Judicial Precedent (Paper 1)

Question 1

Judicial precedent meaning

Answer 1

Principle that past decisions of judges create law for future judges to follow. This source of law is known as ‘case law.’

Question 2

Stare decisis

Answer 2

Stand by what has been decided and do not unsettle the established

Question 3

How stare decisis works

Answer 3

When a case has similar facts to an older case decided by a higher court, the judge in the present case must follow the decision of the higher court and apply the same principles of law in their own case

Question 4

Ratio decidendi

Answer 4

The reason for the deciding, and the binding part of the judgement as it creates a precedent for future judges to follow

Question 5

Obiter dicta

Answer 5

Other things said, parts of the judgement which do not form the ratio, can be used as persuasive precedent such as Lord Dennings swarm of bees analogy in Hill v Baxter

Question 6

Law reporting

Answer 6

Created by the Council of Law Reporting, contains the full judgement of the case so that future cases can follow the decisions

Question 7

The hierarchy of the courts

Answer 7

Lower courts are bound to follow the precedents set by courts on the same level or higher

Question 8

The Practice Statement

Answer 8

Since 1966, the Practice Statement has allowed the Supreme Court to change the law if it believes an earlier case was wrongly decided, and has the flexibility to refuse to follow an earlier case if it appears ‘right to do so’

Question 9

Distinguishing

Answer 9

If the facts are materially different then there is no obligation to follow the previous case, an example is R v Brown and R v Wilson

Question 10

Overruling

Answer 10

Court is asked to review whether a precedent created by a court lower in the hierarchy is correct law

Question 11

Advantages of precedent

Answer 11

Consistency and fairness in the law, flexibility

Question 12

Disadvantages of precedent

Answer 12

Complexity, rigidity