law making- judicial Precedent

Question 1

translate and explain “stare decisis”

Answer 1

“stand by thing decided”
- a body of law created by judges
-AKA ‘common law’

Question 2

translate and explain “ratio decidendi”

Answer 2

“reason for the decision” - why judges decided upon a decision

Question 3

translate and explain “obiter dicta statements”

Answer 3

“a remark in passing” or “other things said”
-persuasive –> It’s for helping judges in lower courts

Question 4

where can “ratio decidendi” and “obiter dicta” be found

Answer 4

-law reports
-judgments
-it is Binded

Question 5

what are the 3 types of precedent

Answer 5

1)original precedent
2)Binding precedent
2)persuasive precedent

Question 6

explain original precedent

Answer 6

1)where a point of law has never been decided before. Whatever the judge decides, will form a new precedent for future judges.
2) judges are also likely to look at cases that are the closest in principle

Question 7

explain Binding precedent

Answer 7

this is a precedent from an earlier case that must be followed even if the judge in the later cases disagrees with the legal precedent.

Question 8

explain persuasive precedent

Answer 8

this a precedent that is not binding on the court, but the judge may consider it and decide that it is a correct principle so they are persuaded to follow it.

Question 9

what is contained in persuasive precedent

Answer 9

1)O.D(obiter dicta)- can be seen in R v Howe 1987
2)courts lower in the hierarchy - Rv R 1991
3)a dissenting judgment- where a case is decided by a majority judge. if the judge disagrees they would need an explanation. e.g Royal college of nursing V DHSS
4)decisions of the judicial committee of the privy council
5) Decisions of courts in other countries

Question 10

what is one example of a persuasive precedent

Answer 10

1)R v Howe 1987(HOL)

Question 11

explain R v Howe 1987 and the outcomes made

Answer 11

1)R v Howe (1987) established that duress(threats, violence) is not a defense to murder, as taking an innocent life cannot be justified by threats to one’s own life.
2)Per curiam(a decision on an appeal): The defense of duress asks whether a reasonable person in the same situation would have acted the same way due to the threat’s seriousness.
3)The Lords ruled that duress cannot be used as a defense for attempted murder.

Question 12

what is the operation of judicial precedent

Answer 12

1)higher courts can bind lower courts I.E lower courts follow the courts above them
2)courts can also Bind themselves
3)C of appeal or UK SC Bind themselves

Question 13

what does F.O.R.D stand for

Answer 13

-Following
-Overule
-Reversing
-Distinguishing

Question 14

explain “following” in FORD and give an example

Answer 14

1)not an actual method of avoiding precedent, it is simply what majority judges do
example- Knuller v DPP 1973- followed the decision in Shaw v DPP 1962 where the HOL decided that a crime of conspiracy to corrupt public morals existed.

Question 15

explain “over-rule” in FORD and give an example

Answer 15

1) a court in a later case states that the legal rule decided in the earlier case is wrong.
examples-
Anderson v Ryan 1985
-the rule was: cannot be guilty of an impossible crime
-The defendant thought they had bought stolen goods but didn’t–> therefore no crime
-Rv Shivpuri 1986
rule was: cannot be guilty of an impossible crime
-defendant was stopped at the airport for carrying white powder–> admits to smuggling drugs

Question 16

explain “Reversing” in FORD and give an example

Answer 16

1) a court higher up in the hierarchy overturns the decision of a lower court of appeal in the same case.
e.g- K v Kingston 1994
- D had pedophile tendencies and X wanted to blackmail him.
-the original trial was held that he was guilty even though his intoxication was involuntary. the court of appeal reversed this then HOL restated the original verdict finding him guilty

Question 17

explain “Distinguishing” in FORD and give an example

Answer 17

A judge finds that the material facts of the case he is deciding are sufficiently different for him to draw a distinction between the present case and previous precedent. he is now not bound.
E.g. Balfour v Balfour 1919 –>husband doesn’t keep a financial promise to wife and the wife takes him to court where the judge tells them marriage is not a contract.
Merrit V merit 1971
1)husband and wife separate
2) The husband promises money but fails to pay
3) The wife takes him to court and the court rules Husband is responsible for paying up

Question 18

explain the change in the House of Lords/ UKSC

Answer 18

1)HOL used to have the right to overrule however it disappeared during the end of the 19th century.
2)London Street Tramways v London County Council 1898 decided that certainty was more important in the law than possible individual hardship.
3)between 1898 and 1966 the HOL was considered completely bound by its own decisions unless the decision was made “per incuriam”(error in law)

Question 19

explain the 1966 practice statement giving an example

Answer 19

The 1966 Practice Statement allowed the House of Lords (now the Supreme Court) to depart from its own previous decisions to adapt the law to changing circumstances.
e.g Anderton v Ryan
- stopped in the airport carrying “white powder”
-admits to smuggling, not drugs
-was found guilty
R v Shivpuri 1986

Question 20

state two examples of cases in the Court of Appeal

Answer 20

1)Young v Bristol Aeroplane Ltd 1944
2)R v Taylor 1950

Question 21

explain all the rules passed in Young v Bristol Aeroplane Ltd 1944

Answer 21

1)the court can choose which one it will follow
2) The CIA must follow the UKSC
3) The previous decision has been “per incuriam” - in error because an act has not been considered correctly.
4)in criminal cases where law has been either “misapplied or misunderstood” the court of appeal must reconsider its earlier decision, as confirmed in R v Taylor 1950

Question 22

explain R v Taylor 1950

Answer 22

1) The court of appeal held that in “questions involving the liberty of the subject” if a full court considered that “law has either been misapplied or misunderstood” then it must be reconsidered the earlier decision.