precedent

Question 1

what is precedent?

Answer 1

a principle or rule established in a previous legal case that is either binding on or persuasie for a court when deciding subsequent cases with similar issues or facts in the future

Question 2

what latin saying is precedent based on and what does it mean in english?

Answer 2

‘stare decisis’ - to stand by what has been decided

means the decision of a higher court acts as binding on lower court

Question 3

why do we have precedent?

Answer 3

promotes certainty, stability, predictability and fairness

Question 4

how does precedent operate?

Answer 4

it needs…
- a system of case reporting
- a clear hierachy of courts so each court and judge knows who they should follow
- a method of identifying the parts of a judgement which bind a judge from other parts which need not be followed and can be overruled

Question 5

law reporting

(precedent)

Answer 5

in 1865 the Incorporated Council of Law Reporting was set up under the authority of the court system

Question 6

parts of a judgement

Answer 6

what is a judgement?

in what form do judgements appear?

what is usually in a judgement?

Question 8

Describe the hierarchy of the courts

Question 9

what are the different types of precedent?

Answer 9

• binding
• original
• persuasive

Question 10

what is a binding precedent?

Answer 10

precedent that has to be followed by all inferior courts e.g. Donoghue v Stevenson (1932) – product liability

it operates through the court hierarchy – superior courts bind all inferior courts and ratio and law reporting help judges do this

it can bind when the material facts are the same

the obiter of one case can develop into the ratio of another
- R v Howe – Obiter = defence of duress should be unavailable for the offence of attempted murder
- R v Gotts – Ratio – made the defence of duress unavailable for the offence of attempted murder after being persuaded by R v Howe.

binding precedent can be found in ratio and a case can have more than one binding ratio

Question 11

what is an original precedent?

Answer 11

• it is a precedent which involves a point of law that has never been decided before e.g. Re S (Adult: refusal of medical treatment) (1992)
• it occurs when a new legal point/situation emerges
• can be a response to problems with existing laws, changing moral and social standards and wider economic and technological changes
• can form the basis of the development of new legal principles: Donoghue v Stevenson and Grant v Australian Knitting Mills (1936)
• Judge relies on a similar broad principle from an earlier case and compares it to the present new case to produce an original precedent e.g. Hunter v Canary Wharf (loss of tv signal) reasoned by analogy with Aldreds Case (1611) (loss of a view)

Question 12

what is a persuasive precedent?

Answer 12

• Precedent in which the judge can look at the legal principles in other cases and if they’re persuaded by the legal reasoning then they may decide to follow that case. thse can come from a number of sources such as:
• Courts lower in the hierarchy – judgement from a lower court can persuade a higher court e.g. R v R – HOL agreed with CoA in ruling that a man could be guilty of raping his wife.
• Decisions of the Judicial Committee of the Privy Council – court composed of senior judges, so their decisions are highly persuasive. E.g. The Wagon Mound (No1)
• Obiter dicta – these can be persuasive (especially when from senior judges and courts). e.g. R v Howe obiter became ratio in R v Gotts – availability of the defence of duress
• Dissenting judgements – where a judge/judges disagree with the majority decision. Example: Rose and Frank Co v JR Crompton and Bro Ltd
• Decisions of courts in other countries – especially when use the same principles of common law e.g. Australia, Canada and New Zealand. Example: R v Bentham considered American authorities on possession of a gun.

Question 13

what are the different methods of handling precedent?

Answer 13

• following
• overruling
• reversing
• distinguishing

Question 14

precedent - following

Answer 14

A judge has to follow a legal principle if it is from a superior court and the material facts are the
same

A judge can also choose to follow a legal principle from an inferior court if it is persuaded by it
and the material facts are the same

Question 15

precedent - overruling

Answer 15

this is when at a later date, a court determines that the law in an earlier and different case was wrongly decided

this usually occurs when a superior court decides that a previous decision made in the past by an inferior court is wrong

E.g. House of Lords overruled the commonly held rule that a man could not be guilty of raping his wife in R v R (1991)

Question 16

precedent - reversing

Answer 16

this is where a court higher up in the hierarchy overturns a decision from a lower court in the same case (i.e. where someone has appealed the case)

Sweet v Parsley (1969) Court of appeal and trial court found defendant guilty and said it didn’t matter that she didn’t know the house she rented out was being used to smoke cannabis. House of Lords disagreed and reversed the decision of the Court of Appeal – said she had to know to be guilty.

Question 17

precedent - distinguishing

Answer 17

This allows a judge to avoid an otherwise binding precedent by stating that the material facts are different from the case that is supposedly binding.

Judges essentially say the case is so different in nature, that the binding precedent does not have to be followed

R v Wilson (1995) distinguished itself from R v Brown (1994)

R v Brown – group of gay men convicted of inflicting harm on each other during a sadomasochistic sex party (even tho they were all consenting adults and harm was relatively minor)

R v Wilson – a husband branded his initials onto his wife’s bum with a hot knife causing severe burns and damage to the skin. Not convicted. Court avoided binding precedent of R v Brown by distinguishing the case – said the material facts were different as this was a husband and wife.