Dec 31, · Essay on Judicial Precedent in the English Legal System The doctrine of judicial precedent is based on the principle of stare decisis which means ‘to Estimated Reading Time: 14 mins Sep 20, · Judicial precedent is the source of law where past decisions create law for judges to refer back to for guidance in future cases. Precedent is based upon the principle of stare decisis et non quieta movere, more commonly referred to as ‘stare decisis’, meaning to “stand by decided matters”. A binding precedent is where previous decisions must be followed Judicial Precedent Good Essay — Doctrine of Judicial Precedent Essay. It means essays there will be new ratio dicidendi to follow when there is a similar future cases. The judge would judicial the reason by similarity as there precedent no earlier decision to follow. However, judges would try to look for the nearest cases to consult
Judicial Precedent in the English Legal System - blogger.com
It is a common law principle whereby judges are bound to follow previous decisions in cases where the material facts are sufficiently similar and the earlier decision was made in a court above the current one in the court hierarchy. This doctrine of precedent is extremely strong in English law as it ensures fairness and consistency and it highlights the importance of case law in our legal system, judicial precedent good essay.
Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases. A settled court structure is required as judges need to know which decisions they are bound to follow.
The English Court hierarchy was largely established by the Judicature Acts The House of Lords was made the final appeal judicial precedent good essay in under the Appellate Jurisdiction Act, in the Supreme Court became the final appeal court. There are two court systems, criminal and civil, and they both contain various appeal routes in a vertical court structure. As the UK is a member of the EU, the European Court of Justice and the European Court of Human Rights bind all English Courts in respect to matters within their jurisdiction.
For criminal cases the Supreme Court, judicial precedent good essay, formally the House of Lords, is the most superior court in the hierarchy. Order custom essay Judicial Precedent in the English Legal System with free plagiarism report. It binds all courts lower than itself and generally follows its own past decisions.
Both Supreme Court and Court of Appeal have a way of avoiding following their own binding precedent which I will discuss later. They are bound by their own past decisions however they can take a flexible approach in order to protect the liberty of the individual in question.
The last two courts in the hierarchy are the Crown Court and Magistrates 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 High Court, which are bound by the Supreme Court and Court of Appeal, also 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. It is the ratio decidendi which forms the binding precedent which must be followed in future cases of similar fact, the same court and all courts below it.
An example of a ratio decidendi is in the case of R v Howe where the House of Lords held that the plea of duress was no defence against the charge of murder; this judgement became judicial precedent good essay precedent which must be followed by the Supreme Court and all courts below it. It is also important to mention the obiter dictum which forms the remainder of the judgement. An example of an obiter dicta statement is also found in the case of R v Howe where the judge stated that if the charge had been attempted murder rather than murder, then duress would still not have been available as a defence.
This statement was obiter dicta because it did not directly relate to the facts of this particular case. This persuasive precedent was followed in the case of R v Gotts 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 then formed its own binding precedent.
Other persuasive precedents include decisions of the Scottish courts and those made judicial precedent good essay the courts of other Commonwealth countries such as Australia and Canada. This may be because a case with these particular facts has not judicial precedent good essay heard in the English Courts before but may have been heard in another country. This was the case in R v R where the Court of Appeal and House 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 come from the appeal courts. In the Supreme Court and Court of Appeal the cases are heard by more than one judge and sometimes a decision is reached by only a majority of these judges. The judges in the minority will also judicial precedent good essay a judicial precedent good essay 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 The final requirement to ensure effective operation of judicial precedent is that there needs to be accurate records of the decisions of the judicial precedent good essay courts. These can 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.
One 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 used, solicitors, barristers, judicial precedent good essay, a summary of the facts and the judgement itself. There are a number of judicial precedent good essay and disadvantages to judicial precedent and how it operates in the courts in England and Wales, most advantages have corresponding disadvantages.
One advantage is the certainty 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, judicial precedent good essay. In the House of Lords Practice Statement judicial precedent good essay points out how important certainty within the law is.
Another advantage is consistency and fairness in the law so it can be seen that similar cases are decided in a judicial precedent good essay way. In order for law to be credible it must be consistent, judicial precedent good essay.
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 set out in the cases are a response to real life situations and things that may have occurred and this can 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 judicial precedent good essay and there 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 Sexual Offences Actstating that marital rape is a crime.
This will judicial precedent good essay 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 Area Health Authority In this case the House of Lords had to decide whether girls under the age of 16 could be prescribed contraceptives without parental consent, judicial precedent good essay.
The Lords decided that girls could be prescribed 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 unlikely to have to go through a lengthy litigation process, judicial precedent good essay. A major disadvantage of judicial precedent is how rigid it is. The chances are that this may not happen for many years.
Also, the law may become outdated and require modernisation. An example of this is where judges since the 's had felt that the law stating a builder did not owe a duty 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 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 volumes of law reports, the complete official law reports are estimated to run to almost half a million pages. The judgements are often complex and therefore it can be difficult to determine what the ratio decidendi of a case actually is. In the Judicial precedent good essay 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 judicial precedent good essay give more than one ratio, for example in Rickards v Lothian where Lord Moulton gave two ratios for not holding the defendant liable.
Judgements themselves are often long with no clear distinction between comments made and the reasons for the decision. In Dodd's Case 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 judicial precedent good essay 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 undemocratic 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 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 outcomes 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 doctrine 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, judicial precedent good essay.
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. Two cases that demonstrate this process are Balfour v Balfour and Merritt v Merritt In both cases a wife was making a claim against her husband for breach 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 took place after they had separated. This distinguished the case from Balfour, judicial precedent good essay, 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 judicial precedent good essay 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 earlier case is wrong, judicial precedent good essay.
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 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 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. Some alarm was caused in the case of R v Shivpuri 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 has be incorrectly applied.
On the other hand, the House of Lords have often been reluctant to overrule even bad previous decisions, judicial precedent good essay.
This was illustrated in Jones v Secretary of State, where the decision in R v Dowling was allowed judicial precedent good essay stand even though four of the seven Law Lords thought it was wrong, judicial precedent good essay.
The need for certainty is still highlighted in the decision of the House of Lords since 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 judicial precedent good essay system.
However, where these two parallel 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.
AS Law Revision: Judicial Precedent
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— Judicial precedent essay. There are two good principles that are involved in essay precedent, there are ratio decidendi and the obiter dictum. Ratio decidendi is a principle of law precedent which the court reaches its decision Term Papers words 1. Free Essays words 1. A Judicial precedent is where the past decisions of the judicial create Judicial Precedent Essay Research Paper ESSAY a - Реферат In the good of Shaw v DPP the home of Lords held that the crime of conspiracy to deprave cheap morals existed. The conspiracy to deprave public morals consisted of a to corrupt public morals by means of the journal, and the defendants had law rightly convicted Essay on Judicial Precedent ( Words) Article shared by. Here is your essay on Judicial Precedent: Judicial Precedent is another important source of law, it is an independent source of law, where there are no legislations on the particular point in statute Books, and Judicial Precedent works great. Judicial precedent has been accepted as one of the important sources of law in most of the Estimated Reading Time: 10 mins
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