Module 5 - Judicial precedent (C6) Flashcards
What is judicial precedent?
A process where past decisions made by judges in higher courts are followed in future similar cases by courts of the same or lower rank. This ensures consistency and predictability in the law.
What principle is judicial precedent based on?
It is based on the principle of stare decisis.
What do some courts do with similar cases?
Some courts must also follow their own previous decisions (‘bind themselves’)
What is ‘stare decisis’
“to stand by what has been decided”
> This principle underpins the doctrine of judicial precedent and requires courts to follow previously established decisions in cases with similar facts.
What must a judge do when presented with a similar case to another?
Follow the doctrine of ‘stare decisis’
What is the more supreme court, the Crown Court or High Court, and why?
The High Court is slightly higher than the Crown Court as the Crown Court can refer to the KBD on a point of law, and be overruled
What is the importance of Wight v Platt 2017 in relation to court hierachy?
Isle of Wight Council issued a £60 fine after he took his kid out of school a week early to go on holiday
> He refused to pay, citing that no new learning is done in the last week and that his kid had excellent attendance
> In the Magistrates Court (lowest), he was found not guilty; on appeal, in the Crown Court and High Court (divisional) both found him not guilty; it eventually reached the Supreme Court who ruled in favour of the Isle of Wight council
What is ratio decidendi?
“the reason for the decision”.
> This is the binding legal principle or rule derived from the judgement in a case, which must be followed in future similar cases.
What happens when a judge makes a decision, in terms of what is stated?
When a judge makes a decision, they will give a statement of the facts, a verdict, and their ratio decidendi, or ratio
> It is not always easy to find the ratio in a case
> It is the ratio that creates new law and this must be followed by judges in lower courts
What is the ‘ratio’, and give one example of a ratio.
> ratio = reasoning (actual law); the legal outcome
i.e. the ‘ratio’ in R v R was a ruling against marital rape
As no two cases are identical, what needs to be decided, in relation to stare decisis?
What needs to be decided is whether two cases are ‘sufficiently similar’ that they should be treated the same (stare decisis)
What is obiter dictum?
“something said by the way”.
> These are comments or observations made by a judge in a judgement that do not form part of the binding precedent. While not legally binding, they may be persuasive in later cases.
What is the core difference between ratio decidendi and obiter dicta statements?
> Obiter dicta statements are not binding on a later judge, unlike ratio decidendi
What are some examples of how obiter dicta can arise?
> Obiter comments can arise in many ways, i.e. ‘IF the facts had been different, my outcome would have been…’; judge makes a number of general comments and speaks on hypotheticals, i.e. what they would have decided if they had not been bound by stare decisis
What is ratio?
An abbreviated term for ratio decidendi. It refers to the essential legal reasoning that forms the basis of the court’s decision, which is binding on future cases.
What is stare decisis in full and what does it mean?
stare decisis et non quieta movere = stand by what has been decided and do not unsettle the established
Which of obiter / ratio forms a binding precedent?
An obiter does not form a binding precedent, but the ratio does form one, meaning it is important to separate one from the other.
Why could the seperation of an obiter (non-binding) and a ratio (binding) be difficult?
> This poses as a problem for lawyers as the judge delivers his judgement in continuous prose, which makes this separation difficult
More judges (three in CoA, five in Supreme) means more potential judgements
In appeal court (appellate courts) a majority verdict is acceptable, so then there will be at least one dissenting judgement, making the ratio even more difficult to find.
What happened in Howe, in connection with an obiter dictum and speculation?
> Howe gives the principle that duress (being under pressure) is not an excuse for murder or attempted murder; the principle of duress comes from the Nuremberg Trials and the doctrine of equal life.
What happened in Hill v Baxter, in relation with automatism and hypothetical situations?
> Automatism is where you cannot control your body; this case’s obita serves as a deference in future automatism cases; sitting judge used an example (if a swarm of bees was attacking the driver and the driver crashed into a family, it is neither party’s fault); this hypothetical in the obita was used to explain automatism, and the judge found neither party criminally liable/guilty.
What four things is a judgement (speech made by the judge) made up of, and what type of cases does this appear in?
> A summary of the facts
A review of the legal arguments (summary of relevant law)
Reason for decision (ratio and obiter)
Decision itself
Occurs in civil, criminal and appeal cases
What is original precedent?
Original precedent is the law created by a case that is in a unique way different from any earlier case
> A point in a whole area of law that has never been decided on before, so there are no past cases which the judge can based his/her decision
> Judges must create law to fill in the gaps as there is no previous case or statute
What cases is original precedent used in ?
This occurred in R v R; Hunter v Canary Wharf; Shaw v DPP
What is reasoning by analogy, and what doctrine is it in close link to?
Reasoning by analogy is where if there are no past cases dealing with an area of law, the judge must look at cases which are closest in principle, and if deemed close enough, similar rules are applied
> Finding similarities between one case and another even if they are not exactly alike, making sure law is consistent
> Serves as an extension to stare decisis / doctrine of ‘like for like’
What is binding precedent?
Binding precedent is where a precedent from an earlier case must be followed, making the law certain, even if the sitting judge does not agree with the judgement in the earlier case
> Facts in the later case must be sufficiently similar to the earlier case
> Earlier cases must have been decided by a court senior/superior (i.e. Supreme Court, Court of Appeal) to or possibly at the same level as the later court.
What is persuasive precedent?
Persuasive precedent is precedent that is not binding, but which may be followed
What are the five sources of persuasive precedent, and in what cases are they seen in?
> Courts lower in the hierarchy (seen in R v R)
Decisions by the Privy Council (seen in Thabo Meli; also seen in Jersey v Holley, who were persuaded to follow the PC instead of the (binding) HL)
Statements (obiter); Howe -> Gotts
Dissenting judgements
Decisions from other countries (US v Kirby; Olga Zajac Russian case)
What is the act of distinguishing (in relation to not following judicial precedent), and what cases link to this?
- Distinguishing
> If the facts of the later case are sufficiently different from those of the earlier one. (i.e. Merritt v Merritt was distinguished from Balfour v Balfour)
What is the act of overruling (in relation to not following judicial precedent), and what cases link to this?
- Overruling
> If the court feels the legal rule in an earlier case is wrong (i.e. ECJ overruling itself, House of Lords/Supreme Court using the Practice Statement to overrule itself; Shivpuri overruled Anderton v Ryan; a higher court overruling a lower court.
What is the act of reversing (in relation to not following judicial precedent)?
- Reversing
> If, on appeal, a higher court decides a lower court has made the wrong decision
> Only the Supreme Court and Court of Appeal can overrule/reverse their own decisions
What two concepts out of distinguishing, overruling and reversing are usually interchangeable?
The concepts of overruling and reversing are usually interchangeable (overruling is adding to the law, reversing is adjusting the outcome)
What are some pros of judicial precedent?
Pros of judicial precedent
- Certainty (law is certain, easier for solicitors to advise)
- Consistency and fairness (nationwide)
- Precision
- Flexibility (no two cases are the same)
- Time-saving (for solicitors, lower court judges)
What are some cons of judicial precedent?
Cons of judicial precedent
- Rigidity (certainty may be too rigid, leading to several appeals, which spends time and money; i.e. in R v R)
- Complexity (difficult to distinguish ratio)
- Very large volume
- Illogical distinctions
- Slowness of growth
What is an obita?
Statements made by a judge in a judgement that are not essential to the decision and therefore not legally binding, but may be persuasive.
What is automatism?
A defence in criminal law where the defendant claims their actions were involuntary due to an external factor, such as a reflex or seizure.
What is duress?
A defence in both criminal and contract law where the defendant asserts they were forced to act due to the threat of harm.
What is a judicial judgement?
The formal decision or ruling made by a judge or court, including the reasoning and outcome.
What is reasoning by analogy?
A method of judicial reasoning where a judge applies principles from a similar case to the case at hand.
What is original precedent?
A precedent is set when a court decides a case on a point of law for the first time, creating a new legal principle.
What is binding precedent?
A precedent from a higher court or the same court in certain circumstances that must be followed by lower courts in future similar cases.
What is persuasive precedent?
A precedent that is not binding but may influence a court’s decision, such as rulings from other jurisdictions or lower courts.
What is distinguishing?
A method by which a judge avoids following a precedent by demonstrating significant differences between the facts of the current case and the earlier case.
Explain the case of R v R (1991).
This case overturned the precedent that a husband could not be guilty of raping his wife, marking a pivotal shift in English law.
> R was convicted of raping his estranged wife, despite the long-standing legal doctrine that implied marital consent exempted husbands from prosecution.
> The courts acknowledged societal changes, ruling that marriage did not imply indefinite consent to sexual relations.
> The House of Lords upheld R’s conviction, stating that the marital rape exemption no longer applied.
> This case is an example of original precedent, demonstrating how common law evolves to reflect modern values.
What is overruling?
When a higher court changes the legal principle established in a previous case, rendering the earlier precedent invalid.
What is reversing?
When a higher court overturns the decision of a lower court on the same case, altering the outcome.
Explain the case of Shaw v DPP (1962).
Shaw published a “Ladies’ Directory,” advertising the services of prostitutes.
> He was convicted under the common law despite the lack of a statutory offence, raising questions about judicial intervention in moral matters.
> The House of Lords upheld the conviction, asserting that common law can address morally harmful actions not covered by statute.
Explain Aldred’s Case (1611).
This foundational case in nuisance law established that certain intangible interferences, like offensive smells, can be actionable nuisances.
> Aldred successfully claimed that his neighbour’s pigsty created a foul smell, interfering with his enjoyment of property. The court ruled that such odours amounted to a nuisance and infringed upon his property rights.
> This case set a binding precedent on the treatment of intangible nuisances in English law.
Explain Hunter v Canary Wharf (1997).
> This case examined whether interference with television signals caused by construction could constitute a legal nuisance.
Residents living near Canary Wharf claimed that the tower’s construction interfered with their television reception.
The issue was whether this form of interference could be actionable.
The House of Lords ruled that interference with television signals does not constitute a nuisance as it does not involve a physical invasion of property rights.
This case is an example of original precedent, defining the boundaries of actionable nuisance claims.
Explain Jersey v Holley (2005).
> Holley killed his girlfriend with an axe following infidelity, claiming provocation.
The Privy Council ruled that characteristics like alcoholism should not affect the “reasonable person” test.
The court reduced Holley’s charge to manslaughter, establishing that provocation, such as infidelity, may mitigate a murder charge.
Explain Balfour v Balfour (1919).
> This case established the principle that domestic agreements between spouses are typically not intended to be legally binding.
Mr Balfour agreed to pay his wife a monthly allowance while working abroad. When the marriage deteriorated, Mrs Balfour attempted to enforce the agreement.
The Court of Appeal ruled that domestic agreements lack the intention to create legal relations, setting a binding precedent in family and contract law.
Explain Merritt v Merritt (1970).
> This case refined the principle of intention to create legal relations in domestic agreements, contrasting with Balfour v Balfour.
After separating, Mr Merritt agreed in writing to transfer the house to Mrs Merritt if she paid off the mortgage. > The court held that this agreement was enforceable due to the clear intention to create legal relations.
Explain R v Shivpuri (1986).
> This case clarified the law on criminal attempts, ruling that attempting the impossible can still result in liability.
Shivpuri attempted to smuggle what he believed were illegal drugs, which turned out to be harmless substances.
The court upheld his conviction, finding that a belief in committing an offence is sufficient for an attempt.
This case overruled Anderton v Ryan (1985) and established binding precedent, adopting a subjective approach to criminal attempts.
Explain Anderton v Ryan (1985).
> This case questioned whether a person could be guilty of attempting the impossible.
Ryan bought a video recorder she suspected was stolen, but it was legally acquired.
The House of Lords ruled she was not guilty, as no offence had been committed.
This decision was later overturned by R v Shivpuri, which clarified that belief in illegality suffices for liability.
Explain Thabo Meli.
> This case established the “single transaction” doctrine in criminal law, clarifying how intent (mens rea) applies across a sequence of actions.
T> he defendants attempted to kill a victim and believed he was dead, disposing of the body.
The disposal ultimately caused death.
The court ruled that their intent to kill extended to the entire sequence of acts.
This case created a binding precedent on the treatment of mens rea in murder cases involving a series of connected actions.
Explain US v Kirby (1868)
> A sheriff arrested a postal worker to serve a warrant, technically obstructing mail delivery in violation of federal law.
The U.S. Supreme Court ruled that the statute should not apply where its purpose was not undermined.
This case provided persuasive precedent for UK courts on statutory interpretation, emphasising purposive approaches to avoid illogical outcomes.
Explain Olga Zajac (2009).
In Russia, Olga Zajac overpowered an attempted robber, Viktor Jasinski, and held him captive, allegedly subjecting him to sexual assault while force-feeding him Viagra. Both were arrested—Zajac for unlawful detention and assault, and Jasinski for attempted robbery. This controversial case spurred debates over proportionality in self-defence and vigilante justice.
Explain R v Gotts (1992).
- Involved a 16-year-old boy who attempted to kill his mother after being threatened with death by his father if he did not comply. The boy claimed he acted under duress, arguing that the threat from his father forced him to try to kill his mother.
> The legal issue was whether duress could be a defence to the charge of attempted murder. The House of Lords ruled that duress could not be used as a defence for attempted murder, following the precedent in R v Howe (1987), which established that duress does not apply to murder or attempted murder.
> The court reasoned that allowing such a defence would undermine the severity of attempted murder, but it also acknowledged that the defendant’s age and immaturity could influence the reasonableness of his belief in the threat.
Explain Wight v Platt (2017).
Example of a court being overruled is Wight v Platt 2017
> Isle of Wight Council issued a £60 fine after he took his kid out of school a week early to go on holiday
> He refused to pay, citing that no new learning is done in the last week and that his kid had excellent attendance
> In the Magistrates Court (lowest), he was found not guilty; on appeal, in the Crown Court and High Court (divisional) both found him not guilty; it eventually reached the Supreme Court who ruled in favour of the Isle of Wight council
What did Sir Rupert Cross say about ratio decidendi?
> Sir Rupert Cross: ‘Any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.’
What are the similarities in the cases R v R; Hunter v Canary Wharf; Shaw v DPP?
Original precedent was used in all three.
What case shows lower court hierachy (type of persuasive precedent)?
> Courts lower in the hierarchy (seen in R v R)
What two cases involve decisions made in the Privy Council (type of persuasive precedent)?
> Decisions by the Privy Council (seen in Thabo Meli; also seen in AG for Jersey v Holley, who were persuaded to follow the PC instead of the (binding) HL)
What two cases use statements (obiter) (type of persuasive precedent)?
> Statements (obiter); Howe -> Gotts
What two cases use decisions from other countries (type of persuasive precedent)?
> Decisions from other countries (US v Kirby; Olga Zajac Russian case)
What two cases were involved in distinguishing (not following precedent)?
- Distinguishing
> If the facts of the later case are sufficiently different from those of the earlier one. (i.e. Merritt v Merritt was distinguished from Balfour v Balfour)
What two cases were involved in overruling (not following precedent)?
- Overruling
> If the court feels the legal rule in an earlier case is wrong (i.e. Shivpuri overruled Anderton v Ryan; a higher court overruling a lower court.
What is the 1966 Practice Statement, and give an example of this happening?
1966 Practice Statement allows the Supreme Court to depart from a previous decision when ‘it appears right to do so’.
> Supreme Court should bear in mind the danger of disturbing retrospectively contracts, arrangements and criminal law.
> For example, R v Shivpuri (1986) overruled Anderton v Ryan (1985)
