judicial precedent 8+12 markers

Question 1

what are the possible 8 markers?

Answer 1

-Explain the key aspects of judicial precedent
-Explain different types of precedent
-Explain different sources of persuasive precedent
-Explain how judges in the Supreme Court can avoid following a Precedent
-Explain how judges in the Court of Appeal can avoid following a Precedent
-Explain how judges in the Supreme Court or Court of Appeal can avoid
following a Precedent
-Explain how judges can avoid following a binding precedent
-Explain 2 ways to avoid a binding precedent
-Explain how higher courts can avoid binding precedents
-Explain how judges can avoid precedent by overruling and distinguishing
-Explain how judges can avoid precedent by overruling and reversing
-Explain how judges can avoid precedent by distinguishing and reversing
-Explain how lower courts can avoid precedent

Question 2

what are the possible 12 markers?

Answer 2

-Discuss the advantages and disadvantages of binding precedent
-Discuss the advantages of judicial precedent
-Discuss the disadvantages of precedent
-Discuss if the 1966 practice statement is effective

Question 3

Explain the key aspects of judicial precedent

Answer 3

-judicial precedent is based on the principle of stare decisis, which means to stand by what has been decided
-precedents are decisions on a point of law made by courts that then must be followed by lower courts
-law reports are decisions made by judges at the end of a case
-there are 3 ways a judgement is split; ration decidendi (reason for deciding) seen in R v Howe, obiter dicta (other things said) seen in R v Gotts and verdict

Question 4

Explain different types of precedent

Answer 4

-there are 3 types of precedents; original precedents, binding precedents and persuasive precedents
-original precedents are judges decisions on new points of law, seen in Donoghue v Stevenson
-binding precedents are the ratio decidendi of a case, and they must be followed by lower courts as seen in Grant v Australian knitting mills
-persuasive precedents are the obiter dicta of a case, and they don’t have to be followed but can be, as seen in R v R

Question 5

Explain different sources of persuasive precedent

Answer 5

-ratio decidendi of lower courts
-privity council decisions
-obiter dicta
-dissenting judgement
-decisions of other countries

Question 6

Explain how judges in the Supreme Court can avoid following a Precedent

Answer 6

-London street tramways v london says that the supreme court is bound by its own decisions, however the practice statement 1966 says that they can overrule itself when it appears right to do so
-the practice statement in civil cases = Herrington v Brb overrule Addie v Dumbreck - it said it needed to update the law
-practice statement in criminal cases = R v Shivpuri overruled Anderton v Ryan - said it needed to correct the law
-they can also either distinguish the law, where the court decides that the facts from another case are so different that they don’t need to follow it - Merritt v Merritt was distinguished by Balfour v Balfour
-they can also reverse the law, where a point from a lower court goes to a higher court but the higher court decide it is wrong and they need to change it - R v Hasan

Question 7

Explain how judges in the Supreme Court or Court of Appeal can avoid
following a Precedent

Answer 7

-they are bound by themselves unless any of the exceptions from Young v Bristol aeroplane co apply, which are; conflicting court of appeal precedents, later conflicting supreme court precedents or precedent made per incuriam
-there is one additional exception but specifically for criminal court, which is; R v Taylor, if the law has been misapplied or misunderstood
-then either distinguishing or reversing

Question 8

Discuss the advantages and disadvantages of binding precedent

Answer 8

pros;
-creates certainty within the law as precedents follow stare decisis which means to stand by what has already been decided - Jones v SoSSS refused to overrule Re Dowling to maintain certainty
-fairly flexible as there are many different ways to avoid following a precedent -R v Shivpuri was able to
overrule Anderton v Ryan, as there was a serious error that needed to be corrected quickly
-precedent can respond to real life situations as it is based on case law
-allows for judicial creativity
negs;
-can be seen as rigid
-the flexibility can lead to uncertainty
-can be very complex and there are a lot of different precedents
-it goes against separation of powers

Question 9

Discuss if the 1966 practice statement is effective

Answer 9

effective;
-absurd decisions can be avoided by this
-creates very little uncertainty as courts are quite reluctant to use it
uneffective;
-not effective due to it being uncertainty
-if the practice statement is not being used it cannot be effective