Judicial Precedent (PURPLE BOOKLET)

Question 1

What principle is judicial precedent based on?

Answer 1

Stare Decisis

Question 2

Translate ‘stare decisis’

Answer 2

‘Stand by what has been decided’

Question 3

What does stare decisis mean in terms of judicial precedent?

Answer 3

Let similar cases be decided in a similar way

Question 4

What is the purpose of the court hierarchy?

Answer 4

To create certainty and consistency within the law

Question 5

Who binds who within the court hierarchy?

Answer 5

Higher courts bind lower courts

Question 6

What two courts bind themselves?

Answer 6

Supreme court and court of appeal

Question 7

What can the supreme court use and when to avoid following it’s past precedent?

Answer 7

1966 Practice Statement ‘when it appears right to do so’

Question 8

How can the court of appeal avoid following it’s past precedent?

Answer 8

Using the excpetions outlined in Young v BAC (civil) or R v Young (criminal)

Question 9

Why is law reporting crucial for judges?

Answer 9

So that they can find the ratio decidendi to follow

Question 10

What made law reporting more thorough and uniform?

Answer 10

1865 incorporated council of law reporting

Question 11

Give 2 examples of law reports

Answer 11

All England Law reports, Weekly law reports

Question 12

List the things included within a law report

Answer 12

Parties, judges, date, facts, cases referred to, judgement

Question 13

What 2 categories is judgement split into?

Answer 13

Ratio decidendi and Obiter dicta

Question 14

Translate ‘ratio decidendi’

Answer 14

‘Reasons for deciding’

Question 15

What is the leading case for ratio decidendi?

Answer 15

Oxford v Moss

Question 16

What was the ratio decidendi from the case of Oxford v Moss?

Answer 16

Information is not property which can be stolen

Question 17

What kind of precedent is ratio decidendi an example of?

Answer 17

Binding precendent

Question 18

What cases outline ratio decidendi as binding precendent?

Answer 18

Grant followed the ratio decidendi of Donoghue v Stevenson

Question 19

What point of law came out of Donoghue v Stevenson which was followed in the case of Grant?

Answer 19

That manufacturers owe a duty of care to their ultimate consumer

Question 20

Translate ‘obiter dicta’

Answer 20

‘Other things said’

Question 21

What type of precedent is obiter dicta an example of?

Answer 21

Persuasive

Question 22

Give an example where the obiter dicta of a case was used in a later case

Answer 22

Supreme court in R v Gotts followed the Obiter Dicta from R v Howe

Question 23

What point of law came out of Gotts and Howe?

Answer 23

That duress is not a defence for (attempted) murder

Question 24

What are the 3 types of precedent?

Answer 24

Original, Binding and Persuasive

Question 25

Give an example of original precedent

Answer 25

Donoghue v Stevenson

Question 26

What 2 ways can a court avoid following precedent?

Answer 26

Overruling and distinguishing

Question 27

When will a court overrule past precedent?

Answer 27

When they decide that a previous precedent is wrong or outdated

Question 28

Who overrules who?

Answer 28

Higher courts overrule lower courts (Supreme court and court of appeal can overrule themselves)

Question 29

What is the effect on precedent when a court is overruling?

Answer 29

The new precedent will replace the previous one

Question 30

Give a case example of when precedent was overruled in civil law

Answer 30

Herrington overruled Addie v Dumbreck

Question 31

What was the point of law that came out of the case of Herrington?

Answer 31

That landowners owe a duty of care to trespassers

Question 32

Give a case example when precedent was overruled in criminal law

Answer 32

R v Shivpuri overruled Anderton v Ryan

Question 33

What was the point of law that came out of R v Shivpuri?

Answer 33

That it is an offence to attempt to do the impossible

Question 34

Which courts can distinguish?

Answer 34

Any court

Question 35

When can a court distinguish?

Answer 35

When they decide that the material case facts are significantly different from an earlier case

Question 36

Describe the effect that distinguishing has on precedent

Answer 36

The later case will create a new precedent on the same point of law thus 2 precedents will exist on this same pint

Question 37

Give the 2 case examples for distinguishing

Answer 37

R v Smith distinguished R v Jordan and Merritt v Merritt distinguished Balfour v Balfour

Question 38

What are the 3 advantages of judicial precedent?

Answer 38

Provides flexibility within the law, provides certainty within the law and allows the law to respond to real life situations

Question 39

How does judicial precedent provide flexibility within the law?

Answer 39

As there are ways of avoiding precedent; Supreme Court can overrule using Practice Statement, all courts can distinguish

Question 40

Give an example where judicial precedent provided flexibility within the law

Answer 40

R v Shivpuri - Supreme court overruled precedent from Anderton v Ryan as it was thought to be wrong

Question 41

What is a consequence of judicial precedent providing flexibility within the law?

Answer 41

Allows wrong decisions to be avoided and removed so that they aren't repeated in the future. Allows the law to be updated in line with changes in society

Question 42

How does judicial precedent provide certainty within the law?

Answer 42

Precedent is based on the principle of Stare Decisis, senior courts will usually follow past precedent (Supreme Court reluctant to use practice statement)

Question 43

Give an example where judicial precedent provided certainty within the law

Answer 43

Jones v Secretary of state of social services - Supreme court refused to overrule Re Dowling even though they agreed that the precedent from Re Dowling was wrong

Question 44

What is a consequence of judicial precedent providing certainty within the law?

Answer 44

Good for citizens who know what the law is so can act legally, also lawyers can advise clients more easily as they can prepare for a likely outcome

Question 45

How does judicial precedent allow the law to respond to real life situations?

Answer 45

Precedents are made during cases which deal with real life situations whereas statutes are made by Parliament to deal with theoretical situations

Question 46

Give an example where judicial precedent allowed for the law to respond to real life situations

Answer 46

R v R - Supreme Court changed the law to make marital rape a crime to respect the improved status of women within society

Question 47

What is a consequence of judicial precedent allowing the law to respond to real life situations

Answer 47

Law can be made and changed in response to real events, this allows the law to develop with the times and reflect changes within society