Ways of avoiding judicial precedent

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What are the 3 ways of avoiding judicial precedent?
Overruling
Reversing
Distinguishing
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What is the concept of overruling?
Where a court of higher standing departs from a court lower in the hierachy. Where this occurs the previous precedent is no longer binding the new decision replaces this.
Supreme court decides to not follow a decision made in the court of appeal, once a
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Overruling by court

What is the european court of justice?
Precedents set out by the ECJ are binding in all courts in the European Union
The ECJ does not itself follow its own precedents
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Overruling by court

Who must the supreme court follow?
SC must follow the precedents set out by ECJ
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Overruling by court

What happens between the House of Lords and the Supreme Court?
THoL (existed before the Supreme Court) was originally bound by its own previous decisions - but it departed from this in 1966 and was able to depart from its own previous decisions where it appeared to be right to do so - 1966 Practise Statement
The ps o
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What is the 1966 Practise Statement to do with the House of Lords and the Supreme Court?
When the House of Lords departed from its own previous decisions where "it appeared right to do so"
It initially only applied to the House of Lords but now it applied to the Supreme Court
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Overuling by Court

What can the supreme court do but doesnt usually?
Supreme Court doesnt have to follow decisions made by the House of Lords but it normally will
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Why was the 1966 Practise Statement introduced?
lordships regarded the use of precedent as an indispensable foundation it provides some degree of certainty - sets out why there should be a precedent but also realise they cant stick otherwise it wont develop
Recognise that it is too rigid and they need
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What is the 1966 Practice Statement application to supreme courts?
Practice direction 1 of the supreme courts rules provides that the supreme courts jurisdiction corresponds to that of the House of Lords
The applicability of the practice statement is expressly preserved by practice statement 3 which provides that where
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What are the issues relating to departing from precedent?
The need for certainty in the law - if they exercised this all the time it would undermine certainty
The retrospective effect of judicial law making
Judges usurping (take over something that is not theirs) the power of Parliament
Infringing the seperati
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What case set out the initial cautious approach to 1966 Practice Statement?
Jones v Secretary of State for Social Services 1972 - the majority of the house of lords declined to overrule a previous decision although they were of the opinion that the ratio of the earlier decision was wrong
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What did Lord Simon say about the initial cautious approach to the 1966 Practice Statement?
"The power to depart is to be most sparingly exercised"
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What case was the cautious approach and what did Lord Reid say?
Knuller v DPP 1973 - declined to overall previous decision even though they thought it was wrong, created a new precedent and new crime - some disagreed

Lord Reid - "In the general interest of certainty we must be sure there is some good reason before we
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What case started the retrospective effect?
R v Cunningham - House of Lords refused to overrule previous decision of R v Vickers as of special implications relating to the retrospective affect with regards to people who had been subject the death penalty
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What happened in the case of R v Cunningham?
Friday night drinking, got into a fight, defendant hit victim over head with a bar stool, victim died and defendant charged with murder
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How was the restrospective effect put into place with R v Cunningham?
The previous R v Vickers set the mens rea for murder (intention to kill or intention to cause GBH) Cunningham said he did not have the intention to kill and that murder should only apply to those with intention
Judges felt this was a good point however it
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Examples of the use of the practice statement

What happened in the cases of BRB v Herrington 1972 overruling Addie v Dumbreck 1929?
BRB v Herrington - shortcut from housing estate to park was across railway track, the children died from being burnt alive by the live wire, the railway knew there was a hole in the fence and children were getting through but didnt do anything - In Addie
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Examples of the Use of the Practice Statement

What happened in the cases of R v Howe & Bannister 1987 overruling DPP for NI v Lynch 1975?
R v Howe - d ordered to kill someone or they would be killed - this overruled the precious decision of DPP for NI - in this case the d driving in Northern Ireland, stopped at traffic lights, 2 members of IRA got in car pulled gun out demanded for him to d
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2 more examples of the use of Practice Statement
R v G & R 2003 overruling MPC v Caldwell 1982 - the co-op situation overruled Caldwell recklessness and replaced with subjective

Pepper v Hart 1992 (lifted the ban on hansard) overruling Davis v Johnson 1978 who said use of hansard in court was banned
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What does the Court of Appeal follow ?
CA must follow the decisions from the ECJ and the House of Lords and Supreme Court
It must also follow its own previous decisions unless the case falls within one of the following exceptions: (Young v Bristol Aeroplane 1944)
Where the previous decision wa
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What is the court of appeal criminal division?
In the criminal division there is more flexibility R v Gould 1968
Diplock LJ says dont need to remember
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What is Lord Dennings crusade?
Lord Denning MR wished the Court of Appeal to have the same power to depart as the House of Lords so he attempted to circumvent the rule in Davis v Johnson 1979 and Oliver v Ashman but he was told off for having the power of the House of Lords
Eventually
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What do the divisional courts of the high court do?
They are bound by the ECJ, Supreme Courts, House of Lords and Court of Appeal
The divisional courts must follow their own previous decisions, subject to the same exceptions set out in Young v Bristol Aeroplane 1944
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What does the crown court, county court and magistrates court do?
These courts must follow the precedents set by all other courts
They have no power to create precedents and their decisions have no binding force on any courts
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What is the reversing rule?
This is where a court reverses the decision on appeal in the same case e.g. Gillick v West Norfolk & Wisbreck Area Health Authority 1986
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What happened in the case of Gillick v West Norfolk and Wisbeck Area Health Authority 1986?
Mum of 5 teen girls, horrified when one came home with leaflet that stated she could recieve private and confidential advice on contraception, she challenged whether it was lawful for doctors to advise under 16s without mums knowledge
HC said it was lawfu
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What does distinguishing mean?
Where the judge feels the case is sufficiently different from the previous decision
e.g. balfour v balfour 1919, merrit v merrit 1971
this creates a new precedent for the different circumstance
The old law still stands along with the new law for a new se
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Distinguishing

What happened in the case of Balfour v Balfour 1919?
Husband and wife happily married, he went overseas for work, he promised to send her the money for the house, he did that but then stopped when he met someone else, she sued him but the court said he is not obliged to pay as at the time he was happily mar
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Distinguishing

What happened in the case of Merrit v Merrit 1971?
Married couple, they seperated, he agreed to pay her money towards the morgage, but he didnt make the payments, because seperated at the time of agreement there facts were sufficiently different so didnt have to follow Balfour v Balfour so he had to pay h
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What is the concept of overruling?

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Where a court of higher standing departs from a court lower in the hierachy. Where this occurs the previous precedent is no longer binding the new decision replaces this.
Supreme court decides to not follow a decision made in the court of appeal, once a

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Overruling by court

What is the european court of justice?

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Overruling by court

Who must the supreme court follow?

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Overruling by court

What happens between the House of Lords and the Supreme Court?

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