Judicial Precedent

Question 1

Stare decisis

Answer 1

“Stand by what has been decided” - Judges follow decisions from previous cases where facts are the same.

Question 2

Ratio Decidendi

Answer 2

“Reason for deciding”
* Summary of facts
* Review the arguments
* Explain the principles of law used.

Question 3

Obiter Dicta

Answer 3

“Other things said”
Howe (1987): Duress is not defence to murder and should not be a defence to attempted murder.
Gotts (1992): Duress is not a defence to attempted murder

Question 4

Types of precedent

Answer 4

• Binding (Decision from an earlier case, same court and lower).
• Original (Judge will create original precedent, based on past cases that are similar).
• Persuasive ( lower courts decision, obiter dicta, decisions from other countries, decisions from Privy).

Question 5

Avoiding precedent

Answer 5

• Decisions are legally binding on deciding court and all those lower
• Courts can avoid precedent
• Supreme and Appeal have their own methods.

Question 6

Supreme Court

Answer 6

Supreme Court can depart from past decisions “where it appears right to do so”
Rarely used in criminal law cases

Question 7

Court of Appeal

Answer 7

Young v Bristol Airplane: CoA can depart from decisions where:
* Two conflicting decisions
* Decision by Supreme overrules CoA
* Decision was made per incuriam (by mistake)
* Law was misapplied (Crim cases only)

Question 8

Avoiding precedent: Following

Answer 8

Precedent is relevant and binding, judges must follow it.

Question 9

Avoiding precedent: Overruling

Answer 9

Decision in previous case was wrong
Pepper v Hart

Question 10

Avoiding precedent: Reversing

Answer 10

Higher court reverses the decision of a lower court upon appeal
Gillick v West Norfolk and Wisbech AHA

Question 11

Avoiding precedent: Distinguishing

Answer 11

Material facts of the case are sufficiently different to create a new precedent
R v Brown/R v Wilson

Question 12

Evaluation: precise

Answer 12

*Precedent allows the law to be precise
* But, in order to use distinguishing judges can ‘split hairs’ to find the smallest differences.

Question 13

Evaluation: certainty

Answer 13

• Certainty to the outcomes (past decisions).
• The law can be uncertain (especially when cases are appealed

Question 14

Evaluation: Consistency

Answer 14

• Consistency and fairness in the law
• Law can become complex as judges try to find precedent.

Question 15

Evaluation: Flexibility

Answer 15

• Precedent allows the law to be flexible
• The law can be rigid and inflexible, decisions may change (Homosexuality).

Question 16

Evaluation: Time

Answer 16

• Precedent can save time with cases
• The law can be slow to grow and develop, requirements for avoiding/creating precedent can make the process difficult.