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Welcome to this presentation on the advantages and disadvantages of judicial precedent. Now, to begin with, a number of cases will appear on the screen. This is just a cases checklist, and it is advisable that you do become familiar
An educational video explaining the advantages and disadvantages of judicial precedent with case examples and legal insights.
Key Takeaways
- Judicial precedent ensures consistency and predictability in law.
- The Practice Statement enables necessary legal flexibility.
- Precedent can be complex and voluminous, posing research challenges.
- Case law is retrospective, which can impact past actions.
- Using case authority strengthens legal arguments and advice.
What the video covers
- Judicial precedent provides certainty, efficiency, and predictability in legal decisions by ensuring similar cases are decided similarly.
- The Practice Statement 1966 allows the Supreme Court to depart from previous decisions to reflect societal changes and justice needs.
- Examples of precedent flexibility include overruling outdated decisions such as AD versus Dumre (1929) by British Railways Board versus Harrington (1972).
- The video discusses notable cases like Anderton versus Ryan (1985) and R versus Shiff Perry (1986) illustrating the use of the Practice Statement.
- Judges can distinguish cases to avoid strict precedent application when it would cause injustice.
- Disadvantages include complexity and volume of case law, making it difficult to locate relevant precedents and ratio decidendi.
- The transcript highlights the retrospective effect of case law, with examples such as R versus R (1991) affecting past cases.
- Legal professionals benefit from precedent by advising clients accurately and predicting case outcomes, saving time and resources.
- The video emphasizes the importance of backing legal arguments with case authority for examination success.
- The transcript provides a checklist of key cases to study for understanding judicial precedent.
Chapters
- 00:00Introduction and Case Checklist
- 00:51Overview of Key Cases
- 02:03Advantages of Judicial Precedent: Certainty and Efficiency
- 03:51Flexibility and the Practice Statement 1966
- 04:33Case Examples Illustrating Flexibility
- 06:11Further Case Examples and Overruling Decisions
- 08:29Summary of Advantages and Transition to Disadvantages
- 09:57Disadvantages: Complexity and Volume of Case Law
- 11:26Retrospective Effect of Case Law and Legal Implications
Full Transcript — Download SRT & Markdown
Speaker A
with each of these cases. So you may want to either pause here and look up each of the cases, or you may want to wait until the end of the video presentation and then look up each of the cases there
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and insert them into your case log. Now, for a really good response in an examination, it is highly advisable that you back up as many of your points with legal, um, with legal case authority. Here are each of the cases
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featured in this video presentation: AD versus Dumre in 1929, British Railways Board versus Harrington 1972, Anderton versus Ryan 1985, R versus Shiff Perry 1986, R versus How 1987, Lynch versus Director of Public Prosecutions of Northern Ireland 1975, R versus SCS
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1992, and finally R versus R in 1991. So let's get started with looking at the advantages and disadvantages of precedent by starting with the advantages. Now, I've pulled together here justice, certainty, efficiency, and predictability, and you may find in
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textbooks that you've got other headings that are quite similar, like fairness and consistency, and each one may be separated out, but I think they're similar in places, so I've actually pulled them together. Now, judicial precedent is a time-saving concept.
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Judges don't have to keep solving every single case that comes before them. This saves repetition, and it also saves them from making conflicting decisions because if you think about it, there are so many judges, and if a number of them were all
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dealing with the same case, it's quite likely that a number of them would have different opinions. So it saves conflicting decisions. Um, once a novel case has been decided and its decision has been recorded, then it is seen as just and fair
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that all similar future cases should be decided in the same way. So precedent supplies certainty to the law, and people will know what the law is and how it will be applied in their particular case. It also helps lawyers a great deal as
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they're in a position to be able to advise their clients appropriately. The client can then, especially when it comes to business and family cases, predict the likelihood of whether their case may be successful or not. This can result in saving time, money,
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and undue stress. Let's move on to flexibility. Society is always changing and evolving, and so the legal system needs to reflect these changes. Now, the Practice Statement 1966 allows judges in our most senior national courts, the Supreme Court, to depart from its own
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previous decisions whenever it appears right to do so. This is very helpful as it allows flexibility. Supreme Court judges are quite cautious, however, when using the Practice Statement because remember, certainty is a key advantage of precedent, and for this reason, they tend
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rarely to depart from their own previous decisions. Now, to reflect change in society and where it appears right to do so for justice's sake, they will, however, be prepared
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to overrule their own previous decisions. For example, let's consider a
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decision made by the Supreme Court. It was formerly known as the House of Lords. Then, in the case of AD versus Dumre in 1929, in this case, it was ruled that an occupier of property owes nothing more than just a minimal duty of care to
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trespassers, so virtually no duty of care, even if the trespasser was a child. Now, that's not very kind or just, and we all know that children aren't as rational as adults. However, society's views had changed by the time British Railways
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Board versus Harrington was being decided, and so the decision in AD was overruled, and the decision in British Railways Board versus Harrington reflected a more humane judgment in that it was decided that the defendants did owe a duty of common humanity to
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trespassers. In this case, the trespasser was a six-year-old boy who was electrocuted and had severe burns as a result of the defendant's negligence in fixing a gap in their fence. So you can see how the decision in this latter case
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was the right decision and that the decision in AD did need to be overruled. So this is a great illustration for flexibility. AR versus Shivery is a rare and interesting example of the Practice Statement being used by the House of
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Lords within a year of a previous ruling they had made in the case of Anderton versus Ryan in 1985. Now, in Anderton, the defendant had bought a video recorder which was worth £500, but she bought it for £10, and she confessed to the police
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that she suspected it might have been stolen. Now, in the actual court case, the prosecution said they didn't have evidence to prove the goods were in fact stolen, yet she was still convicted. She appealed, her case went up
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to the House of Lords, and they quashed her conviction on the grounds that she couldn't be guilty of attempting to handle stolen goods unless there was evidence the goods were stolen. Shivu came up sort of under a year later in
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1986. In India, Shivu was offered £1,000 if on his return to England he would collect a suitcase containing drugs. He did so. He then received instructions to go to South Hall Station to deliver the drugs; however, he was arrested outside the
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station. Shif PR thought that the case contained heroin or cannabis, and he told the police this. When the contents of the suitcase were actually examined, it was found that it wasn't actually drugs that were in the case but a
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harmless vegetable matter. Shiv PRI was convicted of attempting to be knowingly concerned in dealing with illegal drugs, and his appeal relying on Anderton was dismissed. The House of Lords corrected what was now considered by them to have been
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an error in their judgment in the Anderton case. Shifri was convicted for his criminal intention in the way that the defendant in Anderson versus Orion originally was, but there is a clear difference between the defendant in the suspected stolen video recorder
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case and Shivery. Defendants like Shivery who intend to smuggle or deal in drugs are dangerous to society; therefore, prosecution and conviction is in the public interest. When they overruled Anderton versus Ryan, the House of Lords emphasized that this was an exceptional
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situation. Yet a year later, in the case of AR versus How in 1987, the House of Lords overruled another previous decision they had made in the case of Lynch versus Director of Public Prosecutions for Northern Ireland. Now, in the case of Lynch, they said
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jess could be available for murder. In the case of How that came later, they retracted this, saying it couldn't be available for a charge of murder. All in all, the main point being made here is that the Practice Statement allowed this
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flexibility. Bad and outdated decisions such as in the case of R versus R years later in 1991 have also benefited you to this flexibility. Being able to distinguish between cases is another way in which judges can avoid a strict application of
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precedent where it would cause an injustice. So there you have it, a number of great advantages. Now, the points that I've covered so far, you could easily write for a 10-mark or, you know, even a 20-mark question, and we're going to
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move on now and look at disadvantages. Complexity and volume is our first disadvantage. Several thousands of volumes of law reports exist, with more being added regularly. The internet, whilst helping to publicize judgments, means also that judges and lawyers are
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faced with a mammoth amount of cases to choose from. It is not a simple task to find all the relevant cases, even with amazing technology at hand, and these judgments, well, they can be problematic in that so many are often very lengthy
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with no clear headings between key comments, and locating the ratio decidendi can be an awesomely difficult, challenging task. In the case of Dodds in 1973, the judges in the Court of Appeal could not find the ratio from a decision
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that had been made by the House of Lords. Our second disadvantage is slowness of gr...
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lengthy wait before a suitable case is appealed as far as the Supreme Court okay our final disadvantage is more of a lengthy one this is retrospective in effect unlike legislation okay so laws made by Parliament which are not retrospective
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in effect case law however is now let me explain it first using like an everyday example and then I'm going to use a case so imagine a new law has been created by Parliament today making an offense to
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where trousers that are not belted up properly and hence show up most of a person's underclothing suppose you wore your trousers yesterday before the new law and they were not belted up properly revealing most of your underwear for the
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world to see you've seen Jay-Z do it so you think why not your teachers think otherwise though and as a result you've been spoken to about this and there have been a number of witnesses now because legislation laws made by parliament are
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normally retrospective you would not guilty of an offense although you would be if you wore your trousers in this way after the law came into effect case law however is retrospective in effect therefore if the Supreme Court had made law and not Parliament then
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you're having worn your trousers yesterday in the way that the new law now Outlaws would mean that you would have committed a criminal offense okay okay let me now explain retrospective in effect using the case of R versus R from
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1991 now before 1991 a man could not be found guilty of raping his wife because a married woman was considered to have consented for rape lack of consent is the main issue with the case of R versus r a husband's immunity from raping his
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his wife was abolished as case law is retrospective in effect the effect of this case meant that every person who had sexual intercourse with his wife without her consent before the 1991 ruling was also potentially guilty of rape there's never
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been a case where the law has only been changed prospectively in other words a Court ruling that only applies to Future situations however please note this was not ruled out completely in the case of national Westminster Bank versus
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Spectrum Plus in 2005
Topics:judicial precedentlegal studiescase lawPractice Statement 1966legal flexibilitylaw caseslegal certaintyratio decidendilaw examinationprecedent advantages and disadvantages
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