Judicial precedent

Question 1

What does judicial precedent refer to?

Answer 1

• The source of law where law is created by the past decisions of courts

Question 2

What is judicial precedent also known as?

Answer 2

• Case law

Question 3

What does stare decisis mean?

Answer 3

• Stand by what has been decided

Question 4

What does stare decisis ensure?

Answer 4

• That the law is certain and fair

Question 5

What is the speech made at the end of the case known as?

Answer 5

• The judgement

Question 6

What does ratio decidendi mean and what does it form?

Answer 6

• Stands for the reason for deciding

- Forms the binding precedent

Question 7

What is a difficulty of the judgement?

Answer 7

• Usually in a continuous form (with no headings) therefore can be difficult to distinguish the ratio decidendi from the obiter dicta

Question 8

What does obiter dicta mean and what is it?

Answer 8

• Other things said
• It is the remainder of the judgement
• It is not binding precedent

Question 9

What do the courts in England and Wales operate?

Answer 9

• A rigid doctrine of precedent which has the effect that;
• every court is bound to follow the decisions made by a court above it in the hierarchy
• appellate courts and bound by past decisions (appeal courts)

Question 10

What are two exceptions in which lower courts do not have to follow decisions in appellate courts?

Answer 10

• If it conflicts with a judgement in the ECJ

- If the decision violates human rights

Question 11

What are appellate courts and what are some examples of them?

Answer 11

• Courts which hear appeals
• Court of Justice of the EU
• Supreme court
• Court of appeal
• Divisional court

Question 12

What is the highest court?

Answer 12

• Court of Justice of the EU
• For European law, a decision made by ECJ is binding in all courts
• However Supreme Court is most senior for laws not affected by European law

Question 13

What are the two divisions of the Court of Appeal?

Answer 13

• Civil and criminal

Question 14

What are the 3 courts of divisional courts?

Answer 14

• QBD
• Chancery
• Family

Question 15

What is meant by “court of first instance”?

Answer 15

• Any court where original trial of case is heard

Question 16

What do appellate courts hear?

Answer 16

• Appeals not trials

Question 17

What are inferior courts and what to they have to do?

Answer 17

• Inferior courts are courts such as the Crown, County and Magistrate’s court
• Bound to follow decisions of higher courts

Question 18

What is the main debate in regards to the SC?

Answer 18

• Whether they should follow its own past decisions

- The ideas on this have changed over years

Question 19

What was determined by the HL in the case of London Street Tramways v London County Council 1898?

Answer 19

• Certainty in the law was more important than any possible hardship to an individual caused by past decisions

Question 20

What happened in 1898-1966?

Answer 20

• SC regarded itself as being completely bound by its own past decisions

Question 21

Why was bounding itself by past decisions unsatisfactory?

Answer 21

• Because law could not alter to meet the changing social conditions, nor could “wrong” decisions be changed by the courts

Question 22

What was issues in 1966 by the Lord Chancellor?

Answer 22

• A practice statement that announced a change to the law in London Street Tramways

Question 23

What did this practice statement allow the HL to do?

Answer 23

• Depart from previous decisions “when it appeared right to do so”

Question 24

What was the first case in which the practice statement was used?

Answer 24

• Conway v Rimmer but first MAJOR case was Herrington v British Railways Board 1972

Question 25

What is a case in which the HL were reluctant to use the practice statement?

Answer 25

• Jones v Secretary of state for social services 1972

Question 26

When did the HL become more willing to use the practice statement?

Answer 26

• From the mid 1970s

- E.g. Pepper and Hart 1993

Question 27

What was the first criminal case to use the practice statement?

Answer 27

• R v Shivpuri 1986

Question 28

What occurred in october 2009?

Answer 28

• House of lords was replaced by the supreme court

- In case of Austin v London Borough of Southwark 2010, SC confirmed practice statement still applied

Question 29

What are both divisions in the court of appeal bound by?

Answer 29

• Decisions of the court above it

Question 30

What are the rules of the courts of appeal in regards to their past decisions?

Answer 30

• Rule 1, decisions by one division do not bind other division
• Rule 2, with each division decisions are normally binding (Young v Bristol Aeroplane Co Ltd 1944)

Question 31

When can the criminal division refuse to follow their past decisions?

Answer 31

• If law has been misapplied or misunderstood

- If a person’s liberty is at stake (R v Taylor 1950)

Question 32

What is meant by binding precedent and why is it created?

Answer 32

• Precedent from earlier case which must be followed

- Only created when material of facts of second case are sufficiently similar to original case

Question 33

What is persuasive precedent?

Answer 33

• Precedent which is not binding but judge may consider and decide to follow it

Question 34

What was a case in which courts lower in hierarchy used persuasive precedent?

Answer 34

• R v R 1991

- HL followed CA judge when he decided a man can be guilty of raping his wife

Question 35

How is obiter dicta relevant to persuasive precedent?

Answer 35

• Judges sometimes follow comments made in obiter dicta e.g. R v Howe 1987

Question 36

What is meant by dissenting judgements?

Answer 36

• Decision has been made by a majority, judges who dissented/disagreed will have explained their reasons