Judicial Precedent

Question 1

Stare Decisis

Answer 1

Stand by the decision and do not unsettle the established

Question 2

Ratio Decidendi

Answer 2

Reason for the decision

Question 3

Obiter Dicta

Answer 3

Other things said

Question 4

Binding Precedent

Answer 4

• A precedent that is binding in all courts lower in the hierarchy, including the one in which it was established
- some courts have additional exceptions to avoid precedent
• The ratio decidendi is binding
- The obiter dicta is not
• This follows the latin term of stare decisis and it ensures decisions are followed the majority of the time

Question 5

Original Precedent

Answer 5

A precedest that is unique and has not been heard before

Question 6

Persuasive Precedent

Answer 6

A precedent that is influential but not binding

Question 7

R v Howe

Answer 7

• Binding precedent and original precedent
• Supreme Court
• Ratio
- the defendant cannot use duress for the offence of murder
• Obiter
- the defendant should not be able to use the defence of duress for attempted murder

Question 8

Reason for Precedent

Answer 8

• the doctone of judicial precedent is based on the principle of stare decisis
- translated as stand by what has been
decided
• This means that like cases should be treated alike
• The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decion
• Rules established in law should be fair, just, objective, consistent end rational
- the system of precedent, if operated properly provides certainty, predictability and stability to the legal system

Question 9

How precedent works in practice

Answer 9

In order for precedent to run smoothly, it is vital that:
• there is a clear hierarchy of the courts
- higher courts bind lower courts
• a clear method is established which identifies the parts of a judgement that bind a judge in a future case (ratio decidendi) and those which read not to be followed (obiter dicta) but can persuade
• cases with similar or same material facts should be decided in the same way
• all cases are reported
- recording all judgements made

Question 10

Ratio and Obiter

Answer 10

Ratio Decidendi
• binding
- what judges must follow
• in giving judgement in a case, the judge will set out the material facts of the case, state the law applicable to the facts and then provide his or her decision
• it is only the ratio decidendi ( the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent
Obiter Dicta
• other things said
- not always relevant to case
• any observation made by the judge on a legal question suggested by the case before him or her but not rising in such a manner as requiring a decision is known as an obiter dicta (things said by the way)
- this may be speculation
• it is not always easy to distinguish ratio decidendi from obiter dicta when evaluating the effects of a particular decision

Question 11

Methods of Avoidance

Answer 11

• The courts follow the hierarchy in relation to binding precedent, however, they can avoid past precedent in certain circumstances
Follow
• The next court chooses to follow the previous precedent
Overrule
• The higher court chooses to overrule the precedent in the same court or the lower court
• This always involves 2 cases
Reverse
• Reversing takes place when one case is appealed to higher courts
• The higher court chooses to reverse the decision of the lower court in the same case
Sweet v Parsley
R v Kingston
Distinguish
• The courts can distinguish from a binding precedent if they decide the material facts are sufficiently different in the second case
R v Brown and others
- R v Wilson
R v Sharp
- R v Shepherd
• Causes multiple precedents on the same topic

Question 12

Airedale NHS Trust and Bland

Answer 12

• Original Precedent
• House of Lords
• Persistent vegetative state as a result of injuries sustained at Hillsborough
• Could breathe independently
• Courts were asked if they could withdraw life sustaining treatment
• Life sustaining treatment was allowed to be withdrawn

Question 13

Re A

Answer 13

• Original Precedent
• Supreme court
Jodie and Mary
• Fused at lower abdomen
• Mary depended completely on Jodie
- blood supply
- vital organs
• If separated, Mary would die
• Parents were devoted catholics
• Courts ruled to separate the two girls, killing Mary
• Jodie has less than a 60% survival expectation
- still alive
• Estimated that if they remained conjoined, neither would live past 9

Question 14

Reversing - Sweet v Parsley

Answer 14

• A teacher rented out her house to students
• The students grew cannabis in the house
• She was initially convicted of owning a property involved in drug distribution
• She had no knowledge of what the students were doing
• Convicted in both crown and QBD courts
• Reversed in the court of appeals

Question 15

Reversing - R v Kingston

Answer 15

• Involuntary intoxication
• Given drugs by his friend
• Taken to a room where a young boy was
• Sexually assaulted the young boy
• Acquitted in crown court
• Convicted in the court of appeals
- still had the mens rea

Question 16

Distinguishing -
R v Brown and others
R v Wilson

Answer 16

R v Brown and others
• 5 homosexual males injure each other in sado masochistic activities over the course of 10 years
- ABH and wounding
• All were consenting
• All were convicted by the supreme court
• The defence of consent cannot be relied on in offences under s47 and s20 OAPA 1861 where the injuries resulted from sado masochistic activities
R v Wilson
• Branded his initials on his wife’s buttock with a hot butter knife with her consent
• Became infected and the doctor reported it to the police
• Charged with ABH under s47
• Held consent was valid and was more akin to tattooing than pain for sexual gratification
• Between husband and wife
- held that consensual activity in the matrimonial home was not a matter for the courts
• Acquitted by Court of Appeal

Question 17

Distinguishing -
R v Sharp
R v Shepherd

Answer 17

R v Sharp
• Joined a gang who carried out armed robbery
• Wished to leave but was threatened with violence
• Took part in robbery of post office
- post master was killed
• Convicted of murder
- appeal dismissed
- couldn’t use duress as defence
R v Shepherd
• Member of a gang of shoplifters
• Wanted to leave but was threatened with violence to him and his family
• Charged with burglary
- trial judge withdrew defence of duress so was convicted
• Conviction quashed by Court of Appeal
- gang different from paramilitary organisation or armed robbery gang
- the defence of duress should have been left

Question 18

Persuasive Precedent

Answer 18

• Courts from other countries
• Courts lower in the hierarchy
• Dissenting judgement
• Obiter dicta
• Privy council

Question 19

Persuasive Precedent -
Courts from other countries

Answer 19

R v Cuerrier
• Canadian case
• First case where a defendant was convicted of inflicting GBH by passing on an STI
- biological GBH
R v Dica
• First UK case where a defendant was convicted of causing s20 GBH for passing on HIV
• Original precedent
• Binding precedent

Question 20

Persuasive Precedent -
Courts lower in the hierarchy

Answer 20

• Courts do not have to follow the precedent of lower courts but may choose to if they are the right decision
R v R
• First case of marital rape
• Original precedent
• Established by the Crown Court
- followed by the Court of Appeal
- followed by the Supreme Court

Question 21

Persuasive Precedent -
Dissenting Judgement

Answer 21

• Court follows dissenting judge
- decision by a majority
- dissenting judge disagrees with a majority consensus
• Denning in Candler v Crane, Christmas and Co.

Question 22

Persuasive Precedent -
Obiter Dicta

Answer 22

• Other things said
R v Howe
• Binding precedent
• Original precedent
• Persuasive precedent
• Ratio
- defendant cannot use the defence of duress for murder
• Obiter
- defendant should not be able to use the defence of duress for attempted murder
R v Gotts
• Defendant attempted to kill his murder
• Ratio
- taken from the obiter dicta of Howe
- defendant cannot use the defence of duress for attempted murder

Question 23

Persuasive Precedent -
Privy Council

Answer 23

• Not in court hierarchy
• Influential but not binding
• Regarded as some of the most experienced judges in the world
• Based on precedents from commonwealth countries
• Wagon Mound

Question 24

Supreme Court

Answer 24

• Main debate in the House of Lords since 1800s is whether or not, being the most superior court, they should have to follow their own past decisions
• Before 1898, the House of Lords were free to overrule any past decision they had made
London Street Tramways v London County Council
1898
• Judges felt that certainty and consistency in the law was more important than individual hardships
• The only way a precedent set by the House of Lords could be changed was if it was made ‘per incurium’ (decision was made in error where the correct act of Parliament had not been considered) or an act of Parliament had to be passed to change the precedent (Parliamentary Sovereignty)

Question 25

Supreme Court -
Practice Statement

Answer 25

• Set in 1966
• Made by Lord Gardiner on behalf of himself and the Lords of Appeal in Ordinary
• Allowed them to depart from precedent to achieve justice
• Lords were reluctant to invoke the practice statement

Question 26

Supreme Court -
Practice Statement
Conway v Rimmer

Answer 26

• 1968
• First minor use of the practice statement
• Involved only a technical point

Question 27

Supreme Court -
Practice Statement
Addie v Dunbreck
Herrington v British Railway Board

Answer 27

Addie v Dunbreck
• 1929
• Do not owe a duty of care to trespassers
Herrington v British Railway Board
• 1972
• First major use of the practice statement
• Owe a duty of care when necessary

Question 28

Supreme Court -
Practice Statement
Anderton v Ryan
R v Shivpuri

Answer 28

Anderton v Ryan
• 1985
• Admitted to impossible crime
- acquitted
• Charged for possessing stolen video recorder
• Video recorder has never been stolen
R v Shivpuri
• Believed he was a drug mule
• Impossible crime as he carried vegetables as a decoy
• Convicted as he attempted to bring drugs into the country
• First major criminal case

Question 29

Supreme Court -
Practice Statement
Davis v Johnson
Pepper v Hart

Answer 29

Davis v Johnson
• Not allowed to be judged using hansard
Pepper v Hart
• Decided using hansard
• Second major civil case

Question 30

Court of Appeal powers

Answer 30

• Only avoiding their own past precedent in the same division
• Young v Bristol Aeroplane
• Lord Greene
- Court of Appeal is bound to follow its own decisions
- the only exceptions to this rule are:
1 - the court is entitled and bound to decide which of two conflicting decisions of its own it will follow
- where there is more than one Court of Appeal decision on the same topic, they select the most appropriate
2 - the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its own opinion, stand with a decision of the House of Lords
- of there is a Supreme Court ruling they will always follow that decision over their own in the Court of Appeal
3 - the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incurium
- the term per incurium means in error and all courts can declare a previous precedent in error however they would still be unable to avoid a binding precedent using this
- if the decision was given in error they can declare it wrong and don’t have to follow it
Criminal Decision
• The additional criminal court exception is used when we need to avoid an injustice
• R v Gould
- guilty for bigamy but believed first marriage was dissolved with decree absolute granted
- KBD said an honest and reasonable mistaken belief that the marriage had been dissolved was not defence in the case of R v Wheat
- Gould’s appeal was allowed, despite the fact that there was a previous Court of Appeal precedent against the defendant

Question 31

Advantages of Precedent -
Certainty

Answer 31

• Enables lawyers to advise clients accurately and individuals to plan their affairs according to likely outcomes
• Also provides stability for business and other fiscal arrangements to be founded on

Question 32

Advantages of Precedent -
Fairness and consistency

Answer 32

• Similar cases are treated alike which is fair, just, certain and rational
• The law is not subject to whims of individual judges which lends greater credibility

Question 33

Advantages of Precedent -
Flexibility

Answer 33

• Despite a fairly rigid system overall, the system allows room for development through distinguishing, overruling and so on
• Which means judges can develop the law to meet changing social, political or moral conditions

Question 34

Advantages of Precedent -
Precision

Answer 34

• In a system which has been refining law over hundreds of years the law becomes very precise
• Minor variations on the same principles arise

Question 35

Advantages of Precedent -
Time Saving

Answer 35

• Because we have such a vast body of precise law to rely on cases do not have to be constantly rearguard and appealed to higher courts
• This avoids further use of lawyers, the court and saves the clients time and money

Question 36

Disadvantages of Precedent -
Rigidity

Answer 36

• Precedent can make the law too inflexible with bad decisions being perplexed - especially if it takes a long time for suitable cases to get the senior courts that can change the law (R v R)
• Such cases may only get to the senior courts where the parties have the money, courage and persistence to appeal their case

Question 37

Disadvantages of Precedent -
Complexity

Answer 37

• With hundreds of thousands of reported cases it is difficult to identify and locate relevant case law ( even with computerised databases)
• the judgements themselves are sometimes very long with no clear distinction between obiter and ratio

Question 38

Disadvantages of Precedent -
Illogical distinctions

Answer 38

• Practices such as distinguishing lead to hair splitting which, in its turn, can lead to certain areas of law becoming complex
• The minor differences between some cases can be so small as to make the distinction appear illogical

Question 39

Disadvantages of Precedent -
Slowness of Growth

Answer 39

• Unless parliament legislate, there is nothing the judges can do to reform the law - their hands are tied until suitable cases come along
• Supports Denning’s argument for the Court of Appeal having greater powers as so few cases get to the House of Lords

Question 40

Disadvantages of Precedent -
Judicial law making

Answer 40

• There is a strongly held view that judges can and do use precedent to make law (R v R) and that they do not have the mandate to do so because, according to the theories of separation of powers and supremacy of parliament, only parliament should make law
• many judges argue that they are simply adopting existing legal rules to fit changing social conditions

Question 41

Define the term Distinguishing

Answer 41

• L1 - Define
- Courts decide the material facts are sufficiently different in the second case
• L2 - Courts
- All appellate courts
• L3 - Case
- R v Brown and Others
- R v Wilson
• L4 - Case
- R v Sharp
- R v Shepherd

Question 42

Define the term Reversing

Answer 42

• L1 - Define
- One case is appealed to higher courts and the higher court chooses to reverse the decision of the lower court on the same case
• L2 - Courts
- All higher courts
• L3 - Case
- Sweet v Parsley
or - R v Kingston
• L4 - Explain case
- Sweet v Parsley was reversed in the court of appeal after being convicted in the crown court and the QBD
- R v Kingston was reversed in the court of appeal after being acquitted in the crown court

Question 43

Define the Supreme Court powers in judicial precedent

Answer 43

• L1 - Use hierarchy to explain original and binding precedent in the supreme court
- draw hierarchies
- most senior court
- set original and binding precedent using ratios which must be followed by all lower courts and themselves unless distinguished or using the practice statement
• L2+3 - Explain practice statement using cases and hierarchy
- use timeline
- made by Lord Gardiner
- allowed supreme court to depart from precedent to achieve justice
- 1966 London Street Tramways v London County Council
- 1972 Herrington v British Railway Board
- first major use to overrule Addie v Dunbreck
- owe a duty of care when necessary
- 1986 R v Shivpuri
- first major criminal case
- convicted of impossible crime
- overruled Anderton v Ryan
- 1992 Pepper v Hart
- second major civil case
- decided using hansard
• L4 - Explain how distinguishing can be used by the supreme court
- don’t have to use practice statement if they don’t choose to
- can distinguish if the material facts are sufficiently different

Question 44

Law Reform - Influences

Answer 44

Public Opinion
- Media can represent and influence public opinion
- Members of the public can make their views known in media