judicial precedent

Question 1

what is the doctrine of precedent?

Answer 1

following decisions of previous cases

Question 2

what does stare decisis mean?

Answer 2

standing by a decision of a previous case

Question 3

what three requirements are needed for judicial precedent to work?

Answer 3

hierarchy of courts
law reports
binding and persuasive precedents

Question 4

who is at the top of the hierarchy of courts?

Answer 4

the supreme court

Question 5

what courts can make precedent which are binding to those below them?

Answer 5

the supreme court
court of appeal
high court

Question 6

what does the effectiveness of doctrine of precedent depend on?

Answer 6

availability of full accurate reports of decided cases (law reports)

Question 7

who publishes law reports?

Answer 7

1. law reports produced by incorporated council
2. newspaper eg. the times
   3.online reports eg. lexis

Question 8

what is ratio decidendi?

Answer 8

the reason for deciding.
forms the binding precedent

Question 9

what is a case for ratio?

Answer 9

r v howe and bannister
decided that duress is not a defence for murder or attempted murder.

Question 10

what is obiter dicta?

Answer 10

hypothetical situations in anticipation of events which may happen in later cases.

Question 11

case for obiter?

Answer 11

ratio in r v howe was picked up in r v gotts then became the ratio.

Question 12

what is distinguishing?

Answer 12

a method by which a judge avoids having to follow what would otherwise be a binding precedent when facts of a case are materially different.

Question 13

what is overruling?

Answer 13

where a court in later cases states that the legal rule decided in an earlier case is wrong.

Question 14

can the supreme court overrule its own previous precedent?

Answer 14

the supreme court can overrule all courts lower than it in the hierarchy.
eg. it avoided all previous precedent on marital rape when it made its decision in R v R.

Question 15

what is the practice statement?

Answer 15

issued in 1966.
it stated that the supreme court could overrule its own previous decisions when it was right to do so.
eg. herrington v british railways board overruled the precedent established in addie v dumbreck.

Question 16

when can the court of appeal overrule a previous precedent?

Answer 16

if it was made by mistake or if it is outdated.

Question 17

why is the case of young v british aeroplane company ltd significant?

Answer 17

it stated that the court of appeal is bound by its own previous decisions, subject to the following three exceptions:
1. when a previous decision was made by mistake.
2. when there are two conflicting decisions.
3. where a decision of the CoA has been overruled by the supreme court.

Question 18

advantages of judicial precedent?

Answer 18

• english law is certain and predictable
• the law is fair and consistent
• precedent creates detailed law
• precedent creates flexibility within the law