INTRODUCTION
The concept of a binding precedent is basically a remnant of the common law that originated from the English judicial system, a system which is similarly adhered to by Australia. The concept of binding precedent is not as much compelling as its name implies. To discuss this, specific law concepts will be provided. The first concept is stare decisis, which indicates that lower courts of the legal system are compelled to implement the legal principles established by higher courts in earlier cases. To illustrate, the case of Donoghue v. Stevenson (1932) was held as a precedent of Grant v Australian Knitting Mills (1936). Another concept is ration decidendi. This literally means the grounds for acquiring such decision. To illustrate, the case of R v Howe (1987) the House of Lords denied the defence of duress on the part of the defendants because of the need to safeguard innocent lives and to institute a criterion of conducts in which all individuals are to follow so as to steer away from criminal liability. On the other hand, if there is no existing precedent, it is the duty of the courts to declare the law such that the case would become the original precedent. This is reflected in the case of Airedale NHS Trust v Bland (1993).
AVOIDING PRECEDENT
Binding precedence could be avoided. One course is to consider the case of Young v Bristol Aeroplane (1944). In this case, it permits the CA to rectify its errors, which is particularly vital as it heeds the most appeal lawsuits as measured up to the House of Lords. The added flexibility in the criminal division is imperative as such lawsuits entail the liberty of an individual. Another way is by distinguishing the case. An earlier case is barely compulsory in a subsequent case if the legal principle concerned is very similar and the basic information is comparable. Distinguishing a case based on its available information, or on the position of law concerned, is a tool that could be used by judges typically so as to steer clear of the outcomes of a previous problematic decision which is, in firm practice, obligatory on them.
The lawsuits where the defendants had wounded the victim who acquired negligent medical treatment cases To illustrate, R v Smith in which R v Jordan, where the injured party passed away because of pneumonia and the sequence of causation broken, was recognized. Similarly, that Balfour v Balfour (1919) was distinguished in Merritt v Merritt (1971) where it stated that any judge can distinguish a precedent on small information and the dissimilarities can from time to time seem unreasonable. Distinguishing does permit judges to build up the law and generate exemptions to a general rule recognized in a past case.
Judges could also overrule a case. A superior court is able to overrule a judgment completed in a past case by a lower court. Overruling can take place if the preceding court did not appropriately implement the law, for instance, the superseding of Anderton v Ryan [1985] 2 All ER 335 by the House of Lords in R v Shivpuri [1986] 2 All ER 334 with reference to the Criminal Attempts Act 1981. Moreover, the courts could overrule as the later court deems that the rule of law enclosed in the preceding case is no longer advantageous. For instance, the House of Lords' judgment in Miliangos v George Frank Ltd [1975] 3 All ER 801 which overruled earlier authority that rulings could not be specified in foreign currency.
Moreover, the judges are also able to reverse the rulings in other cases. Reversing is the overturning on appeal by a superior court, of the judgment of the court lower than that heeding the appeal. The Court Of Appeals will stand-in then its own judgment. To illustrate, in R v Kingston (1994), the House of Lords reversed the judgment of the Court of Appeals and stated that involuntary intoxication will not be a defence except for the fact that it averts the defendant figuring means rea for the crime accused even supposing that the defendant was not responsible for becoming inebriated.
In relation, the courts could also disprove a precedent. Judges may possibly disapprove of a precedent, which they are nonetheless compelled to implement, in the expectation that it will be reconsidered. A higher court may similarly disapprove of a precedent produced by a lower court without essentially over-ruling it. An instance of the former is the case of Elliott v C (1983) where it disapproved of the House of Lord’s decision in R v Caldwell (1981) which recognized objective recklessness. An instance of the latter is the case of B v DPP (2001) where the House of Lords disapproved of the strict liability lawsuit, R v Prince (1875).
CONCLUSION
With the implementation of binding precedent, there is firmness in the law. By addressing the past and present precedents it is likely to predict what a judgment will be and prepare consequently. Moreover, this paper has also revealed that such precedence could offer homogeny in the law. Comparable cases will be handled correspondingly. This is vital to provide the system a sense of justice and to make the arrangement satisfactory to the people. Moreover, judicial precedent is adaptable. There are numerous manners to steer clear of precedents and this permits the system to transform and to become accustomed to new conditions.
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