Judicial Precedent

Question 1

What is judicial precedent?

Answer 1

Case law- decision of judges create law for future judges to follow- binding
Level of court making decision is important when considering if judges have to follow

Question 2

What is stare decisis?

Answer 2

“Stand by what has been said”
Judges use previous decisions when dealing with cases of similar nature
Provides certainty and fairness
Duport Steels ltd v Sirs

Question 3

What is ratio decidendi?

Answer 3

“Reasons for deciding”
At end of each speech, judge makes speech known as judgement
Contain:
Summary of facts
Review of arguments
Principles of law used to come to decision
This forms decision of case known as ratio decidendi

Question 4

What is obiter dicta?

Answer 4

“other things said”

Extremely difficult to decide between ratio decidendi and obiter dicta

Question 5

Ratio decidendi explained

Answer 5

Binding on all lower courts
More than one judge means potentially more than one ratio
Older cases= difficult to find ratio

Question 6

Obiter Dicta explained

Answer 6

Non- binding= persuasive
Dissenting judgement= obiter status
May be referred to in future cases- R v Gotts followed obiter in R v Howe that duress cannot be a defence to attempted murder

Question 7

What are the three main types of precedent?

Answer 7

Original
Binding
Persuasive

Question 8

What is original precedent?

Answer 8

If point of law in a case has never been decided, whatever judge decides will form new precedent for future cases to follow- Original
As there are no past cases to look on, they are likely to look at cases which are similar in principal and decide to use similar rules
Example of judge making law
Re: S (Adult: Refusal of Medical Treatment)

Question 9

What is binding precedent?

Answer 9

Created when a judge passes judgement based on facts and outcome of a previous case which has similar facts
This will only occur if previous case decision was decided in court higher than the current court or same level
Previous precedent must be followed even if current judge in case disagrees with legal principle established
Donoghue v Stephenson- Grant v Australian Knitting Mills

Question 10

What is persuasive precedent?

Answer 10

Precedent which is not binding on the court but judge can be persuaded to use this legal principle as it is best for case.
Can be taken from-
Courts lower in the hierarchy- R v R
Dissenting judgements- if case been decided by majority, the judge who disagrees will explain that reasoning and if later goes on to appeal then court may prefer that dissenting judgement
Statements made in obiter- R v Howe and R v Gotts
Decisions of Judicial Committee of Privy Council- - not part of court hierarchy but many of its members are part of Supreme court- respect
Decisions of court in other countries- R v Bentham and R v Sloan
Decisions of the European Court of Human Rights- Lambeth Borough Council v Kay

Question 11

What is the Supreme Court?

Answer 11

Formally House of Lords

In October 2009, Supreme Court replaced HOL

Question 12

What is the Practice Statement?

Answer 12

Believed final court of appeal should have more flexibility
1966, Lord Chancellor issued Practice Statement to alter ruling of London Street Tramways v London County Council
Practice Statement allowed HOL to change the law when it believed that an earlier case was decided wrongly- “change when it appeared to do so”
Phrase was vague and HOL was reluctant to use it

Question 13

What was the first major use of the Practice Statement?

Answer 13

Herrington v British Railway Boards- involving law on duty of care to a child trespasser
Based on the case of Addie V Dumbreck- court believed social and physical conditions changed since then and also so should law
Still reluctant use in Jones V Secretary of State for Social Service
More willing to use in 190 in case of Murphey V Brentwood District Council

Question 14

What needs to be for the Practice Statement in Criminal Law?

Answer 14

Needs to be certain- used to be reluctance to use it

Important case of use was R V R and G to reverse decision of Cadwell- risk for recklessness

Question 15

Courts of Appeal

Answer 15

Two divisions of Criminal and Civil
Decisions in one division are not binding on the other division but can be persuasive
General rule is decisions made in the same division are usually binding and followed in future with cases of similar nature but there are exceptions

Question 16

What are the exceptions to follow the same division in Court of Appeal?

Answer 16

Outlined in Young v Bristol Aeroplane Co Ltd

1) When there are conflicting decisions in past Court of Appeal cases, court can chose which one to use and reject
2) When there is a decision in the Supreme Court which effectively overrules Court of Appeal, Court of Appeal must follow Supreme decision
3) Where the decision has been made per incuriam that is carelessly or by mistake because a relevant Act or other regulation has not been considered by court

Another exception is human rights cases

Question 17

What are the ways a judge can depart from precedent?

Answer 17

Follow
Overrule
Reverse
Distinguish

Question 18

When does overruling occur?

Answer 18

Where a court in a later case states that the legal rule decided in the previous case is wrong- can occur when a higher court disagrees with a lower courts judgement in a previous case
Can also occur when the Supreme Court uses practice statement to overrule their own previous decision- R v R
Also seen in Pepper V Hart case to overrule decision that man can`t be guilty of raping his wife

Question 19

What is meant by reversing?

Answer 19

Where a court higher up in the hierarchy overturns a decision which has been made in the same case in a lower court Eg. Court of Appeal overturning a conviction made in the Crown Court because they disagree with the interpretation of the law

Sweet v Parsley- Court of Appeal upheld the decision of the trial court and divisional court that appellant was guilty of being concerned in management for purpose of smoking canabis- House of Lords disagreed and reversed decision

Question 20

What is meant by distinguishing?

Answer 20

Allows a judge to depart from decision made in previous case that he would otherwise have to follow
Occurs when judge looks at material facts of current case and determines they are sufficiently different than previous case that provides precedent that normally has to be followed

Balfour v Balfour and Merritt v Merritt demonstrates distinguish

Question 21

What are the advantages of judicial precedent?

Answer 21

Certainty- Allows lawyers to advise clients and clarity on law as well as allowing people to operate businesses knowing financial and other arrangements are recognised by law
Consistency and fairness- equal treatment
Precision- principles of law set out meaning well illustrated and precise
Flexibility- Room for change since Supreme Court can use Practice Statement. Ability to distinguish also gives freedom for judges to avoid past absurd decisions
Time- saving- goes without lengthy process of litigiation

Question 22

What are the disadvantages of judicial precedent?

Answer 22

Rigidity- fact that lower courts have to follow decisions of higher courts can make law inflexible. Also, the problem that so few cases go to Supreme so the law will only take place if parties have persistence and money for appeal
Complexity- not easy to find relevant cases making it hard to establish ratio
Illogical Distinctions- the use of distinguishing makes that some areas of law can be very complex . Differences between some cases may be very small and illogical and create uncertainty
Slowness of growth- judges are well aware some areas of law are unclear and in need of growth however they are unable to decide on law until a case comes up with relevance. Long waits for appeals