JUDICIAL PRECEDENT

Question 1

The doctrine of judicial precedent

Answer 1

• often referred to as source of law
• a way legal principles/rules are made
• decisions made by judges in higher courts are followed by judges hearing judges in lower courts
• 3 concepts (stare decisis, court hierarchy, law reporting)
• 3 precedents (binding, original, persuasive)

Question 2

Court hierarchy

Answer 2

• highest is the UKSC, which is the final appeal court creating binding precedents
• the COA has 2 divisions and sits below the UKSC. Should also follow its own decisions unless it uses exception set out In Young v Bristol Aeroplane company
• high court follows its own, CA and UKSC
• crown court is an inferior court that follows decisions of HC, CA and UKSC, doesn’t make precedent
• the county court also cannot make precedent and will follow the decisions of courts that sit above it

Question 3

Ratio decidendi

Answer 3

• Latin term
• ‘reason for the decision’
• gives use the reasons on which the decision was based
• found in judgement (speech given by judge) which can be found in law reports
• Sir Rupert Cross said ratio is what judge feels is ‘a necessary step to reach decision’
• creates binding precedent

Question 4

Obiter Dicta

Answer 4

• means ‘other things said’
• found n the judgement
• all the parts of the judgement which aren’t in the ratio Decidendi
• often what judges say hypothetically
• doesn’t create binding precedents
• can create persuasive precedent
• R v Howe and R v Gotts - in later case of Gotts which involved an attempted murder the Ca was persuaded by the obliter dicta in Howe + didn’t allow duress

Question 5

Judgements/Law reporting

Answer 5

• Essential to the system of judicial precedent
• Judges give speech at end of case
• contains lots (facts, legal arguments, law, judges reasons, hypothetical reasons, the verdict)
• Ratio decidendi = reason for decision, creates the binding precedent
• Everything else = Obliter Dicta, which can creates persuasive precedent
• no headings. In appeal cases there will be 3 judges or more sitting - all judgements are recorded

Question 6

Types of precedent

Answer 6

• persuasive
• binding
• original

Question 7

Persuasive Precedent

Answer 7

• precedents which judges hearing later cases, in lower courts can choose to follow (non-binding)
• can be made in 5 different ways;
• (1) obiter dicta (R v Gotts and R v However)
• (2) Decisions made by lower courts (judges aren’t bound to follow) (R v R - chose to follow lower court decision of criminalising rape in marriage)
• (3) decisions made in foreign courts (Beckford)
• (4) decisions made by dissenting judges in appeal cases
• (5) Privy council decisions (The wagon mound)

Question 8

Binding precedent

Answer 8

• precedents made in cases which judges in later cases in lower courts MUST follow
• the ratio decidendi is the judgement which forms the binding precedent
• eg Donohugh v Stevenson and R Howe (Duress not available for murder)

Question 9

Original Precedent

Answer 9

• when a precedent is made or the first time
• cannot just make whatever precedent they look for a case which is similar and as close to new one + try to apply similar reasoning
• called reasoning by anlogy
• eg - Hunter v Canary Wharf - courtesy of used reasoning from case called Aldreds

Question 10

overruling

Answer 10

• done when a higher court decides a precedent made by a lower court is wrong and needs changing
• doesn’t change outcome of the original case
• UKSC can over rule all precedents and its own using the 1966 PS
• CA can overrule any from courts below it and its own using exceptions from Young v Bristol aeroplane case

Question 11

reversing

Answer 11

• occurs when a decision in lower court is appealed to a court above it in hierarchy
• appeal court can decide to reverse the first decision made
• will change outcome of case and precent to be followed
• eg Re Pinochet

Question 12

distinguishing

Answer 12

• way lower courts can avoid precedents
• if facts are significantly different the judge hearing in a lower court can distinguish and ignore precedent
• eg Balfour and Balfour which the judges distinguished from the case of Merritt and Merritt as a number of facts where different (divorce/financial settlement)

Question 13

advantage - certainty

Answer 13

• lawyers can accurately predict based on earlier precedents
• enables lawyers to give advice if case will be successful - saves money and time for parties and court

Question 14

advantage - change law quick

Answer 14

• quicker than waiting for parliament to legislate on a subject
• shown in R v R - changed law on rape in marriage

Question 15

advantage - accuracy

Answer 15

• very detailed rules and precision within the law
• based on real life cases unlike statues which could be theory

Question 16

advantage - flexible

Answer 16

• many exceptions and ways of avoiding
• 1966 PS + distinguishing

Question 17

Disadvantage - hard to know which precedent to apply

Answer 17

• because of huge volume of case law created by the doctrine
• hundreds of cases contained in several thousand law reports

Question 18

Disadvantage - hard to find Ratio Decidendi

Answer 18

• most precedents ade in appeal courts by 3 judges
• all 3 write up their judgement, which an run into many pages with no headings, making it almost impossible to decide what the ratio deciding is in each case
• eg - Dodds case

Question 19

Disadvantage - flexible approach

Answer 19

• can be problematic as it dilutes the certainty and consistency the old rigid approach give’s us

Question 20

Disadvantage - overuse of distinguishing

Answer 20

• judges will often find any reason to distinguish and avoid precedent
• leads to a mass of similar precedents

Question 21

Disadvantage - undemocratic

Answer 21

• judges are not elected like MPs and are essentially making up law for
• does not fit with ‘the separation of powers’