Precedent

Precedent is a legal principle which was created by a court decision and provides an example for judges to follow in deciding similar cases in the future. Courts can find precedent as a direction they want to go in deciding the outcome of a particular case. Decisions of a lower court are not binding on a higher court, though from time to time a higher court may come to the same conclusion of a lower court. A decision in a previous case with facts and law similar to a case currently before a court, (R V R 1991) Precedent can be used to govern the outcome of the matter before the court, unless a party (Defense or Prosecution) can prove that it was wrongly decided or different in some significant way. If there is no precedent then the judge will apply general principles guided by a great publicist (a writer on International Law) and the Rule of Roman law. The Court of Appeal is bound by its previous decision unless there are two conflicting Precedents on the same issue. Where a Court of Appeal judgment is inconsistent with the House of Lords Decision Where a Court of Appeal decision is decided Per Incuram.

The advantage of Certainty is that it is possible to be more accurate in predicting what the Law is in a particular area, and therefore what the outcome would be if a matter was to be determined by the Court. Judges face a dilemma. The Judges who applies an old rule to a new case may cause an injustice if that old rule is out of date. The rule might be wrong or inappropriate or too harsh or irrelevant because of new circumstances.

There is an argument that predictability is essential to the rule of law, that everyone should be subject to the same law and know what the law is. This is achieved when there is certainty. Precedent is a guide to solution of new problems in. In his book The Discipline of Law Lord Denning stated that he was not against the doctrine of precedent, but thought that a precedent should apply unless the Judge thought it caused an injustice. Rigidity could lead to injustice and restrict the development of Law. Therefore, the courts have had to develop an approach that strikes a balance between certainty and rigidity. The House of Lords have tried to achieve this by saying that the Practiced statement 1966 could be sparingly used and being very firm that the court of appeal cannot take a similar approach.

There are different types of Precedents:-

Persuasive Precedents A Precedent that is not generally followed or binding but can be considered by a judge. A source of Persuasive Precedent is when a court lower in the hierarchy (The House of Lords) agreed with and followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife. RVR 1991. In this case the law lords followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife. Another source is the decision of courts in other countries. They have to use Common Law System. This applies to countries such as Canada, Australia and New Zealand. Courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through the adoption of the persuasive precedent by a higher court. And this is due to per incuram.

Original Precedents A Precedent when there has never been a judgment on a point of law in a case, then the Judges decision will form a new precedent for future cases to follow. The Judge may find a case closest in principal to the one he is deciding on and may use similar ruling. This is called Reasoning by Analogy. The judge is creating a new law. Authoritive Precedent. A Precedent that must be applied or followed. A lower court must follow the rulings of a higher court (within the appeals path of cases the court hears) if the judge in the present case disagrees with the Legal Principal. Authoritive Precedents must be sufficiently similar as well as being made by a Senior Court or sometimes the same level court. Given determination as to the governing jurisdiction, a court is "bound" to follow precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: The question resolved in the precedent case is the same as the question to be resolved in the pending case. Resolution of that question was necessary to disposition of the precedent case. The significant facts of the precedent case are also present in the pending case. No additional facts appear in the pending case that might be treated as significant.

In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to define the precedent before overturning it, thereby limiting the scope of the precedent in any event. Declaratory Precedent. This is an already existing Rule of Law. There need never have been a specific case decided on the same or similar issues in order for a court to take notice of customary or traditional precedent in its deliberations. This Precedent is the first to be recognized by the court and judges.

In 1966 with the Practice Statement the House of Lords adjusted the balance in favor of greater flexibility in certain circumstances. In contrast to the House of Lords, The Court of Appeal is bound by its previous decision unless there is one exception in the case of Young V Bristol Aeroplane (1944) can be made.

Where there are two conflicting precedent on the issue. Where a Court of Appeal decision is inconsistent with the House of Lords decision Where a Court of Appeal decision is decided Per Incuriam.

In Davis V Johnson (1979) Lord Denning said and argued that for a Principle the Court of Appeal should be able to depart from its previous decision if convinced that they were wrong. The principle is that justice should be done in each individual case, since in many cases the Court of Appeal is the last resort for the Penurious Litigant. It is financially impossible in many cases to appeal to the House of Lords; therefore the change is desirable. He also said that the Lord Justice of the Court of Appeal are experienced lawyers accustomed to setting Precedents that are well reasoned and long lived. The Human Rights Act 1998 marks a major development on Precedent. The Act 2000 gives all the courts considerable freedom to ignore precedent when deciding points of law under the European Convention on Human Rights. Interpretation Act 1978: This Act consolidates the Interpretation Act 1889 and various other enactments relating to the construction and operation of statutes and legislation made under statutory authority.

Criticism of Precedent Over-reliance by American lawyers on Binding and Persuasive Authority, rather than the merits of the case at hand, as a major factor behind the escalation of legal costs during the 20th century. Courts should ban the citation of Persuasive Precedent from outside their jurisdiction, with two exceptions: Cases where the foreign jurisdiction's law is the subject of the case.

Instances where a litigant intends to ask the highest court of the jurisdiction to overturn Binding Precedent, and therefore needs to cite Persuasive Precedent to demonstrate a trend in other jurisdictions.

Lord Salmon however, point out that the Lord Justice would introduce too much uncertainty into the appeal process. Therefore, the Court of Appeal should play the constitutional role of apply the law as it exist and leave the development of the law to the lords. Decisions of the European Court of Justice on matters of community law are binding on English Courts. It tends to follow its own previous decision though it is not bound to do so. Where there is a Hierarchy of Tribunal decision of the Appellate Tribunal will bind lower tribunals. Tribunals are not allowed to lay down precedents on themselves. They must decide each case on its own facts.