Precedent is the base of common law and it is applied by many countries. In England, it follows the legal principle of binding precedent, which refers to existing law that must be followed in similar cases to achieve a fair outcome. Precedent can also be persuasive. This essay will discuss the operation of precedent within the English legal system and the important role that is played by the court hierarchy and law reporting.
Advantages and disadvantages will also be considered.Prior to The Norman Conquest in 1066, England had a different legal system in each region, but in 1154, Henry II created a unified system common to the country, so judges at the time travelled throughout the country bringing the King's justice. These practices evolved into what we now know as the common law system. In modern times there are three essential elements in the the system of precedent. Court hierarchy, binding precedent and accurate law reporting.
Binding precedent relies on the legal principle of Stare Decisis, which means to stand by things decided.It ensures certainty and consistency in the application of law. The judgment of each case in court can bind all subsequent cases. Existing binding precedent from past cases are applied in principle to new situations by the judges in the courts. Ratio descidendi (latin for “reason for deciding”) is a rule that a judge has to use in court in order to make his judgement. Obiter dictum (latin for “other things said”) is another principle applied when judges are making their judgement.
It is similar to ratio decidendi but it does not form a binding precedent, instead it becomes a persuasive precedent and a judge in a later case does not have to follow it, but the persuasive precedent can be consider when making their decision. Obiter dictum is an example that not everything in a court case sets precedent, a prior decision can be overruled this happens if a precious court did not correctly aplly the law , it is mechanisim that a is not commonly used.Another way of avoiding binding precedent is by distinguishing,which means that the previous decision made will be avoided because the current circumstances are not the same as the ones from previous cases and it is used by judges in order to avoid consequences of an eralier desicion. (Howells C, et al Unit 4 block 1) In the uk there is a hierachical court structure. The operation of precedent depends on this system, the courts at the lower end of the hierarchy are bound by decisions made by the higher courts and will be required to apply the same principle of law.
When an appeal is made from the lower to higher courts the judges will consider cases already heard.The UK supreme court is the top court in the UK and is bound only by the European court of human rights on human rights issues and by the European court of justice (CJEU) on all matters of EU law. Further down the court hierarchy, the court of appeal is bound by the supreme court, the CJEU, and the ECHR, and it must follow its past decisions.Divsional Courts are bound by the supreme court, the court of appeal, the CJEU and the ECHR. The high court is bound by the CJEU, ECHR, court of appeal and divisional courts, it binds county and magistrates courts.
The crown court is bound to all the courts already mentioned and it possibly binds only magistrates courts. Country courts and magistrates courts do not create precedent. The judges and lawyers rely on law reports in order to have access to past judiciary decisions. Without them, it would not be possible to apply the system of precedent.
The sources of law reports are, for example, year books, private reports, modern reports, the law reports, all england law reports, legal periodicals and newspapers, specialist reports, European law reports, DVD rooms and the internet. Not everything is reported, only significant laws. (Howells C, et al Unit 4 block 1) In conclusion, In England and Wales the judges in court decide on a case, and if its relevant to the system, the decision is recorded in law reports and has to be followed by lower courts, as this new decision becomes a law. There are advantages and disadvantages to the operation of precedent.
Certainty is thought to be an advantage to this system as an outcome can be expected before the judges decision. Since the same principals are applied to all, it also ensures that all people are treated equally. This system is practical. However, there are a lot of disadvantages. It can be unjust, to follow an unfair decision made by a judge in the past.
The law in England is constantly changing and the system of precedent is very rigid as it is bound by past decisions. Finding relevant information like te reason of deciding (ratio desidendi) to previous cases can be complex, and unclear,as there is many cases.
