Paper 1 - Judicial Precedent

Question 1

What does Judicial Precedent refer to?

Answer 1

The source of law where the past decisions of Judges create law for future Judges to follow in similar cases.

Question 2

What is Judicial Precedent know as?

Answer 2

Case Law or Common Law

Question 3

What does ‘Stare Decisis’ mean?

What idea does it support?

Answer 3

Stand by the decisions of past cases.

This supports the idea of fairness and provides certainty in the law.

Question 4

What is a Binding Precedent?

Answer 4

A statement of law from an earlier case which must be followed even if the Judge in the current case doesn’t agree with it.

Question 5

When is a Binding Precedent created?

Answer 5

A Binding Precedent is only created when the material facts (main events) of the second case are sufficiently similar to the precedent and the decision was made by a court senior (in some circumstances the same level as) to the one hearing the current case.

Question 6

In order to operate properly, what does precedent need?

Answer 6

A system of reporting the cases that come before the courts so that both lawyers and Judges in later cases can refer back to the relevant statements of law.

Question 7

What is a system of law reporting needed for?

Answer 7

To publish a Judgment and to ensure there is an accurate and authorised record of the reasons for decisions.

Question 8

Who writes Law Reports?

Answer 8

Law Reports are written by specialist lawyers.

Question 9

What are examples of Law reports?

Answer 9

All England Law Reports and Lexis Nexis.

Question 10

What is the ‘ratio decidendi’?

Answer 10

In a Judgment, a Judge will explain the principles of law he is using to decide why a particular party won. The principles are the important part of the Judgment and are known as the ratio decidendi (the vital reason for deciding). the ratio creates a binding principle for Judges to follow in later similar cases.

Question 11

What is an example of a ratio?

Answer 11

The binding principle in R v HOWE that duress could not be a defence murder.

Question 12

What is ‘Obiter Dicta’?

Answer 12

All other points of law in the Judgment which are not ratio are called obiter dicta (other things said). These comments are not vital to the outcome of the case and are often discussions of hypothetical situations. None of the obiter forms part of the case law, it is not binding, though Judges in later similar cases may be persuaded to follow it in reaching a decision.

Question 13

What is an example of Obiter dicta?

Answer 13

The comment in R v HOWE that duress could not be a defence to the crime of attempted murder.

Question 14

What is every court bound to follow?

Answer 14

Usually every court is bound to follow a relevant decision made by a court above it in the hierarchy and appellate courts are bound by their own last decisions.

Question 15

What is the court hierarchy (pecking order)?

Answer 15

Criminal:
Magistrates Court —> Crown Court —> High Court —> Court of Appeal —> Supreme Court.

Civil:
Tribunals —> County Court —> High Court —> Court of Appeal —> Supreme Court.

Question 16

What is the most senior national court?

Answer 16

The Supreme Court.

Question 17

Who must the Supreme Court’s decisions be followed by?

Answer 17

It’s decisions must be followed by all other courts in the English Legal System.

Question 18

Who’s decisions is the Supreme Court bound to?

Answer 18

The Supreme Court is usually bound to follow its own past decisions.

Question 19

What are the two divisions of the Court of Appeal?

Answer 19

Civil Division and Criminal Division.

Question 20

Who is the Court of Appeal bound to?

Answer 20

Both divisions of the Court of Appeal are bound by previous decisions of the Supreme Court. Each division of the Court of Appeal is also usually bound to follow its own past decisions.

Question 21

Who is the High Court bound by and who does it bind?

Answer 21

The High Court is bound by decisions of all the courts above it in the hierarchy and in turn binds the lower courts. High Court Judges do not have to follow each other’s decisions but usually will do so.

Question 22

Who must the Crown Court, County Court and Magistrates Court follow?

Answer 22

Decisions by all higher courts. They do not usually create precedents themselves.

Question 23

What is a Persuasive Precedent?

Answer 23

A Persuasive Precedent is one which the court will consider and may be persuaded by, but which does not have to be followed.

Question 24

Persuasive Precedents come from a number of sources. What are some?

Answer 24

a. Courts lower in the hierarchy than the court hearing the Appeal e.g. R v R.
b. Statements made obiter dicta. R v HOWE - duress could not be a defence to the crime of attempted murder.
c. a dissenting Judgment (Judge who disagreed in a majority).

Question 25

What is an Original Precedent?

Answer 25

If the point of law has never been decided before then whatever the court decides will form an Original Precedent.
E.g. the ratio decidendi of DONOGHUE v STEVENSON

Question 26

What does it mean to follow a precedent?

Answer 26

To follow a precedent is to apply the same legal principle from an earlier case to a present case because the material facts are the same and the precedent was set by a higher court or was a precedent set by the same court.

Question 27

What is overruling?

Answer 27

Where a precedent set by a lower court is said by a higher court hearing a separate case to have been wrong. The earlier case ceases to be a precedent for any point of world. Also, some appellate courts can overrule their own precedents in certain circumstances.

Question 28

What does the Practice Statement of 1966 mean?

Answer 28

The Supreme Court can overrule any decisions made by lower courts in the hierarchy. Also the Supreme Court can overrule its own precedents ‘when it appears right to do so’, as provided for in the Practice Statement 1966.

Question 29

How did the House of Lords use the Practice Statement in HERRINGTON?

Answer 29

In HERRINGTON the House of Lords (Supreme Court) used the Practice Statement to overrule their 1929 precedent because of the changed attitudes in society towards child trespassers.

Question 30

The Court of Appeal (Civil Division) must follow its own past decisions unless it could overrule itself using one of the three exceptions stated in YOUNG v BRISTOL AEROPLANE. What are these exceptions?

Answer 30

1. The Court of Appeal may choose between two conflicting precedents of its own. Once it chooses it can’t go back.
2. Where there is a decision of the Supreme Court which by implication overrules a Court of Appeal decision, they must follow the Supreme Court.
3. It is not bounded by its own precedents made per incuriam (in error)

Question 31

What is the principle from R v TAYLOR?

Answer 31

Normally the Court of Appeal (Criminal Division) has to follow its own precedents to ensure certainty in the law. However, as well as using the exceptions from YOUNG’S CASE to follow a precedent of its own if the Judges in that earlier case have ‘misapplied or misunderstood the law’: R v TAYLOR.

Question 32

What is distinguishing?

Answer 32

When a court of any level finds a difference in the material facts between the case it is hearing and a precedent. As a result the court may refuse to follow the precedent.

Question 33

What is an example of the Judges distinguishing between cases?

Answer 33

BALFOUR v BALFOUR and MERRITT v MERRITT.
In BALFOUR v BALFOUR there was no intention to create a legally binding agreement.
MERRITT v MERRITT the agreement was made in writing. There was an intention to make a legally binding agreement.

Question 34

What is an advantage of precedent?

HINT: certainty

Answer 34

The system of precedent creates certainty in the law. This allows lawyers to advise clients on the probable outcome of a case; citizens know what the law is.

Question 35

What is a disadvantage of precedent?

HINT: rigid

Answer 35

Precedent is too rigid so that bad decisions are difficult to change and the law slow to develop. The strict hierarchy means that Judges must follow binding precedents. Thus, bad decisions cannot be changed unless they are heard in a higher court that can overrule them. Also changes cannot be made unless they come to court.
E.g. it wasn’t until 1991 that marital rape was recognised in R v R.

Question 36

What is an advantage of precedent?

HINT: impartial

Answer 36

As Judges are impartial and basing decisions on legal rules, precedent is a just and authoritative system of making law.

Question 37

What is a disadvantage of precedent?

HINT: undemocratic

Answer 37

Precedent is often seen as undemocratic. Many argue that only Parliament, with MPs representing and accountable to the electorate, should create law with Judges merely applying it.

Question 38

What is an advantage of precedent?

HINT: flexibility

Answer 38

There is a degree of flexibility to correct bad decisions and allow the law to deal with new situations. Judges can distinguish cases (M&M and B&B). Also, the Supreme Court/ House of Lords can use the Practice Statement 1966 to overrule its own precedents to allow the law to develop.

Question 39

What is a disadvantage of precedent?

HINT: retrospective

Answer 39

Case law is retrospective so a can can make someone liable for a crime even though it was not a crime when he or she first committed the act. This is what happened in R v R to a husband who was ultimately made liable for the attempted rape of his wife.

Question 40

What is an advantage of precedent?

HINT: real cases

Answer 40

As decisions are based on real cases it makes it easier to understand the law and apply it to future cases.

Question 41

What is a disadvantage of precedent?

HINT: trivial

Answer 41

Distinguishing has been criticised because judges any suggest trivial or illogical distinctions just to avoid precedents they do not like. Thus case law is very complex.

Question 42

What is an advantage of precedent?

HINT: time

Answer 42

Precedent is a time saving device, as for most situations there is an existing solution. Precedent provides detailed rules for later similar cases. As a result fewer cases will need to go to court for a decision.

Question 43

What is a disadvantage of precedent?

HINT: ratio decidendi

Answer 43

There is the problem of finding the ratio decidendi, particularly if more than one Judge gives a judgment in a case. In appellate courts each judge hearing the appeal may have a different reason for his decision so there will be more than one ratio.

Question 44

What is a disadvantage of precedent?

HINT: long

Answer 44

It can be difficult to separate the ratio from the obiter, as the written judgment is usually in a lengthy, continuous form, without specifying what the ratio is.
E.g. 5 judges gave a judgment for DONOGHUE v STEVENSON and the law report is 42 pages long.