy of courts: CJEU

Answer 10

where a point of EU law is involved, the decisions of the CJEU are currently still binding on all courts in England and Wales

CJEU does not have to follow its own past decisions, this in accordance with other European countries that have civil codes

Question 10

hierarchy of courts: supreme court

Answer 10

established in 2009 and replaced the house of lords as the highest court in the UK

it’s decisions bind all other courts in the English legal system

will normally follow its own previous decisions but will depart from them “when it appears right to do so” using the Practice Statement 1966

Question 11

hierarchy of courts: court of appeal

Answer 11

bound to follow decisions of the CJEU and the supreme court

made up of 2 divisions and decisions by one division do not bind the other division

civil division is bound to follow its own past decisions (subject to some exceptions — Young exceptions)

criminal division will normally follow its own past decisions but can depart from a decision where the liberty of a person may be at stake — R v Gould (1969)

Question 11

hierarchy of courts: divisional courts

Answer 11

there are 3 divisional courts; Queen’s Bench, Chancery and Family

all are bound by the decisions of the CJEU, supreme court and court of appeal

normally bound by their own past decisions although they have similar exceptions to those of the court of appeal

Question 12

hierarchy of courts: high court

Answer 12

must follow the decisions of the supreme court, court of appeal and divisional courts

does not have to follow its own past decisions but usually will do so

if there are conflicting past decisions, the decision will be followed if the first decision has been fully considered

high court decisions bind the courts below it — County, Crown and Magistrates

Question 12

hierarchy of courts: crown, county and magistrates

Answer 12

bound by decisions of all higher courts

courts of first instance (they hear the initial case)

do not create precedent although technically the crown court creates precedent for the magistrates court

Question 13

precedent + acts of parliament

Answer 13

precedent is subordinate to state law, delegated legislation and European regulations

if an act of parliament is passed and part of it contradicts a previously decided case, the act of parliament is now the law on the point

Question 13

precedent + acts of parliament

HUMAN RIGHTS ACT 1998

Answer 13

gives all courts the freedom to ignore precedent from higher courts if the precedent contravenes the European Convention on Human Rights

all UK courts must take into account decisions of the European Court of Human Rights

EXAMPLE = in the case of Medicaments (No. 2), the court of appeal refused to follow the house of lords precedent in R v Gough because it conflicted with decisions of the European Court of Human Rights

Question 14

3 types of precedent

Answer 14

original

binding

persuasive

Question 15

original precedent

Answer 15

precedent involving a point of law that has never been decided before

as there is no previous decisions to bind them, judges may make an original precedent

once declared, it will become both binding and original

often driven by social and technological change

EXAMPLE = Gillick (1985)
the house of lords had to decide whether girls under 16 could be prescribed the contraceptive pill without parental consent, the court decided that doctors could do so as long as the girl understood the risk. this decision was original precedent because the pill was still fairly new and a decision had not been made regarding this issue

judges may employ the method of “reasoning by analogy” in order to deal with a novel situation and produce an original precedent — Hunter v Canary Wharf

original precedents can from the basis of the development of new legal principles — Donoghue v Stevenson established the neighbour principle which has been followed in many cases since

original precedent can be said to go beyond the proper role of the judiciary, as they are effectively making new law

Question 15

binding precedent

Answer 15

precedent that must be followed

it is part of the judgment that must be followed by future courts depending on their position in the hierarchy, higher courts bind lower courts

usually comes from a higher court but can a court can also be bound by its own previous decision (where no exception applies)

usually found in the ratio decidendi on judgments, however the obiter dicta of one case can develop into the ratio of another — R v Howe and R v Gotts

to be bound, case facts have to be broadly similar

cases can have more than one binding precedent

EXAMPLE = R v Howe (1987)

Question 18

persuasive precedent

Answer 18

precedent which the judge is at liberty to consider, they may choose to refer to or follow it but they are not bound to do so

part of a judgment that may be used in future courts

can come from a variety of sources:
• courts lower in the hierarchy
• decisions of the judicial committee of the privy council
• statements made obiter dicta
• a dissenting judgment
• decisions of courts in other countries

Question 18

source of persuasive precedent

DECISIONS OF COURTS IN OTHER COUNTRIES

Answer 18

• particularly where a country used the same ideas of common law as in the english legal system
• applies to commonwealth countries such as canada, australia and new zealand

• EXAMPLE = R v Bentham (2003)
the court was persuaded to follow the Canadian case of R v Sloan

Question 19

3 ways that courts can avoid precedent

Answer 19

overruling

reversing

distinguishing

Question 20

overruling

Answer 20

where a court in a later case states that the legal rule decided in an earlier case is wrong and replaces it with a new precedent operates through the court hierarchy and normally has a retrospective effect practice statement 1966 allows the supreme court to overrule its own previous decisions young v bristol aeroplanes (1944) set out exceptions that allow the court of appeal to overrule its own previous decisions in limited circumstances EXAMPLE = R v G + R (2003)

Question 21

source of persuasive precedent | COURTS LOWER IN THE HIERARCHY

Answer 21

* judgment from a case made in a lower court may be adopted and applied by a higher court * sometimes seen between the supreme court and the court of appeal • EXAMPLE = R v R (1991) the supreme court followed the decision of the court of appeal in ruling that a man could be guilty of raping his wife

Question 22

reversing

Answer 22

where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case for example, the court of appeal may disagree with the legal ruling of the high court and come to a different view on the law, it will reverse the decision made by the high court EXAMPLE = Kingston (1984)

Question 23

source of persuasive precedent | JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Answer 23

* it's not part of the court hierarchy but is presided over by some of the supreme court justices so it's only reasonable to consider their decisions as worthy precedent * some of the leading cases in english law are of privy council origin • EXAMPLE = The Wagon Mound (1961) later cases have followed the decision of the privy council in this case on remoteness of damages in the law of tort

Question 24

distinguishing

Answer 24

a method of avoiding a previous decision because the material facts in the current case are sufficiently different from an earlier one enabled the judge to avoid an otherwise binding precedent in order to distinguish, the judge must show that there is a difference in the material facts of the two cases if the material facts are sufficiently different then the judge will not be bound by the earlier case — the earlier decision need not be followed and a fresh precedent may be set EXAMPLE = Merritt v Merritt / Balfour v Balfour

Question 25

source of persuasive precedent | STATEMENTS MADE OBITER DICTA

Answer 25

* obiter dicta translates as "other things said" and is non binding, these statements do not form part of the binding precedent so judges in future cases do not have to follow them * particularly when the statement comes from the supreme court • EXAMPLE = R v Howe (1987) and R v Gotts (1992) in HOWE, the supreme court commented as obiter dicta that duress is not available as a defence for attempted murder. the statement was followed as persuasive precedent by the court of appeal in GOTTS

Question 26

source of persuasive precedent | DISSENTING JUDGMENT

Answer 26

* a minority judgment * a case may have been decided by a majority of judges and the judge who disagreed will have explained their reasons * if that case goes on appeal to the supreme court or if a later case on the same point goes to the supreme court then it’s possible that the SC may be persuaded by the dissenting judgment and decide to follow it * EXAMPLE = Rose and Frank Co. (1924)

Question 27

precedent in the supreme court

Answer 27

* London Street Tramways (1898) case, the supreme court decided it should follow its own previous decisions in the interests of certainty in law, meaning the SC was bound by its own previous decisions * later realised that the SC needed more flexibility and issued the Practice Statement in 1966 * Practice Statement allows the SC to depart from its own previous decisions “when it appears right to do so” but should be used sparingly to avoid uncertainty — especially in crime, contract and fiscal matters * judicial functions of the house of lords was transferred to the supreme court in 2009 as well as practice directions 3 and 4 * EXAMPLE = Herrington v British Railways Board (1972) * EXAMPLE = Shivpuri (1986) * some cases such as C v DPP involved the supreme court refused to change the law even though the practise statement would’ve allowed it because it would undermine the principle of stare decisis and interfere with the certainty of law

Question 28

precedent in the court of appeal

Answer 28

* the court of appeal must follow the decisions of the supreme court as it sits below it in the hierarchy * EXAMPLE = Miliangos v George Frank * made up of 2 divisions — decisions by one division of the court of appeal will not bind the other division * bound by its past decisions apart from 3 exceptions set out in Young v Bristol Aeroplane: 1) if a previous decision by the CA has been impliedly or expressly overruled by the SC, they must follow the SC 2) if there are 2 conflicting CA decisions, they can choose which one to follow and reject the other (EXAMPLE = Parmenter) 3) if the decision is made per incuriam (in error) the judge will ignore the bad law and form a new precedent (EXAMPLE = Rakhit v Carty)

Question 29

precedent in court of appeal

Answer 29

* criminal division has additional flexibility to depart from previous precedent in criminal cases because a person’s liberty may be at stake — R v Gould * has the power to refuse to follow a supreme court decision that has been overruled by the CJEU * can give primacy to the convention rights when interpreting a statute even where this ignores previous cases — Mendoza v Ghaidan

Question 31

x4 advantages of precedent

Answer 31

* certainty * time saving * flexibility * fairness and consistency

Question 33

advantages of precedent | CERTAINTY

Answer 33

* an advantage is that it provides certainty * precedent means lawyers can advise clients accurately on the law and how it'll affect their case, helping them plan for likely outcomes * principle of stare decisis which means "stand by what has been decided" ensures that the same principles of law are applied to cases with similar facts * a case example is Herrington (1972) which means that owners of land now know that they will be liable for injuries on their land resulting from negligence, even to trespassers. they owe a duty of care

Question 35

advantages of precedent | TIME SAVING

Answer 35

* another advantage is that it's time saving * this is because we have such a vast body of precise law and precedent to rely on so cases do not have to be constantly re argued * this saves lawyers, courts and clients time and money * judges can create original precedent in cases where no previous law exists like in the Gillick case * however, this may mean key facts that are different from previous cases may be overlooked and dismissed. leading to unjust decisions being made. someone's case may be skimmed over very quickly instead of getting an in depth look

Question 36

advantages of precedent | FLEXIBILITY

Answer 36

despite a fairly rigid system overall, the system allows room for development through distinguishing, overruling and reversing means judges can develop the law to meet changing social, political or moral conditions for example, the practise statement can be used by the supreme court to overrule its own decision “when it appears right to do so”

Question 38

advantages of precedent | FAIRNESS AND CONSISTENCY

Answer 38

similar cases are treated alike which is fair, just, certain and rational this law is not subject to whims of individual judges which lends greater credibility evidence for this can be seen in R v G in which the test for recklessness in all future criminal cases will be subjective, not objective

Question 40

x4 disadvantages of precedent

Answer 40

* slowness of growth * complexity * rigidity * judicial law making

Question 41

disadvantages of precedent | SLOWNESS OF GROWTH

Answer 41

* another disadvantage is slowness of growth * unless parliament legislate, there is nothing judges can do to change the law until suitable cases come along * this may results in poor or outdated precedents and decisions being used which can results in unfair outcomes, especially when society has gone through huge social change and some precedents no longer seem relevant or fair * very few cases even get up to high enough courts to be overruled or reversed * it took until 1991 for SC to change the law of marital rape in R v R

Question 42

disadvantages of precedent | COMPLEXITY

Answer 42

* a disadvantage is that precedent can be very complicated and complex * there are hundreds of thousands of cases and it can be very difficult to identify and locate relevant case law even with computerised databases * judgments themselves are often very long with no clear distinction between obiter and ratio, especially old precedents * this is not only very time consuming but wastes the time and money of courts, lawyers and clients as decisions may take significantly longer to make * in Re A, three different judges gave separate and different reasons for allowing conjoined twins to be separated. it may be unclear which decision to follow

Question 43

disadvantages of precedent | RIGIDITY

Answer 43

precedent is rigid, the courts follow the principle of stare decisis and are self binding. the court hierarchy means the CA must follow the SC and only the SC can correct a mistake by the CA — Davis v Johnson precedent can make the law too inflexible with bad decisions being perpetuated especially if it takes a long time for suitable cases to get to the senior courts that can change the law — R v R (1991) furthermore, such cases may only get to the senior courts where the parties have the money, courage and persisted to appeal their case

Question 44

disadvantages of precedent | JUDICIAL LAW MAKING

Answer 44

it’s strongly held that judges can and do use precedent to make law this undermines parliamentary sovereignty as the judiciary’s role is to interpret and apply the laws, only parliament should make laws judges do not have the right to make laws, particularly due to the theory of separation of powers original precedent can be seen as allowing judges to make new laws — eg Gillick however, many judges argue that they are simply adapting existing legal rules to fit changing social conditions