Saint Olave's Law Society Journal ; Issue 01 (Autumn 2013)

Saint Olave’s Law Society Journal JUDICIAL PRECEDENT IN THE ENGLISH LEGAL SYSTEM JAMES WOOD The legal system in England and Wales is based on a system of case law. This system is characterised by the Latin phrase “stare decisis et non quieta movere”, which translates into “stand by what has been decided and do not unsettle the established”. In short, it is a system where past decisions made by judges in similar cases are used by future judges to influence their rulings in future cases. This was done originally in order to make the law certain and constant, and makes it easier for lawyers to advise their clients on the likely outcomes of trials. In the past, precedent was almost the sole method of making new law. While it is still very important today – judges can still make new law with original precedent – it is becoming less so, and is gradually being overtaken in importance by Parliament creating new legislation, which overrides precedent. In order for this system of case law to operate, it must be possible for judges to access both previous rulings and the legal reasoning behind it. This can be found in the ratio decidendi, a speech by the judge made at the end of a case explaining what his/her decision was and why he/she made it, including the principles of law used in making the decision. However, the judge often also continues with the judgement with what is called obiter dicta, or “other things said”. This part of the judgement includes things like speculation by the judge, and does not create any precedent; however, it can become confusing for future judges to decipher which part of the judgement is the obiter dicta and which is the ratio decidendi. This problem of decoding the judgements of previous cases can be made even more arduous by there being multiple judgements, which occurs if there is more than one judge. Although they may well all have the same decision, each judge may have different legal reasoning behind their decision to explain, which becomes incredibly complicated. Precedent can take several different forms. The first of these is original precedent. Occasionally, a judge will oversee a case on an issue that has never arisen before, such as issues with relatively new areas of technology e.g. computer security. This means there is no precedent for the judge to follow, and he/she is then free to make up his/her own mind on the case, and decide purely based on their own reasoning. This decision creates new precedent, known as original precedent, which will then be used to influence future decisions on the same topic. Binding precedent, another major form of precedent, is when the judge must follow precedent from a previous case, whether or not they agree with the ruling. This occurs mainly when the precedent comes from a superior court or a more senior judge. The third and final major form of precedent is persuasive precedent. This precedent is not binding on a court; however the judge may choose to follow it for a number of reasons, mainly if they agree with the reasoning and decision. Persuasive precedent could occur if a court follows precedent set by a Issue 01 Autumn 2013 ?*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*??*@??*??*???

Saint Olave's Law Society Journal ; Issue 01 (Autumn 2013) | Page 4