(Paper One) = Judicial Precedent

Question 1

What is judicial precedent?

Answer 1

• Precedent is an earlier event or action that acts as a guide for similiar circumstances made by judges

Question 2

What is the hierarchy of civil courts?

Answer 2

Court of Justice and European Court of Human Rights
Supreme Court/House of Lords
Divisional Courts such as the KBD, Family and Chancery
High Court
County Court
Magistrates Court

Question 3

What is the hierarchy of criminal courts?

Answer 3

Court of Justice for European Union and Human Rights
Supreme Court/House of Lords
Court of Appeal
King’s Bench Divisional Court
Crown Court
Magistrates

Question 4

What is the rule of higher courts and judicial precedent?

Answer 4

• If a legal principle comes from a higher court and the material facts are sufficiently similiar to the one being decided
• The principle must be followed as they are bound by the principle of the case
• Higher courts will bind lower courts
• If the material facts are different, it will affect the decisison

Question 5

What is stare decisis?

Answer 5

• Let the decision stand
• Which is what the doctrine of precedent is based on
• This is what makes the precedent binding
• Seen in Donoghue v Stevenson

Question 6

What is ratio decidendi?

Answer 6

• Reasons for the decisions
• This identifies the legal principle and creates a precedent to be followed in future cases which becomes common law
• This is the binding part of the decision

Question 7

What is obiter dicta?

Answer 7

• Other things said
• This is the rest of the judgement
• They are not binding but can be followed
• Seen in Hill v Baxter and Moloney

Question 8

What are the three types of precedent?

Answer 8

1. Original Precedent = The first time the legal principle is stated (Seen in Donoghue v Stevenson)
2. Binding Precedent = The decision from a previous higher court must be followed if the details are close enough to the current case
3. Persuasive Precedent = Legal Principles that could be considered but do not have to be followed. This can be seen from decisions in lower courts, obiter dicta, decisions from other countries

Question 9

Are decisions from lower courts binding?

Answer 9

• Courts are only bound by decisions of courts above them therefore decisions from lower courts will not be binding
• However, they can be used as persuasive precedent

Question 10

Is obiter dicta binding?

Answer 10

• It is not binding as it is not directly relevant to the case however it can be relevant to a future case that is slightly different so it can provide guidelines for particular legal rules
• Therefore it can be used as persuasive precedent

Question 11

What is the 1966 Practice Statement?

Answer 11

• The House of Lords was bound by it’s own decisions until 1966, the only exception was if it had been made by mistake (per incuriam)
• The practice statement meant that the HOL could depart from previous statements if it had the right to do so
• An example is Pepper v Hart

Question 12

What are advantages of judicial precedent?

Answer 12

1. Consistency and Predictability = Treat like cases in similar manner
2. Efficiency = Saving time and cost
3. Flexibility
4. Detailed Reasoning

Question 13

What are disadvantages of judicial precedent?

Answer 13

1. Rigid = Absurd outcomes
2. Complexity
3. Inaccessibility
4. Instability = Overturning law