P1 Unit 2For this task I have been asked to advice MrWilkins how precedent might apply to his case explaining what particularaspects of precedent might be relevant.What is aPrecedent? In legal systems based on common law, a precedent,or authority, is a principle or rule established in a previous legal case that is either bindingon or persuasive for a court or other tribunal when deciding subsequent caseswith similar issues or facts.StareDecisis The doctrine of StareDecisis means that courts look to the past for similar issues toguide their decisions so judges would look to a past ruling or judgment on any case this is known as a precedent.
Stare decisis dictates that courts look toprecedent when overseeing an on-going case with similar circumstances. The past decisions are known asprecedent. Precedent is a legalprinciple or rule that is created by a court decision.
This decision becomes an example, orauthority, for judges deciding similar issues later. The two principles thatstare decisis embraces are:· Like casesshall be treated alike – If a case is similar to one that’s already been decidedthe judge will look to precedent when overseeing an on-going case with similar circumstances e.g. Daniels V White followed Donoghue V Stevenson · Higher courtsbind lower courts – Precedent follows a hierarchical structure in which thelower courts like the Magistrates Court Mustfollow the decisions made in the higher courts like the Supreme Court.Higher Courts however aren’t obliged to follow their own past decisions Types of PrecedentsPrecedentliterally means ‘what went before, let it stand’. There are three types ofprecedent: original, binding, and persuasive. Precedent is known as a commonlaw, whereby judges, in the interests of fairness and consistency, followprinciples established in the previous decisions on a similar legal point of anequal or superior court.
The three types of Precedents are explained in thefollowing: · Original precedent arises where the point of law in the case beforethe court has never been considered before and there has been no previousjudicial decision on it. In such cases, the judge must use his or her owndiscretion in reaching a final judgment. They will generally adopt an approachknown as reasoning by analogy, whereby they will looks at cases which involve asimilar principle to the one they are dealing with and apply similar rules. · Binding precedent is ‘normal’ precedent. It requires a court to follow a previous courtdecision made in a previous case in the same way. For a precedent to be bindingon a judge in a later case, the material facts of the two cases must besimilar. The precedent is only binding on courts lower or equal to the courtwhere the precedent was made.
· Persuasive precedent is where a lower court makes a decision and ahigher court can or may be allowed to use the precedent or decision, but theyare not legally obliged to. There have been cases where lawyers will bring upevidence to show that the material facts of their case was the same as adecision made in an inferior court. It is up to the judge to decide if the caseis sufficiently similar to allow them to take the merits of the case intoconsideration when they are making their judgment.Rules of precedent to Mr Wilkin’s CaseStare decisis dictates that courts look toprecedent when overseeing an on-going case with similar circumstances the case ofR v Wilkins & Others shouldfollow the precedent set during the matter of R v Savage & Others as past precedents should be followed aslike cases should be treated alike, in addition higher courts bind lowercourts. The case of R v Wilkins involves a group of right wing white supremacists that have beenconducting initiations on new members this includes: bathing them in bleach toburn skin “white”, cutting the letters “WW” into the skin using razors andamputating fingers and toes. Numerous new members have had to go hospital dueto the severity of the injuries they sustained, in addition one older memberdied of a heart-attack during a finger amputation and Mr Wilkin’s was chargedwith ABH (aggravated bodily harm) and GBH (grievous bodily harm) he alsopleaded the defence of consent since then the judge rejected this at trial andhe and the others were convicted. In 2010 the Supreme Court howeverruled during the case of R v Savage& others that defence of consent was available even though in bothcases incitation ceremonies consisted of people gaining various injuries andall gave their consent to the acts in both cases, so why should the judge notallow consent when the precedent was set and all were acquitted on appeal as aresult yet during the case of R vWilkins & Others the judge has since rejected the plead at trial. Thecase of R v Savage & Others wastried in the Court Of Appeal yet precedent was set in The Supreme Court and precedent follows a hierarchical structure in which the lower courts like theMagistrates Court Must follow thedecisions made in the higher courts like the Supreme Court.
Higher Courtshowever aren’t obliged to follow their own past decisions in this case theCourt Of Appeal is lower than the Supreme Court yet they aren’t following theprecedent set in the higher court. However due to the Youngv. Bristol Aeroplane Co Ltd were an English court case thatestablished that the Court of Appeal is bound to follow its own decisions andthose of courts of co-ordinate jurisdiction, except in the following cases:1. the court is entitled and bound to decide which oftwo previous conflicting decisions of its own it will follow;2. the court is bound to refuse to follow a decisionof its own which cannot stand with a decision of the House of Lords;3.
The court is not bound to follow a decision of itsown if the decision was given perincuriam, e.g., where a statute or a rule having statutoryeffect which would have affected the decision was not brought to the attentionof the earlier court.Thereis a persuasive precedent the court of appeal may choose to follow. It is theAmerican case of The People v Rosen. The facts are way more similar to Wilkinsthan the R v Savage case. One way it is similar is, in Wilkins’s case therewere server cases of serious body harm for example “cutting the letters WWin the skin using razors.” Also it was stated that there was amputationinvolved.
This is similar to Rosen’s case because it also states “cuts to theface and amputation.” Which are serious cases of body harm which can getyou into jail for GBH or ABH? Another way the cases are more similar is thatthey are both from racist organizations for example in Wilkins case they call themselves”White Wash.” This is similar to Rosen’s case where they called themselves”Supremes Brotherhood”. This may not be favourable for Wilkins when trying toappeal his case because the court does not support racist organizations. So in conclusion the court of appeal has manyoptions to pick from to decide Mr Wilkins case.
If the court of appeal decideson following the first scenario and follows the process of stare decisis thenMr Wilkins will be acquitted. This would be the best case scenario for MrWilkins as then he would no more be facing those charges but as we do not knowwhat the court of appeal will do Mr Wilkins will probably just have to hope thecourt of appeal goes with this decision.However,if the court of appeal decides on following the second scenario and try’s todistinguish the two cases. The C/A would not be bound by Savage and may upholdMr Wilkins’s conviction and the decision that the defence is not allowed. Thiswould be one of the worst case scenario for Mr Wilkin’s, as his conviction willbe upheld. As we don’t know what the court of appeal will do Mr Wilkins willjust have to hope the court of appeal goes with the first decision.
Finally, ifthe court of appeal decides on following the third scenario and tries to followthe persuasive precedent of Rosen then Mr Wilkins conviction would be upheld,this would also be one of the worst case scenarios as then it will mean hewould still face the same charges. Repeatedly said we do not know what thecourt of appeal will chose so the best thing for Mr Wilkins to do is just tohope the court of appeal picks the first case.