A Level Law
A Level Law
What You Need to Know:
• How a judge creates a precedent
• How a precedent can be altered or avoided
• The limitations on judicial law-making
What You Need to Discuss:
• The balance between certainty and flexibility in the
operation of precedent
• The law-making partnership between Parliament and the
courts
A Level Law - Recap
Three essential elements
A hierarchy of courts:
• this establishes which decisions are binding on which
courts
• decisions of higher courts are binding on lower courts
• highest court = Supreme Court (House of Lords)
• next most important court = Court of Appeal
• the Divisional Courts and the High Court can also
establish precedent BUT bulk of common law is found
in decisions of the House of Lords and Court of Appeal
A Level Law
The binding precedent:
• When judges make a judgment it contains four elements:
 statement of material (relevant) facts
 statement of legal principle(s) material to the decision
- the ratio decidendi or legal point
 discussion of legal principles raised in argument but
not material (important) to the decision - obiter dicta
 the decision or verdict
A Level Law
• the binding precedent in future cases is the ratio
- reason for the decision
• obiter dicta - things said by the way, while
never binding, may have strong persuasive force
• other forms of persuasive authority include:
 decisions of other Common Law jurisdictions (esp.
Australia, Canada and New Zealand)
 decisions of the Privy Council
 writing of legal academics
 obiter dicta of courts higher in the hierachy
Case Study on a Judgement - Defence of Duress cant
be used for a crime of murder
Howe, R v [1987] House of Lords:
Facts: D acting under duress (threatened with death), took part with others in two
separate murders, and on a third occasion the intended victim escaped.
Held: Guilty.
Ratio: Duress is not available as a defence to murder for the person who actually
kills the V or anyone who takes part in the killing. Morals, law and policy should
deny a man the right to take an innocent life even at the price of his own.
Obiter: In attempted murder Duress should not be available as a defence.
A Level Law
Flexibility and Certainty
• certainty needed to allow people to plan/lawyers to
advise
• flexibility needed to enable Common Law to develop
to meet changing times
• therefore, system needs to balance these two
competing, but equally legitimate, aims
• binding nature of the ratio creates a foundation of
certainty - original precedent is the first binding
precedent
A Level Law - Rules allowing flexibility
in precedent
• flexibility introduced by:
 overruling - higher courts can overrule lower courts
 distinguishing - where a lower court is able to point to
material differences that justify the application of different
principles than the binding precedent.
 departing - where, in certain circumstances, a court can
depart from its own previous decision - Supreme Court is the
only court that has a general right to do this.
 reversing - A court higher overturns the decision of a lower
court on appeal..
Overruling - case Study and criticism
Lynch v DPP Northern Ireland 1975:
Facts: D was an accessory to murder in that he drove a car to a place under
threats from an IRA gunman M. D waited while M and his associates killed a
policeman, and then drove them away.
Held: A 3-2 majority in the House of Lords allowed his defence of duress.
OVERRULED BY R v Howe 1987: See previously.
Ratio/Held: Duress is not available as a defence to murder for the person who
actually kills the V or anyone who takes part in the killing.
Advantages of Overruling:
+Allows for flexibility in law
+Allows for law to develop
taking into account economic
and
+Social changes in society
+Allows mistakes of the courts
to be corrected
Disadvantages of Overruling:
-Creates inconsistency if
overused
-Lawyers find it harder to advise
clients on outcomes of their
cases
-Risks usurping supremacy of
parliament in law making
Distinguishing - case Study and criticism
Balfour v Balfour 1919:
Facts: D agreed to pay his wife a maintenance payment orally but later refused to pay.
Ratio/Held: In contract law an Intention to create legal relations (ITCLR) wasn’t
presumed in domestic agreements and as D only agreed orally this was not rebutted. No
contract to pay C formed.
Distinguished Merritt v Merritt 1972:
Facts: D agreed to pay his wife maintenance in writing after formal separation.
Ratio/Held: The presumption of no ITCLR was rebutted as there was a written agreement
and C was entitled to claim maintenance under the contract. This distinguished the case
from Balfour so Merritt did not have to follow this earlier binding precedent.
Advantages of distinguishing:
+Allows for flexibility in law for lower
courts
+Prevents stupid decisions
+Stops precedent become rigid and
unfair in individual cases
+Allows a binding precedent to be
confined to its facts to reduce the
impact of a spurious precedent
Disadvantages of distinguishing:
-Allows lower courts to split hairs
where there is no real difference with
binding precedent
-Creates potential inconsistency in law
-Is in complete contradiction to Stare
decisis
-Lawyers find it harder to give clear
advice to their clients.
Overruling- case Study and criticism
Anderton v Ryan 1984:
Facts: D had bought a video recorder, but later confessed to the police that she believed it to have been
stolen property when she bought it. The defendant was charged with attempting to handle stolen goods,
although the prosecution was unable to prove that the video recorder had in fact been stolen property.
Ratio/Held: House of Lords quashed the defendant's conviction on the ground that she could not be
guilty of attempting to handle stolen goods unless such property was shown to have existed.
Departed and overruled by R v Shivpuri 1985:
Facts: D was arrested entering the country, carrying a package which he believed contained either heroin
or cannabis, but was in fact harmless ground dried vegetable. D was charged with attempting avoid
import restrictions; smuggling.
Ratio/Held: Accepting that previous law had been incorrectly applied, concerning the Criminal Attempts
Act 1981, the HL departed from its previous decision and said an attempted crime was impossible could
still be a criminal offence as per S1(2). D G.
Advantages of Departing:
+Allows for flexibility in law for the
Supreme Court
+Allows for law to develop taking into
account economic and
+Social changes in society
+Allows mistakes of the courts to be
corrected
Disadvantages of Departing:
-Creates inconsistency if overused
-Lawyers find it harder to advise
clients on outcomes of their cases
-Risks usurping supremacy of
parliament in law making
Reversing - case Study
R v Kingston 1995 HL:
Facts: D indecently assaulted a 15-year-old boy who had been drugged unconscious by P
who then invited D to sexually abuse the boy. D claimed that he had no recollection of the
assault, as his drink had also "been laced" with drugs by the P, who photographed the
indecent act.
Ratio/Held in Crown Court: The trial judge directed the jury that if they were sure that
despite the effect of any drugs the defendant still intended to commit an indecent assault
the case against him was proved. D G.
Reversed in the Court of Appeal:
Held/Ratio: D NG. The Court of Appeal's decision was founded on the principle that the
law recognised that, exceptionally, an accused might be entitled to be acquitted if there
was a possibility that although his act was intentional, the intent arose out of circumstances
for which he bore no blame.
Reversed in HL:
Ratio/Held: Involuntary intoxication is not a defence to a defendant who is proved to have
the necessary criminal intent when he committed the offence even if under the influence of
drugs administered secretly to the accused by a third party. The trial judge had correctly
directed the jury that if they were sure that despite the effect of any drugs the defendant
still intended to commit an indecent assault the case against him was proved.
Reversing - criticisms
Advantages of Reversing:
+Allows for flexibility in law as a case
passes through the appeal process.
+Allows higher courts to correct
decisions of lower courts that are
wrong
+The best legal minds can look a the
same point of law and find the best
solution for the D and the public.
Disadvantages of Reversing:
-Creates potential inconsistency in law
whilst a case passes through the appeal
process (e.g. R v Kennedy 1997
offence to 2007 final HL decision)
-Lawyers find it harder to give clear
advice to their clients.
-The case may be prolonged to simply
argue abstract legal points with the
hope that the D will get off on a
technicality.
Criticisms of precedent summary
Advantages and disadvantages
 just system
 impartial system
 practical character
 certainty tempered by flexibility
 developments contingent on accidents of litigation
 developments hindered by disincentive of
retrospective effect
 complexity
Conclusion on precedent
Conclusion
• inherent conflict between certainty and flexibility
• English Law largely successful in achieving balance
• public interest referrals and prospective overruling
could enhance this success
• also important to remember that English law is not
dependent upon precedent alone for its development