R v Howe (1987) – Criminal
The Facts - The D had fallen under the evil influence of a man called Murray and, as a result, had assaulted one person (who had then been killed by another), and then actually killed a man on Murray’s orders.
Res judicata - The House of Lords ruled that that the defence of duress was not available to D as either the principal offender in one murder, or as the secondary party to the other murder. Duress was not available as a defence to any of the parties to an offence of murder
Ratio decidendi – there is no defence of duress
Obiter dicta – it was held that the defence of duress was available to neither the murder that he had carried out as principal, nor the murder where he was merely a secondary participant.
Does the obiter dicta widen the ratio or give an alternative situation – that duress should not be available to someone who had been charged with attempted murder.
Binding Precedent
The ratio decidendi i.e. the legal principle which must be followed
Donoghue v Stevenson was followed in:
Daniels v White (1938)
And Grant v Australian Knitting Mills (1936)
Facts: G bought pair of long underpants, which had excess sulphite in them, which should have been removed at the end of the manufacturing process. G contracted dermatitis and he was hospitalised for several months.
Held: Under the legal principle of D v S that a manufacturer owes a duty of care to the consumer.
Persuasive precedent
A precedent, which is not binding on a court but a judge, may be persuaded to follow it. The following may be persuasive but are not binding: -
- An obiter dicta of a higher court
E.g. the obiter in R v Howe (1987)
This case made it clear that duress was not available as a defence to any of the parties to an offence of murder. The D had fallen under the evil influence of a man called Murray and, as a result, had assaulted one person (who had then been killed by another), and then actually killed a man on Murray’s orders. The House of Lords ruled that that the defence of duress was not available to D as either the principal offender in one murder, or as the secondary party to the other murder. In their judgment, the Lords also stated obiter that duress should not be available to someone who had been charged with attempted murder. This was later followed in .
Was followed in R v Gotts (1992)
The D, aged 16, seriously injured his mother with a knife. He tried to argue in his defence that he was acting under duress because his father had threatened to shoot him unless he killed his mother, but the defence was rejected by the Court of Appeal, who followed the obiter statement made by the Lords in as persuasive precedent.
E.g. the obiter in D v S was followed in the Home office v Dorset Yacht Company. Facts: Prisoner officers took boys from Borstal camping in Dorset. The prison officers fell asleep and the boys sabotaged what belonged to Dorset Yacht Company.
Held: Using the obiter comments of D v S i.e. the neighbour principle the prison officers owed a duty of care to the Dorset Yacht Company as their neighbours.
- A decision of a lower court
R v R (1991)
For a long time, the requirement of sexual intercourse to be ‘unlawful’ in rape was understood to mean that intercourse took place outside marriage. This meant that a husband who had sex with his wife without her consent could not be guilty of rape (although he could be guilty of some lesser offence such as indecent assault or simply assault). This idea dated back to the times when, on giving her consent to be married, a woman automatically gave her consent to sexual intercourse for the rest of the marriage. This consent could not be withdrawn since the wife was the ‘property’ of her husband. Not surprisingly, as attitudes to women and the marriage relationship changed, the law concerning rape within marriage was increasingly criticized, but it was not until 1991 that it was finally altered in the case of R v R (1991).
The D went to the home of his estranged wife and forced her to submit to sexual intercourse. The House of Lords, following the decision of the Court of Appeal in , took the opportunity to abolish the marital rape exemption rule, thus ensuring that a man could be liable as a principal offender in the rape of his wife.
Many thought that the Lords had overstepped the mark as it was felt that it was the job of the legislature (Parliament/government) to create new law – not the judiciary!
- Decisions of the Judicial Committee of the Privy Council- (final appeal for courts)
R v Thabo Meli
Here the courts interpreted a series of acts as one transaction. The D’s had attempted to kill their V by beating him over the head, then threw what the assumed a dead body over a cliff. V did die, but from the fall and the exposure, and not form the beating, thus there was an argument that at the time of the actus reus, the D’s no longer had the mens rea. The Privy Council held that throwing V over the cliff was part of a series of acts following a preconceived plan of action, and therefore couldn’t be seen as separate acts at all, but as a single transaction. The D’s had the required mens rea when the transaction began and therefore mens rea and actus reus had coincided for the purposes of law.
Followed in Fagan v Commissioner of Police (1969)
The concept of a continuing act was used in this case to allow what seemed to be an omission, to be treated as a positive act.
D was told by a police officer to bring his car closer to the curb. He obeyed the order, but in doing so he accidentally drove his car onto the constables foot. The constable shouted, “get off you’re on my foot” to which the D replied, “fuck you, you can wait” and turned off the ignition.
He was convicted of assaulting the police officer in the execution of his duty and appealed on the grounds that at the time he committed the act of driving onto the officers foot, he lacked the mens rea, and although he had the mens rea when he refused to remove the car, this was an omission and the actus reus required was a positive act. His appeal was dismissed and the court held that driving on to the officers foot and staying there was one continuous act, rather than an act followed by an omission - so long as the D had the mens rea at some point during the continuing act, he was liable.
- Decisions of the High Court in another High Court case
- Decisions of courts in other countries
- Dissenting judgments
When the judge doesn’t agree with the judgments in an appeal court that derive from the majority decision.
Candler v Crane, Christmas & Co. (1951)
Facts: Crane the firm of accountants prepared financial statements knowing that they were to be shown to Candler as a basis for his decisions to invest in the company. He did invest but the company went into liquidation he sued D for negligent preparation for the financial statement.
Held: D did not owe C a duty of care because the accounts were not prepared for him Lord Denning dissented from this judgement saying there was a duty of care. To people who are known to rely on accounts even though they are not prepared specifically for them
Hedley Byrne v Heller (1964)
Hierarchy of Courts
Higher courts bind lower courts
ECJ
House of Lords
Divisional courts
C of A (Civil) C of A (Criminal)
High Court Crown Court
County Court Magistrates Court
House of Lords
- Decisions are binding on all other courts throughout the system
- Was bound by its own decisions
London street Tramways v London County Council (1898)
Practise Statement 1966
The following are cases where the House of Lords exercised their powers under the practise statement.
Modern Law-making in the House of Lords
In 1966 the Lord Chancellor issued a Practice Statement announcing a change to the rule in London Street Tramways v London County Council. The Practice Statement said:
‘Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that the rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They therefore, propose to modify their present practice and while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House”.
- British Railways Board v Herrington (1972)/Addie v Dumbreck (1929)
Addie v Dumbreck
Facts: Children frequently played on machinery belonging to Dumbreck's colorey but were regularly warned away by Dumbreck. A child got seriously injured whilst playing on the property.
Held: Dumbreck (the occupier of the Land) owed no duty of care since the child was a trespasser.
British Railways Broad v Herrington (1972)
Facts: Children repeatedly climbed through a whole in the fence to play on a railway line and frequently were warned away by B. One child was injured on an electrical line.
Held: The H of L used the practise statement to part from the previous decision of Addie v Dumbreck it is possible to do this if social conditions and attitudes have changed from the earlier decision. A new but limited duty of care was owed to child trespassers to avoid an accident he should take steps to do so.
- R v Shivpuri (1968)/Anderton v Ryan (1985)-criminal
Impossible Attempts
Art 3(2) Criminal Attempts and Conspiracy (NI) Order 1983
–A person may be guilty of attempting to commit an offence to which this article applies even thought the facts are such that the commission of the offence is impossible.”
Anderton v Ryan (1985)
Facts: Mrs Ryan had confessed that she had brought a videocassette recorder for £110 in the belief that it was a stolen one and was charged with both handling and attempted handling of stolen goods. In the event, the prosecution did not believe that it would be able or establish that the goods had been stolen, so the first charge was dropped and only the attempted handling charge pursued.
Held: The Magistrates reused to convict but the divisional; Court supported the prosecutions appeal on the point of law. The H f L quashed the conviction, obviously believing that it would be unjust to find liability in a case such as this.
R v Shivpuri (1986)
Facts: The defendant was arrested by Aston’s officials on his return from a visit to India. While he was there, he had been approached by a dealer in drugs, who had offered him £1000 to take control of a suitcase in Cambridge, the contents of which he was later to distribute to others. He believed that the drugs were either heroin or cannabis. He was later arrested in Southall, London, as he handed over a packer to a third party. This packet and the others in the lining of his suitcase were found to contain a harmless vegetable matter like snuff, not harmful drugs. The defendant argued, therefore, that his conviction for attempting to know concerned in dealing with a prohibited drug should be quashed on the grounds that the complete offence was impossible.
Held: The H of L overturned Anderton and so the defendant was guilty of an attempt even though the facts were that the actual offence was impossible. The defendant had intended to receive, store and pass on to others packages of cannabis or heroin. He had done an act, which was more than preparatory to the commission of the offence the defense must therefore be guilty. Their Lordships unanimously decided to overrule Anderton v Ryan, using the rights given under the Practice Statement of 1966 to do so and dismissed the appeal in Shivpuri. The position is at last clear a person can be found guilty of attempt even though the actual crime is impossible.
- Miliangos v George Frank (Textiles) Ltd (1976)/Havana Railways (1961) – contract
Miliangos v George Frank (Textiles) Ltd (1976)
Facts:
Held: The C of A accepted that the general rule in tort was that the damages should be assessed at the date of breech. This was a principle clearly enunciated by Lord Wilberforce in the Court of Appeal in 1976 in this case of Miliangos v George Frank (Textiles) Ltd but Lord Wilberforce had made it clear that the rule was subject to exceptions. In particular, where that rule would produce injustice, the court had discretion to take some other date of assessment of damages.
Havana Railways (1961)
Facts:
Held: the damages could only be awarded in sterling (English money)
- Ann’s v London Borough of Merton (1977)/ Murphy v Brentwood D.C (1990) – Tort
Ann’s v Merton London Borough Council (1978)
Facts: Local authority had failed to ensure that building work complied with the plans and as a result the building had inadequate foundations. The claimant, a tenant who had leased the property after it had changed hands many times, claimed that the damages to the property threatened health and safety and sued
Held: She was successful. The decision was clearly arrived at a policy grounds. Lord Wilberforce in framing the ‘two parts’ test suggested the appropriate method of determining whether or not the defendant owed a duty of care in a given case. First it should be established that there is sufficient proximity between defendant and claimant for damage to be foreseeable possibility of any careless act or omission. If this was established then it was only for the court to decide whether or not there were any policy considerations that might either limit the scope of the duty or remove it altogether.
Murphy v Brentwood District Council (1991)
Facts: A house had been built on a concrete raft laid on a landfill site. The council had been asked to inspect and had approved the design of the raft. The raft was actually inadequate and cracks later appeared when the house subsided. The claimant sold the house for £35,000 less then its value in good condition would have been and sued the council for negligence in approving the raft.
Held: H of L said that the council was not liable on the basis that the council could not owe a greater duty of care to the claimant than the builder. In doing so the court overruled Ann’s v Merton and the two-part test, preferring instead a new three-par test suggested by the Lord Keith Oliver and Bridge and Bridge in Copar Industrial Plc v
Court of appeal (Civil Division) Dickman (1990).
Court of Appeal (Civil Division)
Bound by the House of Lords and its own decisions.
N.B. Young v Bristol Aeroplane (1944)
Three exceptions to the rule that the Court of Appeal is bound by its own decisions: -
- The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.
- The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with a decision of the House of Lords.
- The court is not bound to follow a decision of its own if it is satisfied that decision was given per in curium*.
* Per in curium means where a mistake is made e.g. a relevant act of parliament has not been considered.
Court of Appeal (Criminal Division)
Same as C of A (Civil) with one additional exception:
*
R v Gould (1968)
Should the Court of Appeal have to follow the House of Lords and its own decisions?
In Davis v Johnson Lord Denning put forward the following reasons why C of A should not always have to follow the H of L or a previous courts.
- Employers or Insurance companies pay a huge amount of money to the party to prevent their disputes going further.
- It takes 12 months for a decision
- Poor people – especially those who don’t have legal aid to take their case to court.
Also Schorsch Meier GmbH v Henning (1975)
In ria Havana railways they asked for judgement in a different currency but the H of L said judgment could only be given in sterling but this case was in 1961. Where the currency rates did not fluctuate so it didn’t matter too much. Then in 1975 the case of Schorsch Meier GmbH v Henning allowed a German company.
Divisional Courts
- Bound by House of Lords, Court of Appeal and themselves.
- Also Young v Bristol Aeroplane applies
High Court – Civil
- Bound by all courts above it
- Persuasive on itself
Crown Court – Criminal
- Bound by all courts above it
County Court – Civil
- Bound by all courts above it
- Does not bind itself
Magistrates Court
- Bound by all courts above it
- Does not bind itself
Law Reporting
Avoiding Precedent
A judge in a future similar case overrules the decision in a previous case to change the law.
Pepper Hart (1993)
The facts of a case are too different so the judge doesn’t follow the first case.
Balfour v Balfour (1919)
Facts: Mr and Mrs Balfour lived in Ceylon (Sri Lanka) where Mr Balfour lived as a civil servant and they returned to where Mr B lived as civil servant and they returned to England on holiday. Where Mrs B was advised by her doctor not to return to Ceylon because of her health. Mr B said he would pay his wife £30 a month while he was in Ceylon. Shortly afterwards Mr B fell in love with a Ceylonese woman and wrote to Mrs B saying he won’t be returning or paying. She sued for breach of contract
Held: The arrangement made was a social and domestic arrangement and therefore no intention to create legal relations and so Mrs B was unable to enforce the agreement.
Merritt v Merritt (19710
Facts: Mr M found a new woman and Mr and Mrs M agreed to separate. Mr M agreed if Mrs M repaid the mortgage the mortgage he would transfer ownership of the property to her after the payments. When she had finished the payments he refused to do so.
Held: Mr and Mrs M were already separated when the agreement was made this was therefore a business arrangement with intentions to create legal relations.
Is when a case heard in a lower court is appealed to a higher court and the ratio decedendi is changed in the same case.
R V Formosa
Facts: F was arrested in possession of a washing up liquid bottle filled with hydrochloric acid he was convicted in the CC of possessing a prohibited weapon defined under the firearms act 1968 as one designed or adapted for the discharge of a noxious liquid. F appealed to the C OF A F argued he had neither designed nor adapted the bottle because he had not altered it in anyway
Held: The bottle wasn’t a prohibited weapon because there had been no physical alteration to it therefore literally it ha not been designed or adapted.
Advantages of Precedent
Certainty
Consistency and fairness
Precision
Flexibility
Time-saving
Disadvantages of Precedent
Rigidity
Complexity
Illogical distinctions
Slowness of growth
Do judges make law?
Two types of precedent
- Original precedent – create law where non existed before
- Declarative precedent – declares what the law is and apply in the case before them.
However there are situations where judges make law: -
- When they have to interpret statutes
R V Formosa
Fisher V Bell (1961)
Fact: B displayed a flick knife in his window with a price on it and was charged with Restriction of Offensive Weapons Act for offering a flick-knife for sale
Held: B was acquitted because literally he was not offering the knife for sale he was merely making an invitation to treat. I.e. inviting customers to make an offer on the knife.
- Where no relevant legal principle exists
Judges may have to make decisions as a matter of urgency (usually medical cases)
Re A (Children) (2000)
Facts: Siamese twins Jodie and Mary shared heart and lungs one child had both organs so the other child was simply keeping her alive. By not operating both children would die by operating only Mary would die. The parents were strict Catholics and didn’t want the operation to go ahead.
Held: The H of L made a decision to allow the operation to take place because the legal principle was that it wouldn’t be unlawful killing if they allowed one child to die.
Shaw v DPP (1962)
Facts: S published a booklet called ‘The Ladies Directory’ which gave contact numbers of prostitutes and indicating those who were offering the practise of sexual perversions.
Held: S was convicted of conspiracy to corrupt public morals. In the H of L Lord Reed strongly descended. Saying in his view the court was creating a new crime, which it was not their role to do.
In contract, tort and criminal law much of the law owes its existence to judges.
- Where the law needs to change to meet the changing needs of society
R v R (1991)
Law on marital rape has changed because society’s views on women has changed
Fitzpatrick v Sterling Housing Association (2000)
Facts: Fitzpatrick (gay) lived with his partner Mr Thomson for 18 years in a flat owned by S in which T was a tenant. Mr T was brain damaged in an accident and F nursed and cared for him T died. And F applied to take over the tenancy the rent act states that a tenancy can be taken over by a spouse, a person living in a heterosexual relationship with the tenant or a member of the family living with the tenant. S refused F’s request H of L said a same sex partner could establish the necessary familiar link for the purposes of legislation of the rent act discrimination of same sex partners was out of touch with modern society.
Should judges change the law?
In the case of C v DPP (1995)
The H of L refused to abolish the presumption that children between 10-14 were incapable of having the necessary intention to commit a crime. The H of L declined to change the law saying it was not their role to change the law on important points of social policy. An area of social policy where there is a dispute secondly where the solutions to a dilemma is doubtful and thirdly were parliament has rejected opportunities of clearing up a known difficulty.
The H of L showed its reluctance to change the law in matters of important public policy. They laid down guidelines;
*
Natalie Evans
Facts E underwent IVF treatment with her partner because she had cancer which would prevent her from having babies the frozen embryo’s were stored until after the cancer treatment was complete then her partner refused permission for the embryo’s to be used under the Human Fertilisation and Embryology Act 1990 both partners had to consent to treatment. The judge must interpret the law as it is written and cannot change it to meet changes in how society lives it is for parliament to change the law in this case.
In contrast in R v R the H of L said that the judge made law is quote capable of evolving in the light of changing social, economic and cultural developments. This recognizes that judges in the H of L can and will change the law if they think it is necessary.
