Judicial precedent

Question 1

What is common law and give an example of when this would be used

Answer 1

Judge made laws

-When there is no legislation relevant to the case

Question 2

What is the doctrine of precedent

Answer 2

A rule which judges must follow due to past cases

Question 3

What is the hierarchy of criminal and civil courts

Answer 3

Civil law
- European court of justice followed by supreme courts and magistrates

Criminal law
-Supreme court followed by court of appeal with magistrates at the bottom

Question 4

The European court of justice

Answer 4

Get their authority not just from the English law but also from members of the EU

Question 5

What is certainty

Answer 5

If law lords don’t follow common law, it could create uncertainty. Therefore the strict law of precedent avoids uncertainty as lawyers would be aware of the precedents

Question 6

What is flexibility

Answer 6

When the law has not been changed fast enough, which could create a unjust result.

Question 7

The 1966 practice statement

Answer 7

This indicated although house of lord preferred certainty , the practise statement suggested there should be some flexibility. Issued by Lord Chancellor which allowed house of lords to avoid earlier decisions when appropriate

Question 8

Exceptions to court of appeal being bound by their own decision

Answer 8

• conflicting CoA decisions which allows judges to choose which past decision to follow
• supreme court/ HoL overrule their decision
• Past decision did not follow precedent. Per incarium

Question 9

What was the humans right act 1988

Answer 9

Act give all courts freedom to ignore precedent when deciding points about human rights

Question 10

What is Ratio Decidendi and Obiter Dicta

Answer 10

• the necessary steps taken when making a legal decision and the reason to why the decision was made.
• when there is no necessary law relevant to the case when making a judgement

Question 11

What is original precedent

Answer 11

a new precedent where the law has no relevant legislation to the case

Question 12

What is the difference between binding precedent and persuasive precedent

Answer 12

binding precedent sets out what judges are obliged to follow however it is not obliged in persuasive precedent as it is there to offer guidance

Question 13

What is overruling and reversing

Answer 13

Overruling is when court is asked to examine wether precedents created by lower courts is correct. Reversing is when the CoA have to ‘reverse’ incorrect decisions

Question 14

What is disapproving

Answer 14

This is not an attempt to avoid precedent however they will make it clear they disapprove of it for the future