Judicial Precedent

• What is the term for law made by judges?


  Judge-made law
• Why do judges create law?


  To fill in gaps when there is no primary or secondary legislation applicable
• What are Law Reports?


  Records of past judicial decisions since 1275
• What is an example of a judge-made law?

  Lord Coke’s definition of murder from 1797
• What does the Latin maxim "Stare decisis" mean?


  Stand by what has been decided
• How does the Supreme Court's binding nature differ from lower courts?


  The Supreme Court is not bound by its own decisions but generally follows them
• What is the highest domestic court in the UK?

  Supreme Court
• What is the role of the Court of Appeal in relation to the Supreme Court?


  The Court of Appeal is bound by the Supreme Court's decisions
• What is the Practice Statement 1966?


  A statement that allows the Supreme Court to depart from its previous decisions
• What does "Ratio Decidendi" refer to in a judgment?


  The reason for deciding, which must be followed in similar cases
• What is "Obiter Dicta"?


  Other things said in a judgment that are not binding
• How do binding and persuasive precedents differ?


  Binding precedents must be followed, while persuasive precedents are optional
• What is an example of original precedent?


  Donoghue v Stevenson [1932]
• What does it mean to "distinguish" a case?


  To avoid following a past decision by finding material differences
• What happens when a higher court overrules a decision?


  A new binding precedent is created, but the outcome of the original case does not change
• What is the significance of the Practice Statement 1966 for the Supreme Court?


  It allows the Supreme Court to modify its previous decisions when deemed appropriate
• What is the effect of the Practice Statement on previous judgments?


  It deletes the binding ratio from the old case and replaces it with a new ratio
• What are the key elements of a judgment?

  • Ratio Decidendi: The binding reason for the decision
  • Obiter Dicta: Other comments made that are not binding
• What are the types of precedent in judicial law?

  • Binding Precedent: Must be followed in future cases
  • Original Precedent: New legal points not previously decided
  • Persuasive Precedent: Not obligatory but can be followed
• What are the methods judges use to alter or avoid precedent?


  • Overruling: Higher court states earlier legal rule is wrong
  • Distinguishing: Finding material differences to avoid following a case
  • Disapproval: Highlighting dislike of a precedent without changing it
• What is the role of the Supreme Court in the UK legal system?


  • Highest domestic court
  • Can overrule its own past decisions
  • Provides guidance on the use of precedent
• What is the significance of the Court of Justice of the European Union in relation to UK law?


  • Previously influenced UK law
  • Removed from affecting the legal system by the European Union (Withdrawal Agreement) Act 2020
• What are the implications of the Practice Statement 1966 for legal certainty?


  • Provides a foundation for legal certainty
  • Allows for necessary changes to reflect societal views
  • Balances adherence to precedent with justice in individual cases
• When did the Supreme Court assume power of the Practice Statement?


  In 2009.
• What happens when judges decide to use the Practice Statement?


  It overrules their previous decision.
• What does the Practice Statement 1966 do to the binding ratio of an old case?


  It deletes the old binding ratio and replaces it with a new one.
• What was established in Addie v Dumbrek [1929] regarding occupiers' duty of care to trespassers?


  • Duty of care owed only if injuries were caused recklessly or deliberately.
  • Case involved a child who died on the property of View Park Colliery.
• What was the ruling in British Railways Board v Herrington [1972] regarding trespassers?


  • General duty of care towards trespassers where risks are foreseeable.
  • Case involved a child suffering injuries due to a defective fence.
• How did the House of Lords' willingness to use the Practice Statement change over time?


  They gradually became more willing to use it.
• What significant change occurred in Pepper v Hart [1993] regarding statutory interpretation?


  The previous ban on using Hansard was overruled.
• How does the Practice Statement treat criminal law differently?


  It states that criminal law is to be treated differently than civil law.
• What was the outcome of R v Shivpuri [1986] regarding belief in attempts?


  Belief was not enough to amount to an attempt.
• What is the self-binding rule in the Court of Appeal (CA)?


  • Both the House of Lords (HoL) and the Court of Appeal are bound by their own previous decisions.
  • This rule is confirmed in Young v Bristol Aeroplane Co Ltd [1944].
• What exceptions exist to the self-binding rule in the Court of Appeal?


  Conflicting decisions, overruling by the Supreme Court, and decisions made per incuriam.
• What did Denning argue in Gallie v Lee [1969] regarding the self-binding rule?


  He argued it was a self-imposed limitation that could be removed.
• What was the outcome of Davis v Johnson [1979] regarding the self-binding rule?


  The House of Lords reaffirmed the rule in Young v Bristol Aeroplane.
• What flexibility exists in the Criminal Division of the Court of Appeal regarding precedent?


  • The Criminal Division can use Young exceptions.
  • Previous decisions can be changed if the law has been misapplied or misunderstood.
• Why is there added flexibility in criminal law compared to civil law?

  Because it may deal with the liberty of the subject and interests of justice.
• What are the advantages of judicial precedent?


  • Certainty, consistency, and fairness.
  • Flexibility to adapt to societal changes.
  • Time-saving due to established precedents.
  • Allows for original precedent in new areas of law.
• What are the disadvantages of judicial precedent?


  • Rigidity and expense in following binding precedents.
  • Complexity and volume of case law.
  • Illogical distinctions leading to unpredictability.
  • Slowness of growth in law reform.
  • Retrospective application causing potential unfairness.