R v James and Karimi [2006] CA

Wednesday 25 January 2006 at 10:12 pm | In News | 1 Comment

The law of precedent appears to have been changed by the Court of Appeal, who in this judgment has preferred the ruling by the Privy Council to the House of Lords, text books on the law of precedent need rewriting as from today. Two appeals were heard together because each turns on the true interpretation of “provocation” s3 Homicide Act 1957. The court sat five strong because they raise a novel and important question of the law relating to precedent.

Held: In effect, in the long term at least, Holley has overruled Morgan Smith.

Full case report here

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  1. A reply to the post on R v James. I cannot think it is right that we should re-write the law on precedent. The comment below from the judgement at para 17 illustrates this:

    “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
    Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a decision when it appears right to do so.
    In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
    This announcement is not intended to affect the use of precedent elsewhere than in this House.”

    This is also a judgement of the Court of Appeal and is likely to be taken to the House of Lords by the defendants. The House of Lords are then likely to say that whilst the Court of Appeal are obliged to ovserve the principles of stare decisis – Smith (Morgan) nevertheless no longer represents good law. An appeal will clarify the point and leave precedent intact. Any House of Lords decision from now onwards would say that the Court of Appeal must follow higher authority – so precedent is in fact, intact at the moment, in reality.

    Comment by Jassim Kanani — Sunday 19 February 2006 2:11 am #

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