The Problems Created by the Doctrine of Judicial Precedent

The Problems Created by the Doctrine of Judicial Precedent

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This submission will discuss the problems created by the Doctrine of
Judicial Precedent and will attempt to find solutions to them.

Whereas, English Law has formed over some 900 years it was not until
the middle of the 19th Century that the modern Doctrine was
‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898).

Law is open to interpretation, all decisions made since the birth of
the English Legal System, have had some form of impact whether it is
beneficial or not

The term ‘Judicial Precedent’ has at least two meanings, one of which
is the process where Judges will follow the decisions of previously
decided cases, the other is what is known as an ‘Original Precedent’
that is a case that creates and applies a new rule.

Precedents are to be found in Law Reports and are divided up into ‘Binding’
and ‘Persuasive’. “A Binding Precedent is a decided case which a
court must follow even though it is considered to have been wrongly
decided…” (Terence Ingman, 2002, Page 420). “A Persuasive Precedent
is one which is not absolutely binding on a court but which may be
applied” (Terence Ingman, 2002, Page 420) Bromley London Borough
Council V Greater London Council (1982), Searose Ltd V Seatrain (UK)
Ltd (1981).

There are certain elements that Judicial Precedent is dependant upon,
they are that the material facts of the case must be the same, the
principle must be a proposition of law, it must form part of the Ratio
(see below) and that there has to be sufficient and accurate reports
of earlier decisions. There are six main elements to the Doctrine of
Judicial Precedent which are as follows:-

Ratio Decidendi (Ratio): The reason for deciding, this is known as the
legal reason for a Judges decision, the Ratio of a case although it
can sometimes be somewhat difficult to interpret it is a fundamental
part of the Doctrine itself Hedley Byrne and Co. Ltd V Heller and
Partners Ltd (1964), Rondel V Worsley (1969).

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There can be multiple
Ratios (Rationes Decidendi) in a case bearing in mind that only the
reasons necessary for the decision of the case can be Ratio and it is
the Judge who must decide which of the Ratios is relevant to that
particular case.

Obiter Dictum (plural Dicta): A saying by the way only has an
occasional bearing on the case in question, it is not necessary for
the judgement of a case as it is just a view expressed by a Judge on a
point of law which is not directly connected to the case. It is a
Persuasive Authority (see below) and therefore not a binding one in
future cases Hetherington (deceased) (1989), R (The Crown) V Secretary
of State for the Home Department (ex parte Ku) (1995).

Persuasive Authority: The most obvious form of Persuasive Authority is
Obiter Dicta, there are however several forms of Persuasive Authority,
such as the following, decisions made by Courts lower down the English
Court System i.e. The House of Lords (HL) may follow a Court of Appeal
(CA) decision on a particular case although as that decision is not a
binding one the Judge is not obliged to do so, in spite of this there
was a case in 1991 where the HL did chose to follow the decision
previously set by the CA that was R V R (1991) which was a marital
rape case the HL agreed with the CA and held the husband accountable.
Another form of Persuasive Authority is decisions made by courts
outside English Courts system for instance in Scottish, Irish,
Commonwealth (Australia, Canada, New Zealand) and foreign courts this
is when there may be no cases on a particular point of law in the
English Legal System but there may on the other hand be a similar case
where the decision has already been given which therefore means they
can state this as a point of reference if it helps to determine the
outcome of that case and “Recommendations of the Privy Council-these
are particularly influential, since the Judicial Committee is usually
made up of Law Lords.” (Michael Doherty, 2003 Page48).

Distinguishing: Cases are distinguished by their facts and as the
facts of anyone case are never identical it can be seen as easy to
‘distinguish’ if the differences between the cases appear to be great
enough, this therefore means that the Court may be able to escape
following it as a precedent England V Cowley (1873), Oakley V Lyster

Overruling and Reversing: Overruling is when “A Court of competent
jurisdiction within the hierarchy of the courts may declare that the
decision in a previous case is no longer good law…” (Michael Doherty,
2003, Page 48) this may be because the previous court did not depict
the law properly. Horsler V Zorro (1975) by the House of Lords in
Johnson V Agnew (1979). The HL may ‘overrule’ its own decisions and
that of any court lower in the legal system; the CA however cannot
‘overrule’ a decision made by the HL or one made by the CA itself.
Reversing occurs when a court higher in the court system ‘overturns’ a
decision in a case from a lower court on appeal the appeal court will
then use instead its own decision. Reversing can only be done by a
court with adequate authority for example the HL or CA; the appeal
court will then replace it with its own decision.

Per Incuriam Statements: through want of care is a well founded
technical rule if Per Incuriam has been stated then the decision made
by that particular court cannot be binding. This could be as the
court neglected to consider all possible information such as suitable
statutes and case authorities before making their decision. The Per
Incuriam statement has to be great enough to cause a significant
change to the outcome of that particular case; because of this courts
are reluctant to state Per Incuriam as a fear of causing disrespect to
the Judge who came to the original decision.

Hierarchy of the Courts

European Court of Justice (ECJ): sits in Luxembourg any decisions made
by the ECJ are binding on courts but like the HL it is not binding on
itself even though some previous decisions may determine decisions
made in the future. It is also binding on all of the English courts
including the HL although it has no influence within the English Legal

European Court of Human Rights (ECHR): sits in Strasbourg and was
created in 1959 but only put into practice in 1998, since the Human
Right Act 1998 decisions by the ECHR have been amplified and even
though the decisions may not strictly be binding they may be seen as
highly persuasive. ‘Thalidomide case’ Attorney-General V Times
newspaper Ltd (1972)

The House of Lords (HL): The President of the HL is The Lord
Chancellor, the HL is binding on all courts in the English Legal
system and like the ECJ it is not binding on itself. The HL is a
superior court and deals with the more significant and complicated
cases. It is the highest court in the United Kingdom and can only be
‘overruled’ by either a statute or by the rebuttal of the house to
follow them in later cases. It is the final appeal court for cases in
England, Wales, Northern Ireland and Scotland. London Tramways Co.
Ltd V London County Council (1898)

The Court of Appeal (CA): There are two divisions in the CA they are,
the Civil Division and the Criminal Division both of these are bound
by decisions made by the HL and by decisions of their own. The CA is
the first appeal court if a further appeal is required the case then
progresses onto the HL. Family Housing Association V Jones (1990)

The High Court: consists of the Queens Bench Division (QBD), the
Chancery Division and the Family Division. Each of the three
divisions has further divisional courts they are Divisional Court of
Queens Bench which hears “appeals on points of law on cases stated by
magistrates and the Crown Court…” (Dennis Keenan, 1998, page 36)
Divisional Court of the Chancery Division which hears “appeals in
bankruptcy cases from courts outside London, Bankruptcy Court of the
Chancery Division hearing bankruptcy appeals from London.” (Dennis
Keenan, 1998, page 36) and the Divisional Court of the Family Division
“this court hears appeals from magistrates’ courts in family
proceedings.” (Dennis Keenan, 1998, page 36). Decisions made by a HC
Judge are binding on the lower courts but are not binding on courts
higher in the Court Structure or on other HC Judges this can cause
conflicting HC decisions an answer to this was stated in Colchester
Estates V Carlton Industries plc (1984)

Other Courts: these are Magistrates’ Courts, County Courts and the
Crown Court These Courts are at the bottom of the court structure and
are the courts with the least amount of power.

Some of the Advantages and Disadvantages of the Doctrine of Judicial
Precedent and the courts are that: it can save time, if the problem
arising on the case in question has already been resolved in a case
previously, it is seen as practical rather than theoretical as the
majority of case law is based around real situations and cases instead
of in books and paper.

It is flexible, although a decision made in a previous case may not be
relevant it can sometimes be somehow manipulated to adapt to current
case and therefore adjust itself to new circumstances.

While there are advantages with the Doctrine and the courts there are
of course disadvantages, it is seen as ‘bulky and complex’ this means
there may be a substantial amount of cases and law reports to consider
and therefore it becomes increasingly difficult to research all the
relevant law. Judges will often try and ‘distinguish’ or ‘overrule’
cases in order to escape following it as a precedent, they may also be
forced to make ‘illogical distinctions’ to avoid an unfair result.
The Doctrine is perceived as ‘Rigid’ which may in turn limit the
Judges discretion when deciding the outcome of a case. Some may argue
that having two appeal courts can be an advantage the question lies in
whether there is really a need for two appeal courts in the court
structure when, it is possible for one to carry out the combined work
of the two, the solution to this is of course to abolish one the
obvious one to go would be the HL. There is a current debate in
Parliament as to whether drink drivers previous convictions should be
made public when the court comes to sentence them the obvious problem
would be would this make the verdict impartial or not and would this
be a violation of there ‘defendants’ Human Rights?

In conclusion although the Doctrine provides a framework for Judges to
view each case, are the precedents only relevant to the times they
were set? It could be argued that they are not meeting the present
day’s society’s needs with regards to the law. In today’s society
persistent offenders are using the law to their advantage as seen in
the current use of the Anti-Social Behaviour Orders (A.S.B.O), however
if the law was changed to allow the disclosure of previous offences
and convictions it would bring into account impartiality and a
possible Human Rights violation.

Taking into account both the advantages and the disadvantages of the
Doctrine it would appear that there are many more advantages to the
Doctrine than disadvantages, overall it is seen as the fairest system
in deciding the outcomes of each individual case and in the English
Legal System everyone is afforded the principle of Innocent until
proven Guilty.
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