The Court ofAppeal & PrecedentHow can you avoid precedent in the CA... .....And should they have more powers? Miss Hart G152 2010-11
Introductory Thinking...Can you name the word or phrase meant by each of the pictorial clues? Follow Reverse Re Overrule Distinguish ting x er
DominoesHow well were you learning last lesson? You have a whole pack of „dominoes‟ on your table, which refer to what we learnt last lesson. Can you put them together in the right order? Hint: start by finding the start and the end cards!
Reminder of rules...The CA is bound by and the , as well as .There are two divisions in the CA: the and the .Each division only binds .Generally, the CA considers itself bound by .It can , of course, , or the decision of alower court. However, it can not use the tooverrule the Supreme court. overrule distinguish Civil ECJ Practice Statement itself ECtHR reverse Criminal Supreme Court Its own previous decisions
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 CA does not have to follow its own previous decision where... The CA’s earlier The previous There are conflicting decision isdecision was made CA decisions (they inconsistent with a per incuriam have to pick one!) later HL decision
Exception One: If the previous decision was made per incuriamThis 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
Exception Two:There are two previous, conflictingdecisions from the Court of Appeal Starmark Enterprises v CDL Enterprises 2001 The court decided the later decision was wrong, and followed the earlier. AO2 Thinking:1. Why might this happen? 2. What if it is a matter of criminal law?
Exception Three: There is a later, conflicting decision from the Supreme CourtWhy 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?
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 R v Gould 1968 authority is necessary in theinterests of justice to an appellate How many times can you then this court should not shrink accidently marry?! from so acting.” R v Spencer 1985
Can you beat Miss Hart? Can you make this the perfect description? The Supreme Court is not generally bound by its own decisions. Following thePractice Statement 1966, the Court is allowed to overruleitself when it appearsPractice Statement 1968, the Court is allowed to reverse itself when it appearsok to do do so. addition, there is aisspecial need for certainty in the criminal law. right to so. In In addition, there a especial need for certainty in the criminal law. It was used for the first time properlyBRB v Herringbone, where they It was used for the first time properly in in BRB v Herrignton, where they decided that society now owed child trespassers a duty of care. In addition, the Court of Appeal may avoid its own previous decisions by usingone of the three exceptions from Young v Bristol Aeroplane. These thatthat they two exceptions from Old v Bristol Aeroplane. These are are they can can avoid a decision ifisitmade proper incuriam (in error), there is an an later avoid a decision if it is made incuriam (in error), or or there is earlierdecision of the Supreme Court. They can also avoid it if there are two previous decisions, they must follow the one which is the most beneficial to the defendant.
Other issues affecting precedent in the Court of Appeal? European Court of Justice As with all other courts in England and Wales, the Court of Appeal is bound by interpretations of EU law from the ECJ Privy Council European Court of Human Rights Recap time! Attorney-General for Jersey v Holley If there is a decision by the European Court of 2005Human Rights then the court should ‘take account followed inof them’ and the Court of Appeal can follow them R v James, Karimi 2006 instead of the Supreme Court. rather than R v Morgan Smith 2000Re Medicaments 2001 Area of the law covered? The divisions don’t bind each other Can they create precedent?Re: A (Conjoined Twins) 2000 Re: A (Conjoined Twins) 2000“Necessity is a defence to murder” but this was Re: S (refusal of medicalsaid in the civil division, so can only be treatment) 1992 on the criminal division.
Student task: Do you understand the court’s powers?(b) Consider each of the following situations and explain whether or not the Court of Appeal candepart from the previous decision.(i) A case concerning a death resulting from medical negligence was heard by the Court of Appeal(Civil Division). A year later, a similar issue is being heard by the Court of Appeal (Criminal Division). Marking Work Pass your answers to the persongo!the left. Now you have a on You are now going to mark the work you have been given. (ii) A case concerning breach of contract (iii) A case concerning murder was was decided by the Court of Appeal (Civil Decision as to whether they can depart Division). Days later a similar issue is decided by the1 mark Lords. The House of Court of Appeal (Criminal Division) Why they the depart heard by the same court butcan judges 2 marks believes the decision of the House of Example now feel that the decision should be 3 marks Lords is out of date. different. Any other relevant point e.g. Explaining the case 5 marks
Denning v The House of Lords. The Question: Should the Court of Appeal be able to ignore decisions of the House of Lords which are wrong or outdated?
So what was Denning’s actual argument?Argument One: By introducing the Practice Statment, 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.
How did the fight proceed?Conway v Rimmer 1968 Broome v Cassell 1971 Schorsch Meier/ Miliangos 1976 Davis v Johnson 1979
Who wins?Read the arguments from Lord Diplock, and Lord Denning and answer the questions.Who do you think has the strongest argument?
Applying the law You are going to see a range of problems. In each, decide whether the earlier court must follow the earlier, or there is a way to avoid.A case is decided in the Crown Court. A similar case reaches the Court of Appeal 1 year later.A case involving the civil law of negligence is decided in the Court of Appeal. One week later, anothernegligence case reaches the Court of Appeal but it has slightly different facts.A case decided in the House of Lords in 1993. A similar case reaches the Court of Appeal in 2003A case decided in the House of Lords in 1993. A similar case reaches the House of Lords in 2003The Court of Appeal sets a precedent in a criminal case. Six months later, it wishes to change the precedentin a similar caseThe House of Lords sets a precedent in 1954. A similar case reaches the House of Lords in 1965The House of Lords sets a precedent in 1954. A similar case reaches the House of Lords in 1969The divisional High Court decides a case in 2005. The High Court ordinary hears a similar case in 2006The Supreme Court makes an obiter dictum relating to the criminal offence of attempted murder. The Courtof Appeal hears an attempted murder case 3 weeks later.The Privy Council sets a new precedent in an Australian case. A similar case reaches the House of Lords 1year later.
There are no Can update the Judges can use Practical response torules governing law to reflect analogy to help them the actual facts of thewhen persuasive changing social with new situations case precedent is standards used. The law can Respects The develop It leads to an orderly and the Court Too much naturally natural development of the separation ofdistinguishing or law. of powers Appeal Too many use of Practice can ways to Statement Bad decisions are Distinguishing can be follow avoid damages perpetuated since done on irrelevant the Precedent certainty lower courts must grounds Privy follow higher Flexibility There can be a Restricts the Council courts lot of detail in development ofthe explanation Very few cases get to Provides certainty and the lawwhich can help the Lords which is the consistency in law. with only court which can Can be inconsistent application overrule one of it’s own retrospectivity previous decisions. Saves time Difficult to There are so many cases distinguish Can only change if a Judges have that it is hard for judges tobetween ratio real case is brought. clear cases and find relevant cases and and obiter This can be expensive! rules to follow. the ratio may not be clear.
Which is the odd one out?1. Pepper v Hart 1. Knuller v DPP 1. 19662. R v Gould 2. Herrington v BRB 2. 19443. R v Howe 3. Miliangos 3. 1922 1. Hunter v Canary1. R v Howe 1. R v Brown Wharf2. R v G&R 2. R v Emmett 2. Re: A 3. Grantanio v3. A v Hoare 3. R v Wilson Radamacher
Starter: Name the case Twins But if you’ll just Fuzzy TV, Evil How muchforever, never to lett ‘er love me. developers damage can a be parted I’ll rock her world! paper do? Re: A R v Rabey Hunter v Canary Wharf R v G&R Grannies are Oi! These are Pain for pleasure Listening to dad, more exciting me tools. Hic. is too strange for almost killedthan you think! Die. Lords mum R v Wilson R v Smith (Morgan) R v Brown R v Gotts Fingers meant Howe about me It was probably Axeually, I will leaving this gang? breast that he freedom! use it (sob, hic) Else it might be the didn’t set it alight! death of me! and die! R v Bentham R v Howe R v Emmett Attorney General for Jersey v Holley
This is what the exam will look like...There are sources whichcontain information you Questions A & Ci arecan use ... And should! marked for AO1... Detail, depth and examples! Question B are short application questions you’ve already had a go at some of these) marked for AO2... And the answers are in the source! Question Cii is the hardest on the paper. It is marked for AO2, but will require you to discuss or evaluate an area of the law (normally the one you have described in Ci)
What information is there in the source to help us? Exam Tip: There will be at least 24 marks available from the source... So use it!
So what type of skills do you need for AO2 Essays? Example: You need to be able toexplore the topic in somedetail, giving evidence and One disadvantage of precedent is that it can be too developing an effective strict. This may lead to injustice for a defendant, as discussion of the key in the case of DPP v Smith where D ended up issues. hanging, even though the House of Lords said that their previous assumption was wrong. Which word describes However, although the Courts can lay out a number your skills in this of strict rules, there are also, as it says in Source A question? lines 10-14 a number of ways around it. These ways, such as distinguishing, allow judges to avoid Explain E unfair precedents and provide a more just Evaluate C solution, as in Wilson, where the Court of Appeal was able to distinguish from a decision of the House Analyse A of Lords which would normally be binding.
Homework Year 12 1. Produce a set of case cards covering 10 essential cases on precedent Due 18th November 2011 2. Write up your reponse to Ci and Cii precedent questions 12D1Thursday 10th November 12D2Wednesday 9th November 12B Tuesday 8th November
Are these the ratio or obiter of the case? “you cannot consent “you cannot possess “you owe a duty of to harm which is that which is a part care to your more than transient of you” neighbour” and trifling” “Duress is not a “Duress is not a “necessity is a defence to defence to murder” defence to murder” attempted murder” And can you name and match the picture to the example?Donoghue v R v Gotts Re A R v Brown R v Bentham R v Howe Stevenson
Starter:Are you as confident as you thought you were? You have your five questions on precedent in front of you... You have five minutes to answer them!
You have Time’s 10 11 12 13 14 1 2 3 4 5 6 7 8 9 15 Up!minutes left
Looking at their essay, identify theirABC Absolutely fantastic thing they have done. Better if they did... This last one is for you when you get the response back... Confidence with this style of question
Mark Scheme for this questionLEVEL 4 Good, well-developed knowledge with a clearunderstanding of the relevant concepts and principles. 13-15Where appropriate, candidates will be able to elaborateby good citation to relevant statutes and case-law.LEVEL 3 Adequate knowledge showing reasonable 9-12understanding of the relevant concepts and principles.Where appropriate, candidates will be able to elaboratewith some citation of relevant statutes and case-law.LEVEL 2 Limited knowledge showing general 5-8understanding of the relevant concepts and principles.There will be some elaboration of the principles, andwhere appropriate with limited reference to relevantstatutes and case-law.LEVEL 1 Very limited knowledge of the basic conceptsand principles. There will be limited points of detail, but 1-4accurate citation of relevant statutes and case-law willnot be expected.
You have Time’s 10 11 12 13 14 1 2 3 4 5 6 7 8 9 15 Up!minutes left
Checking your understanding? How confident are you with everything we have learnt so far? Answer one of the following questions on your post-it Remember: you should pick the one you are most confident withA 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 caseD 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.
Extension: Can you apply precedent in action? Match up the cards to demonstrate your understanding 3. Match up each 1. Group all the to what the court cards with the 5. Find an thinks... example!precedent setting court. 4. What approach 2. Match each to must they take to the court hearing resolve the the case problem?