AS Level Law Assignment 11 - Judicial Precedent
Task
You will be set one question from the following:
1. Read the following source material and answer parts (a) to (c) which follow.
SOURCE A
Their Lordships ... recognise that too rigid adherence to precedent may lead
to injustice in a particular case and also unduly restrict the proper
development of the law. They propose, therefore, to modify their present
practice and, while treating former decisions of this House as normally binding,
to depart from previous decisions when it appears right to do so.
In this connection they will bear in mind ... the especial need for certainty
in the criminal law.
This announcement is not intended to affect the use of precedent elsewhere
than in this House.
Extract adapted from The House of Lords Practice Statement 1966
SOURCE B
Elliott v C [1983]
C, a 14 year old and somewhat backward girl spent an evening with a friend
and, being unable to stay there the night decided to sleep in a shed. Finding
some white spirit and matches she poured the spirit on the floor and set light
to it, destroying the shed as a result when the fire got out of hand. The girl
claimed that she had no idea that such damage would result.
Magistrates acquitted her under s1(1) Criminal Damage Act 1971 of
'recklessly' damaging property because of her age and lack of understanding. The
prosecution then made a successful appeal by way of case stated to the Queen's
Bench Divisional Court. This court applied the definition of recklessness given
by Lord Diplock in the House of Lords in Caldwell [1981]. Lord Justice Goff in
the Queen's Bench Division Court accepted that he was bound to apply the
precedent from Caldwell to the case, but felt very unhappy about having to do so
in the circumstances of the present case which he felt would be unfair on the
girl.
In his judgment Lord Justice Goff said: "in my opinion, although of
course the courts of this country are bound by the doctrine of precedent,
sensibly interpreted, nevertheless it would be irresponsible for judges to act
as automatons, rigidly applying authorities without regard to consequences.
Where a judge is compelled to reach a conclusion he senses to be unjust or
inappropriate, he is under a duty to examine the precedent with scrupulous care
to ascertain whether he can, within the limits imposed by the doctrine of
precedent legitimately interpret or qualify the principle in the precedent to
achieve the result which he sees as just or appropriate in the particular
case."
Extract adapted from the judgment in Elliott v C [1983]
Answer all parts.
(a) Using the sources and other examples explain what the doctrine of binding
precedent is and how it operates within the court hierarchy.
[40]
(b) In source B, Lord Justice Goff suggests that judges should not "act
as automatons, rigidly applying authorities without regard to
consequences". Using the sources and cases explain and comment on the ways
in which a judge can avoid rigidly applying precedent.
[38]
(c) In a 2001 case of criminal damage an eleven-year-old boy has thrown down a lighted firework in a shop and has caused a fire destroying the shop. In each of the following situations consider whether the judges in the case should consider themselves bound by the precedents in Caldwell and Elliott v C:
(i) The judge in the Queen's Bench Divisional Court feels that it would be unfair to convict the boy.
(ii) The House of Lords judges unanimously consider that it would be unfair to convict the boy.
[12]
(OCR, January 2001)
2. Read the following source of material and answer questions (a) to (d) which follow.
Exercise on law Reform and Judicial Precedent
SOURCE A
In Schorsch Meier GmbH v Hennin the German company sued and asked for
judgment in Deutschmarks. The judge refused. The company appealed. There was a
decision of the House of Lords only fourteen years before (Re Havana Railways)
which held that an English court could only give judgment in sterling. The Court
of Appeal ought to have followed the Havana case. We turned a blind eye. We were
guilty of what Lord Wilberforce afterwards described as "some distortion of
the judicial process'. We gave judgment in Deutschmarks.
In Miliangos v George Frank Textiles the Swiss firm saw the report in the
Times of the Schorsch v Hennin case. Counsel amended his claim and asked
for judgment in Swiss Francs. The case reached the House of Lords. The House
themselves overruled the Havana case for it was only by doing so that they could
give judgment in Swiss Francs.
It was a decision of the greatest importance. But it only came about because we
were guilty of a 'distortion of the judicial process". If in Schorsch we had held ourselves bound by Havana, in Miliangos the Swiss firm would
automatically have taken judgement in sterling [and] would not have appealed.
The House of Lords would never have had the opportunity of overruling the Havana
case.
(Adapted from, The Discipline of Law, Lord Denning, Butterworths)
SOURCE B
There can be no doubt that the institution of the Law Commision marks a great
step forward in the process of law reform. [This] will mean that the importance
of judicial law-making, which has been dwindling now for a century or more, will
probably almost entirely vanish but without, 1 hope, dimming the name and
reputation of Lord Denning, who will stand for future generations as the last
great judicial innovator.
(Adapted from, 'The Process of Law Reform', Lord Devlin, Law Society Gazette,
1966)
(a) Refer to Source A. Explain how the doctrine of precedent usually works. [36] (b) Refer to Source B. Describe the character and role of the Law Commission. [36] (c) Discuss the ways in which a judge of the Court of Appeal is able to reform the law. [24]
(d) Re Havana Railways was decided by the House of Lords in 1961. Miliangos reached the House of Lords in 1975.
(i) Explain the doctrine which allowed the House of Lords to overrule its precedent in the earlier case.
(ii) How, if at all, would their answer have differed if Miliangos had come before the House of Lords in 1965? [24]
Total: 120 marks
(2000 Specimen Paper)
Guidance
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