Judicial Precedent

• Judicial precedent: what is Judicial precedent also know as?

  Jugde-made law or Common Law
• judicial precedent: is it undemocratic or democratic?

  Undemocratic
• Judicial precedent: What is Judicial Precedent?

  When there is no primary or secondary legislation to apply to a case, judges must create law to fill in the gap. Once the judge makes a law, future judges follow previously decided cases where the facts are sufficient similar
• Judicial precedent: What is the name of the record of past decision made by jugdes ?

  Law Reports (since 1275).
• Judicial precedent: Name an example of a Judge-made law

  Lord Coke’s Murder definition 1797
• Judicial precedent is based on what Latin Maxim?


  Stare decisis
• Judicial precedent: What does Stare decisis mean?

  Stand by what has been decided
• What is the General rule for judicial precedent?


  Lower courts follow decisions of higher courts
• Judicial precedent: What act removed Court of Justice of the European Union from affecting our legal system?

  European Union (Withdrawal Agreement) Act 2020
• Judicial precedent: The Supreme Court began hearing cases in what year after ‘taking over’ from the House of Lords?

  2009
• Judicial precedent: Does the Divisional Court of the High Court bind itself?

  Bound by their own decisions, unless there are exceptions similar to that of the Court of Appeal (Young Exceptions 1944 or R v Gould 1968).
• Judicial precedent: Does the High Court bind itself?

  Not bound by their own decision, but will often follow them (persuasive precedent).
• Judicial precedent: Define Domestic Courts

  Courts based in the UK
• Judicial precedent : Define Courts of First Instance

  Trial Courts
• Judicial president: Define Appellate Court

  The court that hears the appeal of the trial court’s decision
• Judicial precedent: Define Criminal Courts

  Courts that hear criminal matters e.g. assault, battery, GBH
• Judicial precedent: Define Civil Courts

  Courts that hear civil cases e.g. personal injury, breach of contract
• Judicial precedent: Define ratio decidendi

  (reason for deciding)-Most important part of a judgment as it forms the legal reasoning. It is binding, meaning it must be followed in subsequent cases with similar facts
• Judicial precedent: Define obiter dicta

  (other things said)- The remainder of a judgment intended to assist judges in future cases.This forms persuasive precedent - a future judge can follow or ignore
• Judicial precedent: Which 2 cases about duress show the persuasive nature of obiter dicta, which became ratio decidendi in the second case when the judge chose to follow it?

  R v Howe 1987 and R v Gotts 1992 (attempted muder case. Howe's obiter = followed)
• Judicial precedent: what are the 3 types of precedent?

  Binding, Original and Persuasive
• Judicial precedent: What is Binding Precedent?

  Where precedent from an earlier case MUST be followed in a subsequent case, if the facts of the second case ‘sufficiently similar’ to original case AND original decision made by a more senior court.
• Judicial precedent: What is the evidence for binding precedent?

  R v Howe 1987 and R v Wilson
• Judicial president: What is Original Precedent?

  A new point of law that has never been decided before. Reasoning by analogy may be used.
• Judicial precedent: What is Reasoning by analogy?

  Where a judge has no precedent to follow, but looks for the closest cases to see how they were handled.
• Judicial precedent: What is the evidence for Original Precedent?

  Donoghue v Stevenson [1932]
• Judicial precedent: What is Persuasive Precedent?

  When a Judge has discretion (choice), so doesn’t have to follow it
• Judicial precedent: What are the 5 aspects of persuasive precedent?

  •Obiter dicta – ‘Other things said’.

  •Dissenting judgments – An opinion filed by a judge who disagrees with the majority decision.

  •Courts lower in the hierarchy – Where the court chooses to follow the lower court’s decision.

  •Judicial Committee of the Privy Council decisions – The highest court of appeal for many Commonwealth countries (involves our Supreme Court Justices).

  •Commonwealth countries – Countries with similar legal systems, thus have similar cases.
• Judicial precedent: What is the evidence for persuasive precedent?

  Obiter dicta – R v Howe (1987) and R v Gotts (1992)

  Dissenting judgments – Miller v Jackson [1977]

  Courts lower in the hierarchy – R v R (1991) House of Lords agreed with Court of Appeal.

  Judicial Committee of the Privy Council decisions /Commonwealth countries – Attorney General for Jersey v Holley (2005) or Edwards v Canada (1930)
• What are the 5 key terms of Judicial precedent?

  Following

  Overruling

  Distinguishing

  Reversing

  Disapproval
• Judicial precedent: Define following

  Where the facts of two cases are sufficiently similar, the precedent set by the earlier case is followed.
• Judicial precedent: Define Overruling

  Where a court in a later case states that the legal rule in an earlier case is wrong.The second case must be heard in the same court or higher for a decision to be overruled.The outcome (guilty or not guilty & sentence) for the now overruled case does not change + a new binding precedent is created
• Judicial precedent: What is the evidence for following?

  R v Howe and R v Gotts
• Judicial precedent: What is the evidence for overruling?

  Anderton v Ryan (1985) - belief wasnt enough to ammount to attempt

  R v Shivpuri (1986) - belief was enough
• Judicial precedent: define distinguishing

  Where a judge avoids following a past decision by finding that the material facts are sufficiently different.The original decision is not overruled or replaced, a new variation is created.
• Judicial precedent: What is the evidence for distinguishing?

  Merritt v Merritt [1971] - Intention to create legal relations.

  Distinguished from

  Balfour v Balfour [1919] - No intention to create legal relation
• Judicial precedent: Define Reversing

  Where a decision made by a court is overturned by a higher court on appeal (in the same case).Only done by appellate courts if they disagree with the legal ruling.
• Judicial precedent: What is the evidence ofr Reversing?

  R v Dietschmann [2003]
• Judicial precedent: Define disapproval


  A method of highlighting judicial dislike of precedent.
• Judicial precedent: What is the evidence of disapproval?

  In R v Wilson (2007) the Court of Appeal, disapproved of R v Howe (1987) HL.