Answer:- The doctrines of binding precedent is concerned with the importance of case laws in English legal system. If one case has decided a point of law then it is logical that solution will be looked at in the future. The American Judge, Oliver Wendell said ‘the life of the law has not been logic it has been experience’, Miles Kingston put it another way: binding precedent means ‘A trick which has been tried before successfully’. According to Sir Rupert Cross, binding precedent indicates: all courts must consider relevant case laws.
Secondly, lower court must follow the decision of the courts above then in hierarchy. Finally, appellate courts are generally bound by their own decisions. As Lord Hailsham, the LC pointed out ‘in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the CA, to accept loyally the decisions of the higher tiers’. Before going to further discussion, the operation of precedent needs to be looked at. Before 1966, House of Lords was always bound by their own decisions.
In 1966 Practice Statement the Law Lords had decided ‘while treating former decisions of this House as normally binding, to depart from previous decisions when it appears right to do so’. If we look at the Court of Appeal, decisions are binding on the High Court and the county courts but they do not bind the House of Lords. In Young v Bristol Aero plane co. Ltd a full Court of Appeal of six members decided that CA Civil Division was normally so bound subject to the following three exceptions: * Where its own previous decisions conflict. The court of Appeal must decide which to follow and which to reject.
* Where to follow a decision of its own which conflicts with a decision of the House of Lords even though its decision has not been expressly overruled by the House of Lords. * Where an earlier decision was given per incaution (by carelessness, or mistakes or error). (Rickards v Rickards, Peak, Lane). If ECJ or ECTHR overruled a previous decision of CA then CA might not follow it. It is persuasive. In CA criminal Division, when someone’s liberty is at stake, precedent is not followed or rigidly.
Coming to the discussion on the pros and cons of binding precedent the most important advantage is that since cases are treated alike, litigants can plan their affairs and come to settlements with a certain amount of confidence. Case law is a response to real situations as opposed to statutes, which may be more heavily based on theory and logic. It allows the law to develop alongside society as happened in R v R. This case overturned a centuries old legal principle that a man could not rape his wife. Gillick can also be mentioned here. The right wing philosopher Hayek sees case law developing in line with market forces; if the ratio of a case is seen not to work, then it would not be followed.
In this way, the law can develop in response to demand. The existence of a precedent might prevent a judge making a mistake which he might have made if he had been left on his own guidance. It also saves court’s time as for most situations there is already an existing solution. Doctrine of binding precedent is based on a principle of fairness and justice. The interest of justice also demands impartiality from the judge. If he tries to distinguish an indistinguishable case, his attempt will obvious.
The process of overruling (Anderton v Ryan was overruled by R v Shivpuri), reversing (R v Kingston) and distinguishing (R v Jordan was distinguished in R v Smith) shows that there is flexibility to meet the needs of changing times. Hundreds of cases are reported each year, making it hard to find the relevant precedent which should be followed. The law is too complex with thousands of fine distinctions. The advantage of certainty is lost in this way. The rules of precedent means that judges should follow a binding precedent even where they think it is bad law or inappropriate.
This means judicial mistakes are perpetuated creating injustice unless someone has the money and determination to push a case far enough through the appeal system to the House of Lords for reconsideration. This system is too rigid and does not allow the law to develop enough. The convenience of following precedent should not be allowed to degenerate into a mere mechanical exercise performed without any thought. This sometimes leads the judges to take radical steps as taken in James & Karimi to correct the erroneous judgments of Camplin and Smith (Morgan).
It may be correct that criticism says it is not right of CA to decide such but it should be the HL to adopt Holey’s decision. Case laws are judicial decisions and the fact is that the judiciaries are overstepping their theoretical constitutional role by actually making law rather than applying it. In practice, judges sometimes have no choices but to embark on dynamic law- making. In the interest of the parties involved, a flexible stance is sometimes preferable but the doctrine of precedent should remain intact and the loyalty is towards the judges. Bibliography- * Subject guide, Wayne Morrison & Adam Gearey.
* English Legal process, Terence Ingman * English Legal system, Gary Slapper & David Kelly 878 words ——————————————– [ 2 ]. Doctrine of binding precedent – Binding Precedent refers to the way in which the law is made and amended through the decisions of judges. http://www. helpwithlawexams. co. uk/precedent. html [ 3 ]. Young v Bristol Aero plane- The plaintiff, who was employed at the defendants’ workshops, received injury in an accident arising out of and in the course of his employment and received compensation under the Workmen’s Compensation Acts.
He then sought to obtain damages in respect of the same accident, alleging that the defendants, in breach of their statutory duty, had failed to fence one of their machines which he was using. In their defense, the defendants pleaded: “In the further alternative the defendants say that the plaintiff before the commencement of this action claimed and received compensation under the Workmen’s Compensation Acts in respect of [the accident]. The plaintiff is thereby barred from recovering damages in respect of the said accident. ” This plea was based on s. 29, sub-s. 1, of the Workmen’s Compensation Act, 1925.
On the authority of a decision of the Court of Appeal in Perkins v. Hugh Stevenson Sons, Ld. ([1940) 1 K. B. 56), the commissioner gave effect to the plea in favor of the defendants. The plaintiff appealed. http://en. wikipedia. org/wiki/Young_v_Bristol_Aeroplane_Co_Ltd [ 4 ]. Gillick v West Norfolk & Wisbech- Mrs Gillick a Roman Catholic mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother’s consent.
It was argued on the one hand that teenage pregnancies would increase if the courts ruled that parental consent was necessary, on the other hand that the judges would be encouraging under-age sex if they did not. http://en. wikipedia. org/wiki/Gillick_competence [ 5 ]. Anderton v Ryan- The defendant had bought a video recorder, but later confessed to the police that she believed it to have been stolen property when she bought it. The defendant was charged with attempting to handle stolen goods, although the prosecution was unable to prove that the video recorder had in fact been stolen property. [ 6 ]. R v shivpuri- The defendant was paid to act as a drugs courier.
He was required to collect a package containing drugs and to distribute its contents according to instructions which would be given to him. On collecting the package the defendant was arrested by police officers, and he confessed to them that he believed its contents to be either heroin or cannabis. An analysis revealed the contents of the package not to be drugs, but a harmless vegetable substance. The defendant was convicted for attempting to be knowingly concerned in dealing with and harbouring a controlled drug, namely heroin. [ 7 ]. R v Kingston- Kingston had a business dispute with a couple.
They employed Penn to gain some damaging information on Kingston in order to blackmail him. Kingston was homosexual with pedophiliac predilections. Penn invited a 15 year old boy to his room and gave him a soporific drug in his drink. The boy remembers nothing from the time of sitting drinking the drink on Penn’s bed until waking the next morning. Penn then invited Kingston to the room and drugged his drink without his knowledge. Penn and Kingston then both engaged in gross sexual acts with the unconscious boy. Penn recorded the events and took photographs. Kingston was charged with indecent assault on a youth [ 8 ].
R v Jordan- The appellant and three others – all serving members of the United States Air force – became involved in a disturbance at a cafe in Hull, with the appellant stabbing a man named Beaumont, who was subsequently admitted to hospital. [ 9 ]. R v James & Karimi- James James killed his wife in 1979. He stabbed, punched and suffocated her. The couple had been separated for 5 months and she had formed a new relationship with another man. Four psychiatric reports were received by the court and the prosecution indicated that they were willing to accept a manslaughter verdict based on diminished responsibility.
James did not want to use that defense and pleaded not guilty to murder, but guilty to manslaughter on grounds of provocation. At the time of trial the law on provocation was as set out in R v Camplin i. e. only certain factors such as age could be taken into account. The psychiatric reports were not therefore put before the jury. Following the decision in Smith (Morgan), allowing mental characteristics to be taken into account, the defendant applied to the Criminal Cases Review Commission for referral to the Court of Appeal.
The CCRC referred the case to the CA, however, before the hearing of the appeal, the Privy Council decision in A-G for Jersey v Holley for was announced. Karimi Karimi, a Communist Freedom Fighter in Kurdistan came to England with his wife. His wife formed a relationship with another man, Kabadi, who was a friend of Karimi and also a freedom fighter. Kabadi came at Karimi with a knife and shouted ‘Besharif’ an insulting phrase meaning you have no honor. Karimi then disarmed him and stabbed him to death with the knife in a frenzied attack. The judge gave a direction based on Holley and the jury convicted.
The defendant appealed on the grounds that this was a mis-direction and the judge should have used the direction in R v Smith (Morgan). [ 10 ]. DPP v Camplin- The respondent, aged 15 killed K by hitting him with a chapatti pan. He was charged with murder, and his defense was provocation. His story was that K had buggered him in spite of his resistance and then laughed at him. The trial judge directed the jury that they must consider whether the provocation relied on had been sufficient to make a reasonable man, not a reasonable boy of the respondent’s age, in like circumstances act as the respondent had done.
The jury convicted the respondent of murder. The Court of Appeal allowed his appeal and substituted a conviction of manslaughter. [ 11 ]. Smith (Morgan)- D and V were alcoholics and friends. During an argument where the defendant accused V of stealing his tools, the defendant picked up a knife and stabbed him to death. D argued that he did not intend to kill or cause grievous bodily harm; that he was suffering from diminished responsibility; and that he was acting under provocation. http://sixthformlaw. info/02_cases/mod3a/cases_34_vol_provocation. htm [ 12 ]. Holley’s- http://sixthformlaw. info/02_cases/mod3a/cases_34_vol_provocation. htm.