1. PROBLEMA DE INVESTIGACIÓN
1.1 ANTECEDENTES
1.1.1 Investigaciones sobre el Clima Organizacional y la Satisfacción
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The Practice Statement 1966 and the rule in Young v. Bristol Aeroplane give the house of lords and court of Appeal respectively the ability to avoid previous decisions of courts at the same level. in the case of the court of Appeal, the circumstances in which the previous decisions of the court of Appeal can be avoided are narrowly defined whereas the house of lords exercises its power with caution because of the wider implications of departing from its own decisions in terms of the legal principle that results.
other than by the operation of these particular rules, there are several methods that a court (at any level) can use to avoid an otherwise binding precedent. The approach taken depends upon whether the court which is confronted with the precedent wishes to merely avoid the precedent but to allow it to continue to exist as legal authority or whether the court wishes to deprive the precedent of any future legal effect.
overruling
overruling occurs when a court higher in the hierarchy overturns the decision of a lower court in a different case. This not only means that the higher court is not bound to follow the earlier decision but that it is negated of any legal force; indeed, it is regarded as never having been the law.
reversing
here, a court higher in the hierarchy overturns the decision of a lower court in the same case. for example, the house of lords in R v. Woollin [1999] 1 Ac 82, hl refused to follow the approach taken by the court of Appeal in the same case, upholding the defendant’s appeal against his conviction for murder and reversing the decision of the court of Appeal definition of oblique intention.
distinguishing
An alternative way in which an existing precedent that would otherwise be binding can be avoided is if the court decides that the case before them is materially different, either on the facts or on the point of law. By distinguishing in this way, the court is saying that they will not be applying the earlier case because it is not sufficiently similar to the case before them; the cases can be distinguished (on the facts or the law).
AvoidinG An AWKWArd precedenT ExaM TIP
in a problem question, always consider whether it is possible to avoid a precedent by distinguishing on the law or the facts. The question may ask you to give advice to someone who has been charged with a criminal offence where the precedents seem stacked against them. You will impress the examiner (and your client!) if you can think of ways in which earlier precedents can be avoided. An alternative to this approach is to interpret the ratio of the earlier case widely rather than narrowly so that there is greater scope to apply the authority but reach a decision which is consistent with what the judges want to achieve in the case. in many ways, it is true to say that the ratio of a case remains unclear until it is identified and applied by a later court.
Chapter summary
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Test yourself
can you tick all the points from the
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revision checklist at the beginning ofthis chapter?
Attempt the
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sample question from the beginning of this chapter using the answer guidelines below.Go to the
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companion website to access more revision support online, including interactive quizzes, sample questions with answer guidelines, ‘you be the marker’ exercises, flashcards and podcasts you can download.Answer guidelines
See the essay question at the start of the chapter. A diagram illustrating how to structure your answer is available on the companion website.
Approaching the question
There is more to this question than initially meets the eye. on the face of it, it
be avoided which might lead you to discuss only the ideas of distinguishing, overruling and reversing. it is also important to remember that judges will also avoid following a decision from an earlier case if it is not binding upon them.
important points to include
discuss the operation of precedent in relation to the hierarchy of the courts.
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Make sure that you cover all possible courts.
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identify the exceptions for each court, especially the house of lords (
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Statement) and the court of Appeal (Young v. Bristol Aeroplane).
consider reasons why the courts may wish to avoid being bound. Key points
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to include here are:
flexibility – the courts can develop the law without waiting for parliament to
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legislate in response to changing views of society;
justice and fairness – very old precedents may be outdated and have no
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place in today’s society, yet a strict operation of the rules of precedent may lead to strange decisions;
liberty – especially the flexibility that the court of Appeal has in criminal
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Give a clear introduction which explains to the examiner the approach and
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structure you are going to take.
explain the
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Although there are only two absolutely essential authorities in this area, it is amazing how many students fail to explain them in sufficient depth (or at all!).
provide a thoughtful analysis of why judges may wish to choose to avoid
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being bound: this will demonstrate understanding as well as simple knowledge.
Summarise the main points you have made in a focused conclusion.
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3 Make your answer stand out
AvoidinG An AWKWArd precedenT
cross, r. (1991) Cross, Harris and Hart, Precedent in English Law, 4th edn, oxford:
clarendon.
Maccormick, n. (1978) Legal Rules and Legal Reasoning, oxford: clarendon.
Simpson, A. (1957 and 1958) ‘The ratio decidendi of a case’, 20 Modern Law Review 413;
21 Modern Law Review 155.
Wright, lord (1943) ‘precedent’, 8 Cambridge Law Journal 118.
reAd to impress
notes
notes
revision checklist
Essential points you should know:
How criminal proceedings are started
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the factors which influence whether a particular alleged offence will be
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prosecutedthe operation of bail, how it is granted and why it may be refused