Outline how judges can avoid following precedent by distinguishing a previous precedent and overruling a previous precedent.

Distinguishing is a way of avoiding having to follow a previous decision because the material facts are different or because the statement of law in the previous case can not be adequately applied to the new case because it is too narrow.

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A judge may have to follow a previous decision because the decision in question was made on similar legal principles in a court above it in the hierarchy. If that is the case the judge has no alternative but to follow the previous decision and this remains the case even if the judge does not agree with the decision. Distinguishing is a method which can be used by a judge to avoid having to follow a previous decision which he or she would normally be bound to follow.

The method of distinguishing can be applied if the judge can find that the material facts of the case he or she is deciding are sufficiently different from the previous decision. These facts must be relevant and material to the legal principles which will determine the outcome of the case – trivial or minor differences will not suffice. Sometimes the practice of distinguishing is criticised as it leads to 'hair splitting' or 'illogical' differences, meaning that it is hard to see any real justification for not following the previous precedent thus making the law become uncertain. Certainty is a key reason behind having a system based upon past judicial decisions.

Distinguishing will enable the judge to make a distinction between the present case and the previous decision which would otherwise form a precedent which the judge must follow. Unless the judge is able to draw such a distinction he would be bound to follow the previous case even if he or she did not agree with the legal reasoning. The concept of judicial precedent is strictly adhered to.

There are two cases which are often cited by way of illustration of how distinguishing works. The cases are Balfour v Balfour (1919) and Merritt v Merritt (1971). In both cases a wife made a claim against her husband for breach of contract.

In Balfour v Balfour (1919) the husband went overseas to work and his wife was unable to go with him, he agreed orally to send her £30 a month until she was able to join him. The relationship broke down and the payments ceased. The wife tried to get the agreement enforced but the claim failed as it was decided that there was no intention to create legal relations (one of the conditions one would normally expect in order to find that a legally binding agreement existed). The arrangement was one which was considered to be a domestic arrangement between a husband and a wife.

In the later case the claim succeeded. The court in the case of Merritt v Merritt (1971) were able to distinguish that there were material differences in the facts of the case of Merritt from those in the case of Balfour. In Merritt the husband had agreed to pay £40 per month maintenance, the wife was to use this to pay the mortgage and, once the mortgage was paid off, the house was to be transferred from joint names to the wife's name. Although this had been written down and the agreement signed, the husband would not transfer the house when the mortgage was paid.

The differences were that in the Merritt case the parties were already separated so the relationship between one family member and another could be seen to be different and more distant. This might explain why the parties decided to put the agreement in writing, again this was not the case in Balfour and did indeed suggest that in the case of Merritt there was an intention to put the arrangement on a more formal footing.

So in this case the husband had to transfer the house to the wife. Some might also argue that over the time between the cases, society's attitude towards the subject of marital breakdown may well have changed and that the court's decision in Merritt simply needed to be more realistic and reflect the parties' need to protect themselves.

Overruling - Overruling a previous precedent arises where a court decides, in a later case, that the legal ruling or reasoning in an earlier case was wrong.

Should a court in a later case decide that the legal ruling or reasoning in an earlier case was wrong, then it follows that 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: 

  • when a higher court overrules a decision made by a lower court in an earlier case e.g. the Supreme Court overruling the decision of the Court of Appeal in an earlier case;
  • when the European Court of Justice decides to overrule a previous decision that it has made by not following the decision;
  • when the Supreme Court 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 address 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 distribute 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.


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