Judicial Precedent (part 2) Practice Statement and Human Rights

Question 1

Definition - Practice Statement

Answer 1

In 1966, the Lord Chancellor issued the Practice Statement allowing the House of Lords to depart from their previous decision “where it appears right to do so”.

Question 2

Why was the Practice Statement necessary

Answer 2

It was issued because:
1. It was recognised by the Law Lords that “too rigid adherence to precedent may lead to injustice in a particular case and also
2. unduly restrict the proper development of the law”.

e.g. R v Howe (1987) overruled DPP v Lynch (1973).

Question 3

TRUE or FALSE - There is a reluctance to use the Practice Statement.

Answer 3

TRUE
There is a reluctance to use the power, and as such, it is not often used.

Question 4

Which court/s has the power to use the Practice Statement

Answer 4

The power only applies to the Supreme Court and no other court within the hierarchy.

Question 5

Why does the Practice statement need to be used carefully?

Answer 5

The constitutional role of the judge is not to make the law, so the power has to be used carefully.

Question 6

TRUE or FALSE - ‘When it appears Right to do so’ is a clear instruction.

Answer 6

FALSE
The phrase ‘when it appears right to do so’ is very vague and there is little guidance as to what it actually means.

Question 7

Practice Statement - Case law

Answer 7

Shaw v DPP [1962]
The appellant published a ‘ladies directory’ which listed contact details of prostitutes, the services they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on the grounds that no such offence of conspiracy to corrupt public morals existed.

Question 8

Practice Statement Civil Law - Case Law - First Major use

Answer 8

Herrington v British Railways Board 1972
Departed from Addie and Dumbreck 1929
On the basis that social and physical conditions had changed since 1929.

Question 9

Practice Statement Civil Law - Case Law - Most famous case

Answer 9

Pepper v Hart (1993)
Where the House of Lords overruled a previous ban on the use of Hansard in statutory interpretation.

Question 10

Practice Statement Civil Law - Case Law - reluctant to use in…

Answer 10

Jones v Secretary of State of Social Services (1972)
Four out of seven judges agreed the precedent was wrong but were reluctant to use the practice statement, which could have departed from RE Dowling (1967)

Question 11

Practice statement, Criminal case law example 1

Answer 11

R v Shivpuri departed from Anderton V Ryan
Recognising that sometimes errors are made and the most important thing is to put the law right.

Question 12

Practice statement, Criminal case law example 2

Answer 12

R v R and G (2003) departed from R V Caldwell (1982)
On the law on criminal damage where definition of recklessness was cbanged.

Question 13

Practice statement, Criminal case law C v DPP (1995)
- Name the Lord Lowry guidelines

Answer 13

1. where the solution is doubtful, judges should be wary of imposing their own remedy.
2. Where parliament has rejected opportunities to legislate, judges should be cautious.
3. disputed matters of social policy are less suitable for judicial law making.
4. Fundamental legal doctrines should not be lightly set aside.
5. Judges should not change the law unless thy can achieve finality and certainly on the issue.

Question 14

Practice statement, Criminal case law C v DPP (1995) - what are the details of the case?

Answer 14

Under the common law, a defendant aged between 10 and 14 could only be liable in criminal law if the prosecution could prove that the child knew that what he did was seriously wrong.

Question 15

Practice statement, Criminal case law C v DPP (1995) - decision of high Court on appeal

Answer 15

Decision - that the defence was outdated and not appropriate to modern society. Appeal was launched from here on the basis that the High Court could not change the law as they were bound by precedent.

Question 16

Practice statement, Criminal case law C v DPP (1995) - Following the decision on Appeal was the practice statement used?

Answer 16

NO
the House of Lords considered whether they should use the Practice Statement and decided it would not be appropriate.

Question 17

Civil Division:
The Court of Appeal is bound by the decisions of the Supreme Court or House of Lords as it was, but it is also bound by its own previous decisions EXCEPT in the limited circumstances laid down in Young - What are they?

Answer 17

1. e Court decisions.
2. Where the previous decision was ‘per incuriam’ (wrongly decided)

Question 18

Criminal Division:
The Court of Appeal is bound by the decisions of the Supreme Court or House of Lords as it was, but it is also bound by its own previous decisions EXCEPT in the limited circumstances laid down in Young - what are they

Answer 18

1. Where there are two conflicting previous decisions;
2. Where a previous decision has been overturned by a later
3. House of Lords/Supreme Court decision;
   Where the previous decision was ‘per incuriam’ (wrongly decided)
   4.AND: Where, in the previous case, the law was misapplied/misunderstood resulting in a conviction – R v Taylor (1950). This extra flexibility is due to the fact that we are dealing with the liberty of the citizen.

Question 19

What is the main Impact of the Human Rights Act 1998

Answer 19

s2 Human Rights Act 1998

Requires all judges, when deciding on Convention points, to ‘take account’ of the case law of the European Court of Human Rights. This effectively creates a new source of case law.

Question 20

Vinter v UK (2013)
This was a group of cases concerning some of the UK’s most dangerous criminals, who appealed to the Court of Appeal on the grounds that their sentence of a “whole life order” was a breach of Article 3 ECHR – right to be free from inhuman and degrading treatment. - what did the ECHR rule in this case?

Answer 20

The ECHR ruled that whole life orders were in breach of Article 3 and that a review mechanism should be in place to assess whether a whole life term was still necessary. It recommended this review should be left no later than 25 years into the sentence.

Question 21

What does Legal certainty mean?

Answer 21

The principle requires that the law must be clear, precise and unambiguous, and its legal implications foreseeable. The law must be worded in a way that it is clearly understandable by those who are subject to it

Question 22

What aspects of the legal system provide legal certainty?

Answer 22

Binding Precedent –
*Higher courts bind lower courts
*Like cases decided alike

Question 23

Why is flexibility important in law?

Answer 23

Rigid policies do not allow a person affected by a decision to participate in the process by which that decision is made. Flexible policies do. Because the law almost always requires participation in some form, the law should almost always require flexibility.

Question 24

What aspects of the legal system allow for flexibility?

Answer 24

Avoidance techniques
Overrule,
Reverse,
Distinguish

House of Lords –
Practice Statement

Court of Appeal – exceptions in
Young v Bristol Aeroplane (1944)

s2 Human Rights Act 1998

Original Precedent – R v R (1991)

Question 25

Try and exam question on judicial precedent

Answer 25

Yay! you are now exam ready.