Judicial Precedent
Advantages and Disadvantages
Lesson Objectives
• I will be able to state the advantages and disadvantages
of the doctrine of precedent
• I will be able to use examples relevant to those
advantages and disadvantages
• I will be able to state the advantages and disadvantages
of the methods of avoiding precedent
• I will be able to use examples relevant to those
advantages and disadvantages
Advantages of the operation of
precedent
Consistency
• Bring consistency to the English legal system
• Case with similar facts will be treated in the
same manner
• Prevents judges making random decisions
• Promotes justice and equal treatment
• Law remains the same, which helps people
plan their affairs
Predictability
• Lawyers are able to advise their clients with
some degree of certainty
• Predictability is important in determining who
should qualify for Government help in funding
their legal action
• The Government does not fund cases which
have little chance of success as this would be a
waste of taxpayers’ money
Flexibility
• Judges can develop the law – e.g. overruling an
out-dated precedent
• House of Lords can use the Practice Statement –
meaning the law can be developed in areas not
considered important by Parliament
• Modernising decisions may prompt Parliament to
review legislation and bring I in line with
precedent – R v R (1991) – Parliament amended
the Sexual Offences Act 1956 – stating that
marital rape is a crime
Detailed Practical rules
• There is a wealth of detail contained in the
reported cases. The principles set out in the
cases are a response to real-life situations
which have occurred and can be a guide to
future litigants
Original Precedents
• The doctrine allows for new or ‘original’
precedents to be created
• An original precedent makes legal provision on a
matter for which there was previously no law
• Gillick v West Norfolk and Wisbech Area Health
Authority (1985) – HoL deciding on whether girls
under 16 could be prescribed contraceptives
without parental consent. This issue had never
arisen before
Disadvantages of the operation
of precedent
Complexity
• Judgements can be complex and it can be
hard to decide the ratio decidendi of a case
• In CoA and HoL there is more than one
judgment to consider and a common ratio
decidendi has to be considered by judges in
future cases
• A judge can give more than one ratio –
Rickards v Lothian (1913) – water flooding
Volume
• It is difficult to research the law
• Hundreds of judgements are made every year
• This means someone may have to sift through
many volumes of law reports
• Complete official law reports are estimated to
run to almost 500,000 pages!
Uncertainty
• By using the mechanism of distinguishing
cases and other methods of departure, the
judges can avoid following precedents. This
causes uncertainty as to how cases will be
decided
Rigidity
• An unjust precedent can lead to further
injustices. E.g. once the HoL sets an unfair
precedent, it cannot be overruled unless and until
another case of similar fact goes to the HoL on
appeal. This might not happen for many years
• The law may be out of date and need
modernising – Batty v Metropolitan Property
Realisations Ltd
• Judges can be reluctant to change the law –
President of India case (1984)
Unconstitutional
• It is often argued that judges are overstepping
their constitutional role by actually making the
law rather than simply applying it
• It is the role of Parliament to create law and
the role of the judiciary to enforce/apply it
Undemocratic
• Only persons who are elected, that is, the
Government and MPs should be able to create
law. The judges are not elected and should
therefore not engage in law-making.
Retrospective Effect
• Unlike legislation made by Parliament, law
created by judges is backward-looking.
• It applies to events that occurred before the case
came to court.
• This is unfair as the parties involved would rightly
have considered themselves to be acting within
the law – R v R (1991) the husband had not been
acting illegally when he subjected his estranged
wife to sexual intercourse without her consent
• Case law is retrospective whilst legislation is
prospective
Lack of Research
• Unlike legislation which is made with the
benefit of research by interested and
knowledgeable bodies, there is no
opportunity for the judge to commission
research or consult experts on the likely
outcomes of their decisions.
• Judges make their decisions based on the
arguments they hear before them in the
courtroom
Advantages of the methods of
avoiding precedent
Potential for Growth
• Case law is not completely rigid because
judges are able to avoid precedent
• This gives judges the opportunity t modernise
and develop the law – Hall v Simmons (2000)
overruling Rondel v Worseley (1967) is an
example. – Barristers no longer immune from
being sued for the work they do in court
Unfair Laws can be replaced
• Sometimes unfair precedents can be
developed – the methods of avoiding
precedent allow these unfair laws to be
abandoned – RVG and R (2003) – recklessness
now a subjective test rather than objective –
Caldwell (1981)
Disadvantages of the methods
of avoiding precedent
Retrospective Law Making
• When judges avoid precedent, they change
the law. This is unjust because precedent
applies to events that have already happened
– R v R (1991) the defendant was following
principles laid down in Sir Matthew Hale’s
work the ‘History of the Pleas of the Crown’
Uncertainty
• The possibility of judges avoiding precedent
makes the outcomes of cases uncertain
• This is not desirable. Because justice requires that
people are treated in the same way and know
how to conduct their lives within the law
• Makes it problematic for lawyers advising clients
• Certainty is desirable especially in criminal law
where the defendant’s liberty is at stake – Howe
(1987) overruling DPP v Lynch (1975) stating that
duress is no longer a defence to murder or an
accessory to murder
Non-Conformity with the
Separation of Powers
• When judges avoid following precedent,
unless they do so to conform to the
requirement of an Act of Parliament, they
inevitably create new law
• This goes against Montesquieu’s theory of
separation of powers