Avoiding Precedent
There are some ways in which that courts can avoid having to follow precedent. They may wish to do this if they do not agree with the precedent or that they have to follow a different approach to the previous precedent.
There are some ways in which that courts can avoid having to follow precedent. They may wish to do this if they do not agree with the precedent or that they have to follow a different approach to the previous precedent.
Overruling is another method of a court avoiding a previous precedent.
Find another handy webpage HERE at e-lawresources which also covers this material |
OVERRULING
....do not confuse overruling with reversing... reversing of a decision is simply something that a higher appeal court can do to a case that has been decided in one way int eh court below and that they then decide to reverse and to decide the other way!
Remember, the Supreme Court can use the Practice Direction to overrule its own decisions, but all courts can overrule any lower court. ReversingOnly done by appeal court judges when changing the decision in a case during an appeal away from that of the court below. A decision can be reversed more than once as a case travels up the relevant hierarchy.
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Distinguishing
The lower courts can state that cases are different from each other and precedents so that they do not have to follow them. An example of this is the R v Brown 1993 case, where the courts said you cannot consent to those kinds of injuries involved. In R v Wilson 1997, the courts said that the injuries were similar to tattooing which you can consent to. This is used by lower courts as they do not have the power to step away from the higher courts' decisions without being embarrassed and overruled. The courts can use this to split hairs and pick tiny differences so that they do not have to follow precedent.
It is notorious that where an existing decision is disapproved but cannot be
overruled courts tend to distinguish it on inadequate grounds. I do not think
that they act wrongly in so doing: they are adopting the less bad of the only
alternatives open to them. But this is bound to lead to uncertainty for no one
can say in advance whether in a particular case the court will or will not feel
bound to follow the old unsatisfactory decision. On balance it seems to me that
overruling such a decision will promote and not impair certainty of the
law”. Lord Reid R v National Insurance Commissioners ex p Hudson 1972