Paper 2.4 - Judicial Precedent

Question 1

What is judicial precedent (or ‘stare decisis’)?

Answer 1

Stand by what has been decided; all courts are bound by their own decisions and the courts above it.

Question 2

What are the two parts of a judgment?

Answer 2

Ratio decidendi and obiter dicta.

Question 3

What is a ratio decidendi? What was it in Dica?

Answer 3

Binding part of a judge’s decision that specifically mentions the case details; the intentional transmission of HIV could be classed as GBH.

Question 4

What is an obiter dicta? What was it in Dica?

Answer 4

Non-binding part of a judge’s decision that theorises about the case facts being different; the intentional transmission of lesser STDs could be ABH.

Question 5

Name one example of one case’s obiter being applied as another case’s ratio.

Answer 5

Howe: Obiter - Duress should not be a defence for attempted murder.
Gotts: Ratio - Duress is no longer a defence for attempted murder.

Question 6

What courts are binded by a decision made in the Court of Appeal?

Answer 6

CoA and everything below.

Question 7

What are the three types of precedent?

Answer 7

Binding.
Persuasive.
Original.

Question 8

What is binding precedent? Give an example.

Answer 8

Binding precedent is when a case follows another case’s ratio decidendi - it must be enforced; ratio decidendi.

Question 9

What is persuasive precedent? Give an example.

Answer 9

Persuasive precedent is when a case follows another case’s suggestion - it does not have to be enforced; obiter dicta.

Question 10

What is original precedent? Give a case example.

Answer 10

Original precedent is a decision on a point of law that has never happened before; Dica.

Question 11

What are the five ways Supreme Court can avoid precedent?

Answer 11

Practice Directions 3 and 4.
Distinguishing.
Overruling.
Reversing.
Precedent violates human rights.

Question 12

What case introduced the doctrine of precedent in the House of Lords (now the Supreme Court)?

Answer 12

London Street Tramways (1898).

Question 13

In 1966, the Lord Chancellor issued a Practice Statement. What was it?

Answer 13

‘The House of Lords (SC) can depart from precedent when it appears right to do so.’

Question 14

Upon the creation of the Supreme Court in 2009, what was the Practice Statement 1966 changed to?

Answer 14

Practice Directions 3 and 4.

Question 15

What was the first major civil use of Practice Statement 1966 (now Practice Directions 3 and 4)?

Answer 15

Addie v Dumbrek
4 year old killed when he fell through unprotected cover on private land. Occupier not liable as they did not intend injuries.
OVERTURNED BY
Herrington
6 year old burned by an electrified railway after trespassing a broken fence. Occupier liable as they were negligent toward the broken fence.

Question 16

What was the first major criminal use of Practice Statement 1966 (now Practice Directions 3 and 4)?

Answer 16

Anderton
D brought a camera she thought was stolen, however it turns out it wasn’t. D was not guilty because no crime was committed.
OVERTURNED BY
Shivpuri
D transported a suitcase of ‘drugs’ over border; turns out it was vegetables. D was guilty of attempting to transport drugs because he had the mental state.

Question 17

What is distinguishing?

Answer 17

Judges find factual differences in cases in order to justify not following precedent.

Question 18

Give one example of a judge distinguishing between two cases.

Answer 18

Brown (1993)
5 consenting adults performed violent sexual activities. Guilty of GBH because consent is not a defence.
DISTINGUISHED
Wilson (1997)
D branded his initials on his wife’s bum. Branding was not deemed GBH, and D was acquitted.

Question 19

What is overruling?

Answer 19

A higher court can overrule all lower court precedents and set their own.

Question 20

Give one example of a judge overruling a case.

Answer 20

Anderton
D brought a camera she thought was stolen, however it turns out it wasn’t. D was not guilty because no crime was committed.
OVERRULED BY
Shivpuri
D transported a suitcase of ‘drugs’ over border; turns out it was vegetables. D was guilty of attempting to transport drugs because he had the mental state.

Question 21

What is reversing?

Answer 21

A higher court can reverse a lower court’s decision on appeal.

Question 22

Give one example of a judge reversing a case.

Answer 22

K (1990)
D hid sulphuric acid in a school hand dryer, causing another student to be injured. Charged with ABH, acquitted in Magistrates’, reversed and convicted in Crown on appeal.

Question 23

What are the three Young exceptions to Court of Appeal precedent?

Answer 23

Previous decision was made ‘per incurram’ (in error).
SC has made a decision which effectively overrules CoA.
The CoA may decide between two conflicting precedents.

Question 24

The Court of Appeal is only justified in ignoring precedent in ‘rare and exceptional’ cases according to what case?

Answer 24

Rickards.

Question 25

Give four advantages of judicial precedent.

Answer 25

Certainty.
Flexibility.
Saves time.
Legal experts are deciding.

Question 26

Give four disadvantages of judicial precedent.

Answer 26

Undemocratic.
SC & CoA cases can take ages.
Distinguishing can be used for judicial bias (eg Wilson).
Can be too rigid.