Concepts Of Law: Judicial Creativity

Question 1

Precedent: what does precedent require

Answer 1

That judges apply the doctrine of stare decisions and follow the ratio decidendi from higher court and court on the same level

Question 2

Precedent: when may a judge have to be creative and why

Answer 2

When a new situation arises

Because there is not yet a law which covers it

Question 3

Precedent: the declaratory theory

Answer 3

Some commentators state that judges in such cases (not yet a law which covers it) are merely finding law that already existed and applying it to new circumstances

Question 4

Precedent: example of an academic supporting the declaratory theory

Answer 4

Ronald Dworkin

Question 5

Precedent: theory advanced by Professor Hart and Lord Denning

Answer 5

Judges legitimate role to full in any gaps and make law when required

Question 6

Precedent: what was the court seen to do in donoghue v Stevenson

Answer 6

Create new law

Question 7

Precedent: before donoghue and Stevenson, what was unclear

Answer 7

When consumers could claim negligence for injury caused by products they did not buy

Question 8

Precedent: what did donoghue lay down

Answer 8

Clear criteria for future cases that didn’t exist before

Question 9

Precedent: what have the principles of donoghue been followed and developed by later judges to cover

Answer 9

Both psychological and pure financial damage

Question 10

Precedent: psychological damage

Answer 10

MCLOUGHLEB

Question 11

Precedent: financial damage case

Answer 11

HEDLEY BYRNE

Question 12

Precedent: what can the Supreme Court overrule itself using

Answer 12

1966 Practice Statement

Question 13

Precedent: what can the court of appeal overrule itself using

Answer 13

The rules in young v Bristol aeroplane

Question 14

Precedent: what can all courts overrule the precedents of

Answer 14

Lower courts

Question 15

Precedent: significant example of overruling

Answer 15

R v R

Question 16

Precedent: what happened in R v R and what had been the case prior to this

Answer 16

• man charged with raping his wife
• previously held from 1763 that a woman gives her consent to sex when she agrees to marry and cannot withdraw it whilst she remains married

Question 17

Precedent: what was the last case on marital rape before r v r and what did it state

Answer 17

R v MILLER

upheld reasoning before R v R

Question 18

Precedent: what did the law lords state in R v R

Answer 18

‘The status of women and the status of a married woman in our law have changed quite dramatically… the common law is capable of evolving in the light of changing social, economic and cultural development

Question 19

Precedent: what is the problem with overruling

Answer 19

Any changed to the law are retrospective and involve finding people guilty/liable for acts that were not known to be unlawful when they did them

Question 20

Precedent: example of when all cases decided under previous precedent brought into question (overruling)

Answer 20

When Supreme Court overruled the previous law on ‘joint enterprise’ in case of R v JOGEE

Question 21

Precedent: what did the case of R V JOGEE raise the prospect of

Answer 21

Numerous appeals from people convicted under the previous interpretation of the law

Question 22

Precedent: why are laws still overruled despite the disruption

Answer 22

It’s generally thought that the change was long overdue and the need to keep the law relevant to contemporary moral standards outweighed potential disruption

Question 23

Precedent: what happened in the case of WILSON

Answer 23

The court of appeal did not want to convict a man for complying with his wife’s request to brand his initial into her buttocks

Question 24

Precedent: what principle did the courts uphold in BROWN AND OTHERS

Answer 24

That consent could not be a defence where hard mmm is caused without good reason and that sadomasochism was not a good reason

Question 25

Precedent: on what basis did the judges distinguish the cases of Wilson and brown

Answer 25

That in brown the injury was inflicted for sexual gratificatikn whilst in Wilson it was inflicted for the purpose of a personal adornment

Question 26

Precedent: how was the distinguishing between BROWN and WILSON seen as controversial

Answer 26

The case laid the courts open to accusation of treating homosexuals and heterosexuals differently

Question 27

Statutory interpretation: why does the literal rule appear to give the least room for creativity

Answer 27

Because the plain, ordinary grammatical meaning must be hard

Question 28

Statutory interpretation: how is the literal rule not always straightforward

Answer 28

Fisher v Bell: judge applied a technical contract meaning to ‘offers for sale’ whereas most people would accept that a knife displayed on a window with a price on it was being offered for sale

Question 29

Statutory interpretation: what is the golden rule an extension of and what does this lead to

Answer 29

An extension of the literal rule

Also restricts judges to looking at just the wording of the legislation

Question 30

Statutory interpretation: how do the mischief and purposive approaches allow more room to develop the law

Answer 30

Judges can use extrinsic aids such as Hansard and law reform reports to research the social and historical background of an act to try and discover its wider purpose

Question 31

Statutory interpretation: what can the use of extrinsic aids in mischief and purposive approach be used for

Answer 31

To keep the law up to date with technical and social changes

Question 32

Statutory interpretation: example of when extrinsic aids in mischief and purposive approach were used to keep law up to date

Answer 32

RHN V DHSS

Question 33

Statutory interpretation: what happened in RCN v DHSS

Answer 33

The House of Lords decided that the phrase ‘registered medical practitioner’ could apply to nurses when it became possible for them to supervise certain types of abortion

Question 34

Statutory interpretation: second time extrinsic aids used in mischief and purposive approach to keep up to date with technical and social changes

Answer 34

FITZPATRICK V STERLING

Question 35

Statutory interpretation: FITZPATRICK V STERLING

Answer 35

Prior to statutory equality laws, the House of Lords defines family as including same sex couples, allowing a man to take over his late partners tenancy

Question 36

Statutory interpretation: examples of areas of the law that are still entirely judge made

Answer 36

Law on murder and involuntary manslaughter

Question 37

Statutory interpretation: what is the problem with allowing judges to develop the law entirely

Answer 37

It is ad hoc, piecemeal and often haphazard

Question 38

Statutory interpretation: example of string of cases dealing with the mens rea of murder and the meaning of intention

Answer 38

First: vickers 1957

Ending with: woollin 1998

Question 39

Statutory interpretation: how could cases like vickers and wool in have been dealt with more efficiently

Answer 39

By legislation enacted by parliament following proposals from the Law commission

Question 40

Statutory interpretation: what are judges concentrating on when they make law

Answer 40

The outcome of the case in front of them, based on the arguments of two sets of lawyers

Question 41

Statutory interpretation: what is legislation on technical legal usually the result of

Answer 41

Meticulous research over a period of time, taking into account any relevant wider context

Question 42

Statutory interpretation: why is it argued that judicial development of the law is quicker

Answer 42

Any changes come into effect instantly

Question 43

Statutory interpretation: what does the fact that changes made by judicial law being instant not take into account

Answer 43

The length of time it may take for a suitable case to get to the appeal courts

Question 44

Statutory interpretation: when was the law on tape in marriage changed by the court of appeal

Answer 44

Not until 1991, and not made statutory until 1994

Question 45

Statutory interpretation: how is judicial law making undemocratic

Answer 45

Judges are not elected and are unaccountable to anyone apart from other judges decisions

Question 46

Statutory interpretation: what is the opposing argument for judges being unelected

Answer 46

They are able to uphold the rule of law independently without undue concern for public opinion/disapproval from the media

Question 47

Statutory interpretation: why are judges able to uphold the rule of law independently without undue concern for public opinion/media

Answer 47

They don’t have to worry about being re-elected, like politicians

Question 48

Statutory interpretation: why is judicial law making inevitable

Answer 48

Because sometimes there is no previous precedent/legislation on the issue at hand, and the case before them must be resolved

Question 49

Statutory interpretation: if the outcome of judicial law making causes enough disapproval what happens

Answer 49

Parliament can legislate to change it as it remains sovereign