Judicial Precedent

1. Judicial Precedent Advantages and Disadvantages

2. Lesson Objectives • I will be able to state the advantages and disadvantages of the doctrine of precedent • I will be able to use examples relevant to those advantages and disadvantages • I will be able to state the advantages and disadvantages of the methods of avoiding precedent • I will be able to use examples relevant to those advantages and disadvantages

3. Advantages of the operation of precedent

4. Consistency • Bring consistency to the English legal system • Case with similar facts will be treated in the same manner • Prevents judges making random decisions • Promotes justice and equal treatment • Law remains the same, which helps people plan their affairs

5. Predictability • Lawyers are able to advise their clients with some degree of certainty • Predictability is important in determining who should qualify for Government help in funding their legal action • The Government does not fund cases which have little chance of success as this would be a waste of taxpayers’ money

6. Flexibility • Judges can develop the law – e.g. overruling an out-dated precedent • House of Lords can use the Practice Statement – meaning the law can be developed in areas not considered important by Parliament • Modernising decisions may prompt Parliament to review legislation and bring I in line with precedent – R v R (1991) – Parliament amended the Sexual Offences Act 1956 – stating that marital rape is a crime

7. Detailed Practical rules • There is a wealth of detail contained in the reported cases. The principles set out in the cases are a response to real-life situations which have occurred and can be a guide to future litigants

8. Original Precedents • The doctrine allows for new or ‘original’ precedents to be created • An original precedent makes legal provision on a matter for which there was previously no law • Gillick v West Norfolk and Wisbech Area Health Authority (1985) – HoL deciding on whether girls under 16 could be prescribed contraceptives without parental consent. This issue had never arisen before

9. Disadvantages of the operation of precedent

10. Complexity • Judgements can be complex and it can be hard to decide the ratio decidendi of a case • In CoA and HoL there is more than one judgment to consider and a common ratio decidendi has to be considered by judges in future cases • A judge can give more than one ratio – Rickards v Lothian (1913) – water flooding

11. Volume • It is difficult to research the law • Hundreds of judgements are made every year • This means someone may have to sift through many volumes of law reports • Complete official law reports are estimated to run to almost 500,000 pages!

12. Uncertainty • By using the mechanism of distinguishing cases and other methods of departure, the judges can avoid following precedents. This causes uncertainty as to how cases will be decided

13. Rigidity • An unjust precedent can lead to further injustices. E.g. once the HoL sets an unfair precedent, it cannot be overruled unless and until another case of similar fact goes to the HoL on appeal. This might not happen for many years • The law may be out of date and need modernising – Batty v Metropolitan Property Realisations Ltd • Judges can be reluctant to change the law – President of India case (1984)

14. Unconstitutional • It is often argued that judges are overstepping their constitutional role by actually making the law rather than simply applying it • It is the role of Parliament to create law and the role of the judiciary to enforce/apply it

15. Undemocratic • Only persons who are elected, that is, the Government and MPs should be able to create law. The judges are not elected and should therefore not engage in law-making.

16. Retrospective Effect • Unlike legislation made by Parliament, law created by judges is backward-looking. • It applies to events that occurred before the case came to court. • This is unfair as the parties involved would rightly have considered themselves to be acting within the law – R v R (1991) the husband had not been acting illegally when he subjected his estranged wife to sexual intercourse without her consent • Case law is retrospective whilst legislation is prospective

17. Lack of Research • Unlike legislation which is made with the benefit of research by interested and knowledgeable bodies, there is no opportunity for the judge to commission research or consult experts on the likely outcomes of their decisions. • Judges make their decisions based on the arguments they hear before them in the courtroom

18. Advantages of the methods of avoiding precedent

19. Potential for Growth • Case law is not completely rigid because judges are able to avoid precedent • This gives judges the opportunity t modernise and develop the law – Hall v Simmons (2000) overruling Rondel v Worseley (1967) is an example. – Barristers no longer immune from being sued for the work they do in court

20. Unfair Laws can be replaced • Sometimes unfair precedents can be developed – the methods of avoiding precedent allow these unfair laws to be abandoned – RVG and R (2003) – recklessness now a subjective test rather than objective – Caldwell (1981)

21. Disadvantages of the methods of avoiding precedent

22. Retrospective Law Making • When judges avoid precedent, they change the law. This is unjust because precedent applies to events that have already happened – R v R (1991) the defendant was following principles laid down in Sir Matthew Hale’s work the ‘History of the Pleas of the Crown’

23. Uncertainty • The possibility of judges avoiding precedent makes the outcomes of cases uncertain • This is not desirable. Because justice requires that people are treated in the same way and know how to conduct their lives within the law • Makes it problematic for lawyers advising clients • Certainty is desirable especially in criminal law where the defendant’s liberty is at stake – Howe (1987) overruling DPP v Lynch (1975) stating that duress is no longer a defence to murder or an accessory to murder

24. Non-Conformity with the Separation of Powers • When judges avoid following precedent, unless they do so to conform to the requirement of an Act of Parliament, they inevitably create new law • This goes against Montesquieu’s theory of separation of powers