R V Wilson Judges example essay topic
518 words
Judicial Precedent Essay plan Intro Say what precedent is: Stare d ecesis et non quiet a mover e = Stand by what has been decided and do not unsettle the established. Which means a decision made in one case is binding on all following cases of similar fact in lower courts. Then say: there are 3 main principles involved. (1) Ratio Decidendi = the reasoning behind the judges decision. This is the binding element of a judgement / case (2) Reliable system of law reporting: there are thousands of cases each day and so the law keeps changing. You need to be able to get the ratio decidendi from cases or else judges may make decisions in new cases Per in curiam = in error.
(3) Court Hierarchy: Decisions made high up in the hierarchy are binding on all lower courts. Then talk about the methods / rules judges have to avoid binding precedent: (1) Overruling: judges can, (a) Overrule decisions made lower in court hierarchy (b) Overrule past decisions made in their own court e.g. House of lords. R -v- R marital rape case. Before = a husband could have sex with his wife at any time she always gave consent even if she didnt want to. Now = House of Lords abolished that rule made by themselves.
They could do this because of the 1966 practice direction (Lord chancellor) which said that the house of lords was no longer bound by its previous decisions. (2) Distinguishing: judges can argue that the facts in their cases are different to those where a case has a precedent set in it. e.g. R-v-Brown & R-v-Wilson. In R-v-Brown judges argued that sadomasochism was unlawful assault and the defendants could not use consent. But, in R-v-Wilson judges argued that wife gave consent and initiated the buttock branding by her husband ie. It was her idea so the courts distinguished between the two cases. Then talk about why judges have to avoid precedent: (1) Due to changing social and physical attitudes old laws should be change to suit new times. e.g. Herrington-v-BRB a child was badly injured on a train track (Electrocuted) and the judges held that even though the kid was trespassing BRB still owed a duty of care to the child.
(2) In courts of appeal: where a persons freedom is at stake. The judges should be able to use methods to change the law in order to save the individual from prison. Lastly you should talk about why judges shouldnt change / develop the law: (1) Judges are not elected by the people so it should only be fair that government which is elected by the people make the laws. This is called parliament sovereignty. (2) Judges are only concerned with the one individual / defendant in their case and are not worried at how their decisions could be massively effective on everyone else.
If you follow this essay plan I guarantee you will get an A.
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