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Adv. and Disadv. of Precedent (Certainty (Judges explain their reasoning…
Adv. and Disadv. of Precedent
Certainty
It allows the law to be predictable which promoted ADR in civil cases.
Makes it more accessible as more people can understand the limits of law
E.g When the decision from Howe was followed in Gotts that duress is not an available defence for murder or attempted murder
Lawyers can confidently advise clients
Judges explain their reasoning (ratio decidendi) so decisions can be easily understood
R v Brown- cannot inflict harm for the purposes of sexual pleasure
Consistency
Like cases are treated alike which promotes a sense of justice
All parties can see how a decision was arrived upon which promotes fairness
The predictability saves the courts time and money
Practical
Details can be added easily to statutory provisions
R v Clinton- clarifying the position on sexual infidelity
Parliament does not have the time to make all the law needed so judges can rule on real issues rather than make law
Lord Denning "Law is made on the anvil of reality"
Flexible
They can depart from previous decisions due to the Practice Statement 1966
E.g Young v Bristol Aeroplane Co. Ltd
Promotes justice and fairness
R v G overruled the decision in Caldwell that recklessness should be judged by the standard of the reasonable man and decided it should instead be subjective
Adapts to meet the needs of justice
R v R overturned the decision that marriage is consent to sexual intercourse
Rigidity
Binding decisions can restrict decisions made in the interests of individual justice
Can be slow to develop as it requires a case of similar facts to come along first
The ruling made in Caldwell was not overturned for 20 years
If precedent set in supreme court it will not be overruled unless the court has the courage, persistence and money
Undemocratic
Judges are criticized for exceeding their legitimate role which undermines Parliamentary Sovereignty
E.g Academics have criticized the decision made in R v Brown
According to the separation of powers outlined by Montesquieu, judges should outline and uphold the law not make it
Retrospective
In R v R the defendant was held liable on the basis of a president which was outdated and no longer justifiable
A bad precedent needs another case or an Act of Parliament to correct it
DPP v Smith needed the Criminal Justice Act 1967
Uncertainty
Judgments can be long and difficult to read so it is not always easy to find the ratio decidendi
R v (Jackson) v AG 2005 where 9 opinions were given as to whether the Hunting Act 2004 was lawful