Paper 2 - Law Making - Judicial Precedent

Question 1

what is judicial precedent?

Answer 1

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

Question 2

what is the doctrine of precedent based on?

Answer 2

the principle of stare decisis (stand by what has been decided)

Question 3

what is a judgment?

Answer 3

the speech made by the judge hearing the case, giving the decision, and explaining the reasons for the decision

Question 4

what does the judge give in a judgment?

Answer 4

a summary of facts, review of argument, and explanation of law used to make the decision

Question 5

what is the ratio decidendi?

Answer 5

“The rationale for the decision’’ and it is binding

Question 6

when can precedent operate?

Answer 6

only if the legal reason for a past decision is known

Question 7

example of ratio decidendi

Answer 7

R v DUDLEY & STEVENS
-shipwrecked defendants killed, ate the cabin boy
- they were charged with murder
‘ three reasons for refusing a defense of necessity if not available for theft of food as of starvation, it is not available for murder, the Christian aspect of giving up own life to save another rather than taking a life to save own and the impossibility of choosing between the value of each life

Question 8

what is meant by obiter dicta?

Answer 8

the remainder of the judgment, a judge’s expression of opinion but not essential to the decision and therefore not legally binding as a precedent.

Question 9

example of obiter dicta

Answer 9

HILL v BAXTER

• driver fell asleep diving into some people
• conviction for driving offenses was upheld, he was at fault for not stopping when drowsy
• judge gave the fictional example of someone stung by bees while driving and losing control as an example of non-fault

Question 10

what is the original precedent?

Answer 10

where a judge must come to a decision without following a previous decision

Question 11

what is reasoning by analogy?

Answer 11

drawing specific conclusions from other specific examples based on the similarities between them

Question 12

example of original precedent

Answer 12

HUNTER and OTHERS v CANARY WHARF LTD and LONDON DOCKLANDS DEVELOPMENT CORPORTATION

Question 13

What is binding precedent?

Answer 13

Precedent that a court must abide by even if the judge in the latter case doesn’t agree with the legal principle

Question 14

when is the binding precedent created?

Answer 14

only what facts of 2nd case at sufficiently similar to the original case

Question 15

what is the persuasive precedent?

Answer 15

not binding but the judge may consider it, decide it’s a correct principle so he is persuaded he should follow it

Question 16

how many sources does the persuasive precedent come from?

Answer 16

five

Question 17

what are the five sources the persuasive precedent comes from?

Answer 17

• courts in the lower hierarchy
• decisions of the judicial committee of the privy council
• statement made by obiter dicta
• a dissenting judgment
• decisions of courts on other countries

Question 18

what case is an example of courts in the lower hierarchy?

Answer 18

R v R -
= The defendant was charged with the attempted rape of his wife.
= At the time of the offense the couple had separated although no formal legal separation existed and neither party had partitioned for a divorce.
= It is not illegal for a man to rape his wife. His conviction for rape was upheld. Original Precedent

Question 19

what case is an example of decisions of the judicial committee of the privy council?

Answer 19

• not part of the hierarchy so not binding
• many judges members of the Supreme Court so judgments are treated with respect and often followed

THE WAGON MOUND 1961

• oil was negligently spilt in Sydney harbour, some drifted under wharf where claimant was welding, oil caught fire damaging several ships.
• tril judge held damage as foreseeable but privy council reversed decison as damage wasn’t foresable

Question 20

explanation of statement made by obiter dicta?

Answer 20

• clearly seen in the law on duress as defense to criminal charges (where HoL ruled in R v HOWE that duress couldn’t be murder defense)
• in obiter, judges commented duress not available as a defense to attempted murder (R v Gotts 1992, R v Howe was followed as pervasive precedent

Question 21

example of cases in statement made by obiter dicta?

Answer 21

R v Howe

• defendant part of gang charged with murder
• defendant - defense of duress as he was scared of consequence if he did not comply
• Lord Hailsham- defense of duress not available for murder (overruling DPP v Lynch)

R v Gotts

• defendant attempted to murder mum after threatened by dad
• not allowed defense of duress
• held, CoA persuaded by obiter dictum from Howe case

Question 22

explanation of a dissenting judgement

Answer 22

• case decided by majority of judges
• judge who disagrees will have provide explanation
• case goes to appeal - judge may prefer dissenting judgement

Question 23

explanation of decisions of courts in other countries with case example

Answer 23

• other country uses same ideas of common law as our system (Canada, Australia etc)
• Re S (persuaded by American Authority)
• woman in labor over 2 days, it was obstructed and both lives were at risk
• evidence that to save both, it was needed to perform a c section but she and husband refused due to religion
• health authority applied to the courts permission to do operation w/o consent
• held as lives were at risk if op not performed and it was open to court to make declaration that op could be performed notwithstanding mothers refusal