What Is The Doctrine Of Judicial Precedent

To common law this doctrine is important , why because following similar cases
decided previously helps to better the law and makes it fair , also that people will
be able to settle their affairs without having to go to courts.

In English common law there is un-binding precedent and binding precedent , a

binding is one where it is incumbent on a judge to follow a decision made earlier
based on the similarity's of the facts of the cases , whether he agrees or not. A
binding precedent will only be allowed to be corrected if a higher court decides it
was wrongly concluded or Parliament introduces a new act. There are two types
of binding precedent: vertical - one where a lower court has to follow a higher
court. Horizontal- where a court follows a same level court.

Unbinding precedent is not a must for the judges to uphold yet they feel that if
they differ they should give a reason as to why. Certain classes of persuasive
precedent may be identified, ratio of the JCPC and superior courts in other
common law jurisdictions, and high Court judges of other high Court judges
especially where the decision was reserved.

When referring to a precedent case it will be necessary to take note of the

material facts and that it should be similar , a judges decision is based on the
material facts of a case and one should be able to distinguish whether it was a
ratio decidenci (reasons for the decision) or obiter dicta (things said along the
way). To determine what the ratio decidenci is one needs to make clear analysis
of the report.

The Role Of The Judiciary In The Operation Of Precedent

One should know that a binding precedent is one which the judiciary have
imposed on themselves it isn't a law made by Parliament , and the judiciary if
they so want they could remove it, in 1966 what is now the UK supreme court
decided that although they would regard themselves as bound by their earlier
decisions if need be they would over rule it.

There is much debate on what the role of the judiciary should be in the English
common law system, it is not for the judiciary to make law but rather it is for
them to give effect to it, judiciary are not elected by the people thus they do not
have the right to create law in a democratic deficit, William black stone brought
the declaratory theory in which he said the role of the judge is to decide what the
law is not to make it.

There is much evidence to conclude that the judiciary perform a limited law
making function to develop the common law and to keep it up to date with our
times , lord Reid mentions that we must accept judges do make law but rather
we should question how they do it and how should they do it.

Lord nichollis mentions in para 32 that updating the common law albeit in a
limited fashion is an integral part of the constitutional function of the judiciary
had they not done so the common law would be the same as in the time of King
Henry II , because of this the common law is living reacting to new times and
able to provide the citizens with a system of practical justice.

Lord Bingham identify's situations where judges should be reluctant to make

law , where citizens have organised their affairs from their understanding of the
law, where a defective legal rule required detail amendments, qualifications and
exceptions , where the issue involves a matter of social policy on which there is
no consensus, on where the issue is on a field outside of judiciary experience.

The extent a judge should take should only be based on these facts : the need
for stability, certainty, flexibility in common law, where the judge intend justice
between the 2 parties and they should keep in mind not to usurp the role of
Parliament.

Lord Dyson concludes, that the role of law making is in the hands of parliament
and if they wanted they could always change the laws that were made by the
judiciary , they have not done so and he wants to believe it is because the judges
have done a good job and not suggested an idea in a way that would create
popular support.

The ECHR and UK supreme court.

The relationship between the ECTHR and the UKSC has been a subject of
debate in England and a subject of a number of judicial speeches in recent years,
the judiciary comments on the extent on which the UKSC is bound by decisions
of the ECTHR and is set out in s.2 of the HRA act 1998 where it provides that a
court determining a question in Connection with a convention right must take
into account any judgement , decision, declaration or advisory opinion of the
ECTHR. It means that it is not binding on the UKSC but there are different views
to which extent the English courts are bound to follow the ECTHR.

Some feel that take into account needs to think carefully of the ECTHR but
others feel that there needs to be certain cases for the English courts to depart
from its decision, the Lord Chancellor introducer of the HRA said that if a court
feels that a decision made by the ECTHR is wrong they should do so and not
abstain from making a decision, here are some recent cases that provides
different standpoints:

In R v secretary of state for environment the house of lords held that unless
some absence of special circumstances the courts should follow any clear
jurisprudence of the ECTHR, this decision followed in Ullah Lord Bingham held
that the duty of English courts is to keep its pace with the Strasbourg
jurisprudence as it evolves , in the case of R v Horncastle a different approach
was taken the court held that hearsay evidence in criminal trials does not breach
article 6 and refused to follow the case of Al-khawaja , following this case the
ECTHR made concession and accepted the UKSC decision.

This case suggests that there is some flexibility in precedent between the
ECTHR and the UKSC although the UKSC believes that it should continue to
follow unless there is a strong reason to depart from a Strasbourg decision, this
approach shows itself again in the case of chester where it was held if the ban on
prisoners voting was incompatible with article 3 of protocol 1 of the ECHR which
guarantees free elections under conditions which will ensure the free opinion of
the people, in Hirst followed by Greens v UK the ECHR both held that it was a
breach of the protocol this incompatible, in this case it was again brought up and
the uKsc held that it was twice considered by the ECTHR and both times it was
found to be incompatible this it held that for the court to go against a Strasbourg
decision it needs to involve some truly fundamental principle of our law.

Lord sumption echoed Lord mances view saying : a decision of the European
Court of human rights ....... Is an adjudication by the tribunal which the UK has by
treaty agreed should give definitive ruling on the subject, and therefore the
courts are bound to treat them as authoritative expositions of the convention.

Possible Changes To The HRA.

It was published in oct-2014 controversial proposals to reform the relationship

between the UK courts and ECTHR , the UK courts wanted that they would have
the final say in interpreting convention rights as clarified by parliament, they
included to change the effect of incompatibility so that ruling would be advisory
only, and they suggested the government will leave the ECTHR if it is not
possible to choose a loser relationship with Strasbourg.

Dominique grieve QC argued that opting out of the ECTHR would have
devastating consequences for the UK and would lose respect for international
human rights law. In 2015 the Conservative party was back to rule and David
Cameron announced that he intended to remove the HRA and replace it with a
British bill of rights , if it occurs it is likely to cause opposition from politicians,
legal profession and H-R organisations.

The EU justice sub committee commenced an inquiry on stating the effect of

repealing the HRA act . The report was published on may 2016.

Judges As Law-Makers.

In the common law system under the state deficis rule , cases are more
consistent , fair and predictable, the judges feel that they are bound to this rule
but if need be they could correct errors in a suitable way.

The supreme Court is not in the chains of precedent however when making
new laws are cautious and take into measure their place , it is not for them to
make rules but upon the Parliament .

The main reason for the favor and argument of judicial activism is that it is
more speedy than doing it via Parliament because they may not put the change
or error correction on their priorities.

The argument on judicial law making is that judges are appointed and not
elected , lord sumption also bring his argument in his speech that the HRA act
gives the judiciary the right to make laws on controversial areas.
Below are e.g of when the supreme Court are willing to change the law and
when they refrain especially in areas on which parliament needs to correct: in R v
R a case in which lord Dyson also says that the judiciary felt confident for making
this change , the idea that on marriage one consents to sexual activities the rule
was abolished .

A case that has been presented to the court which such a like was never before
is R v Brown in where a homo-sexual S-M caused harm albeit with their consent ,
it was held that they would be convicted of assault (offences against the
personal act 1861).

There are cases where the judges refuse to correct the decision and firmbly
believe and suggest that Parliament should do so, one of such cases is the case
of nicklinson and lamb v ministry of Justice , the appellant's suffering from
difficulties asked to be assisted to die at a time they would choose but they
asked that anyone helping them should not be subject to criminal consequences.
This was dismissed because the current law is that those helping with suicide will
be liable with s.2(1) of the suicide act 1961 and who actually helps to end life
with their hands will be liable under murder. (CA , Lord chief justice , master of
rolls and Elias LJ. Paras 154_55 )

This case has been considered by the supreme Court , it was held that the
UKSC had the authority to declare if the prohibition in s.2 is incompatible with
article 8 but they held that such issues was better for Parliament to clarify.

This case shows of the different views of the judiciary when and when they will
take part to change or make a new law.