AC1.1 Describe the judical processes of law aiing Flashcards
judges can makes laws through which 2 processes
-judicial precedent
-statutory interpretation
What is judicial precedent
a type of law making where past decisions of judges create laws for future judges to follow
define the term ‘principle of standing by’ what does it create
judges follow what has been decided in previous cases where the point of las is the same.
this creates certainty, consistency and fairness sin the legal system
what should judge do if there’s no precedent
give an original precedent
2 case example showing judicial precedent in action
Donoghue v stevenson 1932
Daniels v white 1938
donoghue v stevenson 1932
two friends visited a cafe, one drank a bottle of ginger beer, contained a decomposing snail, woman fell Ill, sued the manufacturer, won her case, the court decided that a duty of care was owed by the manufacturer to the woman. known as ‘neighbour principle’
—this case founded the oder day law of negligence —
Daniels v white 1938
claimant brought a bottle of lemonade and when it was drank felt burning sensation n throat, it contained corrosive metal. The case of Donoghue and Stevenson was used when suing for compensation even tough facts were slightly different.
what are the exceptions to precedent
distinguishing
overruling
reversing
what is meant by distinguishing
precedent can only be binding if the principle of a case is the same, and facts are similar
case example of distinguishing
balfour v balfour
blalfoour v balfour / merit v merit case
husbands sending money to wives, overseas matinee payments then split, not bound only social, merit left and lived elsewhere and signed agreement to pay of home
what is meant by overruling
higher courts can overrule/ turns decisions and set a new precedent
case example of overruling
R V Riaal marital rape
R V Riaall
houses of laws(supreme court) agreed with court of appeal that a man could be guilty of raping his wife, wiped out exemption
what is meant by reversing
a higher court changes a decision made in a lower court of appeal
sweet v parsley (reversing example)
house of lords reveres court of appeal decision snd found defendant not guilty men’s rea couldn’t be proved
what is statutory interpretation
In Superior Court, such as Court of Appeal, Supreme Court, judges are sometimes called upon to interpret words and phrases with a statue. in this way, they can make law by the way they interpret such statues or acts and apply them to cases that are being judged
Judges have three main interpretation rules to help them do this:
literall rule
golden rule
mischief rule
what is the literal rule
judges give words of an act there literal/ ordinary meaning, doctors of time of act will be used.
advantages and disadvantages of literall rule
advantages;
-follows word of democracy elected parliament, parliament make laws so judges should follow/apply how its written . stops unelected judges making lawmakers low more certain.
disadvantages;
-not all acts perfectly drafted, have more than one meaning, can lead to unfair/ unjust decisions
cases of literal rule
Cheeseman: indecently exposed himself in public toilets, police officers stationed outside. Act said ‘passenger’s’ This meant passers by. Police not passengers so hadn’t committed an offence. Used literal rule
Berriman: Man oiling points on railway line when hit by train. Lookout should be provided for relaying and repairing of the track, not relaying or repairing, only maintenance. Used literal.
what is the golden rule (narrow/wide)
an extension of the literal rule, may be applied when application of literall a rule woullead to absurdity.
narrow-it’s applied when word or phrase is capable of more than one literal meaning
wide-applied when there is only one literal meaning
advantages and disadvantages of golden rule
advantages;
-Respects word of parliament
-Escape route
-Follow intention of parliament and just corrects errors
-avoids worst problems of the literal rule
disadvantages;
-no guidance on how ans where to use rule
-holds parliament to high standards
2 cases of the narrow approach (golden)
-R v Allen
-Defendant charged with bigamy, offence to marry another when already married. 2 meanings, legally marry and marriage ceremony
-Court used 2nd to find Defendant guilty
-Adler v George: staged protest inside RAF base. ‘In vicinity of any prohibited place’ argued vicinity not the same as inside. Said could mean near to and within
case of wide approach (golden)
-Re Sigsworth
-Son murdered mother and she didn’t make a will, he would inherit all
-court rewrote the act and applied golden so he would not get anything
