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  1. 1. 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
  2. 2. Starter: What’s the case? All of you should be able to tell me what the case is (name or facts) Most of you should be able to tell me which area of precedent you would use it to illustrate. Some of you should be able to identify which type of precedent is missing. Till death do us part Zzz Brum. Thwack. Brum. Zzz. Oops. But don‟t you love me? You laugh and I‟ll rock your world Veg out? Baby vs Wall Howe‟d you think we‟d let you leave our gang? Worst plan ever to get out of a contract. Canary wins over TV But you beat each other brown and blue! That‟s not on. Axeually, I can use it. Andrew! I love you, there‟s no butt about it! Son… be a man… kill your mum How much damage can a paper do? Surely that‟s a wheely easy question! You‟re a tool for killing him. Marriages break up, but the paper stays the same.
  3. 3. The Supreme Court Can you remember the key rules? The general rule of precedent which is followed by the Supreme Court is… As long as… It is bound by its own previous decisions. The material facts of the case are sufficiently similar It is also bound by… Court of Justice of the European Union But only on matters of… The interpretation of European Union Law And it may also be bound by…. But only on matters of… And it, in turn binds… The European Court of Human Rights Human Rights under the Human Rights Act 1998 All the courts below it,
  4. 4. What’s the problem? Why can’t they just change their mind when they want to? Well, we have to balance… Certainty and consistency in application of the law. Injustice to a defendant and the need to change the law to reflect more modern circumstances.
  5. 5. The traditional approach of our highest court A bit of history 1898-1966 London Street Tramways v London County Council 1898 ‚Certainty is more important than any individual hardship which might result through precedent‛ How much ‘hardship’ is enough? DPP v Smith 1961 Only option: Leave it to Parliament s.8 Criminal Justice Act 1967
  6. 6. Certainty is a good thing but... The Practice Statement Stare decisis still stands Why does the law need to develop? It is discretionary "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. "Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. "In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. "This announcement is not intended to affect the use of precedent elsewhere than in this House."' Does it apply to other courts? Depart‟ means they will be using which method of avoiding precedent? ?! Why?
  7. 7. …in summary Generally, the House of Lords will consider itself however, they may their own previous decision, being even more cautious if it is a matter of power is . This . Bound criminal law overrule where it appears right to do so discretionary
  8. 8. So when did they use it? Conway v Rimmer 1968 An ex-police officer sued for wrongful prosecution and sought disclosure of some police files. The Home Secretary claimed public interest immunity for all such files. The HL used the statement to remove this presumption: a small evidentiary ruling. but Knuller v DPP 1973 “in the general interest of certainty in the law we must be sure that there is some very good reason before we act.”
  9. 9. First Use of Statement in Civil Law Change in Social Conditions BRB v Herrington (1972) overruling Addie v Dumbreck (1920)
  10. 10. Other civil examples: Change in Economic status Miliangos v George Frank Ltd overruling Havana Railways 1968
  11. 11. Other civil examples: To Create Certainty Murphy v Brentwood DC (1990) overruling Anns v Merton BC (1977)
  12. 12. What’s the word or phrase? Supreme Court Practice Statement ter 10 Consistency
  13. 13. Other civil examples: To Help to Develop the Law Pepper v Hart 1993 overruling Davis v Johnson 1979
  14. 14. Other civil examples: To update the law A v Hoare 2008 overruling Stubbings v Webb 1993
  15. 15. What about the Criminal law? The court was even more cautious here... as there is an „especial‟ need for certainty.
  16. 16. First Use of Statement in Criminal Law R v Shivpuri 1986 Overruling Anderton v Ryan 1985 Thinking: Does it matter that the decisions were less than a year apart? “I am undeterred by the consideration that the decision in Anderton v Ryan was so recent. The practice statement is an effective abandonment of our pretension to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better. “ Simply put: yeah, we make mistakes. Let‟s correct it!
  17. 17. Other Criminal Uses... R v Howe 1987 overruling DPP for NI v Lynch 1975
  18. 18. Other Criminal Uses... R v R 1991 overruling R v Miller 1954
  19. 19. Other Criminal Uses... R v G&R 2003 overruling R v Caldwell 1982
  20. 20. So when will they use the Practice Statement now?  To correct their own previous errors; and  To develop the law to reflect the changing social and economic status. But There are some areas they will not change, and leave to Parliament C v DPP (1995) This is all about the age of criminal responsibility. 10-14 presumption of „doli incapax‟
  21. 21. What about the UKSC? Could they have done something different? Did they do something different? Should they have done something different? Austin v Southwark LBC 2010 UKSC Practice Directions 3 &4 Got it? Prove it by answering the question: when will the Supreme Court overrule itself.
  22. 22. Stop and Check… All of you should be able to match up the cases to a picture Most of you should be able to divide them into civil and criminal cases Some of you will be able to identify why the PS was used,
  23. 23. Can you apply the knowledge? (a) Source B both refers to the Practice Statement. Describe the use of the Practice Statement using the Sources and other cases. [15]
  24. 24. Starter: How many can you answer? The very first use of the Practice Statement was in… Year the Practice Statement came into effect… Date it was first used in the criminal law… Cabbage case, and the first use of the Practice Statement in the Criminal Law… Court(s) which the Practice Statement can be used in… Name: Name: Name: Name: Name: Grounds for using the Practice statement… Case overruling Lynch on duress as a defence… Most recent use of the Practice Statement,,,, Practice Direction numbers which confirm the UKSC can use the Practice statement… Reason for the first use of the PS in the civil law (Herrington) Name: Name: Name: Name: Name: Reason to allow the Top court to overrule its previous decisions Which area of the law are they particularly reluctant to change their mind in? Which case was the PS used in to take into account changing economic standards? Case overruled by G&R. Case which shows the unfairness of the approach before the PS. Name: Name: Name: Name: Name:
  25. 25. (a) Source A and Source B both refer to the Practice Statement. Describe the use of the Practice Statement using the Sources and other cases. [15]
  26. 26. Look at the Practice Statement Question you have been given… Use the form to complete the feedback on the answer you have read.
  27. 27. On to the next Court: Reminder of rules... The CA is bound by and the . There are two divisions in the CA: the Each division only binds , as well as and the . . 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 Supreme court. overrule distinguish Practice Statement Criminal itself Supreme Court ECJ Civil ECtHR reverse Its own previous decisions
  28. 28. Young v Bristol Aeroplane 1944 This is really the Court of Appeal’s version of the Practice Statement. It allows them to avoid their own precedent in limited circumstances. The previous decision was made per incuriam There are conflicting CA decisions (they have to pick one!) The CA’s earlier decision is inconsistent with a later UKSC decision
  29. 29. Exception One: 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
  30. 30. Exception Two: There are two previous, conflicting decisions from the Court of Appeal Starmark Enterprises v CDL Enterprises 2001 The court decided the later decision was wrong, and followed the earlier. 1. Why might this happen? AO2 Thinking: 2. What if it is a matter of criminal law?
  31. 31. Exception Three: There is a later, conflicting decision from the Supreme Court Why might this situation have arisen? Fitzsimons v Ford Motor Co 1946 Ignored their own decision in Steel v Cammell Laird 1905 Following instead the HL in Burrell v Selvage 1921 Thinking: Is this really an exception to the rules on precedent? What will have to be “sufficiently similar” about the two cases?
  32. 32. When I said three rules.... …There is more flexibility in criminal cases If the prior case ‚misapplied or misunderstood‛ the previous law. Why allow this? “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.” Spencer 1985 R v Gould 1968 How many times can you accidently marry?!
  33. 33. Other issues affecting precedent in the Court of Appeal… Court of Justice of the European Union European Court of Human Rights Privy Council The ‘other’ division Original Precedent
  34. 34. Plenary: Which sentences sum up your understanding of today’s lesson? Thinking back to your DRAG test… I am confident with my understanding of statutory interpretation and happy with my progress in the test. I am reasonably happy with my understanding of statutory interpretation and my progress in the test. I am not happy with my understanding of statutory interpretation and my progress in the test.* *if you select one of the these, on your post-it explain why. Thinking forward to the CA and today’s learning… I am able to understand most of the grounds under which the CA may overrule its prior precedent. I understand at least one of the occasions under which the CA may overrule its prior precedent. I do not understand when the Court of Appeal can overrule its previous precedents.*
  35. 35. Starter: Supreme or just court up in an appeal? Can you identify the case… and identify in which appellate court the case was heard. A-B Challenge: what were the grounds for overruling in each case?
  36. 36. Applying the Law: Do you understand the courts‟ powers? (b) Identify and explain what the courts can do in the following situations, using your knowledge of the rules of stare decisis. (i) A case comes before the House of Lords in 1960. An earlier decision of the House of Lords in 1920 on the same matter is now believed to be out of date. Now complete Questions ii and iii..  Decision as to what they can do (follow or depart)  Why!  Example or supporting evidence  Any other relevant point e.g. Explaining the case or linking to the source. Or another way they may use or something else! 1 mark 2 marks 3 marks 5 marks
  37. 37. Student Task: Now, use that to compose your own answers to ii and iii Hint: look at the court and the year for guidance! A case comes before the Court of Appeal (Civil Division) in 1950. An earlier decision of the Court of Appeal (Civil Division) on the same matter was made in error. [5] Level Content… A case comes before the UK Supreme Court in 2012. An earlier decision at the UK Supreme Court from 2011 on the same matter is now believed to be wrong. [5] Level Content… 1 Recognise that the instant court can overrule the decision of the earlier court 1 Recognise that the instant court can overrule the decision of the earlier. 2 the earlier decision was per incuriam which is one of the recognised exceptions under Youngs v Bristol Aeroplane (1944) 2 because the new UK Supreme Court has stated that the Practice Statement 1966 continues to apply in the same way as it did in the House of Lords. 3 Use a relevant case – Williams v Fawcett (1986), Rowe (2007) 3 Credit reference to Austin v Southwark LBC (2010) or directions 3&4 4 Consider also the possibility of distinguishing. Credit any relevant distinguishing case. Credit relevant reference to the source 4 Consider the possibility of distinguishing. Credit any reference to a relevant distinguishing case. Credit relevant reference to the source
  38. 38. The Issue: Should the Court of Appeal be able to ignore decisions of the House of Lords [UKSC] which are wrong or outdated? …after all they hear far more appeals, so more scope for unfairness and „wrong‟ decisions …but the Supreme Court is Supreme for a reason! If the CA can just overrule them, what‟s the point in having another court?! Denning v The House of Lords.
  39. 39. In Summary… Lord Denning’s arguments… Argument One: By introducing the Practice Statement, the House of Lords was bringing in a whole new, more flexible, way of dealing with precedent. Argument Two: The Court of Appeal created the Young criteria, so they can change them (it‟s only updating the law after all!) Argument Three: If the House of Lords is making decisions which are per incuriam, why on earth should the Court of Appeal follow something that they know to be wrong in law? Argument Four: It is the final appeal court for many, so in fairness should have the same powers as the House of Lords/Supreme Court.
  40. 40. How did the fight proceed? Conway v Rimmer 1968 Broome v Cassell 1971 Schorsch Meier/ Miliangos 1976 Davis v Johnson 1979
  41. 41. The final round: In their own words Firstly… Read Denning‟s own words! Can you find evidence to support each of his arguments? Now, consider the counterargument… and decide… The Court of Appeal should be free to ignore the Supreme Court where it feels it is right to do so All of you should be able to decide whether or not you agree with this statement. Most of you should be able to support that statement with reference to judicial opinion to support it. Some of you will be able to link your thinking to other areas of precedent.
  42. 42. Now you have a go! Using the advantages and disadvantages grid, develop one of them into a well discussed, level four point.
  43. 43. Got a date? 1944 Young v Bristol Aeroplane Allowing the CA to overrule itself 1966 Practice Statement Allowing the SC (HL) to overrule itself 1968 Conway v Rimmer First use of the practice statement 1972 Herrington v BRB First use of the practice statement in the civil law 1986 R v Shivpuri First use of the practice statement in the criminal law 2008 R v Hoare Most recent use of the practice statement
  44. 44. Consolidating your understanding...
  45. 45. Cii: The Hardest Question on the paper! Guidance from the Examiner:  Responses will be unlikely to achieve level four without four or more developed points. One of which must be well developed. Cannot be one – sided (i.e. must consider both sides of the argument at bottom level four) and must have balance for top level four.  Responses will be unlikely to achieve top of level three without four or more developed points or two well-developed points. Three or more developed points for the bottom of level three. (Can be one – sided).  Responses will be unlikely to achieve top of level two without two developed points or one well developed point or a range of limited points.  Responses will be unlikely to achieve level one without basic points advantages and/or disadvantages.
  46. 46. Now develop a full, 15 mark response using the plan on p.18 Discuss the advantages and disadvantages of the system of precedent [15] Introduction Main You don’t need one, but if you freak, use the words of the question, and introduce one argument. Point Because Ensure that you identify at least five issues, and are able to support them with a clear reason and/or evidence. Cover both parts of the question... and both sides of the argument. A Grade: Support your counterarguments with clear reasoning and supporting evidence. Conclusion Using the key words of the question, reach a decision and explain why. Illustration/and... However & why
  47. 47. Remember… you have this for help!
  48. 48. So what should a level four look like? As the source says on line 17, the courts in England and Wales treat previous decisions of higher courts as as “normally binding”. This is an advantage as it helps to create certainty with everyone knowing what the law is and therefore able to continue their public and private relations clearly. The Supreme Court has shown this recently in the case of Grantanio v Radmacher, where the decision on the validity of prenuptials has helped to clarify the law in this area. However, because they have to wait for the Supreme Court to issue a ruling this can create uncertainty especially as the lower courts might decide something differently, as in this case.
  49. 49. Plenary: Checking your understanding! Answer one of the following questions on your post-it Remember: you should pick the one you are most confident with A Evaluate whether the Practice Statement has been used appropriately. B Explain what Lord Denning’s argument regarding the powers of the Court of Appeal was. C Describe when the Supreme Court may overrule itself, and illustrate with a case D Identify two ways a court can avoid the precedent of another court. E Tell us what is meant by precedent and when a court must follow another.