reasons against system of JP - model answer

• Judicial Precedent is a system that requires judges to follow decisions made on the same points of Law by higher courts in earlier cases. The earlier case sets a precedent which judges in subsequent cases are obliged to follow. It is based on the principle of stare decisis (let the decision stand).
• Evaluation 1:

  One disadvantage of this system is that it lets the Law develop by chance. Parliament is able to pass acts of parliament to deal with possible events in the future, for example The Human Reproductive Cloning Act 2001 already exists which makes human cloning illegal under English Law even though the technology needed to clone a human has not yet been developed.
• Evalution 1:

  By comparison, precedent cannot deal with a situation until after an event has happened, such as the offence of matrimonial rape (R v R 1991) could not be created through precedent until Mr R raped his wife. It would have been far better for Parliament to create the offence of matrimonial rape through statute which may have stopped Mr R from attacking his wife in the first place.
• Evaluation 2:

  Another disadvantage is that Precedent creates retrospective Law. Until a person carries out a certain course of conduct it is impossible for the courts to consider its legality. The appeals process can take years to complete. This means in the criminal Law for example, a person is found guilty of a criminal offence, even though his course of conduct was not criminal when it was carried out, eg R v R 1991, the House of Lords ruled that Mr R was guilty of raping his wife.
• Evaluation 2:

  This was in spite of the fact that there was no crime of matrimonial rape on the day he forced his wife to have sex against her will. There is an argument that this is unfair.
• Evaluation 3:

  A further disadvantage is that Precedent is undemocratic and unconstitutional. Parliament creates statute Law. A political party which introduces unpopular Law faces the prospect of being voted out in the next election. An example of this would be the Conservative/Liberal Democrat coalition government in 2010 introduced £9000 a year tuition fees for university students. At the next election, students may vote for a different political party which offers to abolish fees.
• Evaluation 3:

  By contrast, precedent is Law created by judges. These judges are not elected but are simply employees of the state. Judges who create unpopular Law through precedent are not accountable to the people who are affected by the Laws they make. For this reason, judges can be reluctant to make controversial Laws as seen in the case of R v Nicklinson (2014) which was about the right to die. Parliament felt this Law was so significant that it should be made by Parliament.
• Evaluation 4:

  Finally, Precedent can be seen as disadvantageous as it makes the Law too complex. With over 500,000 precedents in the English Legal System, there is a real danger that precedents may exist, but have been lost or forgotten by the courts. In the case of Dodds 1973, the judges in the Court of Appeal, admitted that they thought they were bound by a previous precedent of the House of Lords. However, they were unable to find the relevant precedent, due to the sheer volume of cases already in existence.
• As such, there are numerous arguments as to why Judicial Precedent is a disadvantageous system in the UK Courts.

  The undemocratic, retrospective nature of the Laws made are clearly great issues which need to be addressed, notwithstanding the complex nature of the system.