SECTION A: Precedent 12 Markers PAPER 2 Flashcards
Advantages
Creates certainty
Fairly flexible
Can respond to real life situations
Allows for judicial creativity
Certainty in law
Based on principle of stare decisis which means to stand by decision. Therefore the same decision will always be made by lower courts are higher courts will be reluctant to overrule their own precedents. Jones v SoSSS refused to overrule Dowling to maintain certainty. Benefits lawyers as they can prepare effectively. Bad decision can be repeated tho
Fairly flexible
Many ways to avoid precedent if bad decisions will be made.higher courts can change and overrule the law. R v Shivpuri overruled Anderton V Ryan as there was an error that needed correcting. However this creates uncertainty in the law.
Respond to real life situations
Precedent is based on case law and cases deal with real life situations. R v R husband tried to force wife to have sex without her consent. Court changed law to make martial rape a crime. Good as law can be changed in response to real events. Can make law complex to understand over time
Judicial creativity
Courts can distinguish if an existing law doesn’t apply to the current facts. For instance judges created a brand new area of law (negligence) in donoghue v Stevenson when contract law would not solve the problem. This creativity leads to justice and can save P time. However can go against separation if powers
Disadvantages
Rigid
Not very certain
Can be complex
Goes against separation of powers
Rigid
Based on principle stare decisis which is stand by decision. Higher court’s reluctant to overrule their own precedent when they can. Jones v SoSSS the court knew The decision in Dowling was wrong but kept it for the sake of certainty. Bad and outdated laws won’t be changed. But it helps lawyers prepare
Not certain
Many ways to avoid precedent. Merritt v Merritt distinguished Balfour v Balfour on material agreements. By having multiple decisions on similar cases it becomes hard to predict the outcomes which makes it hard for lawyers to prepare. However thus flexibility can avoid injustices where standing by the decision would be unfair.
Can be complex
Nearly 500k precedents and more getting created. Also hard to tell the difference between ratio and obiter which makes it hard for judges to apply the law. In Re J the judge couldn’t figure out the ratio so didn’t know what decision to make. Therefore defeats point of precedent. However it allows the law to respond quickly to real life situations
Goes against separation of powers
Precedents allow judges to make and change laws when it should only be the parliament who have this power. R v R judges chose to make martial rape a crime despite P never making it a law. This is bad as judges should mot reflect P wishes when making precedent. However it can save P time
Discuss if the 1966 practise statement is effective
Effective
Allows absurd decision to be avoided
Creates very little uncertainty
Not affective
Creates uncertainty
Not being used
Discuss if the 1966 practise statement is effective - allows absurd decision to be avoided
Allows Supreme Court to overrule their past decisions when right to do so. R v shivpuri overruled anderton v Ryan as there was a serious error that needed correcting. Prevents bad laws from being followed by other courts
Discuss if the 1966 practise statement is effective - little uncertainty
Reluctant to use practise statement to keep certainty. Jones v SoSSS refused to overall Dowling to maintain certainty. Helps lawyers prepare
Discuss if the 1966 practise statement is effective - creates uncertainty
Supreme Court can change deci when it appears right to do so - may be unclear when the SC will use it or keep the law the same. Only one year between Shivpuri and anderton meaning law changed in very short period of time. Hard for lawyers to prepare
Discuss if the 1966 practise statement is effective - not being used
Not using practise statement can lead to injustices/ law becoming outdated. Jones v SoSSS, court knew decision in Re Dowling was wrong but refused to use practise statement to keep certainty. Defeats point of it. Making it ineffective.
