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Mechanics of precedent 2012

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  • 1. Miss Hart
    2011-12
    Precedent:The Mechanics(aka what it is and how it works)
  • 2. Hierarchy of the Courts:How good are your powers of deduction?
    Task:
    On your table you have a number of cards, each of which represents a court in England and Wales.
    Can you create the hierarchy of the courts using your own knowledge?
    You have five minutes
    If you are stuck...
    There is a clue card to help.
  • 3. The Answer?
    Why is it so important that we know which court is where?
    It allows for consistencyand certaintyin the law
    Generally, the lower courts must follow the decisions of the higher courts, even if they disagree with them
    There are provisions for the higher courts to change their own minds, but the appellant has to wait for his case to get there.
    Supreme Court
    Court of Appeal
    Criminal Division
    Civil Division
    Divisional Courts
    Queen’s Bench
    Chancery
    Division
    Family Division
    High Court
    Crown Court
    County Court
    Magistrates 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.
    Human Rights Act 1998
    European Communities Act 1972
  • 5. Why is precedent so important?
    In England and Wales, we get our laws from two main places (there are others!):
    Appellate courts have more than one judge hearing the case.
    We need precedent to keep judges under control(!), and so that we know what the law is (certainty) and what we can and can’t do.
  • 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. Precedent in Action
    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.
    Judgements Contain...
    Facts of the case
    Certified Question (the appeal grounds)
    Ratio decidendi
    Obiter dicta
  • 8. Student Task
    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...
    Don’t worry about understanding everything that is written.
  • 9. Warning: there can be more than one ratio, especially in the complicated cases!
    Ratio Decidendi
    Means:
    Another example:
    R v Bentham 2005
    Ratio:
    A typical question would be “Explain what is meant by ratio decidendi and obiter dicta” worth 15 marks
  • 10. Obiter Dicta
    Means:
    A typical question would be “Explain what is meant by ratio decidendi and obiter dicta” worth 15 marks
  • 11. Student Task:Can you apply the law correctly?
    Precedent Setting Case:
    A man is driving a 12 year old Ford Escort in a residential area at about 60 mph and runs over an old lady who was using a zebra crossing
    An old man is driving a 15 year old Volvo in a residential area at 50 mph and hits a young boy who was using a pelican crossing.
    A woman is driving at 35 mph in a residential area, and comes round a corner and hits an old lady crossing the street
    A woman driving a brand new Audi is driving down the A5 at 70 mph, and hits a hitchhiker
  • 12. Courts in Practice:A Case Study
    R v Brown
    House of Lords
    R v Wilson
    Court of Appeal
    R v Emmett
    Court of Appeal
    What should the outcome have been?
    Which case should they have followed?
    Ratio:
    What grounds did the court distinguish on?
    Which case did they follow and why?
    Do you agree?
  • 13. How do the judges know what an earlier court said?
    Law Reports
  • 14. How much have you learnt this lesson?
    There are 10 mistakes in this paragraph... Can you find them all?
    Precedent is one of the ways in which Parliament can make and interpret the law. It relies on a strict court hierarchy, which creates uncertainty and consistency, preventing lower courts from confusing the law.
    It relies on the theory of strict decision, which says that a court should always follow the previous decision, where possible, even if it leads to injustice. To decide whether or not the court is handcuffed, the judge should look at the textile facts. If they are sufficient similar, the court is bound to follow the earlier decision.
    Judges must write a report when handing down their decision. This explains what they think the law is in this situation and why. It is important because it provides guidance to other judges. Each law report may contain three things. The first two are the facts of the case, and the question for appeal. The final two are the most important. Firstly, the ration decision, which is the legally binding bit (the test, or meaning of a word). Other things in the report are called obiter dicta, and do not have to be followed, but might be later. For example in the case of Gotts, whose obiter was applied by the Court of Appeal in the case of Howe: duress is a defence to attempted murder
    Precedent is one of the ways in which Judges can make and interpret the law. It relies on a strict court hierarchy, which creates certainty and consistency, preventing lower courts from confusing the law.
    It relies on the theory of stare decisis, which says that a court should always follow the previous decision, where possible, even if it leads to injustice. To decide whether or not the court is bound, the judge should look at the material facts. If they are sufficient similar, the court is bound to follow the earlier decision.
    Judges must write a report when handing down their decision. This explains what they think the law is in this situation and why. It is important because it provides guidance to other judges. Each law report may contain four things. The first two are the facts of the case, and the question for appeal. The final two are the most important. Firstly, the ratio decidendi, which is the legally binding bit (the test, or meaning of a word). Other things in the report are called obiter dicta, and do not have to be followed, but might be later. For example in the case of Howe, whose obiter was applied by the Court of Appeal in the case of Gotts: duress is not a defence to attempted murder
  • 15. Starter:What’s the odd one out?
    Wilson
    Brown
    Emmett
    Howe
    Donoghue v Stevenson
    Re A
    County Court
    Court of Appeal
    Supreme Court
    ECJ
    High Court
    Magistrates Court
    Theft
    Murder
    Insanity
    Material facts
    Ratio decidendi
    Obiter dicta
  • 16. 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
    Persuasive
    Binding
  • 17. Type One:Binding
    Only happens if the are sufficiently similar
    This is what happens 99 times out of 100!
    Must be applied even if the court disagrees with it.
    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.
  • 18. Statements made obiter dicta
    R v Gotts
    Tutton v AD Walter
    Dissenting Judgments
    Hedley Byrne v Heller
    Lower Courts in the Hierarchy
    R v R
    Type Two:Persuasive
    This comes from a number of different areas...
    Courts of Other Countries
    Lister v Hesley Hall Re: S
    R v Rabey
    R v Parks
  • 19. Persuasive Precedent:The Privy Council: A Particular Problem?
    The Privy Council are the supreme appellate court of the Commonwealth.
    Why are they so influential?
    An example:
    Wagonmound No.1
    Forseeability of damage is important in deciding whether a defendant is liable for any damage.
  • 20. ...but does it beat the Supreme Court (House of Lords)?
    The Supreme Court is, but the Privy Council is only .
    So... If the Court of Appeal is faced with two different precedents, one from each court. Who should they follow?
    Recap
    R v James, Karimi 2006
    Manslaughter by reason of provocation. “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
  • 21. So why did they choose the Privy Council?
    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...
    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.
    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.
    What were their reasons?
    1.
    2.
    3.
    Do they think that this will happen again?
    Are they providing a permanent break in precedent?
  • 22. Type Three:Original
    This is the rarest and where there has been no decision on that area before.
    This works by analogy
    Example:
    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
    • 23. The right to a view
    An AO2 Problem?
    Are the judges making brand new law... Or just declaring what the law actually is?
    Hunter v Canary Wharf
    Gillick v West Norfolk AHA
    Airedale NHS v Bland
    McLoughlin v O’Brien
  • 24. Independent Study Task
    Grantiano v RadmacherBrand New Law?
    This is the most recent original precedent created by new Supreme Court
    Using your own research skills... as well as the plentiful resources, you are going to produce no longer than two sides of A4, covering the answers to the following questions.
    Radmacher v Granatino 2010 is a very recent original precedent case from our new Supreme Court. I would like you to find out:
    • The facts of the case
    • 25. The decision by the court
    • 26. Did anyone dissent?
    • 27. Why do you think they decided the case like that?
     
    For the A grade candidates, I would like you to take a look at the article “The value of dissent” from guardian.co.uk and add a paragraph summarising the key reasons that dissenting opinions can be important.
    Warning:
    Copying and Pasting will lead to extra law! It’s called plagiarism
  • 28. How much did you understand?
    Working in pairs, complete the table below with your handouts closed!
  • 29. Finally:Applying Precedent
    Which courts does it apply to?
    F
    O
    R
    D
  • 30. Overrule
    Two different cases:
    later overrules the earlier
    Example:
    Pepper v Hart
    overruling
    Davis v Johnson
    This is either:
    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
    E.g. R v G&R overruling R v Caldwell
    ... or the Court of Appeal using the Young exceptions.
    Example:
    R v R
    overruling
    R v J
  • 31. Reversing
    Examples:
    Same case, further up the hierarchy
    R v Woollin
    CA = uphold conviction for murder
    HL = reverse (manslaughter)
    Supreme Court
    Fitzpatrick v Sterling Housing Ass.
    CA = family doesn’t include gay
    partners
    HL = reverse family can include
    gay partners
    Court of Appeal
    Crown or County Court
    R v Kingston
    CC = D was liable (no defence)
    CA= reverse D was not guilty (defence)
    HL = reverse (no defence)
  • 32. Distinguish
    A court decides that the precedent does not need to be followed
    This relies on the judge deciding that the are not . It can be used by court.
    R v Wilson
    Balfour v Balfour
    Merritt v Merritt
    R v Brown
  • 33. Plenary:Apply the law to these scenarios
    This is a skill you will need to develop for the exams. You have to be able to apply the law, explain why and conclude.
    The Court of Appeal disagrees with a ruling of the High Court and wishes to replace it with another decision
    A judge in the Crown Court does not wish to follow a past precedent of a higher court as she feels that the facts are slightly different.
  • 34. Homework
    You each have a sheet with a number of key legal terms on it.
    We have met all of these over this week. For your homework, you are going to define each of the terms on the sheet.
    12B due Tuesday 20th September
    12D1 due Thursday 22nd September
    12D2 due Wednesday 21st September

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