Judicial Precedent - Finished

Question 1

What is meant by Judicial Precedent

Answer 1

A priinciple that means a court must follow and apply the law as set out in the decisions of higher courts in previous cases.

Question 2

What is the basic rule of Judicial Precedent

Answer 2

A court must follow the precedents from a higher court and all courts lower than it bind

Question 3

Why is judicial precedemt used

Answer 3

Ensuring cases which are alike are treated in the same way, therefore maintaining justice in the system

Question 4

What is the hierarchy of courts

List all the courts in order

Answer 4

European Court of Justice
Supreme Court
Court of Appeal
Divisional Courts
High Court, Crown Court etc.

Question 5

If the Court of Appeal was to create a precedent, does the Supreme court have to follow it

Answer 5

No
- Supreme court is higher in hierarchy so doesn’t need to follow lower courts

Question 6

After the ________________, no courts below it can make precedents

Answer 6

Court of Appeal

Question 7

What is the role of any other courts below the Division Courts following Judicial Precent

Answer 7

Both Criminal and Civil courts do not have any power to create precedents

Question 8

What are the 3 elements of JP

Answer 8

Ratio Decidendi
Stare Decisis
Obiter Dicta

Question 9

Define Stare Decisis

Answer 9

Standing by previous decisions
Recent law to be applied to current cases

Question 10

What is the Doctrine of JP based on

Answer 10

Stare Decisis

Question 11

What is meant by Ratio Decidendi

Answer 11

The ratio decidendi is the reason for a court’s decision of the case and is part of the judgement delivered at the end of a case.

Question 12

What is meant by Obiter Dicta

Answer 12

Things stated in course of a judgement which are not necessary for the decision
Known as the judge’s ‘notes’

Question 13

What are the 2 exceptions to using a precedent in court

Answer 13

Whenever an English court must follow a decision made by the European Court of Justice
When cases of Human Rights are involved

Question 14

Why is the European Court of Justice no longer binding to the UK Courts

Answer 14

Due to the UK leaving the EU, the precedents are no longer binding

Question 15

Who issued the Practice Statement

Answer 15

Lord Gardiner

Question 16

What is the Practice Statement

Answer 16

Practice Statement allows a court to depart from a previous decision where it appears right to do so

Question 17

What was the first case to used the practice statement

Answer 17

R v Shivpuri

Question 18

What are the 3 types of Precedents

Answer 18

Binding Precedent
Persuasive Precedent
Original Precedent

Question 19

Explain what is meant by a Binding Precedent

Answer 19

A rule that must be applied when the current case is similar to previous precedent and the previous decision was made in a higher court.

Question 20

Explain what is meant by a Persuasive Precedent

Answer 20

A decision that does not need to be followed by the previous precedent but can influence the case

Question 21

What court is an exemption to others that can make persuasive precedents

Answer 21

Privy council

Question 22

Explain what is meant by an Original Precedent

Answer 22

Where a case’s decision is a first of a kind, the judges decision will set a new precedent for future cases to follow

Question 23

Give an example of an Orginial Precedent

Answer 23

Donoghue and Stevenson case created the precedent on negligence. Therefore by setting this new ‘original precedent’

Question 24

What are the 3 methods of dealing with JP’s
- Give a simple definition of each

Answer 24

Overruling - When a higher court overrules a decision from a lower court because it is wrong
Reversing - When the legal reasoning is wrong in a previous case so higher court overturns/changes the ruling
Distinguishing - When a judge makes a distinction between the case and the precedent

Question 25

Advantages of JP

Answer 25

Consistency
Easier to make decisions
Time Saving

Question 26

2 Disadvantages of JP

Answer 26

Inflexible
Complex at times

Question 27

12 Marker on JP
- What to write in order

Answer 27

Define JP
Elements of JP
Hierarchy of Courts
Types of JP
Practice Statement
Adv&Disadv

Question 28

Briefly explain what Judicial Precedent is (12 Marker)

Answer 28

Judicial Precedent is known as the decision that is meant to be followed. It follows the latin principle Stare decisis. Which defines as to stand by a decision. JP is broken down into 3 elements : Stare decisis, Ratio Decidendi and Obiter Dicta. Stare Decisis portraits the idea of the court standing by / following a previous case (precedent). Ratio decidendi is the legal reason as to why the decision was made. And then obiter dicta is the judgement made by the judge for the findings of the case. It is not a decision and is more seen as an acuity which is why it is described as the Judge’s notes.

For a court to make a precedent to be relayed to other courts, it is dependant on the ‘power’ of the courts. This is why a Hierarchy of the Courts was introduced. The hierarchy highlights which court has power over others, and which courts bind to others. Orginally, speaking in perspective of a UK Citizen, the European Court of Justice was seen as the highest power court. However after political maintenance, the UK had left the EU which meant that currently it is not the highest ranked court for the UK. Now, it is the Supreme Court. The Supreme Court is the most powerful court and it binds no other court and any precedent that is made must be followed by all court below. The supreme court does have an alternative path in JP. They can use the Practice Statement. The practice statement was created by Lord gardinor and provided judges an alternative choice when it was shown right to do so. The courts below rank as the Court of Appeal, Divisional Courts etc. All courts below the Division Courts do not have the power to create precedents. However the privy council has power to create persuasive precedents but not binding. If there is any point where a higher court may believe a lower court’s decision was right, they can choose to follow the lower court. This was shown in the R v R case in the Court of Appeal where the defendant was accused of rape. The house of lords(now supreme court) agreed with the court of appeal’s decision.

There are 3 main types of precedent. The 1’st type of precedent is persuasive. A persuasive precedent can by made by any court above and including Divisional Courts,and also including the privvy council. A persuasive precedent is not a decision and does not need to be followed but can influence the case. It does not need to be used which means it is not binding. A binding precedent is a previous decision that must be followed when the 2 cases are similar and the decision was made in a higher court. Finally, an original precedent is a first of it’s kind, where the decision made creates a precedent itself for future cases of similar nature. For example, Donoghue v Stevenson was a first of its kind and created a precedent for Negligence.

Precedents are made by past cases so it would imply that it can make a case much easier to solve and also would mean that it is time efficient because there is no need for extensive research when it can easily be referenced. However on another note, it can be complex because there can be alternates to a case which may alter its direction and the cases may not be similar enough to use the precedent. Along with complex, it can become rigidity (not able to change).