Law Judicial Precedent

Judicial applies to the common law which canbe defined as judge made law that is common to England and Wales. Because judges primary role is to enforce law rather than make law, when deciding a case a jdge must follow and apply an existing rule of law that has been created in an earlier case relating to the same circumstances. Precedents are therefore said to be binding on other courts. Te latin term is stare decisis which means 'stand by what has been decided'. This ensures that all similar cases are treated the same which supports the idea of certainty and fairness in the law.

Desceribe Law Reporting

The doctrine of precedent requires judges to follow a rule of law created in an earlier case relating to the same situation. It is therefore essential that lawyers and judges can find the law which they must apply. The law reporting system provides a reference point for lawyers to find cases and the relevant law in order to apply to cases in order to reach a decision. There are various volumes of law reports including the 'All England Law reports' and the 'Weekly Law Reports'. Also the eletronic one LEXIS and JUSTIS.

Describe Court Hierarchy 

The more superior courts that set binding precedents. Lower courts are bound to follow precedents set by higher courts. Some lower courts can set precedents but these can be overruled by a higher court at a later date. However, the Magistrates' Court, Crown Court and the County court being the lowest courts in the court hierarchies, these cannot set binding precedents, only persuaive precedents. 

Describe Ratio Decidendi 

Where a judge is deciding a case and can find no existing law on the situation s/he must make a new rule of law. The rule of law which is being followed [or that has been created] is called the ratio decidendi. This is stated in th judgement which is the judges final speech. The judge will summarise the case and then declare the law which s/he will follow to decide the case. Where no law exists the judge will state the new ruleof law which s/he has created. This is known as an original precedent. Examples: 

• R v R 1991- Ratio Decidendi- a man can be guilty of **** even if he is married to the victim.
• R v Woollin 1998- Ratio Decidendi- that foreseeing death as a virtual certainty is inlaw equivalent to 'intending death'.

Describe Obiter Dicta 

Obiter Dicta can be translated as 'sayings by the way'. The judgement contains many other things said other than the actual ratio decidendi. obiter Dicta is the term given for everything else, other than the ratio decidendi, that is said in the judgement. 

Example: R v Howe 1987- The RD confirmed that duress cant be a defence of murder. The judge also said it couldn't be a defence of attempted murder. Which was then used as persuasive evidence in Golts 1992. 

Obiter Dicta can be of importance for judges in later cases. Sometimes a judge will speculate on what his decision might have been if the facts of the case had been different. Should these facts arise in a later case and there is no existing legal rule to apply, the later judge may consider the previous judges speculation and adopt it as the basis for a new ratio decidendi. Obiter Dicta is not binding on future judges but where no law exists it is said to be a persuasive precedent which the judge can adopt should s/he wish to.

Following Precedent 

Key roles of judges is to apply and enforce existing law. They are not the primary law makers. Where there is an appropriate judicial precedent which exists the judge must apply this rule of law to ensure that all cases are treated the same in the interests of justice. 

Avoidance of Precedent 

Sometimes, however, judges will meet with meet with a precedent, which if applied may result in an unjust decision. The following are established ways in which a judge can avoid an awkward precedent in limited circumstances;

Reversing- This occurs where a case has gone to appeal and the higher court reaches the opposite decision of the lower court before it. 

Tomlinson v Congleton BC 2004- sumpreme court reversed the decision of the Court of Appeal civil decision that had allowed a trespassers compensation claim. The Sumpreme Court narrowed the application of the law relating to trespassers such that the claimant didn't get his compensation.

Fitzpatrick v Sterling House association 2000-  sumpreme court reversed the decision of the Court of Appeal which had denied a homosexual to take over the tenacy of his deceased partner on the basis there was not the required 'family link'. The sumpreme court decided that same-sex partners had the same family connection as heterosexual couples. 

Distinguishing-  This is the main device used by judges in court to avoid a precedent. Where the facts of the previous case containing the precedent are similar, but not exactly the same, and the judge believes an unjust decision will result by following it, he can avoid the precedent by distinguishing the facts in the case on hand from that of the previous case. Both rules of law will remain valid and sit side by side.

Merritt v Merritt was distinguished from Balfour v Balfour 1919-  in Balfour a legally binding agreement between husband and wife was declared invalid. In Merritt the court declared such an agreement as legally binding but the subtle difference in facts was that the Merritts had legally seperated when they made the agreement.

Disapproving-  a judge can avoid a precedent if it is obsecure [cannot be understood] or made 'per incuriam'; [without proper care]. This is a method which allows a judge not to follow a precedent wheres/he thinks the precedent is wrong. 

Murphy v Brentwood DC disapproving Anns v Merton LBC 1978-  In Anns v Merton a new ratio decidendi had been created that allowed compensation claims for detective buildings from the local Authorities who had negliently failed to inspect the property. This was heavily criticised in Murphy and the Sumpreme court overruled it. 

Overruling-  this is where a higher court doesn't follow a precedent of a lower court set in a previous case. Higher courts can overrule precedents of a lower court if they believe the law is wrong or perhaps out of date. 

Hedley Byrne v Hellor 1964 overruled Candler v Crane Christmas 1951- Candler had decided that no claim for compensation could be made to a person suffering loss because a defendant had given negligent advice. Hedley Byrne changed the law to make such claims possible. 

House of Lords [Supreme Court] Pratice Statement 1966- We have said that only a higher court can overrule the precedent of a higher court. This of course raised the question, what if a ratio decidendi created in the Supreme Court is later decided to be wrong or outdated? This question was resolved by the HofL [SC] Pratice Statement 1966 when Lord Gardiner made a statement that the Supreme Court could overrule its own precedents in such circumstances, 'when it appears right to do so'.

Lord Gardiner said that this should only be done rarely otherwise the law would lose its certainty and predictability- the main aim of the principle of binding precedent. 

Herrington v British Rail Board1972 overruled Addie v Dumbreck 1929-  The ratio decidendi in Adiie was that a trespasser couldn't make a claim for sompensation if injured whilist trespassing on someone's land. Herrington overruled this to make such claims possible.

Court of Appeal- the CofA have often complained that the 1966 Pratice Statement doesn't extend to them. They have argued that as many cases end in the Court of Appeal they should be able to overrule their own decisions. It has however been confirmed that as a general rule the CofA cannot over their own precedents. There are a few exceptions to this rule. These are; 

• The CofA criminal division has flexibility to overrule its own precedent to prevent a person being wrongly imprisoned. 

Also exceptions in three situations as discussed in Young v Bristol aeroplane co. 1944-

• When the CofA precedent conflicts with a Supreme Court precedent
• Where the decision was made per incuriam 
• Where there are two conflicting decisions. 

Advantages 

Old & outdated law can be replaced-  allows law to develop slowly as society changes. Eg. in R v R, this reflects society's support of right of women. 

Prevents cases being decided unjustly if precedents have evidently been made per incuriam or in error- where an error has been made judges can correct it there and then to avoid an unjust result. This is particularly important if the D would have otherwise have gone to prison. The Court of Appeal criminal division can overrule their own precedents. 

Quicker for judges to change law compared to Parliament- parliament doesn't have time to review all points of law and even where it does so this has to be done by the legislative process which is lengthy and slow. Meanwhile D's would be subject to unfair law.  

Disadvantages

Removes certainty and predictability- if judges can refuse to follow precedent this removes the certainty and predictability of the system. It becomes possible for D's to be treated differently which is unfair. For legal system to be just it should treat all people the same.

Judges usurping Parliament's role as law maker-  A judges role is primarily as law enforcer which suggests that judges should follow existing law. Where judges avoid precedent they are effectively making new law which is truly the role of Parliament as the elected body. Law made by judges is effectively undemocratic as judges are not elected.

Practice Statement only applies to the Supreme Court-  very few cases are given leave to appeal to the Supreme Court and so therefore very few cases reach the Supreme Court. It has been argued that the pratice statement should apply of the CofA as in reality this is the final appeal court for most cases. As they are unable to overrule their own decisions old and outdated law will not be changed and unjustices may occur. 

Advantages

Makes the law certain and predicable- the system of precedent was created to ensure that the law remains certain and predictable. Lawyers can advise clients as to the likely success and whether it is worth pursuring. People are aware that they are conducting themselves in accordance with the law

Consistency- for a legal system to be just everyone must be treated equally. The system of precedent when followed strictly, ensures that the same rule of law is applied in every case treating everyone the same.

Specfic and Precise- as a rule of law is created for a specific case on hand it can be written specfically and precisely for that set of circumstances. This costrasts with Parliamentary law making which is often drafted in broader terms and can therefore be difficult to interpret. 

Old and Outdated law can be replaced- avoidance of precedent allows law to develop slowly as society changes e.g. In R v R, reflects society's support of rights of women. 

Prevents cases being decided unjustly- where an error or, if precedents have been made in error, has been made judges  can correct it there and then to avoid an unjust result. This is particulary important if the D would have gone to prison. The CofA criminal division can ovverrule their own precedents.

Quicker for judges to create and change law- Parliament doesnt have time to review all points of law and even where it does, it has to be done by the legislative process which is lengthy and slow. Meanwhile D's would be subject to unfair law.

Disadvantages

Complexity- since there are nearly half a mllion reported cases it is not easy to find all the relevant case law. Judgements themselves can be very long and complicated and it is sometimes difficult to find the ratio decidendi of a case. Distinguishing cases can also lead to minute differences in situations having rules making the law more complex.

Avoidance of precedent removes certainty and predictability- if judges can avoid precedent this removes the cartainty and predictability of the system. It becomes possible for D's to be treated differently which is unfair. For a legal system to be just it should treat all people the same.

Avoiding of precedent suggests Judges are usurping Parliament's role as lawmaker- a judges role is primarily as law enforcerwhich suggests that judges should follow existing law. Where judges avoid precedent they are effectively making new law which is truly the role of Parliament as the elected body. Law made by judges is effectively undemocratic as judges are unelected.

Rigidity- Practice Statement only applies to Supreme Court- very few cases are given leave to appeal to the Supreme court and so therefore very few cases reach the Supreme Court. It has been argued that the practice statement should apply to the Court of Appeal as in reality this is the final appeal court for most cases. As they are unable to overrule their own decisions old and outdated law will not be changed and injustices may occur.