Judicial Precedent A Practice Of The Courts LawEssay

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Judicial precedent: Where past decisions of judges are followed in future cases when the facts of thecases are similar. Once a judge decides a legal principle, it is required that is used in future legal caseswith similar issues or facts. This is also known as case law or common law which has developed bybroadening down from precedent to precedent.

Therefore the legal definition of Judicial precedent can be stated as a courts judgment quoted as anauthority for deciding a similar set of facts; a case which serves as authority for the legal principleestablished in its judgement. It refers to the way in which the law is made and amended through thedecisions of judges. Thus, judicial precedent is based on the judges judgement, hierarchy of courts anda good system of law reporting judges.

The judicial precedents doctrine is based on the stare decisis principle - to stand upon decisions andby which precedents are authoritative and binding and must be followed. In practice, this means thatlower courts are bound to apply the legal principles set down by superior courts in earlier cases. Thisprovides balance and certainty in the law.

A precedent is always based upon the two factors - the ratio decidendi which means a reason for thedecision and obiter dictum which means something said by the way and also the decisions made in theprevious relevant cases.

The ratio decidendi of a case is the important part of establishing precedents that binds inferior courtsin the hierarchy. When a judge makes his judgement in a case, he outlines the facts which he findshave been proved on the evidence. Then he applies the law to those facts and reaches at a decision,for which he gives the reason (ratio decidendi). Whereas obiter dictum is a decision given by a judgethat has only incidental bearing on the case in question and is therefore not binding in later cases. Thedecision of the judge may vary according to the facts of the case and is not strictly relevant to the matterin the issue in the original case.

The ratio decidendi is the binding part of a judicial decision whereas an obiter dictum isnt. Though, anobiter dictum may be of persuasive (as opposed to binding) authority in later cases.

Even if any difficulty arises, the judge will give reasons for his decision, however he will not always tellwhat the ratio decidendi of case is, and it is then up to a later judge to figure out (elicit) the ratio of thecase. However, there may be disagreement over what the ratio is and there may be more than oneratio. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating theeffects of a particular decision however; when judicial precedent is used, the judge follows or takes thereference of a decision made in a similar past cases that has already been judged upon and he isruling the same way using the other case as a guideline. Whereas whilst setting judicial precedent thejudge renders a decision in a case of a type that had never been tried, or ruled upon in the past, whichis completely new, and that his verdict would set the 'precedent' by which all future cases might bejudged. Judges, by the way, are not always required to follow precedent in making rulings.

Therefore law reporting, hierarchy of courts and a method of distinguishing between obiter dicta & ratiodecidendi are considered to be the key features of judicial precedent.

The general rule of the precedent is that all courts are bound to follow decisions made by their superiorcourts and appellate courts are usually bound by their own previous decisions.

Any decision made by a superior court is utterly binding on subsequent inferior courts. However,certain of the superior courts consider themselves as bound by their own decisions whilst others dont.

Until 1966 The House of Lords was bound by its own previous decisions when Lord Gardiner LCannounced a change of practice. The Practice Statement [1966] 1 WLR 1234 stated that even thoughthe House of Lords would treat its decisions as normally binding, it would move off from these when itappeared right to do so. This power has been used carefully.

A decision of the House of Lords binds all lower courts but does not regard itself as strictly bound by itsprevious decisions, for example, in Murphy v Brentwood District Council (1990) the House overruled itsearlier decision in Anns v London Borough of Merton (1978) on the issue of a local authority's liability innegligence to prospect purchasers of property.

The Court of Appeal is bound by decisions of the House of Lords although it considers them to bewrong. However in Young v Bristol Aeroplane Co Ltd [1944] KB 718, the Court of Appeal held that itwas bound by its own previous decisions subject to the following three exceptions: i. If there is conflictbetween own previous decisions, the Court of Appeal must decide which is to be followed and which isto be rejected.

ii. The Court of Appeal must not follow its own decision which cannot stand with a decision of theHouse of Lords even if its decision hasnt been expressly overruled by the House of Lords.

iii. The Court of Appeal need not to follow its own decision if satisfied that it was given per incuriam(literally, by carelessness or mistake).

The High Court and the county courts are bound by the decisions of the court of appeal.

Principally there is no difference in the application of stare decisis in the civil and criminal divisions ofthe Court of Appeal. In practice, in addition to the Young exceptions, because a person's liberty may beat stake, precedent is not followed as strictly in the criminal division however judges tend to follow thedecisions of the high court for the sake of certainty. For example R v Taylor [1950] 2 KB 368.

The High Court is bound by the decisions of Court of Appeal and the House of Lords however it is notbound by other High Court decisions. The county courts are bound by the decisions of individual highcourts. House of Lords and the Court of Appeal binds Divisional Court and normally follows a previousdecision of another Divisional Court but if they believe that the previous decision was wrong, they maydepart. For eg. R v Greater Manchester Coroner, ex parte Tal [1985] QB 67.

The Crown Court judgements are not binding, though they are of persuasive authority. Therefore,Crown Court judges are not obliged to follow them. The decisions made by the judges of county courtsand magistrates courts are not binding. They are not usually reported in the law reports as they arerarely important.

Judicial precedent is one of the most important source of English law. An original precedent createdand applied a new rule whereas the later decisions, of the higher courts, can have a number of effectsupon precedents. Particularly they may be:

Reversed: where on appeal in the same case the decision is reversed and the appeal court substituteits own decision.

Overruled: Overruling can occur if the previous court fail to apply law correctly, or because the latercourt considers that the rule of law contained in the previous ratio decidendi is no longer desirable.then a higher court can overrule a decision made in an earlier case by a lower court. For example, theCourt of Appeal can overrule an earlier High Court decision.

A refusal to follow: the court may refuse to follow the earlier decision especially when it is not bound bythe decision or can not overrule it but does not wish to follow it.

Distinguished: where an earlier case is rejected as authority, either because the different material factsor because the statement of law in the previous case is too narrow to be properly applied to the new setof facts.

Explained: a judge may seek to study or discuss an earlier decision before applying it or distinguishingit, thus the impact of the earlier case is varied in the circumstances of the present case.

A decision which is reached per incuriam is one reached by carelessness or mistake, and can beavoided. In Morelle v Wakeling [1955] 2 QB 379 Lord Evershed MR stated that "the only case in whichdecisions should be held to have been given per incuriam are those of decisions given in ignorance orforgetfulness of some inconsistent statutory provision or of some authority binding on the courtconcerned".

In Secretary of State for Trade and Industry v Desai (1991) The Times 5 December, Scott LJ said thatto come within the category of per incuriam it must be shown that the decision involved some manifestslip or error but also that to leave the decision standing would be likely, inter alia, to produce seriousinconvenience in the administration of justice or significant injustice to citizens.

However, this rule does not permit the Court of Appeal to ignore decisions of the House of Lords. InCassell v Broome [1972] AC 1027 Lord Denning MR held the House of Lords' decision in Rookes vBarnard [1964] AC 1129 to be per incuriam on the basis that it ignored previous House of Lords'decisions. He was rebuked sternly by the House of Lords who considered that the Court of Appeal'really only meant' that it 'did not agree' with the earlier decision:

"Even if this is not so, it is not open to the Court of Appeal to give gratuitous advice to judges of firstinstance to ignore decisions of the House of Lords." (Lord Hailsham)

There are three types of Precedent, Original, Binding and Persuasive. Precedent can be used insteadof statutory law in civil cases. Precedent is also known as a common-law, whereby judges follow theoutcome.

Original Precedent: If the point of law is absolutely new and has never been decided before, thedecision then judge comes to will form a new precedent for subsequent cases. These cases arepersuasive but not binding on the court.

Original Precedent is whereby the case is new and has never been in trial, for eg. the cases heardregarding the 7th July 2005 London bombings were Original Precedent as the cases were never heardbefore a UK judge and hence this rulings would be Original Precedents.

Binding Precedent:

When a case involves a point of law, the lawyers for both sides will research past cases to try and finddecisions that will help their clients win the case. A past decision is only binding if the decision is at theright level in the hierarchy and the facts of the second case are sufficiently similar and also Only theratio decidendi of the earlier case is binding

If a court previously decides on a case the same as the one in front, precedent would be used. For eg,if a person commits murder and there are circumstances whereby the judge ruled that this person isnot guilty, then a case in equal standing or the case having the same circumstances, in a later rulingcan use the precedent to find the person not guilty.

Persuasive Precedent:

A persuasive precedent is not completely binding on a court but may be applied. The examples can begiven as:

a. Decisions of English courts lower in the hierarchy. For eg, the House of Lords may follow a Court of

Appeal decision, and the Court of appeal may follow a High Court decision, even though not strictlybound to do so.

b. Decisions made by the Judicial Committee of the Privy Council.

c. Decisions made in the courts in Scotland, Ireland, the Commonwealth (especially Australia, Canadaand New Zealand), and the USA. These decisions are usually cited specially where there is a shortageor absolute lack of English authority on a point.

d. Obiter dicta of English judges.

Judges use a tool called Distinguishing to avoid following a previous decision which they wouldotherwise be bound to follow. Distinguishing helps to keep judicial precedent and the law flexible.

Where a judge founds that the material facts of the present case to be considerably different from theearlier case, then he may distinguish both d cases and refuse to follow earlier decision. For eg. Merrittv Merritt (1971) and Balfour v Balfour (1919)

Judicial Law Making

Decisions of judges are used to develop many areas of the law, for eg. Tort of negligence.

The speed at which the law develops mostly depends on whether the judge is an active or passive lawmaker.

in the case of R v R (1991) an active law making can be seen, where the House of Lords ruled thatrape within marriage was a criminal offence. Also in the case of C v DPP (1995) An example of passivelaw making can be seen where the House of Lords refused to change the presumption about criminalresponsibility of children under the age of 14, thinking that it was the job of Parliament to make suchmajor changes to our law.

Like every coin has two sides, there are also advantages and disadvantages of Judicial Precedent

Advantages

* There is certainty in the law. Only by looking at existing precedents it is possible to forecast adecision and plan accordingly.

* There is uniformity in the law. Similar cases will be treated in the same way. This helps to give thesystem a sense of justice and to make the system acceptable to the public.

* Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables thesystem to change and to adapt to new situations.

* Judicial precedent is practical in nature. It is based on real facts, unlike legislation.

* Judicial precedent is detailed. There is a wealth of cases to which to refer.

Disadvantages

* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number ofreasons.

* Rigidity - The system is too rigid and does not allow the law to develop enough.

* Injustice - The strict rules of judicial precedent can create injustice in individual cases

* Slow Development - The law is slow to develop under the system of judicial precedent. The lawcannot be changed until a case on a particular point of law comes before one of the higher appellate

courts.

* Confusion - Hundreds of cases are reported each year, making it hard to find the relevant precedentwhich should be followed.

* Complexity - The law is too complex with thousands of fine distinctions.

Judicial Precedent A Practice Of The Courts Law Essay