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

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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.  Till today, the reasons for its use are still valid in most cases, thus, the doctrine is regarded as a general rule in the UK.

         An example of the doctrine of binding precedent can be seen in the case of Shaw v. DPP which relates to conspiracy to corrupt public morals, where the decision was followed by Knuller v. DPP.  Although the doctrine of stare decisis seems quite similar to res judicata, which also means ‘to stand by past decisions’, there is a slight variation. The difference between the two would be that when applying the res judicata principle, the decisions of the courts will be binding on future courts unless it is reversed, whilst the doctrine of stare decisis, established that even if the decision is reversed, past decisions would nonetheless be binding.  It is the general principle for judges to follow the decisions made by previous judges of the same or higher rank, when the circumstances and/or material facts of a case are similar to that of the present, based on the set of principles previously let down, known as the ratio decidendi.  

The ratio decidendi is the main principle and/or legal reason in which a case is decided, therefore, the principle led down is binding.  However, it must be noted that this should not be applicable for cases decided per incurium or any other situation where the decision can only be restricted to its unique facts such as in the cases of R v. Larsornneur [1933] and Winsar v. Chief Constable of Kent [1983].  As for the obiter dictum, which means ‘things said along the way’, it is generally not binding as it is merely some persuasive argument or examples that judges tend to say in order to establish the reasons behind the ratio.  Bowen LJ defines obiter dictum as a set of facts which were not in issue in the case.   Yet, in some cases, even the dictum can be binding, especially if the dictum was led down by notable and esteemed law lords, such as in the case of Central London Property Trust Ltd. v. High Trees House Ltd. [1947].  

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The doctrine of precedent has existed for quite a while, but it was not until 1865 when the Council for Law Reporting was established and modern reports were published, that it became fully functional.  Before that, law reporting was rather unreliable and resulted in the application of the doctrine of precedent being impractical.   The settled hierarchy of the courts since 1876 has also further enabled the doctrine of precedent to be more precisely executed.  Since then, judges are said to be very much bound to follow precedents.

By virtue of section 3 of the European Communities Act 1972 and section 2 of the ...

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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