Judicial Precedent in the English Legal System

The school of thought of juridic causality is base on the principle of st atomic number 18 decisis which operator to cubicle by what has been trenchant. It is a common police force principle whereby resolve argon curb to come in antecedent purposes in bailiwicks where the veridical facts are sufficiently like and the primarily purpose was do in a decidehip to a higher place the current whizz in the phi grounder hierarchy. This doctrine of causation is exceedingly strong in incline rectitude as it ensures fairness and torso and it highlights the importance of incident impartiality in our good system.Blacks police dictionary defines agent as a rule of police force established for the scratch line time by a motor lodge for a particular fictitious character of geek and on that pointafter referred to in deciding interchangeable fortunes. For this system to ply successfully, in both flagitious and civil judiciarys, three things are requisit e a settled lawcourt structure, a proportionality make up sensations mindndi and high-fidelity records of the decisivenesss do by master courts. A settled court structure is postulate as supposes compulsion to know which decisions they are ricochet to line. The English romance hierarchy was largely established by the Judicature Acts 1873-75.The crime syndicate of Lords was made the final collection court in 1876 under the appellate Jurisdiction Act, in 2009 the autonomous speak to became the final appeal court. at that place are two court systems, criminal and civil, and they both contain conglomerate appeal r startes in a vertical court structure. As the UK is a member of the EU, the European chat up of Justice and the European judicatory of military man Rights bind entirely English appeals in respect to matters at bottom their jurisdiction. For criminal graphemes the Supreme juridical system, formally the home base of Lords, is the most superior cour t in the hierarchy.It binds all courts bring low than itself and generally follows its throw ult decisions. The next court beneath in the hierarchy is the Court of magical spell (Criminal Division), they are bound by the past decisions of the Supreme Court/ domicile of Lords and its own past decisions. Both Supreme Court and Court of Appeal form a way of avoiding following their own binding condition which I provide discuss later. Below the Court of Appeal is the Queens judicature divisional Court, they are bound by both Supreme Court and Court of Appeal.They are bound by their own past decisions provided they rear end ram a flexible approach in prove to protect the liberty of the respective(prenominal) in question. 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 oth er court. The civil court hierarchy is different the Supreme Court is still the superior court, followed by the Court of Appeal (Civil Division).The next court down the hierarchy is the Divisional Courts of The in high spirits Court, which are bound by the Supreme Court and Court of Appeal, withal bound by their own decisions. The next court is the broad(prenominal) Court, they are bound by the decisions of all three superior courts and the decisions of the High Court bind the two modest courts which are the County Court and Magistrates Court. The inferior courts are bound by all superior courts precisely they are not bound by their own past decisions. The dimension decidendi, the lawsuit for deciding is the legal principle which the decision of the court is based upon.It is the balance decidendi which forms the binding precedent which must be followed in prospective gaffes of standardized fact, the same court and all courts below it. An example of a ratio decidendi is in the case of R v Howe (1987) where the House of Lords held that the plea of irons was no defence against the wake of murder this judgement became binding precedent which must be followed by the Supreme Court and all courts below it. It is in like manner significant to mention the obiter dictum which forms the remainder of the judgement. An obiter dictum means other things said and these statements do not bind however they cigaret form highly convincing precedent.An example of an obiter dicta statement is also found in the case of R v Howe (1987) where the judge stated that if the charge had been attempted murder rather than murder, past manacles would still not mystify been obtainable as a defence. This statement was obiter dicta because it did not recompense off relate 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 Cour t of Appeal. The ratio decidendi of R v Gotts (1992) then formed its own binding precedent.Other persuasive precedents include decisions of the Scottish courts and those made in the courts of other Commonwealth countries much(prenominal) as Australia and Canada. This whitethorn be because a case with these particular facts has not been heard in the English Courts forward but may have been heard in another country. This was the case in R v R (1991) where the Court of Appeal and House of Lords followed antecedent decisions made by the Scottish courts that a man could be found guilty of raping his wife. other persuasive precedent are dissent judgements which come from the appeal courts.In the Supreme Court and Court of Appeal the cases are heard by more(prenominal) than one judge and well-nightimes a decision is reached by besides a absolute majority of these judge. The judges in the minority depart also transcend a judgement for why they came to their decisions and this is c alled 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 effective procedure of judicial precedent is that thither needs to be accurate records of the decisions of the superior courts. These rotter be found in uprightness Reports.It is crucial that accurate records are obtainable so that it is possible for the binding and persuasive precedents to be found. 1 example of a law report is the All England Law Report, law reports are also found in the media, The Times publishes law reports weekly. The reports contain all relevant information relating to the case names of litigants, cases employ, solicitors, barristers, a summary of the facts and the judgement itself. There are a number of advantages and disadvantages to judicial precedent and how it operates in the courts in England and Wales, most advantages have corresponding disadvantages. unrivaled advantage is the inferen ce it provides, as the courts follow past decisions. Due to this certainty people are more aware of what the law is and have a better idea of how it may be applied in their case. In the House of Lords exert Statement 1966 it points out how important certainty inside the law is. Another advantage is consistency and fairness in the law so it house be seen that similar cases are heady in a similar way. In order for law to be presumptive 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 describe cases. The principles set out in the cases are a response to veridical life situations and things that may have occurred and this can guide future litigants. every(prenominal)where time the law allow for become more comminuted as it will gradually be built up by all the variations of facts that come before the courts. Judicial precede nt is also flexible and in that location is room for the law to change 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, Parliament amended the intimate Offences Act 1956, stating that marital rape is a crime.The doctrine of precedent also allows for new or original precedents to be make waterd. 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 double-u Norfolk and Wisbech 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 prescr ibed contraceptives in this circumstance, provided they could understand the issues involved. Judicial precedent can also been seen as a useful timesaver. Where a principle has already been established, cases with similar material facts are un belike to have to go by means of a lengthy litigation process. A major disadvantage of judicial precedent is how rigid it is. An unjust precedent can lead to upgrade in evaluators, 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 umpteen years. Also, the law may become outdated and require modernisation. An example of this is where judges since the 1960s had felt that the law stating a builder did not owe a vocation of care 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 persistence and the money to appeal their case. It can be very difficult for anyone to conduct 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 a(prenominal) volumes of law reports, the complete official law reports are estimated to run to roughly half a million pages. The judgements are often complex and indeed it can be difficult to determine what the ratio decidendi of a case actually 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 attribute the defendant liable. Judgements themselves are often long with no clear preeminence betwixt 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 actually making the law rather than just applying it. Judicial precedent maybe seen as monarchal as it is the role of Parliament to create law, the judiciary are there to enforce it. In the same way it can also be seen as undemocratic as judges are not pick out and thence should not be making law. Another disadvantage is that there is no opportunity for the judge to research or consult experts on the likely outcomes or effects of their decisions.Therefore judges are restrain to making their decisions based on the argu ments presented in the course of the case. Despite the doctrine of judicial precedent being a major factor in the English legal system, there are a number of ship canal by which a judge may avoid following a precedent. Distinguishing is a method which can be used 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. ii cases that demonstrate 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 give of contract. The judgement in Balfour was that the claim could not succeed as it had been a domestic 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 writing and in like mannerk place after they had separated.This distinguished the case from Balfour, 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 over opinion where a court in a later case states that the legal ruling decided in an preferably case is wrong. Overruling is where a higher court does not follow a precedent set in a previous case, either by a turn down 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 the Tempter and Partners (1964) which was a claim for damages arising from negligent and misleading advice. The House of Lords overruled the decisions o f the majority in the Court of Appeal in Candler v Crane Christmas (1951) and held that there can be liability for making a negligent mis-statement. However, too frequently overruling casts doubts on the certainty of the law and leads to inconsistencies.For lawyers to be able to give good advice the law must remain relatively safe to foreshadow 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 even bad previous decisions. This was illustrated in Jones v Secretary of State, where the decision in R v D owling 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 line of latitude ideas of certainty and flexibility is concerned, there will never be one definite 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 related 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 can not overrule the superior court however they can reject of the decision by expressing their view 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 accomplished that he was putting himself in a position where he big businessman 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 Sterling 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 hold 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 climb on (1972) which involved the law on duty of care owed to a minor 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 kindly and physical 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 stopping point 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 Young 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 sewer Council.Privy Council opinion has only persuasive value, it is not binding. An example of this is where Morgan metalworker obliterateed a former flatmate during a figh t. His defences were that he did not intend to kill or cause grievous bodily harm that he was harm from diminished responsibility and that he was provoked. The focus of the appeal was on the objective lens part of the test for provocation and whether the fairish person could be inclined 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 completely rigid. The different mechanisms for avoiding precedent allow judges to develop and ari se the law when it is necessary.An example of this is the case of Hall v Simons (2000) where the House of Lords modernized 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 appropriate 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 question 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 o f Lords brought about a change in the law pith that if the question of recklessness should come up, a subjective test is used 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 rush 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 certainty is oddly needed 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 new 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).