Judicial Precedent

Question 1

The Supreme Court was bound by its own decisions until what came about? What did it do?

Answer 1

• 1966 Practice Statement

- Allows the court to change its mind on the outcome of a case, rather than just following the precedent

Question 2

What was significant about Jones v Secretary of State for Social Services (1972)? (4)

Answer 2

• Illustrated the reluctance in the House of Lords to use the practice statement
• Involved interpreting the National Insurance Act 1946
• 4/7 judges regarded the earlier decision in Re Dowling (1967), as being wrong
• Despite this, the Lords refused to overrule the earlier case, preferring to keep to the idea that certainty was the most important feature of precedent

Question 3

Explain distinguishing. Example?

Answer 3

• Where the facts of the case are deemed different enough that the previous case is no longer binding
• Merritt v Merritt was distinguished from Balfour v Balfour: both cases involved maintenance pay, Balfour v Balfour was held to be unenforceable because it was an oral agreement while Merritt v Merritt had a written agreement and so was deemed to be enforceable

Question 4

Explain reversing (3). Example?

Answer 4

• Where a higher court departs from the decision made by a lower court on appeal
• Re Pinochet (1999)
  
  • Chilean dictator convicted for his crimes
  • Outcome reversed because the judge was deemed to be biased

Question 5

Explain overruling. Example?

Answer 5

• Where a court that is higher in the hierarchy departs from a decision of a lower court
• BRB v Herrington (1972) overruled Addie v Dumbreck (1929) and set a new precedent that a duty of care is owed to a trespasser

Question 6

What was the issue in Re v A (2000)?

Answer 6

• Whether or not Siamese twins should be separated in an operation which is recommended by the hospital, but has clearly been opposed by the patient

Question 7

What was the issue in Airedale NHS Trust v Bland (1993)?

Answer 7

• Whether a life support machine should be switched off if a person is in a persistent vegetative state

Question 8

What are the disadvantages of precedent? (9)

Answer 8

• Judges are usually old, white men, so don’t necessarily represent the general public
• System is rigid - lower courts have to follow decisions of higher courts
• Judgments can be long and unclear - finding the ratio decidendi can be difficult
• To avoid precedent, judges may make decisions which are neither logical nor in line with the general rules that have been developed
• Case law not designed for coherent legal development
• Only the Supreme Court can give an ultimate ruling and it’s long and expensive to get a case through
• Precedent cannot initiate legal change, as it has to wait for an appropriate case
• Some judges don’t like the restrictions, believing them to create injustice at times
• Leads to complex and imprecise bodies of law (encouraging speculative litigation)

Question 9

What was significant about R v R (1991)? (3)

Answer 9

• Defendant charged with attempted rape of his wife
• The House of Lords overturned the marital exception to rape and the husband was convicted
• Set an original binding precedent which is now followed

Question 10

What is persuasive precedent?

Answer 10

• Judgments which do not have to be followed, but can be considered if the judge wishes

Question 11

What happened in Donoghue v Stevenson? What was significant about this case? (5)

Answer 11

• Donoghue’s friend bought her a ginger beer
• It had a dead snail in it
• She got sick
• Attempted to claim against the manufacturer, claiming that he owed her a duty of care
• The case held, setting the original precedent that manufacturers do owe a duty of care to the ultimate consumer of their product

Question 12

What is Ratio Decidendi?

Answer 12

• The legal reason for the decision

Question 13

What happened in R v Shivpuri? (4)

Answer 13

• Shivpuri was persuaded to act as a drugs courier
• He thought he was smuggling heroin, but it turned out to be snuff
• Claimed he couldn’t be found guilty as snuff was legal
• Overruled Anderton v Ryan and set a new precedent - attempting the impossible was now deemed to be a criminal offence and Shivpuri was prosecuted

Question 14

The Court of Appeal has no Practice Statement, but what is an example of an exception?

Answer 14

• Young v Bristol Aeroplane Co

Question 15

Explain the following advantage of precedent: Certainty (3)

Answer 15

• System encourages consistency as like cases are decided alike (stare decisis)
• Means that the system is predictable
• In turn means that people can plan ahead with reasonable confidence that they are not breaking the law

Question 16

When can the Court of Appeal avoid following precedent? (4)

Answer 16

• Outlined by Young v Bristol Aeroplane
• When a previous decision conflicts with a late Supreme Court decision, the Supreme Court precedes
• When there are two conflicting CoA decisions, the judge can choose which to follow
• When the decision is made per incuriam (wrong)

Question 17

What happened in Pepper v Hart?

Answer 17

• The previous ban on the use of Hansard in statutory interpretation was overruled

Question 18

Why is legal growth an advantage of precedent? Example cases (2)?

Answer 18

• New laws can be created to deal with difficult and new dilemmas
• Airedale NHS Trust v Bland (1993)
• Re A (2000)

Question 19

What happened in Miliangos?

Answer 19

• It was decided that compensation should be awarded to the claimant in a currency of their choosing

Question 20

What are the three ways of avoiding precedent? (3)

Answer 20

• Overruling
• Reversing
• Distinguishing

Question 21

Describe the Court of Appeal (2)

Answer 21

• Directly below the Supreme Court

- Bound by the decisions of the Supreme Court, as well as its own

Question 22

Describe the Supreme Court (2)

Answer 22

• Highest court in the English legal system

- Final appeal court in the UK

Question 23

What was significant about Herrington v BRB? (2)

Answer 23

• First significant use of the practice statement

- Overruled Addie v Dumbreck

Question 24

What does stare decisis mean?

Answer 24

• To stand by what has been said before

Question 25

Explain the following advantage of precedent: flexibility (4)

Answer 25

- Judges can distinguish cases based on their facts - Practice statement allows the law to develop and adapt, thus keeping up with modern times - The precedent system, has enabled entire areas of law to grow e.g contract and tort - Objectivity - system of precedent prevents judges from exercising personal prejudice, thus making the courts' decisions more transparant

Question 26

What is binding precedent?

Answer 26

- A precedent which must be followed

Question 27

What does obiter dicta mean?

Answer 27

- Other things said

Question 28

What is original precedent?

Answer 28

- Law that is created through the outcome of a case which becomes binding precedent to all future cases

Question 29

What are examples of persuasive precedent? (5)

Answer 29

- Decisions by courts lower in the hierarchy - Decisions of the privy council - Statements made obiter dicta - A dissenting judgment - Decisions of other common law jurisdictions