Judicial Precedent

Question 1

Allows for judicial creativity (Adv)

Answer 1

Cause:
- Courts can distinguish if an existing law doesn’t apply to the current facts, and original precedent allows judges to create a law where there is no preious law at all

Example:
- In R v R no guidance about marital rape was given to parliament so judges were able to make it illegal

Consequence:
- This is good because this creativity leads to justice, and can save Parliament the time of having to make laws to cover new or minor situations.

Question 2

Flexibility (Adv)

Answer 2

Casue:
- There are ways of avoiding precedent if a bad decision will be made. Higher courts can change and overrule law and any court can distinguish the law.

Example:
- In R v Shivpuri the SC used the 1966 practice statement to overrule Anderton v Ryan, as the SC thought it was wrong and that the law needed to be corrected.

Consequence:
- This is because wrong decisions can be avoided or changed quickly so that they aren’t repeated, and so the law can be updated in line with societal changes.

SC = Supreme Court

Question 3

Certainty (Adv)

Answer 3

Cause:
- Precedent is based on Stare Decisis meaning to stand by the decision. Therefore the same decision will always be made by lower courts. Higher courts also will follow precedent due to a reluctancy of overruling their own precedent.

Example:
- In Jones v SoSSS the HoL refused to overrule Re Dowling even though a majority of judges admitted their precedent was wrong, using certainty as a reason. This shows how important certainty is.

Consequence:
- This is good because:
-citizens can know their rights
-lawyers and defendants can prepare for the outcomes of cases properly
-Judges can apply the law easier

Question 6

What are the Adv and Dis of Judicial Precedent?

Answer 6

Adv:
- Allows for judicial creativity
- Flexibility