Judicial Precedent

Question 1

What is judicial precedent?

Answer 1

Judicial precedent is law created by judges for other future judges to follow (this is in line with ‘stare decisis’)

Question 2

What is stare decisis?

Answer 2

> stare decisis et non quieta movere = ‘stand by what you have decided and do not unsettle the established’
Some courts must also follow their own previous decisions (‘bind themselves’)
A judge must follow any decision made by a higher court in a case with ‘similar’ facts

Question 3

why does stare decisis exist?

Answer 3

> It exists to provide fairness and certainty in the law
Effectively like cases are decided in like manner

Question 4

what is the Court hierarchy, civil divison?

Answer 4

County Court
High Court (Chancery and KBD)
COA (civil branch)
SC (HOL)
ECJ

Question 5

what is the court hierachy criminal?

Answer 5

Magistrates Court
Crown Court (can go to KBD for appeals on interpretation)
COA (criminal division)
SC (HOL)
ECJ? OR ECHR

Question 6

which is higher crown or high court?

Answer 6

-The High Court is slightly higher than the Crown Court as the Crown Court can refer to the KBD on a point of law and be overruled

Question 7

what case was a court overruled?

Answer 7

Example of a court being overruled is Wight v Platt 2017
> Isle of Wight Council issued a £60 fine after he took his kid out of school a week early to go on holiday
> He refused to pay citing that no new learning is done in the last week and that his kid had excellent attendance
>In Magistrate Court he was not found guilty but on appeal Crown and High court both found him not guilty: it eventually reached SC who ruled in favour of Isle of Wight council

Question 8

what does Ratio decidendi mean?

Answer 8

• Ratio decidendi means ‘reason for deciding’
  judges will make a decision and give a statement of facts
  it is not always easy to find the ratio in cases
  ratio creates new law and this is followed by lower court judges

Question 9

what does ratio mean?

Answer 9

> ratio = reasoning (actual law); the legal outcome

Question 10

what was the ratio in RVR?

Answer 10

i.e. the ‘ratio’ in R v R was a ruling against marital rape

Question 11

what did sir rupert cross say about the ratio?

Answer 11

> Sir Rupert Cross: ‘Any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.’

Question 12

what is an issue with ratio decedendi leading to why we have stare decisis?

Answer 12

as no two cases are identical, it needs to be decided if the cases are ‘sufficiently similar’ that they should be treated the same (stare decisis)

Question 13

what is the Obiter Dictum?

Answer 13

A judgement in a case may be several pages long; not all of this information relates to the material facts; this is known as ‘obiter dictum’ where a Judge will give a couple of pages statement; ‘a thing said by the way’
> Obiter dicta statements are not binding on a later judge unlike ratio decidendi,> An obita is not the law but is sometimes treated as the law or precedent.

Question 14

how do obiter dicta comments rise many questions?

Answer 14

> Obiter comments can arise in many ways i.e. ‘IF the facts had been different, the outcome wouldve been’ judges make general comments on hypotheticals of what they wouldve done if they were not bound by stare decisis

Question 15

is obita a binding precedent?

Answer 15

> An obita is not the law but is sometimes treated as the law or precedent.
An obiter does not form a binding precedent but the ratio does form one

Question 16

why is it hard to seperate ratio from the obiter ?

Answer 16

> This poses as a problem for lawyers as the judge delivers his judgement in continuous prose which makes this separation difficult

Question 17

why does having more judges make ratio even harder to separate ?

Answer 17

> More judges (three in CoA five in Supreme) means more potential judgements
In appeal court (appellate courts) a majority verdict is acceptable so then there will be at least one dissenting judgement

Question 18

Examples of obiter dictum in Howe?

Answer 18

• Speculation in Howe
  > Howe gives the principle that duress (being under pressure) is not an excuse for murder or attempted murder; the principle of duress comes from the Nuremberg Trials and the doctrine of equal life.

Question 19

what was the obiter dictum in Hill v Baxter

Answer 19

• Hypothetical situations in Hill v Baxter
  > Automatism is where you cannot control your body; this case’s obita serves as a deference in future automatism cases; sitting judge used an example (if a swarm of bees was attacking the driver and the driver crashed into a family it is neither party’s fault); this hypothetical in the obita was used to explain automatism

Question 20

what problems arise with stare decisis?

Answer 20

> We know that the ratio of a case (ratio decidendi) must be followed while things said ‘by the way’ do not (obiter dictum); the doctrine of stare decisis tells us that one court must follow the ratio of a superior court when dealing with similar cases
It cannot tell us however
If the facts were identical it would be easy; but the facts change from case to case; a judge will decide

Question 21

what is a judgement?

Answer 21

The judgement is a speech made by the judge giving four things;
> A summary of the facts
> A review of the legal arguments (summary of relevant law)
> Reason for decision (ratio and obiter)
> Decision itself
Occurs in civil, criminal and appeal cases

Question 22

what is original Precedent?

Answer 22

Original precedent is the law created by a case that is in a unique way different from any earlier case
> A point in a whole area of law that has never been decided on before so there are no past cases which the judge can based his/her decision
> Judges must create law to fill in the gaps as there is no previous case or statute
> This occurred in R v R; Hunter v Canary Wharf; Shaw v DPP

Question 23

what is reasoning by analogy?

Answer 23

> Reasoning by analogy is where if there are no past cases dealing with an area of law. the judge must look at cases which are closest in principle
Finding similarities between one case and another even if they are not exactly alike making sure law is consistent
Serves as an extension to stare decisis / doctrine of ‘like for like’

Question 24

what is a binding precedent and what does it do?

Answer 24

a binding precedent is a precedent from an earlier must be followed, making the law certain
> Facts in the later case must be sufficiently similar to the earlier case
> Earlier cases must have been decided by a court senior/superior (i.e. Supreme Court Court of Appeal) to or possibly at the same level as the later court.

Question 25

what's a persuasive precedent?

Answer 25

Persuasive precedent is precedent that is not binding but which may be followed; there are five sources of this

Question 26

what are five previous cases that have followed the persuasive precedent?

Answer 26

> Courts lower in the hierarchy (seen in R v R) > Decisions by the Privy Council (seen in Thabo Meli; also seen in AG for Jersey v Holley who were persuaded to follow the PC instead of the (binding) HL) > Statements (obiter); Howe -> Gotts > Decisions from other countries (US v Kirby; Olga Zajac Russian case) > Dissenting judgements

Question 27

what are three things that are not following precedents?

Answer 27

distinguishing, overruling and reversing

Question 28

what is Distinguishing?

Answer 28

> If the facts of the later case are sufficiently different from those of the earlier one. (i.e. Merritt v Merritt was distinguished from Balfour v Balfour)

Question 29

what is Overruling?

Answer 29

> If the court feels the legal rule in an earlier case is wrong (i.e. ECJ overruling itself House of Lords/Supreme Court using the Practice Statement to overrule itself; Shivpuri overruled Anderton v Ryan; a higher court overruling a lower court.

Question 30

what is Reversing?

Answer 30

> If on appeal > Only the Supreme Court and Court of Appeal can overrule/reverse their own decisions The concepts of overruling and reversing are usually interchangeable (overruling is adding to the law reversing is adjusting the outcome)

Question 31

Pros of judicial precedent?

Answer 31

- Certainty (law is certain easier for solicitors to advise clients) - Consistency and fairness (nationwide) - Precision - Flexibility (no two cases are the same) - Time-saving (for solicitors lower court judges)

Question 32

Cons of judicial precedent

Answer 32

- Rigidity (certainty may be too rigid leading to several appeals, which takes time and money ex RVR) - Complexity (difficult to distinguish ratio) - Very large volume - Illogical distinctions - Slowness of growth

Question 33

R v R (1991)

Answer 33

- This case overruled the legal precedent that a husband could not be guilty of raping his wife. It marked a shift in marital rape law within England and Wales. -The defendant R, was convicted of raping his estranged wife. At the time, the law held that a husband could not be criminally liable for raping his wife due to an implied martial consent. This view was challenged on the grounds that societal attitudes had evolved, and marriage no loner implied indefinite sexual consent. - The House of Lords found R guilty, ruling that the marital rape exemption was no longer valid. The judgment acknowledged that a marriage contract did not imply perpetual consent

Question 34

Shaw v Director of Public Prosecutions (DPP) (1962)

Answer 34

- Shaw v DPP involved the offence of “conspiracy to corrupt public morals” affirming the common law’s role in regulating morality in the absence of specific statutory offences. - Shaw published a “Ladies Directory” advertising the services of prostitutes. He was charged under an archaic principle as there was no explicit statutory offence. The case centred on whether such conduct could be punishable under the broader remit of public morals. - The House of Lords upheld Shaw’s conviction establishing that common law could evolve to criminalise acts perceived as morally harmful even if they weren’t specifically prohibited by statute. This case remains controversial as it addresses the judiciary’s role in defining societal morality.

Question 35

Aldred’s Case (1611)

Answer 35

- Significant case in the development of the law of nuisance. It established the principle that a person has the right to enjoy their property without interference from unreasonable activities carried out by their neighbours. - Thomas Aldred brought the case against his neighbour for erecting a pigsty too close to his property. Aldred argued that the stench from the pigsty made his home and land unpleasant to live in interfering with his enjoyment of his property. - The question was whether the unpleasant smell constituted a legal nuisance and whether Aldred had a right to claim against it. The court ruled in favour of Aldred. The judgement established:> A landowner has the right to enjoy their property without interference from nuisances such as unpleasant smells. > Activities on one property must not unreasonably affect others. they could be classified as a nuisance. The court recognised the importance of intangible aspects of property rights such as clean air and a pleasant living environment.

Question 36

Hunter v Canary Wharf Ltd (1997)

Answer 36

- This case explored nuisance law- similar to Aldred’s Case - Residents living near Canary Wharf argued that the construction of the tower interfered with their television reception constituting a nuisance. The legal issue was whether loss of such amenity could form the basis of a nuisance claim. - The House of Lords held that interference with television reception did not amount to a nuisance in law as it did not constitute a physical invasion of property rights. This case is significant in defining the boundaries of actionable nuisance.

Question 37

AG for Jersey v Holley (2005)

Answer 37

- This case addressed the test for provocation in murder cases clarifying the subjective versus objective standard for the loss of control defence - Holley killed his girlfriend with an axe and claimed he lost control due to provocation. The Privy Council considered whether characteristics like alcoholism should affect the objective “reasonable person” test in provocation - It was held that characteristics such as alcoholism should not be included in the objective standard; rather a uniform "reasonable person" standard should apply. > This case was instrumental in refining the law on provocation and influenced subsequent law reforms.

Question 38

Balfour v Balfour (1919)

Answer 38

- This is a leading case on the enforceability of domestic agreements within contract law. - Mr Balfour agreed to pay his wife a monthly allowance while he was working abroad. When the relationship soured she sought to enforce this agreement as a binding contract. - The Court of Appeal ruled that agreements between spouses are typically not intended to be legally binding. This case established a foundational principle in family law and contract law regarding the enforceability of domestic agreements.

Question 39

Merritt v Merritt (1970)

Answer 39

- This case dealt with contract law in marital agreements contrasting with Balfour v Balfour on the issue of enforceability. - Mr and Mrs Merritt had separated and Mr Merritt agreed in writing to transfer the house to Mrs Merritt if she paid off the mortgage. The question was whether this arrangement was legally enforceable as a contract. - The Court of Appeal held that since the couple was separated there was an intention to create legal relations

Question 40

R v Shivpuri (1986)

Answer 40

- Shivpuri clarified the law on attempts establishing that a person can be guilty of attempting the impossible if they believed they were committing an offence. - Shivpuri attempted to smuggle what he believed to be illegal drugs but the substance was harmless. He argued that he could not be guilty as it was impossible to commit the offence with harmless material. - The House of Lords upheld his conviction ruling that belief in committing an offence was sufficient for an attempted conviction. This case is pivotal in English law, marking a shift towards the 'subjective' test in attempts

Question 41

Anderton v Ryan (1985)

Answer 41

- This case also dealt with criminal attempts similar to Shivpuri - Ryan bought a video recorder she suspected was stolen but was actually legally acquired. The case questioned whether her belief in the illegality of the item could constitute an attempt. - The House of Lords initially ruled she was not guilty as there was no actual stolen property. However this ruling was later overturned in R v Shivpuri

Question 42

Thabo Meli v R (1954)

Answer 42

- This case established the “single transaction” doctrine clarifying the treatment of mens rea (intent) in murder cases involving a sequence of acts. - The defendants intended to kill the victim initially believed they had done so, and subsequently disposed of the body. However, it was the disposal that ultimately caused death. The issue was whether the defendants had the requisite mens rea throughout. - The Privy Council ruled that the intent to kill applied across the sequence of actions forming a single transaction. This case is seminal in understanding mens rea in cases involving a series of actions.

Question 43

United States v Kirby (1868)

Answer 43

- This American case illustrated the rule that laws should be interpreted in a way that avoids absurd results. - A sheriff arrested a postal worker to serve a warrant which technically contravened a federal law prohibiting the obstruction of mail delivery. The question was whether this statute should apply in cases where the law’s purpose was not frustrated. - The U.S. Supreme Court ruled that laws must not be interpreted to create absurd outcomes; hence the sheriff’s actions were justified. This principle of statutory interpretation has been influential in common law jurisdictions, including the UK, regarding the purpose of statuetes

Question 44

Olga Zajac (2009)

Question 45

- Olga Zajac and Viktor Jasinski in Russia > Jasinski attempted to rob Olga Zajac’s hair salon > Zajac a karate black belt, overpowered Jasinski, knocking him unconsious. > She then tied him up and held him captive in the backroom of the salon for three days. During this period she force-fed him Viagra and sexually assaulted him multiple times. > Jasinski entered Zajac’s salon with the intent to steal but was overpowered by Zajac. > After subduing him she reportedly sought to "teach him a lesson" by subjecting him to repeated sexual acts while he was restrained. After three days > Russian authorities arrested both parties. Zajac was detained for unlawful detention and sexual violence while Jasinski faced charges related to his attempted robbery > This case attracted international media attention for its unusual circumstances and sparked debates about proportionality in self-defence and vigilante justice

Question 46

R v Gotts (1992)

Answer 46

- Involved a 16-year-old boy who attempted to kill his mother after being threatened with death by his father if he did not comply. The boy claimed he acted under duress arguing that the threat from his father forced him to try to kill his mother. > The legal issue was whether duress could be a defence to the charge of attempted murder. The House of Lords ruled that duress could not be used as a defence for attempted murder following the precedent in R v Howe (1987) > The court reasoned that allowing such a defence would undermine the severity of attempted murder but it also acknowledged that the defendant's age and immaturity could influence the reasonableness of his belief in the threat.

Question 47

Judicial precedent

Answer 47

Judicial precedent refers to the process where past decisions made by judges in higher courts are followed in future similar cases by courts of the same or lower rank. This ensures consistency and predictability in the law. It is based on the principle of stare decisis.

Question 48

Stare decisis

Answer 48

A Latin phrase meaning "to stand by what has been decided". This principle underpins the doctrine of judicial precedent and requires courts to follow previously established decisions in cases with similar facts.

Question 49

Obiter dictum

Answer 49

A Latin term meaning "something said by the way". These are comments or observations made by a judge in a judgement that do not form part of the binding precedent. While not legally binding they may be persuasive in later cases.

Question 50

Ratio decidendi

Answer 50

A Latin term meaning "the reason for the decision". This is the binding legal principle or rule derived from the judgement in a case which must be followed in future similar cases.

Question 51

Ratio

Answer 51

An abbreviated term for ratio decidendi. It refers to the essential legal reasoning that forms the basis of the court's decision which is binding on future cases.

Question 52

Obita

Answer 52

Statements made by a judge in a judgement that are not essential to the decision and therefore not legally binding but may be persuasive.

Question 53

Automatism

Answer 53

A defence in criminal law where the defendant claims their actions were involuntary due to an external factor such as a reflex or seizure.

Question 54

Duress

Answer 54

A defence in both criminal and contract law where the defendant asserts they were forced to act due to the threat of harm.

Question 55

Judicial Judgement

Answer 55

The formal decision or ruling made by a judge or court including the reasoning and outcome.

Question 56

Reasoning by Analogy

Answer 56

A method of judicial reasoning where a judge applies principles from a similar case to the case at hand.

Question 57

Original Precedent

Answer 57

A precedent is set when a court decides a case on a point of law for the first time creating a new legal principle.

Question 58

Binding Precedent

Answer 58

A precedent from a higher court or the same court in certain circumstances that must be followed by lower courts in future similar cases.

Question 59

Persuasive Precedent

Answer 59

A precedent that is not binding but may influence a court's decision such as rulings from other jurisdictions or lower courts.

Question 60

Distinguishing

Answer 60

A method by which a judge avoids following a precedent by demonstrating significant differences between the facts of the current case and the earlier case.

Question 61

Overruling

Answer 61

When a higher court changes the legal principle established in a previous case rendering the earlier precedent invalid.

Question 62

Reversing

Answer 62

When a higher court overturns the decision of a lower court on the same case altering the outcome.