Judicial Precedent Essay Plan Essay, Research Paper
Judicial Precedent Essay planIntro Say what precedent
is: ?Stare decesis et non
quieta movere? = Stand by what has been decided and do not unsettle the
established. Which means a decision made in one case is binding on all
following cases of similar fact in lower courts.Then say: there are
3 main principles involved. (1) Ratio Decidendi = the reasoning behind the
judges decision. This is the binding element of a judgement/case (2) Reliable system of law reporting: there are
thousands of cases each day and so the law keeps changing. You need to be able
to get the ratio decidendi from cases or else judges may make decisions in new
cases ?Per incuriam? = in error. (3) Court Hierarchy: Decisions made high up in
the hierarchy are binding on all lower courts.Then talk about the
methods/rules judges have to avoid binding precedent: (1) Overruling: judges can, (a) Overrule decisions made lower in court
hierarchy (b) Overrule past decisions made in their own
court eg. House of lords. R
-v- R marital rape case. Before=a husband could have sex with his wife
at any time she always gave consent even if she didn?t want to. Now= House of
Lords abolished that rule made by themselves. They could do this because of the
1966 practice direction(Lord chancellor) which said that the house of lords was
no longer bound by its previous decisions.(2) Distin
facts in their cases are different to those where a case has a precedent set in
it. eg. R-v-Brown &
R-v-Wilson. In R-v-Brown
judges argued that sadomasochism was unlawful assault and the defendants could
not use consent. But, in R-v-Wilson judges argued that wife gave consent and
initiated the buttock branding by her husband ie. It was her idea so the courts
distinguished between the two cases.Then talk about why
judges have to avoid precedent: (1) Due to changing social and physical
attitudes old laws should be change to suit new times. Eg. Herrington-v-BRB? a child was badly injured on a train
track(Electrocuted) and the judges held that even though the kid was trespassing
BRB still owed a duty of care to the child. (2) In courts of appeal: where a person?s
freedom is at stake. The judges should be able to use methods to change the law
in order to save the individual from prison.Lastly
you should talk about why judges shouldn?t change/develop the law: (1) Judges are not elected by the people so it
should only be fair that government which is elected by the people make the
laws. This is called parliament sovereignty. (2) Judges are only concerned with the one
individual/defendant in their case and are not worried at how their decisions
could be massively effective on everyone else.If you follow this
essay plan I guarantee you will get an A