Law: Sources of Law - Exercise on Judicial Precedent.

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Robert McEwan

Law – Sources of Law

Exercise on Judicial Precedent

2. (a)

The doctrine of binding precedent denotes that decisions made by superior courts are binding on the courts which are below it. This doctrine depends on the hierarchy of the courts. All courts stand in definite relationship to one another. A court is bound by the decisions of a court above itself in the hierarchy and, usually, by a court of equivalent standing. The relevant courts in the hierarchy are, beginning with the lowest: Magistrates’ Courts, County Courts, the Crown Court, the High Court, the Court of Appeal and the House of Lords.

Decisions made in the House of Lords are binding on all other courts throughout the system. In the past the House was bound by its own decisions, but through the Practice Statement of 1966 they can depart from a previous decision when it proves ‘right to do so’, shown through Source A. An example of the use of the Practice Statement 1966 is R v Shivpuri; the House of Lords overruled its earlier decision in Anderton v Ryan. In the first case it had found a person not guilty of attempt to handle stolen goods where a video machine turned out not to be stolen.  The second case was about an attempt to smuggle drugs which turned out to be vegetable matter, the House of Lords held he was guilty of attempt as he had attempted to smuggle drugs and the fact that it was not drugs was irrelevant.  Thus you can attempt the impossible. The Court of Appeal (Civil Division) is bound by the House of Lords and its own decisions. There are however, three exceptions to the rule that the Court of Appeal is bound by its own decisions (these are described in the second question). The Court of Appeal (Criminal Division) is the same except that it’s more flexible where the point involves the liberty of the subject. The High Court and Crown Court are bound by all courts above it and decisions made are persuasive on it. Similarly, the County Court and Magistrates Court are bound by all courts above it but are not bound by decisions made by themselves. Divisional Courts are bound by the House of Lords, the Court of Appeal, and as shown through Source B are bound by themselves. This doctrine of binding precedent does, however, retain some element of flexibility, and this is best described by two principles: first, that superior courts have power to overrule decisions of inferior courts and, in certain cases, to overrule their own earlier decisions, and secondly, that any rule of law may be changed by statute. This system has various advantages and disadvantages. The advantages are mainly certainty, precision and flexibility, while the disadvantages are seen as rigidity complexity and the slowness of growth within certain areas of the law.

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The ratio decidendi is the legal principle used to reach the decision in a case. It forms the binding part of the judgment i.e. the part which has to be followed through the doctrine of binding precedent. This in turn leads to another crucial distinction. Not every statement of law in a judgment is binding. Judges are able to distinguish between cases if the facts are significantly dissimilar; a judge is not then bound by the previous case. Two cases demonstrating this process are Balfour v Balfour (1919) and Merritt v Merritt (1971). Both cases involved a wife making a claim against her husband ...

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