Judical processes Flashcards
What is a judical process?
It is a Judges’ task to state the law as they find it and apply it to the case before them - their role is to apply the law and not make the law.
In practice however, they are often faced with situations where what they do can amount to making new law.
They may have to interpret the wording of the law and whether it applied (known as statutory interpretation). And where possible, they base their decisions on previous judicial decision (known as judicial precedent).
What is a statutory interpretation?
This refers to judges in higher courts, e.g…
Court of Appeal
Supreme Court
…being called upon to interpret words and phrases within a statute.
If a word or phase is unclear, a judge must decide its meaning. Judges in higher courts bind (compel to follow) those in lower courts. Such lower courts must follow the interpretation of senior judges.
Therefore When there is some ambiguity or vagueness in the words of the statute, a higher court judge will be called upon to resolve the issue.
Judges can use different rules of interpretation and in doing so can establish new laws, for example, the literal, golden and mischief rules and rules of interpretation.
What is a case study linked to a statutory interpretation?
Whitely V Chappell (1868)
Chappell was accused of impersonating any person entitled to vote, in which they had pretended to be a person who was on the voters’ list, but who had died.
The judge interpreted the statute and found the defendant not guilty since a dead person is not ‘entitled to vote’.
What is a judical precedent?
If a judge finds that there has been a previous decision by a higher or same level court in a similar case, they must follow it.
If no precedent has been set (there hasn’t been a similar case) then the decision made by that judge sets the original precedent which others should follow if they get a similar case.
How does a judical precedent work?
The judge will need to look for important similarities between cases.
I.e., in a case involving a road accident, some features of the case would be unimportant, i.e., colour of the car.
However, the speed of the cars, the condition of the road, whether it was dark, etc., could all be very important facts.
If there are no material differences, a previous decision will act as a precedent and if it was made in a higher court it is a binding precedent, i.e. one, which must be followed.
what is a binding precedent?
f the precedent was made in a higher court then it is a binding precedent and MUST be followed by lower courts.
Made in a lower court → can be overruled by higher courts
Made in a court of the same level → can stick to it or the Supreme Court can overrule it if deemed appropriate
what are some case studies of a judical precedent?
Donoghue V Stevenson (1932)
The plaintiff suffered through finding the remnants of a decomposed snail in a bottle of ginger beer which she was drinking. She sued the manufacturer.
It was held that the manufacturer owed his consumers a duty of care since he and they were ‘neighbours’ in law.
This was an original precedent (i.e. the first time this issue has been decided) and since 1932 the law of negligence has developed from it and many cases have been bound to follow it, such as…
Daniels V White (1938)
The claimant bought a bottle of lemonade and when it was drunk he felt a burning reaction in his throat.
The lemonade was found to have corrosive metal in it.
The case of Donoghue V Stevenson (1932) was used when suing for compensation even though the facts were slightly different.
It was sufficiently similar for the purpose of the precedent as a manufacturer had let harm come to a customer due to negligence.
what is the hierarchy of courts?
In England and Wales, our courts operate a rigid doctrine of judicial precedent which has the effect that:
Every court is bound to follow any decision made by a court above it in the hierarchy, and…
In general, appellate courts (Courts of Appeal) are bound by their own past decision unless set exceptions apply.
