Law Making – Judicial Precedent

The basic requirements of judicial precedent where met by the English legal system in the 1870's. Cases prior to the 1870's can still create precedent but the system of reporting was some what different to the modern system (M'Naughton, 1843) Binding Judicial Precedent This is a rule of law which must be followed by all inferior courts. E. g. the precedent created in M'Naughton by the HOL sets out the rules of insanity which must be followed by all courts in the system. Only the HOL, COA, and High Court can create binding precedent.

The binding judicial precedent stems from what is known as 'RATIO DECIDENDI' of the case. This is the reasons put forward by the judges on why they have reached this decision. The specific words of the decision form the rules which the inferior judge's must follow. The judge summarises up the reasons for the decision. This can run from anything from a few to dozens and dozens of pages. Everything said specifically about the case is the Ratio Decidendi. Inevitably the judge may discuss other possible situations.

E. g. what would have happened in the case of Collins if he had entered the building through the back door? These situations which do not directly relate to the case are known as the 'OBITER DICTA' which means 'things said by the way' unfortunately law reports do not identify which sections are ratio and which arte obiter of the case. The ratio and the obiter are decided later by fellow judges, Barristers, Solicitors, legal academics, and students of law.

Persuasive Judicial Precedent Where no binding precedent exists but a judge needs to reach a decision a new piece of legislation being tested for the first time. The judge may use a variety of sources to help persuade him what is the right decision. 1. Obiter Dicta – An appeal court judge in his obiter may have suggested how situations seminal to the one to the court might be dealt with if they were to arise. 2. Work of Leading Legal Academics – In all areas of law certain authors are leaders in their filed. They might have discussed the possibility of certain events occurring and then made a suggestion on how the problem might be dealt with. E. g. Smith & Hogan on Criminal Law

3. Other Legal Systems – If a similar legal problem has occurred in another legal system the English courts can use the success or failure to formulate law in this country. Persuasive legal systems particularly include Scotland, the EC, USA, and the Commonwealth. 4. The Decisions of other Judges – The COA for example in reaching a decision look at the detailed transcripts from the inferior courts. If for example a crown court judge has given a very good ruling, the appeal court judges will use this ruling to formulate their own ideas. Appeal court judges don't necessarily agree.

A judge who disagrees with the majority is described as dissenting. Such judges are allowed to state why they disagree with the decision. This may be useful later as persuasion for judges in lower courts. 5. The Privy Council – This is used by some commonwealth countries as their final court of appeal. The most senior English judges hear these cases. If these judges hear these cases in the HOL their decisions would be binding, when they sit in the Privy Council their decisions are highly persuasive. Everyday there is a possibility that someone will break the law in a new way.

This gives the courts the opportunity to revisit that area of law and question whether or not the law is in need of change. This means that the law is constantly updated. This also means that a statute which has been deliberately vaguely worded is constantly updated and can last for many years without the need for parliament to pass new legislation. E. g. S47 OAPA 1861 In the case of R v Constanza 1997 the appeals court decided that the word body meant the mind, as a result constanza was found guilty of ABH by stalking his victim causing her severe depression.

Disadvantages of Judicial Precedent 1. Precedent is too rigid The high court and the COA have always been able to change their own decisions; the HOL has been able to do this since the PRACTICE STATEMENT 1966. Although they can change their decisions they don't use the facility as much as they could. When the decision clearly contradicts a statute, E. g. Anderton v Ryan 1985 the HOL must act quickly to change the precedent. However, when the decision is common law perhaps created by the HOL, the HOL appears unwilling to overturn it.

E. g. C (a minor) v D. P. P 1995 the HOL had the power to abolish doli incapax as the COA had already suggested. However, the HOL overruled the COA suggesting the matter was one of parliament. 2. Complexity The advantage of precedent is that virtually every legal situation has been tested in the superior courts. Unfortunately this had now created around 1/2 million binding precedents. There is probably a precedent to answer every legal question; the problem is finding that precedent.

In the case of Dodds 1973 the COA assumed it was bound by a HOL precedent. In practice the COA couldn't find any ratio decidendi which was relevant to the case of Dodds. Computer technology will speed this process up. 3. Illogical distinctions A case which sets a judicial precedent is never likely to be repeated with exactly the same events. A judge dealing with a burglary case will never face the same circumstances as the case of Collins which creates the precedent on criminal trespass.

Some judges feel that judicial precedent restricts their legal creativity. To avoid precedent the constantly distinguish the case before them with the precedent being quoted. E. g. Donaghue v Stevenson established negligence when a person suffered physical injury and nervous shock. However, in the later case of Grant v Australian Knitting mills, Grant had to take his case all the way to the HOL because he suffered physical injuries but not nervous shock. A situation it was argued that was not covered by Donaghue v Stevenson.