Judicial Precedent

  1. What is judicial precedent?
    Judicial precedent refers to the source of law where the past decisions of judges create law for future judges to follow in similar cases
  2. What is the meaning of 'stare decisis' and what does it support?
    It means "stand by the decisions of past cases". This supports the idea of fairness and certainty in the law.
  3. What is a binding precedent?
    It is a statement in the law from an earlier case which must be followed even if the judge in the current case does not agree with the law.
  4. When is a binding precedent created?
    A binding precedent is only created when the facts of the second case are sufficiently similar to the precedent and the decision was made by a court which is senior (or in some cases the same level as) the court hearing the current case.
  5. What does precedent need in order to operate properly?
    It needs a system of reporting cases the come before the courts so that both lawyers and judges in later cases can refer back to the relevant statements of law.
  6. Why is a system of law reporting needed?
    It is needed to publicise a judgement and to ensure that there is an accurate and authorised record of the reasons for decisions.
  7. Who writes law reports?
    Law reports are written by specialist lawyers
  8. What are the three examples of law reports?
    • Weekly law reports
    • All England law reports
    • LexisNexis (a computerised database)
  9. What is the 'ratio decidendi' of a case?
    It is the vital 'reason for deciding'. It is the ratio that creates a binding precedent for judges to follow in later similar cases
  10. What is an example of ratio decidendi (case)?
    The binding principle in CARLILL v CARBOLIC SMOKE BALL Co (1892) that a clear offer to sell a product may be accepted by the consumer doing whatever the offer required.
  11. What are the other points in a law report that are not ratio decidendi called?
    obiter dicta
  12. What is meant by 'obiter dicta'?
    "other things said". These comments are not essential to the outcome of the particular case and are often discussions of hypothetical situations.
  13. What is an example of obiter dicta?
    A comment made in R v HOWE (1987) that duress could not be a defence to the crime of attempted murder.
  14. Why does there need to be a clear court hierarchy for judicial precedent?
    This is so that a judge knows he or she should follow when deciding the outcome of a case.
  15. What are the two courts which hear criminal cases?
    • Magistrates' Court
    • Crown Court
  16. What are the two courts which hear civil cases?
    • Tribunals
    • County Court
  17. What are the three courts which hear both criminal and civil cases?
    • High Court
    • Court of Appeal
    • Supreme Court
  18. Which is the most senior national court and which courts does it bind?
    The Supreme Court and its decisions must be followed by all other courts in the English legal system.

    The Supreme Court is also usually bound to follow its own past decisions.
  19. What types of cases does the Supreme Court hear?
    It hears both civil and criminal cases when a legal principle of general public importance is involved.
  20. What are the two divisions to the Court of Appeal?
    • Civil divison (hears appeals for civil cases)
    • Criminal Division (hears appeals for criminal cases)
  21. Who does the Court of Appeal have to follow and who does it bind?
    • Both divisions of the Court of Appeal are bound by previous decisions of the Supreme Court.
    • The Court of Appeal is also usually bound to follow its own past decisions.
    • It also binds the courts below it.
  22. Who does the High Court bind and who must it follow?
    The High Court is bound by both the Court of Appeal and the Supreme Court.

    It binds the lower courts
  23. Does the High Court have to follow its own past decisions?
    High Court judges do not have to follow each others' decisions but will usually do so.
  24. Which courts do not usually create precedents?
    • Crown Court
    • County Court
    • Magistrates' Court
  25. What is a persuasive precedent?
    A persuasive precedent is one which the court will consider and may be persuaded by, but which does not have to be followed.
  26. What are the two sources of a persuasive precedent?
    • Courts lower in the hierarchy than the court hearing the appeal: R v R (1991) where the House of Lords were persuaded to follow the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife.
    • Statements made obiter dicta: R v Howe (1987) that duress could not be a defence to the crime of attempted murder. The persuasive precedent was later followed in R v GOTTS (1992)
  27. What is meant by following a precedent?
    To follow a precedent is to apply the same legal principle from an earlier case to a present case because the material facts are the same and the precedent was set by a higher court or was a precedent set by the same court.
  28. What is overruling?
    Overruling is where a precedent set by a lower court is said by a higher court hearing a separate case to have been wrong. The earlier cases ceases to be a precedent for any point of law.
  29. What courts can overrule their own precedents?
    some appellate courts
  30. What is an important means of avoiding a precedent?
    An important means of avoiding a binding precedent is the limited power of the Supreme Court to overrule its own precedents 'when it appears right to do so', as provided for in the Practise Statement of 1966


    In HERRINGTON V BRITISH RAILWAYS BOARD (1972) a boy aged 6 trespassed on a railway line and was severely injured. He had been able to get onto the railway line because the Railways Board had not maintained the fencing properly. An earlier case of ADDIE v DUMBRECK (1929) had decided that there was no duty of care to maintain fencing where the trespasser was a child. In HERRINGTON, the House of Lords used the Practise Statement overrule their 1929 precedent because of the changed attitude of society towards child trespassers. The Railways Board owed a duty of care to child trespassers and was liable.
  31. It was suggested at one time that the Court of Appeal (civil division) should have a similar power to avoid its own precedents, what happened in DAVIS v JOHNSON?
    The House of Lords held that the Court of Appeal (civil division) must follow its own past decisions unless it could overrule itself using one of three exceptions stated in YOUNG v BRITOL AEROPLANE (1994)
  32. What were the three exceptions in YOUNG v BRISTOL AEROPLANE where the Court of Appeal (civil division) could overrule itself?
    • The court may choosing between two conflicting precedents of its own - once chosen it cannot go back on its decision
    • Where there is a decision of the Supreme Court which by implication overrules a Court of Appeal decision, the Court of Appeal must follow the Supreme Court
    • it is not bound by its own precedents made per incuriam (in error)
  33. How else can the Court of Appeal (criminal division) avoid its own past decisions apart from using the exceptions in YOUNG'S CASE?
    The Criminal Division can refuse to follow a binding precedent of its own if the judges in that earlier case have 'misapplied' or 'misunderstood' the law: R v TAYLOR (1950)
  34. Why can the Court of Appeal (criminal division) refuse to follow a precedent?
    This is because in criminal cases, people's freedom is involved and more flexibility to develop the law is needed to avoid justice.
  35. What is distinguishing?
    Distinguishing occurs when a court of any level finds a difference in the material facts between the case it is hearing and a precedent. As a result, the court may refuse to follow the precedent. 

    Distinguishing is a major factor in allowing precedent to remain flexible and allow case law to develop.
  36. What is disapproving?
    Disapproving is where a judge states in their judgement that they believe the decision in the earlier case is wrong.
  37. What are the case examples for distinguishing?
    • BALFOUR v BALFOUR (1919)
    • MERRITT v MERRITT (1971)
  38. What happened between the cases BALFOUR and MERRITT?
    In BALFOUR v BALFOUR, Mr B agreed to pay living expenses to his wife while she was ill in this country and he was forced to work abroad. They separated and he stopped the payments. It was decided that a claim by the wife for breach of contract should not succeed because there was no intention to create legally binding promises and thus, no contract.

    MERRITT v MERRITT also involved a wife suing her husband for breach of contract, but this time the wife was successful because the Court of Appeal held that the material facts of the two cases were sufficiently different. Firstly, the agreement to pay maintenance had been made after the couple had separated and secondly, the agreement was made in writing unlike in BALFOUR.

    This distinguished the case from BALFOUR; the agreement in MERRITT was a contract because there was an intention to create legally binding promises.
  39. What are the two case examples for overruling?
    • ADDIE V DUMBRECK (1929)
  40. What are the advantages of precedent?
    • The system allows to create certainty in the law. This allows lawyers to advise clients on the probable outcome of a case; citizens know what the law is; and businesses can operate knowing that financial arrangements are recognised by law.
    • As judges are impartial (unbiased) and basing their decisions on legal rules, precedent is a just and authoritative system of making law
    • There is a degree of flexibility to correct bad decisions and allow the law to deal with new situations. Judges can distinguish cases, as happened in MERRITT v MERRITT, and the Supreme Court can use the Practise Statement to overrule its own precedents, as happened in HERRIGTON v BRITISH RAILWAYS BOARD when ADDIE v DUMBRECK was overruled because society's attitude towards child trespassers had changed by the 1970s
  41. What are the disadvantages of precedent?
    • Precedent is too rigid so that bad decisions are difficult to change and the law slow to develop. The strict court hierarchy means that judges must follow binding precedents. Thus, bad decisions cannot be changed unless they are heard in a higher court that can overrule them. Also, changes cannot be made unless a case comes to your, especially the higher courts, which may be a lottery based on a lawyer's advise and the availability of funding. It was not until 1991 that marital rape was recognised in R v R
    • Precedent is often seen as undemocratic. Many argue that only Parliament, with MPs representing and accountable to the electorate, should create law where judges merely apply it.
    • Case law is retrospective so a case can make someone liable for a crime even though it was not a crime when he or she first committed the act. This is what happened in R v R (1991) to a husband who was ultimately made liable for the attempted rape of his wife.
Card Set
Judicial Precedent
aqa law unit 1 judicial precedent flashcards