Understanding the operation of Judicial Precedent and case reading activity (R v Burke (1)) PDF

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Seminar seven Understanding the operation of Judicial Precedent and case reading activity (R v Burke (1))

AIMS AND OBJECTIVES • to gain further experience at understanding judicial dicta • to understand the operation of judicial precedent generally and in individual courts o To gain further experience at reading cases including identifying material facts, legal issue and ratio decidendi

Required Reading 1. Your lecture notes on judicial precedent ; and 2. Case extract from National Westminster Bank plc v Spectrum Plus Limited [2005] 7UKHL 41 (reproduced below); and 3. R v Burke [1990] 2 All ER 395(reproduced below); and 4. Ian McLeod, Legal Method (2013), chapter eight (Digitalised copy available via the Resource last and a pdf. copy is available in the ‘Seminar Materials’ unit of the Learning Room); or Jo Ann Boylan-Kemp English Legal System: The fundamentals, 2-001 – 2-035; or Wilson, Rutherford, Storey and Wortley English Legal System, Chapter five. Further reading/ resources o o o o

Catherine Elliott and Frances Quinn, English Legal System, Chapter 1, pp 10 - 23 (available via the Resource list) Lecture on Judicial precedent and the role of the Judges –see link in NOW Boylan-Kemp: 1-011 – 1-016, 1-033 – 1-035, 2-001 – 2-035 Gary Slapper and David Kelly, English Legal System (Available via the Resource list), 4.1, 4.2, 4.4, 4.5 and 4.6 (Include a detailed explanation of the operation of judicial precedent in the individual courts

Please prepare written answers to the following questions and be prepared to discuss your answers in class.

Question one A.

Explain and illustrate the principle of res judicata.

B.

(i) Explain the four features of precedent identified by Lord Nicholls in the following extract from National Westminster Bank plc v Spectrum Plus Limited [2005] UKHL 41. (ii)Explain what is meant by the ‘retrospective effect of precedent’. (iii) Explain what is meant by prospective only overruling.

National Westminster Bank plc (Respondents) v. Spectrum Plus Limited and others and others (Appellants)[2005] UKHL 41 LORD NICHOLLS OF BIRKENHEAD Prospective overruling … 4. The starting point is to note some basic, indeed elementary, features of this country's judicial system. The first concerns the essential role of courts of law. In the ordinary course the function of a court is adjudicative. Courts decide the legal consequences of past happenings. Courts make findings on disputed questions of fact, identify and apply the relevant law to the facts agreed by the parties or found by the court, and award appropriate remedies. 5. The second feature concerns the wider effect of a court decision on a point of law. To promote a desirable degree of consistency and certainty about the present state of 'the law', courts in this country have long adopted the practice of treating decisions on a point of law as precedents for the future. If the same point of law arises in another case at a later date a court will treat a previous decision as binding or persuasive, depending upon the well-known hierarchical principles of 'stare decisis'. 6. The third feature is that from time to time court decisions on points of law represent a change in what until then the law in question was generally thought to be. This happens most obviously when a court departs from, or an appellate court overrules, a previous decision on the same point of law. The point of law may concern the interpretation of a statute or it may relate to a principle of 'judge-made' law, that is, the common law (which for this purpose includes equity). A change of this nature does not always involve departing from or overruling a previous court decision. Sometimes a court may give a statute, until then free from judicial interpretation, a different meaning from that commonly held. 7. The fourth feature is a consequence of the second and third features. A court ruling which changes the law from what it was previously thought to be operates retrospectively as

well as prospectively. The ruling will have a retrospective effect so far as the parties to the particular dispute are concerned, as occurred with the manufacturer of the ginger beer in Donoghue v Stevenson [1932] AC 562. When Mr Stevenson manufactured and bottled and sold his ginger beer the law on manufacturers' liability as generally understood may have been as stated by the majority of the Second Division of the Court of Session and the minority of their Lordships in that case. But in the claim Ms Donoghue brought against Mr Stevenson his legal obligations fell to be decided in accordance with Lord Atkin's famous statements. Further, because of the doctrine of precedent the same would be true of everyone else whose case thereafter came before a court. Their rights and obligations would be decided according to the law as enunciated by the majority of the House of Lords in that case even though the relevant events occurred before that decision was given. 8. People generally conduct their affairs on the basis of what they understand the law to be. This 'retrospective' effect of a change in the law of this nature can have disruptive and seemingly unfair consequences. 'Prospective overruling', sometimes described as 'nonretroactive overruling', is a judicial tool fashioned to mitigate these adverse consequences. It is a shorthand description for court rulings on points of law which, to greater or lesser extent, are designed not to have the normal retrospective effect of judicial decisions. 9. Prospective overruling takes several different forms. In its simplest form prospective overruling involves a court giving a ruling of the character sought by the bank in the present case. Overruling of this simple or 'pure' type has the effect that the court ruling has an exclusively prospective effect. The ruling applies only to transactions or happenings occurring after the date of the court decision. All transactions entered into, or events occurring, before that date continue to be governed by the law as it was conceived to be before the court gave its ruling. 10. Other forms of prospective overruling are more limited and 'selective' in their departure from the normal effect of court decisions. The ruling in its operation may be prospective and, additionally, retrospective in its effect as between the parties to the case in which the ruling is given. Or the ruling may be prospective and, additionally, retrospective as between the parties in the case in which the ruling was given and also as between the parties in any other cases already pending before the courts. There are other variations on the same theme... United Kingdom practice 12. Prospective overruling has not yet been adopted as a practice in this country. The traditional approach was stated crisply by Lord Reid in West Midland Baptist (Trust) Association Inc v Birmingham Corporation [1970] AC 874, 898-899, a case concerning compulsory acquisition: 'We cannot say that the law was one thing yesterday but is to be something different tomorrow. If we decide that [the existing rule] is wrong we must decide that it always has been wrong, and that would mean that in many completed transactions owners have received too little compensation. But that often happens when an existing decision is reversed.'

13. In Launchbury v Morgans [1973] AC 127, 137, Lord Wilberforce noted 'We cannot, without yet further innovation, change the law prospectively only'. More recently, in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 379, Lord Goff of Chieveley said the system of prospective overruling 'has no place in our legal system'.

Question two A. What does the expression “obiter dictum” mean? Give an example of something that would be obiter in a judgment. B. What does the expression “overruling” mean? C. What is meant by the expression “persuasive authority”? Please provide an example of persuasive authority. D. It is important that you feel confident about the terminology associated with the doctrine of precedent, and that you can use it correctly. Consider the following (fictitious) scenario, and fill in the missing words. i. In 1990, Betty Bloggs was convicted by the Crown Court of the murder of her husband Alf. In her defence, Betty claimed that Alf had treated her brutally throughout their 20 years of marriage, and that this constituted provocation, even though there had been no violence between them immediately prior to the murder. The Crown Court judge had been persuaded by this argument, and regarded Betty’s defence as correct in law. On appeal by the prosecution, however, the Court of Appeal (Criminal Division) held that this extension of the defence of provocation was incorrect. The decision of the Crown Court on this point of law was . . . . . . . . . . by the Court of Appeal.

ii. In 1993, a similar case arose. Carrie Careful was charged with the murder of her husband Denis. She pleaded a similar defence to that of Betty Bloggs. The Crown Court regarded itself as bound by the previous decision in the Court of Appeal. However, in Carrie’s case, the court found that Denis had been violent towards her within an hour of the murder taking place. Because of this difference in the facts, the Crown Court was able to . . . . . . . . . the case of Betty Bloggs, and did not follow it.

iii. In 1994, Emily Earnest was charged with the murder of her husband Fred, in circumstances identical to those in the Betty Bloggs case. Both the Crown Court and the Court of Appeal followed the precedent set in the Betty Bloggs case, but on appeal to the House of Lords, it was decided that this interpretation of the law was completely incorrect, and the Betty Bloggs case was . . . . . . . . . .

Question three (a) You are a High Court Judge in the Queen’s Bench Division. Are you bound by the decisions of other High Court Judges in the same division and in different divisions? (b) You are a High Court Judge in the Queen’s Bench Division. Are you bound by decisions of the Administrative Divisional courts? Give reasons for your answer. (c) You are a judge in the Court of Appeal (Civil Division). In what circumstances may you depart from an earlier decision of the Court of Appeal (Civil Division)? (d) You are a judge in the Court of Appeal (Criminal Division). In what circumstances may you depart from an earlier decision of the Court of Appeal (Criminal Division)? (e) You are a judge in the Divisional court of the Queen’s Bench Division dealing with an appeal from the Magistrates’ court. Are you bound by an earlier decision of the Divisional court? (f) Refer to the text of the Practice Statement (Judicial Precedent)1. What reasons are given for modifying the previous practice of the House of Lords? (g) Give two examples of where the House of Lords / Supreme court has relied upon the Practice Statement (Judicial Precedent) and, in each case, explain why it did so.

Question four Please read the extracts provided from the case of R v Burke2 on the following pages and answer the questions below. Suggested answers will be available in the Learning Room after seminar. Note: You are required to answer a further question regarding the case in seminar eight. After you have attended seminar seven it is strongly recommended that you attempt to answer this question whilst the case is still fresh in your mind. a.

Select the material (i.e. important) facts from the following list: 1. The appellant was tried in the Crown Court at Knightsbridge.

1

[1966] 1 W.L.R. 1234

2

[1990] 2 All ER 385

2. The appellant purchased 43 Fitzroy Street, London W1, in about April 1983. 3. The appellant was a landlord. 4. The tenants had been living in the house at the time of the landlord purchased the property. 5. Mr. and Mrs. Esteban occupied a room on the third floor of the house. 6. Mr. Mustafa Hassouni occupied a room in the basement. 7. Mr. and Mrs. Gesto occupied a room on the first floor. 8. The appellant was charged with an offences contrary to ss. 1(3)(a) and 1(3)(b) of the Protection from Eviction 1977 Act, namely that the appellant did acts calculated to interfere with the peace and comfort of the tenants with the intent to cause them to give up occupation of the premises. 9. It had not been established that the principal acts of harassment relied on by the prosecution infringed any contractual rights of the tenants. 10. Mr. Hassouni had been a tenant in the premises since 1972. 11. Until the appellant purchased the premises, Mr. Hassouni had used the lavatory and bathroom in the basement adjacent to his room. The appellant prevented Mr. Hassouni from using that bathroom and lavatory by storing furniture in the bathroom and corridor. The appellant padlocked the door to the lavatory on the half landing between the ground and first floors. 12. The appellant deliberately disconnected a front door bell which communicated with the basement floor. The appellant attempted to get Mr. Hassouni to sign an application form for accommodation addressed to the local housing authority and treated him in a dictatorial way ordering him to go down to the basement when he was speaking to Mr. Gesto on the first floor. (b)

Re-write the material facts clearly, concisely and in a logical order.

(c)

Explain, in your own words, the legal issue in the case.

[1990] 2 All ER 385 R v Burke

HOUSE OF LORDS LORD KEITH OF KINKEL, LORD ROSKILL, LORD GRIFFITHS, LORD ACKNER AND LORD LOWRY 22 MARCH, 17 MAY 1990

Appeal Alasdair David Burke appealed with leave of the Appeal Committee of the House of Lords given on 1 February 1989 against the decision of the Court of Appeal, Criminal Division (Glidewell LJ, Hodgson and Gatehouse JJ)([1988] Crim LR 839) on 9 May 1988 dismissing his appeal against his conviction at the Crown Court at Knightsbridge on 6 April 1987 before his Honour Judge Hayman and a jury on two charges of unlawful harassment contrary to s 1(3) of the Protection from Eviction Act 1977 for which he was fined £250 on each count and ordered to pay £450 costs. The Court of Appeal had refused leave to appeal to the House of Lords but had certified, under s 33(2) of the Criminal Appeal Act 1968, that a point of law of general public importance was involved in the decision to dismiss the appeal. The facts are set out in the opinion of Lord Griffiths. Their Lordships took time for consideration 17 May 1990. The following opinions were delivered.

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LORD GRIFFITHS. My Lords, the appellant was tried in the Crown Court at Knightsbridge on an indictment containing six counts of unlawful harassment contrary to s 1(3) of the Protection from Eviction Act 1977. He was convicted on two counts. His appeal against conviction was dismissed by the Court of Appeal…

5

The appellant now appeals pursuant to leave granted by the Appeal Committee of this House.

6

Section 1(3) of the Act of 1977 provides:

‘If any person with intent to cause the residential occupier of any premises—(a) to give up the occupation of the premises or any part thereof; or (b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof; does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence.’

7 8 9 10 11 12 13 14 15 16 17 18

The appellant purchased 43 Fitzroy Street, London W1, in about April 1983. The indictment alleged harassment by the appellant against a number of tenants who had been living in the house at the time of his purchase. Mr. and Mrs. Esteban occupied a room on the third floor of the house, Mr. Mustafa Hassouni occupied a room in the basement and Mr. and Mrs. Gesto occupied a room on the first floor. The first and second counts in the indictment related to the Estebans. The first count alleged an offence contrary to s 1(3)(a) of the 1977 Act, namely that the appellant did acts calculated to interfere with the peace and comfort of the Estebans with the intent to cause them to give up occupation of the premises. The second count alleged an offence contrary to s 1(3)(b) of the Act, namely that the appellant did acts calculated to interfere with the peace and comfort of the Estebans with intent to cause them to refrain from exercising their rights or pursuing their remedies in respect of the premises or part thereof. Counts three and four related to Mr. Hassouni and counts five and six related to the Gestos; they were framed identically with counts one and two.

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At the close of the prosecution case the judge upheld a submission that there was no case to answer on counts two, four and six, which alleged offences contrary to s 1(3)(b) because it had not been established that the principal acts of harassment relied on by the prosecution infringed any contractual rights of the tenants and the whole thrust of the prosecution case was directed to establishing an intent to oust the tenants from the premises rather than to cause them to refrain from exercising any right or remedy in respect of the premises. The judge therefore directed the jury to acquit the appellant on counts two, four and six. The judge left counts one, three and five to the jury. They acquitted on count one but convicted on counts three and five, which concerned Mr. Hassouni and Mr. and Mrs. Gesto.

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The principal acts of harassment relied on by the prosecution in the case of Mr. Hassouni may be summarised as follows. Mr. Hassouni had been a tenant in the premises since 1972 and until the appellant purchased the premises Mr. Hassouni had used the lavatory and bathroom in the basement adjacent to his room. The appellant prevented Mr. Hassouni from using that bathroom and lavatory by storing furniture in the bathroom and corridor. The appellant padlocked the door to the lavatory on the half landing between the ground and first floors. The appellant deliberately disconnected a front door bell which communicated with the basement floor. The appellant attempted to get Mr. Hassouni to sign an application form for accommodation addressed to the local housing authority and treated him in a dictatorial way ordering him to go down to the basement when he was speaking to Mr. Gesto on the first floor. When Mr. Hassouni told the appellant to stop harassing him he replied: ‘If you don’t want to be harassed go to the council to be rehoused.’

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The principal acts of harassment relied on in the case of the Gestos were padlocking the lavatory between the ground and first floors and deliberately disconnecting the front door bell communicating with the first floor.

46 47 48 49 50 51 52

In relation to these counts the judge directed the jury that none of the principal matters complained of constituted a breach of contract on the part of the appellant because the tenants in question (a) although entitled to have the use of the bathroom and lavatory somewhere within the building, were not contractually entitled to insist on a particular bathroom or lavatory being kept available and (b) were not entitled to require the appellant to maintain a system of front door bells. He then continued:

‘The fact that these tenants were not entitled, as a matter of law, to have a system of front door bells does not end the matter. You will have to decide (if you accept that this man cut off the system of bells): why did he do it? If he padlocked the lavatory on the half landing and was entitled to take that lavatory out of use as a matter of civil law between the two of them, then why did he do it? If you are sure he did these acts (whatever the civil law may be) with the purpose or the aim of getting the tenants to leave, then you will convict.’

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