Where a court decides that the legal ruling or reasoning in an earlier case was not correctly applied or is no longer appropriate.

Overruling a previous precedent arises where a court decides, in a later case, that the legal ruling or reasoning in an earlier case was not correctly applied or no longer appropriate, the court is really saying that the earlier decision should not now be followed and the case is no longer considered to be good law.

Illustrations of when overruling may occur are:

  1. when a higher court overrules a decision made by a lower court in an earlier case e.g. the House of Lords overruling the decision of the Court of Appeal in an earlier case;
  2. when the European Court of Justice decides to overrule a previous decision that it has made by not following the decision;
  3. when the House of Lords decides to exercise its discretion and declare one of its own previous decisions to be no longer law and overrules it.

The cases of  Pepper v Hart (1993) and Davis v Johnson (1978) provide a good example of the principle of overruling by the House of Lords using its authority under the Practice Statement 1966

In Pepper v Hart the House of Lords decided that Hansard (the official record of of what is said in Parliament) could be admitted in evidence before the court when trying to decide what was meant by particular words in a statute.  This meant that the earlier decision of Davis v Johnson to the effect that Hansard could not be consulted, no longer represented the law and was overruled.

A rare example of overruling in a criminal case using the powers of the Practice Statement can be found with the case of R v Shivpuri (1986) in which the House of Lords acknowledged that they needed to take the opportunity of putting right the mistake they had made in Anderton v Ryan (1985)

In Anderton v Ryan the defendant had bought a video recorder, but later confessed to the police that she believed it to have been stolen property when she bought it.  The defendant was charged with attempting to handle stolen goods.  Later in the proceedings the prosecution had to accept that they were unable to prove that the goods were stolen property.  Nevertheless the defendant was convicted.

The matter eventually came to the attention of the House of Lords who, by a majority of 4-1, quashed the defendant's conviction on the ground that she could not be guilty of attempting to handle stolen goods unless such property could be shown to be stolen.  The majority of their Lordships refused to accept that the defendant's belief that the goods were stolen was sufficient in itself to result in liability.  Such a result may have been the aim of the Criminal Attempts Act 1981 but their Lordships felt that Parliament would have to express its intentions more clearly before the courts would be willing to impose liability solely on the basis of what the defendant had thought she was doing, as opposed to what she was actually doing.

The House of Lords did not have to wait long before they had the opportunity to adress this problem again.  In R v Shivpuri ( 1986) the defendant was paid to act as a drugs courier.  He was required to collect a package containing drugs and to contribute its contents according to instructions which would be given to him.  When the defendant collected the package the defendant was arrested by police officers he confessed to them that he believed its contents to be either heroin or cannabis.  An analysis revealed the contents of the package not to be drugs, but a harmless vegetable substance.  The defendant was convicted for attempting to be knowingly concerned in dealing and harbouring a controlled drug, namely heroin.  The House of Lords took the opportunity of making it clear that, even though Anderton v Ryan had only been decided by them a short time before, they now felt that their earlier decision was wrong and that they were overruling that decision and declaring the law to be as they found it to be in Shivpuri.

There is a reluctance to overrule old decisions and this may be because overruling operates retrospectively, meaning that the principle of law being overruled is held never to have been law. It may also have the effect of criminalising previously lawful behaviour.

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