Methods to avoid unwanted precedents: distinguishing, reversing, and overruling
Special methods for the Supreme Court and Court of Appeal to avoid past decisions: Practice Directions 3 and 4, and exceptions in Young v. Bristol Aeroplane
Current tutorial: Evaluating the doctrine of judicial precedent by examining its advantages and disadvantages
Importance: Possible exam question on evaluating judicial precedent
Advantages of Judicial Precedent
Consistency and Fairness
Leads to a just system: Similar cases are treated the same way, ensuring fairness
Impartiality: Judges apply binding ratios from previous cases, reducing decisions based on prejudices
Example: “Duress is no defense to murder” rule from House of Lords
Certainty in Law
Predictable outcomes: Lawyers can advise clients accurately based on previous decisions
Example: House of Lords decision that duress is no defense to murder creates certainty
Flexibility
Adaptability: Higher courts can overrule outdated decisions
Example: House of Lords decision in R v. R (marital rape became a crime)
Practical solutions: Judges reason by analogy to address unforeseen situations
Example: Inflicting HIV can amount to GBH as seen in R v. Dica
Facilitates Legal Growth
Original precedent: Judges set new precedents for cases never decided before
Example: Donoghue v. Stevenson developed the neighbor principle for duty of care
Judicial Learning
Experience sharing: Lower court judges learn by applying decisions of higher courts
Disadvantages of Judicial Precedent
Complexity
Difficult to identify ratio decidendi: Legal judgments are complex and hard to interpret
Example: Dodd's case, where Court of Appeal justices struggled to find the ratio from the House of Lords
Increasing volume: Every year brings more cases and legal decisions, complicating the application of precedent
Uncertainty
Surprises from overruling or distinguishing cases: Uncertainty when judges unexpectedly overrule or distinguish decisions
Example: Murphy v. Brentwood overruled Anns v. Merton after 12 years
Rigidity
Stare decisis: Law can become outdated due to strict adherence to precedent
Example: R v. Brown (sadomasochism and consent) remains unoverruled, causing rigidity
Unconstitutionality
Judicial law-making: Judges effectively make laws, which is against the principle of separation of powers
Undemocratic: Judges are not elected representatives
Narrow social spectrum: Judges from a narrow social background making impactful decisions
Retrospective Effect
Punishing past legal actions: Decisions can have retrospective effect, punishing actions that were legal when committed
Example: R v. R (marital rape) decision applied retroactively