“The doctrine of precedent is the cornerstone of the development of the common law…The doctrine of precedent is a mysterious process that is capable of accurate analysis.”
Explain and reconcile these two statements.
The judiciary stands by itself whereby the independence of the judiciary was confirmed in the Act of Settlement 1701. In order to maintain the independence of the judiciary and remove them from danger of being subjected to political pressure, it has been difficult to remove senior judges once they have been appointed. Judicial immunity is also an important part of the judiciary.
Judges have considerable scope of determining the meaning and effect of law through their manipulation of the rules of precedent and statutory interpretation. The concept of the rule of law holds the position of judges in a central importance. They are expected to deliver judgement in a completely impartial manner through a strict application of the law, disallowing their personal feelings, fear or favour to affect their decision in any way.
The common law operates under a very vital element; the judicial precedent, a system which practices the hierarchy of courts and “binding to prior case” concept. Does this system contribute to the development of common law? Does judicial precedent is capable of accurate and precise analysis? What are the advantages and disadvantages of this system?
The doctrine of precedent is the heart of common law system whereby it makes the backbone of the system itself. What actually precedent is? .The courts are bound within certain limits by prior decision of superior courts which means a lower court in the hierarchy of common law are bound to follow the decision of higher courts. This is referred as ‘stare decisis’- let what has been decided stand. Basically, when a trial is conducted, a judge will look for similarity in present cases with prior cases. When the cases are similar, the judge is bound to follow the rule established in the earlier case. If the precedent is from a lower court, the judge is not bound to follow the rule but certainly will consider it.
Precedent relies on accurate, comprehensive law reports. An accurate report is a must if the judge is seeking guidance from previous decision. There are many sources of law reports namely The Year Books, Private Reports(Coke, Plowden),The Law Reports(All England Reports, Queen’s Bench) and even from an online law reports as Lexis-Nexis. In Stanley v International Harvester Co of Great Britain (1983) Ltd the courts expressed at this indiscriminate citation of unreported cases trawled from Lexis database.
The precedent is build up upon the hierarchical system of the court. The highest court is the European Court of Justice. It is tasked at interpreting EU law and ensuring its equal application across all EU member states. The doctrine of ‘stare decisis’ does not feature in ECJ because previous decision seen as persuasive not binding. House of Lords is the most important national court in UK. Its decision is binding all over other courts in legal system, except the House of Lords itself. The House of Lords was bound by its own previous decision until this changed in 1966. The rule from the case of London Tramways Co Ltd v London County Council which stated that the certainty of law is more important than individual of law was changed in July 1966 When Lord Gardiner, made a statement on behalf of himself and fellow Law Lords regarding the Practice Statement. Due to this, now House of Lords are able to apply English law to meet changing social conditions. In Herrington v British Railway Board, the House of Lords decided that even trespasser was entitled to some degree of care overruling the previous case where trespassers can only be applied to children. Committing a murder or assisting while under duress was available as defence to a person who had participated in a murder as an aider from the case DPP for Northern Islan v Lynch .In 1987 House of Lords overruled their decision in R v Howe, that the defence of duress is not available to a person charged with murder or as an aider to murder.
There are certain cases may be regarded as mistakes by House of Lords. In a widely criticised case, Anderton v Ryan , the House interpreted the Criminal Attempt Act 1981 in such a way made the Act ineffective. It was held that someone who admitted to having a video recorder she believed to be stolen could not be charged with handling stolen goods as the court could not establish whether it was stolen or not. The House of Lords immediately corrected its error in R v Shivpuri where Lord Hailsham of St. Marylebone L.C. stated that “if a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better.” The House of Lords will depart from its own decision ‘when it is right to do so’.
The Court of Appeal is generally bound by previous decision of House of Lords although Court of Appeal have tried to depart from stare decisis under Lord Denning. Court of Appeal in D v East Berkshire Community NHS Trustt in which the court of appeal held that the decision of the House of Lords in X (Minors) v Bertfordshire County Council could not be maintained after the introduction of the Human Rights Act 1998 as that Act had undermined the policy consideration that had largely dictated the House of Lords decision. The Court of Appeal is generally bound to follow its own earlier decision in civil cases. However there a some exceptions as stated in Young v Bristol Aeroplane Co Ltd by Lord Green MR. The High Court and Divisional court is also bound by the decision of superior courts.
How the precedent works? What about the original precedent where the point of law in case has never been decided before? In which, the judge sets the precedent for future case to follow. Does the judge make law, or interpreting law? The persuasive precedent tends to influence although is not binding. Such examples of persuasive approach are obiter dicta and a dissenting judgement. Obiter dicta-‘saying by the way’. Although this is not binding but it provided the current judges with essential arguments and understanding of the ‘obiter dicta’ judgement. One popular case in relation with precedent in operation is the case of Donoghue v Stevenson, Mrs. Donoghue succeeded in her claim by the House of Lords holding Stevenson liable by majority of 3:2. Another usual process of precedent is the reversing which by means higher courts overturning decision of a lower court in the same case. This creates a sphere of balance between the courts itself where a high court counsel the decision of lower courts.
What is the key point of law in a particular judgement? The ratio decidendi literally means the reason for deciding. If cases were similar in facts, precedent would have no difficulties in arriving the decision, but facts do change from case to case; sometimes in a major way or even in a insignificant way. The judge must try to show that the cases are similar for applying the precedent. A judge is only bound to follow only the ratio decidendi. Thus, not only the facts are important but also how the earlier judge expressed the law in relation to those facts.
The judicial precedent may be seemed to be an important role in common law, but does it really help developing the common law itself? There are certain benefits and drawbacks of precedent. The precedent is certain. This means that the public can easily access and know about the law. If one legal rule has been established in a previous judicial decision, one can make himself adapted to the rule knowing it would not change. The precedent is also consistent, where cases in similar facts are decided in the same way. Another advantage is that it is flexible. There is room for the law to be changed. Judges can manipulate the common law provide them an opportunity to develop law in particular areas without waiting parliament to enact an Act. The precedent seemed to be an efficient method in common law. It saves the time of the judiciary, lawyers and their clients for the cases that do not have to be reargued. Once a principle is clear, few are likely to clog the system challenging the law.
Lord Bingham stated ‘excessive innovation and adventurism by judges had to be avoided. Without challenging the value or legitimacy of judicial development of the law, taken to extremes, such judicial creativity can itself destroy the rule of law.’. As in Gillick v West Norfolk and Wisbech Area Health Authority the judicial has put into innovation and creativity in their decision. Held by a majority of 3:2, a child under 16 who can understand the treatment and purpose of it can give her own consent to the medical treatment.
However, the precedent also has the bad side of it. This can be seen when the precedent can become too rigid, where there is chances to a bad decision to be repeated. It also can become too complex when there are too many precedents. Although the rule of precedent is generally to prevent injustice but sometimes it may cause injustice. The overruling of an earlier case may cause injustice to those who have ordered their affairs on it. Precedent may produce justice in on individual cases but may be fails to do so in generality of cases. It is possible to say that this precedent might not really be good and seems to be illogical to think of. Why the judges have to follow earlier decision when there are some criticism, conflicts and anomalies in it? Why not every judge can interpret the law fully as he knew and understood? And why the concept of judicial precedent exists in the first place? The precedent is proven to solve these problems, when the system is found to be in a balanced-yes, what will happen if cases similar in facts are decided in a particular and distinct way from each?-And every judge decide cases in a complete discretion without any limits? This will certainly make the law unreliable. The common law is developing at a slow pace because of stare decisis, but still at an acceptable pace and generally speaking, yes it develops.
Although the judicial precedent is may be not capable of accurate analysis, but it trying to reach that point in a long-run. It is nearly impossible to produce an accurate and precise analysis of cases in a single short period of time. The precedent allows the courts to analyse and criticise previous cases in a proper way and thus produces more efficient, reliable and accurate decision in the judgement of later cases. This system is evolving at its own pace by giving the judiciary considerable amount of discretion in their decision although generally the precedent itself limits of modification and alteration in decisions. As discussed earlier, the judges are trying to produce more accurate decision in later cases thus creating a system which is acceptable and balanced.
- Slapper, Kelly, The English Legal System ( Routledge Cavendish, 2009-2010)
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