does the judicial precedent affect the development of common law

r cases because it was not strictly relevant to the matter in issue in the
original case. However, an obiter dictum may be of persuasive authority in
latJudicial precedent is a process whereby the judges follow the previous
decided cases where the facts of the case are sufficient of similarity. The
doctrine of judicial precedent involves an application of the principle of Stare
decisis, to stand by the decided. In practice, this means that the inferior courts
are bound by to apply the legal principles set down by the superior courts in
earlier cases. This provide consistency and predictability in law. The decision or
judgement of the judge may fall into two parts, ratio decidendi and obiter
dicta. Ratio decidendi of a case is the principle of law on which a decision is
based. When a judge delivers judgment in a case, he will first outline the facts
which he finds have been prove on the evidence. He then applies the law to
those facts and arrived at decision, for which he give the reason. While, obiter
dicta, other things to say, is when the judges speculate what is his decision
would have been if the facts of the case have different. The binding part of a
judicial decision is ratio decidendi, an obiter dictum is not binding in lateer
cases, which means that the judge may consider it and decide that it is a
correct principle so he is persuaded he should follow it.
The problem with the system of precedent is that though it works well
for the majority of cases but for a small number of cases the precedent the
judge has to follow may be an unfair approach to a unique situation. Another
problem is that as society changes economically, technologically or socially the
past precedents no longer are relevant to today’s society. So, there are a range
of methods available to allow for exception or all out change to help the
common law to develop. The higher the courts is in hierarchy the more powers
the court has to alter previous precedents.
Firstly, overruling may occur when a higher court overrule a decision
made in an earlier case by a lower court. For example, the court of appeal can
overrule an earlier high court decision. Overruling can occur if the previous
court did not correctly apply the law, or because the later court consider that
the rule of contained in the previous ratio decidendi is no longer desirable. For
example, in Pepper v Hart, when the House of Lord ruled that the hansard
could not be consulted when trying to decide what certain words in an Act of
Parliament meant. This decision overruled the earlier decision in Davis v
Johnson. However, there were some requirement in the House of Lords and
Court of Appeal to overrule an earlier decision. House of Lords, the highest
court in land. It bind all the English court beneath either criminal or civil cases.
The Supreme Court replaced the long-established House of Lords in 2009 and
the rules of precedent are expected to be exactly the same for the Supreme
Court as they were for the House of Lords before it. The main debate now is
about the House of Lords is the extent to which it should follow its own past
decisions. Originally, the House of Lords had the right to overrule the past
decisions. Until the case of London Streets Tramsways v London County
Council, the House of Lords held that certainty in law is more important than
the possibility of individual hardship being caused through having to follow a
past decision. This is not felt to be satisfactory, as the law could not alter to
meet changing social conditions and opinions, nor could any possible wrong
decision as stated above be change by the court.
Until 1966, the Lord Gardiner LC announced a change of Practice
Statement. This practice statement allowed the House of Lords to change the
law when it believed that an earlier case was wrongly decided. It had the
flexibility to refuse to follow an earlier case when it appeared right to do so.
However, this power have been used sparingly. The first real use of Practice
statement was in 1972 for civil law. The case of Herrington v British Railways
Board overruled the decision of Addie v Dumbreck. In Herrington’s case, the
old ratio decidendi was dispensed with in favour of holding that the duty of
care is owed to children who are attracted onto property by some object of
allurement and are died as a result, therefore compensation could now be
paid. After a great reluctance in the House of Lords to use the practice
statement in R v Secretary of State for Social Service where the Lord
preferring to keep the idea of certainty is the most important feature of
precedent, House of Lords have showed more willingness to use practice
statement in civil cases. This can be seen in Miliangos v George Frank where it
use practice statement to overrule a previous decision that damages could
only be awarded in sterling. The practice statement stressed that criminal law
needs to be certain, so it was not surprising that the House of Lords did not
rush to overrule any judgment in criminal cases. The first use of practice
statement was in R v Shivpuri which overruled the decision in Aderton v Ryan.
Even though in Aderton v Ryan had only decided by one year before, they now
felt that their earlier decision was wrong and that they were overruling that
decision. In other words, House of Lords recognised that they might sometimes
make errors and the most important thing is then put the law right. These
brings UK practice with that of other jurisdictions such as the US Supreme
Court which is also not bound by its own decisions
Until 2006, it was settled law that judgement of Judicial Committee of
the Privy Council were merely persuasive. However, the catalyst for this
change in the common law rules of precedent came from comments made by
Lord Nicholls in A-G for Jersey v Holley. He explicitly that their Lordships were
reformulating the law for England and Wales. This was accepted de facto (as a
matter of fact) to be the case by the Court of Appeal in R v Mohhammed and
de jure (as a matter of law) by the Court of Appeal in R v James and R v Karimi.
These were the exception cases where the court of appeal took an unusual
decision to follow the ruling by the Privy Council rather than that of House of
Lords.
This leads us neatly to the Court of Appeal which is directly below the
House of Lords. So, it is bound by the earlier decision of House of Lords even if
it consider them to be wrong. However, Lord Denning have attempts it when
he argue that the Court Of Appeal should not be bound by the House of Lords.
In Broome v Cassel, Lord Denning refused to follow the earlier decision of
House of Lords in Rookes v Barnard, on the circumstances in which exemplary
damages could be awarded. Besides, Court Of Appeal is bound by its own past
decision, especially for the Civil division. The Civil division does not bound by
the Criminal Division In terms of precedent as they are different types of law,
though they can be persuasive precedent. In Young v Bristol Aeroplane Co ltd,
the court was bound by its previous decisions subject to the following three
exceptions. Firstly, where its own previous decisions conflict, the Court of
Appeal must decide which to follow and which to reject and next, the court
must refuse to follow a decision of its own which cannot stand with a decision
of House of Lords even though its decision has not been expressly overruled by
the House of Lord. The third exception is, the court of appeal need not to
follow a decision of its own if satisfied that it was given per incuriam. Lord
Denning again refused to follow a previous decision of Court of Appeal. In
Gallie v Lee. He stated that it was a self-imposed limitation and we who
imposed it can also remove it. However, he could not get a majority in the
Court of Appeal to support him and in the same case Russel LJ said that, the
availability of the House of Lords to correct the errors Court of Appeal make
it, in my view, unnecessary for the court to depart from its existing discipline.
After Lord Denning retired, Court of appeal have no challenge the rule in
Young’s case, though it has made some use of per incurium exception allowed
by Young’s case. In Rickard v Rickard, Court of appeal refused to follow a case
it had been decided as it had misunderstood the effect of House of Lords
decision. Even though it did not follow its own decision Lord Donaldson said
that it would only be in “rare and exceptional” cases that court of appeal
would be justified in refusing to follow a previous decision. For a criminal case,
the court can use the exception from Young’s case, can also refuse to follow a
past decision of its own if the law has been “misapplied and misunderstood”.
This extra exception arises because in criminal cases people’s liberty is
involved. In R v Taylor, court of appeal held that in ‘questioning involving the
liberty of subject’ if a full court considered that ‘ the law has either been
misapplied or misunderstood’ then it must be consider the earlier decision.
Moreover, parliament is the supreme law making body in Uk, and no
one can questioned the validity of a statute or an Act of Parliament. Should
there ever be a conflict between statute and case-law, then the former will
prevail. In essence, statute law is superior to the case law. Therefore,
Parliament is the body do have the power to overrule the decisions of all the
courts including House of Lords by passing a new act of parliament. This can be
seen in R v Davis. Here the appellant was convicted of murder solely due to
the evidence anonymous witnesses. This offended the common law principle
that the defendant in a criminal trial should be confronted by his accusers.
Hence, the trial held to be unfair and the conviction unlawful. A month after
this judgement, Parliament passed the Criminal Evidence (witness anonymity)
Act 2008 which abolish the common law rule. No doubt this act will prove to
be controversial. Parliament is therefore one of the way to overruled the
previous decisions of courts.
Distinguishing is also one of the method which can be used by a judge to
avoid following a past decision which he would otherwise have to follow.
Indeed the development of the law is induced just two processes, following
cases and distinguish cases. The common law technique is probably the major
factor which ensures the flexibility of the doctrine of binding precedent. The
judge finds that the material facts of the case he is deciding are sufficiently
different for him to draw a distinction between the present case and the
previous precedent. He is not then bound by the previous case. Distinguishing
does allow judges to develop the law and create exceptions to a general rule
establish in a previous case. Two cases demonstrating this process are Balfour
v Balfour and Merritt v Merritt. Both cases involved a wife making a claim
against her husband for the breach of contract. Unlike Balfour’s case, the
second case was successful because the court held that the facts of the two
cases were sufficiently different in that, although the parties were husband and
wife, the agreement in Merritt was made in writing. This distinguished the case
from Balfour, the agreement in Merritt was not just a domestic agreement but
mean as a legally enforceable contract.
Furthermore, reversing is the overturning on appeal by a higher court,
the decision of the court below that hearing the appeal. The appeal court will
then substitute its own decision. This can only be carried out by a court with
enough authority. For example, the court of appeal may disagree with the legal
ruling of the high court come to a different view of the law, in this situation
they reverse the decision made by high court. This can be illustrated in the
case of R v Kingston where the defendant have consumed a drink that had
been spiked by alcohol. He then perform sexual acts on a young boy who had
been sedated in the bedroom. The court of appeal stated that the involuntary
intoxication would mean defendant lacked of awareness of committing the
crime. When appeal to the House of Lords, the court reversed the decision of
Court of Appeal and held that intoxication will not be a defence.
There may be another two instances where the courts might not be
bound by its previous decisions. The first instance concern European Union
Law. Section 3 European Communities Act 1972 requires courts either to
refers cases dealing with Community law to the European Court of Justice or
alternatively to decide the cases themselves in the light of the previous
decision of the European court of Justice. It seems clear that the court of
appeal can ignore a previous decision of its own which is inconsistent with the
European community law or with a later decision of European court of justice.
Secondly, under section 2(1)(a) of the Human Rights Act 1998 states that
courts must take into account any judgment or decision of the European Court
of Human Rights. This can be illustrated in Re Medicament, the Court of
Appeal refused to follow the decision of the House of Lords in R v Gough
because it was slightly different to decision of the European Court of Human
rights. In the case of Kay v Lambeth LBC, the House of Lords considered
whether or not a lower court should follow a precedent of a higher court if a
Strasbourg judgment made after the precedent contradicted it. Which should
be followed, the earlier English precedent or the later Strasbourg ruling? The
House of Lords decided that the earlier English precedent should be followed
and leave to appeal against this decision should be granted. Lord Bingham
considered the question in some depth in a particularly interesting judgement.
 As a conclusion, doctrine of binding precedent have provide certainty
and flexibility to the law. In the view of certainty, as the court follow the past
decisions, people will know what the law is, litigants can assume that like cases
will be treated alike. While judicial precedent is flexible as there is a room for
the law to change by departing from the previous decision of the courts using
the available method can replace the outdated law by a new and suitable one.
Shortly, it prevent the bad precedent from vicious circle in our law. Therefore,
it have developed the common law.