Judicial precedent

Question 1

what does stare decisis mean

Answer 1

stand by whats already been decided

Question 2

what are precedents

Answer 2

decisions made on a point of law by senior courts which must be followed by lower courts in the heirachy when a later case raising the same point of law arises

Question 3

what is literal translation of ratio decidendi

Answer 3

reason for deciding

Question 4

explain ratio decidendi

Answer 4

contains the point of law which forms the precedent which lower courts in similar cases must follow
ratio is binding

Question 5

what happened in R v Howe

Answer 5

D killed V after D was threatened with death by another man

Question 6

whats the ratio in R v Howe

Answer 6

duress cannot be a defence to murder

Question 7

literal translation of obiter dicta

Answer 7

other things said

Question 8

explain obiter dicta

Answer 8

obiter is everything else in the judgement (other than ratio and verdict).
Judge may spectulate as to what the decision wouldve been if the facts of the case had been different

Question 9

is obiter dicta pursuasive or binding

Answer 9

PERSUASIVE

Question 10

what happened in R v Gotts

Answer 10

chose to follow obiter in R v Howe
(duress cannot be a defence to attempted murder)

Question 11

whats the three types of precedent

Answer 11

original
binding
persuasive

Question 12

whats the case for orginal precedent

Answer 12

Donoghue v Stevenson

Question 13

case for binding precedent

Answer 13

Donoghue v Stevenson followed Grant v Australian Knitting Mill

Question 14

case for persuasive precedent

Answer 14

R v R

Question 15

ratio of donoghue v stenvenson

Answer 15

manufacteur owes a duty of care regardless of whether they have a contract

Question 16

what did the COA decide in grant v AKM

Answer 16

follows donoghue v stenvenson bc ratio decidendi was decided in supreme court

Question 17

whats the COA decisions in R v R

Answer 17

COAS decision not binding on the HOL bc they are a lower status court
HOL made precedent

Question 18

what are the five sources of persuasive precedent

Answer 18

lower courts
obiter dicta
dissenting judgements
privy council
decisions in other countries

Question 19

case example for lower courts w definition

Answer 19

R v R - COA said marital rape should be illegal. Supreme agreed but they didnt have to follow the COA but was pursuaded to follow

Question 20

case example for obiter dicta

Answer 20

r v gotts chose r v howes ratio of duress not being a defence to attempted murder

Question 21

case for dissenting judgements

Answer 21

Rose and Frank v Crompton Bros- judges except one in the COA decided that there was a contract, went to supreme court and followed judge who disagreed

Question 22

case for the privy council

Answer 22

Wagon Mound- D decided the remoteness test for negligence been adopted in UK law

Question 23

case for decisions in other countries

Answer 23

R v Bentham- UK case that chose to follow the candadian case of R v Sioan (possession of firearms)

Question 24

source of persuasive precedent

explain lower courts

Answer 24

higher courts arent bound to follow the decision of lower courts but can choose to

Question 25

# source of persuasive precedent explain obiter dicta

Answer 25

isnt binding on other courts as its not usually relevent to the issue in that case later cases can choose to follow the obiter if their case is dealing with the same issue mentioned by the obiter

Question 26

# source of persuasive precedent explain dissenting judgements

Answer 26

judgement that goes against the majority in that case. dissenting judgement may persuade higher courts to change law in the future

Question 27

# source of persuasive precedent explain privy council

Answer 27

not a uk court so uk courts dont have to follow their decisions PC made up of judges from uk supreme court so decisions made with good authority

Question 28

# source of persuasive precedent explain decisions made in other countries

Answer 28

similar legal rules and systems to the uk, so cases in these countries could provide useful ideas for uk these rules dont bind us but we can choose to adopt them

Question 29

what does London street Tramways v London countu council say

Answer 29

the HOL ruled that they should abide by their own previous decision to ensure certaintty in the law

Question 30

the practise statement was introduced which allowed what?

Answer 30

the HOL to depart from its previous decision when appears right to do so

Question 31

what was the first major use of the practise statement

Answer 31

Herrington v BRB overuled Addie v Dumbreck

Question 32

why are judges reluctant to use the practise statement

Answer 32

Jones v SoSSS- judges refused to overrule the case of Re Dowling even tho the decision in this case was wrong

Question 32

why did the judges not over rule the case of Re Dowling

Answer 32

certainty is the most important feature of precedent

Question 33

what was the first criminal use of the practise statement

Answer 33

R v Shivpuri overuled Anderton v Ryan

Question 34

the COA has two divisions but they dont bind to each other? what are the 3 exceptions to this rule

Answer 34

1. conflciting decisions in past COA cases, courts can choose which decision to reject 2. if theres a decision in supreme court which overrules a past COA decision, COA must follow SC decision 3. if decisions are made 'per incurium' bc a relevent act of P hasnt been considered by court

Question 35

what division has a 4th exception?

Answer 35

criminal division

Question 36

whats the two divisions of the COA

Answer 36

civil criminal

Question 37

whats the 4th exception

Answer 37

if law has been misapplied or misunderstood

Question 38

case for 4th exception

Answer 38

R v Tailor

Question 39

case for 3 exceptions

Answer 39

Young v Bristol Aeroplane

Question 40

why might courts want to avoid following precedent

Answer 40

decision may be wrong, outdated or absurd

Question 41

who is able to overrule anothers decision

Answer 41

someone senior

Question 42

defintion of over ruling

Answer 42

when a senior court in a later case changes a precedent of an earlier case on same point of law higher courts can either overrule precedents of the courts below or overule their own

Question 43

principle in anderton v ryan

Answer 43

it isnt a crime to only attmept to do the impossbile

Question 44

principle in shivpuri

Answer 44

its a crime to attempt to do the impossible

Question 45

name another case used for overruling

Answer 45

pepper v hart overruled davis v johnson

Question 46

define distinguishing

Answer 46

where a court thinks that the material facts of that case are suffieciently different from an earlier case the court in the later case isnt bound by the precedent in the earlier the later case will create another precedent on the same point of law

Question 47

how many precedents will exist after distinguishing is used

Answer 47

2

Question 48

which courts can use distinguishing

Answer 48

any

Question 49

whats balfour v balfour and meritt v meritt

Answer 49

balfour- agreement made doesnt amount to a contract meritt- agreement made does amount to a contract

Question 50

what was balfour v balfour about

Answer 50

agreement for money, lived together

Question 51

what was meritt v meritt about

Answer 51

agreement for the house, seperated living apart

Question 52

whats reversing

Answer 52

when a p.o.l is decided in a lower court then the same case goes to a higher court who changes that p.o.l

Question 53

how is reversing different from overruling

Answer 53

only involves 1 case

Question 54

in r v hasan what did the COA decide

Answer 54

duress isnt self induced if D doesnt know what crime he will be forced to committ

Question 55

in r v hasan what did the HOL decide

Answer 55

duress is self induced when D knew or shouldve known the risk of being threatened with violence

Question 56

what decision out of the COA or HOL is binding in R v Hasan

Answer 56

HOL

Question 57

explain advantage of creating certainty

Answer 57

-precedent is based on principle of ‘stare decisis’ -the same decision will always be made by lower courts and higher courts are reluctant to overrule their own precedents even when they can! -Jones v SoSSS refused to overrule Re Dowling to maintain certainty. -This benefits lawyers, judges and defendants, as certainty allows them to effectively prepare for cases.

Question 58

explain advantage of flexibility

Answer 58

- there are several ways of avoiding precedent if a bad decision will be made. - Higher courts can change and overrule the law, and any court can distinguish. -R v Shivpuri was able to overrule Anderton v Ryan, as there was a serious error that needed to be corrected quickly. -bad decisions can be avoided and allows the law to be updated with society.

Question 59

explain advnatage of responding to real life situations

Answer 59

Precedent is based on case law and cases deal with real life situations, whereas statutes only deal with theoretical situations. -in R v R husband tried to force his wife to have sex without her consent. -Society no longer thought this was acceptable, so the court changed law to make marital rape a crime. -This responsiveness is good because law can be made and changed in response to real events. -This allows the law to develop with the times and be updated with society.

Question 60

explain advnatage of judical creativity

Answer 60

can distinguish if an existing law doesn’t apply to the current facts, and original precedent allows judges to create a law where there is no previous law at all. -judges created a brand new area of law (negligence) in the case of Donoghue v Stevenson when contract law would not solve the problem. -This creativity leads to justice, and can save Parliament the time of having to make laws to cover new or minor situations

Question 61

explain disadvnatage of rigid

Answer 61

precedent is based on principle of ‘stare decisis’ the same decision will always be made by lower courts and higher courts are reluctant to overrule their own precedents even when they can! -in Jones v SoSSS, the court acknowledged that the decision in Re Dowling was wrong, but kept it anyway for the sake of certainty. This rigidity is a problem because bad and outdated law will not be changed quickly enough and so will be repeated in future (resulting in a lack of justice in many cases).

Question 62

explain disadvanatge of not certain

Answer 62

- there are several ways of avoiding precedent if a bad decision will be made. Higher courts can change and overrule the law, and any court can distinguish. - Merritt v Merritt distinguished Balfour v Balfour on marital agreements. In a case with a written contract for money between a couple living together, can we really be certain as to the decision now? - By having multiple decisions on similar cases, it becomes hard to predict the outcome, which has a negative effect on lawyers, judges and defendants trying to handle cases.

Question 63

explain disadvnatage of complex

Answer 63

There are nearly ½ a million precedents at the moment and even more get created through distinguishing. -it is often hard to tell the difference between obiter and ratio due to judgements being written in lengthy prose, making it hard for judges to actually apply the law. -In Re J, the judge could not figure out what the ratio was and so had no idea what decision he was meant to be making. -This is bad because it defeats the point of precedent; how can you apply the law if you can’t figure out what the law is meant to be?

Question 64

explain disadvantage of going against seperation of powers

Answer 64

precedent allows judges to make and change laws, when it should only be Parliament who have this power. -in R v R, judges chose to make marital rape illegal despite Parliament never making a law against this themselves -This is a problem because judges are not democratically elected, so judges may not reflect Parliament/society’s wishes when making precedent.