AC 1.1

Question 1

What are the two processes used for law making?

Answer 1

Government processes and judicial processes

Question 2

What are the stages of the government law making process?

Answer 2

Green paper, white paper, first reading, second reading, committee stage, report stage, third reading, other house, royal assent

Question 3

Green paper

Answer 3

• optional first draft
• proposal submitted for public feedback to gauge support before presenting t Parliament

Question 4

White paper

Answer 4

• first formal draft of the bill presented to parliament
• printed and circulated in advance of first reading

Question 5

First reading

Answer 5

• ten minute process
• the main title and aims read out to parliament
• votes - all those in favour say “aye”
• only progresses if majority in favour

Question 6

Second reading

Answer 6

• the main debate
• scrutinising the aims and overall intentions of the bill
• between the party in power and the opposition in order to engage in balanced debate
• votes take place at the end of

Question 7

Committee stage

Answer 7

• panel of experts set up to scrutinise the wording, legality and accuracy of the bill
• clause by clause breakdown and analysis
• looking for loopholes which could cause future problems
  vote

Question 8

Report stage

Answer 8

• all amendments put forward in second reading and committee stage are recorded and redrafted

Question 9

Third reading

Answer 9

• final chance for debate
• any objections must be raised at this point
• vote

Question 10

Other house

Answer 10

• HoC to HoL
  HoL to HoC
• bill goes back and forth between the two houses until they agree (ping pong)
• HoC can bypass the Lords since they aren’t elected
• rare as it is useful to involve the experts within the HoL

Question 11

Royal Assent

Answer 11

• Monarch signs the bill
• more of a formality
• last time monarch refused assent was 1708

Question 12

Examples of laws passed through the government process

Answer 12

• The Criminal Justice Act 2003
• The Crime (Sentences) Act 1997

Question 13

What are the two methods of judicial law making?

Answer 13

Judicial precedent and statutory interpretation

Question 14

Judicial precedent

Answer 14

• law made by judges
• following precedents of previous cases where the facts are similar
• judges can make new laws if there are no appropriate precedents to apply to that case and the facts are sufficiently different
• judges must follow precedent in accordance with the court hierarchy

Question 15

What is the criminal court hierarchy?

Answer 15

Supreme Court

Court of Appeal

Crown Court

Magistrates Court

Question 16

Ratio decidendi

Answer 16

Central rule to the precedent, what must be followed

Question 17

Orbiter dicta

Answer 17

Other information/ comments that are not required to decide the case

Question 18

Overruling

Answer 18

A court is asked to review whether a precedent from a lower court is correct law

Question 19

Distinguishing

Answer 19

Making a decision about significant factual differences between cases

Question 20

Reversing

Answer 20

Higher court changes decision of lower court on exactly same facts

Question 21

Persuasive precedent

Answer 21

Judge does not have to follow a precedent but chooses to follow it anyway

Question 22

Explain the Donoghue v Stephenson case example which demonstrates judicial precedent

Answer 22

Claimant suffered gastroenteritis after drinking ale which had a decomposing snail in it. Duty of care precedent was created, stating manufacturers owe a duty of care to consumers. This came from the Supreme Court. In Daniel’s v White, the claimant suffered a burnt oesophagus after drinking lemonade found to have corrosive substance in it. This was a court of appeal case so they were bound by the precedent from Donoghue v Stephenson of the duty of care.

Question 23

Explain the R v Brown case as an example of judicial precedent

Answer 23

Here, the Supreme Court, five homosexual men met regularly to engage in dado-masochistic activity all inflicting injuries on each other for sexual pleasure. The precedent set was consent is no defence for an offence against the person so they were all convicted of GBH. In the R v Wilson case, it was a Court of Appeal case where a husband branded his wife’s buttocks with a butter knife with her consent. The R v Brown precedent was ignored as the courts deemed this to be “akin to tattooing and cosmetic enhancement rather than inflicting pain for sexual gratification.” (Distinguishing)

Question 24

What is statutory interpretation?

Answer 24

This comes about where words in an act are vague and the judge must decide what it actually means and their chosen definition then becomes binding on that court and all below it

Question 25

What are the four rules of statutory interpretation?

Answer 25

Literal, golden, mischief, purposive approach

Question 26

What is the literal rule?

Answer 26

Judges us Oxford English Dictionary definition of word and apply it to the case. Parliament chooses wording carefully so judges should not deviate after painstaking debate and redrafting

Question 27

LNER v Berriman and rule used

Answer 27

Literal - widow was not entitled to compensation after husband’s death in train tracks because he was maintaining the tracks rather than “relaying or repairing them”

Question 28

What is the golden rule?

Answer 28

Applied when the literal rule results in an absurd outcome so the judge amends the meaning of the word to make the understanding more clear

Question 29

Adler v George and rule used

Answer 29

Golden - defendant snuck into an army base so judges amended definition of vicinity to mean “in and around” so he could be prosecuted against the Official Secrets Act 1920

Question 30

What is the mischief rule?

Answer 30

Courts look to fix the problem which the act was trying to solve. This is a more flexible rule and ensures the law is applied in the way Parliament intended.

Question 31

Royal College of Nursing case and rule used

Answer 31

Mischief -Abortion Act 1967 was designed to prevent women accessing backstreet abortions so changed definition of “medical practitioner” to include nurses

Question 32

What is the purposive approach rule?

Answer 32

Judges apply the law with the purpose Parliament had in mind which gives judges more freedom and flexibility.

Question 33

R v Registrar General ex parte Smith case and rule used

Answer 33

Purposive approach - serial killer wanted to contact his birth mother but judge decided it was not the intention of Parliament to reunite a serial killer with a vulnerable old lady they could exploite