Persuasive precedent is a decision of a lower court which may influence the higher court, where the legal facts are similar or slightly different. It may also be made by the Judicial Committee of the Privy Council, another jurisdiction or things said obiter. The Supreme Court binds all lower courts and generally binds itself due to London Tramways Co v London County Council 1898. The Practice Statement 1966 says that following precedent is a good thing as it enables us to know exactly what the law is and we can behave accordingly. Despite this, it is stated that following precedent too rigidly may cause an injustice.
For example, the ever-changing law on how discrimination went from sanctioning segregation to dissolving segregation illustrates how adaptable common law is. This law also derives its basis from these court proceedings called precedents to guide cases based on past rulings. The one disadvantage of common law is how cases will surmise. As Rogers (2012) attests, “even the best judicial minds often disagree, based at least in part on their judicial philosophy and political ideology” (Section 1.1). Depending on each of the judge’s beliefs, cases can go in any direction from their analysis.
In order for this checks and balances to be put in practice, the judicial branch must have some important role as surveillance. This applies to the fact that judicial review can stop the legislative branch from exceeding its power. Not only the legislative branch but also, the executive branch is under the judicial watch. The court can also claim unconstitutional to the executive acts that are judged oppressive. It is their job to declare void acts by other branches violating the Constitution.
Despite being restrictive of the responsibility of the defendant most of the time, it does, however, also extend the liability of the defendant in certain cases. Both will be considered in this essay in further details. The encounter of novel cases necessitates the courts to invoke the Caparo 3-stage test to determine the existence and extent of duty of care not yet established by the authorities. The ‘fair, just, and reasonable’ stage, under which matters of policy are to be considered, is what must always be faced when using the test. Andrew Robertson proposed two categories of policy considerations: ‘justice between the parties’1 and ‘justiciability, community welfare and other non-justice considerations’2 which concerns the effects that recognition of the duty may have on legal system or on people’s behaviour.4 Even when no public policy matters are said to be concerned and the decision reached on the basis of foreseeability and proximity proves desirable, the decision actually conforms to the former sense of policy where it is thought to be fair among the parties to do so.
If a person becomes harmed by that of the government they have to follow the law and if they don't follow it will end up as a constitutes of a due process violation that will end up offending against the rule of the law. With the due process it is divided into a substantive and procedural categories. With the substantive process it relates to the general rights like the freedom of speech and the right to privacy. With the procedural process it relates to be able to
CH 1 1. What is the principle of legality? * The principle of legality is the legal ideal that requires all law to be clear, ascertainable and non-retrospective. 2. Define the rule of law.
This clearly shows an effective protection of liberty by judges. Furthermore, a vital protection of liberties can be exercised via judicial review. Judicial review is a process that is conducted in the Supreme Court that hears an appeal over lawfulness of a case. It is not focused on the rights and wrongs of a case, this would be a case for appeal courts following the above methods, judicial review is simply an examination of the lawfulness of a case. For example, in the case of Home Secretary v. AP 2010 an appeal allowing the government to detain AP on a control order
Judicial review is the right, or duty, the court has to review the constitutionality of legislation and/or actions taken by the executive branch. The court has the right to choose its cases, but these are brought before them not sought after by the court. What is the separation of powers? This is a form of checks and balances between the executive, legislative, and judicial branches of government. They are in place so as to contain the power of any one branch attempting to overstep its authority and act in a tyrannical matter.
They review what occurred in the trial court to make sure that the proper law was applied and that the proceedings were fair. Each side presents a written argument to the appellate court in a document called a "brief." The arguments made in briefs vary. However, common grounds for an appeal include claims that the trial was conducted unfairly or that the trial judge incorrectly applied the applicable law. a party may claim that the law that was applied violates the United State constitutions.
Innocence Commission This innocence commission has been designed to recommend action with regard to wrongful convictions. Wrongful convictions are caused by many factors involving several court participants. The goal of this commission is to bring light to these causes and therefore recommend ways to reduce wrongful convictions. The information throughout this document is to be used as reference material for achieving the goal. Causes of Wrongful Convictions The many causes of wrongful conviction are eyewitness misidentification, improper forensic science, government misconduct, informants, bad attorneys, and false confessions or admissions.