MAH 2013-14

Precedent:
The Mechanics

(aka what it is and how it works)
Judicial Precedent:
Some absolute basics

Our two
sources of law...

An example of common law precedent:

An example of st...
Hierarchy of the Courts:
How good is your memory or learning so far?
Student Task: You’ve seen this before…

Supreme
Court...
What about Europe?
As you know, we are members of the EU and have given legal power to the European Convention
on Human Ri...
Absence Work for 7.1.2014
2. Using your research skills (and the supreme court of
England and Wales' own website might be ...
What is Precedent?
A judge must follow any decision by a higher courts in a
case with similar material facts.
Courts shoul...
The all important Law Report
Central to the operation of precedent!

How it works
In the appellate courts,
judges have to ...
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 Cou...
Now try being the judge who has to apply the ratio...
Scenario
Louis wants to rob Bob and, as he has
forgotten his gun, us...
So how do the courts actually find one of these lovely reports?
After all... We’ve got reports dating back to the 1400s!

...
Courts in Practice:

A Case Study
R v Brown

R v Wilson

R v Emmett

House of Lords

Court of Appeal

Court of Appeal

Wha...
Ratio Decidendi
Case

Facts

Re A (Conjoined
Twins)

Jodie & Mary were conjoined
twins, and doctors sought a
declaration t...
Obiter Dicta
Case

Facts

Ratio

Obiter

Applied
in...

R v Howe

Duress is not a defence to
murder

Gotts

Donoghue v
Ste...
Task:

On your post-it (or on the inside of your booklet… or really
anywhere...) have a go at answering these!

E

Why the...
Starter:
The all important Law Report
Central to the operation of precedent!

How it works
In the appellate courts,
judges have to ...
Different Types of Precedent?
Today we are going to look at the different types of precedent which may be
created by a cou...
Type One:

Binding
Only happens if the

Court

are sufficiently similar

Binds?

SC
CA
DC
Example:

R v G & R (CA)
Had to ...
Original
Type Two:

Example:

Hunter v
Canary Wharf
Hunter v Canary Wharf
The building of Canary Wharf
interfered with the...
Can the lower courts create original precedent?

The short answer is, that in theory, yes!
Although most original preceden...
Type Three:

Persuasive Precedent
This comes from a number of different areas...

Statements made
obiter dicta

Dissenting...
Persuasive Precedent:

The Privy Council:
The Privy Council are the supreme appellate court of the Commonwealth.

Why are ...
...but does it beat the UKSC where the CA is
concerned?
The UKSC is binding and the PC is only persuasive.
So which should...
But why upset all those years of tradition?
43. What are the exceptional features in this case which justify our
preferrin...
True or False?
1. The majority of precedent is binding.
2. The Supreme Court does not bind itself

3. The Divisional Court...
The final step…

Applying Precedent
Which approach will
the court take?

Distinguish

Reverse

Follow

Overrule
Overrule

How does this come
about?
1.

Two different cases:
later overrules the earlier

2.

Example:

R v Shivpuri

High...
Reversing
Same case,
further up the hierarchy

Supreme
Court

Supreme
Court

Examples:
R v Woollin
CA = uphold conviction ...
Distinguish
A court decides that the precedent does not need to be followed

This relies on the judge deciding that the
It...
Progress in Law
How well are you doing… and what can you do better?

What are you going to do?

Some general Feedback:
 U...
Applying the law
(with a little source of help)

Key points...
Source is there to be used!
 You have to use it to get ne...
Using the source and your knowledge, explain and illustrate what is meant by
persuasive precedent.
Using the source and your knowledge, explain and illustrate what is meant by
persuasive precedent.
Now you have a go at planning…

Using the source and your knowledge, explain and illustrate what is meant by
distinguishin...
Write it up!
You have fifteen minutes to write up your
response.
You should focus on including five clear
points, well exp...
Starter:

Can you match the information correctly?
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...
Assessing your application
In your books, you will have 10 minutes to write up the last two questions.

Now find someone w...
Can you name the case?
1 point for name, 1 point for facts

1

8

2

Developing your
knowledge further.
Can you identify.....
You are going to work
together to produce a

revision aid to the

Consolidation

mechanics of precedent.

You need to incl...
You’re the expert witness...
One member of each group is going to become the expert...
Travelling round and ensuring that ...
Brainstorm Option One…
Brainstorm Option Two…
Was your information good enough?
Can you answer these six questions?

1. What is precedent?

2. Explain and illustrate wh...
How confident are you feeling with the
application skills?
Put your initials on the line...

I have no clue and
do not und...
What have the following got to do with the
topic we have been doing?
Look at the following pictures... Link at least one (...
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Mechanics2013 14

  1. 1. MAH 2013-14 Precedent: The Mechanics (aka what it is and how it works)
  2. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
  15. 15. Starter:
  16. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 26. The final step… Applying Precedent Which approach will the court take? Distinguish Reverse Follow Overrule
  27. 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. 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. 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. 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. 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. 32. Using the source and your knowledge, explain and illustrate what is meant by persuasive precedent.
  33. 33. Using the source and your knowledge, explain and illustrate what is meant by persuasive precedent.
  34. 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. 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….
  36. 36. Starter: Can you match the information correctly?
  37. 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. 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. 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. 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. 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.
  42. 42. Brainstorm Option One…
  43. 43. Brainstorm Option Two…
  44. 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. 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. 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!

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