Judicial Precedent (part 1)

Question 1

What is common law?

Answer 1

The English and Welsh legal system is a common law system, which means that much of our law has been developed over time by courts.

Question 2

Definition - Judicial Precedent

Answer 2

Oxford English Dictionary:
An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.

Question 3

What is the legal context for Judicial Precedent?

Answer 3

Legal Context:
Judicial Precedent refers to the source of law where past decisions of the judges create law for future judges to follow. It is also known as case law.

Question 4

What does the term stare decisis mean?

Answer 4

The doctrine of judicial precedent is based on the Latin term ‘stare decisis’, which means ‘to stand by the decision’.

Question 5

What does Stare decisis mean in practice?

Answer 5

1. A later court must use the same reasoning as a previous case where the two cases raise the same legal issues.
2. Decisions of higher courts are binding on lower courts.

Question 6

Are you familiar with the hierarchy of the court system?

Answer 6

YES / NO

Question 7

Which court is the most senior court in England and Wales?

Answer 7

The Supreme Court is the most senior court in England and Wales. Decisions made here bind all the courts below.

Question 8

Which courts decisions is the Supreme Court bound by?

Answer 8

The Supreme Court is also bound by its own (unless it uses the Practice Statement – we will cover this later).

Question 9

Which court comes next under the Supreme Court?

Answer 9

The Court of Appeal is bound by the decisions of the Supreme Court. It is also bound by its own previous decisions.

Question 10

Which case sets out 3 exceptions when the court can depart from its own previous decision?

Answer 10

Young v Bristol Aeroplane (1944)
We will cover this later.

Question 11

Which court comes under the Court of Appeal

Answer 11

The High Court
It is bound by the courts above and binds the courts below it. It also creates precedent for itself.

Question 12

Can the lower courts (Crown , county and magistrates?) create precedents?

Answer 12

NO
The inferior courts are not bound by their own decisions, nor do they bind other courts. This is because they do not make precedents; they just apply the precedents set by the higher courts.

Question 13

Can you name the 3 types of precedent?

Answer 13

1. Binding
2. Persuasive
3. Original

Question 14

Definition - Binding Precedent

Answer 14

A binding precedent is the part of a judgement that other judges have to follow.
The ‘ratio decidendi’ (reason for deciding) made by a judge high enough in the hierarchy will bind future decisions of other judges.

Question 15

Binding Precedent - Case Law

Answer 15

Donoghue v Stevenson [1932].
This case established the ‘neighbour principle’ to establish a duty of care, a defendant owes a duty of care to their neighbours.

Question 16

Definition - Persuasive Precedent

Answer 16

Persuasive Precedent is judgments which do not HAVE to be followed, but could provide good law for judges to follow and include Obita dicta (other things said).

Question 17

Can you use case law to that show how obiter Dicta (other things said) and Ratio Decidendi (the reason for the decision) are used?

Answer 17

Not crucial to the outcome of the case, but provides an insight as to how similar cases might be decided:

R v Howe:
Ratio Decidendi – Duress is not a valid defence to murder
Obiter Dicta – Duress is also not a valid defence to attempted murder

R v Brown:
Ratio Decidendi – consent is not a defence to sado-masochistic practices which cause injury
Obiter Dicta – consent is a defence to other practices eg circumcision, tattooing, piercings

Question 18

Can you suggest 3 sources of persuasive precedent?

Answer 18

1, Courts lower in the hierarchy
2. Decisions of the Privy Council
2. Statements made obiter dicta
A dissenting judgment
Decisions of other common law jurisdictions.

Question 19

Persuasive Precedent - case law

Answer 19

1. R v R (1991) (Persuasive Precedent): the House of Lords recognized marital rape as a crime in English law.

Question 20

Definition - Original Precedent

Answer 20

Some areas of our law originate entirely from judicial precedent, in other words, law made by judges. This is called original precedent.

Question 21

Original Precedent - Case Law

Answer 21

Gillick v West Norfolk and Wisbech Area Health Authority (1985)
The advice for doctors was that girls under 16 could be provided with contraception without a parent necessarily being involved

Question 22

Why might it be difficult to follow ratio decidendi?

Answer 22

1. Judgements are not clear – they are not set out with headings for which part is the ratio decidendi etc
2. Judgements are often written in a discursive (meandering between topics) manner so it is difficult to extract that main reasons for the judgement.
3. Different judges may give different reasons for their decisions. For example, in Donoghue v Stevenson, The ‘neighbourhood principle’ was not part of the rational given for the decision (Ratio Decidendi ). Tt was only Atkin who referred to this in his judgement.
4. It is for the lawyers and judges (and law students!) reading back over the judgements to find the ratio decidendi

Question 23

What are the 4 rules to follow for judicial precedent?

Answer 23

Follow
Overrule
Reverse
Distinguish

Question 24

What is meant by follow?

Answer 24

If the material facts of a case are significantly similar to an existing precedent, the judge should always follow the previous decision.

Question 25

Definition rules of precedent - Overrule (with case law example)

Answer 25

Overrule
Higher courts can overrule lower courts.
Example: Candler v Crane Christmas & Co (1951) was overruled in Hedley Byrne v Heller & Partners Ltd (1964)

Question 26

Definition rules of precedent - Reverse (with case law example)

Answer 26

Reverse
on appeal, a higher court may change the decision of a lower court.
Example: Gillick v West Norfolk & Wisbech AHA (1986)

Question 27

Definition rules of precedent - Distinguish (with case law example)

Answer 27

Distinguish
Where a lower court is able to point to material differences that justify the application of different principles.
Example: Balfour v Balfour was distinguished in Merritt v Merritt

Question 28

Which courts are able to overrule, reverse of distinguish the law?

Answer 28

A superior court may overrule, reverse or distinguish the decision of a court below it up dating precedent and therefore changing the law.

Question 29

When a judge overrules, reverses, or distinguishes the law what 2 things will they explain?

Answer 29

A judge will normally explain:
1. The existing precedent. What part of the judgment is this? -
Stare decisis.
2. Their reasons for overruling it. What part of the judgment is this? ‘ratio decidendi’ (reason for deciding)
Once new precedent is established, it must be followed in all subsequent cases.

Question 30

Name advantages of judicial precedent. FLOC

Answer 30

Flexibility
Legal Growth
Objectivity
Certainty

Question 31

Elaborate on why ‘Certainty’ is an advantage of judicial precedent.

Answer 31

Certainty :
The precedent system encourages consistency as like cases are decided alike. This means that the system is predictable, and therefore people can plan ahead with reasonable confidence that they are acting within the law.

Question 32

Elaborate on why ‘Flexibility’ is an advantage of judicial precedent.

Answer 32

Flexibility:
Judges can distinguish cases on their facts.
The Practice Statement allows the law to develop and adapt, thus keeping up with modern times.
The precedent system has enabled whole areas of law to grow, with little statutory intervention to accompany them: for example, the laws of contract and tort.

Question 33

Elaborate on why ‘Objectivity’ is an advantage of judicial precedent.

Answer 33

Objectivity –
the system of precedent prevents judges exercising personal prejudices, making the courts’ decisions more transparent and creating legal rules that are objectively acceptable.

Question 34

Elaborate on why ‘Legal growth’ is an advantage of judicial precedent.

Answer 34

Legal Growth:
This means that new laws can be created to deal with difficult and new legal dilemmas. Famous examples of such cases include Airedale NHS Trust v Bland (1993) on the question of whether a life support machine should be switched off when a person was in a persistent vegetative state; and the case Re A (2000) on the question whether Siamese twins should be separated by an operation when the hospital recommended this, but where the patient had clearly expressed their opposition.
Legal growth also comes in the light of practical experience.

Question 35

Name disadvantages of Judicial Precedent

Answer 35

1. Social status of judges
2. Rigidity of the system
3. Long, unclear judgments
   Unclear distinctions
4. Case law as a way of developing the law
5. Supreme Court as the maker of precedent
6. Reactive nature of precedent
   Complex and imprecise

Question 36

Elaborate on why the ‘social status of judges ‘ is a dis-advantage of judicial precedent.

Answer 36

Judges are drawn from a narrow social spectrum. Their views are therefore less likely to be representative of those of the general public.

Question 37

Elaborate on why the ‘rigidity of the system’ is a dis-advantage of judicial precedent.

Answer 37

This system is rigid as the lower courts have to follow the decisions of higher courts. It can be argued that the Court of Appeal should be allowed to overrule decisions of the House of Lords in certain defined circumstances, as it is often the ultimate court for most litigants.

Question 38

Elaborate on why ‘long unclear judgements ‘ is a dis-advantage of judicial precedent.

Answer 38

Judgements can be long and unclear, and so finding the ratio decidendi is not an easy task.

Question 39

Elaborate on why ‘unclear distinctions ‘ is a dis-advantage of judicial precedent.

Answer 39

In seeking to avoid a precedent, judges may make distinctions which seem neither logical, nor in line with the general rules that have been developed.

Question 40

Elaborate on why ‘Case law as a way of developing the law ‘ is a dis-advantage of judicial precedent.

Answer 40

Case law is not designed for coherent legal development: the law inevitably develops in a piece-meal, incremental fashion, and the directions of such change are not predictable.

Question 41

Elaborate on why the ‘Supreme Court as the maker of precedent ‘ is a dis-advantage of judicial precedent.

Answer 41

Only the House of Lords is in a position to give an ultimate ruling on an issue before the courts, and it is extremely expensive and time consuming to get a case this far. Even then, the Practice Statement means that the law might not be settled.

Question 42

Elaborate on why the ‘Reactive nature of precedent’ is a dis-advantage of judicial precedent.

Answer 42

The system of precedent cannot initiate legal change since it has to wait for an appropriate case to come before the courts.
Some judges, notably Lord Denning and other ‘grand style’ judges have been frustrated by the restrictions imposed by the precedent system, believing them, at times, to create injustice.

Question 43

Elaborate on why the judicial precedent may lead to Complex and imprecise bodies of law.

Answer 43

Judicial precedent leads to complex and imprecise bodies of law, thus encouraging speculative litigation.