As law session three (precedent)


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As law session three (precedent)

  1. 1. Another day...Another paper! G152Sources of Law
  2. 2. Starter:How much can you remember?
  3. 3. Now your evidence!Each picture is a clue to a case... Can you name them? Developing your knowledge further. Can you identify... 1. The area(s) of precedent the case illustrates? 2. At least one other case it links to?
  4. 4. Your answers?Case? Facts? Area of Precedent Linked case?
  5. 5. ... Why are they so important?1944 Young v Bristol Aeroplane Allowing the CA to overrule itself1966 Practice Statement Allowing the SC (HL) to overrule itself1968 Conway v Rimmer First use of the practice statement1972 Herrington v BRB First use of the practice statement in the civil law1986 R v Shivpuri First use of the practice statement in the criminal law2008 R v Hoare Most recent use of the practice statement
  6. 6. Consolidating your understanding...
  7. 7. Ctd...
  8. 8. Basic set up and demands!Answer one of two questionsStart with C... Then A... Then BOne hour60 marks/80 UMS marks/40 % of AS MarksUse the Source (24 marks!)Add your own knowledgePlan, read and annotate before writingQuestion A&Ci: 15 Marks AO1Question B 3 x 5 Marks AO2 Grade Boundaries:Qu. Cii: 15 Marks AO2 Out of 60... 48 A 42 B 36 C 31 D 26 E
  9. 9. How important can the source actually be? If this is the source... What are the questions? a. b. Ci Cii There are 24 marks in the source... Use it!
  10. 10. What does a good AO1 answer look like? Look at the two examples below... One is level four... One is level three?The Court of Appeal is normally bound by its Each division of the Court of Appeal doesn’town previous decisions, as well as those of bind each other. This is because they arethe Supreme Court. Although they can concerned with different things, like in Re:A,overrule, reverse or distinguish the decision where because it was a civil case anythingof a lower court, they must follow the about necessity and murder doesn’t have todecision of a higher court. This is clear in be followed by the criminals. According totheir decision in R v G&R. Here, despite Young These exceptions are where its ownmaking it clear that they disagreed with the previous decisions conflict, the Court ofreasoning of the House of Lords in Caldwell Appeal must decide which to follow andon the test for recklessness in criminal which to reject. Secondly, the Court ofdamage, they applied the higher court’s Appeal must follow a later decisions of theruling. However, as the source makes clear House of Lords if its own previous decisionson lines 7-16, it is able to overrule itself in conflicts with it. Finally, the Court of Appealcertain clear circumstances following the need not follow its own previous decisions ifdecision in Young. it were made per incuriam (in error)
  11. 11. What would you answer?Read the paper and decide which of the precedent questions you would respond to!
  12. 12. What’s the first stage?Constructive colouring in! Question A information: Case – Holley & role of PC Rules governing when can be used.Using a variety of colours (one Mentions that there are ways to avoid to precedent per question!) pick out therelevant information from the Question B information: sources. General rule on precedent. Mentions ways to avoid Remember: there are 24 CA/PC/SC relationship marks in the source! Question Ci information: Example of persuasive Reference to well defined exceptions Question Cii information Response to inconsistencies in the law quicker. Clear general rule of binding precedent. Inconsitency.
  13. 13. Look at question A* The Source (at line 8) refers to persuasive precedent. Using the Source and other cases, describe how persuasive precedent works [15 marks]Intro: Persuasive precedent is where a court choose to apply a ruling, which otherwise it wouldn’t have to.Main:• Other Countries• Privy Council• Holley• Lower Courts• Other divisionsConclusion: *The same approach works for A as well!
  14. 14. Now you have a go!The Source (at lines 16 and 17) describes how lower courts can avoid past decisions of higher courtsin exceptional circumstances.Using the Source and other cases, explain how lower courts can avoid the doctrine of precedent [15marks]Intro: “Most candidates answered part (i) byMain: discussing distinguishing. This varied from a definition to an analysis of the concept using appropriate case law. The more able candidates focused on other methods of avoiding precedent using the source to support their Now... 15 Minutes to write up... answer. A significant minority of candidates answered the question through a discussion of the YoungConclusion: criteria or by using the source alone. “ Examiner’s Comment
  15. 15. Cii: The Hardest Question on the paper!We’re back in the arena of well developed points (only here we call them expandeddeveloped points)Guidance from the Examiner:Responses will be unlikely to achieve level four without four developed points of which one must bewell developed. Well developed point must include a case or example.Responses will be unlikely to achieve level three without three developed points (one must include acase to achieve top level 3 or three developed points with a number of limited points to achieve toplevel 3); three developed points (no case) will achieve middle level 3; two developed points (no case)will achieve bottom level 3.Responses will be unlikely to achieve level two without a range of limited points (no development)or a single developed point for top level two.Responses will be unlikely to achieve level one without any basic point(s).Some use of source only will achieve a maximum of level two.Straight lift from source would attract no credit.
  16. 16. So what should a level four look like?As the source says on line 2, the courts in England and Wales are “strictlybound” to follow the decisions of the higher courts. This is an advantage as ithelps to create certainty with everyone knowing what the law is andtherefore able to continue their public and private relations clearly. TheSupreme Court has shown this recently in the case of Grantanio vRadmacher, where the decision on the validity of prenuptials has helped toclarify the law in this area. However, because they have to wait for theSupreme Court to issue a ruling this can create uncertainty especially as thelower courts might decide something differently, as in this case.
  17. 17. Now you have a go! Down the side are three advantages and disadvantages of giving the lower courts more freedom. Develop one of them to show the skills required for a level four cii question! The CA is the finalappeal court in reality for many.The Lower courts have to follow decisions they know to be incorrect. Could end up withuncertainty in the law.
  18. 18. Ok, so we’re left with B! A case comes before the House of Lords in 2008. There is a previous Decision: precedent decided by the House of Lords in 1951. [5 marks] Reason: “Responses will be unlikely to achieve level four without identifying the Example/Illustration: correct answer plus „why‟ plus any other relevant point e.g. case/LNK/correct outcome” AORPA case comes before the Court of Appeal (Civil Division) in 2008. Thereis a previous decision by the House of Lords in 1980. [5 marks] A case comes before the Court of Appeal (Civil Division). There aretwo past conflicting precedents, one from the House of Lords in 1995and the second from the Privy Council decided in 1999. [5 marks]
  19. 19. Any Questions?
  20. 20. Delegated Legislation