Judicial Precedent

1
Judicial Precedent

• Advantages and Disadvantages

2
Lesson Objectives

• I will be able to state the advantages and
  disadvantages of the doctrine of precedent
• I will be able to use examples relevant to those
  advantages and disadvantages
• I will be able to state the advantages and
  disadvantages of the methods of avoiding
  precedent
• I will be able to use examples relevant to those
  advantages and disadvantages

3

• Advantages of the operation of precedent

4
Consistency

• Bring consistency to the English legal system
• Case with similar facts will be treated in the
  same manner
• Prevents judges making random decisions
• Promotes justice and equal treatment
• Law remains the same, which helps people plan
  their affairs

5
Predictability

• Lawyers are able to advise their clients with
  some degree of certainty
• Predictability is important in determining who
  should qualify for Government help in funding
  their legal action
• The Government does not fund cases which have
  little chance of success as this would be a waste
  of taxpayers money

6
Flexibility

• Judges can develop the law e.g. overruling an
  out-dated precedent
• House of Lords can use the Practice Statement
  meaning the law can be developed in areas not
  considered important by Parliament
• Modernising decisions may prompt Parliament to
  review legislation and bring I in line with
  precedent R v R (1991) Parliament amended the
  Sexual Offences Act 1956 stating that marital
  rape is a crime

7
Detailed Practical rules

• 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
  which have occurred and can be a guide to future
  litigants

8
Original Precedents

• The doctrine allows for new or original
  precedents to be created
• An original precedent makes legal provision on a
  matter for which there was previously no law
• Gillick v West Norfolk and Wisbech Area Health
  Authority (1985) HoL deciding on whether girls
  under 16 could be prescribed contraceptives
  without parental consent. This issue had never
  arisen before

9

• Disadvantages of the operation of precedent

10
Complexity

• Judgements can be complex and it can be hard to
  decide the ratio decidendi of a case
• In CoA and HoL there is more than one judgment to
  consider and a common ratio decidendi has to be
  considered by judges in future cases
• A judge can give more than one ratio Rickards v
  Lothian (1913) water flooding

11
Volume

• It is difficult to research the law
• Hundreds of judgements are made every year
• This means someone may have to sift through many
  volumes of law reports
• Complete official law reports are estimated to
  run to almost 500,000 pages!

12
Uncertainty

• By using the mechanism of distinguishing cases
  and other methods of departure, the judges can
  avoid following precedents. This causes
  uncertainty as to how cases will be decided

13
Rigidity

• An unjust precedent can lead to further
  injustices. E.g. once the HoL sets an unfair
  precedent, it cannot be overruled unless and
  until another case of similar fact goes to the
  HoL on appeal. This might not happen for many
  years
• The law may be out of date and need modernising
  Batty v Metropolitan Property Realisations Ltd
• Judges can be reluctant to change the law
  President of India case (1984)

14
Unconstitutional

• It is often argued that judges are overstepping
  their constitutional role by actually making the
  law rather than simply applying it
• It is the role of Parliament to create law and
  the role of the judiciary to enforce/apply it

15
Undemocratic

• Only persons who are elected, that is, the
  Government and MPs should be able to create law.
  The judges are not elected and should therefore
  not engage in law-making.

16
Retrospective Effect

• Unlike legislation made by Parliament, law
  created by judges is backward-looking.
• It applies to events that occurred before the
  case came to court.
• This is unfair as the parties involved would
  rightly have considered themselves to be acting
  within the law R v R (1991) the husband had not
  been acting illegally when he subjected his
  estranged wife to sexual intercourse without her
  consent
• Case law is retrospective whilst legislation is
  prospective

17
Lack of Research

• Unlike legislation which is made with the benefit
  of research by interested and knowledgeable
  bodies, there is no opportunity for the judge to
  commission research or consult experts on the
  likely outcomes of their decisions.
• Judges make their decisions based on the
  arguments they hear before them in the courtroom

18

• Advantages of the methods of avoiding precedent

19
Potential for Growth

• Case law is not completely rigid because judges
  are able to avoid precedent
• This gives judges the opportunity t modernise and
  develop the law Hall v Simmons (2000)
  overruling Rondel v Worseley (1967) is an
  example. Barristers no longer immune from being
  sued for the work they do in court

20
Unfair Laws can be replaced

• Sometimes unfair precedents can be developed
  the methods of avoiding precedent allow these
  unfair laws to be abandoned RVG and R (2003)
  recklessness now a subjective test rather than
  objective Caldwell (1981)

21

• Disadvantages of the methods of avoiding precedent

22
Retrospective Law Making

• When judges avoid precedent, they change the law.
  This is unjust because precedent applies to
  events that have already happened R v R (1991)
  the defendant was following principles laid down
  in Sir Matthew Hales work the History of the
  Pleas of the Crown

23
Uncertainty

• The possibility of judges avoiding precedent
  makes the outcomes of cases uncertain
• This is not desirable. Because justice requires
  that people are treated in the same way and know
  how to conduct their lives within the law
• Makes it problematic for lawyers advising clients
• Certainty is desirable especially in criminal law
  where the defendants liberty is at stake Howe
  (1987) overruling DPP v Lynch (1975) stating that
  duress is no longer a defence to murder or an
  accessory to murder

24
Non-Conformity with the Separation of Powers

• When judges avoid following precedent, unless
  they do so to conform to the requirement of an
  Act of Parliament, they inevitably create new law
• This goes against Montesquieus theory of
  separation of powers