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The Doctrine of Judicial Precedent
The Doctrine of Judicial precedent is based on a principle of `stare decisis' to let the decision stand.
Under this doctrine, decisions of the higher courts bind the lower courts. For this doctrine to operate
successfully three things are necessary; ratio decidendi, a settled court structure and accurate law
Ratio decidendi, reason for deciding, sets out the legal principles a judge used when ruling a case. Ratio
is binding precedent. In R v Nedrick (1986) the ratio stated that if death or serious injury was a virtual
certainty then oblique intention can be inferred, this was followed in R v woollen (1997). In R v
Cunningham (1957) the ratio stated that to be reckless the risk of unlawful consequence must be
known and a decision is made to take that risk.
Obiter dicta, things said by the way, is persuasive precedent. Other forms of persuasive precedent
include; decisions from the lower courts, for example in R v R (1991) the House of Lords followed the
Court of Appeal decision to make martial rape a criminal offence, decisions from courts outside the
English hierarchy, for example the Australian Wagon Mound case (1961), or a statement made by a
dissenting judge. In R v Howe (1987) it was stated, obiter, that duress would not be a defence for
attempted murder. This was later followed in R v Gotts (1991). If there is no precedent then original
precedent is made, NHS Airdale Trust v Bland (1993).
European Court of Justice binds all lower courts but is not bound by its own past decisions. The House of
Lords binds all other English courts but may depart from its own decisions using the 1966 Practice
statement. The court of Appeal is bound by its own decisions unless, the decision has been made per
incurium (by mistake), there are two conflicting decisions or the House of Lords has explicitly overruled.
The criminal division may also depart if an individual's liberty is at risk, R v Spencer (1985).
The vast amount of cases means a comprehensive system of law reporting is vital. In every case that
precedent is set the judgement is written and published in reports, i.e. the All England Law Reports and
Weekly Law Reports.
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Advantages of Precedent
With courts following past decisions people know what the law is and how it is likely to be applies in
their case; it allows lawyers to advise their clients on the likely outcome of their case. It also allows
people to operate their businesses knowing that financial and other arrangements they make are
recognised by law. The house of Lords Practice statement (1966) points out how important certainty is.…read more
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Courts may distinguish the present case from that in which the precedent was set, if a judge decides
that the facts are sufficiently different then precedent need not be followed. The court of appeal used
this method in Boardman v Sanderson (1964) where it departed from the decision in King v Phillips
(1953). In both cases the parent heard screams as their child's bike was run over by a car. Neither
witnessed the accident but both claimed to suffer nervous shock.…read more
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Advantages of AVOIDING Precedent
One advantage of being able to avoid precedent is that judges can develop the law. This prevents
Parliament from having to legislate and means changes can occur naturally when suitable cases come
before the courts rather than months or years later when Parliament considers the matter.…read more