Judicial Precedent - Ways of avoiding Precedent Flashcards
Overulling - Where…
Where a higher court in a later case decided that a precedent i.e the ratio of a later case on the same point of law is wrong or outdated.
Effect: Existing precedent is replaced with new precedent. Alternatively, some courts can overrule their own precedent.
E.g Supreme court using the Practice Statement 1966 when “it appears right to do so” and the C of A using the 3 Young exceptions and 4th Taylor exception.
R v Shiv Puri overruled Anderton v Ryan over the principle if the intention to commit a crime was sufficient, the court in the former stated that it was.
Distinguishing - Where any…
Where any court decides in a later case that the material facts of that case are sufficiently different from an earlier case to allow different decision.
Effect: Creates two precedents on the same point of law to deal with two factually different situations.
E.g. R v Smith distinguished R v Jordan. In the later case, the doctor’s act was a severe mistake which would have killed V whether he had the knife wound or not, whereas in R v Smith the actions of the Doctor were routine procedure which only killed him because of the injury he had received earlier. So difference was freshness of wound, severity of doctor’s actions and the actual cause of death.
*E.g. Merritt v Merritt distinguished Balfour v Balfour. The distinguishing factor was that in the first case the couple had separated before the agreement was made and written meaning the husband had to honour the agreement because there was intention for the contract to be legally binding unlike the second case where the agreement was made when the couple were still together and was not in writing.
Disapproving - The judge states…
The judge states in the Obiter dicta of his judgement that he believes the precedent set in the earlier case is wrong. This can occur:
- When the later case concerns a similar point of law
- When the later case is heard by a lower court in the hierarchy.
In both situations overruling CANNOT be used.
Effect: The judge is still bound by the earlier precedent, however, the disapproving obiter could be used as persuasive precedent in a later case in a higher court.
E.g. R v Hasan disapproved R v Hudson and Taylor. Over the principle of duress could be used under NO immediate threat. The former case’s judge disagreed but didn’t have the power to change it as they were looking at a different point of law. This disapproval would be persuasive for future courts who could change the precedent if they had the power to do so.
