Judicial Precedent

Question 1

What are precedents?

Answer 1

Decisions made by higher courts that must be followed by lower courts when dealing with the same point of Law. Precedent is based on ‘stare decisis’ meaning ‘stand by decision’

Question 2

What is hierarchy?

Answer 2

To see which courts are senior, we use the hierarchy. The Supreme Court is the highest court in the country, binding all courts below. Lower courts like the Crown Court are bound by it. The hierarchy tells us what is binding in which court.

Question 3

What are the three parts to a judgement?

Answer 3

Verdict, ratio decidendi (reason for deciding) and obiter dicta (other things said)

Question 4

Explain ratio decidendi + case

KEY FEATURES

Answer 4

Reason for deciding (can be multiple in a case if different judges have different reasons). Sets the binding precedent. For example, in R v Howe the ratio was that duress is not a defence to murder. This had to be followed by lower courts in future cases.

Question 5

Explain obiter dicta + case

Answer 5

Other things said. This is everything not in the verdict or ratio, and is often just a judge speculating on what could happen with different facts, this can act as persuasive precedent in future. For example in R v Howe the obiter dicta was duress shouldn’t be a defence to attempted murder. R v Gotts then followed this by choice.

Question 6

Explain law reports + example

Answer 6

Record of past precedents written by lawyers trained by the ICLR. Contain name of a case, facts, court it was heard in and the judgement. An example is the All England Law Reports. They are important because it is where judges can find precedents to follow.

Question 7

List the key features

Answer 7

Hierarchy, Judgement (verdict + ratio + obiter dicta), Law reports

Question 8

List the types of precedent

Answer 8

Original, binding and persuasive

Question 9

Explain original precedent + case

Answer 9

When a case raises a new point of law, judges make a decision which then becomes original precedent. Judges make this decision by looking at the most similar cases possible and reaching a similar conclusion. Original precedent was created in Donoghue v Stevenson, court created new tort of negligence.

Question 10

Explain binding precedent + case

Answer 10

Must be followed by judges in a lower court. Often comes from the ratio of a higher court. For example, the House of Lords ratio in Donoghue v Stevenson was binding on the CoA in the case of Grant v Australian Knitting Mills

Question 11

Briefly explain persuasive precedent + case

Answer 11

Precedent judges can choose to follow, but don’t have to, comes from various sources (obiter dicta, lower courts). For example in R v R, the CoA made rape in marriage illegal, the case went to the House of Lords who could have overruled the decision, but they were persuaded by the CoA arguments and stuck to the decision.

Question 12

Explain lower courts as a source of persuasive precedent

Answer 12

Higher courts are not bound to follow the decisions of lower courts but can choose to if they like. In R v R, the CoA said marital rape should be illegal, the House of Lords didn’t have to follow the CoA but were persuaded to make the same decision.

Question 13

Give the case of R v R

Answer 13

The Court of Appeal said marital rape should be illegal, the case then went up to the House of Lords who could have overruled this decision (lower court - persuasive precedent) but they were persuaded by the CoA and stuck to their decision

Question 14

Give the case of R v Howe and R v Gotts

Answer 14

The ratio of R v Howe was that duress is not a defence to murder, this has to be followed by lower courts.
The obiter of R v Howe was that duress should not be a defence to attempted murder either, this is persuasive precedent but was followed in R v Gotts (a case about attempted murder under duress)

Question 15

Explain the privy council as a source of persuasive precedent + case

Answer 15

Not a UK court so UK courts aren’t bound by their decisions. However, it is made up of UK Supreme Court judges so their decisions are in good authority and highly respected. In the Wagon Mound, the council decided the remoteness test for negligence, which we adopted.

Question 16

Explain other countries as a source of persuasive precedent + case

Answer 16

Other countries have similar legal systems to the UK, so cases in these countries give useful ideas. R v Bentham was a UK case about firearm possession that followed the Canadian case of R v Sloan.

Question 17

Explain dissenting judgements as a source of persuasive precedent + case

Answer 17

Judgement against what the majority of judges decided in a case, so not binding. In Rose and Frank v Crompton Bros, most judges in the CoA decided there was a contract but one said there shouldn’t be. Case went to the House of Lords, who agreed with the dissenting judge.

Question 18

List the sources of persuasive precedent

Answer 18

Lower courts, Obiter dicta, Privy Council, other countries, dissenting judgement

Question 19

Explain distinguishing

Answer 19

Court decides facts in a later case are different enough to facts from an earlier one, so the same decision is not appropriate, this creates a second precedent on same point of law with different facts.

Question 20

Give the case for distinguishing

Answer 20

Merritt v Merritt was distinguished from Balfour v Balfour. Both cases were about an agreement between a husband and wife but Balfour’s was verbal when living together, whereas Merritt’s was written when separated. The differences were enough that it was unfair to enforce contract in Balfour, but fair in Merritt (due to intent to create legal relations) - creates two precedents on same point of law

Question 21

Explain reversing

Answer 21

When a higher court changes the decision/point of law of a lower court in the same case. Different from overruling because it only involves one case.

Question 22

Give the case for reversing

Answer 22

The CoA decided in R v Hasan that self-induced duress was only when D knew what type of crime he would be forced to commit. The House of Lords then reversed this decision so that self-induced duress was whenever D should have expected violence. The higher court avoided the lower court’s decision by changing it.

Question 23

Explain how the supreme court can overrule

Answer 23

They can overrule any precedent of lower court due to hierarchy, replacing the decision entirely.
They can also overrule themselves using the 1966 Practice statement when they think it’s right.
They did this in R v Shivpuri when overruling Anderton v Ryan by making it a crime to attempt to do the impossible. They overruled Anderton because they felt they had made a serious error. Usually they are reluctant to do this to keep law certain (Jones v SoSSS)

Question 24

Explain how the CoA can overrule

Answer 24

They can overrule any lower court precedent due to hierarchy replacing the decision entirely.
They usually bind themselves except for the Young v BAC exceptions.
1 - Conflicting decisions in past CoA cases, court decides which to reject
2 - Supreme Court make a decision against CoA precedent, bound by them (hierarchy)
3 - Decision made by mistake, usually because a relevant act wasn’t considered
4 - R v Taylor (criminal division) law misapplied or misunderstood

Question 25

Explain how creating certainty in law is an advantage of precedent

Answer 25

Precedent is based on ‘stare decisis’/’stand by decision’ meaning the same decision will always be made by lower courts, higher courts also rarely overrule themselves. For example, Jones v SoSSS wouldn’t overrule Re Dowling to maintain certainty. This benefits lawyers, judges and defendants by allowing them to prep for cases.

Question 26

Explain rigidity as a disadvantage of precedent

Answer 26

Precedent is based on ‘stare decisis’ so the same decision will always be made by lower courts and higher courts are reluctant to overrule themselves. For example, in Jones v SoSSS judges said Re Dowling ruling was wrong but kept it for certainty. This is bad because outdated law won’t change fast and repeats.

Question 27

Explain lack of total certainty as a disadvantage of precedent

Answer 27

Several ways of avoiding precedent easily, higher courts can overrule/reverse and any court can distinguish. For example, Merritt v Merritt distinguished from Balfour v Balfour. Multiple decisions on similar cases, makes predicting outcome harder. This is bad for those dealing with the case.

Question 28

Explain complexity as a disadvantage of precedent

Answer 28

There are nearly 500,000 precedents now and more get created via distinguishing constantly. It can be hard to tell difference between ratio and obiter due to judgements written in lengthy prose. In Re J, the judge could not figure out what the ratio was so didn’t know what to do. This is bad because you can’t apply a law you can’t figure out.

Question 29

Explain separation of powers as a disadvantage of precedent

Answer 29

Allows judges to make and change laws, which only parliament should be able to do. For example, in R v R, the judges chose to make marital rape illegal despite parliament never discussing it. This is bad because judges are not democratically elected.

Question 30

List the disadvantages of precedent

Answer 30

Rigidity
Lack of total certainty
Complexity
Separation of powers

Question 31

List the advantages of precedent

Answer 31

Creates certainty
Precedent fairly flexible
Responds to real situations
Allows for judicial creativity

Question 32

Explain how precedent being fairly flexible is an advantage of precedent

Answer 32

There are several ways to avoid precedent if a bad decision is made. Higher courts can overrule or reverse decisions and any court can distinguish from them. Merriot + Balfour OR Shivpuri + Anderton. This is good because bad decisions can be avoided and laws can be updated to fit society.

Question 33

Explain how response to real situations is an advantage of precedent

Answer 33

Precedent is based on case law and deals with real situations whereas statutes deal with hypotheticals. For example, in R v R, a man tried to force his wife to save sex with him nonconsensually. The court decided this was no longer societally acceptable and set an original precedent that marital rape was illegal without parliament ever discussing it. This is good as laws can be made/changed in response to real events.

Question 34

Explain how judicial creativity is an advantage of precedent

Answer 34

Courts can distinguish if an existing law doesn’t apply to current facts or create law with original precedent. For example, parliament hadn’t given any guidance about marital rape so judges made it illegal in R v R. This is good because it leads to justice and saves parliament time.

Question 35

What are the advantages of the 1966 Practice Statement?

Answer 35

Avoids absurd decisions - Supreme Court can overrule past decisions when it is right to. In R v Shivpuri they overruled Anderton v Ryan as they felt a serious error was made. Being able to fix law is good as it prevents bad decisions being followed by other courts.

Creates little uncertainty - reluctant to actually use the statement because they value certainty so highly. For example, Jones v SoSSS wouldn’t overrule Re Dowling even though the decision was wrong. This is good for lawyers + lower court judges.

Question 36

What are the disadvantages of the 1966 Practice statement?

Answer 36

Not using it makes it ineffective - when not used it can lead to injustice and outdated law. For example, in Jones v SoSSS they refused to overrule a judgement they knew was wrong (in Re Dowling) for certainty, this is bad as it defeats the point of the statement and makes it ineffective.

Creates some uncertainty - Supreme Court can change decisions when they think it’s right, very subjective and unclear if they will or not. For example, they overruled Anderton v Ryan only one year after in R v Shivpuri. Law changed quickly making it unclear if it would again. This is bad for lawyers and lower court judges.