Intro to studying AS Law and Precedent (using duress cases)

1. Queensbury
Law AS

2. The Basics...
100% Exam
2 Units
2 Papers
2 Days
The AS is worth 50% of the
overall A level grade.
What skills will you need to be a
successful law student?
The ability to write detailed essays
The ability to retain a lot of factual
information
The ability to be punctual and equipped
The ability to meet deadlines
 The ability to work independently

3. Miss Hart’s Essential Rules
 On time &
Attend
 Equipped
 Try your best
 Complete your
homework on
time each week
 Correct attire
 Pride in your
work and books
Further help… all you have to do is
ask!
hartm@queensburyacademy.com

4. What will we cover this year?
English Legal
System
We will follow the whole system
through... from the police to
the conviction, sentencing and
appeal...
And learn what it will take to be
a lawyer!
1 x 2 hour exam
4 question – a mix of essay &
problems.
Sources of Law
Basically, this will show you
where we get laws from, how
we make them and how we
figure out what they mean
We will look at both how
Parliament and how the
Courts create law.
1 x 1 hour exam
1 complete question – a mix of
essays & short problems.

5. How legal is your brain?
So, whilst we get a lot of law from Parliament, we are also a common law jurisdiction and so
this means that our courts also create and develop law.
Duress is a criminal defence which has been created by the courts. Simply put, duress means
that you are arguing you were made to do it, and didn’t want to.
On your tables are 6 cases on the topic of duress. Using the information…
All of you should be able to identify a reason as to why the defendant was successful or not in
pleading it in that case.
Most of you should be able to work out at least two tests a defendant must pass in order to
successfully plead duress
Some of you will be able to decide whether Louis would be successful in his plea or not and why.

6. R v Sharp
D was a bagman for a group of
armed robbers. They robbed a
post office, and whilst D was
outside the door with the loot
(in the bag) killed the Post
Master.
D had taken part in a number
of robberies before with the
gang, but said that he only took
part in this one because he was
worried they would hurt him if
they left.
D was convicted and his appeal
was unsuccessful

7. R v Shepherd
D was a member of a
shoplifting gang. They used to
work in groups and distract the
staff, before taking the goods.
D wanted to leave, and the
gang threatened violence unless
D continued to commit the
thefts with them. D committed
a further theft with them.
D was successful in pleading
duress.

8. R v Cole
D borrowed money from a
money lender and hadn’t paid
it back. The money lender
threatened to harm D, his
girlfriend and their young baby
unless he got his money back.
D robbed two banks.
D was convicted and his appeal
was unsuccessful

9. R v Singh & Meeuwsen
DD went into a port to help illegal immigrants who had been
smuggled into the country in a boiler, to pass through
customs.
Meeuwsen said he only did this because X threatened to
reveal his affair to his wife if he didn’t
D was convicted and his appeal was unsuccessful

10. R v Howe
D was a member of a gang
which tortured and killed
people. He wanted to leave,
but they threatened to kill
him unless he stayed. D and
the gang killed and tortured
another man. D was charged
with murder and pled duress
as his defence.
D was convicted and his
appeal was unsuccessful

11. R v Valderrama-Vega
D was a Columbian national
threatened with death and
the revelation of his sexuality
to his family unless he
smuggled drugs into the UK.
He was arrested bringing in
the drugs. He pled duress.
D was acquitted

12. R v Wright
D was a British national
threatened with the death of
her boyfriend unless she
smuggled drugs into the UK.
She was arrested bringing in
the drugs. She pled duress.
D was acquitted

13. You can only plead duress successfully if…

14. Got it?
Louis owes Sam, the local drug dealer, £300.
Sam says he is going to smash Louis’
brother’s legs unless he gets the cash. Louis
steals the cash from his Gran. Theft
He is also having an affair with Diana, who
says she is going to tell his wife about them
unless he steals a diamond ring from the
shops for her. Theft
He steals the ring, and then Diana demands
that he kill his wife so that they can be
together or she will harm their son, Alvin.
Louis puts poison in his wife’s drink and she
dies. Murder
Can Louis successfully plead duress to any
of these charges?

15. Did you remember?
That never would have
happened to Postman
Pat!
Were they just rounding
up the shoplifters?
That’s not a fair defence
to argue!
It’s a good thing he
wasn’t Mr Wrong
Name or facts Legal ruling from the court?

16. What is the point?
Well, what you have done is what the judges in the appeal courts do…
… they look at the law that has come before, the reason for those
decisions and then whether or not those cases apply here – haver the
facts changed? Are there real differences between the cases?
This use of legal rules and their application is known as precedent
and is the first topic we will look at on this side of the course this year.
Binding Distinguishing
Task: Can you find an example of each of these in the duress cases?
N.B. each example will be a pair of cases

17. There’s one more thing key to the
operation of precedent…

18. Why is precedent so important?
In England and Wales, we get our laws from two main places (there are others!):
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.
Who?
What’s it called?
Example?
Who?
What’s it called?
Example?
Appellate
courts have
more than
one judge
hearing the
case.

19. Court up in your knowledge!
On your table you have a number of
cards, each of which represents one
type of court in England and Wales.
Can you create the hierarchy of the
courts using your own knowledge, with
the most powerful court at the top and
the least powerful at the bottom?
You have
four minutes

20. 1. The High Court is not really
so High.
2. All the cases can go through
the Magistrates
3. The further up the less cases
they hear.
4. Three is the magic number
for dividing.
A little help?

21. 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
Why is it so important
that we know which
court is where?
Generally, the lower
courts must follow the
decisions of the higher
courts, even if they
disagree with them…
We call this being bound
It allows for
consistency and
certainty in the law
There are ways for the
higher courts to change
their own minds, but the
appellant has to wait for
his case to get there.
Did you get it?

22. What about Europe?
As you know, we are members of the EU and thus 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

23. Some detail and terms for you to use!
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
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.
The General Rule:

24. 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...
1. Facts of the case
2. Certified Question (the
appeal grounds)
3. Ratio decidendi
4. Obiter dicta
You might want to write in your own
definitions in the terminology box on
the front of your handout!

25. Now let’s look at an actual case
report!
In your handout is the case of
R v Bentham.
This is a full case report from the House of Lords
(now the Supreme Court).
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 (what happened)
Most of you could be able to find the ratio & certified question
Some of you maybe able to find obiter.

26. What does that ruling mean for
these guys?
Scenario Bound? Why?
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.

27. Courts in Practice:
A Case Study
R v Brown
House of Lords
The precedent
setting case…
R v Wilson
Court of Appeal
The following
decision…
Are they bound?

28. R v Emmett
So what will the court do here?
Consolidation:
Do you agree with the approach of the Court of Appeal in Emmett?

29. 10 minutes
No notes… lollipop
Notes… sticker

30. How do the judges find what an earlier court said?
Law Reports
Use the textbooks to get used to where
information is, and complete a summary on each
of the following cases:
 R v R
 Collins v Willcock
 Woollin
 AG for Jersey v Holley

31.  A case is heard I the Magistrates
Court. A case with similar facts was
heard two months earlier in the Court
of Appeal
 A case is heard in the Court of Appeal
(criminal) division. A similar case was
heard in the Queen’s Bench Division.
 The crown court is hearing a case. The
facts are very similar to one they had
heard two weeks ago.
 A case is heard in the Magistrates
Court. The magistrates want to
change the law, but there is a
previous case with some similar facts
decided by the Supreme Court two
weeks previously.
On your whiteboard decide
whether they are bound or free
Plenary:
Have you got the essentials from last lesson?

32. What’s the word?
Each of the boxes contains a word or phrase related to
precedent… can you work out what they are?
Appellate Court of first instance
D
obiter Material facts

33. Have you got all the knowledge?
Ratio:
Case Facts Ratio More ratio...
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.
Use everything you have learnt,
and the cases we have looked at
to identify three examples of ratio,
which you would be able to
explain.
Tip: remember the duress cases?

34. 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.
R v
Winters
Have you got all the knowledge?
Obiter dicta

35. 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
Binding
Original
Persuasive

36. Type One:
Binding
Only happens if the
are sufficiently similar
Court Binds? Bound by...
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.

37. Homework:
Case revision!
Learn em. You will have a short test on them
next Thursday. 
1. Bentham
2. Brown
3. Wilson
4. Howe
5. Gotts
6. Sharp
7. Shepherd
8. Winters
9. Donoghue v Stevenson
10. Collins v Willcock

38. Plenary:
Using your own words, explain what is
meant by precedent in your notebooks.
Word Bank:
Precedent
Binding
Appellate
First Instance
Distinguishing
All of you should be able to explain what the
general rule on precedent is, and illustrate
with reference to a case.
Most of you should be able to develop this by
explaining why the hierarchy of the courts is
important to precedent
Some of you may be able to evaluate one
issue with precedent, using a further case

39. Starter:
Why did the court not have to follow the
precedent?
Each table has 6 cards
with cases and their
detail…
All of you should be able to
work out why the court in the
second case was not bound by
the first
Most of you should be able to
group them into similar
situations
Some of you should be able to
decide whether or not you think
the second court should follow
the first.

40. R v Gotts
The appellant, a 16 year old boy, was
ordered by his father to kill his mother
otherwise the father would shoot him. He
stabbed his mother causing serious
injuries but she survived. He was charged
with attempted murder and the trial
judge ruled that the defence of duress
was not available to him. He pleaded
guilty and then appealed the judge’s
ruling. The Court of Appeal heard the
appeal.
Previous Case:
In the House of Lords (Supreme Court)
where D helped to kill at least two men,
said that duress should not be a defence
to attempted murder.

41. R v Bilton
D raped V three times. They were friends
and had been drinking. D claimed he was
suffering from sexual somnambulism,
which meant that he should have a
defence of automatism (his body acting
without control of the mind) to the
offence.
Previous Case:
In the Supreme Court of Canada, D was
acquitted on the grounds that he was
suffering from sexsomia. He had been
drinking and consuming drugs earlier in
the evening.

42. R v Lowe
D killed his father whilst sleepwalking.
He, told police he attacked his 82-year-
old father Eddie while he was asleep and
had no recollection of the incident in
October 2003. He wanted to plead
automatism rather than insanity.
Previous Case:
In the Supreme Court of Canada, D was
acquitted of the murder of his mother in
law, after he drove to her house and
attacked her whilst sleepwalking. The
court agreed that he was able to plead
automatism rather than insanity.

43. R v James, Karimi
DD had both killed their ex-partners.
Both DD were depressives who wanted
this taken into account. Both DD claimed
that they should be guilty of
manslaughter on the basis of provocation
rather than murder. They both appealed
arguing that their depression had
affected their level of control and so
should be taken into account. .
Previous Case:
In Jersey, the Privy Council (the top court
for the Commonwealth) had decided
that the only characteristics relevant to
provocation was the age and gender of
the defendant.

44. R v R
D had been charged with rape upon his
wife and actual bodily harm (ABH). The
wife had left to live with her parents but
there was no formal separation, although
the wife had consulted solicitors. The
prosecution claimed that the husband
had broken into her parents’ home and
raped her. The case was heard in the
House of Lords
Previous Case:
In the Court of Appeal, the court had said
that the law had changed and D was
liable for the rape of his wipe in this case.

45. Hedley Byrne v Heller
C sued D on the basis of a letter. The
letter confirmed that X had money in the
bank to pay their account. X did not have
this money, and so C lost out. C claimed
that the misstatement causing purely
financial loss made D responsible for the
loss. This was heard in the House of
Lords
Previous Case:
In the House of Lords, whilst most of the
court had said a mere misstatement was
not enough to base a claim on, Lord
Denning had said he dissented and
though it should be enough, especially if
someone entered into a contract on the
basis of the statement.

46. Type Two:
Persuasive
This comes from a number of
different areas...
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
Courts of Other Countries
Lister v Hesley Hall Re: S
R v Rabey
R v Parks

47. 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.

48. Starter:
Can you persuade me you learnt a lot last
lesson?

49. ...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?
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

50. 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?

51. Are the judges making brand new
law... Or just declaring what the law
actually is?
Type Two:
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?
The right to a view?
Which one is it analogous to?
A Problem?
Hunter v Canary Wharf
Gillick v West
Norfolk AHA
Airedale NHS v Bland
McLoughlin v O’Brien
Re: A

52. The lower courts can create precedent
Re M [2011] EWHC 1197 (COP)
This is one of the most recent ‘original
precedent’ decisions, and is quite an
emotive one.
Task:
Read through the article from the BBC
and answer the questions in as much
detail as you can. You can discuss it
with a neighbour as well.
Stretch yourself!
If you want a challenge, or
are just really interested in
this, the full judgement of
Justice Baker is available here

53. 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.

54. Finally:
Applying Precedent
F
O
R
D
Which courts does it
apply to?

55. Overrule
Two different cases:
later overrules the earlier
Example:
R v Shivpuri
overruling
Anderton v Ryan
Example:
R v R
overruling
R v J
This is either:
1. Higher Court overruling the lower court
decision in a previous case: or
2. 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.

56. Reversing
Same case, further up the
hierarchy
R v Woollin
CA = uphold conviction for murder
HL = reverse (manslaughter)
Fitzpatrick v Sterling Housing Ass.
CA = family doesn’t include gay
partners
HL = reverse family can include
gay partners
R v Kingston
CC = D was liable (no defence)
CA = reverse D was not guilty
(defence)
HL = reverse (no defence)
Examples:
Crown or County
Court
Court of Appeal
Supreme Court

57. 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
R v Brown
Balfour v Balfour
Merritt v Merritt

58. 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, illustrate 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.

59. CASE:
Joey was asleep in bed when he was woken
up by Lois, his ex-girlfriend. They got into
an argument and Joey pushed Lois down on
the bed, sat on top of her and cut off her
ponytail.
She wasn’t bruised, scratched or cut.
Joey is charged with actual bodily harm
under s.47 Offences Against the Person
Act 1861
The Magistrates ruled that as it was dead
tissue, it was not part of the body and
so acquitted him.
The prosecution appealed to the divisional
court, where you are sitting.
YOU be the judge
You are going to look the precedents and make a legal ruling…
What does the statute say?
It doesn’t help! It only uses the words ‘actual
bodily harm’
What about binding cases?
T v DPP in the High Court says that ABH
doesn’t have to cause pain.
D tripped and became unconscious whilst running
away
Chan Fook in the Court of Appeal said that
bodily includes all parts of the body, including the
brain.
D shouted through the door, and V threw
themselves out of the window, claiming that they
were psychiatrically hurt.
Brown in the House of Lords (SC) says that ABH
just means ‘more than transient and trifling’.