RULE OF LAW

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RULE OF LAW

• By Captain Natalie Robinson

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Initial Matters

• Short Course all speak good enough english to
  understand?
• Who requires assistance?
• Words or phrases you did not understand last week?

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• COMMON LAW
• 1066
• William the Conqueror created Curia Regis (Kings
  Court)
• Judges travelled to major towns
• Local customs and Anglo-Saxon laws
• Decisions then became common law

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JUDICIAL PRECEDENT

• Case law, past decisions create law
• Doctrine of Precedent
• stand by what has been decided and do not
  unsettle the established
• Ratio Decidendi
• Obiter Dicta
• Judgements provided by one or more judges
• Often reasons by each judge given if difficult
  area of law

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• Original precedent legal point never decided
  before
• Hunter and others V Canary Wharf (1995)
  erection of Canary Wharf said to interfere with
  TV reception. Question was was it actionable as
  a nuisance?
• Binding Precendent past decisions must be
  followed

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• Persuasive Precedent not binding but can be
  followed
• R v R (1987) House of Lords agreed with Court
  of Appeal that a husband can be guilty of raping
  his wife

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HIERARCHY OF THE COURTS

• Every court must follow a decision made by a
  higher court
• As a general rule, all are bound to follow their
  own past decisions
• Appellate Courts
• 1) European Court of Justice
• Affects UK since 1973
• House of Lords may still be the supreme court

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• 2) House of Lords
• Senior National court
• 3) Court of Appeal
• Civil and criminal matters
• Can depart from past decisions if liberty at risk
• 4) Divisional Courts
• 3 divisions Queens Bench, Chancery, Family

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• 5) High Court
• Colchester Estates (Cardiff) V Carlton Industries
  plc (1984) where 2 decisions conflict
• 6) Inferior Courts
• Crown court, county court, magistrates court

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HOUSE OF LORDS

• 1898 1966 felt it was bound by all past
  decisions unless there had been an error
• Anything unsatisfactory required an Act of
  Parliament to rectify
• DPP V Smith (1961) murder was contrary to
  common law. Held could be guilty if a
  reasonable man would have foreseen death or very
  serious injury
• Criminal Justice Act 1967 to be guilty had to
  intend to cause death or serious injury

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• 1966 Practice Statement use of precedent is
  indispensable to the foundation to decide what is
  law and apply it to individual cases
• New decisions create case law
• R V R and G (2003) overruled the case of
  Caldwell (1982) question of recklessness.
  Earlier objective test, amended to subjective

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COURT OF APPEAL

• S.2(1)(a) Human Rights Act 1998
• Only depart from past decisions if they were
  careless or a mistake
• Williams V Fawcett (1986)
• In criminal devision can depart where the
  decision involves someones liberty

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TYPES OF PRECEDENT

• 1) Distinguishing
• Material facts are different
• Balfour V Balfour (1919) and Merritt v Merritt
  (1971)
• First case did not involve an intention to create
  legal relations, second did

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• 2) Overruling
• Earlier decisions is wrong
• Pepper V Hart (1993) and Davis V Johnson (1979)
  consultation of Hansard
• 3) Reversing
• Overturning a decision of a lower court on appeal

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• Judicial Law Making
• Involves many areas eg, negligence Donoghue V
  Stevenson (1932) neighbour test
• you must take reasonable care to avoid
  acts/omissions which you can reasonably foresee
  would be likely to injury your neighbour
• Criminal divison - murder

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• Effect of Acts of Parliament
• Previous precedents cease to apply
• Comparison with other legal systems
• Code of law, judge merely interprets
• USA, can rule differently
• Prospective overruling

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• Advantages
• Certainty
• Consistency
• Precision
• Flexibility
• time

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• Disadvantages
• Rigidity
• Complexity
• Illogical distinctions
• Slowness of growth

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• Law Reporting
• Since 13th century
• Widely inaccurate until 1865, Incorporated
  Council of Law Reporting
• internet