Avoiding Binding Precedent 10/14

Question 1

Distinguishing

Answer 1

• When a judge avoids a past decision which otherwise would have been followed
• The facts of the case are significantly different from the earlier case.
• Allows a disticntion to be drawn between pres and prev so prev not binding
• New precedent is created.
• Balfour v Balfour -> Meritt v Meritt
• R v Brown and R v Wilson

Question 2

Reversing

Answer 2

• When a case goes on appeal and a higher court reverses the decision of a lower court
• Decision of the higher court is substituted in for the lower court’s
• Sweet v Parsley = COA changed the Crown Court’s decision of guilty to not guilty.

Question 3

Overruling

Answer 3

• A higher court in a later case states the legal rule in a previous case from a lower court was wrong.
  E.g.
• The SC can overrule itself using the Practice Statement
• The COA can overrule itself using the exceptions from Young v Bristol Aeroplane

Question 4

Per Incuriam

Answer 4

(in error)
- When a judge in a previous case has overlooked an important point of law and the decision they made was wrong. This decision can be overruled.
- This is rare because judges don’t like to say judges in other cases were wrong.
- Used in Williams v Fawcett

Question 5

Does the COA bind itself?

Answer 5

• The COA is bound by the SC and the CJEU, they are also bound by their own decisions
• The 2 divisions of civil + criminal are separate, they bind themselves but not each other
• However there are exceptions where the COA can overrule its previous decisions, these are outlined in Young v Bristol Aeroplane

Question 6

What are the exceptions to the COA being bound?

Answer 6

1. 2 Conflicting COA decisions
2. A COA decision conflicts with a SC decision
3. The COA decision was made Per Incuriam (in error)
   4th (only criminal)
   - The criminal division needs more freedom because a person’s liberty is at stake
   - Can refuse to follow a previous decision if the law had been misapplied or misunderstood

Question 7

How the SC avoids binding itself structure

Answer 7

Intro(1) - How it applies(2) - Civil example(3) - Criminal example(4) - Conclusion(5)

Question 8

How SC avoids (intro)

Answer 8

• Before 1898 the HOL was not bound by its previous decisions
• In 1898, in London Street Tramways v London CC it was decided that the HOL would be bound by itself to ensure certainty.
• However the law needed to develop and so in 1966 The Practice Statement was introduced which gives the HOL the power to depart from its previous decisions where it appears right to do so.

Question 9

How SC avoids (how it applies)

Answer 9

• It was introduced in 1966 by Lord Gardiner
• When the Practice Statement is used the new case becomes the precedent and the decision in the old case is ignored
• In Austin v Southwark LBC the SC confirmed the powers of the Practice Statement had been transferred to them but decided not to use it as they felt certainty was more important for tenancy law.

Question 10

How SC avoids (civil)

Answer 10

British Railways Board v Herrington

• The Practice Statement was used to overrule the decision made in Addie v Dumbreck
• The Railway Company were found liable

Question 11

How SC avoids (criminal)

Answer 11

R v Shivpuri
- Used the Practice Statement to overrule the decision made in Anderton v Ryan
- D found guilty as attempting to do the impossible is no defence for trying to smuggle drugs

Question 12

How SC avoids (concl)

Answer 12

• To use the Practice Statement the SC must have a good reason
• Examples of good reasons include:
  
  1. Changing social climate
  2. Changing economic climate
  3. Justice in cases
  4. Development of the law