English legal system-paper 1 Flashcards
What is judicial precedent?
Judge-made law that lower courts must follow, so that similar cases will have have the same outcome.
Based on ‘stare decisis’ meaning ‘stand by what has been decided’.
What are the 3 types of precedent?
Binding precedent- precedents that must be followed. E.g. Re schweppes ltd Agreement (1965) and Re Automatic Telephone and Electric Co ltd’s Agreement (1965).
Original precedent- precedents about a point of law that has never been set. E.g. Donoghue V Stevenson (1932).
Persuasive precedent- when judges are persuaded by parts from other cases.
E.g. R V Bentham (2005).
Where do judges find judicial precedent?
In ‘Law Reports’ books, published by the incorporated council of law reporting, or online.
What will a judgement of judicial precedent include?
A review of the facts, some evidence, some legal reasoning, and the result: the ratio, and obit dicta (everything else).
What are the 4 ‘precedents in action’?
(FORD)
Follow- if the facts are the same and it has come from a higher court.
Overrule- if they feel the past decision was wrong or a new statute has been created. E.g. BRB V Herrington.
Reverse- when the case is being appealed. E.g. R V Bentham (2005).
Distinguish- if the facts are different they don’t need to follow the precedent. E.g. Balfour V Balfour and Merritt V Merritt.
What is the practice statement?
The practice statement 1966 states that the HoL and now the Supreme Court would no longer be bound by their past decisions.
What is the importance of the practice statement?
It was made so that decisions that they were wrong or are now out of date don’t bind future decisions. First used in BRB V Herrington (1991).
What is the importance of the case Young V Bristol Aeroplane (1944)?
This states the CoA must always follow their past decisions unless the Supreme Court overrules it, they feel they got it wrong or two different decisions conflict each other.
What are advantages of judicial precedent?
- It is more certain as they know what the outcome will likely be.
- It is fairer as similar cases have the same outcome.
- It saves time as judges don’t have to spend as much time thinking about what decision to make.
What are disadvantages of judicial precedent?
- It can be hard to find the relevant precedent as there are so many.
- They sometimes make illogical distinctions so that they don’t have to follow precedent.
- Rigidity as lower courts have to follow decisions of higher courts but they themselves do not always have to.
What is the literal rule in statutory interpretation?
The rule requires you to look at the dictionary meaning and is the first rule that should be applied. Used in the case Whiteley V Chappell (tried to use a dead person’s vote).
What is the golden rule in statutory interpretation?
The rule is when the literal approach creates an absurd outcome, so they look at other meanings of the words. The narrow approach is using other dictionary meanings of the word (Adler V George- In vicinity), the wide approach is interpretations of the word (R V Allen - cannot marry 2 people).
What is the mischief rule in statutory interpretation?
This rule requires judges to look at the law before this one so they can fill in the gaps in the old law. Used in RCN V DHSS- can a nurse give an abortion if they are not ‘registered medical practitioner’.
What is the purposive rule in statutory interpretation?
The rule looks at the purpose of the law is. The rule was brought into use because of the EU, since the laws were being translated into many languages, therefore the meaning of the words wasn’t as important as the aim. This rule is used in R V Registrar- General ex parte Smith- Murderer not allowed to know birth mum.
What is an intrinsic aid?
What does an intrinsic aid contain?
These are sources within an act that will help them understand it.
- permeable: this gives the intentions of the act at the beginning.
e.g. Theft Act 1968 states that it’s an act ‘to modernise the law on theft’.
- Definition section: in older, handwritten Acts, a draftsman may have made notes in the margin to explain words and terms.
- Interpretation section: newer Acts tend to have glossaries of key words.
e.g. s2-s6 Theft Act 1968.
- Headings/ Long and short titles: the long titles give more tips about the aim e.g. RCN V DHSS
What is an extrinsic aid?
Where is an extrinsic aid found?
These are resources found outside the act that may help.
- Dictionary: one from the time the Act was passed may be useful. E.g. DPP V Cheeseman.
- Legal texts/ textbooks: may be used to get the view of legal academics on a point of law.
- Law commission reports: Since the Black Clawson case they can be used to see why an act was introduced.
- Internal arrangements/ treaties: th UK must comply with international treaties, so they should be considered during interpretation.
- Hansard: written record of all parliamentary debates, can be used since Peter.
What are advantages of statutory interpretation?
Literal & golden rule:
- More certain
- Respectful of parliament’s decision
- Golden rule allows judges to avoid absurd decisions
- Stops judges making laws so often so complies with the seperation of powers.
Purposive & mischief rule:
- Archives the purpose
- Allows for new developments
- Useful if the literal meaning of a work cannot be found
- Gets a fair outcome.
What are disadvantages of statutory interpretation?
Literal & golden rule:
- Not all acts are perfectly drafted
- Words have more than one meaning
- Can lead to unfair decisions
Purposive & mischief rule:
- Mischief is limited to looking back at the old law
- It can make the law uncertain
- It’s difficult to find parliaments intentions
- Mischief isn’t as wide as purposive
Describe lay people in the crown court.
- Only work on criminal cases
- Decide if guilty or innocent
- 12 lay people
Describe lay people in high court.
- Only certain civil cases: defamation, fraud etc.
- Decide liability
- 12 lay people
Describe lay people in county court
- Only certain civil cases
- Decide liability
- 8 lay people
What is the role of the jury in a criminal case?
- Only if the defendant pleads not guilty.
- Jury decides facts of the case.
- Jury makes a decision in a separate room to make decision in secret.
- Judge can direct jury to acquit on a point of law (directed acquittal).
Role of the jury: majority verdicts.
Only used if taking a long time to decide.
Allowed since 1967.
Full jury of 12, if falls below 12 only 1 can disagree.
Numbers must be declared to the court.
Explain 2 aspects of the role of the judge in a criminal case.
(5 Marks)
- Conducting a pre-trail preparation hearing: determining any pre-trial issues.
- Controlling the conduct of the trail: opportunity for each side to present its case fully; rulings on the admissibility of evidence.
- Determining the interpretation and application of law: giving directions on law to the jury in a Crown Court trial.
- Summing up the evidence in the case when in Crown Court trail.
- Sentencing in consequence of a conviction or guilty plea.
