Avoiding a binding precedent (Q2)

Question 1

INTRO

Answer 1

Judges are expected to follow each others decisions in a case with the same or similar facts. However, there are occasions when a binding precedent may be avoided.

Question 2

Info on supreme court

Answer 2

The Supreme Court can avoid its’ own decisions, when it appears right to do so, using the Practice Statement 1966 (PS). It was by introduced by Lord Gardiner to give only them the power to avoid their past decisions. It is not a case or a law but simply an instruction. It is used rarely to ensure certainty, especially in criminal cases.

Question 3

Case for supreme court

Answer 3

• It was first used in British Railways Board v Herrington (1972) which made the railways responsible for the safety of children trespassing on its property. This avoided the past decision in Addie v Dumbreck (1929).
• The first criminal case to use the PS was Shivpuri (1986) which held D could be guilty of attempting to deal or harbour heroin despite the substance not being a drug. This avoided the past decision in Anderton v Ryan (1985).
• The PS was also used in R v G&R to abolish objective recklessness in Caldwell.
• However, the Supreme Court are reluctant to use it as seen in Knuller v DPP where they had the opportunity to use the PS and avoid the decision from Shaw v DPP.

Question 4

Supreme

-Between 1966 and 1980..

Answer 4

Between 1966 and 1980, the House of Lords had 29 opportunities to use the PS but only used it in just 8 cases.

Question 5

The Supreme Court needs a good reason to use the PS. Jones v Sec. State for Social Services held that simply because a precedent was wrong, was not a reason for using the PS. Possible ‘good’ reasons for using it includes:

Answer 5

1. Changing social climate – R v R (1991)
2. Changing economic climate – Miliangos v George Frank Textile (1976)
3. Justice
4. Proper development of the law.

Question 6

Supreme Court

What happens when the PS is used?

Answer 6

When the PS is used, the new case becomes the precedent and the decision from the old case is ignored.

Question 7

Court Of Appeal

Answer 7

• As a rule, the Court of Appeal binds itself and cannot avoid its own decisions unless any of the three exceptions in Young v Bristol Aeroplane apply:
  1. There are conflicting past C of A decisions (can choose to follow either).
  2. There are conflicting C of A and Supreme Court decisions (follow Supreme Court).
  3. The decision was made per incuriam (in error as an Act of Parliament was not considered when it should have been).
• Young v Bristol Aeroplane applies to the Court of Appeal (Criminal Division) too. The following cases also allow the Court of Appeal to avoid past precedent if the law has been misapplied or misunderstood. This is because in the Criminal Division, a person’s liberty may be at risk: R v Taylor, R v Gould.

Question 8

Distinguishing

Answer 8

A case is distinguished where the facts of the precedent and the facts of the case before the court are not the same or similar. Since there is a precedent for virtually all areas, it may be that the judge has to find a minute difference. Judges from all courts are able to use distinguishing as a way of avoiding precedent. This is because the facts of the past precedent are different so simply do not apply.

• In Balfour v Balfour the agreement between husband and wife was not one that was legally binding. This was distinguished from Merritt v Merritt where the agreement between husband and wife was legally binding because they were separated.
• In Brown consent was not available for ABH as the sado-masochistic activity was between homosexual men. This was distinguished in Wilson where consent was held to be available for ABH as the branding of Vs buttocks was between a married couple in their home..

Question 9

Over-Ruling

Answer 9

-Over-ruling works on the basis that higher courts can over-rule decisions made in the lower courts. This means they ignore the decision and replace it with a new one, making the old one void.

Question 10

Over-ruling

-Supreme Court

Answer 10

-The Supreme Court can over-rule the decision of all of the courts below it: Court of Appeal, High Court, Crown Court, etc. The Supreme Court can also over-rule its own past decisions, where it appears right to do so, using the Practice Statement 1966 (PS), although it does this rarely.
 -British Railways Board v Herrington (1972) made the railways responsible for the safety of children trespassing on its property. This over-ruled Addie v Dumbreck (1929).
 -Shivpuri (1986) held D could be guilty of attempting to deal or harbour heroin despite the substance not being a drug. This over-ruled Anderton v Ryan (1985).
 -R v G&R abolished objective recklessness, over-ruling Caldwell.

Question 11

Over-ruling

• C of A
• High Court

Answer 11

-The Court of Appeal can over-rule decisions from the High Court, Crown Court, etc. It cannot over-rule the
Supreme Court. It also cannot over-rule its own decisions unless any of the three exceptions in Young v Bristol Aeroplane or if the criminal law has been misapplied or misunderstood (R v Taylor, R v Gould).

-The High Court can be over-ruled by the Supreme Court and C of A. It can overrule Crown and Magistrates Court.