‘Judicial Precedent Is Best Understood as a Practice of the Courts and Not as a Set of Binding Rules. as a Practice It Could Be Refined or Changed by the Courts as They Wish.’ Discuss

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INTRODUCTION: The doctrine of precedent, or stare decisis, lies at the heart of the English legal system. The doctrine refers to the fact that within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower that is in that hierarchy. In general terms this means that when judges try cases they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow but will certainly…show more content…
* The previous decision was given per incuriam (by carelessness or mistake). In the criminal division, in addition to the Young exceptions, precedent is not followed as rigidly because a person’s liberty may be at stake. In R v Taylor, the Court of Appeal held that if ‘the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision. See also R v Gould. 4. DIVISIONAL COURTS A Divisional Court is bound by the House of Lords and the Court of Appeal and normally follows a previous decision of another Divisional Court but has similar exceptions to the Court of Appeal (Police Authority for Huddersfield v Watson). 5. HIGH COURT The High Court is bound by the Court of Appeal and the House of Lords but is not bound by other High Court decisions. However, they are of strong persuasive authority in the High Court and are usually followed. Decisions of individual High Court judges are binding on the county courts. 6. CROWN COURTS Decisions made on points of law by judges sitting at the Crown Court are not binding, though they are of persuasive authority. 7. COUNTY COURTS AND MAGISTRATES’ COURTS The decisions of these courts are not binding. 8. THE EUROPEAN COURT OF HUMAN RIGHTS Under the Human Rights Act 1998, English courts must now have regard to decisions of the European Court of Human Rights. In Re Medicaments, the Court of Appeal refused to follow a decision of the House of Lords in R

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