1. Progress in Law
How well are you doing… and what can you do better?
What are you going to do?
Some general Feedback:
 Use the source
 Aim for five points well explained or
discussed with an introduction or
conclusion for a, ci and cii.
 Make sure you know the difference
between AO1 and AO2.
 Watch your timing
 Detail, detail, detail!
A level only works if you are working and take
responsibility…
 Complete your feedback sheet (and
pop down the DRAG results as well…)
Your sheet should be all amber and green

Look at the Mock sheet. Read through
your answers, and complete the sections.
The aim is to work out what you are doing well,
and what more you need to do to achieve what
you want to achieve on this course.
If you were not here, then
you will use the feedback
sheet to complete a plan,
and look at your DL
response instead.
Please ask if you are not sure about anything
which you are completing.
There is a copy of the examiner‟s report to help you

2. Starter:
What’s the case?
All of you should be able to tell me what the case is (name or facts)
Most of you should be able to tell me which area of precedent you would use it to illustrate.
Some of you should be able to identify which type of precedent is missing.
Till death do us
part
Zzz Brum. Thwack. Brum.
Zzz. Oops.
But don‟t you love me?
You laugh and I‟ll rock
your world
Veg out?
Baby vs Wall
Howe‟d you
think we‟d let
you leave our
gang?
Worst plan ever to
get out of a
contract.
Canary
wins over
TV
But you beat
each other
brown and blue!
That‟s not on.
Axeually, I can
use it.
Andrew! I love you, there‟s no butt about
it!
Son… be a
man… kill your
mum
How much damage can a
paper do? Surely that‟s a
wheely easy question!
You‟re a tool for killing him.
Marriages break up, but the
paper stays the same.

3. The Supreme Court
Can you remember the key rules?
The general rule of
precedent which is
followed by the
Supreme Court is…
As long as…
It is bound by its own previous
decisions.
The material facts of the case are
sufficiently similar
It is also bound
by…
Court of Justice of the European Union
But only on
matters of…
The interpretation of European
Union Law
And it may also be
bound by….
But only on
matters of…
And it, in turn
binds…
The European Court of Human
Rights
Human Rights under the Human
Rights Act 1998
All the courts below it,

4. What’s the problem?
Why can’t they just change their mind when they want to?
Well, we have to
balance…
Certainty and
consistency in
application of the law.
Injustice to a
defendant and the
need to change the
law to reflect more
modern
circumstances.

5. The traditional approach of our highest court
A bit of history 1898-1966
London Street Tramways v London County
Council 1898
‚Certainty is more important than any individual hardship
which might result through precedent‛
How much ‘hardship’ is enough?
DPP v Smith 1961
Only option: Leave it to Parliament
s.8 Criminal Justice Act 1967

6. Certainty is a good thing but...
The Practice Statement
Stare decisis still
stands
Why does
the law need
to develop?
It is discretionary
"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 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 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,
settlements 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."'
Does it apply to other courts?
Depart‟ means they
will be using which
method of avoiding
precedent?
?!
Why?

7. …in summary
Generally, the House of Lords will consider itself
however,
they may
their own previous decision, being even more
cautious if it is a matter of
power is
. This
.
Bound
criminal law
overrule
where it appears right to do so
discretionary

8. So when did they use it?
Conway v Rimmer 1968
An ex-police officer sued for wrongful prosecution and sought disclosure of some police files. The
Home Secretary claimed public interest immunity for all such files.
The HL used the statement to remove this presumption: a small evidentiary ruling.
but
Knuller v DPP 1973
“in the general interest of certainty in the
law we must be sure that there is some very
good reason before we act.”

9. First Use of Statement in Civil Law
Change in Social Conditions
BRB v Herrington (1972)
overruling
Addie v Dumbreck (1920)

10. Other civil examples:
Change in Economic status
Miliangos v George Frank Ltd
overruling
Havana Railways 1968

11. Other civil examples:
To Create Certainty
Murphy v Brentwood DC (1990)
overruling
Anns v Merton BC (1977)

12. What’s the word or phrase?
Supreme Court
Practice Statement
ter
10
Consistency

13. Other civil examples:
To Help to Develop the Law
Pepper v Hart 1993
overruling
Davis v Johnson 1979

14. Other civil examples:
To update the law
A v Hoare
2008
overruling
Stubbings v
Webb 1993

15. What about the
Criminal law?
The court was even more
cautious here...
as there is an „especial‟ need
for certainty.

16. First Use of Statement in Criminal
Law
R v Shivpuri 1986
Overruling
Anderton v Ryan 1985
Thinking: Does it matter that the decisions were less than a year apart?
“I am undeterred by the consideration that the
decision in Anderton v Ryan was so recent. The
practice statement is an effective abandonment
of our pretension to infallibility. If a serious
error embodied in a decision of this House has
distorted the law, the sooner it is corrected the
better. “
Simply put: yeah, we make mistakes. Let‟s correct it!

17. Other Criminal Uses...
R v Howe 1987
overruling
DPP for NI v Lynch 1975

18. Other Criminal Uses...
R v R 1991
overruling
R v Miller 1954

19. Other Criminal Uses...
R v G&R 2003
overruling
R v Caldwell 1982

20. So when will they use the Practice
Statement now?
 To correct their own previous errors; and
 To develop the law to reflect the changing social and
economic status.
But
There are some areas they will not change, and
leave to Parliament
C v DPP (1995)
This is all about the age of criminal responsibility.
10-14 presumption of „doli incapax‟

21. What about the UKSC?
Could they have done something different?
Did they do something different?
Should they have done something different?
Austin v Southwark LBC 2010
UKSC Practice Directions 3 &4
Got it? Prove it by answering the question: when will the Supreme Court overrule itself.

22. Stop and Check…
All of you should be able to match up the cases to a picture
Most of you should be able to divide them into civil and criminal cases
Some of you will be able to identify why the PS was used,

23. Can you apply the knowledge?
(a) Source B both refers to the Practice Statement.
Describe the use of the Practice Statement using the Sources and other cases.
[15]

26. Starter:
How many can you answer?
The very first use of the
Practice Statement was
in…
Year the Practice
Statement came into
effect…
Date it was first used in
the criminal law…
Cabbage case, and the
first use of the Practice
Statement in the
Criminal Law…
Court(s) which the
Practice Statement can
be used in…
Name:
Name:
Name:
Name:
Name:
Grounds for using the
Practice statement…
Case overruling Lynch
on duress as a
defence…
Most recent use of the
Practice Statement,,,,
Practice Direction
numbers which confirm
the UKSC can use the
Practice statement…
Reason for the first use
of the PS in the civil law
(Herrington)
Name:
Name:
Name:
Name:
Name:
Reason to allow the
Top court to overrule
its previous decisions
Which area of the law
are they particularly
reluctant to change
their mind in?
Which case was the PS
used in to take into
account changing
economic standards?
Case overruled by
G&R.
Case which shows the
unfairness of the
approach before the
PS.
Name:
Name:
Name:
Name:
Name:

27. (a) Source A and Source B both refer to the Practice Statement.
Describe the use of the Practice Statement using the Sources and other cases. [15]

28. Look at the Practice Statement Question you have been given…
Use the form to complete the feedback on the answer you have read.

29. On to the next Court:
Reminder of rules...
The CA is bound by
and the
.
There are two divisions in the CA: the
Each division only binds
, as well as
and the
.
.
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
Practice Statement
Criminal
itself
Supreme Court
ECJ
Civil
ECtHR
reverse
Its own previous decisions

30. 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 previous
decision was made
per incuriam
There are conflicting
CA decisions (they
have to pick one!)
The CA’s earlier
decision is
inconsistent with a
later UKSC decision

31. 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

32. 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.
1. Why might this happen?
AO2 Thinking:
2. What if it is a matter of criminal law?

33. 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?

34. 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 authority is
necessary in the interests of
justice to an appellate then
this court should not shrink
from so acting.”
Spencer 1985
R v Gould 1968
How many times can you
accidently marry?!

35. Other issues affecting precedent in the Court of
Appeal…
Court of Justice of the European
Union
European Court of Human
Rights
Privy Council
The ‘other’ division
Original Precedent

36. Plenary:
Which sentences sum up your understanding of
today’s lesson?
Thinking back to your DRAG test…
I am confident with my understanding
of statutory interpretation and happy
with my progress in the test.
I am reasonably happy with my
understanding of statutory
interpretation and my progress in the
test.
I am not happy with my
understanding of statutory
interpretation and my progress in the
test.*
*if you select one of the these, on your post-it explain why.
Thinking forward to the CA and
today’s learning…
I am able to understand most of the
grounds under which the CA may
overrule its prior precedent.
I understand at least one of the
occasions under which the CA may
overrule its prior precedent.
I do not understand when the Court
of Appeal can overrule its previous
precedents.*

37. Starter:
Supreme or just court up in an appeal?
Can you identify the case… and identify in which appellate court the case was heard.
A-B Challenge: what were the grounds for overruling in each case?

38. Applying the Law:
Do you understand the courts‟ powers?
(b) Identify and explain what the courts can do in the following situations, using your knowledge
of the rules of stare decisis.
(i) A case comes before the House of Lords in 1960. An earlier decision of the House of Lords in 1920 on
the same matter is now believed to be out of date.
Now complete Questions ii and iii..
 Decision as to what they can do (follow or depart)
 Why!
 Example or supporting evidence
 Any other relevant point e.g. Explaining the case or linking to the source.
Or another way they may use or something else!
1 mark
2 marks
3 marks
5 marks

39. Student Task:
Now, use that to compose your own answers to ii and iii
Hint: look at the court and the year for guidance!
A case comes before the Court of Appeal
(Civil Division) in 1950. An earlier decision
of the Court of Appeal (Civil Division) on
the same matter was made in error. [5]
Level
Content…
A case comes before the UK Supreme
Court in 2012. An earlier decision at the
UK Supreme Court from 2011 on the same
matter is now believed to be wrong. [5]
Level
Content…
1
Recognise that the instant court can
overrule the decision of the
earlier court
1
Recognise that the instant court can
overrule the decision of the
earlier.
2
the earlier decision was per incuriam
which is one of the recognised
exceptions under Youngs v Bristol
Aeroplane (1944)
2
because the new UK Supreme Court
has stated that the Practice Statement
1966 continues to apply in the same
way as it did in the House of Lords.
3
Use a relevant case – Williams v
Fawcett (1986), Rowe (2007)
3
Credit reference to Austin v Southwark
LBC (2010) or directions 3&4
4
Consider also the
possibility of distinguishing. Credit
any relevant distinguishing case.
Credit relevant reference to the source
4
Consider the possibility of
distinguishing. Credit any reference to
a relevant distinguishing case. Credit
relevant reference to the source

40. The Issue:
Should the Court of Appeal be able to ignore decisions of the House of
Lords [UKSC] which are wrong or outdated?
…after all they hear far more
appeals, so more scope for
unfairness and „wrong‟ decisions
…but the Supreme Court is
Supreme for a reason! If the CA
can just overrule them, what‟s the
point in having another court?!
Denning v The House of Lords.

41. In Summary…
Lord Denning’s arguments…
Argument One:
By introducing the Practice Statement, 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.

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

43. The final round:
In their own words
Firstly…
Read Denning‟s own words! Can you find evidence to support each of his arguments?
Now, consider the
counterargument… and decide…
The Court of Appeal should be
free to ignore the Supreme Court
where it feels it is right to do so
All of you should be able to decide
whether or not you agree with this
statement.
Most of you should be able to support
that statement with reference to judicial
opinion to support it.
Some of you will be able to link your
thinking to other areas of precedent.

44. Now you have a go!
Using the advantages and disadvantages grid, develop one of them
into a well discussed, level four point.

45. Got a date?
1944
Young v Bristol Aeroplane
Allowing the CA to overrule itself
1966
Practice Statement
Allowing the SC (HL) to overrule itself
1968
Conway v Rimmer
First use of the practice statement
1972
Herrington v BRB
First use of the practice statement in the civil law
1986
R v Shivpuri
First use of the practice statement
in the criminal law
2008
R v Hoare
Most recent use of the practice statement

46. Consolidating your understanding...

47. Cii: The Hardest Question on the paper!
Guidance from the Examiner:
 Responses will be unlikely to achieve level four
without four or more developed points. One of
which must be well developed. Cannot be one –
sided (i.e. must consider both sides of the
argument at bottom level four) and must have
balance for top level four.
 Responses will be unlikely to achieve top of level
three without four or more developed points or
two well-developed points. Three or more
developed points for the bottom of level three.
(Can be one – sided).
 Responses will be unlikely to achieve top of level
two without two developed points or one well
developed point or a range of limited points.
 Responses will be unlikely to achieve level one
without basic points advantages and/or
disadvantages.

48. Now develop a full, 15 mark response using the plan on p.18
Discuss the advantages and disadvantages of
the system of precedent [15]
Introduction
Main
You don’t need one, but if you freak, use the words of the question, and introduce one argument.
Point
Because
Ensure that you identify at least five
issues, and are able to support them with
a clear reason and/or evidence.
Cover both parts of the question... and
both sides of the argument.
A Grade:
Support your counterarguments with
clear reasoning and supporting evidence.
Conclusion
Using the key words of the question, reach a decision and explain why.
Illustration/and...
However & why

49. Remember…
you have this for help!

50. So what should a level four look like?
As the source says on line 17, the courts in England and Wales treat previous
decisions of higher courts as as “normally binding”. This is an advantage as it
helps to create certainty with everyone knowing what the law is and
therefore able to continue their public and private relations clearly. The
Supreme Court has shown this recently in the case of Grantanio v
Radmacher, where the decision on the validity of prenuptials has helped to
clarify the law in this area. However, because they have to wait for the
Supreme Court to issue a ruling this can create uncertainty especially as the
lower courts might decide something differently, as in this case.

51. Plenary:
Checking your understanding!
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.