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In any community laws are laid down to regulate and guide the actions of its citizens. Failure to adhere to these laws, results in a person committing a crime which is an act or omission prohibited and punishable by law. When a crime is committed it is the due care and responsibility of judges to decide the punishment or remedies to be carried out on the offender. In deciding the punishment or remedies to be carried out, judges rely on the doctrine of binding precedent to provide judgment on a case.
A precedent, in the English Law System, is a previous court decision which another court is bound to follow, by deciding a subsequent case in the same way.
The doctrine of binding precedent started under the ruler-ship of King Henry II, in an effort to centralize the administration of justice. He sent royal commissioners round on a tour or circuit, to deal with local problems and legal disputes. They became known as Circuit Judges.
The circuit judges provided uniformity in the administration of law, as decisions on cases were recorded and a unified decision to mete punishment or remedies in local disputes were acquired, and became known stare decisis which means “to stand by a decision”. This formed the basis for the doctrine of judicial precedent (case laws) in which a judge would be bound to rules on a case based on the ruling of a previous case who’s facts are materially similar in a nature to the one currently being ruled on.
Precedents can be binding, that is it must be followed in later cases, or merely persuasive, where it may or may not be used to influence later cases, as judges are not bound by them. To determine if a precedent is binding or persuasive, the judge would have to consider these main factors:
1. The Material Facts Of The Case:-
In order for a precedent to be binding on a judge in a latter case, the material fact of the two cases must be similar.
2. The Hierarchy Of The Courts
The higher up the court is in the court structure, the greater their ability to form a binding decision on the lower courts. The hierarchy of courts was established by the Judicature Act 1873- 75 and the Appellate Jurisdiction Act 1876.
Judicial Precedent In The Hierarchy Of The Courts
European Court Of Justice:- Since joining the European Communities in 1973 under S3(1) of the European Communities Act 1973, all English courts have been bound by the decision of the European Court Of Justice (ECJ) in matters of European Law. The European Court tends to follow its own decisions but is not strictly bound by them.
The Supreme Court/ House of Lords:- The House of Lords was replaced by the Supreme Court from 1st October 2009. The Supreme Court will carry out the same jurisdiction as the House of Lords, and the current law lord will take office as justices of the Supreme Court. The Supreme Court is the highest court of the English Law System, except in the matters of European Law. Its decision binds all English courts even itself up until 1966, when the Lord Chancellor introduced the PRACTICE STATEMENT. The PRACTICE STATEMENT of 1966 stated that the House of Lords would no longer regard itself absolutely bound by its own precedents, an example of this is seen in the case Miliangos v George Frank (Textiles) Ltd ) in which the house overruled its previous decision in Re United Railways of Havana & Regla Ware House Ltd  case, forming an entirely new precedent, despite the fact that the two cases were the same. The court held that the English Court may award damages in a foreign currency. It should be noted that despite the fact that the House of Lords has freedom to depart its previous precedent it has not been exercised very often.
The Court of Appeal: – The Court of Appeal decisions are binding on itself e.g. Young v Bristol Aeroplane Co (1944) and all inferior lower courts of the English Legal System. The Court of Appeal decisions are bound by decisions made in the Supreme Court and the European Court of Justice.
The High Court:-The High Court decisions are binding on all lower courts and a high court judge sitting alone. It consists of three divisions: the Queen Bench Division, Family Division and the Chancery Division.The High Court decisions are bound by the courts that are higher on the court structure, such as the Court of Appeal and the House of Lords. A divisional court may depart from a decision previously made by another divisional court if it believes that the previous decision was wrong e.g. R V Greater Manchester Coroner, ex porte tal .
Crown, County and Magistrate Court and Tribunals: – Their decisions are not binding on any court in English Legal System, not even itself. However the decisions made in the Crown Court are highly persuasive.
3. The Ratio decidendi & Obiter dicter
The ratio decendi of a case is the point in a case which determines the judgment or the principle which the case establishes. When a judge delivers judgment in a case he outlines the facts which he finds have been proved on evidence, then he applies the law to those facts and arrive at a decision for which he gives the reason. This reason is the ratio decendi which forms the binding precedent which must be followed in future cases containing the same material facts.
The obiter dicter, Latin for a statement said by the way, although included in the court’s opinion do not form a binding precedent. However, they can be strongly persuasive. Instances where a court opinion may include an obiter dicter are:
Where a court rules that it lacks jurisdiction to hear a case or dismiss a case on technicality. If a court in such a case should offer an opinion on the merits of that case, the opinion will constitute an obiter dicter.
Where the judge in explaining his rule provides a hypothetical set of facts and explains how he or she believes the law would apply these facts.
Where a judge makes side comments in an opinion to provide context for other parts of the opinion.
WAYS IN WHICH PRECEDENTS CAN BE AVOIDED
Even if a precedent appears to be binding there are a number of grounds on which a court may decline to follow it:
If the decision was made per incuriam, that is a decision reached on carelessness or forgetfulness of an inconsistent statutory provision.
Overrule: – where an earlier decision made in a lower court is overturned because it is not in agreement with judges in a high court. The previous decision will still stand but just not followed in later cases.
Reversed: – upon successful appeal to a high court, if the lower court wrongly interpreted the law, the higher court could reverse its decision, overruling its statement of law.
Distinguish: – where the facts are significantly different from an early case. The judge distinguishes the two cases and need not follow the earlier one.
ADVANTAGES OF PRECEDENT
Flexibility: – Precedents can be avoided in many ways and this enables the system to adapt to new situations, to meet the needs of a changing society.
Certainty: – judicial precedents provides certainty of the outcome of a case, making it possible to forecast what a decision will be and plan accordingly by looking at existing procedures.
Detailed practical rules: – judicial precedent is set by real cases as oppose to statutes which are more theoretical and logical. These cases show in detail the application of the law enabling judges to make an accurate informed decision on a case.
Uniformity in the law: – similar cases will be treated in the same way. This is important to give the system a sense of justice and make the system acceptable to the public.
DISADVANTAGES OF PRECEDENT
Ridgity: – judicial precedents forces judges to stand by a previous decision, this encourages bad judicial decisions to perpetuate for a long time before a successful appeal is heard to overrule setting a new precedent.
Uncertainty & Complexity; – the advantage of certainty can be lost if there are more than one judges sitting on a case forming more than one ratio decidendi. This makes it difficult and more complex to determine which ratio will bind future case of similar nature.
Volume & Timelines: – it takes a long time for cases to be decided upon as judges have to find the ratio of a case which may be buried in a large volume of law reports from existing cases.
Degradation of lower courts: – the overruling of a lower court’s decision by a higher court on an appealed case weakens and lowers the respect of that lower court.
The use of a binding precedent to decide cases reduces the possibility of judges making bad decisions and ensures that access to justice is rewarding to all litigants.
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