1. Precedent How much can you remember? ... And the Practice Statement G152: Sources of Law 2009-10
2. Match the three! You cannot possess that which is a part of you R v Bentham “the previous decision should stand” Stare decisis R v G& R in the Court of Appeal... Following the earlier decision of R v Caldwell Obiter dicta “binding point of law” Nor should duress be a defence to attempted murder because it requires a more evil intent. R v Howe Ratio obiter “Other things said”
4. How to apply precedent. This means: Any Court can use it: T/F An example is... This means: Any Court can use it: T/F An example is... FORD This means: Any Court can use it: T/F An example is... This means: Any Court can use it: T/F An example is...
5. And now for something new.... How can the House of Lords (or Supreme Court) avoid precedent? Why would it want to? Why might it not want to? It is also quite old! ...or at least those in it are old!
6. By the end of this lesson you will understand: What the law making potential of the HL is. How they can create law through original precedent What the Practice Statement 1966 is and how it is used by the HL
7. What are the powers of the HL? Technically... They can do whatever they want! But....
8. Bit of history now.... London Street Tramways v London county Council 1898 “Certainty is more important than any individual hardship which might result through precedent” 1898-1966 DPP v Smith 1961 s.8 Criminal Justice Act 1967 What’s the problem?
9. Certainty is a good thing but... Stare decisis still stands "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 modifytheir 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."' It overrules the previous decision Why does the law need to develop? ?! Why? It is discretionary Only applies to the HL...
22. Can you make a claim for damages against your rapist when the six year limitation has expired?
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25. Less than a year between judgements“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!
26. Other cases... R v Howe 1987overruling DPP for HI v Lynch 1975 R v G&R 2003 overruling R v Caldwell 1982 Crime? Crime? Facts? Facts?
27. Err... So when willthey use it 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 e.g. C v DPP (1995) ... Who do sometimes act (they changed this in 1998 under the Crime and Disorder Act s.34
28. Tasks: Should the House of Lords be able to change its mind? 1. Read the enclosed article by Gary Slapper, and then answer the questions.... Has the Practice Statement been used appropriately? How might the practice statement affect the potential law making power of the HL?
