ELS

Question 1

What is the literal rule

Answer 1

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

Question 2

What is the case for literal rule

Answer 2

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

Question 3

What is the golden rule

Answer 3

Modification of literal rule and avoids an interpretation that is absurd. 2 approaches:

Narrow and broad approach

Question 4

What is the narrow approach for the golden rule

Answer 4

If words are ambiguous, judge can choose between possible meaning of the world.

Adler v George

Question 5

We what is the broad approach

Answer 5

Where there is one meaning but this would lead to an absurd decision, the judge will modify the meaning of the word

Question 6

What is the case that used the broad approach of the golden rule

Answer 6

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

Question 7

What is the mischief rule

Answer 7

The judge will look to the mischief the govt was trying to remedy and apply this to the case

Question 8

What is the case for the mischief rule

Answer 8

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

Question 9

Case 2 for mischief

Answer 9

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

Question 10

What is the purposive approach

Answer 10

Judge will consider the purpose of the act and what parliament intended to achieve with the act.

Favoured approach when interpreting law .

Question 11

Advantage and disadvantage of the literal rule

Answer 11

+ 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

Question 12

Advantage and disadvantage of the golden rule

Answer 12

+ 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

Question 13

What are advantages of the mischief rule

Answer 13

+ promotes the purpose of law

-not democratic as judges are not voted

Question 14

What are advantages and disadvantages of the purposive approach

Answer 14

+ leads to justice in individual cases

• judges are allowed to become law makers which infringes on the separation of powers.

Question 15

What is original precedent

Answer 15

A decision on a point of law that has never been decided

Question 16

What is a binding precedent

Answer 16

A decision in an earlier case which must be followed in later cases

Question 17

What is persuasive precedent

Answer 17

A decision which does not have to be followed by later cases but which judges may decide to follow

Question 18

What did the 1966 practise statement allow

Answer 18

Judges to change the law if they believed that an earlier case was wrongly decided when ‘it appears right to do so’

Question 19

What is ratio decidendi

Answer 19

The reason for the decision. Form precedent for future cases

In the case of chan fook ratio decideni states that ABH includes psychiatric injury

Question 20

What is obita dicta

Answer 20

Other things said

Question 21

What is distinguishing

Answer 21

Method of avoiding a previous decision because facts in the present case are different.

Balfour v Balfour not followed in merritt v merritt

Question 22

What are advantages of precedent

Answer 22

+ 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

Question 23

Disadvantages of precedent

Answer 23

• 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

Question 24

What cases are heard in the magistrates court

Answer 24

Summary offences I.e driving offences, insurance, common assault, criminal damage under £5k

Question 25

What cases are heard in the magistrate and crown court

Answer 25

Triable either way offences o.e theft, ABH

Question 26

What cases are heard in the crown court alone

Answer 26

Indicate offences I.e murder, manslaughter, rape, robbery

Question 27

Jurisdiction of magistrates court

Answer 27

Trial summary cases and TEW that they are prepared to accept

Deal with preliminary hearing of TEWs which are going to be heard at the CC

deal with the first preliminary hearing of all indictable offences

Try cases is in the youth court

Question 28

Jurisdiction of crown court

Answer 28

Trial TEWs when the D has elected to be tired at the CC

All indictable offences

Appeal from the mag court

Question 29

What is the appeal route

Answer 29

Supreme Court
^
COA
^
Crown court
^
Magistrate

Question 30

When can the D appeal to the COA

Answer 30

on a sentence or point of law

Question 31

When the prosecution appeal to the COA

Answer 31

When the jury acquittal was the result of a jury being nobbled ( when jurors are bribed or threatened by associates of the D

New compelling evidence of the acquitted persons guilt and it is in the public interest for the D to be retried

Question 32

What are the roles of the jury

Answer 32

Decide verdict of verdict cannot jury cannot reach a unanimous verdict then a majority verdict can be accepted

Question 33

Advantages of jury trial

Answer 33

Jury equity- not bound to follow the precedent of past cases or even acts of parliament. They can decide cases on the idea of fairness

Impartiality- cannot be connected to anyone in the case. Process of random selection should result in cross section of society meaning jurors will have different prejudices and so should cancel out each others bias

Question 34

Disadvantages of the jury trials

Answer 34

Secrecy- no way of knowing if the just understood the case and came do the decision for the right reasons ( mirza: racism was present when jury was deciding the verdict)

Racial bias

Media influence

Lack of understanding