Judicial Precedent

Question 1

What is stare decisis?

Answer 1

To stand by what has been decided, i.e. let similar cases be decided in similar ways.

Question 2

What are judicial precedents?

Answer 2

Decision made on a point of law by senior courts (appellant courts) which must be followed by lower courts in the hierarchy when a later case raising the same point of law arises.

Question 3

What is the court hierarchy?

Answer 3

Supreme Court
CoA (Civil and Criminal Divisions)
Divisional Courts - Civil: Chancery and Family court  Criminal: QBD
Civil:
-High Court
-County Court
Criminal:
-Crown Court
-Magistrates Court

Question 4

Who are courts bound by?

Answer 4

Those above them in the hierarchy and dealing with the same section of law (civil or criminal).
E.g. the magistrates court is bound by all other criminal courts.

Question 5

Why does the hierarchy lead to consistency in the law?

Answer 5

All other lower courts must follow the same precedent.

Question 6

What are Law Reports?

Answer 6

Reports written by trained specialists (can be lawyers) about a case. They will include information about the case and, most importantly, the decision of the court. It allows other lawyers and judges to learn of precedents set in courts, allowing them to prepare their case.

Question 7

What are the 3 parts of a judgement?

Answer 7

1. The decision
2. Ratio Decidendi
3. Obiter Dicta

Question 8

What is the Ratio Decidendi?

Answer 8

Latin for ‘reason of deciding’. It contains the point of law which forms the precedent which lower courts must follow in later cases. The ratio is the binding part of the judgment (lower courts must follow the ratio).

Question 9

What is an example of the ratio?

Answer 9

Oxford v Moss
D broke into a drawer and memorised the answers to an exam paper - he was charged with theft.
Ratio: Information is not property which can be stolen.

Question 10

What is the Obiter Dicta?

Answer 10

It means ‘other things said’. The obiter is everything else in the judgement (other than the ratio and the verdict). This may include any relevant facts from the case or other information. The obiter is persuasive and is not binding.

Question 11

What is an example of the obiter?

Answer 11

R v Howe
Ratio: duress cannot be a defence to murder.
Obiter: duress should not be a defence for attempted murder either.
R v Gotts
Court chose to follow the obiter in R v Howe
Ratio: duress cannot be a defence to attempted murder.

Question 12

What are the 3 types of precedent?

Answer 12

1. Original Precedent
2. Binding Precedent
3. Persuasive Precedent

Question 13

What is an original precedent?

Answer 13

When a case raises a new point of law that has never before been decided, the judge(s) must make a new decision on that point of law, that decision will become an original precedent. I.e. when a brand new decision is made.

Question 14

What is an example of an original precedent?

Answer 14

Donoghue v Stevenson
V suffered food poisoning after her friend bought her a drink that had a snail inside. At first, V was unable to sue as she didn’t buy the drink. However, the Supreme Court decided that the manufacturer owes a duty of care to their customer and created a new area of law - negligence.

Question 15

What is a binding precedent?

Answer 15

The ratio decidendi of a case in a senior court must be followed when a later case raising the same point of law is heard in a lower court. The ratio forms a binding precedent. I.e. when a lower court must follow the ratio of a judgement made in a higher court.

Question 16

What is an example of a binding precedent?

Answer 16

Grant v Australian Knitting Mills - had to follow the precedent set in Donoghue v Stevenson.
D was given some underwear from his friend which contained a chemical, giving him a rash. The CoA had to follow the decision from the Supreme Court and followed precedent.

Question 17

What is a persuasive precedent?

Answer 17

This is a decision that a court is not bound to follow but can choose to follow if it wishes. Persuasive precedents came from a variety of sources, e.g. something said ‘obiter dicta’ in an earlier case or a decision of a lower court. I.e. when a court uses something it doesn’t have to follow to make its decision.

Question 18

What is an example of a persuasive precedent?

Answer 18

R v R
The Supreme Court were considering whether rape within marriage should be illegal. The court decided to look at a judgment from the CoA to make their decision, with the CoA’s judgement being the persuasive precedent.

Question 19

What are the 5 different sources of persuasive precedents?

Answer 19

1. Lower courts - than the one hearing the case - R v R - See above
2. Obiter Dicta - R v Howe & R v Gotts
3. Dissenting judgements - disagreeing with the majority - Rose and Frank v Crompton Bros. - CoA came to a majority decision (with 1 judge disagreeing) that there was a contract in the case. The HoL then followed the single judge’s decision and went against the CoA majority.
4. Privy Council - The PC are not a court but are made up of Supreme Court judges so will make good decisions - The Wagon Mound - The PC decided the remoteness test for negligence.
5. Other Countries’ Decisions - R v Betham - Follow the Canadian case of R v Sloan about possession of firearms.

Question 20

What stopped the HoL’s (Supreme Court) ruling from being self-binding?

Answer 20

Practice Statement 1966

Question 21

Why did the Supreme Court not want their ruling to be self-binding?

Answer 21

It may lead to injustice and may restrict proper development of the law.

Question 22

Which court binds the Court of Appeal?

Answer 22

Supreme Court

Question 23

Are the two divisions of the CoA binding on each other?

Answer 23

No - one is civil, one is criminal

Question 24

Are decision made in the CoA binding on itself?

Answer 24

Generally Yes

Question 25

What case were the 3 exceptions to the fact that the CoA is self-binding from?

Answer 25

Young v Bristol Aeroplane Co. Ltd

Question 26

What are the 3 exceptions the general rule of the CoA being self-binding?

Answer 26

1. If there are conflicting decisions in past Court of Appeal cases the court can choose which decision it will reject.
2. If there is a decision of the HoL (Supreme Court), which overrules a past CoA decision, the CoA must follow the HoL’s decision due to it being higher in the hierarchy.
3. If the earlier decision is ‘per incuriam’, meaning that the decision was made due to an error.

Question 27

Which division of the CoA has a 4th exception and what is it?

Answer 27

The Criminal Division

If the law has been ‘misapplied or misunderstood’. This ensures that D’s trial is fair because D’s liberty is at stake.

Question 28

What are the 3 ways of avoiding precedent?

Answer 28

1. Overruling
2. Distinguishing
3. Reversing

Question 29

What is overruling?

Answer 29

This is when a higher court in a later case decides that a precedent (i.e. the ratio) of an earlier case on the same point of law is wrong or outdated. The higher court can then overrule this precedent.

Question 30

What is an example of overruling?

Answer 30

R v Shivpuri overruled Anderton v Ryan:
A woman thought that she had found a stolen video player and was charged. Precedent is that it is not a crime to attempt the impossible. In Shivpuri, a man thought he had a class A drug but it turned out to be a legal substance. The precedent changed to it being a crime to do the impossible (with distributing the drug being impossible as the substance was legal).
See booklet for more info on the case.

Question 31

What is distinguishing?

Answer 31

Distinguishing is a method where the judge looks at the facts of the case and tries to draw a difference between the current case and the previous one. If the judge can show there is a difference between the two, he is no longer bound by the previous precedent.

Question 32

What is an example of distinguishing?

Answer 32

Balfour v Balfour - No intention to create legal relations, just a domestic relationship with no contract. (married)
Merritt v Merritt - The contract was made after they had separated. The agreement was made in writing. (unmarried)
The two cases were sufficiently different that they could be distinguished.
See booklet for more info on the case.

Question 33

What is reversing?

Answer 33

When a point of law is decided in a lower court, and then the same case goes to a higher court who changes that point of law. (A case is appealed, goes to a higher court and the decision is changed) Reversing only involves 1 case.

Question 34

What is an example of reversing?

Answer 34

R v Hasan - Self-induced duress is where D voluntarily puts himself into a position where he could expect to be threatened or pressured.
CoA said that the duress is not self-induced if D does not know what crime he will be forced to commit.
HoL said duress is self-induced whenever D knew or should have known the risk of being threatened with violence - it does not matter what crime D would be forced to do.
See booklet for more info on the case.

Question 35

How many cases are involved in each type of avoiding precedent?

Answer 35

Overruling - 2
Distinguishing - 2
Reversing - 1

Question 36

What are the advantages of judicial precedent?

Answer 36

1. Creates Flexibility - Many ways to avoid precedent if a bad decision would be made. - R v Shivpuri (overruling) - Wrong decision can be avoided
2. Leads to Certainty - Stare decisis - Jones v SoSSS - HoL refused to overrule Re Dowling even if the precedent was wrong a certainty was important - Helps lawyers.
3. Allows law to respond to real life problems - Precedent is based on real cases - statutes are theoretical scenarios - R v R - societies’ opinion changed so the precedent changed. - Law can be changed in accordance to real events - development of law.
4. Allows for judicial creativity - Original precedent and distinguishing gives courts power - judges made marital rape illegal in R v R - justice - saves P’s time.

Question 37

What are the disadvantages of judicial precedent?

Answer 37

1. Creates uncertainty - Courts can easily avoid precedent - Merritt v Merritt and Balfour v Balfour - very similar but still distinguished - hard to predict the outcome - Bad for lawyers
2. Rigidity and slowness of growth - Stare decisis means law is only changed in higher courts - Jones v SoSSS - HoL picked certainty over justice - leads to bad and outdated law
3. Precedent is complex - 1/2million precedents - more getting created through distinguishing - hard to tell between ratio and obiter due to length of judgements - Re J - Judge could not figure out what the ratio was and couldn’t make a decision - defeats the point of precedent .
4. Precedent can go against the separation of powers - gives judges power to make and change laws - R v R - P didn’t have a say in making marital rape illegal - judges aren’t elected - laws may not reflect society’s wishes.