As stated the judicial precedent system relies heavily on an accurate system of law reporting. Even nowadays, with a computer database holding details of nearly half a million cases, it is still difficult to find the relevant case law. Even when the relevant case is found, it is often difficult to find the important ratio decidendi.
A persuasive precedent is different to a binding precedent in that the lower courts are unable to bind the higher courts to their decision, but can only be persuasive. As in the Mandla v. Dowell Lee case, we can identify how the House of Lords decision was swayed by the decision made in the Court of Appeal level in Australia. Decisions made within the Common Law world can only act as an aid to the reasoning and decision-making of higher courts in the U.K. Persuasion of the lower courts could either be followed, disapproved, or overruled. Persuasive precedent can also be derived from courts of the same level, for example, if the House of Lords decide that a previous decision on a case with similar material facts was decided incorrectly, they would simply ignore that decision, or, on rare ocassions, overturn that decision. This is evident in Regina v. Shivpuri (1987) and Anderton v. Ryan (1985) where the Law Lords decided Anderton had been wrongly decided as to criminal attempts and overturned its own decision in Shivpuri.
The system is also dependent on the strict hierarchy of the courts, which to a certain extent ensure that the most important decisions are made by the most experienced judges. However, the system is very ridged, and very often a precedent is in place that is completely out of date and therefore, not really of any use in today's society. Bad decisions made in the past may be perpetuated, and as few cases go to the House of Lords, likely to stay that way. Change in the law can only take place if the parties have courage, persistence, and not least, a lot of money to appeal their case. There are several ways that a judge is able to avoid using an existing precedent, which helps give some flexibility to the system. The one that all judges are able to use is distinguishing; a judge is able to use differences between the facts of his case, to those of the case, which made the precedent, in order to avoid having to be bound by it. This itself leads to the practice known as illogical distinction as a way of avoiding past decisions. Whilst a judge may himself believe that a past precedent is not good law in today's modern society and wishes to avoid using it in the case he is sitting on, he may, in order to do this, distinguish on a very small point which may appear illogical. Other ways of avoiding using an existing precedent, such as reversing and overruling, are available to judges in some courts, giving at least a certain degree of flexibility. However, it would appear that judges are somewhat, reluctant to use them, as understandably, to frequent use would undermine the certainty of the system.
In general, the Court of Appeal must adhere to the doctrine of stare decisis and follow the precedent of the House of Lords. However, in attempt to overturn this principle, Lord Denning M.R. tried to make a House of Lords decision per incuriam. A previous court ruling can be labelled as per incuriam, i.e. the decision oversaw a number of significant material facts before submitting a legal rule. This attempt was made and condemned later in the House of Lords in Broome v. Cassell (1972). Lord Denning M.R. tried to ignore the ratio in Rookes v Barnard (1964) with the reasoning that there was a significant oversight made by the Law Lords. When this case reached the House of Lords, Lord Hailsham stated, “In the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers”. This affirms the doctrine of precedent that lower courts cannot overturn the precedent set out in higher courts.
It is generally accepted by the legal profession that the law in some areas is in need of reform. As a start to reforming the existing system, it would help, if as, has been suggested, the Court of Appeal did not have to stand by its own previous decisions. The House of Lords, since the introduction of the practice statement in 1966, can ‘when it feels right to do so’ disregard previous decisions. However, as only about 50 cases a year are heard in the house, this is a very slow and inefficient way of making changes to existing law.
The last thirty years or so have seen an increased use or purposive interpretation. Quite likely we have Lord Denning to thank -- or blame -- for this, at least in part. Despite the frequent and vocal criticisms of his standpoint by the House of Lords, the view he espoused seems more in accord with recent authority. In Pepper v Hart (1993) Lord Griffiths said: ``The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.'' However, courts are still expected to keep in high regard the literal meaning of legislation, and only divert from it where to do so would give effect to the intention of Parliament, not to the moral, ethical or social views of the judges (and this is really what distinguishes the modern `contextual' approach from that of Denning, who was quite prepared to to a moral line on legislation). The use of a variety of sources to infer the context of legislation, including the intention of Parliament, and then to intepret the legislation as literally as possible within this context, is often referred to as the `contextual approach' in Sir Richard Cross's influential (1995) textbook on this subject. It has been approved by a number of House of Lords judgements that have considered the issue.
Also when a new precedent is written there maybe linguistic ambiguities therefore there are `three rules' of statutory interpretation: the literal rule, the `golden rule' and the `mischief rule'.
The literal rule simply means giving the text its ordinary, everyday meaning, and applying it exactly as written. This rule came into prominence in the 18th century. Parliament was becoming increasingly significant as a source of law, usurping the common law and the Royal prerogative. Until this time, the courts had tended to regard statutes as a device to plug holes in the common law. The increasing role of Parliament meant that courts tended to treat the exact wording of Acts as the voice of the legislature, and were disinclined to look elsewhere for sources of law. The rule itself is well expressed by Tindal CJ in the Sussex peerage Case (1844) "... the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver."
Although a strict application of the literal rule is no longer in favour, and judges are often heard to say that it is no longer of overwhelming significance, it remains true that English courts are more literal in their approach that those in most other jurisdictions.
The golden rule’s principle is to divert from the literal interpretation on as far as is necessary to avoid absurdity. The usual cited authority for this approach is Lord Wensleydale in Grey v Pearson (1857) "... the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity ... in which case the ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency but no farther." However, even in the widely-cited Tindal definition of the literal rule it was quietly recognized that it would not always be applicable: ``If the words of the statute are in themselves precise and unambiguous...'' Probably the most famous application of the golden rule is R v Allen (1872), a case of bigamy. The wording of the legislation at the time defined bigamy as being married more than once. Since the second attempt at marriage would be void it would be impossible, on such a definition, to commit bigamy. In this case it was held that bigamy meant to go through the ceremony of marriage a second time.
Of the three textbook rules, the use of the `mischief rule' was favoured by the Law Commission (reporting in 1969), and represents a somewhat more purposive approach to interpretation. The rule itself is venerable; the name is taken from Heydon's case (1584), and in outline says that the job of the judge is to determine what defect in the common law the statute set out to remedy. A broader, and more usual, reading is that the judge should apply what is ascertained to be the intention of parliament.
We may, in the future, as we move more towards the American way of life, find that we also have to move towards their, somewhat more relaxed attitude towards previous precedents. Perhaps it would be even better to judge each individual civil case, an area in which mitigating circumstances can, and do vary widely, on its own merits, whilst keeping to the precedent system for criminal cases where, certainty is of the law is crucial. Any equalities of the law that result are justifiable by the differing facts of each case.
With precedents there are advantages and disadvantages. The advantages are:
There is certainty in the law. By looking at existing precedents it is possible to forecast what a decision will be and plan accordingly.
There is 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 to make the system acceptable to the public.
Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations.
Judicial precedent is practical in nature. It is based on real facts, unlike legislation.
Judicial precedent is detailed. There is a wealth of cases to which to refer.
The disadvantages are:
Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.
There may be a considerable wait for a case to come to court for a point to be decided.
Cases can easily be distinguished on their facts to avoid following an inconvenient precedent.
There is far too much case law and it is too complex.
Whilst moves are being made in other areas, for example, the recent removal of most of the Hereditary Peers from the House of Lords to bring things more in line with today’s governments policy of openness, equality and not least, acceptability. A lot of work has yet to be done to make our legal system more efficient, in order for it to respond quickly enough to today’s societies, fast moving, ever changing values.
