English Legal System: Judicial Precedent

Question 1

What does Stare Decisis mean?

Answer 1

Stand by what has been decided.

Question 2

What does judicial precedent refer to?

Answer 2

The source of law where past decisions of judges create law for future judges to follow.

Question 3

What does the doctrine of precedent mean?

Answer 3

Following the decision of previous cases.

Question 4

What is Ratio Decidendi?

Answer 4

Reason for decision where the judge will give their reasons as to why they have reached a certain decision which may include the principle of law they have used.

Question 5

What does Obiter Dicta mean?

Answer 5

Other things said where judges speculate on what their decision would have been if the facts of the case had been different.

Question 6

What is original Precedent?

Answer 6

A decision in a point of law that has never been decided before.

Question 7

What are two example cases of original precedent?

Answer 7

Donohue V Stevenson 1932: saw the creation of the neighbour test which is the principle that a person must take responsible care to avoid doing things that could harm others nearby.

Shaw V DDP 1962: The House of Lords in effect created the new crime conspiracy to corrupt public morals.

Question 8

What is binding precedent?

Answer 8

A decision in an earlier case which must be followed in a later case.

Question 9

What is an example case of binding precedent?

Answer 9

RE Automatic Telephone and Electric LTD’s agreement the judge was bound to follow the decision in the previous agreement for RE Schweppes LTD.

Question 10

What is persuasive Precedent?

Answer 10

A decision that does not need to be followed in a later case.

Question 11

What is an example cases of persuasive precedent?

Answer 11

R V R 1991: The House of Lords followed the same reasoning as the court of appeal in deciding that a man could be guilty of raping his wife.

Question 12

What is the Privy Council?

Answer 12

A formal body of advisers to the sovereign of the UK.

Question 13

What is an example case where the Privy council’s decision was used?

Answer 13

In the case R V James and Karimi 2006 the precedent had been set out in the privy council case Attorney General Jersey V Holley 2005.

Question 14

What is dissenting judgement?

Answer 14

A judgement given by a judge who disagrees with the reasoning of the majority of judges in the case.

Question 15

What is following?

Answer 15

When a judge decides to follow a previous precedent in a present case.

Question 16

What is over ruling?

Answer 16

The procedure whereby a court higher up in the hierarchy sets aside a legal ruling established in a previous case.

Question 17

What are two example cases where over ruling was used?

Answer 17

Pepper V Hart 1992: the House of Lords overruled Davis V Johnson 1878 on the use of Hansard.

R V R 1991: The House of Lords overturned the matrimonial exception to rape.

Question 18

What is reversing?

Answer 18

The procedure by which a superior court in the hierarchy overturns the decision of a lower court in the same case.

Question 19

What is an example case where reversing was used?

Answer 19

R V Woollin 1998: The house of Lords overturned the conviction for murder and substituted it for manslaughter.

Question 20

What is distinguishing?

Answer 20

A method by which a judge avoids having to follow a binding precedent by finding the material facts of the case that are sufficiently different to the previous precedent.

Question 21

What is an example case where distinguishing was used?

Answer 21

Merritt V Merritt 1971: The Court of Appeal distinguished the case of Balfour v Balfour on the grounds that the parties were separated.

Question 22

What is the practice statement?

Answer 22

It was issued in 1966 which allowed the House of Lords to change the law if they believed that an earlier case was wrongly decided.

Question 23

What is wrong with the Practice statement?

Answer 23

The fact that the Practice Statement gave flexibility to refuse to follow an earlier case “when it appears right to do so” gives little guidance as to when the Supreme court might overrule a previous decision.

Question 24

What is an example case where the Practice statement was used?

Answer 24

British Railways Board v Herrington 1972: The House of Lords departed from their Addie v Dumbreck 1929 decision and held that the defendant railway company did owe a duty of common humanity to trespassers.

Question 25

Show the civil court hierarchy.

Answer 25

Supreme

Court of Appeal

Divisional

High

County

Magistrates

Question 26

Show the criminal court hierarchy.

Answer 26

Supreme

Court of Appeal

King’s bench Divisional

Crown

Magistrates

Question 27

What are inferior courts?

Answer 27

County court and the Magistrates court.

Question 28

What did the House of Lords hold in London Street Tramways V London County Council 1988?

Answer 28

Uncertainty in the law was more important than the possibility of individual hardship being caused through having to follow a past decision.

Question 29

What are the advantages of Precedent?

Answer 29

Certainty - because the courts follow past decisions, people will know how the law will likely apply to their case and lawyers can advise their clients on the likely outcome of the case.

It allows consistency and fairness in the law allowing it to be credible.

It saves time with similar cases as it prevents the lengthy process of litigation.

Question 30

What are the disadvantages of precedent?

Answer 30

Wrong decisions made in previous cases may be perpetuated as lower courts have to follow decisions of higher courts.

Judgements often have no clear distinction between comments and the reason for the decision, making it complex.

The use of distinguishing can lead to illogical distinctions as the differences between some cases may be very small and appear illogical.