Judicial Precedent

Question 1

stare decisis

Answer 1

stand by what has been decided

Question 2

elements of a judgement:

Answer 2

finding, decision, statement of law

——> ratio decidendi & obiter dicta

Question 3

Ratio decidendi

Answer 3

reasons for decision reached
binding precedent
multiple if different reasons
Sir rupert cross: any rule expressly or impliedly treated by the judge as a necessary step in reaching their decision

Question 4

Obiter dicta

Answer 4

other things said 
not binding (persuasive precedent) 
statements made by dissenting judges
R v Howe - obiter was duress not defence for attempted murder/murder
R v Gotts - ratio was duress not defence

Question 5

types of precedent

Answer 5

ORIGINAL- if area of law hasn’t been decided before, e.g hunter and others v canary wharf
BINDING- decisions made in courts binding on all lower, must be followed, Donoghue v Stevenson
PERSUASIVE- not binding, higher courts can use this instead of binding precedent such as obiter, lower courts, R v R(marital rape)

Question 6

civil court hierarchy

Answer 6

supreme 
court of appeal 
divisional courts 
high court 
county court

Question 7

criminal courts hierarchy

Answer 7

supreme 
court of appeal 
high - QBD
crown 
magistrates

Question 8

practice statement

Answer 8

used to overrule past decisions in house
issued by lord chancellor in 1966
used when it appears right to do so
first major use: Herrington v British railways board
pepper v hart

Question 9

departing from precedent

Answer 9

overruling - not following precedent because it was wrong, old case stays same (Pepper v Hart)
reversing - undo decision made by lower court (Sweet v Parsley)
distinguishing - material facts are different so precedent technically doesn’t exist (Balfour v Balfour & Merritt v Merritt)

Question 10

evaluation of precedent

Answer 10

\+ certainty 
consistency and fairness 
time saving
flexibility 
- complexity 
need for law reform 
rigidity