Do You Agree with the View Expressed in Lord Gardiner’s Practice Statement of 1966 That the English Doctrine of Binding Precedent “Is an Indispensable Foundation on Which to Decide What Is the Law? Essay
In this question I will be defining what the Binding Precedent is and its main principles that are applied in judicial precedent. I will look at the structure of the court system and whether in this structure the courts are being bound by the decision of others higher courts. I will reflect at how far the binding precedent goes to ensure the existence of both certainty and flexibility in common law. I will talk about the advantages and disadvantages that contribute to the doctrine of binding precedent including examples of previous cases. Finally I will come to a conclusion if I agree overall with Gardiner’s practice statement of 1966.
Doctrine of Precedent is a legal term to describe the practice where decisions established in previous…show more content… This is because precedents set by courts with a higher status in the hierarchy are binding upon those below whilst the decisions from the lower courts can only amount to persuasive authority to its superior courts.
The 1966 Practice Statement allows the House of Lords to depart from its own previous decisions. Previously, the doctrine of precedent was deemed to be binding regardless of whether it created injustice, the precedent had to be followed. The Practice Statement established the House of Lords to have the discretion to be bound by its own precedent and since then, the House of Lords has used this power sparingly on rare and exceptional cases. Some cases which the House of Lords was invited to depart from their previous decisions were in cases such as in R. v. Howe [1987] over Director of P P for Northern Ireland.
The Court of Appeal is generally still bound by its own previous decisions but is subjected to the three exceptions as led down by the case of Young v. Bristol Aeroplane. This includes situations where its own previous decisions conflict. The judges would then have the discretion to follow the precedent which they feel is more preferably and less likely to result in injustices. Also, the judges would have the choice to not follow a previous precedent of the Court of Appeal and choose instead to follow a conflicting precedent as provided by the House of Lords should such an occasion surface. Lastly, it was decided that the judges
