A Level Law Precedent Notes:

A Level Law What You Need to Know: How a judge creates a precedent How a precedent can be altered or avoided The limitations on judicial law-making What You Need to Discuss: The balance between certainty and flexibility in the operation of precedent Notes: The law-making partnership between Parliament and the courts

A Level Law - Recap Three essential elements A hierarchy of courts: this establishes which decisions are binding on which courts decisions of higher courts are binding on lower courts highest court = Supreme Court (House of Lords) next most important court = Court of Appeal Notes: the Divisional Courts and the High Court can also establish precedent BUT bulk of common law is found in decisions of the House of Lords and Court of Appeal

A Level Law The binding precedent: When judges make a judgment it contains four elements: statement of material (relevant) facts statement of legal principle(s) material to the decision - the ratio decidendi or legal point discussion of legal principles raised in argument but not material (important) to the decision - obiter dicta Notes: the decision or verdict

A Level Law the binding precedent in future cases is the ratio - reason for the decision obiter dicta - things said by the way, while never binding, may have strong persuasive force other forms of persuasive authority include: decisions of other Common Law jurisdictions (esp. Australia, Canada and New Zealand) Notes: decisions of the Privy Council writing of legal academics obiter dicta of courts higher in the hierachy

Case Study on a Judgement - Defence of Duress cant be used for a crime of murder Howe, R v [1987] House of Lords: Facts: D acting under duress (threatened with death), took part with others in two separate murders, and on a third occasion the intended victim escaped. Held: Guilty. Ratio: Duress is not available as a defence to murder for the person who actually kills the V or anyone who takes part in the killing. Morals, law and policy should deny a man the right to take an innocent life even at the price of his own. Obiter: In attempted murder Duress should not be available as a defence.

A Level Law Flexibility and Certainty certainty needed to allow people to plan/lawyers to advise flexibility needed to enable Common Law to develop to meet changing times therefore, system needs to balance these two competing, but equally legitimate, aims Notes:Original precedent - The first Donoghue v Stevenson and then Stare Decisis on Grant v Australian Knitting mills. binding nature of the ratio creates a foundation of certainty - original precedent is the first binding precedent

A Level Law - Rules allowing flexibility in precedent flexibility introduced by: overruling - higher courts can overrule lower courts distinguishing - where a lower court is able to point to material differences that justify the application of different principles than the binding precedent. departing - where, in certain circumstances, a court can depart from its own previous decision - Supreme Court is the only court that has a general right to do this. Notes: reversing - A court higher overturns the decision of a lower court on appeal..

Overruling - case Study and criticism Lynch v DPP Northern Ireland 1975: Facts: D was an accessory to murder in that he drove a car to a place under threats from an IRA gunman M. D waited while M and his associates killed a policeman, and then drove them away. Held: A 3-2 majority in the House of Lords allowed his defence of duress. OVERRULED BY R v Howe 1987: See previously. Ratio/Held: Duress is not available as a defence to murder for the person who actually kills the V or anyone who takes part in the killing. Advantages of Overruling: Allows for flexibility in law Allows for law to develop taking into account economic and Social changes in society Allows mistakes of the courts to be corrected Disadvantages of Overruling: Creates inconsistency if overused Lawyers find it harder to advise clients on outcomes of their cases Risks usurping supremacy of parliament in law making

Distinguishing - case Study and criticism Balfour v Balfour 1919: Facts: D agreed to pay his wife a maintenance payment orally but later refused to pay. Ratio/Held: In contract law an Intention to create legal relations (ITCLR) wasn’t presumed in domestic agreements and as D only agreed orally this was not rebutted. No contract to pay C formed. Distinguished Merritt v Merritt 1972: Facts: D agreed to pay his wife maintenance in writing after formal separation. Ratio/Held: The presumption of no ITCLR was rebutted as there was a written agreement and C was entitled to claim maintenance under the contract. This distinguished the case from Balfour so Merritt did not have to follow this earlier binding precedent. Advantages of distinguishing: Allows for flexibility in law for lower courts Prevents stupid decisions Stops precedent become rigid and unfair in individual cases Allows a binding precedent to be confined to its facts to reduce the impact of a spurious precedent Disadvantages of distinguishing: Allows lower courts to split hairs where there is no real difference with binding precedent Creates potential inconsistency in law Is in complete contradiction to Stare decisis Lawyers find it harder to give clear advice to their clients.

Overruling- case Study and criticism Anderton v Ryan 1984: Facts: D had bought a video recorder, but later confessed to the police that she believed it to have been stolen property when she bought it. The defendant was charged with attempting to handle stolen goods, although the prosecution was unable to prove that the video recorder had in fact been stolen property. Ratio/Held: House of Lords quashed the defendant's conviction on the ground that she could not be guilty of attempting to handle stolen goods unless such property was shown to have existed. Departed and overruled by R v Shivpuri 1985: Facts: D was arrested entering the country, carrying a package which he believed contained either heroin or cannabis, but was in fact harmless ground dried vegetable. D was charged with attempting avoid import restrictions; smuggling. Ratio/Held: Accepting that previous law had been incorrectly applied, concerning the Criminal Attempts Act 1981, the HL departed from its previous decision and said an attempted crime was impossible could still be a criminal offence as per S1(2). D G. Advantages of Departing: Allows for flexibility in law for the Supreme Court Allows for law to develop taking into account economic and Social changes in society Allows mistakes of the courts to be corrected Disadvantages of Departing: Creates inconsistency if overused Lawyers find it harder to advise clients on outcomes of their cases Risks usurping supremacy of parliament in law making Criminal Attempts Act 1981 S1(1): Where D does intentionally does anything that is more than merely preparatory to the completion of a crime will be liable as if he had committed the actual offence. S1(2) Even if the crime is actually impossible to commit as long as D can be proved to have completed S1(1) still guilty of an offence. S2(1): Attempt is punished in exactly the same way as if the D had committed the actual offence.

Reversing - case Study R v Kingston 1995 HL: Facts: D indecently assaulted a 15-year-old boy who had been drugged unconscious by P who then invited D to sexually abuse the boy. D claimed that he had no recollection of the assault, as his drink had also "been laced" with drugs by the P, who photographed the indecent act. Ratio/Held in Crown Court: The trial judge directed the jury that if they were sure that despite the effect of any drugs the defendant still intended to commit an indecent assault the case against him was proved. D G. Reversed in the Court of Appeal: Held/Ratio: D NG. The Court of Appeal's decision was founded on the principle that the law recognised that, exceptionally, an accused might be entitled to be acquitted if there was a possibility that although his act was intentional, the intent arose out of circumstances for which he bore no blame. Reversed in HL: Ratio/Held: Involuntary intoxication is not a defence to a defendant who is proved to have the necessary criminal intent when he committed the offence even if under the influence of drugs administered secretly to the accused by a third party. The trial judge had correctly directed the jury that if they were sure that despite the effect of any drugs the defendant still intended to commit an indecent assault the case against him was proved.

Reversing - criticisms Advantages of Reversing: Allows for flexibility in law as a case passes through the appeal process. Allows higher courts to correct decisions of lower courts that are wrong The best legal minds can look a the same point of law and find the best solution for the D and the public. Disadvantages of Reversing: Creates potential inconsistency in law whilst a case passes through the appeal process (e.g. R v Kennedy 1997 offence to 2007 final HL decision) Lawyers find it harder to give clear advice to their clients. The case may be prolonged to simply argue abstract legal points with the hope that the D will get off on a technicality.

Criticisms of precedent summary Advantages and disadvantages  just system impartial system practical character certainty tempered by flexibility developments contingent on accidents of litigation Notes: Retrospective effect: Theory is that the law exists independently of society therefore when Overruling/departing are used all past cases and arrangements must adopt the current legal position, eg if the courts turned round today and said an act was wrongly interpreted and sixth form education has to be paid for you would have a legal liability to pay for the past year of education as well as the A2 year, and so would all those students still living! Prospective effect: Accepts the possible injustices that retrospective effect has and simply says the law changes from the future, the main stream view on overruling and changes in precedent. developments hindered by disincentive of retrospective effect complexity

Conclusion on precedent inherent conflict between certainty and flexibility English Law largely successful in achieving balance public interest referrals and prospective overruling could enhance this success Notes: also important to remember that English law is not dependent upon precedent alone for its development