The Purpose Of Precedent In English Law

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This assignment will be answering the two following questions which are: What is the purpose of precedent in English Law and Judges can interpret any statute in accordance with established rules developed in English Law, give a summary of these rules and explain the advantages and disadvantages of each.

What is judicial precedent and how was it developed in the English legal system?

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Judicial precedent is the legal decision that is made by judges in previous court cases that set out examples of reasoning guidelines for future judges to follow. Judges will incorporate ratio decidenti which is not the official verdict of a case but the reasoning, points, facts and causation that establishes guidelines for future judges to follow. Extra comments made by the judge that is not used as part of the official ruling and it said as extra words or remarks of passing is known as Obiter Dicta. Obiter Dicta is not a binding precedent, therefore, future judges don’t have to follow such comments made previously. Judges can also use precedents from previous cases and evolve them to fit in with the change in society and adapt to a changing society.

A famous example of established judicial precedent is Heaven V Pender which is a pioneering case in negligence but Donoghue V Stevenson established Negligence as a law of tort in its own right. It was a landmark case that outlined an act of negligence done by the manufacturer when a consumer encountered a snail in the product made by the manufacturer. Lord Atkin made a legally binding precedent that the manufacturer owes a duty of care to the ultimate consumer of the product. Although this neighbour principle was made legally binding, the approach Lord Atkin used was further developed.

Establishing continuing judicial precedent from this case was rather difficult as the principle still contained loopholes in its basis for a decision. It was said by Lord Reid that the statement should be required new qualification as more negligence cases rise and shouldn’t be prematurely treated as a statutory definition. The case of Donoghue v Stevenson only applied to business manufacturers owing to a duty of care to its consumers. It was believed that the law of owing a duty of care should an act of negligence arrive, be applied to all citizens. During the case of Anns V Merton London borough council, Lord Wilberforce attempted to establish a duty of care by implementing a two-part test asking the question of reasonable foresight of harm with sufficient proximity between time-space and relationship with further sanctions whether it is fair to impose liability of a duty of care.

The test of Anns V Merton was still considered far too wide. Defendants will only be liable for a duty of care should the act of negligence be identified as a clear omission. However, defendants were able to avoid owing a duty of care should taking precautions to avoid negligence was not in given policies.

An incremental approach of the test was made in Caparo V Dickman where it establishes to all citizens of the law through three questions to establish a successful liable duty of care. Was the harm reasonably foreseeable? Was there sufficient proximity in time, space and relationship? And is it fair, just and reasonable to impose a duty of care? Defendants representing companies could no longer dodge owing a duty of care due to the fairness of liability and not company policies. However, during the case of Hill V Chief Constable of West Yorkshire, emergency services would never be able to provide a duty of care to the victims’ families due to not being able to catch the killer. It was then ruled that emergency services are usually exempt from owing a duty of care unless there is sufficient evidence pointing clear negligence from the service.

Statutory Interpretation that falls to the court begins when Parliament has officially incorporated a bill into law. It then falls onto the court to apply the relevant statutes passed by parliament to cases that require the relevant law for it. However, laws from parliament are always bound to contain some sort of loophole or gap that falls on the Judiciary to fill due to the act introduced by parliament not having certain situations being envisioned or ambiguity in the statute highlighted. It is then for the court to set out a precedent that can press potential extra visions from cases and situations for future judges to follow when the common law comes into use again.

The literal rule of statutory interpretation is the words and texts derived from a statute are applied with their literal meanings and would be the first rule applied by judges when inferring a case with a statute. A famous case which uses the literal rule was Fisher V Bell in which the defendant displayed flick knives on sale. The literal rule was not perfect as there would be potential disagreement on word meaning and interpretation. It was a criminal offence to offer flick knives for sales but the defence argument that customers would come on their own free will and buy because it’s an invitation to treat and not a direct offer of sale. The literal rule has led to injustice due to the imperfections of statutes

If judges are not able to use the literal rule if it would lead to an absurdity, then the golden rule would have to be used. The court applies the second meaning to a word if the initial intending would lead to a manifest absurdity. In R V Allen, the defendant was charged with Bigamy under s.57 of the Offences of the Person’s Act. The court had to define that the word ‘marry’ would be interpreted as ‘to go through a marriage ceremony’ upholding the defendant’s convictions. But this rule gave judges too much power in the ability to change the meaning of words. The judiciary does not have law-making powers.

Parliament intentions are not always clear when introducing new acts into law and regulating law already in practice. When judges can’t identify parliament’s true intentions for reasoning in an act, it is on them to think of what mischief is parliament trying to focus on. Judges will use this if the act in of itself is not clear to create a precedent acting as a remedy for the act, outlining its true intentions. The Royal College of Nursing v DHSS was particularly famous for the Abortion Act 1967 banishing the use of carrying out abortions without a qualified medical practitioner. Due to the technological advances, it was easier to administer hormonal abortions rather than surgical abortions in which it had to be argued that nurses were qualified medical practitioners, therefore, no crime was being committed.

However, parliament having its intentions hidden isn’t always due to mischief in which judges would have to remedy should a situation arise. The act in question may have to do with situations that have arisen in the past or one that can arise in the future. This gives the judge a wider scope of in which they can find out parliament’s true intentions. Judges using this approach would favour the use of extrinsic aids which are main sources away from official statute and common law. This consists of dictionaries, Hansard, texts books, reports and the law commission. Intrinsic aids are properties in the statute of the act itself such as the title of the act and sections of the act.

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