It Precedent ought to be abolished due to its

It can be argued that the doctrine of Judicial Precedent ought to be
abolished due to its retrospective effect. At the point of overruling an old
decision, the new principle of law has not previously been legislation, meaning
that previously lawful behaviour is being criminalised after the act had
already been committed. This issue was made evident to the courts in the case
of R v C1,
where in 2002 the defendant was convicted of raping his wife in 1970, but
argued that he could distinguish form the earlier case of SW v United Kingdom2.

The defendant stated that when he committed the offence he could not have
foreseen that his actions were criminal, although this was rejected by the
Court of Appeal, meaning that the husband should have anticipated a piece of legislation
that was passed in R v R3
more than thirty years later – which is extremely unlikely. On the contrary,
more recent criminal cases enlighten the fact that the use of a retrospective
effect may not necessarily lead to a conviction, and may actually work in the
benefit of the defendant. This was established in the high-profile and
controversial case of R v Bentley4,
where the conviction of the defendant was overturned by the Court of Appeal
more than forty years later following a long campaign carried out by his family.

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This was due to the fact that the case law that applied in 1952 was much
harsher than that of 1998 regarding accomplice liability. Although this could
be seen as a huge benefit of using Judicial Precedent in a retrospective way, this
causes issues in the form of defendants and convicts appealing their cases against
their earlier convictions, which could cause damage to the society and the
representations of the court system.

 

Although a judge’s main role in the court room is to interpret and apply
the law, since the Practice Statement was issued, these roles have now been
extended, raising the debate of whether or not Judges do actually make law.

Historically, case law has always had a huge impact on the important
developments of legislation, especially in areas such as tort law. The question
has raised many theorists to voice their opinions. Eighteenth-century legal
commentator, William Blackstone provided a declaratory theory which expressed
that judges declare and discover the law as it always has been, rather than
creating or changing the law, quoting that ‘the judge being sworn to determine,
not according to his private sentiments… not according to his own private
judgement, but according to the known laws and customs of the land: not
delegated to pronounce a new law, but to maintain and expound the old one’5.

On the other hand, there are multiple arguments to support the idea that judges
do create laws, including critical legal theorists such as David Kairys, who
argues that legal reasoning does not exist, and that judicial decisions are
based on a complex mixture of ‘social, political, institutional, experiential
and personal factors’6.

Cases can be used as evidence to support the idea that judges do in face make
law, for example, in the case of R v Dica7,
where Judge LJ overturned the previous decision made in the case of R v
Clarence8.

By doing this, new case law was created which made it a criminal offence to
recklessly infect another person with the human immunodeficiency virus, (HIV),
therefore supporting the idea that judges do in fact make law.

 

The doctrine of Judicial Precedent ensures certainty and consistency in
the law, and provides the judicial system with a speedier process in which
legislation can be made without the time-consuming procedure of passing an Act
through parliament. The law is able to be further developed which subsequently results
in a more flexible system, modernising the court system to keep up to date with
the current situation of society. In addition to this, Judicial Precedent leads
to a more equitable and fair justice system as cases relating to similar topics
will all be treated in the same manner, consequently preventing any kind of
injustice from transpiring. On the other hand, there are many drawbacks that
exist under the doctrine as due to the mass amount of cases that exist, the law
can be made more complex due to the mass volume of case law. Furthermore, illogical
distinctions leading to unpredictability can lead to unjust decisions, causing an
unequitable process. It can also be argued that the implementation of Judicial
Precedent gave judges too much power which undermines the sovereignty of
parliament, which puts a strain on the separation of powers. Although, to avoid
this drawback from having too much of a negative effect, the extent to judges’
powers should be monitored and restricted to avoid an overlap between the
powers of the legislature and the judiciary. To conclude, although there are
multiple disadvantages of Judicial Precedent, these are outweighed by the
benefits and therefore the doctrine should not be abolished.

1 R v C 2004 EWCA Crim 292, 2004 1
WLR 2098

2 SW v United Kingdom (Application Nos
20116/92, 20190, 92) 1995 21 EHRR 363, 1996 1 FLR 434

3 R v R 1991 3 WLR 767

4 R v Bentley 1953 The Times 14 January, CA

5
Allan Beever, ‘The Declaratory Theory of Law’, Oxford Journal of Legal Studies, 33.3, (2013)

6
Catherine Elliott and Frances Quinn, English
Legal System, 18th edn, (Harlow, United Kingdom: Pearson
Education Limited, 2017), p. 26

7 R v Dica 2004 EWCA Crim 1103,
2004, QB 1257

8 R v Clarence 1888 22 QBD 23

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