Transcript JUDICIAL PRECEDENT

Topic 3
Judicial precedent
Do the
Supreme
Court make
law?
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3
Powers
of the Supreme Court to change
Judicial precedent
previous precedents
•Stare decisis: As with all courts the Supreme Court (SC)
believes that certainty in the law is very important.
•Supreme Court Tool box: The SC can use all the tools
of precedent that other lower courts can, i.e. overruling,
reversing, distinguishing.
•Overruling their own decisions: The SC is the ONLY
court that can change any precedent they have made in
the past.
•The Practice Statement 1966: This speech by the Head
of the judiciary allows the SC to overrule their own
decisions.
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Before
the Practice Statement 1966
Judicial precedent
•The House of Lords decided before 1966 that they
would not overrule their own decisions.
•This was decided in the case on London Street Train
ways v London County Council in 1898 .
•This was because certainty in law was considered
more important than the personal hardship of a
small number of individuals.
•Before 1966 the House of Lords had very limited
law making abilities unless the case formed an
original precedent (first of its kind).
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The Practice Statement 1966
Judicial precedent
•The House Lords decided to give themselves the
power to overrule their own past decisions.
•BUT only when it is RIGHT TO DO SO.
•Right to do so isn't defined.
•Advantage: Allows the SC to develop the law to the
changing needs of society.
•Risk: Too much flexibility means society cant rely
on the law when they make decisions, eg imagine
changing the speed limit on a road every 10 minutes
and the problems this could cause.
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Stare
Decisis still
Judicial
precedent
important
Precedent
must be
flexible or
law doesn't
meet the
needs of
society
Criminal law
affects people’s
liberty. So don't
change unless
have to
Law should
evolve slowly
– less risky
Law can only
be changed if
it benefits the
majority of
society
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Does
the Supreme Court make Law?
Judicial precedent
•Yes, in two ways.
•Original Precedent: As problems arise in society the
SC has to deal with them through a case. The Ratio
of this case is a new law, eg Donoghue v Stevenson
1932
•Overruling their own decisions using the Practice
statement 1966. But only when it is “right to do so”.
Topic 3Making
law through Original
Judicial precedent
precedent - examples
1. To protect the rights of the unborn child, RE S
(High Court judgment)
2. To allow minors contraceptive treatment
without parental consent, Gillick.
3. To develop the law in the light of changing
social and cultural developments, e.g. R v R
abolished the 250 year old immunity for
husbands being charged with rape of their
wife.
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So when
is it Right to do so? – Use of
Judicial precedent
the Practice Statement
1.
2.
3.
4.
5.
A Change in social conditions in society
To reflect change in economic climate
To correct errors / restore certainty
To develop the law
To correct their previous misinterpretation of a
statute
6. To develop the law in the light of changing
social and cultural developments.
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when is it Right to do so? -
Judicial precedent
Example
1. Change in social conditions in society
British Railways Board v Herrington (1972) when they altered
the test for the duty of care (in tort) owed to child trespassers to
reflect change in social conditions.
A test of 'common humanity' - doing all that a humane person
would have done to protect the safety of the child trespasser.
Overruling their previous decision in Addie v Dumbreck (1920)
which held the test was that of injuries caused 'intentionally or
recklessly'.
Topic So
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when is it Right to do so? -
Judicial precedent
Example
5. To correct their previous misinterpretation of a statute
R v Shivpuri 1985: Departed and overruled Anderton v Ryan
by
Facts: D was arrested entering the country, carrying a package
which he believed contained either heroin or cannabis, but was
in fact harmless ground dried vegetable. D was charged with
attempting avoid import restrictions; smuggling.
Ratio/Held: Accepting that previous law had been incorrectly
applied, concerning the Criminal Attempts Act 1981, the HL
departed from its previous decision and said an attempted
crime that was impossible could still be a criminal offence as
per S1(2). D G.
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So
when isn't it Right to do so? -
Judicial precedent
Examples
1. A special need for certainty in criminal law – it took 20
years before the House Of Lords used the Practice
Statement in criminal law (Shivpuri)
2. To reflect change in social conditions in society.
As seen in Jones v Secretary of State for Social Services
(1972) where despite 4 out of the 7 Lords agreeing that the
previous decision in Re Dowling (1967) was wrong, they
decided not to overrule the decision in order to retain
certainty in case law.
Topic
Do3judges
make new laws? – A few
Judicial precedent
theories and views
1. Where judges feel parliament should decide on a key social
issue they may refuse to make a new law, C v DPP
2. Literal rule judges tend to believe more fervently in the
sovereignty of parliament even if it results in absurd results,
e.g. Fisher v Bell
3. Declaratory theory of precedent – Some judges believe
the law has always existed, judges just declare the law in
cases. This means judges don't make law.
4. Precedent has retrospective effect – Some judges believe
that new laws should not be made using precedent as it
should then be applied to all past cases.
5. Precedent has prospective effect – Most judges believe
precedents only apply from the date they are made so this
allows changes to the law and make new laws.
Topic 3 Do
judges make new laws -
Judicial precedent
Conclusion
Parliament is democratically elected, so it would seem
that its members are the best people to make laws for
the country.
However, due to lack of parliamentary time, it may be
important for some laws to be made by judges. For
example the rise of super injunctions or the urgency of
the Re S case.