Ways of avoiding precedent Flashcards
What are the ways of Avoiding precedent?
- Overruling
- Distinguishing
- Reversing
Why might courts want to avoid following a precedent?
- the law is outdated
- it could lead to an absurd result
What does Overrulling mean?
This is where a senior court in a later case changes a precedent (becasue of card 2). Higher courts can either overrule precedents of the courts below, or sometimes they can overrule their own, i.e. SC using the 1966 Practice statement.
Case Law for Overruling + case facts.
The courts overruled Anderton v Ryan in R v Shivpuri
- A v R: C bought a video record for cheap. Turned herself in under the impression it was stolen. When police investigated they found it wasn’t stolen. She was then arrested for attempting to handle stolen goods. This point of law was given during the trial ↓
- LP: It is not a crime to only attempt to do the impossible
- R v Shiv: C believed he was smuggling heroine into UK. Got through customs and dropped it off to the customer. Police arrested him, the “heroine” was just dried vegetables.
- The point of law from A v R was overrulled and the not from the previous was removed
SC said that they made a serious error in A v R, so the sooner the fix the better.
What is Distinguishing?
Where any courts think the facts of a case a defferent enough from an earlier case that it could draw a distinction between the two. This means that…
- The court in the later case is not bound by the precedent in the earlier
- The later will create another precedent on the same point of law as the other
This can be done by any court.
Case law for Distinguishing + Case facts.
In Balfor v Balfor the husband said that he would give her money if she pays the mortgage. This was a verbal agreement for money.
However in Merritt v Merritt the husband said he would give the house to wife. This was a written agreement for the hosue.
It was decided in Balfor that the Agreement made does NOT need amount to a contract while in Merritt it does amount to a contract because there were intentions to create legal relations in Merritt.
What is reversing?
When a point of law is decided in a lower court and then the same case goes to a higher court who change the point of law.
Case law + Case facts for reversing
R v Hasan - Hasan worked for a Brothel and was threatened to steal from one of the clients (V) or else his family would hurt D and his family. D broke in to V’s house and tried to steal money from V. D argued duress as a defence to burglary.
CoA - decided that duress isn’t self-induced if D doesn’t know what kind of crime he will be forced to commit
The HoL decided that Duress is self induced whenever D knew or should have known the risk of being under duress - it doesn’t matter what kind of crime he would be forced to do.
Hasan Piker
What is self induced duress?
Where you put yourself in a situation where it is assumed that you will be threatened with violence. D can’t use duress as a defence where it is self-induced
