Judicial Precedent (P1)

Question 1

What is the definition of Judicial Precedent?

Answer 1

Judicial Precedent refers to the source of law where past decisions of the judges create law for future judges to follow

Question 2

What does stare decisis mean?

Answer 2

Stare Decisis means stand by what has been decided and do not unsettle the established

Question 3

What is the hierarchy of the courts for civil cases?

Answer 3

Supreme Court
Court of Appeal
Divisional Courts
High Court
County Court
Magistrates Court

Question 4

What is the hierarchy of the courts for criminal cases?

Answer 4

Supreme Court
Court of Appeal
Queen’s Bench Divisional Court
Crown Court
Magistrates Court

Question 5

Which courts make precedent?

Answer 5

The Supreme Court, COA, High Courts

Question 6

Which courts do not make precedent?

Answer 6

The County Courts and Magistrates Court

Question 7

Why are law reports important to the doctrine of judicial precedent?

Answer 7

The effectiveness of a doctrine of precedent depends on large measure on the availability of full and accurate reports on decided cases.

Question 8

When will a case be reported?

Answer 8

Matter for the individual editor

Question 9

Where might you find law reports?

Answer 9

The most highly regarded law reports produced by the incorporated council for aw reporting set up for this purpose by the law society and inns of court. They are found in an online subscription.

Question 10

What is the definition of of ratio decidendi?

Answer 10

The RD, the reason for deciding, is the key reason for the judges decision, the part of the judgement that forms the binding precedent

Question 11

What was the RD in Donoghue v Stevenson?

Answer 11

The development of ‘the neighbour principle’. The fact you owe your neighbour in law a duty of care and that if you breach that duty and cause damage you will be liable.

Question 12

What was the RD in R v R & G?

Answer 12

Recklessness was confirmed as a subjective test

Question 13

What was the RD in R v Howe?

Answer 13

Duress is not a defence for murder

Question 14

What is the definition of obita dicta?

Answer 14

When judges may introduce hypothetical situations in anticipation of events which may later happen in later cases

Question 15

What was the OD in R v Howe & Bannister?

Answer 15

Duress is also not a defence for attempted murder

Question 16

What was the RD in R v Brown?

Answer 16

Defence of consent

Question 17

What was the OD in R v Brown?

Answer 17

Defence of consent would be available for ABH caused by body art, tattoos, or piercings

Question 18

What is the definition of following?

Answer 18

Where there is a previous precedent and the judge in the present case decides that it is relevant, the judges should follow that decision

Question 19

What is the definition of overruling?

Answer 19

This is where a court in a later case states that the legal rule decided in an earlier case is wrong

Question 20

What is the definition of distinguishing?

Answer 20

A method by which a judge avoids having to follow what would otherwise be a binding precedent

Question 21

What are the two reasons that a court may wish to avoid a previous precedent?

Answer 21

It is outdated or a mistake

Question 22

Can the Supreme Court overrule its own previous precedent?

Answer 22

Yes, for example in Herrington v British Railway

Question 23

What was the RD in Addie v Dumbreck?

Answer 23

The occupiers land ruled that the occupiers of lands did not owe a duty of care to trespassers

Question 24

What was the RD in British Railway Board v Herrington?

Answer 24

Occupier didn’t do anything when informed, therefore they overruled previous precedent about trespassers

Question 25

What case illustrates distinguishing in The Supreme Court?

Answer 25

Young v BACL and

Question 26

Is the COA civil division bound by previous precedents?

Question 27

Is the COA bound by its own previous decisions in the Criminal Division?

Answer 27

No, as a persons liberty may be at stake

Question 28

Balfour v Balfour

Answer 28

Wife tried to sue husband, was not successful as there was no legally binding contract.

Question 29

Merritt v Merritt

Answer 29

Wife sued husband and it was successful as she wrote it down and signed it , so did he.

Question 30

Why did the judge in Merritt v Merritt decide that they did not have to follow the precedent in Balfour v Balfour?

Answer 30

Because they were separating and divorcing, she had written a document

Question 31

How is English law certain and predictable and how is this an advantage of JP?

Answer 31

There are over 500000 judicial precedents operating in the English legal system. This makes lawyers able to give advice to their clients with certainty. Most cases are predictable as they all have a similar outcome.

Question 32

How is English law fair and consistent and how is this an advantage of JP?

Answer 32

Precedents are usually followed for a long time, so is consistency applied to similar cases, even if unpopular

Question 33

How does precedent create detailed law and how is this an advantage of JP?

Answer 33

JP creates detailed law based on real cases and people. This means that over time, precedent creates detailed rules relating to actual situations encountered by the law

Question 34

How does precedent create flexibility within law and how is this a advantage of JP?

Answer 34

English statue can operate for long periods of time, as courts constantly update the law

Question 35

How does precedent make law too complex and why is this a disadvantage of JP?

Answer 35

There is a danger that precedents may exist, but have been lost or forgotten by the courts, in the case of Dodds 1973, they were unable to find the relevant precedent, due to the sheer volume of cases already existing.

Question 36

How does law develop by chance and how is this a disadvantage of JP?

Answer 36

Parliament is able to pass statutes in anticipation of future development in the law. Precedent cannot deal with a situation until after an event has already occurred. Would of been better to create the offence of matrimonial rape though statute.

Question 37

How does precedent create retrospective law and how is this a disadvantage of JP?

Answer 37

Until a person carries out a certain course of conduct, it is impossible for the courts to consider its legality. The appeals process can take years to complete. Eventually the appeal courts can establish new precedent. This means in criminal law for example, a person is found guilty of a criminal offence, even though hid course of conduct was not criminal when carried out.

Question 38

How is precedent undemocratic and how is this a disadvantage of JP?

Answer 38

Parliament creates statute law and is accountable to the public through the ballot box. A political party which introduces unpopular law faces the prospect of losing votes. Precedent is created by judges, who aren’t elected.