1
Task: Complete the following diagram on the Criminal Court structure. Draw the
court names in the boxes and whether they are an appeal court or trial court. Draw
arrows showing the routes of appeal.
Magistrates Court
2
Key Terms
Number
Word/phrase
Meaning
1
Precedent
Where a judge from one of the higher courts (Court
of Appeal or House of Lords) makes a legal ruling
about a case then similar future cases must follow
this principle, e.g. what the meaning of oppression is.
2
Original Precedent
Where a case brings about a new legal decision never
covered by the courts before
3
Binding Precedent
Precedent on a point of law, which must now be
followed by judges in a similar case. Either a senior
court or sometimes one on the same level must hear
the case.
4
Persuasive
Precedent
A precedent not binding on the court but the judge
may consider it & decide that it is the correct legal
principle to follow, i.e. he is persuaded.
5
Ratio Decidendi
The legal reason for a decision – the part of a judges
judgment that is binding on all other similar cases
6
Obiter dicta
Things said by the way – the part of a judge’s
judgment which is not binding on other similar cases
but can be used if felt appropriate in future cases
7
Overruling
A decision in the current case, which states that a
legal rule in an earlier case is wrong
8
Reversing
Where a higher court in the same case overturns
the decision of the lower court
9
Stare Decisis
Stand by the decision – Any precedent set by a
higher court must not be changed
10
Distinguishing
Where the material facts in the current case are
different from those in a potential binding precedent
a judge in any court does not need to follow the
previous precedent.
3
11
Hierarchy of
courts
An important rule about which courts are more
important in terms of making precedents. The lower
courts must follow the precedents set by the higher
courts, e.g. The Supreme court precedents must be
followed by all courts below it.
12
Disapprove
Judges may disapprove of a precedent, which they
are nevertheless bound to apply, in the hope that it
will be reconsidered. A superior court may also
disapprove of a precedent created by a lower
court without actually over ruling the precedent.
13
Per incuriam
By mistake – carelessly or without taking account of
a legal rule
14
Prima facie
At first sight – On the face of it
4
INTRODUCTION
It is said that the judges declare law the theory being that they do not make it. It
is their task to state the law as they find it and apply it to the case before them.
In practice however they are constantly faced with situations where what they do
amounts to making new law.
1 in a million sued by M&S
over registered domain
names
Even so, where possible they do base their decisions on previous Judge made law
(known as judicial) decisions on similar facts.
Note that the word used here is "similar"
because it would never be the case that two
factual situations were identical. What is
important is that the facts that matter are the
same. These are known as the material facts
and where they are the same as a previous case
it is in the interests of justice that like cases
should be treated alike.
For example, taking a hypothetical case involving a road
accident, some factual differences between the present
case and a previous one would be unimportant. The colour
of the car or the clothes the drivers were wearing would
be unlikely to matter very much. On the other hand, the
speed of the cars, the condition of the road, whether or
not it was dark, could well be very important facts indeed.
If there are no material differences the previous decision
is a precedent and if it was made in a higher court it is a
binding precedent: - i.e. one, which must be followed.
5
Group exercise on judicial precedent
Read the scenario and then answer the questions below
In our system of judicial precedent, lower courts must follow the decision of a
higher court if the material facts of a case are sufficiently similar. Consider the
following two situations.
Situation One
On a fine sunny day a 37-year-old female motorist hurrying to a business
appointment exceeded the speed limit by 10 miles per hour. This was in a busy
shopping street. The motorist hit a pedestrian who had just stepped off the kerb
without looking round. At the time the pedestrian was listening to a personal
stereo and failed to hear the approaching car,
The pedestrian sued the motorist claiming compensation for the injuries he
suffered.
The court held the motorist to be negligent, but found the pedestrian to be 30%
to blame and reduced his compensation by that amount.
Situation Two
On a grey rainy day a 67-year-old male motorist hurrying to pick up a friend from
the station, exceeded the speed limit by 10 miles an hour. This happened in the
same shopping street, but there were only a few shoppers about. The motorist hit
a 14 year old girl who had just stepped off the kerb without looking round, the girl
was deaf and due to this disability had failed to hear the car approaching.
If the girl sues the motorist for compensation for the injuries she has suffered,
will the court use the previous case as a precedent?
Are the material facts sufficiently similar?
6
This in essence is the doctrine of judicial precedent: i.e. that if a judge finds that there has been one
previous decision by a higher court in a similar case he
must follow it. The previous decision is the law on the
matter - i.e. judge made law or case law. The principle
that it must be followed is known as stare decisis - to
stand by decisions. Of course, if there are material
differences between two cases then the judge can
distinguish the earlier decision and it doesn't have to
be followed.
7
Activity: Complete the following questions after reading the diagram
How Precedent Works
When the judge does decide which party has won the case he makes a speech in which
he reviews the case. This speech is called the judgment.
The contents of this speech usually include the following:
1. The facts of the case
2. The Ratio decidendi
3. Obiter dicta
4. The decision
The most important part of all this is where the judge explains the legal principle on
which he has based his decision. The words in which he expresses this are called the
"ratio decidendi" (the reason for deciding). All the other words in the judgment are
called "obiter dicta" (things said by the way). For example, a judge saying what he
would do in a hypothetical situation that is just slightly different from the actual
case would be obiter. The ratio decidendi is the binding part of the judgment.
Obiter dicta can be a persuasive precedent.
9
Example
Consider these two cases which concern the tort of negligence: Donoghue v Stevenson (1932). Here the plaintiff suffered through finding the
remnants of a decomposed snail in ginger beer, which she was drinking. She sued the
manufacturer. It was held that he owed his consumers a duty to take care since he
and they were "neighbours” in law. Lord Atkin said: "You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who then, in law, is my
neighbour? The answer seems to be persons who are so closely and directly affected
by my act that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in question."
This was the original precedent and since 1932 the whole of the law of
negligence has developed from it and many cases have been bound to
follow it, not least the one below.
Ross v Caunters (1979) A solicitor drew up a will. There was a gift in it to the wife
of one of the witnesses. The Wills Act 1837 S.I5 prevented her taking it because she
was his wife and such people (i.e. witnesses or their spouses) cannot be beneficiaries.
Therefore it was very careless of the solicitor to let that situation arise. She sued
the solicitor for negligence. It was argued that there could be no negligence because
the solicitor owed the claimant no duty of care, that they were not 'neighbours’ in
law. However, Sir Robert Megarry V-C said: “The solicitors owed a duty of care to the plaintiff since she
was someone within their direct contemplation as a person
so closely and directly affected by their acts and omissions
in carrying out their client's instructions to provide her with
a share of his residue that they could reasonably foresee
that she would be likely to be injured by those acts or
omissions.”
This is a direct application of the principle established by Donoghue v Stevenson.
These two cases may appear quite different. However, they are close enough for the
first to be a binding authority on the second. The essence is the same even though
the circumstances are radically different.
10
Note that for the proper working of the doctrine of precedent there are three
essentials:
A comprehensive and reliable system of law reporting, because judges cannot
follow previous decisions unless they have some way of knowing about them;
1. A court hierarchy of some kind, so that judges know
which decisions they must follow and which they are
allowed to overrule;
2. Some way of identifying the parts of a judgment that are binding, and of
separating them from any other things the judge might say.
11
Judicial Precedent Word Search
Try and complete the word search. Can you guess the full case name with just one
word as a clue.
QYPGLWZCDAYQEFB
XMREAUZIWSHPTHI
CKECSPCEKECOMWE
WCCSLTPMDZADGEW
QPECANEEUDRPXKC
JTDKXPCCAXEEETS
LJEITIEDILIDYOD
YDNFDYVRCTHYEBG
WJTERMCPSQCUPNR
VCNLAICIDUJAIIA
QDLONDONBOADRTT
IFCBHQZIEHNSGPI
DGVVEUIDYISCIFO
VAIFUIKWBTKVDVF
DISTINGUISHINGE
APPEAL
BINDING
DECIDENDI
DICTA
DISTINGUISHING
HIERACHY
JUDICIAL
LONDON
PERSUASIVE
PRACTICE
PRECEDENT
RATIO
12
Re S (adult: refusal of medical treatment)
FAMILY DIVISION
SIR STEPHEN BROWN P
12 OCTOBER 1992
Medical treatment — Adult patient - consent to treatment — Right to refuse consent — Refusal on religious grounds - Discretion
of court to authorise emergency operation — Health authority seeking authority to carry out emergency Caesarian section
operation on pregnant woman - Operation in vital interests of patient and unborn child — Patient objecting objecting to operation on
religious grounds – Whether court should exercise inherent jurisdiction to authorise operation.
A health authority applied for a declaration to authorise the surgeons and staff of a hospital under the
authority’s control to carry out an emergency Caesarean section operation upon a 30-year-old woman
patient who had been admitted to hospital with ruptured membranes and in spontaneous labour with
her third pregnancy and who had continued in labour since then. She was six days overdue beyond
the expected date of birth and had refused, on religious grounds, to submit herself to such an
operation. The surgeon in charge of the patient was emphatic in his evidence that the operation was
the only means of saving the patient's life and that of her baby could not be born alive if the operation
was not carried out.
Held – The court would exercise its inherent jurisdiction to authorise the surgeons and staff of a
hospital to carry out an emergency Caesarean section operation upon a patient contrary to her beliefs
if the operation was vital to protect the life of the unborn child. Accordingly, a declaration would be
granted that such an operation and any necessary consequential treatment which the hospital and its
staff proposed lo perform on the patient was in the vital interests of the patient and her unborn child
and could be lawfully performed despite the patient's refusal to give her consent to (the operation (see
p 672 c d and g, post).
Notes
For consent to medical treatment, see 30 Halsbury’s Laws (4th edn reissue) para 39, and for cases on
the subject, see 33 Digest (Reissue) 273, 2242-2246.
Cases referred to in judgment
AC, Re (1990)73 A 2d 1235, DC Ct of Apps (en bane). T (adult: refusal of medical
treatment). Re [1992] 4 All ER 649, CA.
Application
A health authority applied for a declaration to authorise the surgeons and staff of a hospital under the
health authority's control to carry out an emergency Caesarean operation on a patient, Mrs S. The
facts are set out in the judgment.
Huw Lloyd (instructed led by Beachcroftt Stanleys) for the health authority. James Munby QC
(instructed by the Official Solicitor) as amicus curiae.
SIR STEPHEN BROWN P. This is an application by a health authority for a declaration to authorise the
surgeons and staff of a hospital to carry out an emergency Caesarean operation upon a patient, who I shall refer
to as 'Mrs S'.
13
All England Law Reports
[1992] 4 All ER
Mrs S is 30 years of age. She is in labour with her third pregnancy. S was admitted to a hospital last
Saturday with ruptured membranes and in spontaneous labour. She had continued in labour since. She
is already six days overdue beyond the expected date of birth, which was 6 October, and she has now
refused, on religious grounds, to submit herself to a Caesarean section operation. She is supported in
this by her husband, They are described as 'born-again Christians' and are clearly very sincere in their
beliefs.
I have heard the evidence of P, a Fellow of the Royal College of Surgeons who is in charge of this
patient at the hospital. He has given, succinctly and graphically, a description of the condition of this
patient. Her situation is desperately serious, as is also the situation of the as yet unborn child. The child
is in what is described as a position of 'transverse lie', with her elbow projecting through the cervix and
the head being on the right side. There is the gravest risk of a rupture of the uterus if the section is not
carried out and the natural labour process is permitted to continue. The evidence of P is that we are
concerned with 'minutes rather than hours' and that it is a 'life and death' situation. He has done his
best, as have other surgeons and doctors at the hospital, to persuade the mother that the only means of
saving her life, and also to emphasise the life of her unborn child, is to carry out a Caesarean section
operation. P is emphatic. lie says it is absolutely the case that the baby cannot be born alive if a
Caesarean operation is not carried out. He has described the medical condition. I am not going to go
into it in detail because of the pressure of time.
I have been assisted by Mr Munby QC appearing for the Official Solicitor as amicus curiae. The
Official Solicitor answered the call of the court within minutes and, although this application only
came to the notice of the court officials at 1.30pm, it has come on for hearing just before 2 o'clock and
now at 2.30 pm I propose to make the declaration which is sought. I do so in the knowledge that the
fundamental question appears to have been left open by LORD Donaldson MR in Re T (adult: refusal of
medical treatment) [1992] 4 All ER 649, heard earlier this year in the Court of Appeal, and in the
knowledge that there is no English authority which is directly in point. There is, however, some
American authority which suggests that if this case were being heard in the American courts the answer
would be likely to be in favour of granting a declaration in these circumstances:
see Re A C (1990) 573 A 2d 1235 at, 1210, 1246-1248, 1252.
I do not propose to say more at this stage, except that I wholly accept the evidence as to the desperate
nature of this situation, and that I grant a declaration as sought:
Declaration that a Caesarean section and any necessary consequential treatment which the hospital and
its staff proposed to perform on the patient was in the vital interests of the patient and her unborn child
and could be lawfully performed despite the patient's refusal to give her consent. No order as to costs.
Bebe Chua Barrister.
14
How precedent works – the key rules
Judicial precedent is the process whereby judges follow previously decided cases
where the facts or point of law are sufficiently similar.
The Key features of the rules on precedent are:
1.
2.
3.
4.
5.
6.
7.
8.
The
The
The
The
The
The
The
The
hierarchy of courts
need for original precedent
importance of stare decisis
importance of binding precedent
need for accurate law reports
importance of ratio decidendi – reason for the decision
importance of obiter dicta – other things said by the way
importance of persuasive precedent
The hierarchy of court
The courts have a strict order in terms of precedents which they must follow (binding
precedent). This is based on the fact that the higher the court the more expertise and
experience the judges have. Also the higher the Appeal court the more judges are
required to consider the case. Appeal courts are also normally dealing with many more
unique issues on points of law than those in lower courts so again have more expertise.
Task: Using the table below complete the exercise on the hierarchy of courts on page
7.
15
Court
European Court of
Justice
How precedent operates
Under s3(1) of the European Communities Act 1972, decisions of the
ECJ are binding, in matters of EU law, on all English courts.
It is not bound by its own previous decisions.
The court does not bind any English Criminal courts, it is Civil courts
only starting with the Supreme Court.
The Supreme Court The Supreme Court is bound by the European Court of Justice on
Civil matters and EU law. The supreme court binds itself (but see
below) and all courts below it on Civil law.
For Criminal Law the Supreme Court binds itself (but see below) and
all courts below it.
The House of Lords was not bound by its own previous decisions until
the case of
London Street Tramways v London County Council (1898) when it
bound itself in the interests of certainty.
The Court of
Appeal
Then the Practice Statement (1966), issued by the Lord Chancellor,
stated that although the House of Lords would treat its decisions as
normally binding it would depart from
these when it appeared right to do so
Is split into the Criminal and Civil division.
The Court of Appeal is bound by decisions of the Supreme Court
even if it considers them to be wrong.
The Court of Appeal binds itself and all the courts below it. But the
Civil and Criminal division do not bind each other as they are
different types of law.
Divisional Court of
the High Court
The High court
Crown, County &
Magistrates Court
A Divisional Court is bound by the Supreme Court and the Court of
Appeal and normally follows a previous decision of another
Divisional Court if the law is of a similar type.
The High Court is bound by the Court of Appeal and the Supreme
Court but is not bound by other High Court decisions. However, they
are of strong persuasive authority in the High Court and are usually
followed.
The decisions of these courts are not binding but can be persuasive.
16
Original precedent
Clearly there has to be a case that is regarded as the first of its kind to develop a new
legal rule. This is called an original precedent. All courts can make an original precedent
but only some courts can make this binding for future courts to follow. An example of
an original precedent is Donoghue v Stevenson, as shown in detail previously.
Task: Re S is another example of an Original precedent. Make a case note that you
could you use to answer and exam question on Original precedent.
Stare Decisis
Stare decisis, which mean to stand by the decided, whereby lower courts are bound to
apply the legal principles set down by superior courts in earlier cases. For example, the
High Court must follow decisions of the Court of Appeal, which must follow decisions of
the House of Lords/Supreme court. This is an important principle as it recognises a
fair and democratic society needs laws that alter rarely over time. Society can then be
sure what they can and can’t do in their daily lives and the consequences of breaking
the law. The principle links closely to that of binding precedent.
Donoghue v Stevenson (1932):
The decomposing snail in the bottle of ginger beer case (see above). The HoL held that
a manufacturer owed a duty of care to the consumer that products are safe.
“Products” have since been held by later courts to include not only food and drink but
also, underpants, motor cars, hair dye, lifts and chemicals.
This case had to be followed due to Stare decisis by the later case of:
Grant v Australian Knitting Mills (1936):
The claimant bought some underwear but the material contained a chemical which
caused dermatitis. Compensation was awarded based on the precedent set by Donoghue
v Stevenson. This was because the HoL was a higher court than the Court of Appeal
and was a binding precedent, one which lower courts have to follow where the material
facts are similar.
17
Binding precedent
Is closely linked to stare decisis and is the part of the judgment that must be followed
by future judges, where the material facts (most important facts for the legal rule)
are similar. Binding precedent can only be found in the ratio decidendi of the judgment,
i.e. the reasons the judge came to a specific decision in the current case. Binding
precedent can only be created by:
1.
2.
3.
4.
The Supreme Court
The Court of Appeal, Civil and Criminal Division
Divisional Court of the High court
The High Court as an appeal court for Civil or Criminal cases.
The Crown, County and Magistrates court cannot make binding precedent. However,
they must follow binding precedents of courts higher up in the hierarchy.
The rules about binding precedent are:
1. Any court who has made a binding precedent must follow this themselves in
future similar cases – stare decisis
2. Any court below the one making the binding precedent must follow it in future
similar cases
3. Any court above the one who made it in the hierarchy does not have follow the
precedent as it is not regarded as binding on this court. However, Stare decisis
and the need for a consistent approach to the predictability of law means that
case will be a strong persuasive precedent for these courts. In otherwords,
there must be a very good reason to decide a different approach.
Case examples are as per Stare Decisis.
18
19
Law Reporting
If the court is to follow an earlier decision, then the report of
that earlier case must be authoritative. This was finally achieved
in 1865 when the General Council of Law Reporting was
established. It was incorporated in 1870. The Law Reports and
Weekly Law Reports are published under the auspices of this
Incorporated Council. They are of great authority and are
checked by the judges and barristers before publication. As well as
these there are still private reports published, as there have been over the
centuries. Probably the most famous are the All England Law Reports.
Yet another example is The Times Law Reports. A lot of law reports can now be
accessed on line via Lexis or Bailii, but cost a lot of money.
Reports follow a common format and are normally split into Name of the case and the
court where it takes place, the date of the judgment, the name of the judge and
barristers, a summary of the facts of the case, the judgment of the judge and a
short summary of which area(s) of the law the case affects.
An example of a private law report is Re S, which was reported in the All England Law
reports and is a very important original precedent on the issue of consent to medical
treatment where the patient has refused to have a lifesaving operation both herself
and her unborn baby.
An example of using an electronic law report is Bailii’s report on the case of Donoghue
v Stevenson, which is a fundamental case establishing a general duty of care
between manufacturers’ of goods and those that consume them.
Ratio Decidendi
Literally means the reason for the decision as it is the most important part of any
written judgment. It is the legal rules that have been applied to the case leading to the
final decision, guilty or not guilty in a criminal case or liable or not liable in a civil case.
The ratio decidendi will form the binding precedent for any future similar cases
particularly the higher up the hierarchy the judgment is made. It will also form the
original precedent if this is the first case of its kind.
20
R v Dudley & Stevens (1884):
The two shipwrecked defendants killed and ate the cabin boy. They were convicted of
murder. The D’s argued that it was the lesser of two evils to kill one person compared
to 3 people dying, they did it through a necessity to live.
The court gave three reasons, the ratio decidendi, for refusing a defence of necessity:
1. If necessity is not available on a charge of theft of food because of starvation,
it cannot be available to a charge of murder
2. The Christian aspect of giving up one’s own life to save another’s rather than
taking another’s life to save one’s own
3. Impossibility of choosing between the value of one person's life and another's.
R v Howe (1987)
The two defendants helped torture a man who was then killed by other men and, on a
later occasion, killed another man. They were both threatened with death unless they
took part.
The HoL refused a defence of duress to charges involving murder because (the ratio
decidendi) of the need to protect innocent lives and to set a standard of conduct which
all people are expected to observe in order to avoid criminal liability. The HoL made it
clear that no one’s life was worth more than another
Task: Now apply Dudley & Stevens to the case of R v Quayle & others 2005:
Five appeals were jointly heard with one Attorney General Reference. Each case was
concerned with the applicability of the defence of necessity in relation to offences
involving, possession, cultivation, production and importation of cannabis. In all the
appeals the appellants argued that the cannabis was for medical purposes for the relief
of pain for various medical ailments including HIV, Multiple sclerosis and severe back
pain.
21
Obita Dicta
Is also part of a judge’s judgment and literally means other things said by the way.
Obita dicta cannot be binding precedent but can persuade other courts to adopt the
legal rules in future cases, it is persuasive precedent. Obita dicta can be helpful to
future judges as it may give ideas on how to approach cases that are slightly different
from the current one. The higher the court is in the hierarchy making the obita dicta
the more important it will be in future cases.
R v Howe 1987
See notes before for the facts of the case. In obita dicta the HoL also gave their
opinion on whether the defence of duress would be available to a D who had attempted
to kill a V, due to being threatened with death or serious injury. They believed that in
such a situation the D should also be denied the defence for the same reason as it is
not allowed for someone who actually commits murder.
R v Gotts 1992
The appellant, a 16 year old boy, was ordered by his father to kill his mother otherwise
the father would shoot him. He stabbed his mother causing serious injuries but she
survived. He was charged with attempted murder and the trial judge ruled that the
defence of duress was not available to him. He pleaded guilty and then appealed the
judge’s ruling to the Court of Appeal.
The appeal was dismissed and his conviction upheld.
The House of Lords followed the obiter dicta statement from R v Howe and held that
the defence of duress was not available for attempted murder.
The decision was based on the fact that it would be anomalous to allow the defence to
attempted murder, which can only be established where the defendant has an intention
to kill, whereas murder can be established with a lower level of mens rea since it can be
committed by one who intends to cause serious injury.
Hill v Baxter
The defendant driver fell asleep and drove into some people. His conviction for driving
offences was upheld as he was at fault for not stopping when he felt drowsy.
The judge went on to give the fictional example of someone being stung by a swarm of
bees while driving, and losing control of the car as an example of a driver not being at
fault.
22
Persuasive precedent
A persuasive precedent is one which is not absolutely binding on a court but which may
be applied. All courts can make persuasive precedents. Criminal courts cannot make
binding precedent for Civil courts and vice versa. However, Civil precedent can be
persuasive precedent for criminal courts and vice versa. The following are some types
of persuasive precedent:
1.
2.
3.
4.
Decisions of English courts lower in the hierarchy
Decisions of the Judicial Committee of the Privy Council.
Obita Dicta
Dissenting judgments
Decisions of English courts lower in the hierarchy
For example, the House of Lords may follow a Court of Appeal decision, and the Court
of Appeal may follow a High Court decision, although not strictly bound to do so.
R v R (1991) the marital rape case where the HL followed the decision of the CA and
held the husband to be liable for the rape of his wife
Decisions of the Judicial Committee of the Privy Council.
This is the Same Supreme Court judges who meet as a court for another legal system.
A lot of colonies and ex colonial countries still use our legal system as the final appeal
court for their country. As another countries legal system is different to our legal
system the courts decisions are normally only persuasive precedent.
However, in the case below this rule was modified so that when there are a large
number of Supreme Court judges sitting as the Privy Council and precedent being set is
exactly the same as the law in England then effectively it becomes a binding precedent.
AG Ref Jersey v Holley 2005
A landmark case where the Privy Council declared that they were announcing the law
applicable not only to Jersey but also to England and Wales. (Privy Council decisions are
not generally considered binding in English law but of mere persuasive authority). The
Judicial Committee consisted of nine members of the House of Lords.
The defendant had a stormy relationship with the deceased. They were both alcoholics
and he had a history of violence towards her for which he had spent time in prison. On
his release from prison she indicated that she did not want to continue the
relationship. However, they continued to live together having constant rows. On the day
23
in question they had both been to the pub in the afternoon. He returned early because
of an argument. She returned in the evening and announced that she had had sex with
another man. He hacked her to death with an axe. At his trial he raised the defence of
provocation. He wished to rely on his alcoholism, depression and other personality
traits. The jury convicted him of murder. The defendant appealed to the Court of
Appeal who quashed the conviction and ordered a retrial. He was again convicted at the
retrial and again appealed. His conviction was again quashed and a manslaughter
conviction was substituted. The Attorney General sought leave to appeal arguing the
decision in Smith (Morgan) was wrong and should not apply in Jersey.
Held: 6:3 Decision (Lords Carswell, Bingham and Hoffman dissenting)
The appeal was allowed.
The law in Jersey and England & Wales is the same on this issue. The decision in Smith
(Morgan) allowing mental characteristics to be attributed to the reasonable man in
assessing the standard of self-control expected of the defendant is no longer good
law.
Decisions of the courts in Scotland, Ireland, the Commonwealth (especially
Australia, Canada and New Zealand), and the USA.
As all these countries have legal systems based on the English common law legal system
judgments can be relevant to helping judges with new or unusual cases. These are
usually cited where there is a shortage or total lack of English authority on a point.
For example, Re S (adult: refusal of medical treatment) (1992). See previously for
facts. Here the High court and later the HoL relied on a US persuasive precedent from
an earlier case which stated that where the mother was refusing a caesarean and the
life of the mother and child were at risk the court could authorise the lifesaving
treatment against the mothers will as it was in the best interests of the unborn child.
Obita dicta – Is a persuasive precedent. See previous for details.
Dissenting judgments
All appeals in the Court of Appeal and the Supreme Court are decided by majority
decision. Anyone in the minority are called dissenting judges and give a dissenting
judgment. These can be used by courts in future cases to act as a persuasive precedent
as the dissenting judge may have actually been correct afterall or the suggestion as to
how the law should develop is now relevant.
See attached article for detailed review of the value of dissenting judgments.
24
Candler v Crane Christmas & Co 1951: Donald Ogilvie was the director of a company
called Trevaunance Hydraulic Tin Mines Ltd, which mined tin in Cornwall. He needed
more capital, so he put an advertisement in The Times on July 8, 1946, which said
“Established Tin Mine (low capitalization) in Cornwall seeks further capital. Install
additional milling plant. Directorship and active participation open to suitable applicant
– Apply”
Mr Candler responded, saying he was interested in investing £2000, if he could see the
company's accounts.
Mr Ogilvie instructed Crane, Christmas & Co, a firm of auditors, to prepare the
company’s accounts and balance sheet. The draft accounts were shown to Mr Candler in
the presence of Crane, Christmas & Co’s clerk. Mr Candler relied on their accuracy and
subscribed for £2,000 worth of shares in the company. But the company was actually
in a very bad state. Ogilvie used the investment on himself and then went bankrupt. Mr
Candler lost all the money he invested.
He brought an action against the accountants, Crane, Christmas & Co. for negligently
misrepresenting the state of the company. As there was no contractual relationship
between the parties, the action was brought in tort law for pure economic loss.
The majority of the HoL stated that the accountants could not be sued by Mr Crane
relying on their poor investment advice. However Lord Denning, the only dissenting
judge, stated “In my opinion accountants owe a duty of care not only to their own
clients, but also to all those whom they know will rely on their accounts in the
transactions for which those accounts are prepared.
I would therefore be in favour of allowing the appeal and entering judgment for the
plaintiff for damages in the sum of £2,000.”
In the later case of Hedley Bryne v Heller 1963, as similar facts case, the HoL decided
to change the law and follow Lord Denning’s dissenting judgment in Candler. Therefore
accountants can be sued for damages by investors that rely on their poor advice under
certain conditions.
25
Methods of avoiding precedent
The problem with the system of precedent is that though it works well for the
majority of cases but for a small number of cases the precedent the judge has to
follow may be an unfair approach to a unique situation. Another problem is that as
society changes economically, technologically or socially the past precedents no longer
are relevant to today’s society. So there are a range of methods available in precedent
to allow for exceptions or all out change. The higher the court is in the hierarchy the
more powers the court has to alter previous precedents:
Distinguishing
Any court can avoid a binding precedent where the material facts in the case are
different from those in the binding precedent, in otherwords it is effectively a new
precedent. Distinguishing a case on its facts, or on the point of law involved, is a device
used by judges to usually in order to avoid the consequences of an earlier inconvenient
decision which is, in strict practice, binding on them. Any judge can distinguish a
precedent on minute details and the differences can sometimes seem illogical.
Distinguishing does allow judges to develop the law and create exceptions to a general
rule established in a previous case.
Balfour v Balfour 1919: The D and V were married when the D went off to Ceylon and
told his wife he would support her by giving her an allowance. Sometime later they fell
out and the husband stopped paying the allowance. The court decided that as there was
no written agreement and they were not legally separated at the time the agreement
was made there was no intentions to create legally binding contract to pay the money.
The husband therefore did not need to pay any further allowance.
Merritt v Merritt 1971: A husband legally separated from his wife and went to live with
another woman. There was £180 left owing on the house which was jointly owned by the
couple. The husband signed an agreement whereby he would pay the wife £40 per
month to enable her to meet the mortgage payments and if she paid all the charges in
connection with the mortgage until it was paid off he would transfer his share of the
house to her. When the mortgage was fully paid she brought an action for a declaration
that the house belonged to her.
26
Task: Compare the material facts (the most important facts) for deciding the case in
Balfour with the material facts in Merritt.
The two most important facts to deciding that there was no intention to create a legal
relationship in Balfour are:
1. Not legally separated at the time of the agreement
2. No written agreement between the couple
The two most important facts in deciding whether or not the judge must follow the
precedent of Balfour in Merritt are:
1. The couple were legally separated at the time of the agreement
2. The agreement was in writing
The judge can use distinguishing in the case of Merritt because..
There are two material facts in the case that make it different from Balfour, they
distinguish the precedent of Balfour from that of Merritt.
In the case of R v Jordan 1956 the D had stabbed the V but the wounds had almost
healed. However not only did the first doctor give V a large dose of antibiotics to
which he had an allergic reaction, but a second doctor then did not read the notes
stating this and administered a fatal second dose of antibiotics. The case of R v Smith
1959 the D was similar in that there was a stabbing but only one doctor missed the
fatal stab wound which was still bleeding at the time of V’s death. So as the material
facts were different Smith did not have to be bound by the precedent of Jordan.
Reversing
Reversing is the overturning on appeal by a higher court, of the decision of the court
below that hearing the appeal. The appeal court will then substitute its own decision.
This can only be carried out by a court with enough authority, such as a Divisional
Court, the CA or HoL.
R v Kingston (1994) K was invited back to his business partner’s flat where he consumed
a drink that had been spied with alcohol. K was then shown to a bedroom where a young
boy had been sedated and K performed sexual acts on him. K argued that as his drink
had been spiked he was not responsible for his actions and therefore not guilty of the
sexual assault. On appeal to the CA they agreed with K and said that involuntary
intoxication would mean K lacked the awareness of committing the crime. On further
27
appeal to the HoL by the _____________ the court reversed the decision of the CA
and held that involuntary intoxication will not be a defence unless it prevents the
defendant forming mens rea for the crime charged even though the defendant was not
at fault for becoming intoxicated. A drunken intent to perform sexual acts still was an
awareness of committing the crime.
The power to disapprove
Judges may disapprove of a precedent, which they are nevertheless bound to apply, in
the hope that it will be reconsidered. A superior court may also disapprove of a
precedent created by a lower court without actually overruling it.
Elliott v C: The defendant was a 14-year old girl of low intelligence who had started a
fire in a shed. She had poured white spirit on the floor and set it alight. She was
found guilty of criminal damage as she had taken an unjustified risk a reasonable man
would not have taken, i.e. set fire to a wooden shed to keep warm knowing this stood a
high chance of burning down the shed.
It was held that the trial court should have applied the test for recklessness in the
case of MPC v Caldwell, which was one where the age and medical condition of the girl
could not have been taken into account when looking at whether the D had taken an
unjustified risk in setting fire to the shed. The Appeal court disapproved of the case
of Caldwell as it meant the jury/Magistrates could only consider whether or not they
could foresee the unjustified risk of starting a fire in someone else’s shed and not
what the D actually foresaw as an unjustified risk.
The HoL later changed the law by overruling MPC v Caldwell in the case of R v G & R so
that to be guilty of criminal damage the jury/magistrates should look at what D
foresaw as an unjustified risk.
The power to overrule
A higher court can overrule a decision made in an earlier case by a lower court e.g.,
the Court of Appeal can overrule an earlier High Court decision. The ECJ and House of
Lords can also overrule their own previous decisions.
28
In the case of Hedley Bryne v Heller 1963 the HoL overruled the Court of Appeal’s
previous decision in Candler v Crane 1951 stating that an accountant did not have to pay
compensation for negligent advice given to a 3rd party investor, stating incorrectly that
investment in a company was a good bet.
29
The House of Lords Practice statement in 1966
The Practice Statement said the HoL would overrule their own previous decisions when
the court believed it was “right to do so”. See the copy of the Practice statement
below. It is NOT a case, simply a statement of intent by the HoL.
30
The practice statement was accompanied by a press release, which emphasised the
importance of and the reasons for the change in practice:
1. It would enable the House of Lords to adapt English law to meet changing social,
economic and technological conditions.
2. It would enable the House to pay more attention to decisions of superior courts
in the Commonwealth, e.g. Jamaica, The Bahamas
3. The change would bring the House into line with the practice of superior courts
in many other countries. In the USA, for example, the US Supreme Court and
state supreme courts are not bound by their own previous decisions.
4. However, the practice statement has been rarely used by the HoL
The first real use of the Practice Statement was in 1972 for Civil law. This recognised
social changes in society for increasing obligations owed to young children who
trespassed on their land.
BRB v Herrington 1972: A six year old boy was electrocuted and suffered severe
burns when he wandered from a play park onto a live railway line. The railway line was
surrounded by a fence. However, part of the fence had been pushed down and the gap
created had been used frequently as a short cut to the park. The defendant was aware
of the gap in the fence which had been present for several months, but had failed to
do anything about it.
Under previous precedent of the HoL of Addie v Dumbreck 1929 no duty of care was
owed to trespassers, including children. However, the House of Lords departed from
their previous decision using the 1966 Practice Statement and held that the defendant
railway company did owe a duty of common humanity to child trespassers. This
overruled their previous precedent.
The first case of Criminal law that used the Practice Statement was not until 20 years
after the Practice Statement. If you look at the Practice Statement above you will see
why, can you work it out? The Practice Statement was used to correct an error made in
the application of an Act of parliament, the Criminal Attempts Act 1981.
Anderton v Ryan 1985: The D bought a stolen video recorder in a pub and was later
charged with theft and handling stolen goods. Later the charge of theft had to be
dropped as there was insufficient evidence to prove this offence. The D was now
charged with attempting to handle stolen goods. Attempted crimes are as serious as if
the D had managed to commit the full offence and are charged under the Criminal
31
Attempts Act 1981. However, the crime was effectively made impossible as the P could
not prove the goods were stolen so how could the D attempt to “steal” goods that
aren’t legally stolen. The HoL decided that D was charged with an impossible crime and
therefore could not be found guilty of attempting it.
However the HoL made an error in law by not considering S 1(2) of the Criminal
Attempts Act:
(2)A person may be guilty of attempting to commit an offence to which this section
applies even though the facts are such that the commission of the offence is
impossible.
R v Shivpuri: The defendant was paid to act as a drugs courier. He was required to
collect a package containing drugs and to contribute its contents according to
instructions which would be given to him. When the defendant collected the package
the defendant was arrested by police officers he confessed to them that he believed
its contents to be either heroin or cannabis. An analysis revealed the contents of the
package not to be drugs, but a harmless vegetable substance. The defendant was
convicted for attempting to be knowingly concerned in dealing and harbouring a
controlled drug, namely heroin.
The House of Lords took the opportunity of making it clear that, even though Anderton
v Ryan had only been decided by them a short time before, they now felt that their
earlier decision was wrong and that they were overruling that decision and declaring
the law to be as they found it to be in Shivpuri, attempting an impossible was an
offence under S1(2) of the Criminal Attempts Act.
Court of Appeal (CA) powers
The CA have powers such as having the power to overrule, distinguish or disapprove any
precedent from a lower court (not the Supreme Court). The CA cannot overrule its own
precedents eventhough the court is effectively the final appeal court for the vast
majority of Civil and Criminal cases. Few cases are either important enough to go to
The Supreme Court or can afford to pay for an appeal to the Supreme Court. The
Criminal division of the CA does not bind the Criminal Division in terms of precedent as
they are different types of law, though they can be persuasive precedent.
As the CA is final appeal court for most cases they do have special powers. In civil
cases the powers are contained in the case of Young v Bristol Aeroplane.
32
The special rules to vary a precedent in the Civil Division of the CA are:
(1) The court is entitled and bound to decide which of two conflicting decisions of
its
own it will follow. As Appeals sometimes come before the CA in quick
succession it may mean that a first precedent created conflicts with the
second case, which has raised new issues. If this is the case the court and
chose which if the two cases it wishes to make a precedent.
(2)
The court is bound to refuse to follow a decision on its own which, though not
expressly overruled, cannot, in its opinion, stand with a decision of the
Supreme Court
(3)
The court is not bound to follow a decision of its own if it is satisfied that
the decision was given per incuriam, meaning the CA has mistakenly missed a
previous precedent or Act of parliament that should have been taken into
account.
For Criminal cases the CA can use the Young exceptions and because the D may end up
in prison can ignore a precedent if this will result in the D being unjustly imprisoned.
R v Gould 1968: D remarried in the honest, but mistaken belief that his first marriage
had been dissolved. He was charged with Bigamy and appealed on the grounds that a
conviction would be unfair and also mean he would be unjustly imprisoned for an honest
mistake made about his first marriage.
The Court held that the CA criminal division did not have to follow previous binding
precedent as the D would be unfairly imprisoned.
Conflicting decisions example
Parmenter v R 1991: D injured his child by roughly handling him and breaking the bones
in his arms and legs. There was no proof that D had foreseen the risk of injury, but
then had to decide whether a conviction for assault causing actual bodily harm could be
substituted even though there was no evidence D foresaw risk of harm . The CA had
decided in Spratt [1991] that foresight was essential to a conviction; on the same day,
another part of the CA had decided in Savage [1991] that D need not himself have
foreseen any risk of harm.
Faced with two conflicting cases, the CA had to choose between them, and chose to
follow Spratt.
Note: The HoL later reversed this decision in favour of following Savage, the current
law. This is an important case for the mens rea of the offence S47 ABH you will study.
33
Advantages and Disadvantages of Precedent
Advantages
Flexibility
Judges in Appeal courts can reverse decision that are decided incorrectly in lower
courts. So in the case of R v Kingston the HoL reversed the decision of the CA as to
whether a D could argue a lack of awareness for the sexual abuse of a minor simply
because his drinking of alcohol was involuntary, the drink was spiked. The HoL stated
that simply the alcohol loosening the D’s inhibitions was not enough to stop him having
an awareness of committing the sexual offence, the alcohol must cause the D to be
unable to having any awareness of the crime before being able to have a defence.
Precedent is a much more flexible approach using reversing as it allows more
experienced judges to strike a more just application of the law on intoxication as a
defence than achieved by less experience judges lower in the hierarchy.
Dealing with real cases
Unlike Parliament and Acts precedents are based on cases and people whose lives will
be affected immediately by the decisions made particularly by Appeal courts. Original
precedents are made only when there is a need for a development in the Law. So in
Donoghue v Stevenson Lord Atkins recognised there was a need to have a general duty
of care in society when those that manufactured ginger beer and other products were
becoming much further away from where consumption was taking place. Not only did
Donoghue receive compensation, as the manufacturer had failed to take proper care in
creating the ginger beer, but this also set a binding precedent for all manufacturers to
take reasonable care in producing consumer goods, dealing with the current and future
cases on this issue.
Providing detailed rules for later cases
Unlike Acts of parliament precedents deal create very detailed rules on matters
before them which are applied consistently to later cases. With binding precedent and
stare decisis higher court precedents must be followed by lower courts in cases with
similar facts. So Grant v Australian knitting Mills had to follow the detailed rules set
out on the duty of care held by the manufacturer of undergarments to the wearer of it
as they had failed to take reasonable steps to ensure their goods were fit for
consumption, following through binding precedent the earlier higher court case of
Donoghue. These rules have been further developed and improved to form the law of
negligence covering a wider range of issues brought up in later cases such as those of
car accidents.
34
Fair/just decisions
Precedent can adopt to social, economic and technological change to ensure the law is
fair for society’s changing needs. The HoL recognised this in the Practice Statement
when they decided it was fairer to make landowners have responsibility for child
trespassers who were injured on their land, in the case of BRB v Herrington. This was
a fairer precedent for today’s society’s more sympathetic view of children even when
trespassing compared to the HoL decision in 1929 or Addie v Dumbreck which placed
blame for injuries on the child trespasser. Overrulung the HOL’s own previous
precedent ensured the law reflects today fairer approach to child trespassers who are
injured.
Certainty
The hierarchy of courts underpinned by the principle of Stare Decisis means that the
vast majority of cases dealt with by trial courts such as the Magistrates and Crown
Court have to follow the binding precedents of higher courts, particularly The Supreme
Court. So with criminal law in particular the HoL under the Practice Statement has
stated that there should only be changes to the law in exceptional circumstances to
provide certainty when considering crimes that are punished harshly such as murder.
The definition of murder was created in a case by Lord Coke more than 300 years ago
and precedent has altered this only slightly so that defendants and their advisors can
predict the results of a case with great consistency, resulting more certain outcomes
in court.
Disadvantages
Undemocratic
As judges are unelected the risk contravening the separation of powers so that instead
of just applying the law the actually play too large a role in creating it. In the case of
Gillick v Norfolk Health Authority Mrs Gillick was a mother with five daughters under
the age of 16. She sought a declaration that it would be unlawful for a doctor to
prescribe contraceptives to girls under 16 without the knowledge or consent of the
parent. The court held that provided the patient, whether a boy or a girl, is capable of
understanding what is proposed, and of expressing his or her own wishes, then
contraception advice and issue can be undertaken without parental consent or
knowledge. However, it can be argued that as the HoL are unelected judges this
emotive issue should have been left for debate by parliament as they are more likely to
be able to gauge public opinion on the issue before making any law.
35
Cases have to come to court & cases having to reach higher courts
Unlike parliament judges must wait for an appropriate case to come to court before
they can make even the most important changes to the law. So even though the HoL
made a serious error in case of Anderton v Ryan, forgetting parliament had made it an
offence to even attempt a crime that was impossible, they court had wait for another
case to come to the HoL, R v Shivpuri, to rectify their error using overruling. As it was
the HoL that made the erroneous binding precedent no other court could correct the
mistake meaning trail courts such as the Crown Court would allow Ds to walk free from
court in direct contravention of the law laid down by Parliament in the Criminal
Attempts Act.
Multiple reasons for decision
Unlike an Act of parliament, where debating and voting ultimately creates just one law,
in appeal courts upto 9 judges in The Supreme Court can give totally different legal
reasons as to why they may or may not allow the appeal. So in Candler Crane v
Christmas the majority of the judges believed there was no duty of care between the
accountant for the company and the third party investor. However, in Lord Denning’s
judgment he believed there should a duty of care causing potential confusion as to
what the law actually was saying should happen due to multiple decisions.
Difficulty in identifying ratio
Judges do not make it clear which part of their judgment is the legally binding part so
different lower court judges may interpret different elements of the judgment in
different ways, leading to potential inconsistencies in the application of the law across
similar cases. So with distinguishing the judge may identify the current case as being
materially different from the binding precedent simply because it is a matter of
interpretation as to what the ratio was. It could be that Merritt should have actually
followed the precedent of Balfour as the judge may have incorrectly identified the
ratio as being irrelevant in Balfour, leading to confusion in the law of financial
agreements between separated couples.
Number of precedents/diversity of law reporting
As judges are always creating precedent in appeal courts based the smallest of issues
in cases trying to establish what the law actually is extremely difficult, time consuming
and complicated. For example, there have been many cases trying to establish what
recklessness should mean when trying to prove whether or not a D was liable for a
criminal offence. In some cases, like Elliot v C, judges do not overrule but simply
disprove of a binding precedent, in the case Caldwell. In other cases the Appeal courts
decide the law was incorrectly stated and change it. R v G& R overruled Caldwell. All
these cases are reported in both the press, private law reports and by t Council of law
36
reporting leading to a very complex set of precedents that risks being misinterpreted
and applied.
37
Task A
Read the following passage and then answer the questions
McLoughlin v O'Brien and others (1982)
Ms McLoughlin was at home when a witness to a
serious road accident two miles away came to
tell her what had happened. The accident
involved her husband and three children.When
she arrived at the hospital she found her family
in severe pain and covered in blood, oil and mud.
She was told that her daughter had died. Ms
McLoughlin suffered severe and long-term
psychiatric illness as a result of this experience.
She claimed against the defendants whose negligence had caused the road accident.
The case was appealed to the House of Lords. Several Law Lords gave judgement in the
case. Sometimes, when judges and academics look back at past cases, they decide that
the judgement made by a Law Lord is the 'leading judgement' - the judgement which
makes the case an authority. In this case Lord Wilberforce gave the leading
judgement. Lord Wilberforce reviewed existing nervous shock cases to see where the
law currently stood and what precedents must be followed:
1.Bourhill v Young (1943) recognised the possibility of claiming for nervous shock in
principle.
2. Dulieu v White and Sons (1901), together with Hambrook v Stokes Bros (1925),
were at one time thought to limit a claim for damages to situations where the plaintiff
was afraid of immediate personal injury. Wilberforce said that these cases had 'not
gained acceptance'.
3. In Hambrook v Stokes Bros (1925) it was determined that a plaintiff may only
recover (i.e. receive damages) for nervous shock brought on by injury to a near relative
(husband and wife or parent and child). Moreover, there was no liability where the
injuries were learnt of through communication with others, rather than actually
witnessing something.
4. Where the plaintiff arrives at the scene immediately after the incident, however, as
was the case in Boardman v
Sanderson (1964) and Benson v Lee (1972), they may be able to recover for nervous
shock (so the rule in Hambrook v Stokes Bros (1925) was modified).
38
5. In Chadwick v British Railways (1967) a man who arrived in the immediate
aftermath of a serious accident was allowed to recover for nervous shock even though
those injured were not related to him, on the basis that he acted as a rescuer.
Having set out what he took to be the current position on the law relating to nervous
shock cases, Lord Wilberforce then considered the effect of these precedents on Ms
McLoughlin's position. He pointed out that the facts of Benson v Lee (1972) also
involved a mother who was told of her family's injuries by a bystander. In that case,
the mother was 100 yards away from the scene of the accident and went straight
there. Wilberforce could find no reason why this case should be decided any
differently: 'Can it make any difference that she comes on them in an ambulance or, as
here, in a nearby hospital, when as the evidence shows, they were in the same
condition, covered with oil and mud, and distraught with pain?'
What makes the judgement in McLoughlin v O'Brien and others (1982) typical of the
way that the common law operates is the process of logical sifting through earlier
precedents. The Law Lords who decided to grant Ms McLoughlin's appeal will have
spent considerable time in a library, reading and re-reading the written judgements of
other judges in earlier cases. They did not simply judge the case in isolation.
Questions
(a) What is a leading judgement? (2)
(b) McLoughlin v O'Brien and others (1982) was heard by the Lords in 1982. In
what year was nervous shock first recognised as a reason for damages? (1)
39
(c) Which precedent does Wilberforce appear to follow here? Does he regard the
precedent as fundamentally different from the facts of Ms McLoughlin's case? (6)
(d) Using the precedents on nervous shock, explain how as a Law Lord you would
decide the two cases below. State what your decision would be and whether you
would be following, distinguishing, or overruling relevant authorities:
A. Ms Jones was in her home in Devon when a policeman came to tell her that her
son had been severely injured in a rail crash in Glasgow a week before. She
travelled to Scotland to see him in hospital. She then claimed for nervous shock
against the negligent railway company.
40
B. Mr Smith was travelling home after spending Christmas with his parents. Half
way home, he came upon the immediate aftermath of a very serious accident. One
of the two vehicles involved was a small car which had crumpled up, trapping the
driver, who was not at fault. Mr Smith gave basic first aid to the driver, who lost
a great deal of blood and slipped fast into unconsciousness. When he arrived home
Mr Smith, a very sensitive person, suffered from depression and nightmares for
some months. He claimed, against the other driver, who was at fault. (10)
41
Task B
Matching
exercise
Draw a line from each key word or phrase to the correct
meaning.
Ratio Decidendi
Higher court in the same case overturns the
decision
Persuasive Precedent
Everything else said that isn't directly relevant to
the case
Per incuriam
Stand by what has been decided
Overruling
A previous decision which must be followed
Original Precedent
Avoiding the past case because the facts are
different
Obiter Dicta
Reason for deciding
Binding Precedent
Statement that a legal ruling in a past' case is
wrong
Privy Council
Allows the House of Lords to go against its past
decisions
Reversing
A decision where there is no previous law to
follow
Practice Statement
A previous decision which may be followed
Stare Decisis
The final appeal court for some Commonwealth
countries
Distinguishing
Ignoring a statute or House of Lords judgment
42
Summary of
Advantages and Disadvantages of Precedent
43
Precedent Past paper questions
1. With reference to the doctrine of judicial precedent, explain what is meant by
the terms ratio decidendi and obiter dicta.
2. Outline the key features of the doctrine of judicial precedent
3. Outline the process of overruling and briefly explain how judges in the Supreme
Court can avoid following a binding precedent.
4. Describe any two ways in which judges can avoid following an earlier precedent.
5. Using cases and/or examples, explain how the House of Lords and the Court of
Appeal can avoid following a precedent.
6. Outline what is meant by the terms hierarchy of the courts and obiter dicta
7. Outline two ways by which judges can avoid following a binding precedent.
8. Explain how judges either in the Supreme Court or in the Court of Appeal can
avoid following precedent.
9. With reference to judicial precedent, outline what is meant by the following
terms:



hierarchy of the courts
ratio decidendi
law reporting
10. Outline how judges can avoid following precedent by:


distinguishing a previous precedent
overruling a previous precedent
11. Discuss either the advantages or the disadvantages of the doctrine of judicial
precedent.
12. Discuss the advantages of judicial precedent
13. Discuss the disadvantages of the doctrine of judicial precedent
44
Task C
In the case of R v Shivpuri (1986) the House of Lords overruled a decision that they had made less
than one year earlier in the case of Anderton v Ryan (1985).
Consider how the doctrine of precedent would apply had the cases of Anderton v Ryan and R v
Shivpuri been heard in each of the following situations and on the following dates instead of when
they were actually heard:
(i)
Anderton v Ryan was decided by the House of Lords in 1950. Shivpuri comes before the
House of Lords in 1951.
(ii)
Anderton v Ryan was decided by House of Lords in 1950. Shivpuri comes before the House
of Lords in 1967.
(iii)
Anderton v Ryan was decided by the Court of Appeal in 1950. Shivpuri comes before the
Court of Appeal in 2002.
45
Task D
Explain which method of avoidance is most suited to each of the scenarios below. Illustrate
your answer where appropriate:
1.
The House of Lords wish to depart from a past decision of their own;
2.
on appeal, the Court of Appeal disagrees with a ruling of the High Court and
wishes to replace it with a different decision;
3.
a judge in the Crown Court does not wish to follow a past precedent of a higher
court as she feels that the facts are slightly different.
[15]
46
Task E