• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

"Within the present system of precedent in the English legal system, judges have very little discretion in their decision making."

Extracts from this document...


Judicial Precedent Past year examination questions Zone A 2001 Question 2 "Within the present system of precedent in the English legal system, judges have very little discretion in their decision making." Judges have always been relied upon to interpret and apply the law. Therefore, their decisions should be fair and consistent so as the individuals seeking legal remedies would have more faith in the judicial system of the state. AS the UK has not a very complete and/or codified constitution, this doctrine is very much relied on as contrasted with other countries which seemed to have provisions for virtually any kind of offence, like France or the US where judges had only to refer to legislation. The doctrine of Judicial Precedent operates based on the principle of Stare Decisis, inter alia, to stand by past decisions to establish certainty, fairness and consistency as well as predictability. The rationale of this doctrine was made by Parke J in the early case of Mirehouse v Rennell [1833], where Parke J had stated that for the sake of uniformity, constancy and certainty, judges are not at liberty to reject or abandon precedents even if they feel that those rules were not as convenient or reasonable as they would have liked them to be. ...read more.


Dumbreck[1929] and in R. v. Howe [1987] over Director of Public Prosecutions for Northern Ireland v. Lynch [1975]. The Court of Appeal, however, though tried to overrule the precedents of the House of Lords in Morris v. Crown Office [1970] and later in Miliangos v. George Frank Ltd is still bound by the precedents set by the House of Lords. The Civil Division of the Court of Appeal is generally bound by its own decisions. This has been criticized by the former Master of the Rolls, Lord Denning in Davis v. Johnson [1979] as well as numerous other occasions. Lord Denning has claimed that judges in the Court of Appeal should be given the discretion as possessed by those of the House of Lords as it shall be more time consuming, a waste of resources and most important of all, utterly unfair to the appellants and even the public at large should the judges in the Court of Appeal lack the discretion to depart from previous precedents even when those decisions are clearly in the wrong. However, his views were unsupported by Lord Diplock as well as the other Law Lords in the Court of Appeal and though Lord Denning's efforts were amiable, he did not succeed. So, the Court of Appeal is generally still bound by its own previous decisions but is subjected to the three exceptions as led down by the case of Young v. ...read more.


So, at times, since there are quite a few precedents, when judges decide cases, they tend to choose to follow a precedent which they feel to be more in agreement with. This shows that judges in fact, do possess a certain amount of discretion. It has even been argued that in practice, judges seemed to have first come to decisions or conclusions of their own before actually searching and relying on precedents in line with their decisions to back them up. In the case of Merritt v Merritt [1970] CA, Balfour v Balfour [1919] was a prima facie precedent. Yet, the Court of Appeal held that a material fact, which was marital relationship, differs in both cases, thus Balfour was not a binding precedent. Lastly, in extremely rare occasions, a judge may choose not to follow a binding precedent if a particular point of law has been taken on appeal to the House of Lords and the lords have not yet ruled. Such was the case in Kingscastle v Owen-Owen (1999) CA where Hirst LJ declined to rule until the case of Fitzpatrick was decided. Therefore, basically, although it may well seem that judges has little discretion when interpreting and applying the law due to the nature of the doctrine of judicial precedent, it is only to a certain degree that judges are so bound. By: Sylvia Ching-Ye Kong Date: 1 August 2004 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our GCSE Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Here's what a teacher thought of this essay

4 star(s)

A good essay that considers the relevant aspects to precedent in some detail.

The student could improve this essay by citing a few cases and detailing some of the facts of the important precedents. This is particularly important when you have cases that relate, in some way, to one another.

4 Stars

Marked by teacher Edward Smith 23/10/2013

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related GCSE Law essays

  1. Marked by a teacher

    Distinguish Criminal law from Civil law in the English Legal System. Outline the jurisdiction ...

    4 star(s)

    Three types of judges sit in the court - High Court Judges, circuit judges and recorders. The latter are part time and hear the less serious cases. The judge has a vital role to play ensuring that a trial is conducted fairly but a jury normally comprising of 12 members selected at random from the electoral register decides the outcome.

  2. Marked by a teacher

    The three main rules of statutory interpretation are the literal rule, the golden rule ...

    3 star(s)

    The golden rule is an adaptation of the literal rule. This rule provides that words should be given their ordinary meaning as far as possible, but only to the extent that they do not produce an absurd result. The rule sometimes applied incorrectly.

  1. Marked by a teacher

    What is judicial precedent?

    3 star(s)

    persuasive authority and can be taken into consideration in later cases, if the later case consider it is appropriate to do so.

  2. There are four different types of law, criminal, civil, common and statuate. In this ...

    Regulation is needed in the police service because not only do they have to do everything in their power to protect and serve the public, they also have to stay within the boundaries of law achieving it. So they need to have a very high level of regulation to make

  1. Discuss the persuasive techniques used by Michael Moore in three scenes from his film ...

    The effect of the posters displaying unity and the visuals allow us to humanely connect with the scene and the individuals as Moore allows the observer to come to their own conclusion on their stance. The irony of the Wonderful World song is another example of satirical humor and indirectly

  2. Study the concept of Reasonable man and reasonability in tort law.

    The Reasonable Man is reproduced and cited in many modern British and United States legal books as it illustrates a key axiom of the common law - that many jury decisions are centered around the concept of the 'reasonable man'.

  1. Is the imposition of strict liability ever justifiable in criminal law?

    Even if a company has a fine imposed upon them, it is unlikely that this fine will surpass the amount the company would need to spend in order to avoid committing the offence initially. Alternatively, one might suggest providing more resources for the enforcement agencies, and bringing more prosecutions, as a stronger deterrent than strict liability.

  2. Was Saxon justice harsh and superstitious?

    Trial by hot iron was usually taken by women. The accused had to carry a piece of red-hot iron for three metres. Her hand was then bandaged and unwrapped three days later. If the wound was healing cleanly without festering everyone would know that god was saying she was innocent.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work