Judicial Precident - Topic 3

Question 1

What is the definition of judicial precedent?

Answer 1

The source of law where past decisions of the judge create law for future judges to follow

Question 2

What does stare decisis mean?

Answer 2

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

Question 3

What is the hierarchy of the court structure in 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 court structure in criminal cases?

Answer 4

Supreme Court - court of appeal - queens bench divisional court - crown court - magistrates court

Question 5

Why is the hierarchy of courts important?

Answer 5

Courts are bound by the courts above them in the hierarchy

Question 6

Which courts make precedent?

Answer 6

The Supreme Court, the court of appeal and high court

Question 7

Which courts don’t make precedent?

Answer 7

High court on first instance, county court and magistrates court

Question 8

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

Answer 8

depends on the availability of full and accurate reports of decided cases

Question 9

when will a case be reported?

Answer 9

• if it introduces a new principle or rule of law
• modify an existing principle of law
• settle doubtful questions of law

Question 10

what are the most highly regarded law reports?

Answer 10

incorporated council for law
reports set up by the law society and inss of court

Question 11

where else might you find law reports?

Answer 11

the all England law reports
lexis
newspapers

Question 12

what is ratio decidendi?

Answer 12

the reason for deciding

Question 13

what was the ratio decidendi in Donoghue v Stevenson?

Answer 13

development of the neighbour principle

Question 14

what was the ratio decidendi in R v R and G?

Answer 14

test for recklessness was confirmed as a subjective test

Question 15

what was the ratio decidendi in R v Howe?

Answer 15

duress is not a defence of murder

Question 16

what is the definition of obicta dicta?

Answer 16

things said by the way

Question 17

what was the obicta dicta in the case R v Howe and Bannister?

Answer 17

the defence of duress should not be available for attempted murder

Question 18

what was the ratio decidendi in the case R v Brown?

Answer 18

defence of consent wasn’t available for ABH caused by sadomasochistic acts

Question 19

what was the obiter dicta in the case R v Brown?

Answer 19

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

Question 20

what is the definition of overruling?

Answer 20

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

Question 21

what are two reasons a court may wish to avoid precedent?

Answer 21

1. outdated
2. an earlier case is wrong

Question 22

Can the supreme court overrule its own previous precedents?
give details of the practice statement

Answer 22

Yes
practice statement 1966 allows the Supreme Court to depart from its own previous decision when right to do so, R v Shivpuri overruled Anderton v Ryan.

Question 23

what was the ratio decidendi in addie v dumbreck?

Answer 23

occupiers of land didn’t own a duty to trespassers

Question 24

what was the ratio decidendi in british railways board v Herrington?

Answer 24

the defendant of the railways company did owed a duty of common humanity to trespassers

Question 25

what two cases illustrate distinguishing in the supreme court?

Answer 25

Fairchild v Glenhaven Funeral Services Wilsher v Essex Health Authority

Question 26

is the court of appeal civil division bound by previous precedents? Young v British Aeroplane Co Ltd

Answer 26

Yes except for 3 conditions: - conflicting decisions - decisions made in error - high court overrules a decision

Question 27

is the court of appeal bound by its own previous decisions in the criminal division?

Answer 27

no because a persons liberty may be at stake

Question 28

what’s the definition of distinguishing?

Answer 28

a method which can be used to avoid following a past decision which he would otherwise have to follow

Question 29

what happened in the case Balfour v Balfour?

Answer 29

1. husband and wife were in Sri Lanka but the wife got ill and so had to go back to England 2. husband stayed in sri Lanka but promised to send over £30 every month 3. he stopped sending the money over because he had an affair

Question 30

what happened in the case merritt v merritt?

Answer 30

1. husband and wife wanted to separate so husband moved out the house and stopped paying the mortgage 2. wife said she would pay off the mortgage and once that’s done the husband could sign over the house to her 3. they met and wrote this down and signed it in the husbands van 4. once the mortgage was paid off the husband refused to sign over the house

Question 31

why did the judge in merritt v merritt decide they did not have to follow the precedent in balfour v balfour?

Answer 31

the facts were different 1. they were divorced 2. there was a written contract

Question 32

give an example of distinguishing in the supreme court

Answer 32

Wilsher v Essex Health authority

Question 33

explain why the law is fair and consistent is an advantage of judicial precedent

Answer 33

even if the precedent is unpopular, it cannot be denied by the public that the rule has been fairly and consistently applied to all people who find themselves in similar legal situations

Question 34

explain why precdent creates flexibility within law is an advanatge

Answer 34

the courts can reinterpret the law when a new legal situation arises Burstow and Constanza - courts recognised mental injury for the first time Dica - recognised biological injury for the first time

Question 35

explain why precdent makes law too complex is a disadvantage

Answer 35

precedents may be lost or forgotten by the courts Case: Dodds

Question 36

explain why the law develops by chance is a disadvantage

Answer 36

an unjust precedent can lead to further injustices

Question 37

What is the difference between binding and persuasive precedent?

Answer 37

Binding = Must be followed by lower courts in future cases with similar facts. Persuasive = Not binding but can influence the decision in future cases.

Question 38

Where can persuasive precedent come from?

Answer 38

- Lower courts. - Obiter dicta. - Courts from other jurisdictions. - Dissenting judgments.