judicial precedent

Judges can also distinguish on a point of law and this is seen in the case R v Holley (2006), which overruled R v Smith (2000). In R v Smith (2000), Smith, who was an alcoholic, stabbed his friend McCullagh, with a kitchen knife after he apparently stole his work tools. He tried to claim that the mental disability he had could be considered for the defence of provocation and it worked. To claim provocation he had to prove that a reasonable person would act in the same way as he did.

So in R v Holley (2006), Smith was overruled as the judge decided that mental disabilities could not be considered for the defence of provocation. In this case a man killed his long term girlfriend after she came home and said she had just slept with another man. This had both been heavy drinking all day and when he picked up the axe to go and chop some wood she said 'You haven't got the guts'. He hit her seven to eight times with the axe.

R v G and R (2003) overruled Caldwell completely as the defendant must generally for see the risk to be liable, it was also seen as unfair. The academics had criticised the decision as parliament never intended to create an objective test.

Judges can also avoid precedent if they believe the case is outdated and not in line with the modern way of thinking. This is seen in Addie v Dumbreck (1929), which was overruled by the Herrington v British Railways Board (1972). In Addie v Dumbreck (1929) the court ruled that a duty of care was not owed to a trespasser.

In Herrington's case the child had got through a gap in the fence near the railway line and the board, as occupiers, was aware of previous trespasses but had failed to maintain the integrity of the fence. The House of Lords held that the occupier of the railway was liable as a duty of care was owed

Judges can also reverse decisions from a lower court is appealed to a higher one. The higher court can change the decision if they believe that the lower court has given the wrong one. They don't change the legislation only the decision. This is seen in Coltman v Bibby Tankers (1987). Employees at work had little or no protection from injuries, so the Employers Liability defective Equipment act 1969 was passed to provide protection from injury from equipment. However in the statute it clearly says equipment is any plant and machinery, vehicle, aircraft and clothing. So when a man lost his life on a ship when the hull had a defect, the Court of Appeal with bound to follow the act that the ship was not equipment. When it went to the House of Lords, they reversed the decision as the purpose was their in the act.

Advantages of judges being allowed to avoid precedent is certainty. A lawyer can provide a client with reasonable information as they know previous decisions that the judges have given and it makes the law very accessible to people as they know that decisions can't change, although there are some exceptions. The House of Lords' Practice Statement points out how important certainty is. There is also consistency and fairness in the law as it applies to everyone, what ever background they are. The law must be seen to be working consistency and credible.

Precision is very important as cases are used as evidence and therefore the law becomes very precise. Flexibility is useful as the Practice Statement can be used by the House of Lords to overrule cases, which allows the law to develop and avoid bad past decisions. It also saves times as if no precedents were created then every case would go to the House of Lords. Lower courts can apply the precedent, which makes the law cheap and saves lengthy the process of litigation.

Claire Thomas

5th February 2008