Judicial Precedent 10 markers PDF

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The hierarchy of the courts is a system by which decisions made by the “higher courts” bind the “lower courts”. The Supreme Court (formerly known as the House of Lords) is the highest court in England and its decisions bind all courts below it. Each court will be bound by the court above it, apart from the Supreme Court which is no longer bound by its own decisions since the Practice Statement was passed in 1966. The Court of Appeal and the High Court are bound by their own decisions as well as that of superior courts except in limited circumstances. The inferior courts (County Court, Crown Court, and the Magistrates’ Court) are not bound by their own decisions and they do bind other courts. This is because they do not make precedents, rather they simply apply the precedents made by the “higher courts”. “Obiter Dicta” is the judge’s remarks on a case. The obiter dictum is not a binding part of the judgement (that is the ratio decidendi (the judge’s rationale)), rather it is simply the judge’s comments on the law and the circumstances around the application of the law. The obiter dicta may include remarks like “if the facts were different, my decisions would be…”

One way in which a judge can avoid following a binding precedent is to overrule it. The Supreme Court can use the Practice statement of 1966 to overrule a past case when “it appears right to do so”. An example is the case of Addie v Dumbreck 1929 which created the precedent that trespassers cannot make injury claims for personal injury while trespassing. The House of Lords used the practice statement to overrule this in the case of British Railway Board v Herrington 1972. The Court of Appeal can also overrule its own precedents in very specific circumstances, such as when there are 2 court of appeal decisions that conflict, when there is a conflicting House of Lords decision, and when the previous decision was made per incuriam (carelessly or by mistake). Since the Human Rights Act 1998, the Court of Appeal can go against its previous precedents if it conflicts with the Human Rights Act. Another way in which a judge can avoid following a binding precedent is to distinguish the case from it. This is only applicable if the material facts of the case are significantly different from those of the original case. For example, in the case of R v Brown and others 1994, the House of Lords made the decision that you could not raise the defence of consent in the case of serious violence amounting to ABH & GBH. The Court of Appeal distinguished from this precent in the case of R v Wilson 1997 as they distinguished branding from violence, and said that branding was similar to tattooing, and did not believe that Mr or Mrs Wilson gained sexual pleasure from the act - materially different to the case that established the precedent. Therefore, the Court of Appeal ruled that consent can be used as a defence for branding and tattooing.

There are many advantages and disadvantages to the system of judicial precedent. One of the main advantages of the system of judicial precedent is that the system gives a sense of certainty within the law. This means that the outcome of a case can often be predicted using judicial precedent, avoiding unnecessary litigation. It also avoids erroneous conflictions in decisions, as it prevents two cases with similar facts from having wildly different judgements. Another major advantage of judicial precedent is that it allows judges some control over the law itself. It means that judges can change the law much quicker than parliament can, and interpret it in a way that is more relevant to society. Judges are legal experts whereas politicians are not always. However, there are also some disadvantages to judicial precedent. The rigidness of the system of precedent prevents the law from being changed in some cases, and may lead to judges following precedent that may be old or illogical when being applied to modern society. Changing the law then becomes very hard because the case has to reach a court high enough that has the power to change it. Another disadvantage of judicial precedent is that it can be considered undemocratic for judges to be making laws. Parliament are an elected body who represent the people, so it may be considered that they are the best placed people to be making laws....