Judicial Precedent

Question 1

Judicial precedent

Answer 1

this is common law. it is based on stare decisis. Stare decisis is the rule on which the system of judicial precedent is based. It means “stand by what has been decided” – this means that judges must follow decisions made by judges in higher courts in previous cases that had similar facts. Binding precedent

Question 2

The judge’s judgement

Answer 2

Composed of 3 parts:
Decision: Criminal – guilty/not guilty
Civil – claim won/lost
Ratio decidendi: legal reason for the decision. The legal principle on which the decision is based. Binding precedent

Obiter dicta (singular: obiter dictum)
Other things said Persuasive precedent

Question 3

Binding precedent

Answer 3

A precedent (legal rule) from an earlier case which must be followed, even if the judge disagrees with it.

A precedent is only binding when the facts of the second case are sufficiently similar to the original case
AND
The original decision was made by a court which is senior to the one hearing the later case.

Question 4

the ratio of a case

Answer 4

The ‘ratio’ of a case forms the binding precedent – the legal reason for the decision. Eg in Donoghue v Stevenson, the rule that all manufacturers owe a duty of care to consumers of their product.. OR In R v Howe, the ratio was that duress can never be a defence to murder.

Question 5

higher courts -binding precedent

Answer 5

The higher courts (appeal courts) set binding precedent. Eg. the Supreme Court binds the Court of Appeal and all the courts below it on the civil and criminal sides. The CA is bound by decisions of the SCbut can also set precedents which bind the High Court and the County Court on the civil side and the QBD, Crown and Magistrates Courts on the criminal side.The appeal courts must normally also stand by their own past decisions (not just the decisions of higher courts.)