Judicial precedent

Question 1

What is judicial precedent?

Answer 1

Is where past decisions by judges create law for future judges, if cases have similar facts they must follow.

Question 2

What is stare decisis?

Answer 2

‘Stand by what has been decided and do not unsettle the established’

Question 3

What happens in the judgement?

Answer 3

• Give a summary of facts
• Give the ratio decidendi
• Give the obiter dicta which are other comments they make on the law.
• The verdict

Question 4

What is the ratio decidendi?

Answer 4

The judges reason for their decisions. This is what the precedent is created on.

Question 5

What is the obiter dicta?

Answer 5

Other comments on the law such as what their decision would be if the facts were different. Can be used as a form of persuasive precedent.

Question 6

What is the practice statement?

Answer 6

Was passed in 1966 and allows judges to change previous decisions when it appears right to do so.

Question 7

What was the first use of the practice statement and what did it overrule.

Answer 7

First use was in Shivpuri which decided that you could be convicted for attempting the impossible. It overrules Anderton and Ryan.

Question 8

What is a binding precedent?

Answer 8

Precedent from an earlier case which must be followed if the facts are sufficiently similar, only has to be followed when created in a court of higher hierarchy.

Question 9

What is persuasive precedent?

Answer 9

Precedent which is not binding on a court but they may chose to follow it.

Question 10

Where can persuasive precedent come from?

Answer 10

1. Decisions made in a lower court. (R V R)
2. Decisions made from the judicial committee (Wagon mound)
3. Statements made obiter dicta. (R V Howe)
4. Dissenting judgment (Chandler V Crane Christmas)
5. Decisions in other countries. (Re S)

Question 11

What are ways to avoid using binding precedent?

Answer 11

1. Overruling- decide the rule made in the old case was wrong.
2. Reversing- Higher court overturns the decision in the same case, this can only happen when there is an appeal.
3. Distinguishing- allows the judge to not follow as the facts aren’t sufficiently similar.

Question 12

Advantages of precedent?

Answer 12

1. Certainty/predictability- If they follow past decisions it allows people to know what the law is.
2. Consistency/fairness- Seen as just and fair that similar cases should be decided in the same way.
3. Precision-Because its set out in actual cases the law becomes very definitive and precise.

Question 13

Disadvantages of precedent?

Answer 13

1. Rigidity- Because lower courts have to follow higher courts the law can be too inflexible and as a result incorrect decisions may be repeated.
2. Complexity- Not easy to find all relevant case law and difficult to extract ratio decidendi as it is all part of the summary of the case.
3. Slowness of growth- Some judges are aware there needs to be reform in some areas however cannot make changes until there is a suitable case.