Evaluation of JP (12)

• Advantage of Judicial Precedents

  P- Creates certainty in the law

  
  

  DEV- Judges are required to follow the decisions of previous judges meaning that lawyers can advise clients and the public can know what the law is

  • R v Howe - sets binding precedent for duress, this gives public knowledge

  E- However, it can make law too rigid and non flexible. For example if laws need updating overtime they have to get a higher court before its updated
• Advantage of Judicial Precedent

  P- Consistency between cases

  
  

  DEV- binding precedents ensure that all cases with similar facts are treated the same meaning that everyone is treated fair

  • Knuller v DPP followed Shaw v DPP decision to ensure fairness

  E- However, this can depend of biases of judges as some judges would think that cases are different when they are similar (visa versa)
• Advantage of Judicial Precedent

  P- Saves time for judges

  
  

  DEV-When judges set precedents it's clear meaning lower courts can apply precedents form higher courts without having to spend time appealing to higher courts to get the decision

  • Sweet v Parsley set precedent so lower courts can follow

  E- However, some precedents are overruled quickly so this does not always apply. Anderton v Ryan set precedent but 1 year later it was overruled by Shivpuri
• Disadvantage of Judicial Precedent

  P- Makes law too rigid

  
  

  DEV- This means that there is a lack of flexibility to make common sense decisions when required. Some precedents may have been set years ago.

  • Decision in Knuller v DPP followed Shaw v DPP

  E- However, giving judges too much flexibility may be undemocratic as they are unelected
• Disadvantage of Judicial Precedent

  P- Complexity and volume of case law

  
  

  DEV- Judgements tend to be long and hard to separate binding precedent from persuasive precedent. Meaning this puts pressure on judges to understand precedents meaning errors can be made

  
  

  E- However, this means there's a possibly a lot of guidance available for judges when they are making decisions
• Disadvantage of Judicial Precedent

  P- Slowness of growth in the law

  
  

  DEV- Judges are required to follow precedents, this can make it difficult for law to adapt and update especially when cases is brought to court and appealed to a high court to overrule previous precedents

  • R v R

  E- However, it should be up to Parliament to see when change is needed for outdated rules as judges are not elected