A question on precedents...

Sparks

Okay, hypothetical scenario.
Court case A-v-B happens. Judge rules for B. A's case is weak and really shouldn't have been brought in a sane world, but the ruling impacts on many, many other similar cases which are not so weak and the ruling itself is fundamentally flawed and contradicts other precedents.

Can the A-v-B precedent be negated for future cases by taking court case C-v-D, hoping D cites A-v-B and then addressing the flaws in A-v-B? Or would A-v-B have to be appealed directly?

Victor

Only decisions of higher courts are binding on lower courts.

Such a situation would be persuasive, but not binding as there are different circumstances involved. It would be for the applicant to demonstrate that the facts in C-v-D are different to A-v-B.

Sparks

Hmmm. I was more thinking "could you take a stronger case (C-v-D) to set a contradicting precedent under the same circumstances as A-v-B instead of having to risk an appeal with a weak (A-v-B) case?". I know you couldn't get a binding decision, but having a precedent set in direct and knowing contradiction to an earlier precedent was more what I was thinking of here.

Rhonda9000

I dont follow. If C v D is 'stronger' then it's facts must be in some way different to A v B.

C's counsel will attempt to distinguish A v B to their advantage on the basis of the differences in facts explaining A's 'weak' case. D's counsel will conversely attempt to analogise the facts of A v B to defend D.

If held in favour of C - the precedent does not contradict A v B. Instead it reflects how the law is applied in cases where facts mirror those in C v D

dermot_sheehan

What would happen is in C -v- D you would lose in the High Court as another High Court judgment has persuasive value and its likely that another High Court judge would apply it.

You can then appeal C -v- D to the Supreme Court and the Supreme Court could say that A -v- B was wrongly decided.

If of course you are referring to McCarron v. Kearney you'd have to explain to the Supreme Court what part of Charleton J.'s judgement you thought was wrong. It's the parts of his judgement that are ratsio decendi, that is a statement of the law that is binding on lower courts that you would need to over turn, is statements about the problems of gun crime or the dangerousness of guns are not binding on lower courts, just observations pertinent to that case called obiter dicta so the suprme court would only disturb them in a direct appeal.

The problem is that Charleton J. stated that the law requires an applicant to have a good reason to be issued with a firearms certificate, and that what constitutes a good reason is determinable by the type of firearm a certificate is being sought for. This reading of the law is binding on inferior courts (circuit and district). He basically quotes s. 4 of the Firearms Act as amended by s. 32 of the Criminal Justice Act 2006 which states

An issuing person shall not grant a firearm certificate unless he or she is satisfied that the applicant complies with the conditions referred to in subsection (2) and will continue to comply with them during the currency of the certificate.

(2) The conditions subject to which a firearm certificate may be granted are that, in the opinion of the issuing person, the applicant—

(a) has a good reason for requiring the firearm in respect of which the certificate is applied for,

I think his interpretation of this is fair enough and I don't think the Supreme Court will disturb it. That is the fundamental problem with any appeal about McCarron, any obiter comments the judge made about firearms being banned in the uk etc etc are obiter. His decision stating the law seems backed by the legislation.

Victor

Pardon me, but was the problem that the applicant came across as flippant - "Gis a gun that shoots like a mad yoke"-type, as opposed to a well thought out "I am a member of X gun club and am the education officer. I have been a target shooter for Y years with no complaints. I have been using Z calibre for several years, winning several national and international competitions and wish to move to this calibre as I feel that this is a natural progression and I will need to practice as I hope to take part in the Corkistan national championships in 2009 (inaugural year for this calibre) and hope to progress to the Pangian championships where the calibre is popular. I fully understand the responsibities of owning hand gun and have undergone professional training and agree to procedures A, B & C."-type?

Sparks

Given the forum charter, I didn't want to refer to a specific case; but if it's on the level to do so? Yes, the problem was the applicant. Personally, I wouldn't have granted the licence myself given the information in the judgement.

The problem though, is that the judge and garda made the ruling on the basis of the firearm type, not the applicant. (It's also not helping that the minister is now threatening new legislation on the basis of this case, but that's a seperate issue).

If they had said "look, anyone who asks for a firearm because his mates all have one, and then has a strop when he doesn't get one, shouldn't have one in the first place", that'd be one thing - but instead they blamed the firearm instead and now any person who goes for a firearm of that type, no matter how good the reason and how stable and safe the applicant, has to cope with this precedent.

dermot_sheehan

Sparks wrote: »

Given the forum charter, I didn't want to refer to a specific case; but if it's on the level to do so? Yes, the problem was the applicant. Personally, I wouldn't have granted the licence myself given the information in the judgement.

The problem though, is that the judge and garda made the ruling on the basis of the firearm type, not the applicant. (It's also not helping that the minister is now threatening new legislation on the basis of this case, but that's a seperate issue).

If they had said "look, anyone who asks for a firearm because his mates all have one, and then has a strop when he doesn't get one, shouldn't have one in the first place", that'd be one thing - but instead they blamed the firearm instead and now any person who goes for a firearm of that type, no matter how good the reason and how stable and safe the applicant, has to cope with this precedent.

Hi, the forum prohibits offering legal advice or talking about matters that would prejudice a jury trial. We are perfectly free to criticise or comment on a decision of the high court

Sparks

Thanks for the clarification gabhain.