Law AS Level - Judicial Precedent

What is judicial precedent?

The past decisions of judges create a law which must be followed by other judges in subsequent, similar case law.

What is an advantage of judicial precedent?

The law is consistent across the board

What is a disadvantage of judicial precedent?

Each case is unique and must be treated as such

Explain the first Latin maxim.

Stare Decisis:

• means ‘stand by what has been decided’

• where the point of law is the same, the result should be the same

• Provides certainty and fairness

Explain the second Latin maxim.

Ratio Decidendi:

• means ‘the reason for the decision’

• e.g. the defendant is older than 10, so is guilty

• some HAVE to be followed, others don’t (depends which court it came from → lower follow more senior courts)

• There can be numerous reasons

• This is the binding precedent.

Explain the third Latin maxim.

Obiter Dicta:

• means ‘other things said’

• e.g. if the defendant had been younger than 10, they would not have been guilty

• everything said in the judgement (bar the R.D.) is commentary (O.B.)

• judges can speculate on what they would decide if the facts were different (persuasive precedent) - if they disagree, the ‘losing’ precedent becomes the persuasive precedent

• can be difficult to decide what is R.D. and what is O.B. (current judge decides)

R v Howe

Duress not a defence to murder. It would also not be a defence to attempted murder.

What is the binding precedent / R.D. in R v Howe?

Duress not a defence to murder.

What is the persuasive precedent (O.B.) in R v Howe?

Duress also wouldn’t be a defence to attempted murder.

R v Gott

Duress not a defence to attempted murder (R.D. / binding precedent)

How are R v Howe and R v Gott linked?

The persuasive precedent in R v Howe becomes R v Gott’s binding precedent

How does the Supreme Court bind itself / others?

It binds all lower courts and will usually follow its own previous decisions but isn’t bound to.

How is the Court of Appeal bound?

Bound by the SC and its own previous decisions.

How are Divisional Courts (e.g. King’s Bench) bound?

Bound by all courts above and own previous decisions.

How is the High Court bound?

Bound by higher courts but not its own previous decisions.