ELS Flashcards
What is the literal rule
Courts follow the plain, ordinary and dictionary meaning of words when interpreting law, even if the results may not be sensible.
Case: Whitley v chappel
What is the case for literal rule
Whitely v chappel
Defendant was charged for impersonating “any person entitled to vote”. D impersonated dead man and court determined he was not guilty since a dead person is not entitled to vote
What is the golden rule
Modification of literal rule and avoids an interpretation that is absurd. 2 approaches:
Narrow and broad approach
What is the narrow approach for the golden rule
If words are ambiguous, judge can choose between possible meaning of the world.
Adler v George
We what is the broad approach
Where there is one meaning but this would lead to an absurd decision, the judge will modify the meaning of the word
What is the case that used the broad approach of the golden rule
R v Allan
D charged with bigamy. Argued that he couldn’t be charged as his second marriage was not legally recognised. Courts determined that marriage was the ceremony not the legal binding of 2 people and he was therefore charged
What is the mischief rule
The judge will look to the mischief the govt was trying to remedy and apply this to the case
What is the case for the mischief rule
Smith v hughes
Prostitution made it illegal to solicit from a public places Women were soliciting from their balconies and windows arguing that it wasn’t a public place. As the mischief the courts were trying to remedy was prostitution they were charged
Case 2 for mischief
Royal collage of nursing v DHS
Abortion act stated that abortion was to be carried out by a registered practitioner. New tech meant that nurses who were not registered practitioners could now carry out abortions. As the mischief was to stop back street abortions which was killing a lot of women it became legal for nurses to carry out abortion
What is the purposive approach
Judge will consider the purpose of the act and what parliament intended to achieve with the act.
Favoured approach when interpreting law .
Advantage and disadvantage of the literal rule
+ democratic as parliament who is the elected body is making the law, not the unelected judges
+ makes law certain
- often results in absurd decisions which do not reflect parliaments intentions
- assumes that every act is perfectly crafted
Advantage and disadvantage of the golden rule
+ allows judges to avoid absurd decisions and avoid the worst problems of the literal rule
+ allows the judges to choose the most sensible meaning
- not democratic as judges are meant to be independent from the law making body as they are unelected
What are advantages of the mischief rule
+ promotes the purpose of law
-not democratic as judges are not voted
What are advantages and disadvantages of the purposive approach
+ leads to justice in individual cases
- judges are allowed to become law makers which infringes on the separation of powers.
What is original precedent
A decision on a point of law that has never been decided
What is a binding precedent
A decision in an earlier case which must be followed in later cases
What is persuasive precedent
A decision which does not have to be followed by later cases but which judges may decide to follow
What did the 1966 practise statement allow
Judges to change the law if they believed that an earlier case was wrongly decided when ‘it appears right to do so’
What is ratio decidendi
The reason for the decision. Form precedent for future cases
In the case of chan fook ratio decideni states that ABH includes psychiatric injury
What is obita dicta
Other things said
What is distinguishing
Method of avoiding a previous decision because facts in the present case are different.
Balfour v Balfour not followed in merritt v merritt
What are advantages of precedent
+ certainty as courts follow past decisions people know what the law is and how it is likely to be applied
+ consistently and fairness in the law as similar cases are decided in similar ways
+ time saving as when a principle has been established, it does not have to go through a lengthy process of litigation
Disadvantages of precedent
- rigi: lower courts have to follow decisions of higher courts, COA has to follow its own past decisions which can make the law inflexible. Change in the law will take place only when both parties have the courage, money and persistence
-complex: many cases meaning not easy to find all the relevant case law with the computerised data base
- slowness of growth as areas of law that need reform or are unclear can only be amended if the SC receives it
What cases are heard in the magistrates court
Summary offences I.e driving offences, insurance, common assault, criminal damage under £5k
