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Judicial precedent concerns itself with the influence and value of past decisions of case law and prior legal experience. The doctrine of precedent means that judges refer back to previous decisions to help them decide similar cases where the law and facts are alike.
A fundamental principle upon which the doctrine of judicial precedent rests, is that a hierarchy of courts is needed if it is to operate. The concept of stare decisis, meaning to stand by what has been decided, forms the basis of the doctrine of judicial precedent. The notion is that like cases should be treated alike for the sake of certainty and consistency which, it is argued, leads to fairness.
The effect of this is that, ordinarily, the legal reasoning on a point of law made in an earlier case must be followed. If all courts, regardless of their status or seniority, were able to set precedent, the doctrine of judicial precedent would be a nonsense as it would be practically impossible to determine which precedent took precedence!
The doctrine of judicial precedent has overcome this by the requirement that all courts are strictly bound to follow decisions made by the courts above them in the hierarchy. In addition appellate courts are normally bound by their own past decisions. However, there are advantages and disadvantages.
Any discussion of the advantages is likely to include the point that the doctrine provides certainty in the law. This means the legal profession can give more helpful advice regarding the law to their clients, including advice as to the merits of the case and, just as importantly, advice regarding the outcome. This is essential because issues of costs are likely to be involved and any question of whether to continue with a court action may have to be balanced with the chances of success and the probable costs involved. There is a saying that anyone can start proceedings but, once commenced, it is not necessarily as easy to bring an end to them. This is because, whilst starting proceedings may be in your hands, ending them may involve other parties.
The doctrine of precedent therefore helps with questions of predictability as judicial precedent is rigidly followed. This certainty leads to consistency and fairness in that like cases are dealt with in a similar way. This fairness is important as there is a principle that we should all have access to justice and the courts. This principle would be made more difficult to achieve if it was the case that there were inequalities and there was one law for the rich and one for the poor. Mr Justice Darling J was reported as saying “The law, like the tavern, is open to all". Lord Justice Matthew elaborated by saying “In England justice is open to all, like the Ritz” pertaining to the fact that you may be able to enter the Ritz but you would need money to make full use of the service there. In recent times an independent judiciary is seen as an essential but separate arm of the state and no less important than the executive part of government and the legislature.
There are some limited ways in which judges may avoid precedent and these include distinguishing. Distinguishing may be used by a judge if he or she decides that the material facts are sufficiently different from the earlier case which would otherwise have set a precedent for the present case to follow.
The facts used to differentiate the two cases must be relevant and material to the legal principles which will determine the outcome of the case – trivial or minor differences will not suffice. Unless the judge is able to draw such a distinction he would be bound to follow the previous case even if he or she did not agree with the legal reasoning. The concept of judicial precedent is strictly adhered to.
Sometimes the practice of distinguishing is criticised as it leads to 'hair splitting' or 'illogical' differences, meaning that it is hard to see any real justification for not following the previous precedent thus making the law become uncertain and undermining the key reason behind having a system based upon past judicial decisions.
There are two cases which are often cited by way of illustration of how distinguishing works. The cases are Balfour v Balfour (1919) and Merritt v Merritt (1971). In both cases a wife made a claim against her husband for breach of contract.
In Balfour v Balfour the husband went overseas to work and his wife was unable to go with him, he agreed orally to send her £30 a month until she was able to join him. The relationship broke down and the payments ceased. The wife tried to get the agreement enforced but the claim failed as it was decided that there was no intention to create legal relations (one of the conditions one would normally expect in order to find that a legally binding agreement existed). The arrangement was one which was considered to be a domestic arrangement between a husband and a wife.
In the later case the claim succeeded. The court in the case of Merritt v Merritt were able to distinguish that there were material differences in the facts from those of Balfour v Balfour. The husband had agreed to pay £40 per month maintenance, the wife was to use this to pay the mortgage and, once the mortgage was paid off, the house was to be transferred from joint names to the wife's name. Although this had been written down and the agreement signed, the husband would not transfer the house when the mortgage was paid.
The differences were that in the Merritt case the parties were already separated so the relationship between one family member and another could be seen to be different and more distant. This might explain why the parties decided to put the agreement in writing, again this was not the case in Balfour and suggested an intention to put the arrangement on a more formal footing.
So in this case the husband had to transfer the house to the wife. Some might also argue that over the time between the cases, society's attitude towards the subject of marital breakdown may well have changed and that the court's decision in Merritt simply needed to be more realistic and reflect the parties' need to protect themselves.
Overruling is another way of avoiding precedent. Overruling a previous precedent arises where a court decides, in a later case, that the legal ruling or reasoning in an earlier case was not correctly applied or no longer appropriate, the court is really saying that the earlier decision should not now be followed and the case is no longer considered to be good law. Illustrations of when overruling may occur are:
1. When a higher court overrules a decision made by a lower court in an earlier case e.g. the Supreme Court overruling the decision of the Court of Appeal in an earlier case;
2. When the European Court of Justice decides to overrule a previous decision that it has been made by not following the decision;
3. When the Supreme Court decides to exercise its discretion and declare one of its own previous decisions to be no longer law and overrules it. The cases of Pepper v Hart (1993) and Davis v Johnson (1979) provide a good example of the principle of overruling by the House of Lords using its authority under the Practice Statement 1966.
In Pepper v Hart the House of Lords decided that Hansard (the official record of of what is said in Parliament) could be admitted in evidence before the court when trying to decide what was meant by particular words in a statute. This meant that the earlier decision of Davis v Johnson to the effect that Hansard could not be consulted no longer represented the law and was overruled.
There is a reluctance to overrule old decisions and this may be because overruling operates retrospectively, meaning that the principle of law being overruled is held never to have been law. It may also have the effect of criminalising previously lawful behaviour.
As can be seen there is some room for flexibility but in reality such cases are exceptional and opportunities are effectively limited to the Court of Appeal and the Supreme Court bearing in mind their position in the court hierarchy.
It is said that the doctrine of precedent saves time. This is because the law can be found in important cases which set precedent and that such decisions are likely to be found in the decisions of the senior courts in the hierarchy. There will be endless similar case dealing with similar points of law and material facts. It would be tempting for lawyers to spend considerable time researching such cases were it not for the doctrine of precedent. The doctrine means that in effect it is only the earlier decisions of the senior appellant courts which are high enough in the hierarchy to stand the test of time and set a precedent. There will be numerous cases which do not set a precedent. So the doctrine is said to save time as the law is found in the cases which set precedent not the numerous other cases.
Although time saving does occur the system is complex and sometimes the courts feel it necessary to remind themselves about how the law in a specific area has developed over a period of time. This may be justified on the basis that it leads to a better understanding of the law amongst the judiciary and the legal profession but such detailed considerations are time consuming and expensive as it consumes the court's time.
This may be particularly notable in difficult areas of the law and in situations where the judiciary attempt to draw attention to matters which they feel need the attention of Parliament and are best left to Parliament such as the criminal age of responsibility.
In (a minor) v DPP(1996), the House referred to the anomalies and issues raised by the rebuttable common law presumption that a child between the ages of 10 and 14 is incapable of committing a crime. Despite a suggestion that the House had some sympathy for the arguments for change, the House refused to abolish the presumption and publicly stated that they called upon Parliament to act on the matter. The case is helpful in that Lord Lowry gave some considered guidelines as to when it might be appropriate to engage in judicial law-making. Lord Lowry, who gave the leading judgement, said it was time for a much- needed new look at an undoubted problem. "This is a classic case for parliamentary investigation, deliberation and legislation,". Lord Lowry was perhaps right to be cautious as we now know the age of criminal responsibility is still the subject of considerable debate to this day.
There are a number of disadvantages and these include the assertion that the system is too rigid. This in turn leads to the criticism that the law is too slow to develop and does not keep pace with social change and developments in society. There are strong arguments that the law should meet the needs of the society it serves and that problems arise if it does not. If the law does not grow and develop then there is the possibility that sections of society may feel that they are deprived of important rights of redress.
In British Railways Board v Herrington (1972), the House of Lords overruled, or at least, modified, Robert Addie & Sons (Collieries) Ltd v Dumbreck (1929) . In Addie, the House of Lords had held that an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly. In Herrington, their Lordships held that a more responsible approach was appropriate in the changed social conditions since 1929. The House advanced the test of 'common humanity' which involved the question of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser. The House of Lords eventually took the opportunity in 1972 to use their powers under the Practice Statement issued in 1966 to bring about a change in the law but some would argue that such change come about too slowly as the courts seem to prefer the notion of certainty over individual hardship at times.
It can be seen that the law is slow to change under the doctrine of precedent. This in turn may result in people believing that there is little that they can do because it seems just too difficult to challenge and bring about change. The doctrine does not promote change.This was clearly illustrated in R v R (1991), the House of Lords abolished altogether a husband's 250 year old immunity from criminal liability for raping his wife. The House took the view that the law needed to reflect society's expectations, and thought it only proper that it took the opportunity to act. Lord Keith spoke of "a common law fiction which has become anachronistic and offensive.”
We can argue that the doctrine of precedent is too complex. In practice it is thought to be too difficult for an individual to be able to research and find the law themselves without recourse to professional legal advice.
On the one hand we are encouraged, as good citizens, to understand and know the law, but in practice this is very difficult and time consuming. As a result the law is thought to be too challenging and inaccessible for individuals to understand, whereas it is their law as it applies to them.
At the present time there is a great deal of concern over the issue of accessibility to the courts as a result of changes in the way legal aid is administered. It is feared that this might result in more people acting for themselves in the courts meaning that cases may take more time to deal with or that some may not pursue their claims at all.
If people feel that the law is too complex they may not know their rights and, by not being fully informed, they may lose financially or in other ways because of not ensuring that their entitlements and rights are met. Society then loses faith in the legal system and this brings sections of the law into disrepute.
Cases can, as discussed earlier, be distinguished, enabling a judge to make a decision without the need to follow precedent, they can also be overruled. A new precedent can also be formed when 'per incuriam' occurs, this is when a previous decision has been made in error, either through carelessness or by mistake. The judge in the new case will ignore the bad law and form a new precedent.
Reversing occurs if the decision of a lower court is appealed to a higher one, the higher court in the same case overturns the decision of the lower court and substitutes it with his own.
A persuasive precedent can only be used where no binding precedent applies and occurs where a court does not have to follow another courts’ decision but can choose to follow it if they wish.
Using the source, where there is no previous decision to bind them, judges may make an ‘original precedent’, as in Donoghue v Stevenson (1932).
But the scope to avoid precedent is limited and there have been concerns that distinguishing, for example, leads to 'hair splitting' as a result of attempts to try and show that the present case is materially different from a previous decision or precedent.
This may seem a minor matter but not necessarily so for the parties concerned, and if it happens too often the practice seems to fly in the face of certainty and predictability in the law thereby making it difficult for lawyers to advise clients about the likely outcome of cases.
Such issues over distinguishing and hair splitting also seems to trivialise the parties arguments and their case and distract attention away from the merits of their claim. Parties may have invested a lot a of time and money in pursuing their claim only to find the strength of their case undermined by efforts to show that their case is somehow different and the law will not provide them with a remedy.
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