Paper 2: judicial precedent

Question 1

What does stare decisis mean?

Answer 1

‘Stand by what has previously been decided’

Question 2

What does stare decisis aim to do?

Answer 2

This is the basis of the doctrine of judicial precedent and it ensures that points of law decided in past cases are followed by judges in later cases , these legal principles set by judges in higher courts set precedents to be followed by that court, and all courts below it in future cases

Question 3

How does stare decisis work?

Answer 3

• Only works if judges actually follow previous decisions and follow the rules of precedent
• Stare decisis is created through following a ratio decidendi through accurate law reports and through a settles court hierarchy

Question 4

What is ratio decidendi?

Answer 4

This is the legal reason for a decision, the part of a judgment in which the judge explains the principles of law upon which his decision is based

Question 5

Why is ratio decidendi important?

Answer 5

If the judgment is by a higher court, then all lower courts must follow it in subsequent cases

Question 6

What was the ratio decidendi in Donoghue v Stevenson?

Answer 6

We owe a duty of care to our neighbours, in this case, the manufacturers to the ultimate consumers of their product

Question 7

What was the ratio decidendi in R v Brown?

Answer 7

The defence of consent is not available in respect for sadomasochistic practices to defendants charged with such offences

Question 8

What is obiter dicta?

Answer 8

This means ‘other things said’, which refers to a statement of law by a judge which does not form binding precedent, this can be persuasive which becomes the ratio of a new case

Question 9

What was the obiter in R v Howe?

Answer 9

This opinion was clearly made obiter, as it didn’t directly relate to the case as Howe was charged with murder not attempted murder

Question 10

What was the obiter in R v Gotts?

Answer 10

The HL decided to follow the obiter of Howe and found the defendants guilty as duress was no defence to attempted murder

Question 11

What was the obiter in R v Wilson?

Answer 11

The CA decided that this was a form of body decoration similar to tattooing using the obiter of Brown. They said that in this case, consent was a defence

Question 12

What are the advantages of law reports?

Answer 12

• They enabling solicitors and barristers to access them in order to advice their clients and when presenting cases in court
• Judges also need to know what legal principles were applied by judges in earlier similar cases to make a reasoned decision in the case present and achieve stare decises

Question 13

Who are the superior courts?

Answer 13

Supreme court, CA, Divisional Courts

Question 14

What precedent do superior courts follow?

Answer 14

Binding precedent

Question 15

What are the inferior courts?

Answer 15

High court, County court, Crown court, Magistrates court

Question 16

What precedent do inferior courts follow?

Answer 16

Persuasive precedent

Question 17

Definition of original precedent

Answer 17

If the point of law on a case is unique and hs never been considered before, then whatever the judge decides will form a new judgement for future cases to follow

Question 18

Definition of binding precedent

Answer 18

This is a precedent from an earlier case which must be followed even if a judge in the later case does not agree with the legal principle

Question 19

Definition of persuasive precedent

Answer 19

This is precedent that is not binding on the court, but the judge may consider it and decide that the principle is correct and is ‘persuaded’ to follow

Question 20

Types of persuasive precedent

Answer 20

1) Courts lower in the hierarchy
2) Statements made obiter dicta
3) Decisions of courts in other countries
4) A dissenting judgement
5) Decisions of the Judicial Committee of the Privy Council

Question 21

What was held in R v R?

Answer 21

The HL agreed with and followed the same reasoning as the CA in deciding that a man could be guilty of raping his wife

Question 22

What is a dissenting judgement?

Answer 22

When a case has been decided by a 2-1 majority, the dissenting judge will have explained his reasons. If a case with similar point comes to higher court, then they may be persuaded to follow the dissentingg judgement

Question 23

Why may precedents be necessary?

Answer 23

The law may be outdated so judges may need to change the law, causing the law to be more flexible and achieving justice

Question 24

What was held in London Tramways case?

Answer 24

The HL held that certainty in the law was more important, and therefore they were completely bound by their own past decisions unless a decision was made per incuriam, that is ‘in error’

Question 25

Practice Statement 1966

Answer 25

"whilst the Lords is normally bound by its own previous decisions, it can depart from it 'in the interests of justice' or when it appears right to do so"

Question 26

Herrington v British Railways Board (1972)

Answer 26

The HL overruled their earlier precedent and stated that the social and physical conditions had changed and therefore the law needed to change, therefore a duty was owed to the child

Question 27

Miliangos v George Frank Textiles (1976)

Answer 27

HL used the Practice Statement and awarded damages in Swiss Franls recognising the change in economic conditions

Question 28

R v Shivpuri (1986)

Answer 28

The HL answered in the affirmative and in doing so, it overrules its own ruling the year before in Anderson v Ryan, applying the Practice Statement

Question 29

R v G&R (2003)

Answer 29

Using the Practice Statement, the HL departed from its decision in R v Caldwell on the law on recklessness, making it a subjective test. On the basis, the boys conviction was quashed as they hadn't realised their risk

Question 30

CA exception one

Answer 30

- In Royal College Nursing v DHSS, the CA held that nurses were not registered medical practitioners, on appeal, the HL held that they were and could perform abortions. IF the same question arose in the CA, it wold have to follow the HL rather than itself

Question 31

CA exception two

Answer 31

This should never happen as the CA should always follow its own previous decisions, however: Ingram v Little Lewis v Avery This now means there are 3 conflicting CA decisions, and so CA can follow either

Question 32

CA exception three

Answer 32

It was held in Rickards v Rickards that the use of the per incuriam rule could only be used in 'rare and exceptional' circumstances

Question 33

R v Gould (1968)

Answer 33

They can depart from a previous decision if the law is misapplied or misunderstood, this exception arises because in criminal cases, a persons liberty is involved and is at stake

Question 34

Distinguishing: Balfour v Balfour (1919)

Answer 34

The claim would not succeed because there was no intention to create legal relations; it was merely a domestic arrangement between husband and wife therefore no binding contract existed. As a result of this ratio, the wife did not succeed in her claim

Question 35

Distinguishing: Merritt v Merritt (1971)

Answer 35

The claim did succeed although they were husband and wife, the agreement was after they had separated and was in writing.

Question 36

Overruling: Hedley Byrne v Heller/ Chandler v Crane Christmas

Answer 36

Hedley Byrne v Heller the Lords overruled the Ca's decision in Chandler v Crane Christmass deciding that there can be liability for a negligent misstatement

Question 37

Can the SC overrule their own decisions?

Answer 37

Yes using the practice statement

Question 38

Who can overrule the European Court of Justice?

Answer 38

The ECJ can overrule a past decision it has made and that of any lower court

Question 39

Reversing: RCN v DHSS

Answer 39

- The High Court stated that the nurses were RMP and therefore had to carry out abortions - CA disagreed with this and said that they were not RMP and did not have to carry abortions - HL disagreed with the CA stating that they were RMP and therefore had to carry out abortions