paper 2 section A: judicial precedent

Question 1

What is Judicial Precedent?

Answer 1

Its judge-made law where no previous precedent on the issue exists

Question 2

Donoghue v Stevenson 1932

Answer 2

This case created the neighbour principle following a snail being found in a bottle of ginger beer which resulted in Mrs D becoming ill. This is the foundation of a legal duty of care in the tort of negligence.

Question 3

Who can create Judicial Precedent?

Answer 3

The Supreme Court and the Court of Appeal

Question 4

What does ‘Stare decisis’ translate to?

Answer 4

To stand by things decided

Question 5

What is the doctrine of stare decisis?

Answer 5

It means that courts must follow precedents (rules of laws) and this means that a precedent will always be binding on courts lower than the court that set the precedent.

Question 6

What are the 2 exceptions to the rule of ‘stare decisis’?

Answer 6

1. Distinguishing one case from another when the material facts are different
2. High Court can overrule the decision of a lower one

Question 7

Hierarchy of courts:

Answer 7

1. Supreme Court - binds all other courts
2. Court of Appeal (Civil and Criminal) - can overrule itself
3. Divisional courts of the High Court - binds courts below themselves unless it would cause injustice
4. High Court - binds courts below and usually follows own precedents but is not bound to
5. Crown Court - does not usually create precedents
6. Magistrates’ and County Court - do not create precedents

Question 8

Facts of R v Blaue

Answer 8

Victim was stabbed multiple times after refusing D’s sexual advances, she was taken to hospital and refused a blood transfusion on religious grounds and died.

Question 9

Principle decided in R v Blaue

Answer 9

Thin Skull Rule. This means ‘you take your victims as you find them’. The defendant is responsible in criminal law for the outcome even if the victim refuses medical treatment (it does not break the chain of causation)

Question 10

Facts of R v Roberts

Answer 10

The victim jumped from a moving car to escape a sexual assault and suffered a concussion and minor injuries as a result.

Question 11

Principle decided in R v Roberts

Answer 11

It was decided that the victim’s own acts will not break the chain of causation if they are a reasonably foreseeable result of the defendant’s actions.

Question 12

Facts of Hill v C Constable W Yorkshire

Answer 12

Peter Sutcliffe, the Yorkshire Ripper, was not kept in custody after being brought in for questioning even though there was sufficient evidence against him because of police negligence in coordinating the evidence. He went on to kill his last victim after being released

Question 13

Principle decided in Hill v C Constable W Yorkshire

Answer 13

Police do not owe a duty to future victims of unknown criminals (insufficient proximity)

Question 14

In which case was the neighbour principle followed?

Answer 14

In Grant v Australian Knitting Mills the neighbour principle was followed when the manufacturer of wooly underwear did not rinse a chemical out and it caused an allergic reaction in the consumer.

Question 15

What does ‘ratio decidendi’ translate to?

Answer 15

The reason for the decision

Question 16

What is ‘ratio decidendi’?

Answer 16

It is the rule of law as applied to the facts. It forms a binding precedent in similar cases in courts lower than it in the hierarchy.

Question 17

Ireland case

Answer 17

Defendant made a series of silent phone calls to 3 women over 3 months. The ratio was that silence can amount to an assault and psychiatric injury can amount to bodily harm.

Question 18

Matthews and Alleyne case

Answer 18

Defendants pushed the victim into a river knowing he couldn’t swim. They then left him, he then drowned. The ratio decided was a jury can find intent to kill if the defendant knew death was certain.

Question 19

Dica case

Answer 19

A man knowingly infected multiple partners with HIV without telling them. The ratio decided was you can be guilty of biological GBH.

Question 20

What does ‘obiter dicta’ translate to?

Answer 20

‘Other things said’

Question 21

What does obiter dicta mean?

Answer 21

They are ‘by the way’ statements. Anything else said in the judgement other than the ratio - they aren’t binding on future cases however they are persuasive

Question 22

Hill v Baxter case

Answer 22

A man claimed he had a defence to a driving charge as he was driving “without awareness” or in a trance-like state. The defence was rejected, the ratio being that there would have to be a total loss of control and he still had some control as he was still driving badly. The obiter dicta statements were that if he had been in a different situation the defence may have succeeded (if he had been “attacked by a swarm or bees” for example)

Question 23

What are law reports?

Answer 23

They are written judgements of cases and they were only established in 1865. Judicial precedent has only been able to operate as a system of lawmaking because of law reports because w/o them it is impossible to know which ratios exist and so which precedents are binding

Question 24

How can the Supreme Court avoid their own precedents?

Answer 24

The Practice Statement of 1996. The SC is no longer bound by their own previous decisions on an aspect of law, and may depart from their own precedents where they consider it “right to do so”.

Used sparingly as there is a need for certainty and the phrase is vague and there is little guidance when to overrule a previous decision.

Question 25

BRB v Herrington 1986 (Practice Statement)

Answer 25

The first major use of the statement which involved the duty of care owed to a child trespasser. The earlier case of Addie v Dumbreck (1929) had decided that an occupier of land would only owe a legal duty of care for injuries to a child trespasser if those injuries had been caused deliberately.

Question 26

Pepper v Hart 1992 (Practice Statement)

Answer 26

The House of Lords (now the Supreme Court) had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed, previously the courts were not allowed to refer to Hansard so the Lords departed from Davis v Johnson holding that the teacher was not required to pay taxed on the perk.

Question 27

Advantage of the Practice Statement

Answer 27

Flexibility to keep pace with a changing society’s needs and the demands of justice (e.g. changing views relating to child trespassers from Addie v Dumbreck to BRB v Herrington; changing views of marital rape in R v R)

Question 28

Disadvantage of the Practice Statement

Answer 28

Lack of certainty in a system where this is the highest appeal court and binds all others, it doesn’t allow people to plan within the law; the retrospective effect of criminality e.g. with R v R

Question 29

How can the Court of Appeal overrule its own level precedent?

Answer 29

The civil division can choose not to follow their own precedents under 3 conditions laid down in the case of Young v Bristol Aeroplane.

Question 30

Conditions laid down in Young v Bristol Aeroplane 1944

Answer 30

1. Where there are 2 conflicting Court of Appeal decisions they would have to follow the rule the other (In Parmenter 1991 they had to choose whether to follow the rule in Spratt or Savage, concerning the mens rea for the crime of ABH - they followed Savage)
2. If there is a later conflicting SC decision, the CA will not follow their own precedent
3. If their previous decision was made “per incuriam” (in error) like w/o taking into account a relevant Act e.g. in Williams v Fawcett the court did not follow a precedent which was based on misunderstanding County court rules

Question 31

When can the criminal division of the Court of Appeal depart from a previous decision?

Answer 31

The division can depart from previous precedent if it’s in the interest of justice. This can be seen in the case of R v Taylor in which the Court of Appeal overruled the rule in R v Treanor as they believed the law misapplied concerning the crime of bigamy when a person is unaware that their previously thought to be deceased spouse is actually alive

Question 32

Overuling

Answer 32

A more senior court may overrule a lower courts’ decision in a similar, future case. An example of this is Pepper v Hart.

Question 33

Distinguishing

Answer 33

Judges may choose not to follow a precedent if they consider the material facts of the precedent case to be significantly different from the previously decided case (Merritt v Merritt confirmed the rule that agreements between husband and wife are unlikely to be legally enforceable in court. In Bafour v Bafour the case was distinguished as there was a difference - the couple were separated when the agreement was made)

Question 34

Reversing

Answer 34

A more senior court may reverse a precedent on appeal in the same case (In R v Cunningham the higher court may have changed the meaning of the word “recklessness” decided in the lower court

Question 35

Disapproving

Answer 35

A court may disapprove a precedent i.e. express dissatisfaction with a rule (Elliot v C the High Court disapproved a rule concerning the meaning of “recklessness” set by the HL in Caldwell v MPC, so judges in future cases will choose to avoid this precedent

Question 36

Advantages of judicial precedent

Answer 36

• Consistency and certainty
• Clear structure and appeal system: hierarchy of courts means there is always a higher court to confirm/overturn a rule
• Flexibility: the law can be extended or amended, options of avoiding precedent afford to judges
• Huge wealth of detailed precedents: all precedents are case judgements set in real cases so rather than an abstract theory there are practical applications available to refer to

Question 37

Disadvantages of Judicial Precedent

Answer 37

• Rigidity: Precedents are hard to change which means that an unjust precedent could be in existence and not easily changed until a case of similar facts comes through in the appeal process
• Complexity: Legal judgements are complex and difficult to find or decide what the relevant ratio decidendi is
• Uncertainty: The ability of judges to avoid following a binding precedent can create uncertainty within the law
• Volume: Difficult for anyone to read the law due to the huge volume of judgements made, hundreds are made every year (in Brown the report is over 50 pages long)