учебный год 2023 / Stare decisis-1
.pdfStare Decisis in the Divisional Court Author(s): O. M. Stone
Source: The Modern Law Review, Vol. 14, No. 2, (Apr., 1951), pp. 219-224 Published by: Blackwell Publishing on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1089529
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APRIL 1951 |
NOTES OF CASES |
219 |
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Finally, |
let us consider the question of mens rea on facts slightly |
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different from those in Rose v. Matt. |
Supposing that, |
while the |
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clock was in the shopkeeper's hands, |
some thief-other |
than the |
true owner of the clock-wrongfully takes it away, with no intention of keeping it permanently but intending to use it and then return it. In fact, the thief keeps the clock for the whole of the stipulated month and then, discovering who is the real owner of the clock, returns it to him. Two possibilities require consideration.
In the first place, is the thief guilty of larceny against the true owner? Assuming it is proved that when he took the clock the accused had no intention of permanently keeping it, it is evident that in regard to the true owner, there was no animus furandi at the time of 'taking'. It follows that larceny against the true owner cannot be sustained.
Alternatively, is the thief guilty of larceny against the shop- keeper, the bailee for value ? It is suggested that the answer depends on whether or not the thief has knowledge of the bailment, at the time of 'taking '. Thus (i) if the thief did not know of the bailment and took the clock away intending to return it at the end of the month, which he does, how can there be a fraudulent intent to prevent the bailee for value from exercising his rights under the bailment? In such circumstances, it is submitted, there is no
larceny,against the bailee. (ii) If, however, the thief knew of the bailment at the time of 'taking ', his keeping the clock for the stipulated month would indicate an original fraudulent intent to deprive the bailee of his legal possession, and his rights under the bailment. That, as we have seen in Rose v. Matt, is sufficient for
larceny.
Enough has been said to indicate that, however strongly the courts may seek to rely solely on the Larceny Act, 1916, to find what amounts to stealing, the problems lurking beneath its provisions ought not to, and cannot, be solved without resort to the common
law principles of larceny.
J. LL. J. EDWARDS.
STARE DECISIS IN THE DIVISIONAL COURT
THEdoctrine that the Divisional Court is bound by its own decisions, which was laid down by Lord Goddard C.J. in his judgment in Police Authority for Huddersfield v. Watson,' has not been allowed to languish untended; Nicholas v. Penny 2 is the most recent of several cases in the Divisional Court in which the Lord Chief
Justice has personally affirmed and extended the principle and more precisely delimited its application.
1 [1947] |
K.B. 842, and see M.L.R. (1948) Vol. 11, p. 95. |
2 [1950] |
2 K.B. 466. |
220 |
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THE |
MODERN |
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REVIEWr |
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VOL. 14 |
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In |
R. |
v. |
Porter,' |
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Younghusband |
v. |
Lvftig |
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4 and |
Nicholas |
v. |
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Penny 2 the Lord Chief |
Justice |
has repeated |
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that |
the |
Divisional |
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Court is bound by its own decisions |
in |
exactly |
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the |
same |
way |
and |
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subject |
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to the |
same |
exceptions |
as |
the |
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Court of |
Appeal |
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is |
bound |
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under the rule in Young |
v. |
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Bristol |
Aeroplane |
Co.,5 and |
in |
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R. v. |
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Porter |
3 he added |
that |
' if the |
Divisional |
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Court finds |
that |
the |
House |
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of Lords |
has |
given |
a |
decision |
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which |
is manifestly |
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inconsistent |
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with |
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an earlier |
decision |
of |
a lower |
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court, |
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whether |
there |
has |
been express |
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overruling |
of |
the |
earlier |
case |
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or not, |
the |
Divisional |
Court ought |
not |
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follow |
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it. ... |
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This |
will include the case where only one |
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mem- |
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ber |
of |
the |
House |
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of |
Lords |
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has |
expressly |
stated |
that |
the |
earlier |
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decision |
was |
wrong, |
but |
the |
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Divisional |
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Court can |
see |
that |
all |
the |
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Lords who took part in |
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debate |
found |
that |
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the |
reasoning |
was |
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wrong '. |
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The |
difficulties |
arising |
in |
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the |
Court |
of Appeal |
from |
the |
doctrine |
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of |
implied |
overruling |
are |
considerable,6 |
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and |
this |
exception |
to |
the |
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rule in Young v. Bristol |
Aeroplane |
Co.5 undoubtedly |
detracts |
from |
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the |
certainty |
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of the |
law, |
which stare decisis seeks to promote. |
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The |
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last part of Lord Goddard's |
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ruling |
quoted |
above, |
however, |
would |
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seem |
designed |
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to |
avoid |
such |
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rigidity |
as was |
shown |
by |
the |
Court of |
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Appeal |
in Consett |
Industrial |
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and |
Provident |
Society, |
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Ltd. v. Consett |
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Iron |
Co., |
Ltd.,7 |
where |
that |
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court |
held |
itself |
bound |
by |
its |
own |
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previous |
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interpretation |
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of |
an |
Inclosure |
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Act |
of |
1773, |
although |
in |
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the |
meantime |
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in the |
House |
of Lords another |
Inclosure |
Act of 1757 |
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had |
been |
interpreted |
in |
a different |
way; |
one |
member |
of the |
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Lords |
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considered |
the |
interpretation |
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of the |
1773 |
Act in the Court of Appeal |
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to |
be |
wrong, |
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and |
two |
thought |
it |
distinguishable, |
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but |
the |
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whole |
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trend of |
the |
argument |
in |
the |
Lords |
was contrary |
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to |
that |
used in |
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the |
Court |
of |
Appeal. |
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According |
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to Lord |
Goddard's |
ruling, |
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how- |
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ever, |
only |
one |
member |
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of the Lords need have ' expressly |
stated' |
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that |
the |
earlier decision |
was |
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wrong, |
but |
' the |
Divisional |
Court |
can |
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see that all the Lords who took part in |
the debate |
found |
that |
the |
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reasoning |
was |
wrong |
'; |
that |
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is, |
all |
but |
one of the Lords must |
be |
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seen to have found something |
which they |
did |
not |
expressly |
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state. |
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This seems to call for |
no |
small |
measure |
of |
ingenuity |
from |
the |
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Divisional |
Court |
in |
interpreting |
their Lordships' |
judgments. |
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The |
Lord |
Chief |
Justice |
is |
certainly |
not |
unaware |
of |
the |
possible |
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hardship |
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inherent |
in |
the |
doctrine |
that |
a |
Court |
of |
Appeal |
is |
bound |
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by |
its |
own |
previous |
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decisions. |
Thus |
in |
Moore |
v. |
Hewitt |
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8 |
the |
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Divisional |
Court |
considered |
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itself |
bound |
by |
the |
decision |
in |
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John- |
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son v. Pritchard, |
of which |
reports |
had |
appeared |
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only in the Justice |
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of |
the |
Peace |
Newspaper |
and |
the |
Law |
Tirtes |
Newspaper, |
and |
the |
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3 |
[1949] |
2 K.B. 128, 132, 133. |
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4 |
[1949] |
2 K.B. 354, 361. |
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? [19441 IK.B. 718. |
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(1947), p. 349 and (1950), p. 432. |
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6 See Cambridge Law Journal |
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7 |
[1922] 2 Ch. 135. |
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[1947] |
K.B. 831, 841. |
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APRIL 1951 |
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NOTES |
OF CASES |
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221 |
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Lord |
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Chief |
Justice |
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remarked8 |
: |
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I |
hope |
that |
Johnson |
v. Pritchard |
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may some day be considered |
in |
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a higher |
court, |
but sitting |
in |
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this |
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court |
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I |
think |
we |
are bound |
by |
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it, |
although |
we |
have |
not |
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had |
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the |
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advantage |
of |
seeing |
any |
report |
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which |
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shows |
the |
reasoning |
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of |
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the |
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court'. |
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The |
fact |
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that |
the |
Divisional |
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Court |
is |
the final |
court |
of |
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appeal |
for |
cases |
tried |
before |
justices |
has |
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been |
stressed |
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elsewhere |
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by the Lord Chief Justice |
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as |
a |
reason |
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for |
holding |
it |
bound |
by |
its |
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own |
decisions, |
and |
it is a |
little |
curious |
that |
he |
should |
here |
express |
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a hope for |
review |
in |
a higher |
court. |
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In the Court of Criminal |
Appeal, |
however, |
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the |
Lord |
Chief |
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Justice |
has |
recently |
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stressed |
the |
different |
considerations |
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attaching |
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to |
the |
doctrine |
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of |
stare |
decisis in |
civil |
and |
in |
criminal |
matters, |
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and |
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in |
R. |
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v. |
Taylor |
9 he |
laid |
down: |
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' This court has to deal with ques- |
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tions |
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involving |
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the |
liberty |
of |
the |
subject, |
and |
if |
it |
finds, |
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on |
recon- |
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sideration, |
that, |
in |
the |
opinion |
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of a full court assembled |
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for |
that |
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purpose, |
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the law |
has |
been |
either |
misapplied |
or misunderstood |
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in a |
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decision which has been previously |
given, |
and |
that, |
on the |
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strength |
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of |
that |
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decision, |
an |
accused |
person |
has |
been |
sentenced |
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and |
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im- |
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prisoned, |
it is the |
bounden |
duty |
of the |
court |
to reconsider |
the |
earlier |
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decision |
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with |
a |
view |
to seeing |
whether |
that |
person has |
been |
pro- |
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perly |
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convicted. |
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The |
exceptions |
which |
apply |
in |
civil |
cases |
ought |
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not to be the only |
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ones |
applied |
in such a case as the present'. |
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The |
Divisional |
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Court |
also |
deals |
with |
precisely |
similar |
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questions |
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involving |
the liberty |
of |
the |
subject, |
but |
there |
the |
exceptions |
which |
apply in civil cases have been laid down as the only ones admissible;
moreover, |
it |
would |
seem that the Lord Chief |
Justice |
has |
himself |
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expressly |
closed |
any |
possible |
escape |
from the |
binding |
force |
of |
pre- |
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vious decisions in that court |
by |
the |
expedient |
of |
summoning |
a full |
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court to overrule |
an undesirable |
decision. |
Thus |
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whereas |
in Edwards |
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v. |
Jones,?1 |
speaking |
of |
a |
previous |
Divisional |
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Court |
decision |
in |
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Rodgers |
v. Richards |
11 the |
All |
England |
Reports |
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quote him as say- |
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ing: |
'I |
should |
have |
no |
hesitation, |
if |
necessary, |
in differing from |
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the |
decision |
in |
that |
case, |
not |
merely |
12 because |
we |
are sitting |
now |
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as a court of three and that was |
a court of two, |
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but |
also 12 because |
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case |
was |
not |
argued |
for |
the |
defendants, |
who |
did |
not |
appear |
and when a case has been argued only on one side, it has not the
authority |
of |
a |
case which |
has |
been |
fully |
argued', |
in |
the |
Law |
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Reports, |
the |
words |
merely |
and |
also are omitted. More definitely in |
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Younghtusband |
v. |
Lutftig |
3 |
he |
said: |
'A |
Divisional |
Court of |
five |
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judges has no greater powers than one of three or even two. |
This |
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court is |
bound |
by |
its |
own |
decisions |
as |
is the Court of Appeal, |
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whatever |
the number of judges that may |
constitute |
it ', |
neverthe- |
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less ' when re-argument |
is directed |
it is often |
desirable |
that |
it should |
9 [1949] 2 K.B. 368, 371, and see M.L.R. (1950), Vol. 13, No. 4, p. 417.
10[19471 1 K.B. 659, 664 and [1947] 1 All E.R. 830, 833.
11[1892] 1 Q.B. 555.
12My italics.
13Ubi supra, note 4.
222 |
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THE MODERN LAW REVIEW |
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VOL. 14 |
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take |
place |
before |
a |
full |
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court'. |
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The learned |
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Lord Chief |
Justice |
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did |
not |
enlarge |
upon |
the |
reasons |
why |
re-argument |
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should |
be |
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desirable |
before |
a full court |
which |
has no |
greater powers |
than |
any |
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of its |
divisions. |
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From |
this judgment, |
however, |
it would |
seem |
that |
the |
Divisional |
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Court |
may |
not consider |
itself |
bound |
by |
a |
decision in a |
case |
which |
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has not been argued on |
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both |
sides, |
and |
this |
appears |
to be |
borne |
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out by the All England |
Reports |
(followed |
in Current Law) of the |
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judgment |
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in |
Nicholas |
v. |
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Penny |
14 in |
which |
the |
Lord Chief |
Justice |
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is quoted |
as |
saying: |
'We |
can, |
however, |
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always |
differ |
from |
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a |
case |
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on the ground that it has not been argued on both |
sides |
'. |
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Again |
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there |
is |
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a discrepancy |
in |
the |
reports |
and |
the |
Law |
Reports |
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1 |
give |
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the |
judgment |
as |
reading: |
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'That' |
(previous) |
' case |
is |
not |
a |
very |
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satisfactory |
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one |
because |
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the |
prosecution |
was |
not |
represented |
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on |
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appeal, |
and |
a case |
which |
has |
not |
been |
argued |
on |
both |
sides |
has |
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nothing |
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like |
the |
weight |
of |
authority |
of |
one |
which |
has |
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been |
fully |
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argued. |
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But |
without |
necessarily |
saying |
that |
we |
can |
always |
diger |
16 |
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from |
a |
previous |
decision |
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of |
the |
Divisional |
Court merely |
because |
it |
has not been argued on both sides, the court is not obliged to follow
that |
decision |
. . .' (because |
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the |
previous |
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decision |
had |
been |
made |
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per incurianm, material |
cases |
not |
having |
been |
brought |
to |
the |
court's |
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attention). |
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The |
ruling |
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that |
a decision |
in |
a case |
argued |
only |
on |
one |
side |
has |
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like the weight |
of authority |
of one that has been fully |
argued |
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to indicate |
a wide |
gulf |
between |
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a case |
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and one |
fully |
argued, |
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said |
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be |
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the |
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court will not ' necessarily' |
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able to differ |
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finding |
in |
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case, at least not always |
and |
not |
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merely |
because |
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argued |
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one |
side. |
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precise |
limit |
of |
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provisions |
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obscure, |
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the resulting |
measure |
of |
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uncertainty |
quite |
considerable. |
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In |
Carr v. |
Mercantile |
Produce |
Co., |
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Ltd.,'7 |
the |
Lord |
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Chief |
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speaking |
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the Divisional |
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it is a case of the true construction |
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of a section |
and |
of what |
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relation |
to |
a particular |
section |
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it |
is necessary |
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prove |
to |
show a |
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breach of |
the |
factory |
owner's |
obligations, |
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a judgment |
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the |
Court |
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of |
Appeal |
is just |
as binding |
on this |
court, |
though |
we may be |
con- |
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sidering |
a |
criminal |
prosecution, |
as |
though |
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trying |
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action. |
To hold |
otherwise would |
be to make |
a serious |
inroad |
on the |
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rule of |
stare |
decisis |
on |
which |
so |
much |
of |
English |
jurisprudence |
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depends |
'. |
This |
seems |
contrary |
to |
the |
decision |
in |
R. |
v. Taylor 18 |
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in |
the |
Court |
of |
Criminal |
Appeal. |
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Can |
it |
be |
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that |
the |
liberty |
of |
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14 |
[1950] |
2 All |
E.R. |
89, |
91. |
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15 |
Ubi supra, note 2. |
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16 |
My |
italics. |
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17 |
[1949] |
2 K.B. |
601. |
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18 |
Ubi supra, note 9. |
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APRIL 1951 |
NOTES OF CASES |
223 |
those tried on indictment is more tenderly regarded by the law than that of those tried summarily ?
In Zeidman v. Owen,19moreover, where the Divisional Court was confronted with its own previous construction of section 3 of the Betting and Lotteries Act, 1934, and a subsequent inconsistent dictum in the Court of Appeal, Lord Goddard concluded: 'The Court of Appeal in that case was considering section 26 of the Act and not section 3, so Lord Greene's observations were obiter, and
it is not suggested that they are binding on this court, though, naturally, we should pay great attention to what the learned Master of the Rolls said and, if we thought that the dicta, though obiter, expressed the true construction of the Act, we should feel we ought to follow them '. From this it seems that the Divisional Court will
not necessarily be bound by its own decisions if these are contrary to subsequent dicta in the Court of Appeal. While deploring the overspill of binding precedent from the civil to the criminal courts, such a decision should perhaps on balance be welcomed; amid the increasing restriction of previous decisions, the persuasive dicta of a higher court may cast a ray of hope for reconsideration of the stale
or unsatisfactory ruling.
On the other hand, in R. v. Northumberland Compensation Appeal Tribunal 20 there appears to be a further tightening of the principle in Carr v. Mercantile Produce Co., Ltd.,2' since the Divisional Court held in that case that, but for the fact that a deci-
sion of the House of Lords and one of the Judicial Committee of the
Privy Council had not been cited to the Court of Appeal in the case of Racecourse Betting Control Board v. Secretary of State for Air 22 the Divisional Court would have been bound by the Court of
Appeal's decision in that case that the grant of certiorari would not lie except on defect of jurisdiction in the inferior court, and Lord Goddard said 23: Decisions of the House of Lords are bind-
ing on this |
court, as are decisions of the Court of Appeal, and if |
we find that |
a decision of the Court of Appeal is inconsistent with |
a decision of the House of Lords, applying the principles which run through the decision in Young v. Bristol Aeroplane Co., Ltd.,2" we are bound to follow the decision of the House of Lords '. So the
ruling that the Divisional Court is bound by a previous decision in the Court of Appeal ' where it is a case of the true construction of a section and of what in relation to a particular section it is necessary to prove or show a breach of the factory owner's obligations' has in a few months become a ruling that the Divisional Court is bound by a previous decision of the Court of Appeal simpliciter. Thus
19 [1950] 1 K.B. 593; 1 All E.R. 290, 291.
20[1951] 1 All E.R. 268, 274.
21Ubi supra, note 17.
22[1944] Ch. 114.
23At p. 277.
24Ubi supra, note 5.
224 |
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THE MODERN LAW REVIEW |
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VOL-.14 |
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rapidly |
is |
the |
rigour and |
extent |
of stare decisis |
increasing. |
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True, |
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the |
question |
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at |
issue |
in |
R. |
v. |
Northutmberland |
Compensation |
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Appeal |
Tribunal |
2 |
is a procedural |
one, |
having |
no direct relation to |
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penal |
consequences, |
but no |
such distinction |
was |
adverted |
to in the |
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judgment |
and |
the |
rule |
that |
' decisions |
of the |
lIouse |
of |
Lords |
are |
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binding |
on this court, |
as |
are decisions |
of the |
Court of Appeal |
' was |
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stated |
in the |
most general |
terms. |
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The |
principle |
that superior courts of jurisdiction |
are |
bound |
by |
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their |
own |
previous |
decisions |
is |
of comparatively |
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recent |
origin. |
In |
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the |
House |
of Lords |
it was finally laid down only in 1898 26; it was |
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first |
applied |
in the |
Court |
of Appeal in Young v. Bristol Aeroplane |
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Co.27 |
in |
1944, |
and |
in the |
Divisional |
Court in 1947.28 |
It |
is |
curious |
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that such a doctrine based |
on |
the |
paramount |
importance |
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of |
cer- |
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tainty |
in |
law |
as |
opposed |
to growth |
or |
change, |
should |
have |
been |
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enunciated |
at |
a |
time |
of |
widespread |
economic |
and |
social |
change, |
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when |
Parliamentary |
time |
is |
more |
fully |
occupied |
than |
at |
any |
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pre- |
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vious |
period |
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and |
the |
possibilities |
of |
Parliamentary |
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revision |
of |
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judicial |
decisions |
correspondingly |
lessened. |
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Is |
such |
a |
doctrine, |
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imposed |
at |
such |
a time, |
indeed |
conducive |
to |
the |
most |
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efficient |
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administration |
of |
justice? |
Moreover, |
when |
the |
legislature |
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of |
what |
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has |
fairly |
suddenly |
become |
a partially |
controlled |
economy |
is |
con- |
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stantly |
adding |
to |
the |
number |
of |
statutory |
offences |
triable |
sum- |
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marily, |
is it |
desirable that |
the final |
court |
of appeal for such |
offences |
should bind itself for all time not only by the findings of its pre-
decessors, |
but |
also |
by those |
of a superior court, |
such as the Court of |
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Appeal, which |
is expressly excluded |
by |
Statute |
from |
jurisdiction |
in |
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any criminal |
cause or matter? |
Such |
questions |
as these must some- |
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times trouble |
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the |
mind |
of |
the |
practising |
lawyer, |
driven |
by |
an |
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increasingly |
restrictive |
doctrine |
into |
the |
more |
rarified forms |
of |
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distinguishing |
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in an |
attempt |
to |
circumvent |
the |
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undesirable |
effects |
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of the new rule. |
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O. M. STONE. |
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[Since |
the |
|
above |
note |
went to press |
the |
report |
of R. v. Fulham, |
Hamnmersmithand Kensington Rent Tribunal, Ex p. Zerek, has
been |
received |
([1951] |
1 All E.R. |
482). |
The above |
conclusions |
are |
|||
not, |
however, |
affected |
by |
this decision in which |
the |
Divisional |
Court |
|||
merely took |
a restrictive |
view |
of its |
previous |
decision in |
R. |
v. |
Hackney, Islington and Stoke Newington Rent Tribunal, Ex p.
Keats |
([1950] |
2 All E.R. 138). |
There |
is, |
of course, ample authority |
|||
for a later court to hold that |
while |
an |
earlier |
decision |
is |
binding |
||
upon |
it, the |
ratio decidendi |
of that |
decision |
was |
too |
widely |
expressed.]
2-. Ubi supra, note 20.
26London Street Tramways v. London County Council [1898] A.C. 375.
27Ubi supra, note 5.
28Ubi supra, note 1.