Judicial Precedent A Practice Of The Courts Law Essay

Judicial cause A Practice Of The hails Law EssayJudicial suit of clothes in point Where past finalitys of decide are personifyed in future miscues when the facts of the casings are similar. Once a judge decides a legal normal, it is essential that is utilize in future legal cases with similar issues or facts. This is similarly known as case law or common law which has developed by broadening down from precedent to precedent.Therefore the legal exposition of Judicial precedent support be stated as a courts judgment quoted as an role for deciding a similar get dressed of facts a case which serves as authority for the legal principle established in its judgement. It refers to the way in which the law is do and amended through the decisions of judges. Thus, discriminatory precedent is based on the judges judgement, hierarchy of courts and a good system of law reporting judges.The discriminatory precedents doctrine is based on the stare decisis principle to stand upo n decisions and by which precedents are authoritative and binding and must be followed. In practice, this heart and soul that lower courts are strand to apply the legal principles set down by superior courts in before cases. This provides balance and surety in the law.A precedent is perpetually based upon the two factors the balance decidendi which means a reason for the decision and obiter dictum which means something said by the way and also the decisions made in the earlier relevant cases.The ratio decidendi of a case is the important part of establishing precedents that binds inferior courts in the hierarchy. When a judge makes his judgement in a case, he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and reaches at a decision, for which he gives the reason (ratio decidendi). Whereas obiter dictum is a decision accustomed by a judge that has plainly incidental bearing on the case in question and is thitherfore not binding in later cases. The decision of the judge may spay according to the facts of the case and is not strictly relevant to the matter in the issue in the original case.The ratio decidendi is the binding part of a judicial decision whereas an obiter dictum isnt. Though, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.Even if any difficulty arises, the judge depart give reasons for his decision, however he will not always tell what the ratio decidendi of case is, and it is then up to a later judge to go into out (elicit) the ratio of the case. However, there may be disagreement over what the ratio is and there may be more than bingle ratio. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating the effects of a particular decision however when judicial precedent is used, the judge follows or takes the reference of a decision made in a similar past cases that has already been judged upon and he is ruling the same way using the other case as a guideline. Whereas whilst setting judicial precedent the judge renders a decision in a case of a type that had never been tried, or command upon in the past, which is completely new, and that his verdict would set the precedent by which all future cases might be judged. Judges, by the way, are not always required to follow precedent in making rulings.Therefore law reporting, hierarchy of courts and a method of distinguishing between obiter dicta ratio decidendi are considered to be the key features of judicial precedent.The general rule of the precedent is that all courts are bound to follow decisions made by their superior courts and appellate courts are usually bound by their own prior decisions.Any decision made by a superior court is utterly binding on attendant inferior courts. However, certain of the superior courts consider themselves as bound by their own decisions whilst others dont.Until 1966 The House of Lords was bound by its own previous decisions when Lord Gardiner LC announced a agitate of practice. The Practice Statement 1966 1 WLR 1234 stated that even though the House of Lords would treat its decisions as normally binding, it would move off from these when it appeared right to do so. This billet has been used carefully.A decision of the House of Lords binds all lower courts but does not regard itself as strictly bound by its previous decisions, for example, in Murphy v Brentwood District Council (1990) the House overruled its earlier decision in Anns v capital of the United Kingdom Borough of Merton (1978) on the issue of a local authoritys liability in negligence to prospect purchasers of property.The hail of Appeal is bound by decisions of the House of Lords although it considers them to be wrong. However in Young v Bristol Aeroplane Co Ltd 1944 KB 718, the apostrophize of Appeal held that it was bound by its own previous decisions subject to the following three exceptions i. If there is conflict between own previous decisions, the Court of Appeal must decide which is to be followed and which is to be rejected.ii. The Court of Appeal must not follow its own decision which cannot stand with a decision of the House of Lords even if its decision hasnt been expressly overruled by the House of Lords.iii. The Court of Appeal need not to follow its own decision if satisfied that it was presumptuousness per incuriam (literally, by carelessness or mistake).The High Court and the county courts are bound by the decisions of the court of appeal.Principally there is no difference in the application of stare decisis in the civil and malefactor divisions of the Court of Appeal. In practice, in addition to the Young exceptions, because a persons liberty may be at stake, precedent is not followed as strictly in the criminal division however judges tend to follow the decisions of the high court for the sake of certainty. For example R v Taylor 1950 2 KB 368.The High Court is bo und by the decisions of Court of Appeal and the House of Lords however it is not bound by other High Court decisions. The county courts are bound by the decisions of individual high courts. House of Lords and the Court of Appeal binds Divisional Court and normally follows a previous decision of another Divisional Court but if they believe that the previous decision was wrong, they may depart. For eg. R v Greater Manchester Coroner, ex parte Tal 1985 QB 67.The Crown Court judgements are not binding, though they are of persuasive authority. Therefore, Crown Court judges are not obliged to follow them. The decisions made by the judges of county courts and magistrates courts are not binding. They are not usually reported in the law reports as they are rarely important.Judicial precedent is one of the some important source of English law. An original precedent created and applied a new rule whereas the later decisions, of the higher courts, can have a takings of effects upon precedents . Particularly they may beReversed where on appeal in the same case the decision is reversed and the appeal court championship its own decision.Overruled Overruling can occur if the previous court fail to apply law correctly, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable. then a higher court can overrule a decision made in an earlier case by a lower court. For example, the Court of Appeal can overrule an earlier High Court decision.A refusal to follow the court may revoke to follow the earlier decision especially when it is not bound by the decision or can not overrule it but does not gaze to follow it.Distinguished where an earlier case is rejected as authority, either because the different material facts or because the statement of law in the previous case is as well as narrow to be properly applied to the new set of facts.Explained a judge may seek to study or discuss an earlier decision before apply ing it or distinguishing it, thus the impact of the earlier case is varied in the circumstances of the present case.A decision which is reached per incuriam is one reached by carelessness or mistake, and can be avoided. In Morelle v Wakeling 1955 2 QB 379 Lord Evershed MR stated that the lonesome(prenominal) case in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned.In Secretary of State for Trade and Industry v Desai (1991) The Times 5 December, Scott LJ said that to come within the category of per incuriam it must be shown that the decision obscure some manifest slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious ail in the administration of justice or significant injustice to citizens.However, this rule does not permit the Court of Appeal to ignore decisions of the House of Lords. In Cassell v Broome 1972 AC 1027 Lord Denning MR held the House of Lords decision in Rookes v Barnard 1964 AC 1129 to be per incuriam on the basis that it ignored previous House of Lords decisions. He was rebuked badly by the House of Lords who considered that the Court of Appeal really only meant that it did not agree with the earlier decisionEven if this is not so, it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords. (Lord Hailsham)There are three types of Precedent, Original, Binding and cogent. Precedent can be used instead of statutory law in civil cases. Precedent is also known as a common-law, whereby judges follow the outcome.Original Precedent If the point of law is absolutely new and has never been decided before, the decision then judge comes to will form a new precedent for subsequent cases. These cases are persuasive but not binding on the court.Original Precedent is whereby the case is new and has never been in trial, for eg. the cases heard regarding the 7th July 2005 London bombings were Original Precedent as the cases were never heard before a UK judge and hence this rulings would be Original Precedents.Binding PrecedentWhen a case involves a point of law, the lawyers for both sides will research past cases to try and find decisions that will help their clients win the case. A past decision is only binding if the decision is at the right level in the hierarchy and the facts of the second case are sufficiently similar and also Only the ratio decidendi of the earlier case is bindingIf a court previously decides on a case the same as the one in front, precedent would be used. For eg, if a person commits murder and there are circumstances whereby the judge ruled that this person is not guilty, then a case in advert standing or the case having the same circumstances, in a later ruling can use the precedent to find the person not guilty.Persuasiv e PrecedentA persuasive precedent is not completely binding on a court but may be applied. The examples can be given asa. Decisions of English courts lower in the hierarchy. For eg, the House of Lords may follow a Court of Appeal decision, and the Court of appeal may follow a High Court decision, even though not strictly bound to do so.b. Decisions made by the Judicial Committee of the Privy Council.c. Decisions made in the courts in Scotland, Ireland, the Commonwealth (especially Australia, Canada and New Zealand), and the USA. These decisions are usually cited specially where there is a shortage or absolute lack of English authority on a point.d. Obiter dicta of English judges.Judges use a tool called Distinguishing to avoid following a previous decision which they would otherwise be bound to follow. Distinguishing helps to keep judicial precedent and the law flexible.Where a judge founds that the material facts of the present case to be considerably different from the earlier cas e, then he may distinguish both d cases and refuse to follow earlier decision. For eg. Merritt v Merritt (1971) and Balfour v Balfour (1919)Judicial Law MakingDecisions of judges are used to develop many areas of the law, for eg. Tort of negligence.The speed at which the law develops mostly depends on whether the judge is an active or passive law maker.in the case of R v R (1991) an active law making can be seen, where the House of Lords ruled that rape within marriage was a criminal offence. Also in the case of C v DPP (1995) An example of passive law making can be seen where the House of Lords refused to change the presumption round criminal responsibility of children under the age of 14, thinking that it was the job of Parliament to make such major changes to our law.Like every coin has two sides, there are also advantages and disadvantages of Judicial PrecedentAdvantages* There is certainty in the law. Only by looking at existing precedents it is possible to forecast a decision and plan accordingly.* There is uniformity in the law. Similar cases will be treated in the same way. This helps to give the system a ace of justice and to make the system acceptable to the public.* Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to conciliate to new situations.* Judicial precedent is practical in nature. It is based on real facts, unlike legislation.* Judicial precedent is detailed. There is a wealth of cases to which to refer.Disadvantages* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.* Rigidity The system is too rigid and does not accommodate the law to develop enough.* Injustice The strict rules of judicial precedent can create injustice in individual cases* Slow Development The law is belatedly to develop under the system of judicial precedent. The law cannot be changed until a case on a particular point of law comes before one of the higher appellate courts.* Confusion Hundreds of cases are reported each year, making it hard to find the relevant precedent which should be followed.* Complexity The law is too complex with thousands of fine distinctions.