The inferior Courts

Magistrates and County courts are the inferior courts they cannot produce binding precedents or even persuasive ones; like the Crown Courts therefore are not bound by their own decisions. These inferior Courts are bound by the High Court, Court of Appeal and Crown Court. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 19) How judges avoid the strict operation of precedent All Courts were bound by precedents up until the Practice statement of 1966 was issued, which allowed the House of Lords to depart from its precedents when it seems right to do so.

(Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 13) Judges can avoid the strict operation of precedents by distinguishing, overruling, and reversing; a precedent can also be avoided if it seems to have been made per incuriam (in ignorance). By distinguishing the previous case from the current case based on the significant facts a Judge can avoid applying the precedent. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 20) Judges (of leading Courts) can overrule decisions made in lower Courts if it appears that the lower Court did not correctly apply the law.

The power to overrule the decisions of lower Courts is used sparingly in order to maintain the respect and authority of the lower Courts. (Elliot & Quinn, (2009) English Legal System, 10th Edition, Pearson and Longman: pg 20 When reversing a precedent, the case in which the precedent concerns would have been appealed to a higher court i. e. House of Lords and Court of Appeal; these Courts would then assess the case and if the lower Court has wrongly interpreted the law the decision will then be reversed. The process of reversing a lower Courts statement of law is seen as Overruling.

(Elliot & Quinn, (2009) English Legal System, 10th Edition, Pearson and Longman pg: 21) Judges can avoid precedents which have being made carelessly (per incuriam). (Elliot & Quinn, (2009) English Legal System, 10th Edition, Pearson and Longman: pg 18) The advantages and disadvantages of the operation of precedent Judicial Precedents are certain, making them predictable and giving litigants the opportunity to plan accordingly. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 30).

These Precedents are detailed and practical, therefore based on a lot of real life situations to refer to, as opposed to legislation which may be based on theory and logistics. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 31). Judicial Precedents are flexible (as seen above there are numerous ways in which to avoid precedents especially is they are ambiguous) enabling the system to adapt and make changes faster than parliament. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 31)

Judicial Precedents can be complex when it comes to deciding what the ratio decidendi of a judgement is, particularly if there are a number of reasons. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 31). Precedents are rigid, and lower Courts are bound by them even when they seem inappropriate, this means a bad judicial decision can last for a long time before it is presented before a court high enough to overrule it. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman: pg 31)

The operation of precedents as can be seen above follows a system of binding cases which are set by some higher courts and are binding on lower courts. These precedents become an authority used in similar cases at the lower courts and the principles of these authorities become the bases upon which the lower courts decide other cases before them.

BIBLIOGRAPHY

  • Catherine Elliot & Frances Quinn, English Legal System, 10th Edition (2009) Pearson and Longman
  • Carl F. Stychin and Linda Mulcahy, legal methods and systems, 3rd Edition (2007) Thompson, Sweet & Maxwell
  • Constitutional Reform Act 2005
  •  www.westlaw.co.uk