Flashcards in 1.A.4 - Judicial precedent Deck (129):
What is the dictionary meaning of the word "precedent"?
An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.
What is meant by judicial precedent?
The decision made in one court must be followed by another court in the future if a similar case arises.
What is the principle of stare decisis?
The principle that once a decision has been decided in a case, the same decision must then be applied in all future cases with the same material facts.
What does "stare decisis" mean?
"to stand by things decided"
What interferes with the system of judicial precedent?
The hierarchy of the courts.
What 2 cases demonstrate the principle of judicial precedent?
Donoghue v Stevenson  and Daniels v R White & Sons Ltd. 
Explain the case of Donoghue v Stevenson .
A decomposed snail was found in a customer's ginger beer. The customer fell ill. It was held that those who harm others should pay compensation for damage done, and the principle of the modern law of negligence was established.
Explain the case of Daniels v R White & Sons Ltd. .
Bottles of lemoade contained carbolic acid, causing illness. The precedent from Donoghue v Stevenson was applied, and the manufacturer had to pay compensation for damages.
What is a judgement?
A speech at the end of the case where the judge sets out their decision and the reasons behind it.
What are the 4 parts of a judgement?
1. Summary of facts
2. Ratio decidendi
3. Obiter dictum
What does ratio decidendi mean?
"The reasons for the decision"
What is ratio decidendi?
The legal principles that the judge has used to make their decision.
Which part of the judgement forms the precedent?
The ratio decidendi.
True or False? : The facts of the case form the precedent.
FALSE! - It is the ratio decidendi (reasons for the decision) that form the precedent.
Why is it often hard to establish the ratio decidendi of a case?
Judges don't always make it clear as to why they have reached their verdict.
Explain how a case may have multiple ratio decidendis.
If there is more than one principle than law that decides the case, or if there is more than 1 judge.
Explain a case to demonstrate multiple ratio decidendis.
R (R) v Durham Constabulary  - the House of Lords was unanimous in its decision, but Lord Bingham and Lady Hale gave 2 different reasons for their decision.
What is meant by binding precedent?
A previous decision that must be followed
What type of precedent does the ratio decidendi form?
A binding precedent.
What does obiter dictum mean?
"By the way", or "said in passing"
What is the plural of obiter dictum?
What is the difference between obiter dictum and obiter dicta?
Obiter dictum is singular, obiter dicta is plural.
What is obiter dictum?
A statement of what the judgement may have been if the facts of the case were different.
What type of precedent can obiter dictum be used as?
What is persuasive precedent?
A previous decision which does not have to be followed, but can act as advice.
In which cases may obiter dictum be used as persuasive precedent?
In cases where the material facts are sufficiently similar to the hypothetical facts.
True or False? : Judges are not bound to follow persuasive precedent.
True - Persuasive precedent is only persuasive; it does not need to be followed.
Which 2 cases demonstrate obiter dictum as persuasive precedent?
R v Brown  and R v Wilson 
Explain the case of R v Brown .
5 appellants practiced sadomasochistic homosexual activities in their own homes and were charged with ABH. They were found guilty and could not use consent as a defence, but it was said as an obiter dictum statement that consent could be used as a defence to some painful practices, such as piercing and tattooing.
Explain the case of R v Wilson .
The defendant branded his wife's buttocks at her request. The judge used the obiter dictum statement of R v Brown  as persuasive precedent, and allowed for consent to be a defence to ABH as branding was similar to piercing and tattooing.
What are the 6 examples of persuasive precedent?
1. Obiter dictum
2. Decisions of courts lower down in the hierarchy
3. Decisions of the Privy Council
4. Dissenting judgement
5. Decisions from other countries.
6. Writings of legal academics.
Explain a case to demonstrate the use of decisions from other countries as persuasive precedent.
Lister v Hesley Hall Ltd. , the HoL used 2 recent Canadian cases to decide if the school should be liable for the actions of one of its staff.
Cases from which countries are generally used as persuasive precedent?
Commonwealth countries, i.e. Canada, New Zealand, Australia.
Why can persuasive precedents come from other Commonwealth countries?
Because they have similar legal systems to ours.
How does the hierarchy of the courts affect judicial precedent?
The decisions of a higher court bind the lower courts.
What is the hierarchy of the courts in the English legal system? From highest to lowest.
1. The Court of Justice of the European Union
2. The Supreme Court (formerly the House of Lords)
3. The Court of Appeal
4. The High Court
5. The Crown Court
6. The Magistrates' and County Courts
Which court binds all English courts on matters of EU law?
The Court of Justice of the European Union
Is the Court of Justice of the European Union bound by its own previous decisions?
No - it is able to overrule them.
What was the Supreme Court known as prior to 2009?
The House of Lords
Which Act created the Supreme Court?
The Constitutional Reform Act 2005
Why was the Constitutional Reform Act 2005 passed to create the Supreme Court?
To ensure the separation of powers.
Is the Supreme Court bound by its own decisions?
No, but it generally still follows them.
Historically, the House of Lords would follow its own decisions unless they were made ____________.
What does per incuriam mean?
Made in error
Which case established the idea that the House of Lords would follow its own its own decisions unless they were made per incuriam?
London Street Tramways Co Ltd. v London County Council 
Historically, why did the House of Lords follow its own decisions unless they were made per incuriam?
To ensure certainty in the law.
What did the House of Lords issue in 1966?
The Practice Statement
What is an alternative name for the House of Lord's Practice Statement 1966?
Which Lord Chancellor introduced the Practice Statement 1966?
How does the Practice Statement 1966 describe judicial precedent?
"an indispensable foundation"
What did the Practice Statement 1966 state?
That the House of Lords would generally follow its own decisions, but would depart from them where it appeared right to do so.
Which 2 cases demonstrate the refusal of the House of Lords to depart from its previous decisions?
Shaw v DPP  and Knuller v DPP 
Explain the case of Shaw v DPP .
The appellant published a "ladies directory" and was convicted of conspiracy to corrupt public morals. He appealed on the grounds that no such offence existed. The House of Lords dismissed the appeal, and in effect created a new crime.
Explain the case of Knuller v DPP .
Post-Practice Statement 1966, the defendant published a gay meet-up magazine. He was convicted of conspiracy to convict public morals, as created by Shaw v DPP . The HoL doubted the correctness of this decision, but refused to depart.
Which 2 cases demonstrate the use of the 1966 Practice Statement?
Addie v Dumbreck  and British Railways Board v Herrington 
Explain the case of Addie v Dumbreck .
A child was killed on a colliery when they were trespassing. The court ruled that the defendant owed no duty of care to trespassers to ensure they were safe when coming onto their land, and their only duty was not to inflict pain wilfully.
Explain the case of British Railways Board v Herrington .
A child was killed on the railways as he was trespassing. The HoL went to follow the precedent of Addie v Dumbreck , however they departed from their previous decision using the Practice Statement 1966 and ruled that the railway company had a duty of common humanity to trespassers.
True or False? : The Practice Statement 1966 is widely used.
False - Between 1960 and 1980 the HoL only used it 8 times, when they had the opportunity to do so 29 times.
True or False? : The decisions of one division of the Court of Appeal binds the other division?
False - The 2 divisions cover different jurisdictions of law, thus cannot bind each other.
Is the Court of Appeal (Civil Division) bound by its own decisions?
Although the Court of Appeal (Civil Division) is bound by its own decisions, can it depart from them in limited circumstances?
Which case created 3 exceptions in which the Court of Appeal (Civil Division) will depart from its previous decisions?
Young v Bristol Aeroplane Co. Ltd 
What are the 3 situations created by Young v Bristol Aeroplane Co. Ltd  in which the Court of Appeal (Civil Division) will depart from its previous decisions?
1. The previous decision was made per incuriam
2. There are 2 CoA decisions which conflict.
3. A later decision of the HoL overrules a previous decision in the CoA.
Explain a case to demonstrate the Court of Appeal (Civil Division) departing from its previous decisions where the previous decision was made per incuriam.
Rakhit v Carty , the decision had been made in ignorance of a relevant provision of the Act.
Explain a case to demonstrate the Court of Appeal (Civil Division) departing from its previous decisions where there are 2 Court of Appeal decisions which conflict.
Tiverton Estates Ltd v Wearwell Ltd , the Court of Appeal chose to follow older precedents rather than the decision created in Law v Jones .
Explain a case to demonstrate the Court of Appeal (Civil Division) departing from its previous decisions where a later decision of the House of Lords overrules the decision.
Family Housing Association v Jones , the CoA felt obliged to ignore their own precedent as it conflicted with a later HoL decision.
Which case created 1 additional situation where the Court of Appeal (Civil Division) will depart from its own previous decisions where a proposition of law was presumed to exist by an earlier court, but was not considered.
R (on the application of Kadhim) v Brent London Borough Housing Benefit Review Board 
What situation did R (on the application of Kadhim) v Brent London Borough Housing Review Board  create where the Court of Appeal (Civil Division) is able to depart from its own previous decisions?
Where a proposition of law was presumed to exist by an earlier court but was not considered at the time.
What view did Lord Denning take towards judicial precedent in the Court of Appeal (Civil Division)?
The Practice Statement 1966 should apply to the CoA, the CoA should not be bound by its previous decisions.
What argument did Lord Denning propose as to why the Court of Appeal (Civil Division) shouldn't be bound by its own previous decisions?
The CoA has more judges than the Supreme Court and hears more cases, thus it is more likely to have conflicting decisions which would create uncertainty in the law.
How has judicial precedent in the Court of Appeal (Civil Division) been affected by our membership of the European Union?
The CoA may ignore previous decisions if they are inconsistent with EU law, under s.3 of the European Communities Act 1972.
Which section of which Act states that the Court of Appeal (Civil Division) must depart from its own previous decisions if they are inconsistent with EU law?
s.3, European Communities Act 1972
How has judicial precedent in the Court of Appeal (Civil Division) been affected by the Human Rights Act 1998?
Under s.2 of the HRA 1998, the Court of Appeal must also take into account the decisions of the European Court of Human Rights. But this is not binding.
Which section of which Act states that British courts must take into account the previous decisions of the European Court of Human Rights, even though they are not binding?
s.2, Human Rights Act 1998.
True or False? : Decisions of the European Court of Human Rights are binding on UK courts.
Explain a case to demonstrate the effect of the Human Rights Act 1998 on judicial precedent in the Court of Appeal (Civil Division).
Vinter v UK , whole life sentences found to be in breach of the ECHR, contrary to the ruling of the Court of Appeal.
True or False? : Judicial precedent is more flexible in the Court of Appeal (Civil Division) than in the Court of Appeal (Criminal Division)?
False - judicial precedent is more flexible in the Court of Appeal (Criminal Division).
Why is judicial precedent more flexible in the Court of Appeal (Criminal Division)?
This division deals with the individual liberty of citizens.
Is the Court of Appeal (Criminal Division) bound by its own previous decisions?
Do the situations created in Young v Bristol Aeroplane Co. Ltd.  apply to the Court of Appeal (Criminal Division)?
In the Court of Appeal, what can the Criminal Division do that the Civil Division cannot in relation to judicial precedent?
Depart from its previous decisions in the interest of justice or where a person's liberty is at stake.
Explain a case where the Court of Appeal (Criminal Division) has departed from its previous decisions in the interests of justice or where a person's liberty is at stake.
R v Simpson , the CoA overruled a previous decision to ensure public justice and to maintain confidence in the criminal justice system.
Is the High Court bound by its own decisions?
The High Court does not bind itself, however what other role do judgements serve in this court?
They serve as a persuasive precedent for other High Court cases.
Is the Crown Court bound by its own decisions?
The CrownCourt does not bind itself, however what other role do judgements serve in this court?
They serve as persuasive precedent for other Crown Court cases.
Are the Magistrates' and County Courts bound by their own decisions?
True or False? : Some tribunals have their own system of precedent?
What is law reporting?
The collecting of law so it can be easily accessed.
When was the Council on Law Reporting founded?
Give 2 examples of private law reporting groups.
1. The All England Law Reports
2. The New Law Journal
What is Lexis?
An online law-reporting platform.
What are the 3 ways of avoiding judicial precedent?
What is distinguishing?
Where a judge decides that the facts of a case are sufficiently different from the facts of the case in which the precedent was set.
Which courts are able to distinguish?
Which 2 cases show examples of distinguishing?
Merritt v Merritt  and Balfour v Balfour 
What was the difference found by distinguishing in Merritt v Merritt  and Balfour v Balfour ?
The first case involved a non-formal, verbal agreement, whereas the second case involved a written/signed one.
What is the advantage of distinguishing?
It can avoid an inconvenient result.
What is the disadvantage of distinguishing?
If you distinguish between minor differences, more precedents will be created and the law will become increasingly complex.
What is overruling?
Where a judge in a higher court overrules the decision made in a lower court if they believe the legal principles to be wrong.
True or False? : The House of Lords can OVERRULE its own previous decisions.
True - it can do this under the Practice Statement 1966.
Explain 2 cases as an example of the House of Lords overruling its own previous decisions.
Davis v Johnson  and Pepper v Hart , which overruled the decision that judges couldn't use Hansard as extrinsic aids.
True or False? : The Court of Appeal is NOT able to OVERRULE its own previous decisions?
False - the Court of Appeal is able to overrule its own previous decisions, as set out by Young v Bristol Aeroplane Co. Ltd. .
True or False? : When a decision is overruled, the outcome of the previous case remains.
True - However this decision will no longer be followed.
Why, when a decision is overruled, can the outcome of that case not change?
The principle of res judicata - a case cannot be re-opened once a final judgement has been given and all the possible appeals have been fulfilled.
What does res judicata mean?
"A matter already judged"
What is res judicata?
The principle that a case cannot be re-opened after a final decision has been given and all the possible appeals have been made.
What does the principle of res judicata guarantee?
Certainty that a decision is final and cannot be changed.
What is reversing?
On appeal, a higher court may depart from the decision of a lower court.
Explain a case to demonstrate reversing.
Sweet v Parsley , the House of Lords reversed the decision.
What are the advantages of judicial precedent?
4. Real-life situations
5. Prevents Parliament having to legislate
6. Law made by lawyers and experts
How is flexibility an advantage of judicial precedent?
Judges develop the law in a way which reflects a changing society. There are also avoidance techniques.
How is certainty an advantage of judicial precedent?
People know what the law is; lawyers can advise their clients.
How is consistency an advantage of judicial precedent?
Interlinked with the idea of the rule of law. All cases are deal with similarly and fairly. Proportionate to other cases.
How are real-life situations an advantage of judicial precedent?
Law develops as a result of real-life situations that arise, unlike theoretical legal rules.
How is preventing Parliament from having to legislate an advantage of judicial precedent?
Time-consuming, costly. MPs have several debates at one time, judges only handle 1 case at a time.
How is law made by experts an advantage of judicial precedent?
Made by judges with years of legal expertise which MPs lack.
What are the disadvantages of judicial precedent?
1. Complexity and volume
2. Rigidity and slowness of growth
3. Retrospective effect and decisions
4. Constitutional position
5. Lack of diversity among judges
6. Personal views of judges
7. Illogical distinctions
How is complexity and volume a disadvantage of judicial precedent?
A large number of cases, so its hard to know which ones are relevant. Judges are only aware of precedents brought to their attention. Hard to establish the ratio decidendi.
How is rigidity and slowness of growth a disadvantage of judicial precedent?
Judges have to wait for cases to be brought to them in order for progress to be made.
How is the retrospective effect of decisions a disadvantage of judicial precedent?
Overruling is retrospective. People cannot rely on the law. Case law applies to events which took place before the case came to court.
How is the constitutional position a disadvantage of judicial precedent?
Judicial law-making conflicts with the separation of powers.
How is the lack of diversity among judges a disadvantage of judicial precedent?
Drawn from a narrow social group, thus have the same views. Influenced by their upbringing, education and experiences. Lack of women and ethnic minorities.
How are the personal views of judges a disadvantage of judicial precedent?
Outcome of a case could be influenced by a judge's personal views, i.e. Denning was willing to challenge precedent to try and achieve justice.
How are illogical distinctions a disadvantage of judicial precedent?
Distinguishing between the tiniest of details to try avoid a precedent. Makes the law more complex.
How does law and society apply to judicial precedent?
1. Rule of law - Law applied fairly to all
2. Separation of powers - conflict with this idea. Judicial law-making.
3. Human rights - Judges must abide by s.2 of the HRA 1998 to take into account the ECoHR.
How does balancing conflicting interests apply to judicial precedent?
1. Donoghue v Stevenson  - right of individuals not to suffer harm v right of manufacturers to be held accountable to an unreasonable extent.
2. R v Brown  and R v Wilson  - Rights of individuals to private life, v right to protection from injury.
How does law and morality apply to judicial precedent?
Sexual morality in some cases, i.e. R v Brown  and R v Wilson , define what becomes acceptable and what is not.