judicial precedent

Question 1

what is judicial precedent?

Answer 1

where the lower courts have to follow the decisions of higher courts

Question 2

what is stare decisis?

Answer 2

standing by or following decisions in previous, similar cases - the most important principle and the foundation of judicial precedent.

Question 3

what is the doctrine of judicial precedent?

Answer 3

is based on the stare decisis, the standing by of previous decisions. once a point of kaw has been decided in a particular case, that law must be applied in all future cases containing the same material facts.

Question 4

what is the ratio decidendi?

Answer 4

judgment given by the judge which fully explains their decision in setting precedent, its extremely important that the judge is absolutely clear about how and why they have reached that decision as this will be binding on any future cases of a similar nature unless, in the meantime, parliament decides to step in and make new law

Question 5

what is orbiter dicta?

Answer 5

this is not binding.
it is or can be either suggestions from the judge that parliament might want to look into the matter and make a new law or it could be a suggestion that in the future cases, a higher court might want to make a new point.

Question 6

where this fits into the court hierarchy

Answer 6

the basic rule is that a court must follow the precedents from a higher court, but they are not bound to follow decisions from courts lower in the hierarchy is:
1. supreme court (formerly the house of lords)
2. court of appeal
3. divisional courts
all other courts, both criminal and civil (county, crown, magistrates, tribunals - have no power to create precedents)

Question 7

precedents set by a court of the same level

Answer 7

where the precedent was set by a court of the same level, the court is generally bound by previous decisions, but this is subject to expectations. different considerations apply, depending on the level of court, as to whether the court may depart from a previous decision of a court of the same level

Question 8

exceptions to the rule

Answer 8

the english courts used to have to follow decisions by the european court of justice
when cases of human rights are invloved. the courts cannot act in ways that are incompatible with the european convention on human rights and must take into account judgments, decisions and opinions of the european court of human rights

Question 9

whats the rule on votes for prisoners?

Answer 9

the law in the uk, is that if you are in prison, you do not have the right to vote while your serving your sentence. this was challenged in case in the european court of human rights. the court ruled that the uk was in breach of human rights, but the government here refused to follow the judgement so it remains the law

Question 10

the house of lords/supreme court

Answer 10

the house of lords was replaced by the supreme court from 1st october 2009. the supreme court exercises the same jurisdiction as the house of lords and the law lords took the same office as justices of the supreme court.

Question 11

when was the house of lords bound by their own previous decisions?

Answer 11

at one time the house of lords were bound their own previous decisions
the case - London street tramways v London county council (1898) this is were certainty in the law should be more important than a potentially unjust decision.
however, in 1966 the lord chancellor, lord gardiner, issued a practice statement

Question 12

what is the practise statement?

Answer 12

the practise statement allows the house of lords to depart from a previous decision where it appears right to do so.
whilst the house of lords had this power, they were relucant to use it in the first few years which gradually changed from the mid 1970s onwards

Question 13

the practise statement in criminal law

Answer 13

the use of the practise statement in criminal law has been slower for obvious reasons
- the first use was in R v Shivpuri (1986)
this overruled a previous decision in Anderson v Ryan (1985) a case in which most felt an error of judgement had been made
where lord bridge said - yeah we make mistakes lets correct it

Question 14

whats the role of the house of lords?

Answer 14

previously, before the supreme court started work in 2009, the highest court used to be the house of lords. any precedents set there at the time are still law in the uk

Question 15

1898 - london tramways

Answer 15

a good example of an unfair decision but where the house of lords could not overrule itself

Question 16

1966 practise statement

Answer 16

allows the house of lords to overrule itself

Question 17

1972 herrington

Answer 17

the first major use of the practise statement in civil law

Question 18

1986 shivipuri

Answer 18

the first use of the practise statement in criminal law

Question 19

the role of the court of appeal

Answer 19

• both civil and criminal divisions are bound by the supreme court and previously the house of lords
• decisions by one division do not bind the other
• within each division, decisions usually are binding (especially in the civil division) expect, as in the case if young v bristol aeroplane

Question 20

precedence in the court of appeal

Answer 20

• there are 2 divisions in this court: the civil division and the criminal division.
• all decisions are bound by the ECJ and the supreme court
• each division is bound by its own previous decisions, although they do not bind each other.
  although there are exceptions - youngs case

Question 21

court of appeal - youngs case 1944

Answer 21

where there are conflicting decisions in the past cases, choose one and reject the other.

Question 22

whats a binding precedent?

Answer 22

must be applied when the facts of a second case are sufficiently similar to the original case and the decision was made in a higher court. this is even when the judge disagrees

Question 23

what is a persuasive precedent?

Answer 23

a decision that does not have to be followed, but by which the judge might decide to do so anyway. e.g, if a higher court feels a lower court precedent was correct (R v R 1991). where the house of lords agreed with the court of appeal decision that a man could be guilty of raping his wife

Question 24

decisions by the judical committe of the privy council

Answer 24

the judical committee of the privy council is the highest court of appeal for many commonwealth countries. it is not part of the court system of england and wales and therefore its decisions are not binding

Question 25

more persuasive precedents

Answer 25

• dissenting judgements in previous cases
• decisions of courts abroad - especially if they are commonwealth countries with similar common law systems
• european court of human rights decisions - english courts have to follow their own rules of precedent, but where there might be a conflict they have to follow a binding precedent, but can give an appeal
• original precedent - where a case is a first of its kind, the judges decision will set a new precedent for future cases to follow

Question 26

whats overruling?

Answer 26

when a higher court can either overrule a decision from a lower court because it believes it was wrong, when the ECJ can overrule one of its own previous decisions or when the supreme court can overrule one of its own past decisions using the practise statement.

Question 27

what is reversing?

Answer 27

refers to specific appeals cases and when a higher court overturns the ruling from a lower court in that case because it believes the legal reasoning was wrong

Question 28

what is distinguishing?

Answer 28

when a judge can make a sufficient enough distinction between the case he is hearing and a precedent set in a previous case that he can justify not following it.

Question 29

what happens if a new act of parliament is created?

Answer 29

if a new act of parliament is passed on a particular matter in the meantime, it will trump any previous judicial precedents. e.g law reform of 1996 regarding murder and manslaughter

Question 30

whats the advantages of precedent?

Answer 30

1. certainty - because the courts follow past decisions people know what the law is and how it is likely to be applied in their case.
2. consistency and fairness in the law - it is seen as just and fair that similar cases should be decided in a similar way.
3. precision - as the principle of law are set out in actual cases the law becomes very precise.
4. flexibility - there is room for the law to change as the supreme court can use the practise statement to overrule cases.
5. time saving - precedent can be considered a useful time saving device.

Question 31

whats the disadvantages of precedent?

Answer 31

1. rigidity - the fact that the lower courts have to follow decisions of higher courts together with the fact that the court of appeal has to follow its own past decisions can make the law to inflexiable.
2. complexity - since there are nearly half a million reported cases it is not easy to find all the relevant case law even with computerised databases.
3. logical distinctions - the use of distinguishing to avoid past decisions can lead to ‘hair splitting’ so that some areas of the law have become very complex
4. slowness of growth - judges are well aware that some areas of the law are unclear or in need of reform, however, they cannot make a decision unless there is a case before the courts to be decided.