Unit 1A: Judicial Precedent

Define the term 'Ratio Decidendi'

The legal reason for the decision being made

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Give an example of a 'Ratio Decidendi'

R v Howe (1987): Duress is not a defence to murder

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Define the term 'Obiter Dicta'

Other things said or things said 'by the way'

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Give an example of an 'Obiter Dicta'

R v Howe (1987): Duress is not a defence to attempted murder

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What 3 things does a court system need to operate successfully?

1) A settled court structure 2) A ratio decidendi 3) Accurate records of the decisions made by the superior courts

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Summarise the European Court of Justice (ECJ)

Binds on all lower courts, not part of the UK court structure, does not hear national cases but a UK court may refer a point of EU law to the ECJ for interpretation under Article 234 of the Treaty of Rome

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Summarise the Judicial Committee of the Privy Council (JCPC)

Not part of the UK court structure, final appeal court for many Commonwealth countries, its decisions are persuasive, it has the same judges as the ones who sit in the Supreme Court so it is highly regarded

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Summarise the Supreme Court (SC)

At the top of the English court structure, its decisions are binding on all lower courts, it is bound by the ECJ

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Give an example of a case where the Supreme Court used the 1966 Practice Statement to depart from its previous decision

The Supreme Court used the 1966 Practice Statement in the case of British Railway Board v Herrington (1972) when it departed from its previous decision made in Addie v Dumbreck (1929) -new decision: a duty of care is owed to tresspassers

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Summarise the Court of Appeal (CA)

Bound by the decisions of the Supreme Court, it has 2 divisions (Civil and Criminal),

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Which case tried in the Court of Appeal set out the circumstances of which the Court of Appeal could refuse to follow its previous decisions?

Young v Bristol Aeroplane Co. (1944)

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What are the 3 circumstances of which the Court of Appeal could use if they don't want to follow one of its previous decisions?

1) If its previous decision conflicts with a later SC decision 2) If there are 2 conflicting previous CA decisions 3) If the decision was made 'per incuriam'

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What does it mean if a decision was made 'per incuriam?'

The decision was made by mistake

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What would happen if the previous decision of the CA conflicts with a later decision of the SC?

The Court of Appeal must follow the decision of the Supreme Court

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What would happen if there are 2 conflicting Court of Appeal decisions?

The rejected decision would lose its binding force

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Would would happen if a Court of Appeal decision was made 'per incuriam?'

The 'per incuriam' decision would lose its binding force

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What cases show when the Court of Appeal had to choose between 2 conflicting CA decisions?

In Parmenter (1991,) the CA had to choose between the decision made in Spratt (1990) and Savage (1991)

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Summarise the High Court (HC)

It has 2 roles; a court of first instance & an appeal court, it has 3 divisions (Queen's Bench Division, Family Division and Chancery Division,) each of the divisions has its own court, it is bound by all higher courts and binds all lower courts

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Summarise the Lower Courts (Crown Court, County Court and Magistrates Court)

Do not set binding precedents, bound by all higher courts and does not bind any lower court

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Define the term 'Binding Precedent'

A precedent that must be followed. The Ratio Decidendi is a Binding Precedent

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Define the term 'Persuasive Precedent'

A precedent that may be followed if judges in future, similar cases if they choose to do so. Decisions of Commonwealth Countries are Persuasive Precedent eg: R v R (1991)

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What was the principle of R v R (1991)

The Court of Appeal followed the decision made a one of the Scottish Courts which was that "a man can be guilty of rap ing his wife." This decision was followed by the CA and became the law

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What is a 'dissenting judgement?'

A judgement made by the minority who disagree with the judgement of the majority

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Which case gives the example of when a 'dissenting judgement' is followed?

Candler v Crane Christmas (1951)

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What are the 3 methods of avoiding Judicial Precedent?

Distinguishing (distinguishing the facts of 2 similar cases,) Overruling (a court higher up in the hierarchy sets aside a legal ruling established in a previous case,) Disapproving (mechanism which allows a departure from a precedent)

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Which 2 cases give an example of Distinguishing?

Merritt v Merritt (1971)- was legally binding because an agreement was made outside of marriage and Balfour v Balfour (1919)- not legally binding as the agreement was made within marriage

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Which 2 cases give an example of Overruling?

British Railway Board v Herrington (1972) and Addie v Dumbreck (1929.) Where the SC overruled the decision in Addie v Dumbreck

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List 4 Advantages of Judicial Precedent

Consistency- in decisions which promotes justice and equal treatment and helps people plan, Predictability-lawyers can advise their clients with some degree of certainty, Flexibility-judges can develop the law, Detailed practical rules-can be a guide

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List 4 Disadvantages of Judicial Precedent

Complexity-judgements are complex and difficult to decide, Volume-hundreds of judgements are made each year so it's hard to discover the precise law, Uncertainty-by not always following binding precedents, Lack of research-decisions aren't reliable

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What is the purpose of Law Reports?

Keep accurate and authorised records of the decisions made, they include the name of the case; the court where the case was heard; case facts; names of judges and the date of trial, written by specialist lawyers,

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Give 2 examples of Law Reports

The New Law Journal and Family Law Reports

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Unit 1A: Judicial Precedent

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