Judicial Precedent Essay

Judicial Precedent

"Within the present system of precedent in the English legal system, judges have very little discretion in their decision making."

Judges have always been relied upon to interpret and apply the law. Therefore, their decisions should be fair and consistent so as the individuals seeking legal remedies would have more faith in the judicial system of the state. AS the UK has not a very complete and/or codified constitution, this doctrine is very much relied on as contrasted with other countries which seemed to have provisions for virtually any kind of offence, like France or the US where judges had only to refer to legislation.

The doctrine of Judicial Precedent operates based

One occasion that enables the judges to defy the doctrine is when legislation had expressly provided for the judges to do so. As an Act of Parliament is superior over case law, a later statute can efficiently allow judges to ignore the precedent. The Year and a Day Rule originated from the case of Dyson [1908]. It was a binding precedent until later when it was found out of date and eventually removed by legislation proposed by the Law Commission in the Law Reform (Year and a Day Rule) Act 1996.

In cases where new issues of the law are raised, the judges would have no precedent to follow and so could exercise their discretion accordingly when deciding cases, such as in the cases of Airedale NHS v. Bland [1993], Marks & Spencer v. One In a Million [1998] and the case of Re A [2003].

A court is not bound by the principles and decisions of courts below it, otherwise appeals would be impossible. Thus, a decision of a lower court may be reversed or overruled. However, judges tend to avoid departing from previous precedents unless those precedents were

In this sense, judges do have some discretion to upgrade and depart from the more archaic and/or orthodox principles as established in previous precedents such as in the case of R v. R [1991] (therefore overruling Miller) [1954].

A future tactic judges seem to use to overcome the doctrine of judicial precedent would be distinguishing. The doctrine of judicial precedent provides for latter cases to follow the decisions of previous cases, where the material facts happen to be similar. So, at times, since there are quite a few precedents, when judges decide cases, they tend to choose to follow a precedent which they feel to be more in agreement with. This shows that judges in fact, do possess a certain amount of discretion. It has even been argued that in practice, judges seemed to have first come to decisions or conclusions of their own before actually searching and relying on precedents in line with their decisions to back them up. In the case of Merritt v Merritt [1970] CA, Balfour v Balfour [1919] was a prima