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Judges and the law
Judges and the law

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3.4.1 Overruling

Overruling is the procedure whereby a court higher up in the hierarchy sets aside a legal ruling established in a previous case.

It is strange that, within the system of stare decisis, precedents gain increased authority with the passage of time. As a consequence, courts tend to be reluctant to overrule longstanding authorities even though they may no longer accurately reflect contemporary practices or morals. While old principles are not usually good in dentistry or computer science, they are often seen that way in law! In addition to the wish to maintain a high degree of certainty in the law, the main reason for judicial reluctance to overrule old decisions would appear to be the fact that overruling operates retrospectively, with the effect that the principle of law being overruled is held never to have been law. It may even lead to the imposition of criminal liability on previously lawful behaviour. It has to be emphasised, however, that the courts will not shrink from overruling authorities where they see them as no longer representing an appropriate statement of law.

The decision in R v R (1992) to recognise the possibility of rape within marriage may be seen as an example of this, although, even here, the House of Lords felt constrained to state that they were not actually altering the law, but were merely removing a misconception as to the true meaning and effect of the law.

As this suggests, the courts are rarely ready to challenge the law-making rights of Parliament in an open way. An example of this reluctance can be seen in the House of Lords’ decision in Curry v Director of Public Prosecutions (1994). There used to be a presumption that children between the ages of 10 and 14 who were charged with a criminal offence did not know that what they did was seriously wrong and that the prosecution had to provide evidence to rebut that presumption (this presumption was known as the doctrine of doli incapax, meaning ‘incapable of a wrong’). In an appeal involving two young boys who had been convicted of a crime involving a motorbike, Lord Justice Mann justified reversing the presumption by claiming that, although it had often been assumed to be the law, it had never actually been specifically considered by earlier courts.

The presumption of doli incapax was abolished in England and Wales by section 34 of the Crime and Disorder Act 1998. Prior to the Act, for a child aged over 10 but under 14 to be convicted of a criminal offence in England and Wales, the prosecution had to rebut the presumption of doli incapax as well as prove the offence. This meant that they must prove beyond reasonable doubt not only that the child did the act in question, but that they knew what they were doing was seriously wrong, rather than just naughty. To rebut the presumption, the prosecution had to show that the young person knew the act in question was seriously wrong. Since the 1998 Act, the prosecution no longer have to prove this.

On such reasoning, he felt justified in departing from previous decisions of the Court of Appeal which otherwise would have bound him. The House of Lords subsequently restored the previous presumption and said that in order to get convictions, the prosecution in any case would have to rebut the presumption that 10–14-year-olds don't know the difference between right and wrong. Although the Law Lords recognised the problem, and indeed appeared to sympathise with Mann LJ's view, they nonetheless thought that such a significant change was a matter for parliamentary action rather than judicial intervention.

Overruling should not be confused with ‘reversing’, which is the procedure by which a superior court in the hierarchy reverses the decision of a lower court in the same case.