Judicial Precedent8️⃣

Question 1

Judicial Precedent - Obiter Dicta, Ratio Decidendi, and Stare Decisis”

Answer 1

1. Obiter Dicta Definition: ‘Other things said,’ speculative comments by a judge.
   
   2. Obiter Dicta Explanation: Judge’s comments not crucial to the decision, offering future guidance.
   3. Obiter Dicta Impact: Persuasive precedent; judges may be influenced but not bound.
   4. Obiter Dicta Example (R v Brown): Consent can be a defence for tattoos, piercings, surgery.
   5. Obiter Dicta Example (R v Howe): Duress not available for attempted murder.
   6. Ratio Decidendi Definition: ‘The reason for deciding,’ the core legal principle.
   7. Ratio Decidendi Impact: Creates binding precedent for future cases.
   8. Stare Decisis: Latin for “stand by what has been decided,” ensuring fairness and certainty.

Question 2

Court Hierarchy

Answer 2

1. Need for Court Hierarchy: A structured court hierarchy ensures judges know which decisions they are bound to follow.
   
   2. Court Hierarchy Structure: Starts with the Supreme Court at the top, followed by the Court of Appeal, Divisional Courts, and inferior courts (Crown Court, Magistrates Court, High Court, County Court).
   3. How the System Works: Courts at the top (e.g., Supreme Court) are binding on lower courts, ensuring consistency.
   4. Supreme Court’s Power: The Supreme Court can depart from its own previous decisions (Practice Statement 1966) when it appears right to do so.
   5. Example - Herrington v BRB: The Supreme Court used the Practice Statement to create a new precedent regarding the duty of care owed to trespassers.
   6. Court of Appeal Boundaries: The Court of Appeal’s divisions are not bound by each other but are bound by their own decisions unless the Young exceptions apply.
   7. Young Exceptions: The exceptions include per incuriam (error), conflicting decisions, and later Supreme Court decisions overruling.
   8. Criminal Division Exception: The Criminal Division can depart from previous decisions if the law has been misapplied or misunderstood, e.g., R v Taylor.

Question 3

Different Types of Precedent

Answer 3

1. Binding Precedent Definition: Precedents that must be followed by lower courts.
   
   2. Binding Precedent Explanation: Created by the ratio decidendi in a case, forming a legal rule that must be applied in future cases.
   3. Binding Precedent Example (R v Brown): Consent is not a defence to offences under s47 OAPA 1861 and above.
   4. Original Precedent Definition: Precedent made in a novel situation where no previous case exists.
   5. Original Precedent Explanation: Judges use reasoning by analogy, often prompted by social or technological changes.
   6. Original Precedent Example (Donoghue v Stevenson): The court created a duty of care for manufacturers to consumers, establishing the foundation for negligence claims.
   7. Persuasive Precedent Definition: Precedents that do not have to be followed but may persuade judges.
   8. Persuasive Precedent Examples: Obiter dicta (e.g., R v Gotts), decisions from lower courts (e.g., R v R), dissenting judgments (e.g., Hedley Byrne v Heller), Privy Council decisions (e.g., The Wagon Mound), and precedents from other countries (e.g., Re S).

Question 4

Avoiding Precedent – Overruling & Distinguishing

Answer 4

1. Overruling Definition: When a higher court changes a previous decision made by a lower court or by itself.
   
   2. When/Why Overrule: Used if the old precedent is outdated or incorrect – can be done by Supreme Court (using Practice Statement), or other higher courts.
   3. Overruling Case (R v R): Overruled R v Miller, establishing rape can occur within marriage.
   4. Overruling Case (BRB v Herrington): Overruled Addie v Dumbreck, creating duty of care to trespassers.
   5. Effect of Overruling: The old precedent is no longer binding and is replaced.
   6. Distinguishing Definition: When a judge avoids following precedent by showing key factual differences in the case.
   7. Distinguishing Case (Merritt v Merritt): Distinguished from Balfour v Balfour because the couple was separated, showing intention to create legal relations.
   8. Distinguishing Case (R v Wilson): Distinguished from R v Brown – branding seen like a tattoo, not for sexual pleasure, so consent was allowed.

Question 5

Avoiding Precedent – Reversing”

Answer 5

1. Reversing Definition: When a higher court changes the legal decision of a lower court in the same case on appeal.
   
   2. When Reversing Happens: Only occurs when a case is appealed and the higher court disagrees with the legal reasoning of the lower court.
   3. Who Can Reverse: Usually done by the Court of Appeal or Supreme Court when hearing an appeal.
   4. Effect of Reversing: The precedent set by the lower court is overturned and replaced with a new precedent.
   5. Reason for Reversing: The higher court believes the law was wrongly applied or interpreted.
   6. Case Example (R v Woollin): The Court of Appeal said foresight of consequences is intention; the House of Lords reversed this, saying foresight is only evidence of intention.
   7. Key Difference from Overruling: Reversing is in the same case on appeal; overruling is in a different case.
   8. Impact on Law: Creates new binding precedent from the higher court’s decision.