ELS paper 1 Flashcards
doctrine of judicial precedent
The whole system of precedent is founded on the principle of stare decisis, i.e. “let the decision stand”. Generally, decisions in similar past cases will be followed if they are made in a court at the same or higher level in the hierarchy
Ratio decidendi
its the binding part of the written judgement and the bit that is followed in the future
R v Howe- duress is not a defence to murder
Obiter dicta
other things said
this is the persuasive authority
IN r v howe it was said duress is not a a defence to attempted murder
R v gotts got persuaded by this
Law reporting
- Formal systematic reporting has been carried out since 1865 but there are many reports which predate this
- the report notes the are of law, date, court, parties, judges and advocates as well as the facts and judgements
-they will either be written by the judge themselves or by an independent lawyer and checked by the judge for accuracy
-they can be found in specialist journals, on websites or in certain broadsheet newspapers
Court hierarchy
- Allows refinement of the law by increasingly more capable judges through the appeals process
- Informs us about the status and authority of a particular decision, i.e. who is bound by the decision?
- Allocates cases to courts with specialist knowledge.
overruling (all courts)
- any superior court can overrule the decision of an inferior one
Pepper v Hart (1993) (House of Lords) overruled Davis v Johnson (1979) (Court of Appeal) and said Hansard could be referred to for the purposes of statutory interpretation.
overruling (supreme court)
the practice statement of 1966 gave the supreme court the power to overrule its own decisions it was a necessary step
- without it if the lords got a decision wrong the law would be flawed forever
- this is used sparingly
Arthur J.S. Hall v Simons overruled Rondel v Worsley
-Lawyers could be sued for negligence in presenting cases.
R v G ( overruled MPC v Caldwell
- A person is only reckless if they foresaw the risk. It is not enough that an ordinary person would have seen the risk.
Overruling (court of appeal)
Younng v bristol aeroplane tells us that the court of appeal can only overrule its own decisions if
1. There is a later Supreme Court decision that says something different
2. Two earlier Court of Appeal decisions conflict, i.e. they say different things
3. The earlier Court of Appeal decision overlooked some piece of legislation in error
Overruling (court of appeal)
Younng v bristol aeroplane tells us that the court of appeal can only overrule its own decisions if
1. There is a later Supreme Court decision that says something different
2. Two earlier Court of Appeal decisions conflict, i.e. they say different things
3. The earlier Court of Appeal decision overlooked some piece of legislation in error
Distinguishing
Any judge can distinguish a case by showing that the facts are significantly different to those of the case they are supposed to be bound by
Merritt v Merritt (1971) distinguished Balfour v Balfour (1919)
domestic agreements not binding- written agreements are binding
Fairchild v Glenhaven and Wisher v Essex
wisher- couldnt show what caused their baby’s blindness, Fairchild could
adv judicial
Advantages
-Certainty & predictability – existing laws established & future ones anticipated
- Less room for judicial error – judges just follow superior cases, Graham, Byrne, Ivey Test
- Treating similar cases in the same way is just, e.g. R v Howe & R v Gotts
- Judge remains impartial – personal opinion doesn’t come into it – Wilmer LJ in Automatic Telephone & Electric Co. Ltd v Registrar of Restrictive Trading Arrangements
- Based on reality not hypothetical situations
Literal rule
The statute is given its word for word dictionary meaning (the Oxford English Dictionary at the time of the Act). There is no embellishment. The judge does exactly what Parliament has said, whether it makes sense in practical terms or not.
Whiteley v Chappel – a dead man was not literally “entitled to vote”
LNER v Berriman – oiling track was not literally “relaying or repairing” it
Golden rule
when the literal rule produces an absurd outcome
R v Allen
Narrow application: two meanings - choose least absurd
To “marry” could mean either
1. a binding legal promise to share your life with someone or
2. to go through a ceremony.
As it was impossible to do the former with two people, the second meaning was used to secure a bigamy conviction
Adler v George Wider application: one meaning – adapt meaning The defendant broke into a military base but argued he was “in” the base rather than “in the vicinity of the base” as the statute specified. The words were held to mean “in or in the vicinity of”.
purposive approach
The purposive approach is more progressive. It simply asks, “What was the aim or purpose of this new law regardless?”
quintavalle case- whether the old act covered this new development of cloning embryos
R v Registrar General ex parte Smith- when 18 get told birth parents unless trying to kill and said to hurt people was not the purpose of this law
s.3 human rights act 1998
judges must interpret the legislation in a way they protect a persons human rights
mischief rule
Heydon’s Case –
This 16th century case tells us judges should consider:
- What was the law before the new Act?
- What mischief was Parliament trying to remedy?
- What remedy was Parliament trying to provide?
Smith v Hughes
The prostitutes in question weren’t literally “soliciting in the street” but the judges believed Parliament had passed the Act with the intention of cleaning up the streets and so dismissed the appeal against conviction.
intrinsic
intrinsic aid are internal aids and can be found within the act itself
• Long title
A summary of what the Act is about.
• Short title
This was useful in the Quintavalle case. “Embryos” were mentioned so it was considered the Act’s purpose to cover them.
• Preamble
o In older Acts, this paragraph at the start summarised its aims, etc. New Acts simply have a “long title” containing this
• Headings
o Indicate the purpose of a particular section. The heading of s.1 below makes its purpose very clear; to define theft regardless of the old common law
• Schedules
o Like an appendix at the back of a book with further information and often definitions
• Rules of language (see below)
• Presumptions (assumed unless Parliament states the opposite)
o Won’t be retrospective and affect the past
o Won’t bind the crown
o Won’t change the common law/case law
o Crimes will require mens rea
extrinsic
• Dictionary
o Most useful for the Literal and Golden Rules e.g. “passenger” in Cheeseman v DPP
• Hansard
o Everything said in Parliament. Used since Pepper v Hart but not much use.
• Law Commission Reports
o Some Acts, e.g. the Fraud Act 2006 are based entirely on Commission Reports so some useful explanation can be found there.
• Interpretation Act 1978
o Rules on gender, time, distance, etc. for all other Acts
• Treaties
o E.g. the Factortame case makes it clear judges should interpret law in line with Treaty of Rome 1957
literal rule adv and disadv
ADVANTAGES
Respects democratic power of Parliament and lets them make laws, Whitely v Chappell left reform of voting law to Parliament
Outcome of case is certain
Simple & predictable application, e.g. Cheeseman v DPP solely based on definition of “passenger”
DISADVANTAGES
Assumes Parliament drafts perfect laws but Whitely v Chappell left a loophole
Can produce absurd & unjust results, e.g. poor widow in LNER v Berriman
Parliament may be forced to draft a new Act as in Whitely v Chappell
Words often have many meanings, e.g. “marry” in R v Allen
Golden rule ADV and DISADV
ADVANTAGES
-Prevents unjust outcomes by applying some common sense unlike the Literal Rule, e.g. who could let D breach security like the D in Adler v George?
-Prevents Act being redundant, e.g. R v Allen. If D won, no one could ever be prosecuted.
-Respects Parliament like the Literal Rule, particularly the Narrow Approach which simply chooses the definition the judge believes Parliament intended
DISADVANTAGES
-Half-baked fall-back approach as it is not even a single set rule. Prof. Zander at the LSE calls it a “feeble parachute”
-Limited chances to use the rule, i.e. when Literal Rule fails
-An element of judicial law making especially with wider application, e.g. the judge could change the meaning of “vicinity” in Adler v George
