1. The Court of Appeal G152 Sources of Law 2010-11 When can they avoid precedent?

2. Starter: Apply your understanding of the House of Lords and the Practice Statement to the following problems b) Explain the power of the House of Lords in the following situations. A case similar to R v R and G comes before the House of Lords. [5] (ii) The House of Lords is hearing an appeal from the Court of Appeal. The Court of Appeal refused to follow the House of Lords precedent. [5] (iii) A case comes before the House of Lords. There is a previous House of Lords decision but it conflicts with a decision of the European Court of Justice. [5]

3. Reminder of rules... The CA is bound by and the . There are two divisions in the CA: the and the . Each division only binds . Generally, the CA considers itself bound by . It can , of course, , or the decision of a lower court. However, it can not use the to overrule the HL/Supreme court. Criminal Its own previous decisions ECtHR and ECJ distinguish overrule Practice statement Civil House of Lords itself reverse

4. Young v Bristol Aeroplane 1944 Created some exceptions... The previous decision was made per incuriam The CA’s earlier decision is inconsistent with a later HL decision The CA does not have to follow its own previous decision where... There are conflicting CA decisions (they have to pick one!)

5. R v Gould 1968 R v Taylor 1950 When I said three rules.... Criminal If the prior case “misapplied or misunderstood” the previous law. It is more flexible... Why? “we must remember that we may be dealing with the liberty of the subject and if a departure from authority is necessary in the interests of justice to an appellate then this court should not shrink from so acting.” R v Spencer 1985

6. Exception 1:If the previous decision was made per incuriam This means: Williams v Fawcett 1986 “... this court is justified in refusing to follow one of its own previous decisions not only where that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error.” Lord Donaldson MR

7. Exception 2:There is a conflicting, later, decision from the Supreme Court/ House of Lords Why might this situation have arisen? Fitzsimons v Ford Motor Co 1946 Ignored their own decision in Steel v Cammell Laird 1905 Following instead Burrell v Selvage 1921 Is this really an exception to the rules on precedent? What will have to be “sufficiently similar” about the two cases?

8. Exception 3:Conflicting previous decisions in the Court of Appeal R v Jenkins 1983 If you have to choose in the criminal law... The court should choose the one which is most advantageous to D!

9. And just a couple of odd things... The Youngexceptions also apply to the divisional courts Can the CA create law? Re: A (conjoined twins) 2000 Re: S (refusal of medical treatment) 1992 CA can chose the ECtHR or ECJ over HL decision! Re: Medicaments 2001 The Privy council? AG for Jersey v Holleyand R v James, Karimi over R v Smith (Morgan)

10. STATE CREATE Do judges (here and in the Supreme Court) create law... Or do they just state what we already know the existing law to be?

11. Finally... Look at the following points. Are they advantages or disadvantages of precedent? Too much distinguishing or use of Practice Statement damages certainty Practical response to the actual facts of the case It leads to an orderly and natural development of the law. Respects the separation of powers Bad decisions are perpetuated since lower courts must follow higher courts Distinguishing can be done on irrelevant grounds Restricts the development of the law retrospectivity Saves time There can be a lot of detail in the explanation which can help with application Provides certainty and consistency in law. flexibility Very few cases get to the Lords which is the only court which can overrule one of it’s own previous decisions. Can be inconsistent The law can develop naturally There are so many cases that it is hard for judges to find relevant cases and the ratio may not be clear. Difficult to distinguish between ratio and obiter Judges have clear cases and rules to follow. Can only change if a real case is brought. This can be expensive!