1. The Court of
Appeal & Precedent
How can you avoid precedent in the CA...
.....And should they have more powers?
Miss Hart
G152
2010-11

2. Introductory Thinking...
Can you name the word or phrase meant by each of the pictorial clues?
Follow Reverse
Re
Overrule Distinguish
ting
x
er

3. Dominoes
How 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!

4. 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 a
lower court. However, it can not use the to
overrule the Supreme court.
overrule distinguish
Civil ECJ
Practice Statement itself
ECtHR
reverse
Criminal Supreme Court
Its own previous decisions

5. 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 is
decision was made CA decisions (they
inconsistent with a
per incuriam have to pick one!)
later HL decision

6. Exception One:
If the previous decision was made
per incuriam
This 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

7. Exception Two:
There are two previous, conflicting
decisions 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?

8. Exception Three:
There is a later, conflicting decision
from the Supreme Court
Why 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?

9. 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 the
interests 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

10. Can you beat Miss Hart?
Can you make this the perfect description?
The Supreme Court is not generally bound by its own decisions. Following the
Practice Statement 1966, the Court is allowed to overruleitself when it appears
Practice Statement 1968, the Court is allowed to reverse itself when it appears
ok 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 using
one 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 earlier
decision 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.

11. 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 2005
Human Rights then the court should ‘take account followed in
of 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 2000
Re 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 medical
said in the civil division, so can only be treatment) 1992
on the criminal division.

12. 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 can
depart 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

13. 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?

14. 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.

15. How did the fight proceed?
Conway v
Rimmer
1968
Broome v
Cassell 1971
Schorsch
Meier/
Miliangos
1976
Davis v
Johnson
1979

16. Who wins?
Read the arguments from Lord Diplock, and Lord
Denning and answer the questions.
Who do you think has the strongest argument?

17. 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, another
negligence 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 2003
A case decided in the House of Lords in 1993. A similar case reaches the House of Lords in 2003
The Court of Appeal sets a precedent in a criminal case. Six months later, it wishes to change the precedent
in a similar case
The House of Lords sets a precedent in 1954. A similar case reaches the House of Lords in 1965
The House of Lords sets a precedent in 1954. A similar case reaches the House of Lords in 1969
The divisional High Court decides a case in 2005. The High Court ordinary hears a similar case in 2006
The Supreme Court makes an obiter dictum relating to the criminal offence of attempted murder. The Court
of 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 1
year later.

18. There are no Can update the Judges can use Practical response to
rules governing law to reflect analogy to help them the actual facts of the
when 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 of
distinguishing 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 of
the explanation Very few cases get to Provides certainty and
the law
which 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 to
between 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.

19. Which is the odd one out?
1. Pepper v Hart 1. Knuller v DPP 1. 1966
2. R v Gould 2. Herrington v BRB 2. 1944
3. R v Howe 3. Miliangos 3. 1922
1. Hunter v Canary
1. R v Howe 1. R v Brown Wharf
2. R v G&R 2. R v Emmett 2. Re: A
3. Grantanio v
3. A v Hoare 3. R v Wilson
Radamacher

20. Starter:
Name the case
Twins But if you’ll just Fuzzy TV, Evil How much
forever, 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 killed
than 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

21. This is what the exam will look like...
There are sources which
contain information you Questions A & Ci are
can 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)

22. 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!

23. Err... Why are starting
with that one?

25. So what type of skills do you need
for AO2 Essays?
Example:
You need to be able to
explore the topic in some
detail, 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.

26. 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

27. 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

28. 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!

29. Now write it up! You have 15 minutes...

30. You have
Time’s
10
11
12
13
14
1
2
3
4
5
6
7
8
9
15
Up!
minutes left

31. 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

32. Mark Scheme for this question
LEVEL 4 Good, well-developed knowledge with a clear
understanding of the relevant concepts and principles. 13-15
Where appropriate, candidates will be able to elaborate
by good citation to relevant statutes and case-law.
LEVEL 3 Adequate knowledge showing reasonable 9-12
understanding of the relevant concepts and principles.
Where appropriate, candidates will be able to elaborate
with some citation of relevant statutes and case-law.
LEVEL 2 Limited knowledge showing general 5-8
understanding of the relevant concepts and principles.
There will be some elaboration of the principles, and
where appropriate with limited reference to relevant
statutes and case-law.
LEVEL 1 Very limited knowledge of the basic concepts
and principles. There will be limited points of detail, but 1-4
accurate citation of relevant statutes and case-law will
not be expected.

34. You have
Time’s
10
11
12
13
14
1
2
3
4
5
6
7
8
9
15
Up!
minutes left

35. 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 with
A 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 case
D 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.

36. 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?

37. Answers...