Discuss_the_Operation_of_Precedent.

A court, presented with a set of circumstances that does not adequately fit a remedy via an existing statute looks at rules already decided. So some consistency can be drawn between decisions made by a court in one case and the related decision made by another court, faced with similar facts. It results in 'like' cases being treated in a 'like' manner. The decisions made earlier are said to be Precedents. Precedent allows for a degree of confidence in what ‘fairness’ is. So people can be satisfied that the decision reached, is the result of many reassessment’s of similar circumstances nationally. But a ruling in one case in one court offered little hope to justice if a second court gave a different judgement on a similar case. Precedent tries to introduce a level of consistence in judicial decisions. Not possible without a robust method of reporting what decisions are made nationally and against what circumstance prevailed. The intention of the judge in making a decision given the circumstances of the case could be shared. In this way different courts were able to see what judgements were established and importantly why. With this process of reasoning, a judge gives a decision in a dispute, and a 'Fair' law is created. How binding a decision is, varies depending on a number of points, precedents stand until new situations force reconsideration. This must include the material facts of the case. What happened. In this way the like for like analogy used by the court can be tested, not just the judges intention. Any single Precedent may be viewed differently depending on your bias. Often two sets of precedents offered by council will appear just as convincing as each other. For this reason Precedents are always a compromise not in suggesting the right answer, only a better or worse one depending on the facts of the case. Doing justice to individual instances. Once a precedent is established, a degree of inflexibility must come with it, as precedents are binding. But a judges decision can be tested by a superior court. In this way Precedent becomes almost organic. It is not unusual to have a judgement by a lesser court overturned because the original ‘analogy’ between it and a Precedent was considered by a higher court to be wrong. So Precedent in many cases may not be clear. A Precedent set by a previous court may be wrong in the eyes of the current presiding judge, but he may be tempted to avoid any ‘Judicial Appeal’ Some say this fits well the in built conservatism of the judiciary, and unless a judge is willing to face controversy, a ruling may be given against his better judgement, and he is muzzled by the past. Although the decision can be appealed, it is a negative control, were changes occur when something has not worked. Because the modification of precedent relies on such a negative feedback, its growth is tardy and erratic. Positive modification based on this system is so often dependent on a combination of cases, questions and litigants, all coming together at a pertinent time. Some rulings will be acceptable, to the parties before the judge and to society in general, being strengthened by subsequent courts considering the decision. They will stand the test of time. Others will not. To avoid being faced with controversy courts may be tempted to show that on the material facts, two cases are not like for like. In this way precedent can be deviated from. This makes the law a cumbersome instrument, and the law then becomes more uncertain. If the interpretation of the Precedent is disputed, the case is taken up the judicial hierarchy on appeal. In this way higher courts make more authoritative decisions. Decisions made by a higher court are binding to any subordinate court. The structure is quite rigid. There is a court where the first instance of the Precedent is applied. The appeal then moves to the Divisional Courts, the Court of Appeal and finally the House of Lords. The subordinate courts are bound by the decisions of the higher courts. But what of an original precedent being in error' The system seems only to modify its self if some one objects, and would be inflexible if judges try to avoid controversy. How binding is the court decision on its self. In the rulings of the High Court it is technically not. In practice, most High Court Judges follow decisions made previously by other High Court Judges, unless a good reason not to is evident. So Precedent, through a process of natural selection becomes almost living constantly growing along side societies needs and expectations of it, with each subsequent appeal, further refining the original concept of what is 'Fair' in a particular set of circumstances.