Judicial Precedent

Topics: Precedent, Law, Common law Pages: 10 (4065 words) Published: September 27, 2012
Judicial precedent is the source of law where past decisions create law for judges to refer back to for guidance in future cases. Precedent is based upon the principle of stare decisis et non quieta movere, more commonly referred to as ‘stare decisis', meaning to “stand by decided matters”. A binding precedent is where previous decisions must be followed. This can sometimes lead to unjust decisions, which I will address when talking about the advantages and disadvantages of binding precedent. First I will address how the process of judicial precedent works, including the hierarchical structure of the courts, moving on to the advantages and disadvantages of using the doctrine. A binding precedent is created when the facts of a latter case are sufficiently similar to the facts of a previous case. The doctrine of precedent is often referred to as being a rigid doctrine. Within the court hierarchy, every court is bound to previous decisions made by courts higher than them. At the very top of the court hierarchy is the European Court of Justice, followed by the House of Lords, which is considered to be the supreme court as many laws do not concern European Union law. Decisions made by the House of Lords become binding on all other courts within the hierarchy. Below the House of Lords is the Court of Appeal, which has two divisions, Civil division and Criminal division. Both divisions are bound to decisions made by the House of Lords and the European Court of Justice. Additionally, they are bound to their own decisions, with the exception that the Criminal division is more flexible where a case involves a person's liberty. The Divisional Courts along with the High Court are also bound to decisions made by the House of Lords and the European Court of Justice, with the addition to the Court of Appeal, and the Divisional Courts in the case of the High Court. Between 1898 and 1966, the House of Lords were bound to their own previous decisions, making the law consistent due to rulings made in London Street Tramways v London County Council [1898]. In 1966, the Lord Chancellor issued a Practice Statement, stating, “the rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law”. It also stated that the House of Lords would be able to “depart from a previous decision when it appears right to do so” (supra n.2). The House of Lords attempt to follow the majority of past decisions. Exceptions include where unjust decisions result from following past decisions. When deciding cases, there is a test of subjective recklessness that is relied upon. This is where certain aspects of particular cases are taken into account. For example, in the case of R v Caldwell [1982], the defendant got sacked from a hotel that he worked at; and one night got drunk and set fire to the hotel, with the intention to cause damage to the property. However, there were also guests sleeping in the hotel. He was therefore charged with not only arson, but also with intent to endanger human life. Lord Diplock decided to remove the objective test, as being drunk was not seen as a defence for recklessness. In R v G [2003] the objective test was put back in as it was decided that the defendants should be judged with consideration to their age and understanding. Two boys, one aged eleven and the other twelve, camped in a yeard behind a shop with permission from their parents. They set fire to some newspapers, thinking that the fire would go out itself. However, the fire spread to nearby bins and finally to the shop. Over £1 million of damage was caused. The boys were unaware of the damage that they had caused as they had left before the fire spread. As they did not intend the damage it was decided that their infancy should be taken into account. In their defence, reckless behaviour is where the defendant is aware of the risk, and seeing as the boys did not intend the damage, the objective test was put back...
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