Judicial precedent

Question 1

define ‘stare decisis’

Answer 1

To stand by what has already been decided

Question 2

define precendents

Answer 2

decisions made on a point of law by senior courts which must be followed by lower courts in the hierachy

Question 3

3 rules of when to use Hansard

Answer 3

-words of an act are ambiguous and may lead to an absurdity
-there’s a statement in hansard relating to the statute
-that statement would clear up ambiguity

Question 4

ratio decidendi

Answer 4

-reasons for decision
-contains point of law
-lower courts will have to follow in later cases
-ratio is binding

Question 5

ratio decidendi case example

Answer 5

R v Howe
-ratio: duress cannot be a defence to murder

Question 6

obiter dicta

Answer 6

-other things said
-everything else in the judgement
-persuasive not binding

Question 7

obiter dicta case example

Answer 7

R v Howe
-obiter: duress shouldn’t be used as an excuse for attempted murder either

Question 8

types of precedent: original

Answer 8

-when a case raises a new point of law that has never been decided before
-donoghue v stevenson (created negligence)

Question 9

types of precedent: binding

Answer 9

-the ratio decidendi of a case in a senior court must be followed when a later case is raising the same point of law in a lower court.
-Donoghue v Stevenson precedent must be followed in Grant v AKM

Question 10

types of precedent: persuasive

Answer 10

-this is a decision a court is not bound to follow but can choose to follow if they wish
-R v R where supreme court judges chose to follow a CoA decision

Question 11

persuasive precedent: lower courts

Answer 11

-higher courts do not have to follow but they can choose to
-R v R supreme court agreed with CoA decision on marital rape

Question 12

persuasive precedent: dissenting judgement

Answer 12

-a judgement that goes against the majority in a case, however a dissenting judgement may lead a higher court to follow the dissenting judge.
-Rose and frank v Crompton Bros supreme curt followed dissenting judge on a contract

Question 13

persuasive precedent: privy council

Answer 13

-not a UK court and so UK courts do not have to follow their decisions but they can choose to do so.
-The wagon mound the privy council decided remoteness test for negligence

Question 14

persuasive precedent: decisions in other countries

Answer 14

-some other countries have similar legal systems to the UK, so cases in these countries could provide ideas for UK law.
-R v Bentham was a UK case that chose to follow the Canadian case of R v Sloan

Question 15

Exceptions for supreme court +

Answer 15

-Supreme court can modify their previous decisions but should take into account that it may disturb the certainity of the law
-conway v rimmer

Question 16

3 exceptions for CoA + case

Answer 16

-if there are conflicting decisions in the past then CoA can choose which one they follow
-if there’s a decision made in the supreme court that overules a CoA decision the CoA must follow that decision
-if a previous decision was made “per incuriam” (carelessly or by mistake)
-Young v Bristol aeroplane COLTD

Question 17

overruling cases

Answer 17

R v shivpuri overruled Anderson v ryan

Question 18

distinguishing cases

Answer 18

R v Jordan and R v Smith