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Judicial Precedent Uk Essays

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 on the principle of
Stare Decisis, inter alia, to stand by past decisions to establish
certainty, fairness and consistency as well as predictability. The
rationale of this doctrine was made by Parke J in the early case of
Mirehouse v Rennell [1833], where Parke J had stated that for the sake
of uniformity, constancy and certainty, judges are not at liberty to
reject or abandon precedents even if they feel that those rules were
not as convenient or reasonable as they would have liked them to be.
Till today, the reasons for its use are still valid in most cases,
thus, the doctrine is regarded as a general rule in the UK.

An example of the doctrine of binding precedent can be seen in the
case of Shaw v. DPP which relates to conspiracy to corrupt public
morals, where the decision was followed by Knuller v. DPP. Although
the doctrine of stare decisis seems quite similar to res judicata,
which also means 'to stand by past decisions', there is a slight
variation. The difference between the two would be that when applying
the res judicata principle, the decisions of the courts will be
binding on future courts unless it is reversed, whilst the doctrine of
stare decisis, established that even if the decision is reversed, past
decisions would nonetheless be binding. It is the general principle
for judges to follow the decisions made by previous judges of the same
or higher rank, when the circumstances and/or material facts of a case
are similar to that of the present, based on the set of principles
previously let down, known as the ratio decidendi.

The ratio decidendi is the main principle and/or legal reason in which
a case is decided, therefore, the principle led down is binding.
However, it must be noted that this should not be applicable for cases
decided per incurium or any other situation where the decision can
only be restricted to its unique facts such as in the cases of R v.
Larsornneur [1933] and Winsar v. Chief Constable of Kent [1983]. As
for the obiter dictum, which means 'things said along the way', it is
generally not binding as it is merely some persuasive argument or
...

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Judicial Precedent

ESSAY: a) Explain and illustrate the operation of the doctrine of judicial precedent. b) How far is it true to say judges are bound by decisions in earlier cases?

A)

Judicial precedent is where the past decisions of the judges create law for future judges to follow. English precedent is based on the Latin, stare decisis, meaning stand by what has been said in the past. This allows the rules system to be consistent: like cases treated alike, and it is just, as people can decide on a course of conduct knowing what the legal consequences will be.
Judicial Precedent can only operate if the legal reasons for past decisions are known, therefore, at the end of the case there will be a…show more content…

This idea of creating new law by analogy can be seen in Hunter v Canary Wharf (1995). The interference with the reception on Hunter's television because of Canary Wharf Tower having been built, was likened to the case of Bland v Molselely (1661), in respect to the loss of a view. The two things were said to be a matter of "delight" and not "necessity" so could not come before the courts.
In England and Wales, the courts have a very rigid doctrine of judicial precedent, which has the effect that every court is bound to follow any decision made by a higher court and that appellate courts are bound by their own decisions. Decisions made in the European Court of Justice bind all other courts since 1973 and can overrule its own decisions. Decisions made in the House of Lords bind all lower courts, especially Court of Appeal, and, since 1966 when it issued a practise statement, can overrule past decisions. This is clearly seen in DPP. NI v Lynch when the House of Lords said that duress could be a defence to a charge of murder, and in R v Howe they said it could not. The Court of Appeal has two divisions, which are both bound by the higher courts but not each other. Each single division is bound by its own previous decisions. Both have the Young v Bristol Aeroplane Exceptions however. Divisional Courts are bound by higher courts and bind lower courts. They are generally binding