"Judicial Precedent must be followed even if a judge thinks that the decision is wrong", discuss.
QUESTION : "JUDICIAL PRECEDENT MUST BE FOLLOWED EVEN IF A JUDGE THINKS THAT THE DECISION IS WRONG". DISCUSS. A precedent is a previous case that serve as an example to be followed. In Mirehouse v Rennel (1833), it was clearly stated in the opinion of Baron Parke given to the House of Lords that precedent must be regarded in subsequent cases and it was not for the courts "to reject and abandon all analogy of them". The doctrine of binding precedent became firmly established only after the second half of the nineteen century. It was encouraged by the declaratory theory of the common law. The principle behind this doctrine is that a decision made by a court in the superior court in the system, is binding on other courts in the subsequent cases where the facts are similar. It is firmly for the requirement of certainty, uniformity, consistency and flexibility of the law. There are two requirements that must be followed if a precedent is to be binding. First of all, there must be a ratio decidendi statement. It is a statement of law raised by the facts found upon which a judicial decision is based. This is in contrast to other statements of legal principle put forward in a judgment which are not directly relevant to the matters in issue. Such statements are called obiter dicta. Secondly, the court must have a superior or if not, an equal status to the court considering
"Justice should not only be done, but should manifestly and undoubtedly be seen to be done." - Lord Hewart
"Justice should not only be done, but should manifestly and undoubtedly be seen to be done."1 - Lord Hewart "This is not about your client's harsh upbringing, nor their life-story, this proceeding regards the law."2 - District Court Judge Introduction The popularised image of courtroom dramas in no way prepared me for the everyday realities of our court system. Interestingly, glimpses of this over-dramatised form of the law appeared on occasions, through the conduct of enthusiastic prosecutors or dry magistrates. The marked separation in formality, conduct and atmosphere of each court was of more surprise than the variations in procedure. The local courts were characteristic of what might be called 'assembly-line law', where large numbers of cases were dealt with summarily, the magistrate often taking only minutes to move the accused on. The cases were simple and repetitive, it became difficult to see the participants as individuals, instead of yet another number to be dealt with. The complexity of the Supreme Court was very different, and the situation far more reflective of the discourse of justice and rationality that the law promotes. Whilst there is clear merit in the argument that different tiers of justice exist3, it is generalist to argue it is the result of an insidious state ideology. Communication difficulties, unrepresented defendants, and uncompromising
"Looking at the rules alone is inadequate - It assumes that judges actually do adjudicate in the way in which the rules say they should" - Discuss with reference to the 'rules' and examples of the operation of precedent and statutory interpretation.
"Looking at the rules alone is inadequate. It assumes that judges actually do adjudicate in the way in which the rules say they should". Discuss with reference to the 'rules' and examples of the operation of precedent and statutory interpretation. The statement seems at first glance to offer a much generalised and often contested view of the separation of powers embodied in constitutional theory. That is to say that Parliament makes laws and the judiciary as slaves to the rules, should simply apply them to a particular case. This perhaps is what 'ought' to happen, according to the fundamental nature of rules and the impression that word 'rule' renders; i.e. that following a particular pattern cannot lead you astray. However the broader implications of this narrow position is that judge's decisions are straightforward and mechanistic in appearance, which as we shall see in the operation of precedent and of statutory interpretation, could not be further from the truth. The obvious starting point for this piece of writing is to state that the rules governing statutory interpretation and precedent 'should' be foolproof. After all, anything contrary to this would call into question Parliamentary Sovereignty and it's competence in performing its legislative functions. But to submit to the assumption that judges adjudicate only according to the rules leaves us open to much
The tort of negligence relating to claims for psychiatric injury.
Until relatively recently, the tort of negligence relating to claims for psychiatric injury was very uncertain. However, in recent times, this area of the law has become slightly more certain with the laying down of various guidelines and criteria governing whether an individual can recover damages as a result of witnessing an event which causes them some form of psychiatric injury. As a result, there are various issues connected with whether a/various claimant(s) can recover damages (for psychiatric injury) as a result of a defendants' negligence and these will be looked at in depth. However, before the compensation claims, of the various individuals involved, can be discussed, it maybe necessary to define precisely what is meant by (negligently inflicted) psychiatric injury. Psychiatric Injury is defined as: 'a sudden assault on the nervous system' or 'a sudden appreciation ... of a horrifying event, which violently agitates the mind'1 These definitions suggest that the psychiatric injury must be shock induced i.e. a traumatic event which has an impact (there and then) on the mind. When assessing a person's claim for compensation for psychiatric injury it is important to make a number of distinctions. First, is the person claiming a primary or secondary victim and secondly, the type of shock caused - is it long or short term. The first person seeking
The tort of negligence.
Tort coursework In the tort of negligence three things need to be proved in order for an action to succeed, the first being that the defendant owed a duty of care to the plaintiff, the second being that the defendant breaks that duty of care within the standard of care required by law and thirdly this breach of duty of care results in damage to the plaintiff. This damage must be recognised by the law.1 In the case of Donoghue v Stevenson2 it was said that " you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question."3 Rogers believes that this "statement must be the most influential in any decision on any subject in the history of the common law in England."4 Rogers believe is generally very true as the main concept of negligence comes from that case and that statement. Following this case came the case of Dorset Yacht Co. Ltd. V Home Office [1969]5 where Lord Denning stated "at bottom a matter of public policy which we, as judges, must resolve. This talk of 'duty' or 'no duty' is simply a way of limiting the range of
Reform of the ultra vires rule.
Company Lawyer 987 Article REFORM OF THE ULTRA VIRES RULE Robert R. Pennington. Abstract: Prentice report. *103 In the following article Robert Pennington [FNa1] examines the proposals for reform of the ultra vires rule as put forward by Dr D Prentice in the consultative document commissioned by the DTI. Background In October 1986 the Department of Trade and Industry published a consultative document on the desirability and practicability of reforming the ultra vires rule as applied to companies registered under the Companies Acts. The greater part of the consultative document consists of a report on the present state of the law and proposals for its reform by Dr Daniel Prentice of Pembroke College, Oxford, who was commissioned by the Department to prepare the report. In his report Dr Prentice surveys the origin, development and changing content of the rule as elaborated by judicial decisions over the last 120 years, and he comes to the conclusion that the rule should be modified in several important respects, along with rules which are ancillary to it, such as the rule relating to constructive notice of matters required or filed in respect of a company at the Companies Registry. Dr Prentice also recommends that in the context of modern business it should also be made possible to incorporate at least private companies empowered to carry on any kind of business
Does Arresting Batterers Do More Harm Than Good?
Does Arresting Batterers Do More Harm Than Good? Domestic violence is a pattern of behavior used by one intimate partner or spouse to control the other. A domestic violence abuser may be physically violent, and may also use threats, intimidation, or isolation to control the victim. Abusers may be emotionally or sexually abusive, and may frequently try to control their partners or spouses by controlling family finances. Domestic violence is a major problem in the world today and the issue of whether arresting batterers does more harm than good is always a topic of discussion. Janell D. Schmidt, supervisor of the Milwaukee County Child Protective Services, and professor of criminology Lawrence W. Sherman argue that arresting batterers in many cases does more harm than good, and they advocate alternatives to mandatory arrest. On the other hand, Evan Stark, associate professor of public administration and social work contends that those who argue against arresting batterers completely misunderstand the depth of women's exploitation by the legal system, and that arresting batterers is a vital step for female empowerment and for women's achieving full citizenship status (Monk, 2001: 84). Either way, both sides have reasonable arguments in determining what is the best means of dealing with domestic violence disputes. Sherman and Schmidt searched for alternatives methods other
Criminal Law- Question Problem
Aylin Yildiz Word Count: 1374 Problem Question: Discuss the criminal liability of Faisal, Azad, Chuck and Bill. In this case, the victim firstly faced several physical attacks in an alley, and was later killed through repeated hits on the head with a cricket bat. This essay covers the respective liabilities of the principal offender Azad, followed by his accomplices Chuck and Bill, and lastly the shopkeeper who provided the murder weapon, Faisal. The principal has committed the crime of murder by unlawfully killing another person in the Queen's peace. The defendant had the required mens rea that is either the intention to kill or cause grievous bodily harm, in circumstances where finding an intention on the evidence of virtual certainty1 is left to the jury (Woollin2). The evidence suggests that the principle purchased a cricket bat (which is not an illegal weapon to possess under English law) with an intention to beat the victim unconscious. His intention to cause grievous bodily harm3 didn't change when he formed a joint enterprise with his two other friends. Then the question left for the jury is whether it was virtually certain that his voluntary actions could result in the death of the victim. The answer seems to be the affirmative. The principal can raise defences to decrease his conviction to manslaughter, but they have a small chance to succeed. For instance, the
The youth justice system.
The youth justice system is fraught with inequities. One sees a disparity in the levels of quality defense and sentences given to the young offenders. In the same manner, the disparity between the treatment of youth with private lawyers and those with Legal Aid (rich and poor; minority and Caucasian) is evident. The barely adequate youth criminal justice system has failed to benefit the young people involved. A visit to youth court confirmed several pre-conceived ideas; poverty and crime are closely linked, lawyers are rarely affordable leading to Legal Aid's mediocre efficiency and suspect efficacy. There is a correlation between ethnicity and number of arrests within a community; no longer recorded is the offender's race when arrested, earlier statistics identify 75% of Winnipeg Youth Detention as Aboriginal disproportionate to the 10% of Manitoba's population that are Aboriginal. These disaffected youth are being stereotyped by the authorities and through their institutionalization, they are inadvertently fulfilling those stereotypes. Parents, being unable to control their children, are turning to the courts to raise and discipline them. A 15 year old boy, shackled and in blue sweats (youth court's take on blue coveralls), was charged with mischief including a motor vehicle and failing to reside. The catchall mischief charge resulted from him breaking a window
The Law of E-Commerce
The Law of E-Commerce English law has long been recognized as respecting freedom of contract. In other words, the state has not, generally, laid down legislation which has interfered with the freedom of parties to agree the terms of their contracts. In more recent years, there have been a number of inroads into the principle of freedom of contract, particularly with respect to consumer protection. It very much remains the case that English law does provide parties with considerable flexibility both as how they conclude contracts and the terms that they include. Offer and acceptance In order for a contract to be binding under English law it requires an offer, acceptance, intention to create legal relations, consideration and capacity. With regard to electronic commerce, the contractual requirements need careful consideration. Offer A supplier offers an unconditional offer which could be accepted by any potential customer. If the customer informs the supplier that he or she accepts the offer ,there will be a binding contract. On the other hand, the supplier could provide to the customer what is known in legal terms as an "invitation to treat". This is not a binding offer, but an "invitation" for the customer to make an offer, which the supplier can then accept. It is very important for suppliers wanting to sell goods through on line to ensure that their websites
