Here is my analysis of whether the precedent would be bound in this scenario:
Bound - The precedent set in 1951 by the High Court would be binding on the High Court in 2008 as it is a court lower in the hierarchy considering a precedent set by a court higher in the hierarchy on the same level of court. The High Court in 2008 would be obliged to follow the precedent set by the High Court in 1951 unless it could be distinguished.
This illustrates the principle of binding precedent between courts at the same level, where a court must follow a precedent set by a higher court in the same jurisdiction, as discussed in the source material.
2. Judicial Precedent:
Some absolute basics
Our two
sources of law...
An example of common law precedent:
An example of statutory precedent:
D is a member of a violent gang, and helps them to kill someone. He
then wants to leave. The gang refuse and say they will kill him unless
he helps then to kill another man, he does so. He wants to plead the
defence of duress to the second murder, as he says he was forced.
The Supreme Court (HL) says he cannot as human life is sacred, and he
should sacrifice himself instead.
D puts a bet on a greyhound race, but then wants to take it back. He is
worried about his wife being angry. He knows that the only way he will
get his money back is if the race is abandoned. He runs onto the track to
distract the dogs, and is arrested and charged with attempted theft.
Under the Criminal Attempts Act 1981, he must do an act which is more
than merely preparatory to be liable, and the Court of Appeal says he
hasn’t as he hasn’t tried to get the money back.
What does this mean for Ashlea?
Ashlea is 14, and says that his dad threatened to seriously hurt him if
he did not help his dad to kill his mum. He helps his dad with the
murder, and wants to plead duress to the crime.
What does this mean for Mr Campbell?
Is he successful? Why? Why not?
Is he successful? Why? Why not?
On a warm summer’s day, D was seen with an imitation gun, dressed in
motorcycle helmet and gloves pacing within a yard of a post office door,
over a period of around an hour. The police arrested him and charged him
with attempted robbery.
3. Hierarchy of the Courts:
How good is your memory or learning so far?
Student Task: You’ve seen this before…
Supreme
Court
All of you should be able to complete the
diagram with the correct courts.
Most of you should be able to identify which
are the appellate, and which the courts of first
instance.
Court of
Appeal
Criminal
Division
Some of you will be able to explain which two
other courts sit ‘above’ this hierarchy and
when we must listen to them.
Civil Division
Divisional
Courts
Queen’s
Bench
Chancery
Division
Family
Division
High Court
Crown Court
Magistrates
Court
County
Court
4. What about Europe?
As you know, we are members of the EU and have given legal power to the European Convention
on Human Rights. This means that there are Courts which also have an influence on our system.
European Communities Act 1972
Human Rights Act 1998
5. Absence Work for 7.1.2014
2. Using your research skills (and the supreme court of
England and Wales' own website might be helpful!)
Produce a summary of the constitution of the court
(this means who sits on it, and for how long) and its
role (what is its jurisdiction - what does it have power
over, when can you appeal here, how many sit to hear a
case etc.) . In addition, I would like you to include a
summary of one case heard by the Supreme Court. You
will need to include:
a. name of the case
b. basis of the appeal
c. what the basic facts were
d. what the outcome of the appeal was
6. What is Precedent?
A judge must follow any decision by a higher courts in a
case with similar material facts.
Courts should also follow their own previous decisions.
This is known as ‘stare decisis’ or let the decision
stand.
This means that courts should not change the law unless
they absolutely have to; certainty is more important than
injustice
7. The all important Law Report
Central to the operation of precedent!
How it works
In the appellate courts,
judges have to explain
not just their decision,
but why and how they
came to that
conclusion.
This provides valuable
guidance to other
judges, when they are
deciding whether or not
they are bound.
If a judge disagrees
with the majority, he
also has to write a
report, but this is not
binding.
A Judgment must contain...
1.
2.
3.
4.
Facts of the case
Certified Question (the appeal grounds)
Ratio decidendi
Obiter dicta
You need to be able to
explain what these are...
They are absolutely vital to
law!
8. Putting it all together...
At the back of your
handout is the case of
R v Bentham.
This is a full case report
from the Court of Appeal.
You are going to read it
and see if you can find the
four elements of a report in
this...
All of you should be able to
find the material facts.
Most of you should be able
to find the ratio & certified
question
Some of you should be
able to find obiter.
9. Now try being the judge who has to apply the ratio...
Scenario
Louis wants to rob Bob and, as he has
forgotten his gun, uses his fingers in his
coat pocket to threaten Bob, claiming to
have a gun.
Jenny, who wants the broach back off her
evil sister, puts a water pistol to the back of
her sister and claims it is a gun.
Oscar Pretorius decides that he is going to
steal back the 200m gold medal, which he
feels should rightfully be his. He breaks
into the house of the winner, and uses his
false leg as a fake gun.
Bound? Why?
10. So how do the courts actually find one of these lovely reports?
After all... We’ve got reports dating back to the 1400s!
Student Task:
Using the books, can you work out the citation and facts of these key cases?
R v R; Woollin; Donoghue v Stevenson; AG for Jersey v Holley
11. Courts in Practice:
A Case Study
R v Brown
R v Wilson
R v Emmett
House of Lords
Court of Appeal
Court of Appeal
What should the outcome have
been?
Which case should they have
followed?
Ratio:
What grounds did the court
distinguish on?
Do you agree?
Which case did they follow and
why?
12. Ratio Decidendi
Case
Facts
Re A (Conjoined
Twins)
Jodie & Mary were conjoined
twins, and doctors sought a
declaration that they could
separate the twins, knowing that
Mary would die.
R v Brown
Ratio
More ratio...
DD were involved in various
consensual sadomasochistic
activities and were charged with
various counts of ABH and GBH
A typical question would be “Explain what is meant by ratio decidendi and obiter dicta” worth 15 marks
13. Obiter Dicta
Case
Facts
Ratio
Obiter
Applied
in...
R v Howe
Duress is not a defence to
murder
Gotts
Donoghue v
Stevenson
A manufacturer owes his
clients a duty of care to
make sure the goods
don’t harm the client.
Tutton v
AD
Walter
A typical question would be “Explain what is meant by ratio decidendi and obiter dicta” worth 15 marks
14. Task:
On your post-it (or on the inside of your booklet… or really
anywhere...) have a go at answering these!
E
Why there may be more than one
ratio?
C
What problems can more than one
ratio cause for lower courts
A
Why might this ‘confusion’ actually be a
positive thing for future cases.
16. The all important Law Report
Central to the operation of precedent!
How it works
In the appellate courts,
judges have to explain
not just their decision,
but why and how they
came to that
conclusion.
This provides valuable
guidance to other
judges, when they are
deciding whether or not
they are bound.
If a judge disagrees
with the majority, he
also has to write a
report, but this is not
binding.
A Judgment must contain...
1.
2.
3.
4.
Facts of the case
Certified Question (the appeal grounds)
Ratio decidendi
Obiter dicta
You need to be able to
explain what these are...
They are absolutely vital to
law!
17. Different Types of Precedent?
Today we are going to look at the different types of precedent which may be
created by a court.
Just remember to
BOP
Original
Binding
Persuasive
18. Type One:
Binding
Only happens if the
Court
are sufficiently similar
Binds?
SC
CA
DC
Example:
R v G & R (CA)
Had to apply the HL in Caldwell,
even though they made it clear
they weren’t happy about it.
Bound by...
19. Original
Type Two:
Example:
Hunter v
Canary Wharf
Hunter v Canary Wharf
The building of Canary Wharf
interfered with the television
reception of the claimants. They
were arguing that they had the
legal right to a television signal, and
that by interfering, they had
breached their legal right.
Is the right to TV like;
The right to light?
The right to a view?
Which one is it analogous to?
This is the rarest and where there has been
no decision on that area before.
This works by analogy
A Problem?
Are the judges making brand new
law... Or just declaring what the law
actually is?
Airedale NHS v Bland
McLoughlin v O’Brien
Gillick v West
Norfolk AHA
Re: A
20. Can the lower courts create original precedent?
The short answer is, that in theory, yes!
Although most original precedent comes from
our very highest courts, if a judgement is not
appealed to them, then the decision of the
lower court actually becomes the precedent.
You have seen this in two occasions:
Re:A (Court of Appeal)
Re: M (Minimally Concious)
From the Court of Protection (HC)
21. Type Three:
Persuasive Precedent
This comes from a number of different areas...
Statements made
obiter dicta
Dissenting Judgments
R v Gotts
Hedley Byrne v Heller
Tutton v AD Walter
Courts of Other
Countries
Lister v Hesley Hall
R v Rabey
R v Parks
Re: S
Lower Courts in the
Hierarchy
R v R
22. Persuasive Precedent:
The Privy Council:
The Privy Council are the supreme appellate court of the Commonwealth.
Why are they so influential?
The classic example:
Wagonmound No.1
This case established the test for recovery of damages
They said that foreseeability of damage is important in
deciding whether a defendant is liable for any damage.
23. ...but does it beat the UKSC where the CA is
concerned?
The UKSC is binding and the PC is only persuasive.
So which should it follow?
An old partial defence to murder…
“The provocation must be enough to provoke the reasonable man with the same
characteristics as the defendant.”
R v Smith (Morgan)
Any relevant characteristic
Attorney-General for
Jersey v Holley
Only age and gender
So, which does the CA follow?
R v James, Karimi 2006
24. But why upset all those years of tradition?
43. What are the exceptional features in this case which justify our
preferring the decision in Holley to that in Morgan Smith? We identify the
following:
i) All nine of the Lords of Appeal ... sitting in Holley agreed in the course of
their judgments that the result reached by the majority clarified definitively
English law on the issue in question.
ii) The majority in Holley constituted half the Appellate Committee of the
House of Lords...
What were their reasons?
1.
2.
3.
iii) In the circumstances, the result of any appeal on the issue to the House
of Lords is a foregone conclusion.
44. We doubt whether this court will often, if ever again, be presented with
the circumstances that we have described above. It is those circumstances
which we consider justify the course that we have decided to take, and our
decision should not be taken as a licence to decline to follow a decision of
the House of Lords in any other circumstances.
Do they think that this will
happen again?
45. For the reasons that we have given, we approach the individual appeals
on the premise that the relevant principle of law is to be found in the
majority decision of the Privy Council in Holley and not the majority
decision of the House of Lords in Morgan Smith.
Are they providing a
permanent break in
precedent?
25. True or False?
1. The majority of precedent is binding.
2. The Supreme Court does not bind itself
3. The Divisional Courts bind the High Courts
4. The material facts must be sufficiently similar to follow a precedent.
5. Original Precedent is quite common
6. Any court can create Original Precedent
7. An example of original precedent is Airedale NHS v Bland, where they said that a
secondary victim could receive damages for nervous shock.
8. The new Supreme Court has not created Original Precdent.
26. The final step…
Applying Precedent
Which approach will
the court take?
Distinguish
Reverse
Follow
Overrule
27. Overrule
How does this come
about?
1.
Two different cases:
later overrules the earlier
2.
Example:
R v Shivpuri
Higher Court overruling the lower
court decision in a previous case:
or
Higher Court overruling their own
previous decision.
This can be done by the Supreme
Court using the Practice
Statement
overruling
Anderton v Ryan
E.g. R v G&R overruling R v
Caldwell
Example:
... or the Court of Appeal using the
Young exceptions.
R v R
overruling
R v J
Problems…
28. Reversing
Same case,
further up the hierarchy
Supreme
Court
Supreme
Court
Examples:
R v Woollin
CA = uphold conviction for
murder
HL = reverse (manslaughter)
Fitzpatrick v Sterling Housing Ass.
Court of
Appeal
High Court
CA = family doesn’t include gay
partners
HL = reverse family can include
gay partners
R v Kingston
Crown or County
Court
Magistrates
Court
CC = D was liable (no defence)
CA = reverse D was not guilty
(defence)
HL = reverse (no defence)
29. Distinguish
A court decides that the precedent does not need to be followed
This relies on the judge deciding that the
It can be used by
R v Wilson
R v Brown
court.
Balfour v Balfour
Merritt v Merritt
.
are not
R v Cheshire
R v Jordan
30. Progress in Law
How well are you doing… and what can you do better?
What are you going to do?
Some general Feedback:
Use the source
Aim for five points well explained or
discussed with an introduction or
conclusion for a, ci and cii.
Make sure you know the difference
between AO1 and AO2.
Watch your timing
Detail, detail, detail!
A level only works if you are working and take
responsibility…
Complete your feedback sheet (and
pop down the DRAG results as well…)
Your sheet should be all amber and green
Look at the Mock sheet. Read through
your answers, and complete the sections.
The aim is to work out what you are doing well,
and what more you need to do to achieve what
you want to achieve on this course.
If you were not here, then
you will use the feedback
sheet to complete a plan, and
look at your DL response
instead.
Please ask if you are not sure about anything
which you are completing.
There is a copy of the examiner’s report to help you
31. Applying the law
(with a little source of help)
Key points...
Source is there to be used!
You have to use it to get near level 4 in
answers….
What information can you find in the
sources?
32. Using the source and your knowledge, explain and illustrate what is meant by
persuasive precedent.
33. Using the source and your knowledge, explain and illustrate what is meant by
persuasive precedent.
34. Now you have a go at planning…
Using the source and your knowledge, explain and illustrate what is meant by
distinguishing and overruling
35. Write it up!
You have fifteen minutes to write up your
response.
You should focus on including five clear
points, well explained and linked to source.
Feedback:
I believe that my answer is level
Because…..
The main thing I need to focus on in
answering these questions is….
37. Help from the source!
Now have a go at the
next one!
All of you need to decide
whether it is bound or not and
why
Most of you will be able to
illustrate this with an example
Some of you will be able to link
it to another relevant point.
i. A case comes before the High Court in 2008. There is a
previous precedent decided by the High Court in 1951. [5]
Bound?
Why?
Example
AORP
38. Assessing your application
In your books, you will have 10 minutes to write up the last two questions.
Now find someone who shares either a star sign, or a
birthday month with you and swap the book!
A
An Absolutely great thing they
are doing
B
Something which would make
their response even Better
C
How Confident should they be
with their application skills?
39. Can you name the case?
1 point for name, 1 point for facts
1
8
2
Developing your
knowledge further.
Can you identify...
7
2. At least one
other case it links
to?
4
3
1. The area(s) of
precedent the
case illustrates?
5
9
6
40. You are going to work
together to produce a
revision aid to the
Consolidation
mechanics of precedent.
You need to include in your
revision section:
Case profile of one key case on the
area
Clues to at least three other relevant
cases and their importance
A symbol or diagram relating to your
area
Clear definition of at least three
terms which are relevant to your area
One joke or pun
One application problem – look at
the back of your handout for help.
All of you must contribute to the
revision aid.
Some of you will be able to include at
least two critical points related to your
area.
Group One:
Ratio and Obiter
Group Two:
Persuasive Precedent
Group Three:
Original Precedent &
General rules of
Precedent
Group Four:
Overruling &
Reversing
Group Five:
Material facts and
distinguishing.
41. You’re the expert witness...
One member of each group is going to become the expert...
Travelling round and ensuring that all the groups have the key information accurately
completing their brainstorms.
You will have 5 minutes per group.
44. Was your information good enough?
Can you answer these six questions?
1. What is precedent?
2. Explain and illustrate what is meant by
original precedent
3. What type of precedent was created by the
case of Donoghue v Stevenson and why?
4. Which two methods of avoiding precedent
can only be used by the appellate courts?
5. How has the Court of Appeal ‘messed up’ the
system of precedent?
45. How confident are you feeling with the
application skills?
Put your initials on the line...
I have no clue and
do not understand
how to apply the
law in these short
questions.
I understand how to
apply the law and
what is demanded
of me for these
questions.
46. What have the following got to do with the
topic we have been doing?
Look at the following pictures... Link at least one (bonus if you can link all!) to what we
have covered this topic. Think outside the box!
Be prepared to share!