Important element of the law is the precedent

Evaluate this statement with particular reference to the cases of R v R [1992] 1 AC 599 and C v DPP [1995]2 All ER 43

One very important element of the law in the United Kingdom is the precedent. “The precedent is a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts.” These decisions can be used as a map to help the judges navigate through the English legal system. Despite the fact that the precedent can be very useful in the English law in some special cases it can only make things more difficult and it can lead to false results.

Generally it is argued that the precedent introduces unnecessary rigidity into the law, thereby preventing legal doctrine from developing as society develops. The first thing that we should consider is why this is happening. To examine this issue we should first start from the meaning of the word <<precedent>>. The word precedent refers to an action that has already happened and that could be argued to be the greatest disadvantage of the precedent. Judges that use precedent to help them make their decision are heavily basing the result of the trial on a decision that was made a lot of years ago and that’s the most important problem. Especially when we talk about cases that happened hundred years ago it’s unorthodox to use them as guidance in modern cases. The reason is that through the years the way that people act and think is changed and something that was radical in 1900 can turn into something normal in 2011. Also we can see that modern society develops and with it the law develops too. So modern law can’t always be compatible with old decisions. Finally one more issue that rises is that we can’t be certain about the thinking of the judge that took the final decision in an older trial or about the reasons and the circumstances under which he took his decision.

In addition the application of precedent may sometimes cause injustice. The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Precedent may produce justice in an individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule. The use of precedent also has as a result to limit the development of the law. The doctrine of stare decisis is a limiting factor in the development of the law made by judges. Practical law is founded on experience but the scope for further experience is restricted if the first case is binding.

Moreover it could be said is that there are too many precedents resulting to the loss of time and money and sometimes leading to confusion due to the large number of cases that should be considered. The citation of authority in court should be kept within reasonable bounds because it can be costly in terms of time and money. Also Lord Diplock has warned of the danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase. In order to avoid all those consequences the House of Lords has decided that it will not allow transcripts of unreported judgments of the Court of Appeal, civil division, to be cited before the House except with its leave.

Finally one more disadvantage of the precedent is that it makes the law inflexible. The case-law method is sometimes said to be flexible. However a judge is not so free where there is a binding precedent. Unless it can be distinguished he must follow it, even though he dislikes it or considers it bad law. His discretion is thereby limited and the alleged flexibility of case law becomes rigidity. Judges are forced to apply binding precedents that blocks them from making a new decision about a case. This action introduces an unnecessary rigidity on case-law that doesn’t allow for the law to develop.

One great example that the precedent can’t be used in certain cases can be found at the case of R v R [1992] 1 AC 599. In this case a husband appealed against his conviction of the attempted rape of his wife. The defense of the husband supported that a husband cannot be guilty of rape upon his lawful wife because of the marriage contract. Upon marriage the wife consents to her husband's exercise of his marital rights. They based their defense on case law using : Hale, History of the Pleas of the Crown, 1st ed. (1736), vol. 1, ch. 58, p. 629; Archbold, Pleading and Evidence in Criminal Cases, 1st ed. (1822), p. 259; Rex v. Audley (Lord) (1631) 3 St.Tr. 401; Reg. v. Cogan [1976] Q.B. 217 and Reg. v. Kowalski (1987) 86 Cr.App.R. 339 The wife's consent could only be withdrawn in certain circumstances, such as her death, or if the marriage was avoided by a private Act of Parliament, a separation order (see Rex v. Clarke [1949] 2 All E.R. 448), a decree nisi (see Reg. v. O'Brien (Edward) [1974] 3 All E.R. 663), an undertaking (see Reg. v. Steele (1976) 65 Cr.App.R. 22), a deed of separation (see Reg. v. Roberts [1986] Crim.L.R. 188), or a family protection order (see Reg. v. S. (unreported), 15 January 1991, which did not follow Reg. v. Sharples [1990] Crim.L.R. 198). As none of those factors existed, the appellant's immunity was not lost by what happened between his wife and himself. Accordingly he should not be tried for or convicted of rape. However appeal was dismissed. Overturning the principle set out in Hale's History of the Pleas of the Crown (1736), that a wife irrevocably consented to sexual intercourse with her husband on marriage, their Lordships confirmed that the assumption was no longer applicable in modern times when marriage was viewed as a partnership of equals. The Sexual Offences (Amendment) Act 1976 s.1(1) defined rape as "unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it". Their Lordships rejected submissions that "unlawful" meant outside the bond of marriage. It was unrealistic to describe extramarital sexual intercourse as unlawful, particularly as "unlawful" normally meant contrary to some law or enactment or without lawful justification or excuse. The word "unlawful" was superfluous in the context of s.1(1). The husband was guilty of attempting to have sexual intercourse with his wife against her will contrary to s.1(1) of the 1976 Act.

On the other hand despite the fact that precedent has some disadvantages it also has a lot of advantages because in its favor, the use of precedent is said to bring certainty to the law by enabling people to know how issues will be resolved in the future. At first with the use of precedent people are aware of the law and its consequences and they can predict with exactitude their penalties if they make any unlawful actions and they can avoid them by knowing that it’s illegal and that they will receive a penalty. Also the precedent is a “convenient timesaving device”. If a problem has already been answered and solved it is natural that a similar case will reach the same conclusion. The judges can use the precedent to deal with minor offences that came to the jury and that will save a lot of time so that they can deal with more cases in a smaller time period.

One of the most important advantages resulting from the use of precedent is that it gives greater certainty in the law and helps the judges to avoid mistakes. The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance. Generally the precedent is a very important tool for the judges. When they face a difficult case they can search for similar cases in the past and see what decisions were made. That can help them make a decision and be sure that their decision was lawful and fair.

In addition the use of precedent prevents injustice. The doctrine of precedent may serve the interests of justice. It would be unjust to reach a different decision in a following case. Everyone should be equal against the law. In order to realize this we should all be judged as equals and receive the same penalties for the same crimes. The precedent helps with that because the decision is taken based on a previous decision for a similar or same crime. That helps the judges and works like a guidance to help them make right decisions. Also it ensures impartiality of judge. The interests of justice also demand impartiality from the judge. This may be assured by the existence of a binding precedent, which he must follow unless it is distinguishable. If he tries to distinguish an indistinguishable case his attempt will be obvious. Judges that are not loyal to their duty are easy to be corrupted and make decisions that are in favor of one part. The use of precedent helps to limit the phenomenon of corruption of the judges and it ensures a fair legal system. Judges can’t make decision and penalties out of their minds. They should follow the precedent if it is binding or if they have worries about taking a decision. Every radical attempt to support one side at the expense of another would be obvious and would be stopped.

Finally one more great advantage is that it offers opportunities to develop the law. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances. A wealth of cases illustrative of a vast number of the principles of English law has built up over the centuries. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the Continental type. The precedent give the opportunity to review old decisions and from reform or create new laws that are representing better the modern time.

The use of precedent can become very useful for the judges and is obvious through the case of C v DPP [1995] 2 All ER 43. In that case a boy which was at the age of 12 at the time of the offence appealed against the Queens Bench Division ruling (Times, March 30, 1994; [1994] 3 W.L.R. 888) that the presumption that children aged 10-14 were "doli incapax" (incapable of committing a crime) no longer applied because the court believed that the common law presumption was superseded and against the public interest. In that case the appeal was allowed because the court believed that except the the actus reus and the mens rea the prosecution must adduce additional evidence to prove the minor knew that what he was doing was not merely naughty but seriously wrong. Especially the court added that proof that the minor had done the acts charged could not per se establish that he had guilty knowledge, however bad the acts. The additional evidence must be obtained from a witness who knew the minor well, by interviewing the minor or by psychiatric examination. In para 8.4 of Crime, Justice and Protecting the Public (1990, Cm 965) the government approved the presumption on the grounds that allowance must be made for children's developing faculties. To change the law by judicial ruling would be inadvisable because Parliament had rejected the opportunity to clarify a known difficulty.

It’s obvious especially in this trial that the precedent played a very important role in order to reach justice. It was clearly visible that the decision of the court was merely wrong. During the trial, the presumption that children aged 10-14 were ‘doli incapax’ that means that they were incapable of committing a crime was not taken into account and this mistake led them to a false and unfair decision. The appellant mentioned this mistake and appealed against their decision because it was obvious that it was wrong. This case is a very good example of what happens if during a trial the judge decides or forgets to apply a decision because he judged differently than previous people have judged.

In conclusion, the precedent as was firstly argued is a very important and useful tool for the English law. It may have some disadvantages but however problematic we may find the use of precedent in many occasions it can be really helpful in order for justice to come to light. It sometimes prevents legal doctrine from developing as society develops and introduces an unnecessary rigidity but it’s obvious that its use brings certainty to the law by enabling people to know how issues will be resolved in the future. We can’t just decide that the use of precedent should be stopped or should be continued because no matter what it’s disadvantages are it also has a lot of advantages that have been proved really helpful in everyday life.