Describe the use of the Practice Statement using the sources and other cases. [15 marks]

but was rather an experimentation of its power.   The first proper use of the Practice Statement in civil law was in 1972 when the court overruled the case of Addie V Dumbreck in BRB V Herrington. The area of law under scrutiny was whether a duty of care was owed to a child trespasser. In the former case, it was decided that a duty of care was not owed since it was not believed that there was much difference between an adult and a child. However, in the latter case, society’s standards had changed and our attitude to children was that they needed extra protections, and so the overruling decided that a duty of care is owed to a child trespasser.   Another example of the use of the Practice Statement in the civil law is when the House of Lords decision in A V Hoare overruled the decision in Stubbings V Webb. The two cases were based around whether you could make a claim for damages against your rapist when the six year limitation had expired. In Stubbings V Webb, the 6 year limitation was instigated at the time of the report at aged 21 and the court refused a time extension. A V Hoare overruled this earlier case and decided that in certain exceptional circumstances the six year limitation could be extended since they realised that times had changed and people do eventually speak out about rape and they needed to accommodate for this.   Havana Railways 1968 had ruled that if you apply for compensation in a British court, you can only claim that compensation in the British currency. However, by 1976 in the case of Miliangos V George Frank, the economic situation had changed and the GBP no longer had the power it once had. It became virtually worthless since the GBP was taken off of the gold value, so the House of Lords overruled the earlier case’s decision.   In the case of Murphy V Brentwood DC, the House of Lords decided to overrule its previous decision in Anns V Merton BC. The earlier case ruled that the local council were liable and owed a duty of care since they had approved plans for a building which later proved to be faulty. However, in the later case, in order to create certainty, the courts decided that a duty of care in the tort of negligence was not owed by the local council.   Since there was the especial need for certainty in the criminal law, the House of Lords was even more reluctant to overrule its previous decisions and change the law because they didn’t want to adversely affect a defendant’s liberty without very good reason. However, in the case of R V Shivpuri, the court chose to overrule its earlier decision in Anderton V Ryan regarding liability for attempting to do the impossible. They had acquitted the defendant in the former case on the grounds that it was not an offence. However, in the latter case, the court upheld the defendant’s conviction for attempting to import class A drugs, as they explained that they had not interpreted the new law under the Criminal Attempts Act 1981 correctly. The court denied that the close proximity in years of the two cases mattered because it was more important that they quickly corrected themselves to prevent any further wrong decisions.   A more recent example of the use of the Practice Statement in criminal law is seen when the House of Lords decided to overrule its decision in R V Caldwell in the case of R V G&R (as confirmed by Source B lines 12-13). The cases revolved around how we measure recklessness and if the mens rea for criminal damage is objective or subjective. In R V Caldwell, it was decided that the test for recklessness was objective since the reasonable man would foresee a risk. However, R V G&R overruled this decision to provide clarity in the law, and decided the test was subjective and whether the defendant themselves would foresee a risk rather than the reasonable man.   The House of Lords overruled the former decision of DPP for NI V Lynch in the case of R V Howe using the Practice Statement, regarding whether duress can be a defence to attempted murder. The earlier case decided that duress is a defence to secondary participation in murder, but over time people’s morality had changed. It was believed that the law should impose a higher status of us and that we should be capable of sacrificing ourselves and it was seen that the decision in Lynch expects less of us. In R V Howe, the fact that Howe had also murdered before swayed the decision, and the judgement was that duress is not a defence to attempted murder.   There are however some restrictions on the use of the Practice statement and occasions when the House of Lords will refuse to overrule their previous decisions even if it leads to injustice. The House of Lords will not become involved with issues relating to national security or issues that are too important, as seen in C V DPP (1995) regarding the age of criminal responsibility. In this case they wanted to reduce the age to ten instead of using the principle of doli incapax, and even though the House of Lords acknowledged that this was correct, they felt it was too important a decision for them to change and so left it for parliament to deal with.   In summary, the House of Lords (now the Supreme Court), will use the Practice Statement to correct their own decisions and to update and develop the law to reflect the changing social and economic status. However, they are still reluctant to use it and the power remains discretionary, having only used it ten times since 1968. The Supreme Court has been in effect since 2009 and they are yet to utilise the Practice Statement. It appears that they would rather distinguish on the basis of the material facts being sufficiently different.