Judicial Precedent

Question 1

What is it?

Answer 1

• past decisions of judges create law for future judges to follow
• they follow decisions from higher courts
• decisions in higher courts bind those courts below them
• everything which happens in courts is recorded

Question 2

Why is there precedent?

Answer 2

• fairness and consistency
• so all judges follow the same rules
• stare decisis (stand by what is dictated)

Question 3

Judges summary

Answer 3

1. Summing up of the facts and arguments put forward by both sides
2. Ratio decidendi - the reason for deciding - the principles of law for deciding the outcome
3. Obiter dicta - other things said - the judge may put forward hypothetical decisions had the facts been different
4. The judgement

Question 4

Court hierarchy

Answer 4

• every court in the hierarchy must follow decisions made by courts above it
• appeal courts are bound by their own previous decisions
• precedent from 1973 and only on European law

Question 5

Where does precedent come from?

European Court of Justice

Answer 5

• since 1973
• only for areas of European laws
• prepared to overrule its own past decisions - if necessary

Question 6

Where does precedent come from?

Supreme Court

Answer 6

• they replaced the House of Lords in 2009

- not bound by its own past decisions (will generally follow them)

Question 7

Where does precedent come from?

Court of Appeal

Answer 7

• bound to follow decisions of the European court of justice and Supreme Court
• usually follow past decisions of their own (some limited exceptions)
• more flexible when involves liberty of subject

Question 8

Where does precedent come from?

Divisional courts

Answer 8

• bound by decisions of the European Court of Justice, Supreme Court and Court of Appeal
• bound by own past decisions, they operate similar exceptions to those operated by the court of appeal

Question 9

Where does precedent come from?

High Court

Answer 9

• bound by decisions of all courts above and binds lower courts
• don’t have to follow each other’s decisions but usually will

Question 10

Where does precedent come from?

Inferior Courts

Answer 10

• Crown Court, County Court and Magistrates Court
• bound to follow decisions by all higher courts and it is likely that a decision can create precedent
• ruling on a point of law in Crown Court can create precedent for Magistrates Court (this is very rare)

Question 11

Where does precedent come from?

Court of First Instance

Answer 11

• any court where original trial of a case is held

- they don’t create precedent

Question 12

Types of precedent

Answer 12

• there are 3 types
  1. Original: when a point of law has never been decided upon before
  2. Binding: where the facts of a second case are sufficiently similar to the first, the decision in the second must follow
  3. Persuasive: this is not binding but may be considered in helping the judge reach a decision

Question 13

Persuasive precedent

Answer 13

There are 5 origins

1. Lower courts in the hierarchy
2. A dissenting judgement
3. Decisions of the judicial committee of the Privy Council
4. Statements made obiter dicta
5. Decisions of the courts in other countries

Question 14

Persuasive precedent

Origin: lower courts in the hierarchy

Answer 14

• if there has been a similar case in a lower court, then the judge in the higher court can follow that decision
• RvR 1991
• House of Lords followed a decision made in the Crown Court that a man could be guilty of marital rape

Question 15

Persuasive precedent

Origin: a dissenting judgement

Answer 15

• where a case has been decided by a majority of judges (2-1) the judge who disagrees has to explain his reasons
• the dissenting judgement has persuaded other courts to follow it
• Hedley Byrne v Heller & Partners

Question 16

Persuasive precedent

Origin: decisions of the judicial committee of the Privy Council

Answer 16

• this is not part of the court hierarchy so decisions not binding
• courts can follow past decisions of the Privy Council ( all living former government ministers)
• the Wagon Mound 1961

Question 17

Persuasive precedent

Origin: statements made obiter dicta

Answer 17

• can’t use duress as a defence to murder

- R v Gotts followed obiter dicta in R v Howe 1987

Question 18

Persuasive precedent

Origin: decisions of courts in other countries

Answer 18

• decisions from other countries are considered

- Re: A 2000

Question 19

Stare decisis

Definition and how it works

Answer 19

• standing by previous decisions

- follows hierarchy of the courts - decisions made in higher courts need to be followed in lower courts

Question 20

Stare decisis

How it’s decided

Answer 20

• created through the ratio decidendi of previous cases

Question 21

Stare decisis

How it can be avoided

Answer 21

• distinguishing: proving case facts are sufficiently different. This applies to any court
• e.g. Merritt v Merritt not following Balfour v Balfour
• overruling: changing a previous decision as legal rule in earlier case was wrong. This applies to higher courts
• reversing: when a higher court overturns the decisions of a lower court on appeal on the same case

Question 22

The Supreme Court: avoiding its own past decisions

A history of the changes with practice statement

Answer 22

1898: London Street Tramways - decides that certainty in the law is more important than fairness in individual cases therefore Supreme Court must follow its own past decisions (bound)
1966: the Practice Statement - it was finally decided that the decision in 1898 was not fair/right and the House of Lords should be allowed to overrule past decisions when it was right to do so. Introduced by Lord Gardiner
1968: Conway v Rimmer 1968 - first use of the practice statement, but only involving a technical issue regarding evidence in a trial
1972: Herrington v BRB 1972 - first major use, where the House of Lords believed the law was not outdated and needed changing
1986&87: R v Shivpuri / Anderton v Ryan - first criminal use of practice statement
2003: practice statement used to overrule the decision in Caldwell on recklessness in the criminal law
- the House of Lords were reluctant to use the practice statement - only 8 times in the first 20 years

Question 23

Court of Appeal

Current powers

Answer 23

• binds all courts below it

- for many is final appeal court

Question 24

Court of Appeal

Limitations

Answer 24

• bound by decisions of the House of Lords / Supreme Court
• bound by own previous decisions
• if decision from ECHR or ECJ conflicts with House of Lords / Supreme Court then this must be followed - Re: Medicaments

Question 25

Court of Appeal

When they can depart from previous decisions

Answer 25

There are four exceptions and these came from Young v Bristol Aeroplane 1944 (came up with a set of rules about the Court of Appeal not following its own past decisions
- the assumption is that the Court of Appeal must follow its own past decisions - this was confirmed in Davis v Johnson 1979
EXCEPT
1. where there are two conflicting decisions
2. Where a decision of a higher court has since overruled that decision
3. Where a decision has been made in error ( per incuriam) - only in rare circumstances Rickards v Rickards 1989
4. For the criminal division: where the law has been misapplied or misunderstood - R v Gould

Question 26

Court of Appeal

Extension of powers

Answer 26

• Lord Denning has pushed for reform to allow the Court of Appeal greater powers to avoid past decisions

Question 27

Advantages

Answer 27

• time saving - don’t have to go through the long process of litigation - saves money
• certainty - people know the law and how it will be applied
• consistency - fair as same rules apply to anyone
• precision

Question 28

Disadvantages

Answer 28

• slowness of growth - some areas of law are unclear or in reform
• rigidity - bad decisions in the past may be perpetuated
• complexity

Question 29

How lower courts avoid precedent

Normal situation

Answer 29

Due to the idea of precedent, opportunities for lower courts to depart from higher court decisions are limited

Question 30

How lower courts avoid precedent

Distinguishing

Answer 30

• if it can be proved that case facts are different then precedent need not be followed
• Merritt v Merritt not following Balfour v Balfour

Question 31

How lower courts avoid precedent

Per incuriam

Answer 31

• if it can be proved the previous decision was made in error then it need not be followed
• Rickards v Rickards

Question 32

How lower courts avoid precedent

Human rights

Answer 32

• if it conflicts with ECHR then precedent can be avoided

- Re: Medicaments

Question 33

How lower courts avoid precedent

EU law

Answer 33

If a directive or regulation has been passed then that needs to be followed

Question 34

How lower courts avoid precedent

Later statute

Answer 34

If an Act of Parliament has been passed to change the law then clearly that needs to be followed

Question 35

Original precedent

Answer 35

• when a point of law is unique and has not been considered before
• Hunter & others v Canary Wharf
• when a new act or new development has been made
• judges will reason by analogy
• leads to judicial law making

Question 36

Overruling

Answer 36

• a decision that states a legal rule in an earlier case is wrong
• has a retrospective effect
• applies through the court hierarchy
• with the exception of the practice statement which allowed the House of Lords to overrule itself - Conway v Rimmer
• court of appeal can also overrule itself in limited circumstances - Young v Bristol Aeroplane

Question 37

Should powers of the Court of Appeal be extended

Answer 37

• Lord Denning - argued the court of appeal should be given wide powers as
  1. Not all defendants have financial capability to appeal to House of Lords
  2. Companies can settle with litigants to avoid precedent
  3. Takes time to reach House of Lords
  However since Lord Dennings departure the court of appeal has not challenged the authority of the House of Lords
• expertise - court of appeal hears more appeals, is the final appeal court for most cases and its criminal expertise is stronger
  However, this would create uncertainty for lawyers giving legal advice to clients
• use - House of Lords has the practice statement and is still reluctant to use it
  However, it would make the law more flexible and allow it to develop quicker