Judicial Precedent 9/14

Question 1

Is The Court of Justice of the European Union bound?

Answer 1

• The ECJ sets binding precedents on points of European Law, which all courts below it must follow
• Does not bind itself
• Due to Brexit, we may no longer need to follow this

Question 2

Is the Supreme Court bound?

Answer 2

• Sets binding precedents on points of law of great importance
• All courts below it must follow
• Does not bind itself due to Practice Statement 1966 (allows SC to depart from decisions when it appears right to do so)

Question 3

Is the COA bound?

Answer 3

• Below the ECJ and Supreme Court and must follow all decisions made by them
• COA sets binding precedents which all courts below it must follow
• Binds itself in the civil decision unless any of the exceptions in Young v Bristol Aeroplane apply
• Binds itself in the criminal division unless any exceptions from Young v Bristol Aeroplane apply OR if the law has been ‘Misapplied or Misunderstood’

Question 4

Is the High Court bound?

Answer 4

• Must follow all decisions made by courts above it
• Sets binding precedents which all courts below must follow
• Also binds itself

Question 5

Is the Crown Court bound?

Answer 5

• Must follow all decisions made by courts above it
• Sets persuasive precedents (choose to follow it)
• Does not bind itself as juries decide on the evidence not on precedent

Question 6

Are the Inferior courts bound? (county and mags)

Answer 6

• The County Court and Magistrates Court must follow decisions made by all the courts above them
• Set persuasive precedents

Question 7

What is original precedent?

Answer 7

• Involves a point of law that has never been decided before, no existing common law or Act of Parliament
• Rare nowadays since there is normally a previous precedent or an Act

Question 8

What does Reasoning By Analogy mean? (original)

Answer 8

Judge uses rules from cases that have similar features to make decision

Question 9

What did Lord Denning say about original precedent?

Answer 9

“Whenever a new situation arises that has not been considered before, the judges have to say what the law is. We do not change the law, we declare it.”

Question 10

Case examples of Original Precedent

Answer 10

Airedale NHS Trust v Bland
Judges held it is legal for doctors to switch off a life support machine if unlikely patient would every recover

Hunter v Canary Wharf
Citizens could claim compensation for large tower interfering with TV reception

Question 11

What is Stare Decisis?

Answer 11

Judges must stand by their decisions where the point of law in the present case and previous case are the same.

Question 12

Case example of Stare Decisis

Answer 12

• Donoghue v Stevenson
  (snail in ginger beer)
  Neighbourhood Principle - The manufacturer owed a duty of of care
• Daniels v White
  (lemonade with corrosive metal in)
  Used Donoghue as a judicial precedent in Daniels v White where manufacturer owed DOC

Question 13

What is Ratio Decidendi?

Answer 13

(reason)
- A judgement includes a summary of the facts, review of the arguments, explanation of the principles of law, decision.
- If a case with the same or similar facts appears in court later, the ratio decidendi of the previous case is applied

Question 14

What is Obiter Dicta

Answer 14

• By the way comments
• Judge makes statements around their decision
• Don’t form part of the decision but may help in future cases
• Judge speculates how the outcome of the case would have been different had the facts of the case been slightly different

Question 15

What are the types of Persuasive Precedent?

Answer 15

1. Countries
2. Obiter Dicta
3. Lower courts
4. Dissenting judgements
5. Decisions of privy council

Question 16

How do other Countries persuade precedent? + case

Answer 16

• When the other country uses a common law system e.g. Commonwealth
• The decision can be referred to only when there is no case law for the issue in the UK
• Re S = The HC granted permission for hospital to carry out emergency C-section against the mothers will following an American case with similar facts

Question 17

How does the Obiter Dicta set persuasive precedent? + case

Answer 17

(by the way comments)
- Can become binding precedent if used in a later case and made into ratio decidendi
- Happens often with SC and COA because of the high level of judges that sit there
- R v Howe = Duress was not a defence for murder, judge also stated in Obit D that duress could not be a defence for attempted murder
- R v Gotts = D charged with attempted murder, tried to argue could use duress for defence, but Obit D from R v Howe was followed as persuasive precedent.

Question 18

How do Lower Courts set persuasive precedent? + Example

Answer 18

• Lower court decisions can be looked at and made into law
• SC often follow decisions of the COA because judges are very experienced
• R v R = HOL agreed with and followed decision made in COA about man who raped his wife.

Question 19

How do Dissenting Judgement set persuasive precedent? + Examples

Answer 19

• (Reason why judge didn’t agree with the majority)
• When a case has been decided by a panel of judges, the ones who disagreed with the majority have to explain their reason.
• SC can be persuaded by the dissenting judgement and follow it
• Candler v Crane Christmas = Lord Denning made a dissenting judgement
• Hedley Byrne v Heller = this was later followed here

Question 20

How do Decisions of the Privy Council set persuasive precedent? + Example

Answer 20

• Rules on cases from the Commonwealth, not part of UK hierarchy, does not create binding precedents for English Courts
• Jersey v Holley = Privy Council decided the decision made by the HOL in R v (Morgan James) Smith (2000) was wrong and decided not to follow it