Judicial Precedent

Question 1

What are precedents?

Answer 1

Decisions made by higher courts that must be followed by lower courts when dealing with the same point of law.

Question 2

What principle is precedent based on?

Answer 2

Stare decisis, which means ‘stand by the decision’.

Question 3

Which court is the highest in the country?

Answer 3

The Supreme Court.

Question 4

What is the effect of a Supreme Court decision on lower courts?

Answer 4

It is binding on all courts below it.

Question 5

What are the three parts of a judge’s decision found in law reports?

Answer 5

• Verdict (guilty or not guilty)
• Ratio decidendi (reason for deciding)
• Obiter dicta (other things said)

Question 6

What does ‘ratio decidendi’ mean?

Answer 6

Reason for deciding.

Question 7

What is an example of a ratio decidendi?

Answer 7

In R v Howe, the ratio was that duress is not a defence to murder.

Question 8

What happens if judges in a case have different reasons for deciding?

Answer 8

There can be multiple ratios in one case.

Question 9

What does ‘obiter dicta’ mean?

Answer 9

Other things said.

Question 10

What does obiter dicta include?

Answer 10

Everything that isn’t the ratio or verdict and often includes speculation by a judge.

Question 11

How can obiter dicta influence later cases?

Answer 11

It can act as a persuasive precedent.

Question 12

What was the obiter dicta in R v Howe?

Answer 12

Duress should not be a defence to attempted murder.

Question 13

Did R v Gotts have to follow the obiter dicta from R v Howe?

Answer 13

No, they chose to follow it even though they did not have to.

Question 14

What is an original precedent?

Answer 14

A decision made by judges on a new point of law that has never before been decided

Judges use ‘reasoning by analogy’ to reach a similar conclusion based on the most similar cases.

Question 15

Give an example of an original precedent.

Answer 15

Donoghue v Stevenson

This case created a brand new tort of negligence.

Question 16

What is a binding precedent?

Answer 16

A precedent that must be followed by judges in a lower court

It often comes from the ratio decidendi of a higher court.

Question 17

In which case was the ratio decidendi from Donoghue v Stevenson binding?

Answer 17

Grant v Australian Knitting Mills

The cases were about the same point of law.

Question 18

What is a persuasive precedent?

Answer 18

A precedent that judges can choose to follow, but do not have to

It may come from sources such as obiter dicta and lower courts.

Question 19

What was the significance of R v R?

Answer 19

The Court of Appeal decided to make rape within marriage illegal

The House of Lords was persuaded by this decision and chose to uphold it.

Question 20

Fill in the blank: A binding precedent often comes from the _______.

Answer 20

ratio decidendi of a higher court

Question 21

True or False: Persuasive precedent must be followed by judges.

Answer 21

False

Question 22

What are persuasive precedents?

Answer 22

Decisions that judges can choose to follow, but do not have to.

Question 23

What is one source of persuasive precedent?

Answer 23

Lower courts.

Question 24

Are higher courts bound to follow the decisions of lower courts?

Answer 24

No, but they can choose to follow them.

Question 25

In R v R, what did the Court of Appeal say should be illegal?

Answer 25

Marital rape.

Question 26

Did the House of Lords have to follow the decision of the Court of Appeal in R v R?

Answer 26

No, but they were persuaded to make the same decision.

Question 27

What is obiter dicta?

Answer 27

Statements made in a judgment that are not binding on other courts.

Question 28

Can later cases choose to follow obiter dicta?

Answer 28

Yes, if their case is dealing with the issue mentioned by the obiter.

Question 29

In R v Howe, what was suggested regarding duress?

Answer 29

Duress should probably not be a defence to attempted murder (obiter).

Question 30

Which case chose to follow the suggestion in R v Howe?

Answer 30

R v Gotts.

Question 31

Are decisions made by the Privy Council binding on UK courts?

Answer 31

No.

Question 32

Why are decisions of the Privy Council considered good authority?

Answer 32

Because they are made up of judges from the UK Supreme Court.

Question 33

What significant test did the Privy Council decide in The Wagon Mound?

Answer 33

The remoteness test for negligence.

Question 34

Did the remoteness test for negligence from The Wagon Mound get adopted in UK law?

Answer 34

Yes.

Question 35

Which UK case followed the Canadian case R v Sloan?

Answer 35

R v Bentham.

Question 36

What is a dissenting judgement?

Answer 36

A judgement that goes against what the majority of judges decided.

Question 37

In Rose and Frank v Crompton Bros, what did the majority of judges in the CoA decide?

Answer 37

That there was a contract.

Question 38

What did the dissenting judge in Rose and Frank v Crompton Bros believe?

Answer 38

That there should not be a contract.

Question 39

Which court decided to follow the dissenting CoA judge in Rose and Frank v Crompton Bros?

Answer 39

The House of Lords.

Question 40

What statement allows the Supreme Court to overrule itself?

Answer 40

The 1966 Practice statement ## Footnote This allows the Court to overrule itself when it appears right to do so.

Question 41

Which case overruled Anderton v Ryan?

Answer 41

R v Shivpuri ## Footnote This case established it as a crime to attempt to do the impossible.

Question 42

Why did the Supreme Court overrule Anderton v Ryan?

Answer 42

They felt they made a serious error in the original decision.

Question 43

What is the general stance of the Supreme Court towards overruling its own decisions?

Answer 43

Reluctant ## Footnote They prefer to keep the law certain, as indicated in Jones v SoSSS.

Question 44

Can the Supreme Court overrule precedents of lower courts?

Answer 44

Yes, when the decision is wrong or outdated.

Question 45

What does distinguishing a case involve?

Answer 45

Deciding that material facts in a later case are sufficiently different from an earlier one.

Question 46

In which case was the precedent distinguished from Balfour v Balfour?

Answer 46

Merritt v Merritt

Question 47

What was the key difference between the agreements in Balfour v Balfour and Merritt v Merritt?

Answer 47

Balfour involved a verbal agreement, while Merritt involved a written agreement.

Question 48

What was the outcome regarding the enforcement of the contract in Balfour v Balfour?

Answer 48

Not appropriate to enforce the contract.

Question 49

What was the outcome regarding the enforcement of the contract in Merritt v Merritt?

Answer 49

Appropriate to enforce the contract due to intentions to create legal relations.

Question 50

What is reversing in legal terms?

Answer 50

When a higher court changes the decision/point of law of a lower court in the same case.

Question 51

How does reversing differ from overruling?

Answer 51

Reversing involves only one case.

Question 52

In R v Hasan, what did the Court of Appeal decide about self-induced duress?

Answer 52

It was only when D knew what type of crime he would be forced to commit.

Question 53

What was the House of Lords' ruling in R v Hasan regarding self-induced duress?

Answer 53

It was whenever D should have expected violence, regardless of knowledge of the crime.