Judicial Precedent

Question 1

List the Superior Courts in order from most powerful to least powerful.

Answer 1

The Superior courst are; The Supreme court, Court of Appeal and the High Court

Question 2

List the inferior courts from most powerful to least powerful.

Answer 2

The Inferior Courts are: The Crown Court, Magistrates’ Court and County Court.

Question 3

What is the latin phrase meaning, ‘Stand by the decision’?

Answer 3

Stare Decisis means to stand by the decision, it is the fundamental principle that all Precedent is based upon.

Question 4

What is the ‘Ratio Decidendi’?

Answer 4

The Ratio Decidendi is the ‘reasons for the decision’, this is legally binding as should apply to all future, similar cases.

Question 5

What is the Latin phrase that means ‘other things said’?

Answer 5

Obiter Dicta (plural) Dictum (singlar) is latin meaning, ‘other things said’.

Question 6

What is the obiter dictum?

Answer 6

The Obiter Dictum is a section of a law report that gives other scenarios in which the precedent can be applied. It is used by other judges when making precedent in a similar case.

Question 7

What is original precedent?

Answer 7

Original precedent is law that is created for the first time without the use of persuasive precedent.

Question 8

Give an example of original precedent.

Answer 8

Donoghue v. Stevenson is a good example of original precedent; establishing the ‘neighbour priniciple’.

Question 9

What is binding precedent?

Answer 9

Binding precedent is precedent that has to be followed by that court and all courts below it in future cases.

Question 10

What is persuasive precedent?

Answer 10

Persuasive precedent is law that could act as guidance when deciding the verdict. It does not need to be followed.

Question 11

What is a Law report?

Answer 11

A law report is created by the Incorporated Council for Law Reporting, it reports the verdict decided in the superior courts. They can be found online or in databases such as LexisNexis.

Question 12

List the 5 types of persuasive precedent.

Answer 12

5 types of persuasive precedent:

• Decision in the lower courts
• Obiter Dicta
• Other Jurisdictions
• Judicial Committee of the Privy Council
• Dissenting Judges

Question 13

Give an example of a decision in the lower court that persuaded precedent in the superior courts.

Answer 13

The House of Lords followed the decision of the CA (R v. R) to make marital rape an offence.

Question 14

Give an example of when the obiter dicta persuaded precedent.

Answer 14

R v. Howe - House of Lords said duress cannot be used as a defence for attempted murder
R v. Gotts - followed obiter dictum in the Court of Appeal

Question 15

Give an example of when precedent was persuaded by another governmental establishment.

Answer 15

Re. S, the decision was influenced by an American authourity - High Court made a declaration to perform emergency surgery without the parent’s permission.

Question 16

Give an example of when the Judicial Committee of the Privy Council (JCPC) persuaded precedent.

Answer 16

The Australian case of the Wagon Mound has become an enshrined part of UK law. Only considered neglegence if the damage was foreseeable.

Question 17

Give an example of when dissenting judges persuaded precedent.

Answer 17

Dissenting judges is when judges don’t agree on a certain case, the views may be used to persuade future cases. For example, Lord Denning’s decision in Candler v. Crane Christmas decided the verdict in Hedley Byrne v. Heller

Question 18

What is the name of the legislation that allows judges to part from their previous decisions when, ‘It appears right to do so’?

Answer 18

The Practice Statement 1966 (now UKSC Practice Directions 3&4) allows judges to brake away from their previous decisions. Prior to 1966, the law would have to be changed by Parliament.

Question 19

Give an example of then the Practice Statement 1966 was used.

Answer 19

PS 1966 was used in R v. Howe to overrule the decision of DPP v. Smith saying that duress cannot be used as an excuse for murder. This later pursuaded the verdict in R v. Gotts.

Question 20

What case set out the exemptions of the Court of Appeal when following their previous decisions?

Answer 20

The case of Young v. Bristol Aeroplane established the 3 exemptions.

Question 21

What are the three exemptions? Give an example for each.

Answer 21

The 3 Exemptions are;

• When the decision was made ‘Per Incuriam’ meaning careless or by mistake - Rickards v. Rickards
• When two previous CA decisions conflict, the CA can choose which to follow - Tiverton Estates LTD v. Wearwell LTD
• Where the CA and HL decisions conflict, the CA must follow the Hl decision - Family Housing Association v. Jones

Question 22

What is the CA exemption, only specific to the Criminal Divison?

Answer 22

• If the law has been misapplied or misunderstood e.g R v. Taylor - Only applies to serious cases.

Question 23

What is the relation between the Court of Appeal and the Human rights Act 1998?

Answer 23

The CA can refuse to follow a decision if it contradicts the act.

Question 24

What is overruling?

Answer 24

Overruling is the process by which a judge of the Supreme Court or Court of Appeal decides to alter the law for all future cases (directed by the Practice Statement 1966).

Question 25

What is reversing? Give an example.

Answer 25

Reversing is to change the decision of a case in the lower court. E.g Gillick Competence.

Question 26

What is distinguishing?

Answer 26

When a Court does not have to follow the decision if the material facts are significantly different. (R v. Wilson and R v. Brown and others).

Question 27

Give 3 examples of advantages of judicial precedent.

Answer 27

Permissable answers:

• Detailed, practical rules for other judges to follow.
• Avoids uneccessary litigation due to the speed of decision making.
• Flexibility (R v. R)
• Laws can be changed quicker than legislating e.g Re. S.
• saves Parliamentary time
• Judges are legal experts whereas politicians may not be
• Judges are experienced in the legal field
• Avoids drafting problems that are associated with statutory interpretation

Question 28

Give 3 disadvantages of Judical Precedent.

Answer 28

Permissable answers:
-Rigidity of the system prevents law being chnged easily.
-Illogical distinctions may be made, in an attempt to avoid following a previous decision as seen in R v. Brown and others/R v. Wilson
-Undemocratic for judges to make laws.
-Out of touch, R v. Brown and others
Ppractice Statement 1966 gives judges too much power.
-House of Lords said that giving the Court of Appeal more power would lead to uncertainty (Davis v. Johnson).