1.

Explain the features of binding precedent (6m)

There are primarily three types of Precedent, Original, Binding and Persuasive. Original
Precedent is whereby the case is new and has never ben in trial. For example, the London
Bombings in 2005 was original precedent as the cases were never heard by a UK judge and
therefore ruling would be original precedent. Binding precedent is ‘normal’ precedent if a court
rules previously on a case the same as the one in front precedent would be used. Lastly
persuasive precedent is whereby a lower court makes a decision ruling and a higher court can
or maybe allowed to use the precedent or decision, but it is not legally binding.

2. Explain what ‘ratio decidendi’ and ‘obiter dicta’ (4m)

Ratio decidendi is the reason which are necessary for them to reach their decision. Ratio of a
higher court binds a lower court. The ratio decidendi forms the legal principle which is binding
precedent meaning it must be followed in future cases containing the same material facts. The
obiter dicta are things stated in the course of judgement which are not necessary for the
decisions. For example, in R v Howe & Bannister the House of Lords held that the defense of
duress was not available for murder.

3. Discuss how binding precedent operates in the Supreme Court (8m)

The Supreme Court is the highest court in the land. Its decisions must be followed by all lower
courts. It is bound by no other court. The House of Lords was bound by its own previous
decisions and a rule can only be changed in the House of Lords by an Act of Parliament. The
Lord Chancellor issued a practice Direction which stated the House of Lords would no longer
regard itself as absolutely bound by its own previous decisions. The first use of the practice
statement in civil law was Herrington v BRB where a six-year-old boy was electrocuted and
suffered severe burns where he wondered from a play park onto a live railway line. The railway
line was surrounded by a fence; however, part of the fence had been pushed down and the gap
created had been used frequently as a short cut to the park. Under existing authority of Addie v
Dumbreck no duty of care was owed to trespassers. However, the House of Lords departed
from their previous decisions using the 1966 Practice Direction and held the defendant railway
company liable. In R v Shivipuri the lordships altered a decision given a few years earlier in the
case of Anderton v Ryan.
In the Court of Appeal (Civil Division) it is bound to follow the previous decisions of the HL. If
there are two conflicting decisions of the CA, one must be chosen. The Court of Appeal may
depart from any decision that was made per incuriam or ‘through lack of care’. The per
incuriam decision will lose all binding effect. The Court of Appeal (Criminal Division) is bound to
follow the previous decisions of the House of Lords and its own decisions are binding on lower
courts. It is normally bound by its own previous decisions but since the court is concerned with
the liberty of individuals, the doctrine of precedent is more flexible in the civil division.

4. Discuss the advantages and disadvantages of Binding precedent (8m)

The doctrine of judicial precedent is whereby the court or judges apply legal principles laid
down or applied in previous cases. There are many advantages of binding precedent primarily
being consistency as no legal system can be perceived as fair unless everyone receives equal
treatment. There is certainty and predictability enabling lawyers to advise their clients with
some degree of certainty. Further helps enhance the efficiency as legal rules help guide judges.
If judges had to begin the law anew in each case, they would add more time to the adjudicative
process. Further it is a flexible system as it deals with new situations as they arise or update out
of date rules. Lastly it creates an impartial system as judges are able to base their decisions on
legal rules rather than abstract legal theories.
But binding precedent has its limitations as well. Primarily being there is a degree of rigidity
hence bad decisions are difficult to change. Courts have to be careful to maintain the
separation of powers and to not interfere with the supremacy of parliament. Any attempts to
distinguish unwanted precedents in order to avoid having to follow them, may sometimes lead
to the drawing of vague and imaginary distinctions. It also prevents judges from using their full
potential. Further the nature of law making is undemocratic as a judge’s role can be said to be
applying law passed by Parliament rather than making law. Lastly precedent depends on the
case coming to court which isn’t often due to reasons such as lack of funding.

5. Explain the advantages of Judicial Law making against parliamentary Law making
(6m)
Judicial law-making is law that is made by judges. While Parliamentary law-making is law that is
made by parliament. In Judicial law making there is a certain degree of certainty as judicial
precedent means litigants can assume that like cases can be treated alike. It is also flexible as
case law can make changes far more quickly than parliament, allowing the law to meet the
needs of changing society. Lastly Judicial law-making is detailed practically as case law is made
in response to real situations. Parliamentary law making on the other hand is democratic as
MPs are democratically elected. During debates on proposed laws each MP has the opportunity
to put the point of theirs across. There is Government control as the Government is the
preferred choice of majority of the country’s population. Lastly it is scrutinous process is very
thorough with 3 readings and 2 stages. This ensures several opportunities for debate, scrutiny
and amendments, ensuring the removal of mistake.