ELS & Constitutional Law UNIT TWO

What does 'stare decisis' mean, and what does it require?

To stand by things decided: cases with the same material facts must be decided the same way

Stare decisis = the doctrine of precedent. A case must be decided the same way as an earlier one if its material (legally relevant) facts are the same.

The four conditions for a proposition to bind in a later case?

The four conditions are:

(1) a proposition of law,

(2) part of the ratio,

(3) decided by a court whose decisions bind the present court,

(4) no relevant distinctions between the cases.

What are the Consistency Principle and the Certainty Principle?

Consistency: like cases treated alike. Certainty: people can expect the same rules to apply to everyone

Precedent lets the public know what the law is, and it's more efficient to apply past decisions than to reinvent the wheel.

In DPP v Johnson [1995], which finding was a matter of LAW rather than fact?

That injecting alcohol into the body is a mode of 'consumption' under the Act

The breath alcohol level is a matter of fact. What 'consumption' means in the Act requires the judge to interpret the statute, so it is a proposition of law.

How did Sir Rupert Cross define the ratio decidendi of a case?

“ Any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion”

The ratio is a binding proposition of law that was necessary to the decision. A judge identifies the material facts, the relevant law, and applies the law to the facts.

What is the ratio in Corkery v Carpenter?

A bicycle is included in the meaning of 'carriage'

This is the point of law the case decided. It is the binding part of the judgment.

What is obiter dictum, and can it bind a future court?

Other things said that were not necessary to the decision. Not binding, but can be highly persuasive

How can you spot obiter dicta?

Signs of obiter: speculation, answering a different point of law, saying what the decision would have been if not bound by precedent, and dissenting judgments. Applying the law to the material facts is where the ratio comes from.

When several judges give separate judgments, what must you do?

Distinguish each judge's ratio from the ratio of the court, as they may reach the same result by different reasoning

How does the number of material facts affect the width of a ratio?

More facts treated as material make the ratio narrower; fewer make it broader

The more facts you treat as material, the fewer future cases will match, so the ratio is narrower and easier to distinguish.

Is the Supreme Court bound by its own previous decisions?

No, but it emphasises certainty and is reluctant to depart where it would disturb contracts, property rights or tax arrangements

Exception to the Court of Appeal (Civil) being bound by its own decisions (Young v Bristol Aeroplane)?

The exceptions in your notes: conflicting decisions; implicitly overruled by the Supreme Court; per incuriam; an interim decision by two judges; inconsistent with a later ECtHR decision.

What does 'per incuriam' mean?

A decision given in ignorance or forgetfulness of an inconsistent statute or a binding authority

How do the civil and criminal divisions of the Court of Appeal relate?

They are not bound by each other. The criminal division has wider discretion to depart from its own decisions

When is the High Court bound by its own decisions?

When sitting as an appellate court it normally binds itself; as a court of first instance it does not (though judges try to follow earlier decisions)

Which courts are NOT strictly bound by their own previous decisions?

Crown Court, and the County, Family and Magistrates' Courts

The inferior courts don't bind any other courts either, since their decisions are first instance and often unreported.

Overruling, Departing and Reversing definitions?

Overruling: higher court sets aside a lower court's principle in a different case. Departing: a court doesn't follow its own earlier decision.

Reversing: an appeal alters the lower court's decision in the same case

A High Court judge is asked to follow a Privy Council statement of law with indistinguishable facts. True or false: the judge is bound?

False: Privy Council decisions are highly influential but not binding

Do judges make law? (Lord Browne-Wilkinson, Kleinwort Benson v Lincoln City Council)

Yes: the whole of common law is judge-made, and the modern view is that judges make new law where there is no precedent or legislation

This is usually uncontroversial, but some decisions, such as R (Miller) v The Prime Minister [2019] UKSC 41, were viewed as an overstep.

How do civil law and common law systems differ?

Civil law: a code that judges apply and Parliament amends.

Common law: statute matters but isn't all-encompassing, and precedent gives certainty and consistency

What are the three factors judges consider when distinguishing a case?

Material facts, legal issues, and policy/context

Match each case to its significance: Donoghue v Stevenson, Williams v Roffey Bros, Corkery v Carpenter.

New precedent in negligence; refined the rule of consideration in contract; a bicycle is a 'carriage'

Donoghue = negligence. Williams v Roffey = consideration. Corkery = bicycle as carriage.

In Pharmaceutical Society v Boots (self-service shop), which later fact might let a judge distinguish it?

The shop was not self-service

Boots held that in a self-service shop, goods on the shelf are not an offer. The customer makes the offer and the shopkeeper accepts. The self-service set-up is a fact the ratio hinged on.

What are the steps for applying or distinguishing a precedent (as in the R v Cairns task)?

1) Identify the legal facts.

2) Use the precedent's reasoning directly.

3) Apply (no material difference) or distinguish (the new facts undermine a fact the precedent hinged on)