Judicial Precedent Essay

Facebooktwittergoogle_plusredditpinterestlinkedinmail
Judicial Precedent Essay
Rate this post

  • University/College:
    University of Arkansas System

  • Type of paper: Thesis/Dissertation Chapter

  • Words: 1438

  • Pages: 6

Judicial Precedent

The material facts of the case:

The Metropolitan Police received a request from the German authorities for the issuance of a warrant for Mr.Rottman’s extradition, a German business man, who was alleged of committing an offence of conspiracy to defraud in his indigenous country. Bow street magistrates’ court issued a provisional arrest warrant under s8(1)(b) of the Extradition Act 1989. Mr. Rottman was arrested in the driveway of the house, a few yard from the front door. Soon after his arrest, two German polices obtained the permission from the senior police officer present to search the house and seized a number of articles which they took to the New Scotland Yard. Mr. Rottman then bought judicial review proceedings against the legality of the decision to enter his home and to search for and seize items. Divisional court found in favour of Mr. Rottman, held that the entry and search the house carried out by the German polices had been unlawful and his rights under Art 8 of the European Convention on Human Right(ECHR) had been violated. The divisional court rejected the decision in R v Governor of pentonville Prison ex p Osman [1990]that the power of search and seizure after a lawful arrest applied to extradition cases as to a domestic crime. The old common law pursuant to search and seizure had been abolished by PACE when it is given to affect. There is no power either statutory or common law to carry out a search of premises following the arrest made pursuant to the provisional warrant executed under s8(1) under the extradition act.

Ratio of the case:

A statute does not extinguish a common law rule unless the statute makes this clear by express provision or by clear implication. The common law power would have been supplemented by but not replaced by the statutory powers in PACE. Nor was it in breach of article 8 of the ECHR as long as the search and seizure was proportionate to the legitimate purpose of preventing crime.

The House of Lord challenged the issue on general public authority which was certified by Divisional Court that – “At common law, does a police officer executing a warrant of arrest issued a pursuant to section 8 of the Extradition Act 1989 have power to search for and seize any goods or documents which he reasonably believes to be material evidence in relation to the extradition crime in respect of which the warrant was issued?”

Two argument were raised per curiam: 1) whether before the enactment of PACE police officer would have had a common law power to search the suspect’s premises when arresting him for an extradition crime under warrant; and 2) whether any such common law power of search had been extinguished by PACE thereafter.

It was a well established common law principle that police officer carrying out arrest in or on a person’s premises could search and seize any articles which he reasonably believed to be material evidence against him for a purpose of preserving that evidence until trial. It was further agreed that the powers to search and seize also extended to article presented in the room where the suspect was arrested. The lords upheld Lord Denning’s judgment in Ghani v Jones that the common law power extended to entire premises upon which the alleged was arrested. In support with a wider search power,Lloyd LJ gave the judgment in R v Governor of Pentonville Prison, ex p Osman[1990], considered that the power of search and seizure after a lawful arrest applied to extradition cases as well as to a domestic offence.

Summary of Lord Hutton’s reasoning:

Lord Hutton gave the leading judgment. He rejected the argument advanced by Rottman that the power had been too widely stated by Lord Denning. He subsequently rejected the submission the existence of statutory power in s7 of 1990 Act implied that there was no common law power in extradition cases. He upheld that the common law power of search and seizure was not extinguished by PACE, supplemented that “it is well-established principle that a rule of the common law is not extinguished by a statute makes this clear by express provision or by clear implication.” A power to seize material evidence is necessary when a suspect was arrested, it was not apply for a search warrant.

In terms of the alignment of Article of the ECHR, Lord Hutton’s opinion was that the common law power of search and seizure did not violate the appellant’s right under Article 8 of the European Convention on Human Rights. It was in accordance with the law which was clearly stated in Osman that the power had the legitimate aim in a democratic society of preventing crime and was necessary to prevent the disappearance of material evidence after the arrest of suspect. The power was proportionate to that aim because it was subject to the safeguard that it could only be exercised after a warrant of arrest had been issued by a magistrate.

Summary of Lord Rodger’s reasoning:

He was supportive of Lord Hutton’s opinion that PACE does not extinguish the common law power of search of police officers executing an arrest warrant. Parliament left them deliberately with those common law powers and left arrested persons with the corresponding law safeguards. When the police officers in the case arrested the respondent, they were entitled to exercise those common law powers and equally, the respondent enjoyed the safeguards afforded by the common law. The research of his house was accordingly lawful.

Summary of Lord Nicholls and Lord Hoffman’s reasoning:

They both gave little reasoning to the ruling. They largely agreed with the judgment from Lord Hutton that a where a police officer entered a house with or without an arrest warrant and arrested a suspect he enjoyed a common law power to search the house and seize any goods that he reasonably believed to be a material evidence.

Summary of Lord Hope’s reasoning:

He dissented the majority of ruling by Lord Hutton and others that the powers which are available to police officer at common law where he is in possession of an arrest warrant. He claimed that the statutory powers under PACE were not available that in the absence of the common law power, it is unlawful that the entry and search of the house violate the respondent’s right under the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

He also disagreed that the extradition cases could be equated with domestic ones. He expressed that any power which the police might have did not apply to arrests on a provisional warrant for an extradition offence. Extradition required an order of the Home Secretary issued in response to a request by the foreign state. And there was no common law paper of arrest for the purposes of extradition. Also the Extradition Act granted powers of search and seizure in very limited cases.

He claimed that the extradition always requires a request that there is no common law power entitling an officer, for the purposes of extradition, to make an arrest without a warrant.

By the majority of 4:1, excepts Lord Hope dissenting, the appeal was allowed. The House held that the commissioner of police who had arrested a person in or on his premises, executing a warrant of arrest issued pursuant to s8 of the Extradition Act 1989 had the common law power to search for and seize any articles which he reasonably believes to be material evidence in relation to the extradition crime.

On the whole, this is a strong case as the majority of the judges held the appeal that the power of search to the police is more stringent in extradition cases than domestic cases. This in turn make a clear pictures to the commissioner of police in the region that they knows how and when to apply the rule without any violation to the ECHR.

Facebooktwittergoogle_plusredditpinterestlinkedinmail

About the author

admin

View all posts

Judicial Precedent Essay

Facebooktwittergoogle_plusredditpinterestlinkedinmail
Judicial Precedent Essay
Rate this post

  • University/College:
    University of California

  • Type of paper: Thesis/Dissertation Chapter

  • Words: 1358

  • Pages: 5

Judicial Precedent

Judicial Precedent is another important source of law, it is an independent source of law, where there are no legislations on the particular point in statute Books, and Judicial Precedent works great. Judicial precedent has been accepted as one of the important sources of law in most of the legal systems. It is also a continuous, growing source of law. According to Salmond, the doctrine of precedent has two meanings, namely (1) in a loose sense precedent includes merely reported case-law which may be cited and follows by the court, (2) in its strict sense, precedent means that case-law which not only has a great binding authority. But must also be followed. There are variety of different views about the nature of judicial precedent. According to Jermy Bentham, Precedent is a judge-made Law while Austine calls it as judiciary’s law; Keeton holds precedents as those judicial pronouncements of the court which carry with them certain authority having a binding force. In simple words precedent means judge-made decisions which are used in further cases. A judicial precedent is purely constitutive in nature and never abrogative. Means it can create law but cannot abolish it.

The judges are not at liberty to substitute their own views where there is a settled principle of law. They can only fill in the gaps in the legal system and so we can say that precedent means a case decided previously. Or precedent is any set pattern upon which future conduct may be based. Judicial precedent is a decision by a competent court of justice upon a disputed point of view which becomes, not merely a guide but an authority to be followed by all courts of co-ordinate or inferior jurisdiction and administrating the same system until it has been overruled by a court of superior jurisdiction or by a statute of superior authority, e.g., an Act of Parliament. The justification of the binding rule of judicial precedent is based on the several reasons these are that, precedent is based on practical experience. Rather than logic, it is based on convenience in the sense that it is provided in settled law and thus saved the labour of judges.

It prevents error of judgment by individual judges, it prevents partiality on the part of the judges It helps lawyers to take a cautious view of the development of law on the basis of past judicial experience because of above all factors precedents are become achieve important place as one of the important source of law. Precedents can be classified into two categories: (1) Authoritative and (2) Persuasive. The authoritative precedent is one which has a binding force and the judge must follow it whether he approves it or not. Authoritative precedents are the decisions of superior court of justice which are binding on subordinate courts. For ex. Supreme Court, High Courts, Persuasive precedents, on the other hand, is on which the judges are under no obligation to follow but which they may take into consideration at the time of making decision. Now from all above discussion we are well able to understand precedent, how we discussed the position of precedent in real practice and its recent value in administration of justice. In the recent years, the value of the doctrine of precedent has become a debatable issue.

In England the importance of precedent is much more than in any continental country, that is why it is often said that judicial precedent is an unique feature of common law countries because the great body of the common law or unwritten law is almost entirely the product of decided cases and common law of England has been created by the decision of English judges and precedent is not merely evidence of the law but a source of it and the courts are bound to follow the law that is so established. House of Lords is the highest Court in England, its decisions bind all the inferior courts, the House of Lords itself is bound by its own previous decision but this position after a long controversy and various debates become change after the famous classic case. Boys v. Chaplin, 1968 IAIIER 283 and it is finally decided that as the House of Lords is the highest court in England, its decisions are absolutely binding on all inferior courts. But House of Lords is now not bound by its own earlier decisions and so nowadays House of Lords is not bound by its own previous decisions. In continental countries like Germany France, Italy, judicial precedent has only instructive value and it is not authoritative.

In these countries its importance is no greater than that of a textbook of law. In India judicial precedent has great value. The position of precedent becomes clear after 1950 and the doctrine of precedent gets a constitutional recognition. Art. 141 of the constitution provide that law declared by the Supreme Court to be binding on all courts, within the territory of India. It is clear from the wordings of Article 141 that the law declared by the Supreme Court is binding on all courts in India. But there after in various debates question arises that, whether the expression all courts include Supreme Court also. This question gives birth to various new views, that whether Supreme Court follows the British model of the House of Lords of ‘be bound’ or the U.S.A. Supreme Court ‘not be bound’. This question was first discussed by S.C. in the famous case. Now it is finally concluded from all forgoing discussion that the position of precedent from past to present is changed in vast dimensions and importance.

Value of precedent is now decreased to some extent and new concepts of prospective overruling has evolved to avoid the complications in vast changing society. In true sense precedents enable the judges to re-shape law according to the social need and at the same time the binding authority of the precedent acts as an effective check on the arbitrary discretion of the judges. Precedent helps common people to know about the intricate principles of law. Precedent helps Lawyers in their argument without waste of unnecessary time and energy whenever they want to cite any case-law. It also provides useful guidelines for the judges in deciding cases before them. But there are some contrary arguments towards precedent as Bentham did not recognize precedent as law at all because it lacks binding force of the state. Some critics argue that, statute law is more important than precedent, they say that, judicial precedents are published in law reports which are in such a large number that it becomes practically difficult to find out a particular case from such a voluminous legal literature and so it is very time consuming, they also contend that, at one time, different courts express conflicting opinions on the same point which renders the validity of precedent doubtful and uncertain and there is always a possibility of erroneous judgment in such a case.

Another objection which is quite often raised against precedent is that development of law through case-law more or less depends upon chance, because there is no test available for determining the validity of law made by precedent. Sometimes erroneous decisions of S.C. create practical problems for the subordinate judges as they are bound to follow these decisions howsoever wrong or defective. This adversely affects the growth and development of law in the right direction. But despite the aforesaid critical argument, judicial precedent has been as one of the important sources of law in most of the legal systems particularly U.K., U.S.A., Australia, Afro-Asian countries and India as the merits of the binding effect of the precedent (decision) it must be stated that it gives certainty and uniformity to law and brings about its scientific development and precedents always remain an effective weapon of shaping and developing law according to the needs of the changing society.

Facebooktwittergoogle_plusredditpinterestlinkedinmail

About the author

admin

View all posts