Ways JP Can Be Avoided

Question 1

What case shows JP can be avoided if it is outdated ?

Answer 1

R V R 1991 - criminalised matrimonial rape

Question 2

What case shows JP can be avoided if it is wrong ?

Answer 2

Anderson V Ryan 1985 - SC got law wrong (per incuriam) on whether a D could attempt an impossible crime

Question 3

How can status of court determine availability to avoid precedent ?

Answer 3

superior courts can distinguish, disapprove or over rule JP, inferior can only distinguish or disapprove

Question 4

How can superior courts avoids their own precedents ?

Answer 4

SC can use 1966 Practise Statement - allows this ‘when right to do so’

Question 5

When was the first time SC used the power to avoid their own precedent and what happened?

Answer 5

Addie V Dumbreck 1929 - create rule that O didn’t owe DoC to trespassers overruled in British Railways V Herrington 1972 - change bc O did owe DoC

Question 6

When has the SC used Practice Statement in criminal cases & case ?

Answer 6

over rules Caldwell JP on objective recklessness and replaced it with subjective test for recklessness (R V R&G 2003)

Question 7

What 3 exceptions can CoA use from Young V Bristol Aeroplanes 1944 to avoid own precedent ?

Answer 7

1. if prev. decision given per inc.(careless)
   2.where 2 conflict. decisions so much choose which 2 follow
   3.decision of CoA been overruled by HoL

Question 8

What happened in R V Taylor (CoA not following own precedent) ?

Answer 8

CoA held if ‘law has either been misapplied or misunderstood’ then must reconsider earlier decision

Question 9

What is the process of distinguishing ?

Answer 9

all courts can avoid JP if the facts of the case are materially different from the facts of the binding case

Question 10

Why did in Balfour V Balfour 1919 the CoA refuse to recognise a binding contract ?

Answer 10

was a precedent created that under normal circumstances, husb. & wives didn’t intend 2 enter legally bind. contr. Mr agreed pay Mrs £30 p/mnth. Grew apart & wanted stop payments mrs couldn’t sue

Question 11

What happened in Merrit V Merrit 1971 for CoA to recognise binding contract ?

Answer 11

couple split, Mr sign written agreement, transfer matrim. house into Mrs name and she pay mortgage

Question 12

What is difference between Balfour V Balfour and Merritt V Merritt?

Answer 12

M - husband wife split w written contract and related to property
B - verbal domestic ‘contract’ not binding

Question 13

How can superior avoid JP by overruling (case) ?

Answer 13

R V Cunningham 1972 (subj. test for recklessness) overruled by SC in R V Caldwell (obj. test for reckless)

Question 14

Example of overulling in the courts ?

Answer 14

Stubbings V Webb 1993 - SC ‘C had 3 yrs from date of knowl. of psychiatric injury by SA to claim overruled in A V Hoare 2008 - dis applied V raped in 1989 sued in 2004 when won lottery for £7 million