Judicial Precedent in the English Legal System

The doctrine of discriminative common im representativeiality is based on the principle of stargon decisis which means to stand by what has been mulish. It is a common natural honor principle whereby assesss be entrap to respect old lasts in efforts where the strong facts atomic number 18 amplely equal and the prior close was do in a woo above the actual one in the hail power structure. This doctrine of occasion is extremely stiff in English rightfulness as it ensures fairness and consistency and it highlights the splendour of faux pas righteousness in our judicatory-ordered system.Blacks Law Dictionary defines spring as a rule of integrity established for the first cartridge prolonger by a court for a particular type of gaffe and thereafter referred to in deciding similar theatrical roles. For this system to operate successfully, in both vile and civil courts, three things argon required a gradetled court structure, a ratio decidendi and acc urate records of the closes do by superior courts. A get dressedtled court structure is required as essays need to know which decisions they argon bound to happen. The English speak to power structure was largely established by the Judicature pretends 1873-75.The Ho theatrical role of Lords was make the final c entirely d birth court in 1876 chthonian the Appellate jurisdiction incite, in 2009 the controlling woo became the final appeal court. There atomic number 18 two court systems, criminal and civil, and they both conceal various appeal routes in a vertical court structure. As the UK is a component of the EU, the European move of Justice and the European cost of Human Rights cleave all English hooks in respect to matters within their jurisdiction. For criminal cases the commanding motor lodge, descriptorally the family line of Lords, is the most superior court in the power structure.It binds all courts lower than itself and generally conform tos its own past decisions. The next court under in the hierarchy is the courtroom of allurement (Criminal Division), they be bound by the past decisions of the tyrannical Court/Ho habituate of Lords and its own past decisions. both Supreme Court and Court of invoke wee a behavior of evacuateing following their own stick to reason which I willing dissertate later. Below the Court of Appeal is the Queens Bench divisional Court, they are bound by both Supreme Court and Court of Appeal.They are bound by their own past decisions however they mickle take a flexible approach in order to defend the liberty of the individual in incertitude. The last two courts in the hierarchy are the Crown Court and Magistrates Court. These courts are bound by the Supreme Court, Court of Appeal and Queens Bench Divisional Court however they are non bound by their own decisions and they do non bind any some other court. The civil court hierarchy is different the Supreme Court is still the superior co urt, followed by the Court of Appeal (Civil Division).The next court down the hierarchy is the Divisional Courts of The high up Court, which are bound by the Supreme Court and Court of Appeal, besides bound by their own decisions. The next court is the High Court, they are bound by the decisions of all three superior courts and the decisions of the High Court bind the two inferior courts which are the County Court and Magistrates Court. The inferior courts are bound by all superior courts but they are not bound by their own past decisions. The ratio decidendi, the reason for deciding is the legal principle which the decision of the court is based upon.It is the ratio decidendi which forms the binding precedent which mustiness be followed in future cases of similar fact, the akin court and all courts below it. An face of a ratio decidendi is in the case of R v Howe (1987) where the class of Lords held that the plea of bondage was no self-renunciation against the charge of m urder this understanding became binding precedent which must be followed by the Supreme Court and all courts below it. It is too important to rear the obiter dictum which forms the remainder of the perceptiveness. An obiter dictum means other things said and these statements do not bind however they so-and-so form highly cogent precedent.An congresswoman of an obiter dicta statement is alike undercoat in the case of R v Howe (1987) where the judge stated that if the charge had been move murder kinda than murder, thence duress would still not have been available as a defence. This statement was obiter dicta because it did not directly have-to doe with to the facts of this particular case. This persuasive precedent was followed in the case of R v Gotts (1992) where a defendant charged with attempted murder tried to use the defence of duress in the Court of Appeal. The ratio decidendi of R v Gotts (1992) then formed its own binding precedent.Other persuasive precedents accept decisions of the sparing courts and those made in the courts of other Commonwealth countries such as Australia and Canada. This may be because a case with these particular facts has not been comprehend in the English Courts before but may have been perceive in another country. This was the case in R v R (1991) where the Court of Appeal and erect of Lords followed previous decisions made by the Scottish courts that a man could be found guilty of raping his wife. Another persuasive precedent are dissenting judgements which interject from the appeal courts.In the Supreme Court and Court of Appeal the cases are heard by to a greater extent than one judge and some snips a decision is reached by nevertheless a majority of these judges. The judges in the minority will in any case give a judgement for why they came to their decisions and this is called a dissenting judgement. A dissenting judgement was followed by Lord Denning in the case of Candler v Crane Christmas (1951). The final requirement to ensure establishive operation of judicial precedent is that there needs to be accurate records of the decisions of the superior courts. These brush aside be found in Law Reports.It is crucial that accurate records are available so that it is possible for the binding and persuasive precedents to be found. 1 compositors case of a police force of nature report is the All England Law Report, law reports are to a fault found in the media, The Times publishes law reports weekly. The reports contain all relevant information relating to the case names of litigants, cases utilise, solicitors, barristers, a compendium of the facts and the judgement itself. There are a number of utilitys and dis reinforcements to judicial precedent and how it operates in the courts in England and Wales, most advantages have corresponding disadvantages.One advantage is the conclusion it provides, as the courts follow past decisions. Due to this matter of course flock are more(prenominal) aware of what the law is and have a disc all over idea of how it may be applied in their case. In the mansion house of Lords example didactics 1966 it points out how important reliablety within the law is. Another advantage is consistency and fairness in the law so it throw out be seen that similar cases are decided in a similar way. In order for law to be credible it must be consistent. For example, the ratio of R v Howe that duress is no defence to the charge of murder must be followed in cases of similar material fact.There is a wealth of detail contained in the reported cases. The principles identify out in the cases are a response to real tone situations and things that may have transcendred and this pot guide future litigants. Over time the law will become more precise as it will gradually be built up by all the variations of facts that come before the courts. Judicial precedent is also flexible and there is get on for the law to switch over as the Supreme Court can use the Practice Statement to overrule cases. An example of flexibility is in R v R, after the judgement was made, fantan amended the Sexual Offences numeral 1956, stating that marital rape is a crime.The doctrine of precedent also plys for sweet or original precedents to be created. This will occur when there are no previous decisions on the case before the court or there is no legislative provision. Therefore an original precedent makes legal provisions for a matter for which there was previously no law. An example of this, where the matter had no come before the court before and Parliament had no guidance to offer, is found in Gillick v West Norfolk and Wisbech playing area Health Authority (1985). In this case the House of Lords had to decide whether girls under the age of 16 could be prescribed contraceptives without parental consent.The Lords decided that girls could be prescribed contraceptives in this circumstance, provided they could understand the is sues abstruse. Judicial precedent can also been seen as a useful timesaver. Where a principle has already been established, cases with similar material facts are un in all likelihood to have to go through a lengthy litigation process. A major disadvantage of judicial precedent is how rigid it is. An unjust precedent can lead to further injustices, as once the Supreme Court sets an unjust precedent it wont be overruled until a case with similar facts goes on to the Supreme Court on appeal.The chances are that this may not happen for many grades. Also, the law may become outdated and require modernisation. An example of this is where judges since the 1960s had matt-up that the law stating a builder did not owe a barter of interest to persons they had sold a house to was unfair. Lord Denning made obiter comments regarding this to the effect that a duty should be owed. However the law was not changed until 1978 in Batty v Metropolitan Property Realisations Ltd where it was held that a duty of care was owed.sometimes the law will only be changed if an individual had the courage, the tenacity and the money to appeal their case. It can be very difficult for anyone to dole out thorough research into the law hundreds of judgements are made every year so it can be hard to discover the precise law on a matter. In order to find this out a person may have to search through many volumes of law reports, the complete official law reports are estimated to run to almost fractional a million pages. The judgements are very much complex and therefore it can be difficult to determine what the ratio decidendi of a case real is.In the Court of Appeal and Supreme Court there is more than one judgement to consider and a common ratio must be decided by the judges in future cases. A judge may also give more than one ratio, for example in Rickards v Lothian (1913) where Lord Moulton gave two ratios for not holding the defendant liable. Judgements themselves are often long with n o clear distinction surrounded by comments made and the reasons for the decision. In Dodds Case (1973) the judges in the Court of Appeal were unable to find the ratio in a decision of the House of Lords.Also, the use of distinguishing to avoid past decisions have lead to some areas of law becoming very complex. It can also be argued that judges are overstepping their constitutional role by genuinely reservation the law rather than just applying it. Judicial precedent maybe seen as undemocratic as it is the role of Parliament to create law, the judiciary are there to put on it. In the same way it can also be seen as undemocratic as judges are not elected and therefore should not be making law. Another disadvantage is that there is no opportunity for the judge to research or consult experts on the likely vector sums or effects of their decisions.Therefore judges are confined to making their decisions based on the arguments presented in the course of the case. Despite the doctrin e of judicial precedent being a major factor in the English legal system, there are a number of ways by which a judge may avoid following a precedent. Distinguishing is a method which can be employ by a judge to avoid following a precedent. If a judge finds that the material facts of a current case are sufficiently different from those of a previous precedent and can draw a distinction between them, then he is not bound by the previous decision.Two cases that turn up this process are Balfour v Balfour 1919) and Merritt v Merritt (1971). In both cases a wife was making a claim against her husband for breach of recoil. The judgement in Balfour was that the claim could not succeed as it had been a internal arrangement rather than a legal one and therefore was not legally binding. In Merritt the court held that there was a legal contract between husband and wife and the agreement had been made in report and took place after they had separated.This distinguished the case from Balfou r, the agreement in Merritt was not just a domestic arrangement, and it was a legally enforceable contract. This provided sufficient differences between the cases that the judge in Merritt did not have to follow the judgement made in Balfour. Another mechanism which can be used by judges to avoid following precedent is overruling where a court in a later case states that the legal ruling decided in an to begin with case is wrong. Overruling is where a higher court does not follow a precedent set in a previous case, either by a lower court or by itself.This may occur when a higher court overrules a decisions made in an earlier case by a lower court. An example of a superior court overruling a previous precedent set by a lower court is Hedley Byrnes v Heller and Partners (1964) which was a claim for damages arising from negligent and misleading advice. The House of Lords overruled the decisions of the majority in the Court of Appeal in Candler v Crane Christmas (1951) and held that t here can be liability for making a negligent mis-statement. However, too often overruling casts doubts on the certainty of the law and leads to inconsistencies.For lawyers to be able to give goodness advice the law must remain relatively safe to predict and this not the case if senior judges use every available opportunity to reverse the decisions of their predecessors. Some alarm was caused in the 1986 case of R v Shivpuri (1986) which was the first use of the Practice Statement in a criminal case. The House of Lords overruled their own previous decision made in Anderton v Ryan which had only been made twelve months earlier as they believed that the law (Criminal Attempts Act 1981) has be incorrectly applied.On the other hand, the House of Lords have often been reluctant to overrule sluice bad previous decisions. This was illustrated in Jones v Secretary of State, where the decision in R v Dowling was allowed to stand even though four of the seven Law Lords thought it was wrong. The need for certainty is still highlighted in the decision of the House of Lords since 1966. Both of these practises can be useful in allowing flexibility within the law but can also lead to uncertainties and inconsistencies which undermine the reliability of the system.However, where these two parallel ideas of certainty and flexibility is concerned, there will never be one decisive solution to satisfy all. Disapproving can also be used by judges to avoid following precedent this is where a judge states in his judgement that he believes the decision in an earlier case is wrong. This may occur where the present case is on a relate point of law but the point of law is not sufficiently similar for the earlier decision to be overruled. It can also occur where the judge in a lower court in the hierarchy than the court which made the original decision.In this situation the lower court cannot overrule the superior court however they can disapprove of the decision by expressing their vi ew that it was wrong. An example of this is found in the case of R v Hasan (2005), this case was about the availability of the defence of duress by threats, to a criminal offence. The main point of the case was whether a defendant could use the defence of duress if he should have realised that he was putting himself in a position where he might be pressurised into committing an offence.Reversing is similar to overruling however it occurs where a higher court does not follow precedent set by a lower court in the same case. Reversing is where the same case has gone to appeal and the appeal court reaches the opposite decisions to that of the lower court. An example of reversing is found in Fitzpatrick v superior House Association Ltd (2000). In this case the Court of Appeal refused to allow the homosexual partner of a deceased tenant to take over the tenancy due to regulations laid out in the Rent Act 1977.On appeal the House of Lords reversed the decision of the Court of Appeal. The Practice Statement 1966 was issued by the House of Lords, declaring their intention not to be bound by their own previous decisions. The Practice Statement allowed the House of Lords to change the law if they believe that the decision made in an earlier case is wrong. It gave them to the flexibility to refuse to follow an earlier judgement when it appears right to do so. This was shown in the case Herrington v British Railways Board (1972) which twisty the law on duty of care owed to a babe trespasser.In the case of Addie v Dumbreck (1929), the judgement was that an occupier of land would only hold a duty of care for injuries to child trespassers if they were caused deliberately. In Herrington the Lords held that social and sensible conditions had changes since 1929 and therefore the law should also change. The judgement in Herrington was that land owners did owe a duty to prevent injury or death to child trespassers. The Court of Appeal can also refuse to follow its own previous decisions under three exceptions that were bought up in the case of immature v Bristol Aeroplane (1944) These exceptions are as follows If a previous decision conflicts with a later House of Lords (Supreme Court) decision, it must follow the decision of the House of Lords if there are two conflicting previous decisions then the Court of Appeal must choose between them. If its previous decision was made per incuriam e. g. mistakenly or without care If the House of Lords (Supreme Court) has overruled a previous decision of the Court of Appeal There is an additional reason for the Court of Appeal to depart from following its own past decisions and that is where it has been disapproved by the posterior Council.Privy Council opinion has only persuasive value, it is not binding. An example of this is where Morgan Smith killed a former flatmate during a fight. His defences were that he did not intend to kill or cause grievous bodily harm that he was suffering from small-scale responsib ility and that he was provoked. The focus of the appeal was on the objective part of the test for provocation and whether the reasonable person could be given certain characteristics of the accused, in this case the characteristic of having a severe depressive illness. The Court declined to follow the opinion in Luc Thiet Thuan v R (1996).It is also important to mention in the effect of the Human Rights Act 1998 on judicial precedent. If the precedent was set before the Human Rights Act came into force, the precedent may be contrary to it. As with judicial precedent itself, there are also a number of advantages and disadvantages to the avoidance of precedent by the courts. One advantage is that it allows potential for growth and means that case law is not tout ensemble rigid. The different mechanisms for avoiding precedent allow judges to develop and modernise the law when it is necessary.An example of this is the case of Hall v Simons (2000) where the House of Lords modernised the law and held that barristers could be held accountable for negligently presenting a case in court. In this case the court refused to follow the decision made in the case of Rondel v Worsley (1967) as it was deemed that the commercial world had changed significantly since 1967. Sometimes precedents can be developed to a point in which they are seen to be unfair, avoiding precedent allow these unfair laws to be replaced with more earmark ones.In the case of R v R and G (2003) which involved two very young defendants convicted of arson, the House of Lords used the Practice Statement to avoid following the precedent set in the case of Caldwell (1981). The interrogate facing the House of Lords was whether the defendants had foreseen the risk they held it was unfair to judge the actions of an 11 and 12 year old by the standard of a reasonable person. The House of Lords brought about a change in the law meaning that if the question of recklessness should come up, a subjective test is us ed which requires the defendant to have foreseen the risk.A disadvantage of avoiding precedent is that the law changes as a result, creating laws retrospectively. This can be seen as being unjust, as the precedent that is set applies to events that have already happened. It may be that the defendant in a case committed an act that at the time of commission was actually within the law. This was the case in R v R (1991), at the time of the attack, the law stated that a man could not be found guilty of raping his wife. Due to the retrospectively law making, the defendant was found guilty and imprisoned.When there is a chance that a judge may avoid precedent it can remove the certainty within the law and make the outcome of some cases uncertain. This is unwelcome as justice requires that cases and defendants are treated in the same way. It also causes problems for legal professionals, who will not be able to advise with certainty on the likely outcome of a case. In criminal law certaint y is particularly demand because the liberty of the defendant is at stake. In the case of Howe (1987), the House of Lords held that duress was no defence for murder, whether the defendant is the principle or an accessory.This case overruled the earlier House of Lords decisions in DPP v Lynch (1975), where it was held that duress was available as defence when charged with being an accessory to murder. Also, avoiding judicial precedent does not conform with the idea of separation of power. Only Parliament should create newborn law and it is the role of the judiciary to apply it. However when judges avoid following precedent they inevitably create new law. 1. Blacks Law Dictionary, p. 1059 (5th ed. 1979).