Judicial Precedent

1. Judicial Precedent

2. Hierarchy of the Courts:How good are your powers of deduction? Task: On your table, you have a number of cards, each of which represents a court in England and Wales. Can you create the hierarchy of the courts using your knowledge? You have five minutes

3. The Answer: Appelate Courts Supreme Court Court of Appeal Civil Division Criminal Division Generally, the lower courts must follow the decisions of the higher courts, even if they disagree with them. There are provisions for the higher courts to change their own minds, but the appellant has to wait for his case to get there. High Court Divisional Courts Family Division Queen’s Bench Lower Courts County Court Crown Court Chancery Division Magistrates Court

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. 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 Court of Justice European Court of Human Rights European Communities Act 1972 Human Rights Act 1998

6. Why is precedent so important? In England & Wales, we get our laws from two main places (there are others): Appellate courts have more that one judge hearing the case Who? Example? What’s it called? We need precedent to keep judges under control, and so that we know what the law is, and what we can and can’t do.

7. What is precedent? A judge must follow any decision by a higher court 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.

8. 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. The appeal grounds 3. Ratio decidendi 4. Orbiter Dicta

9. Ratio Decidendiwarning: there may be more than one ratio!Means: Bonus Case: R v Bentham 2005 Ratio:

10. Obiter DictumMeans: A typical exam question would be “Explain what is meant by ratio decidendi and obiter dicta”

11. Student taskCan you apply the law correctly? Precedent Setting Case: A man is driving a 12 year old Ford Escort in a residential area at about 60mph and runs over an old lady who was using a zebra crossing An old man is driving a 15 year old Volvo in a residential area at 50 mph and hits a young boy who is using a pelican crossing A woman driving a brand new Audi is doing 70mph, and hits a hitchhiker A woman is driving at 35mph in a residential area, and comes round a corner and hits an old lady crossing the street

12. Courts in Practice:A Case Study R v Brown House of Lords R v Wilson Court of Appeal R v Emmett Court of Appeal What should the outcome have been? Which case should they have followed? Ratio: What grounds did the court distinguish on? Which case did they follow and why? Do you agree?

13. How do judges know what an earlier court has said? Law Reports R v Shivpuri [1986] 2All ER 334 Page number Year it was reported The series of reports

14. How much have you learnt this lesson?There are 10 mistakes in the paragraph below….can you find them all? Precedent is one of the ways in which mp’s can make and interpret the law. It relies on a strict court hierarchy, which creates ambiguity and consistency, preventing lower courts from confusing the law. It relies on the theory of obiter dictum, which says that a court should always follow the previous decision, where possible, even if it leads to an injustice. To decide whether or not the court is followed, the judge should look at the singular facts. If they are sufficiently similar, the court is bound to follow the earlier decision. Judges must write a report when handing down their decision. This explains what they think the law is in this situation and why. It is important because it provides guidance to other judges. Each law report may contain five things. The first two are the facts of the case, and the question for appeal. The final two are the most important. Firstly the stare decisis, which is the legally binding bit the test, or meaning of a word). Other things in the report are obiter dicta, and do not have to be followed, but might be later. For example in the case of Gotts, whose obiter was applied by the Court of Appeal in the case of Howe: duress is a defence to attempted murder.

15. How much have you learnt this lesson?There are 10 mistakes in the paragraph below….can you find them all? Precedent is one of the ways in which judges can make and interpret the law. It relies on a strict court hierarchy, which creates certainty and consistency, preventing lower courts from confusing the law. It relies on the theory of stare decisis, which says that a court should always follow the previous decision, where possible, even if it leads to an injustice. To decide whether or not the court is bound, the judge should look at the material facts. If they are sufficiently similar, the court is bound to follow the earlier decision. Judges must write a report when handing down their decision. This explains what they think the law is in this situation and why. It is important because it provides guidance to other judges. Each law report may contain four things. The first two are the facts of the case, and the question for appeal. The final two are the most important. Firstly the ratiodecidendi, which is the legally binding bit the test, or meaning of a word). Other things in the report are obiter dicta, and do not have to be followed, but might be later. For example in the case of Howe, whose obiter was applied by the Court of Appeal in the case of Gotts: duress is not a defence to attempted murder.

16. Starter:What’s the odd one out? Brown Wilson Emmett Howe Donoghue v Stevenson Re A County Court Court of Appeal Supreme Court ECJ High Court Magistartes Court Theft Murder Insanity Material Facts Ratio Decidendi Obiter Dicta

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 Persuasive Binding Original

18. Type one:Binding Only happens if the __________ ____________ are sufficiently similar. This is what happens 99 times out of 100! Must be applied even if the court disagrees with it. 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. 11 & 12 year old set fire to papers in wheelie bin, burning Co-op. Found guilty as Caldwell test is objective.

19. Dissenting Judgements Hedley Byrne v Heller Type two:Persuasive Statements made in obiter R v Gotts Tutton v AD Walter Lower Courts in the Hierarchy R v R Comes from a number of different places…. Courts of other countries Lister v Lesley Hall Re S R v Rabey R v Parks

20. The privy council are the supreme appellate court of the Commonwealth Persuasive Precedent:The privy Council:A Particular Problem? Wagonmound No.1 The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf.Held:If a foreseeable type of damage is present, the defendant is liable for the full extent of the damage, no matter whether the extent of damage was foreseeable.

21. …but does it beat the Supreme Court? 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? Recap 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 AG For Jersey v Holley Only age & gender

22. 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 All nine of the Lords of Appeal in Ordinary 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. The majority in Holley constituted half the Appellate Committee of the House of Lords. We do not know whether there would have been agreement that the result was definitive had the members of the Board divided five/four. 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 this will happen again? Are they providing a permanent break in precedent?

23. Judges making brand-new law?? Or just declaring what the law actually is?? Type Three:Original • 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 This is the rarest, and where there has been no decision on that area before. Gillick v West Norfolk AHA Airedale NHS v Bland McLoughlin v O’Brien

24. Independent Study Task Grantiano v Radmacher Brand New Law? This is the most recent original precedent created by the new Supreme Court Using your own research skills … as well as the plentiful resources, you are going to produce no longer than two sides of A4, covering the answers to the following questions…. • The facts of the case • The decision by the court • Did anyone dissent? • Why do you think they decided the case like that? • For the A-B candidates, I would like you to take a look at the article “The value of dissent” from guardian.co.uk and add a paragraph summarising the key reasons that dissenting opinions can be important. Warning! Copying and pasting will lead to extra homework! It’s called plagiarism

25. How much did you understand?Working in pairs, complete the table below, with your handouts closed!!

26. Finally:Avoiding Precedent Which courts does it apply to??

27. Overrule Two different cases: later overrules earlier Example: Pepper v Hart Overruling Davis v Johnson

28. Re A (conjoined twins) 2000 Mary and Jodie were conjoined twins joined at the pelvis. Jodie was the stronger of the two and capable of living independently. However, Mary was weaker, she was described as having a primitive brain and was completely dependent on Jodie for her survival. According to medical evidence, if the twins were left as they were, Mary would eventually be too much of a strain on Jodie and they would both die. If they operated to separate them, this would inevitably lead to the death of Mary, but Jodie would have a strong chance of living an independent life. Parents refused consent for the operation to separate them. The doctors applied to the court for a declaration that it would be lawful and in the best interests of the children to operate. Held:The operation could be lawfully carried out by the doctors. LJ Robert Walker: “that an operation to separate them would be in the best interests of each of them.In this case the purpose of the operation would be to separate the twins and so give Jodie a reasonably good prospect of a long and reasonably normal life. Mary's death would not be the purpose of the operation, although it would be its inevitable consequence.” LJ Brooke: “Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted.”

29. R v Brown 2005 The five appellants were convicted on various counts of ABH and wounding a under the Offences Against the Person Act 1861. The injuries were inflicted during consensual homosexual sadomasochist activities. The trial judge ruled that the consent of the victim conferred no defence and the appellants thus pleaded guilty and appealed. The Court of Appeal upheld the convictions and certified the following point of law of general public importance: Held: 3:2 The defence of consent cannot be relied on in offences under s.47 and s.20 OAPA 1861 where the injuries resulted from sadomasochist activities.Lord Templeman: "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised." Lord Lowry: "Sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of homosexual sadomasochism and the physical cruelty that it must involve”

30. R v Bentham Fingers inside a jacket, which gave the impression the defendant was holding a firearm, could constitute an offence under s.17(2) Firearms Act 1968. D believed he was owed money by the victim ('V') and in the early hours of the morning went to V's home. D went to the bedroom where V was asleep with his wife. He put his hand in his jacket, with his fingers pointed out, giving the impression that he was holding a gun. He demanded money and jewellery and threatened to shoot V. D, relying on, inter alia, R v Sloan (1974) 19 Canadian Criminal Cases 190, contended that a person could not be in possession of his own fingers. HELD: (1) The case of R v Sloan was considered in R v Morris and King (1984) andwas clearly rejected. A purposive approach to the Act had to be adopted. The object of s.17(2) of the Act was designed to protect victims from what they reasonably believed to be a firearm or imitation firearm. (2) The wording of the statute, in light of R v Morris and King showed that the judge's ruling was correct.

31. R v Howe Howe & Bailey both aged 19 and Bannister aged 20, were acting under orders of Murray aged 35. The charges related to two murders and one conspiracy to murder. The first murder related to a 17 year old male victim, Elgar. Murray had driven them all to a public lavatory. Elgar was naked and sobbing and was subjected to torture and compelled to undergo sexual perversions. Howe and Bannister took part in kicking and punching Elgar and were told they would succumb to similar treatment if they did not do as Murray ordered. Bailey strangled Elgar resulting in his death. The second killing took place the following night at the same location on a 19 year old male Pollitt. Murray had ordered Howe and Bannister to strangle him and they complied. The third charge related to a similar incident, however, the intended victim managed to escape. Held: The defence of duress is not available for murder whether it be a principal in the first or second degree. DPP for Northern Ireland v Lynchoverruled. Obiter dicta - The defence should not be available to one who attempts murder. Lord Griffiths: “the law must stand firm recognising that its highest duty is to protect the freedom and lives of those that live under it.” “Attempted murder requires proof of an intent to kill, whereas in murder it is sufficient to prove an intent to cause really serious injury. It can not be right to allow the defence to one who may be more intent upon taking a life than the murderer.”

32. Donoghue v Stevenson Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer. Held: Her claim was successful. This case established the modern law of negligence and established the neighbour test.Lord Atkin: "The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " Who is my neighbour ?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour ? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

33. R v Wilson The appellant branded his initials on his wife’s buttocks with a hot knife. She had asked him to do so. Her skin became infected and she sought medical treatment from her doctor. The doctor reported the matter to the police and the husband was charged with ABH under s.47 Offences Against the Person Act 1861. Held: The wife’s consent was valid. The branding was more akin to tattooing and cosmetic enhancement rather than infliction of pain for sexual gratification. The court further held that consensual activity between husband and wife in the privacy of the matrimonial home was not a matter for the courts.

34. R v Emmett As part of their consensual sexual activity, the woman allowed her partner to cover her head with a plastic bag, tying it tightly at the neck. On a different occasion, she agreed that he could pour fuel from a lighter onto her breasts and set fire to the fuel. On the first occasion, she was at risk of death, and lost consciousness. On the second, she suffered burns, which became infected. The court ruled that the woman's consent to these events did not provide a defence for her partner.

35. Objective v Subjective Two important tests are used in law: the subjective and objective test. The subjective test considers what was in the defendant’s mind. Would D have realised that what he was doing was wrong? The objective test considered what is in the ordinary persons mind. Would the ordinary person have realised that the thing done was wrong?