Judicial Precedent

Question 1

What is judicial precedent?

Answer 1

Source of law where the past decisions of judges create law for future judges to follow in similar cases

Question 2

What is ‘stare decisis’?

Answer 2

Stand by the decisions of past cases

Question 3

What is binding precedent?

Answer 3

A statement of law from an earlier case which must be followed even if the judge in current case does not agree with the law

Question 4

When is a binding precedent created?

Answer 4

When the facts of the second case are sufficiently similar to the precedent and the decision was made by a court which is senior to

Question 5

What is the court hierarchy?

Answer 5

Both

Supreme Court
Court of appeal
High court

Criminal
Crown court
Magistrates

Civil
County court
Tribunals

Question 6

What is persuasive precedent?

Answer 6

A persuasive precedent is one which the court will consider and may be persuaded by but doesn’t have to be followed

Question 7

What are the sources of persuasive precedent?

Answer 7

1. Courts lower in the hierarchy that the court hearing the appeal. Example is R v R where the House of Lords were persuaded to follow the same reasoning as court of appeal in deciding that a man could be guilty of raping his wife.

Question 8

Another source of binding precedent?

Answer 8

Statements made orbiter dicta. An example is R v Howe that duress could not be a defence to attempted murder m. Was followed in R v Gotts

Question 9

Another source of binding precedent?

Answer 9

The judge who disagreed will have explained his or her reasons. Also called a dissenting judgement

Question 10

What is original precedent?

Answer 10

If point of law has never been deciding before, then whatever the court decides will form a precedent. An example is Donogue V Stevenson

Question 11

What are the main features of judicial precedent?

Answer 11

1. Law reporting to publicise a judgement and to ensure an accurate and authorised record of the reasons for decisions. For example of all the England law reports and LexisNexis

Question 12

What is overruling?

Answer 12

Precedent set by a lower court is said by a higher court hearing a separate case to have been wrong

Question 13

What are the advantages of precedent?

Answer 13

• Creates certainty
• Allows lawyers to advice clients
• Judges are impartial and basing their decisions on legal rules