Precedent Flashcards
The parents of a seriously ill child wish to challenge their local hospital’s decision to switch off their child’s life support machine. They wish to submit through Counsel that the Human Rights Act 1998 (HRA) applies to the case and cite decisions of the European Courts of Human Rights (ECtHR) in support of their arguments.
Which option best states what the court must consider with regard to the HRA when making its decision?
A-The HRA requires the court when determining questions that have arisen in connection with Convention rights to engage with the decisions of the ECtHR.
B-The HRA requires the court when determining questions that have arisen in connection with Convention rights to follow the decisions of the ECtHR.
C-The HRA requires the court when determining questions that have arisen in connection with Convention rights to take into account decisions of the ECtHR in so far as they are relevant.
D-The HRA requires the court when determining questions that have arisen in connection with Convention rights to apply recent decisions of the ECtHR.
E-The HRA requires the Court when determining questions that have arisen in connection with Convention rights to apply relevant decisions of the ECtHR.
Option C is the best answer. The HRA requires the court when determining questions that have arisen in connection with Convention rights to take relevant decisions of the ECtHR into account in so far as they are relevant.
Section 2(1) of the HRA requires UK courts to “take into account” any decision of the ECtHR (or Committee of Ministers) in so far as they are relevant in cases concerning Convention rights. This means that UK courts are required to take account of relevant decisions of the ECtHR, but are not bound by them.
The other options are accordingly wrong.
A buy-to-let business based in Oxford is about to issue a claim against a building company. The Oxford-based business alleges breach of contract concerning five homes it recently purchased in Oxford from the building company. The central allegation is that minor work in the homes was not carried out with reasonable care and skill. There is relatively little documentation and the matter does not hinge on contentious expert evidence. The claim has a quantum of £130,000. The Oxford Combined Court Centre is currently short staffed and overworked.
Which is the correct choice of court for this case?
A-The High Court, Queens Bench Division, in the specialised Technology and Construction Court, as this could be a complex matter.
B-The Oxford County Court, as this is local to the dispute, and the value is not significant.
C-The High Court, Queens Bench Division, with no specialised court, as the value is over £100,000.
D-The High Court, Chancery Division, as this is a dispute between companies.
E-The Reading County Court, as this is close to Oxford and therefore can help with its caseload.
Option B is correct. The local County Court is the best place for this to be heard – the homes in question are in Oxford, there is no obvious complexity to the matter, and the value is suitable for the County Court jurisdiction (where the value is over £100,000 there is a choice to be made between County and High Courts).
Option A is wrong because the claim is not a specialised one.
Option C wrong is as neither the value nor the complexity of the matter merits a High Court hearing.
Option D is wrong because the legal status of the parties has no bearing, on these facts, on the choice of jurisdiction.
Option E is wrong because, although the Oxford Centre is busy, the claim should still be commenced there.
A firm acts for a client (“the applicant”) in a contentious probate matter. The applicant is aggrieved that he has been left out of his father’s will as he was expecting to inherit from his deceased father’s estate. Under the Inheritance (Provision for Family and Dependents) Act 1975 (“the Act”), the financial resources and needs of the applicant will be considered when deciding the claim. The matter is heard in the Court of Appeal after a first instance decision was handed down in the High Court. The Court of Appeal affirmed that the applicant was not entitled to a share of the deceased’s estate because he owned a house, worked full time, and had no reliance on public funds.
Provided there are no relevant factual distinctions between the cases, should future judges in the High Court follow the decision of the Court of Appeal?
A-Yes, because obiter dictum of having sufficient own income and capital will always bind lower courts as it is a proposition of law considered necessary for the judge’s conclusion.
B-Yes, because a wide ratio stating that sufficient own income and capital does not meet the requirement for financial dependency on the deceased will bind lower courts.
C-Yes, because a narrow ratio of owning a house, working full time with no reliance on public funds was the legal reasoning for the judgment so will bind lower courts.
D-No, because the Court of Appeal is an appellate court rather than a court of first instance so its decision will only bind the Court of Appeal itself and not the courts below it.
E-No, because the High Court’s first instance decision in this matter will bind courts below but not itself. Only the High Court acting in an appellate function will normally bind itself.
Option B is correct as the reason for the decision, “ratio decidendi”, of a case is a rule of law expressly or impliedly treated by the judge as being necessary in reaching his conclusion. The doctrine of precedent requires judges to decide cases in accordance with existing cases, depending on the hierarchy of the courts. This doctrine operates by a proposition stated in one case being binding in a later case if: it is a proposition of law, it is part of the ratio decidendi, it is decided in a court whose decisions are binding on the present court, and there are no relevant distinctions between the two cases. A proposition of law is the application of the law to material facts. Wider reference to ‘sufficient own income and capital’ involves a more general statement of facts applied to the law as not amounting to financial dependency on the deceased under the Act and will therefore catch a greater number of subsequent cases.
Option A is wrong as obiter dictum simply refers to ‘other things said’ in the remainder of a judgment - it is not necessary for the judge’s conclusion and will not be binding on future courts. Owning a house, working full time and with no reliance on public funds are questions of material fact for the court to consider, not questions of law.
Option C is wrong as a narrow ratio involves much more specific relevant facts that will not catch as many subsequent cases.
Options D and E are wrong as the Court of Appeal binds the High Court below and normally binds itself. The Court of Appeal is entirely appellate and hears appeals from the High Court but its ability to bind the High Court below will not be affected by the High Court’s first instance decision.
A defendant is charged with theft from her employer. She denies the charge and has pleaded not guilty. At her trial in the Crown Court, the prosecution seeks to adduce evidence of a conversation between the defendant and her employer on the day after the theft occurred in which the defendant confessed that she was responsible for it. The defendant says that she only did this because her employer offered her the choice of either confessing to the theft and no further action being taken or being immediately reported to the police. Following the conversation and despite the assurance of no further action, the employer nevertheless informed the police.
Will the defendant’s confession be admitted in evidence at her trial?
A-Yes, because her confession was made very soon after the theft occurred.
B-No, because her confession was made to her employer, not to the police.
C-Yes, because her confession was made to her employer, not to the police.
D-No, because she will be able to prove that her confession was made in unreliable circumstances.
E-No, because the prosecution will be unable to prove that her confession was not made in unreliable circumstances.
The correct answer is E. On the facts (which are based on R v Roberts [2011] EWCA Crim 2974), the defendant argues in court that she only confessed to the theft because of what was said to her by her employer on the day after the theft took place, this being such as to make her confession unreliable. Under s.76 of the Police and Criminal Evidence Act 1984 (‘PACE’), the prosecution then has the burden of proving that the defendant’s confession (or indeed any confession) was not made in unreliable circumstances. As it will be unable to do this here, the court must exclude the confession from being given in evidence at trial.
Option A is wrong because the point in time at which the confession was made is not the determining factor regarding its admissibility or exclusion.
Option B is therefore wrong because the confession will not be excluded simply on the basis that it was made by the defendant to her employer rather than to the police. As confirmed in R v Roberts, a confession can be made not only to the police but also to someone else and the exclusionary rules under PACE s.76 can apply equally to such a confession.
Option C is also wrong because the confession will not be admitted simply on that basis.
Option D is wrong because, although it refers to unreliable circumstances, it implies that the burden of proving these rests with the defendant instead of the prosecution.
A judge is sitting in the Court of Appeal. During a hearing, an advocate refers him to a judgment of the Supreme Court. The advocate asks him to apply the reasoning from a paragraph of the dissenting judgement in the Supreme Court case to the case before him. The Supreme Court case has similar facts to the case before the judge.
Is the judge required to apply the reasoning to the case before him?
A-No, because the Court of Appeal is not bound by decisions of the Supreme Court.
B-Yes, because the facts of the two cases are similar.
C-No, because the paragraph referred to is obiter dicta and is therefore persuasive only.
D-Yes, because the judge is bound by statements which are obiter dicta.
E-Yes, because the Court of Appeal is bound by decisions of the Supreme Court.
C is correct as decisions of the Supreme Court are binding on the Court of Appeal, but only if the cases are on similar facts and the relevant reasoning is part of the ratio decidendi. Statements which are obiter dicta are persuasive only and not binding. As the judge is sitting in the Court of Appeal and the cases are on similar facts, he would be required to apply the reasoning if it were part of the ratio decidendi. However, as it is obiter he is not. This is persuasive only.
A is wrong because decisions of the Supreme Court bind the Court of Appeal.
B is wrong because the reasoning is not binding despite the cases having similar facts.
D is wrong because obiter statements are not binding.
E is wrong because, although the CA is bound by the Supreme Court, this would only be if it was part of the ratio.
A supermarket is judicially reviewing refusal of permission by the local authority for a new site. There is disagreement over access arrangements through a local park. The matter is being heard in the Administrative Court of the Queen’s Bench Division of the High Court. The judgment states as follows: ‘The Claimant is a supermarket operative. The Defendant is the local council. The Claimant’s case is as follows. It says people in the local area can only drive to shops elsewhere. But the general population could walk to this site. That would be environmentally friendly. They would go through the local park. That is important: a park is a public space. Easy access is a material matter.’
Which of the following statements by the judge is most likely to be a ratio decidendi?
A-‘The Defendant is the local council.’
B-‘A park is a public space. Easy access is a material matter’
C-‘The general population could walk to this site.’
D-‘A park is a public space.’
E-‘That would be environmentally friendly.’
Option B is correct. This option represents a proposition of law within some key reasoning. The judge is stating a park is a public place, and then says this fact is important to the dispute. As such, it is capable of being a ratio.
Option A is wrong because it is purely confirming the status of one of the parties to the litigation. Option C is wrong because it is a statement of fact, without sufficient context for it to become a ratio. Option D is wrong because, although it is capable of being a ratio in the sense it confirms the nature of a park, and thus could be relied on in subsequent cases, it does not say as much as option C, and on its own does not convey the central legal reasoning of the matter. Option E is wrong because it is an observation, and indeed an opinion, by the judge without any key legal significance on the facts.
A media company is contesting a decision by the broadcasting regulator to fine it for lack of impartiality. The case is being heard in the Administrative Court of the Queen’s Bench Division of the High Court. The judge finds for the regulator, saying: ‘It is the duty of the regulator to consider very few facts. Its duty is purely to protect the public from misinformation’. Commentators have expressed surprise at this ruling and some have suggested it is incorrect law.
Which of the following statements as to hierarchy and precedent is correct?
A-An appeal is possible to another Division of the High Court.
B-The High Court in the future could depart from the finding on the basis it was ‘per incuriam’ ie through carelessness.
C-A County Court would not be bound by the High Court’s ruling, as it may be incorrect.
D-Decisions of the High Court in the Administrative Court are binding on the Court of Appeal.
E-The comment about protecting the public from misinformation is obiter. It can be relied on in the future by other courts as necessary.
Option B is correct. Although the High Court in its appellate role usually binds itself, it can depart from previous decisions where they are made through carelessness. This follows the principle adopted by the Court of Appeal in Young v Bristol Aeroplane [1944] KB 718. Incidentally there is no presumption the High Court in its first instance role binds itself.
Option A is wrong because an appeal from the High Court lies to the Court of Appeal. Option C is wrong because the County Court is bound by the High Court, even if it disagrees with its decisions. Option D is wrong because the system of precedent, and the hierarchy of the courts, does not allow the High Court to bind the Court of Appeal. It is in fact the opposite - the Court of Appeal binds the High Court. Option E is wrong because the ruling in this case is not obiter. It is in fact a ratio, albeit apparently a wrong one.
An environmental charity judicially reviews the decision of a government agency for failing to prosecute a company for polluting a lake. The case is heard in the Administrative (Divisional) Court of the Queen’s Bench Division (QBD) of the High Court. The underlying law is novel and unclear.
The judge finds in favour of the agency. The judge certifies there is an urgent need to obtain an authoritative interpretation on the matter in dispute.
Which of the following is the most likely route of appeal for the organisation?
A-The Supreme Court by way of the leapfrog procedure, as there is an urgent need to obtain authoritative interpretation on the matter.
B-Another part of the QBD, because judicial review is a civil matter.
C-The Administrative Court again, by way of case stated, as there is point of law to be decided.
D-The Court of Appeal, because it is the next court up within the hierarchy.
E-The Crown Court, because this is a criminal matter.
Option A is correct. The leapfrog procedure allows an appeal from the High Court to the Supreme Court where there is an urgent need to obtain authoritative interpretation of the matter in dispute.
Option B is wrong because it is not possible to appeal from one part of the High Court to another. Option C is wrong because it is not possible to use the case stated procedure from the High Court. It must be from a lower Criminal Court (although it is indeed correct that appeals by way of case stated are heard in the QBD). Option D is wrong because an urgent need to obtain authoritative interpretation results in an appeal to the Supreme Court – through the leapfrog procedure - rather than the Court of Appeal. Option E is wrong because, although breaking the environmental law in question might well be a criminal offence, judicial review is not a criminal process. It is an administrative one. In any event, it is not possible to appeal from the High Court to the Crown Court.
A man with 10 previous convictions is on trial in the Crown Court for theft of a car. When arrested the man protests his innocence. At the police station he feels unwell and tells the police he had indeed stolen the car. He later explains to his solicitor he told the police this because he thought it would allow him to leave the police station as soon as possible. The man repeats he is innocent.
At trial the prosecution obtain permission to adduce evidence of the man’s previous convictions.
Can the jury find the man guilty of theft?
A-Yes, because the man made a confession.
B-Yes, if the prosecution proves their case beyond reasonable doubt.
C-Yes, because of the man’s previous criminal record
D-No, because the man only confessed on account of feeling unwell.
E-No, because the man protested his innocence when arrested.
Option B is correct. The jury can convict the man if they believe the prosecution has proved its case beyond reasonable doubt. As per Woolmington v DPP, the golden thread of British justice is that a defendant is innocent until presumed guilty.
Option A is wrong because a court can exclude a confession, and the fact that the man stated he had stolen the car would not on its own be conclusive. Option C is wrong because basic principles of justice do not allow a jury to convict a defendant on the basis of previous criminality. Rather, the jury must establish guilt in relation to the offence charged. Option D is wrong because the fact of the man being unwell is itself not conclusive. The defence must prove that any illness at the police station made the confession, or indeed any confession made in those circumstances, unreliable. In addition, the man could be convicted on the basis of other evidence. Option E is wrong because many suspects protest their innocence on arrest, so that would not, on its own, be a reason for the jury to find the man not guilty.
In an appeal by a client before the High Court, the appellant relies upon a decision of the Court of Appeal, which indicates that the appeal should be allowed. The respondent relies on an earlier decision of the Privy Council, which indicates that the appeal should not be allowed. The Privy Council in that case had approved an earlier first instance decision of the High Court on a similar matter, and the respondent is also relying on that.
How should the High Court treat the three decisions to which it has been referred?
A-The court should treat all three earlier decisions as having persuasive value only and must decide which of the three to follow.
B-The court should treat all three decisions as without precedent value and should make its decision without regard to any of them.
C-The court should consider itself bound just by the Court of Appeal.
D-The court should consider itself bound just by the decision of the Privy Council.
E-The court should consider itself bound just by the earlier decision of the High Court.
Option C is correct. Decisions of the Court of Appeal are binding upon courts below it in the court hierarchy, and so the court in the client’s case should follow the Court of Appeal.
Option A is wrong because Court of Appeal decisions are not persuasive – they are binding. Decisions of the Privy Council are indeed considered to be highly persuasive, but not binding. Previous High Court decisions are not binding, unless handed down in an appellate function.
Option B is wrong because decisions of both the Court of Appeal and the Privy Council have precedent value, even if their decisions carry different weight.
Option D is wrong because the High Court would not be bound by the Privy Council, which, as explained, has only persuasive value.
Option E is wrong because the High Court, in its first instance role, does not bind itself.
In applying the rules of precedent to its decisions, the Civil Division of the Court of Appeal follows certain previous decisions through case law.
Which of the following describes the approach taken by the Court of Appeal to applying judicial precedent in its deliberations?
A-The Court of Appeal is bound by previous relevant decisions of the UK Supreme Court/House of Lords and will follow its own previous decisions subject to limited exceptions recognised through case law.
B-The Court of Appeal is bound only by previous relevant decisions of the UK Supreme Court/House of Lords and can depart at will from its own previous decisions.
C-The Court of Appeal can depart from previous relevant decisions of the UK Supreme Court/House of Lords, knowing that such decisions can be eventually overruled by the UK Supreme Court.
D-The Court of Appeal is bound by previous relevant decisions of the UK Supreme Court/House of Lords and will only depart from its own previous decisions if it has been implicitly overruled by the UK Supreme Court.
E-The Court of Appeal is bound by previous relevant decisions of the UK Supreme Court/House of Lords and will only depart from its own previous decisions if the previous decision was made per incuriam.
Option A is the correct answer. The Court of Appeal is bound by the decisions of the court above it and has, through its own case law, recognised limited contexts in which it will depart from its own previous decisions.
Option B is wrong as the Court of Appeal does not depart at will from its own previous decisions.
Option C is wrong as the Court of Appeal must follow the relevant rulings of the more senior court, the UK Supreme Court.
Option D is wrong as there are other contexts than the single one given where the Court of Appeal can depart from its previous decisions.
Option E is wrong for the same reason as Option D as there are other contexts than the single one given where the Court of Appeal can depart from its previous decisions.
A defendant has been convicted of burglary and it is their first offence. Despite overwhelming CCTV, witness and forensic evidence, the defendant plead not guilty and elected for a Crown Court trial. The jury found the defendant guilty. In deciding upon an appropriate sentence, one option is imprisonment. In order to be consistent, a similar approach to sentencing should be taken in all cases.
Which of the following general statements describes the attitude the court should take in these circumstances?
A-The sentence will be imprisonment as the defendant did not plead guilty.
B-The sentence will not be imprisonment because it is the defendant’s first offence.
C-The sentence should follow the ‘sentencing-ladder’ and the court should initially consider the least strict punishments available.
D-The main aim of the criminal law is to punish offenders, and the sentence should therefore be strict.
E-The main aim of the criminal law is to reform offenders, and the sentence should therefore be lenient.
Option C is correct because in balancing a variety of different aims the court should first consider more lenient sentences that might suffice, and if they are not sufficient, others should be considered (such as imprisonment if appropriate).
Option A is wrong because, while it is true that pleading guilty early does mitigate a sentence, it does not mean this will automatically be imprisonment.
Option B is also wrong because, while first offenders will be treated more leniently, it does not mean imprisonment is not a possibility.
Option D is wrong because, although it describes a legitimate aim of sentencing, this needs to be balanced with the other aims.
Option E is wrong because, although it also describes a legitimate aim of sentencing, this needs to be balanced with the other aims too.
A woman had a sterilisation procedure at a hospital eight months ago. She found out last week that she is three months pregnant. She contacted a solicitor for advice about making a negligence claim against the hospital. The solicitor has advised her to issue proceedings. The claim is valued at £80,000.
A-Small Claims Track
B-Fast Track
C-Multi Track
D-The Civil Track
E-The County Court Track
Option C is the correct answer. The claim is a medical negligence claim and it is by its nature more complex. It would be allocated to the Multi Track as it is the best track to deal with a claim in excess of £25,000 or a more complex case.
Option A is wrong as the claim is in excess of the Small Claims limit of £10,000.
Option B is wrong as the claim is in excess of the Fast Track limit of £25,000.
Option D is wrong as there is no such track.
Option E is wrong because there is no such track.
A solicitor is contacted by a new client. He was convicted in a magistrates’ court, of theft a bicycle worth £250. He was sentenced to six months’ imprisonment. The client wants advice about appealing the sentence as it was his first offence.
In which court should the appeal be lodged?
A-Another magistrates’ court.
B-The Crown Court
C-The Divisional Court
D-The Criminal Appeal Court
E-The County Court
Option B is the correct answer. The Defendant should appeal to the Crown Court against the sentence passed.
Option A is wrong as another magistrates’ court is not an appeal court.
Option C is wrong as an appeal to the High Court Divisional Court would be appropriate if the appeal were by way of case stated on a point of law. This has not been suggested on the facts.
Option D is wrong because there is no such court.
Option E is wrong because The County Court is a civil court rather than a criminal court. The County Court is not an appeal court.
The High Court made a ruling in a contractual dispute. The matter was appealed by the defendant on a point of law to the Court of Appeal which decided the case differently on that point of law.
How has the Court of Appeal treated the decision of the High Court?
A-The Court of Appeal reversed the decision of the High Court.
B-The Court of Appeal departed from the decision of the High Court.
C-The Court of Appeal distinguished the case from the High Court.
D-The Court of Appeal applied the case from the High Court.
E-The Court of Appeal overruled the High Court.
Option A is correct. The Court of Appeal reversed the High Court decision on the point of law.
Option B is wrong. A court departs from the decision of another when both courts are of the same level in the court hierarchy.
Option C is wrong. ‘Distinguishing’ occurs when one court does not follow the ratio in a previous decision due to differences in the fact patterns of the two cases. Here, the same case has been decided differently on appeal on a point of law.
Option D is wrong as ‘applying’ refers to adopting ratio from previous case law.
Option E is wrong because overruling applies to a situation when a decision of a lower court is deemed incorrect and not followed in a different case.
