Judicial Precedent

Question 1

Explain the Literal Rule

Answer 1

Judges give words their plain ordinary and literal meaning even if it leads to silly absurd results
The Oxford English dictionary is used. Rule used by judges because it respects the doctrine of parliamentary supremacy. Parliaments job to make the law and judges job to apply the law. Most common rule
Whiteley v Chappell
LNER v Berriman

Question 2

Explain Mischief Rule

Answer 2

Gives judges more flexability. Judges look for the mischief that the act intended to solve and interpret law in light of this. Rule established in Heydons case 1584.
1. What was law before the act
2. What was wrong with the law
3. what did parliament do to try improve the law
Smith v Hughes
Royal college of Nursing v DHSS (abortion act)

Question 3

Explain the Golden Rule

Answer 3

Starts out by using Literal Rule but if leads to absurd result then golden rule used to avoid repugnant results.
Narrow Approach-
Word has more than one meaning court allowed to use the meaning they want R v Allen.
Wider Approach-
Word only has one meaning but literal is repugnant result. having to avoid using that meaning. Re Sigsworth

Question 4

Explain the Purposive Approach

Answer 4

Similar to Mischief rule. No need to for judge to find mischief that law intended to remedy. Look for purpose behind legislation. Championed by Lord Denning. Must be used when interpreting human rights act 1998
R v Registrar General, ex parte Smith 1990
R v HFEA (embryo)

Question 5

Evaluate Literal Rule

Answer 5

Quick, Simple and easy to use. no need to spend time researching other meanings for words.
Respects parliamentary supremacy
Sends messages to parliament to reform their law.

Lead to absurd results Whiteley v Chappell
Unfair results LNER v Berriman
Defeat will of parliament

Question 6

Evaluate Golden rule

Answer 6

Allows courts to avoid absurd results R v Allen
Allows courts to avoid unfair results
Can put into practice what parliament really intended

Absurd is subjective to each person. Different to each judge so dont know when the judge will use it- inconsistency
narrow can only be used in very limited circumstances
Wider approach gives judges too much power- allows them to apply law how they want not as it was written.

Question 7

Evaluate Mischief/ Purposive approach

Answer 7

More flexible than other rules
Can avoid absurd/harsh results looking at purpose of law
more likely to produce fair results
can carry out results parliament intended
No need for parliament to pass a new law

Doesn’t respect parliament supremacy
Conflicts with separation of powers. When judges decide what they think parliament mean they are in fact making the law. Judges not elected to do so
Use of rule may lead to uncertainty and inconsistency in law
Impossible to know when judges will use so its hard for lawyers to advise clients when they will

Question 8

Describe Intrinsic aids to S.I

Answer 8

Things found within the act that can help make meanings clearer
Short title- Clue what its about
Wordings of the act- Reveal purpose of act
Preamble of act- Opening summary of act
Marginal notes- Expalin ambiguous words
Headings- Makes it easier to navigate through act

Question 9

Describe Extrinsic aids to S.I

Answer 9

Things found outside the act that help make meanings clearer
Dictionary- Clarify meanings of a word
Hansard- Official report of what parliament says. Couldn’t be used until 1993. Pepper v Hart ruled hansard can be used very limited
Law Comission’s report- basic overview of purpose of act
Previous acts of parliament- Provide info why parliament passed this newest act
Government documents- help give straight forward explanations of act

Question 10

Explain the rules of language

Answer 10

Ejusdem Generis-
‘Of the same type’ when there is a list of specific words followed by general words then the general words need to be interpreted in light of the specific words Hobbs v CG Robertson - brick was not stone, concrete or slag as it was softer
Expressio Unius Exclusio Alterius-
‘Mention of one thing excludes another’ List of words not followed by general then act only applies to list. Tempest v Kilner- goods, wares and merchandise not stocks and shares so not a part of act
Noscitur a Sociis-
A word is known by the company it keeps. words must be looked at in context and interpreted accordingly.
Inland Revenue Commissioners V Frère - ‘interests annuities or other annual interests’ could mean daily monthly or annual but it says ‘other annual’ so means annual

Question 11

Explain basic doctrine of judicial precedent

Answer 11

English law developed from decisions of judges through common law. Doctrine of judicial precedent means that judges must follow the decisions of the court above them when faced with similar cases. Creates fairness

Question 12

Describe Stare Decisis

Answer 12

‘Let Decisions Stand’ Once a decision is made in one case on a point of law it is fair to keep that decision in future cases. Once a point of law has been decided in a particular case that law must be applied in all future cases containing same material facts.

Question 13

Describe Ratio Decidendi

Answer 13

‘The Reason For the Decision’ Part of the judgment that creates a law for future judges to follow. Sometimes difficult to distinguish Ratio Decidendi from Obiter Dicta, Especially in old law reports where judgment is not set in the headings specifying what ratio decidendi is. It depends on the level of the court weather the ratio has to be followed by a later court or merely considered.

Question 14

Describe Obiter Dicta

Answer 14

‘Other things Said’ Doesn’t create binding precedent, although future judges may look at this if they wish. Judge may discuss what their decision would be if the facts were different. They also form Obiter Dicta. May be used as a persuasive precedent when judges are not bound to follow ratio in future cases. E.g R v Howe obiter dicta on duress not being allowed for attempted murder was followed in R v Gotts.

Question 15

Explain different types of judicial precedent

Answer 15

Binding precedent-
Precedent from earlier case must be followed even if judge does not agree with legal principle. A binding precendent is only created when facts of the second case are sufficiently similar to the original decision and the court is senior or in some cases similar to the second case. E.g Daniels v White followed Donoughue v Stevenson
Original Precedent-
If a point of law on a case has never been made before, then whatever the judge decides will become the new precedent. It is original precedent so they judge is more likely to look at cases which are closest in principle to help form a judgment E.g Donoughue v Stevenson
Persuasive Precedent-
Not binding on the courts, but judge may consider it and decide that it is a correct principle to use so he is persuaded to use it. May be something said Obiter Dicta or decision from a lower court that judge decides to follow E.g R v Howe followed R v Gotts via obiter dicta

Question 16

Explain how Judges can Avoid precedent

Answer 16

Overruling-
court in a later case decides that the decision in the earlier case is wrong. may occur when a senior court overrules a decision made by one of a lower court. Can occur when a higher court overrules its own decision of a case via practice statement.
Reversing-
court higher up over turns decision of a lower court on appeal in the same case. When reversing a decision higher court is saying that the lower court incorrectly used a precedent to reach a decision. However the precedent remains part of the common law as the precedent its self is not incorrect, it may just not apply to the facts in that particular case.
Distinguishing-
If facts of a case are sufficiently different then a judge is not bound to follow the precedent set in an older case. Instead the judge can use persuasive precedent or or set an original precedent E.g Merrit v Merrit distinguished from Balfour v Balfour
Any court can avoid following binding precedent if it conflicts with EU law or a new act or parliament.

Question 17

History of the Practice statement

Answer 17

If an unsatisfactory decision is made by the House of Lords, the only way it could be changed was by parliament passing a new act of parliament. This was the case in DPP v Smith with the law on intention.

Question 18

What happened to the practice statement in 1966.

Answer 18

The practice statement gave the supreme court the right to depart from a previous decision they have made when it appears the right to do so. Often right to do when social climate has changed significantly since their last decision- perhaps socially or economically. First major use of practice statement was used in Herrington Case 1972. They overruled a decision in Addie v Dumbreck. That meant occupiers did not owe a duty of care to trespassers. Power transferred from House of Lords to the supreme court in 2009 by Constitutional Reform Act 2005.

Question 19

What is the Use of the Pracitce statement

Answer 19

Judges are reluctant to use the practice statement as they believe certainty in the law is paramount. This happened in Jones v SS despite 4 out of 7 judges regarding the old case as wrong. However one successful use of it was in Pepper v Hart where it was decided that Hansard could be used in S.I. The first major use of the practice statement in criminal law was in R v Shivipuri where the house of lords overruled a decision they made only a year previously in Ryan v Anderton on the issue of impossibility.

Question 20

Court of Appeal and the practice statement

Answer 20

C of A must follow their own past decisions as said in the case Young v Bristol Aeroplane. They can only depart from them if there are
Two previous decisions that conflict with each other and they only follow one
Sureme court has overruled a previous decision they made
A decision was made per incuriam because an act of parliamnet hadnt been considered.

Question 21

Advantaged of judicial precedent

Answer 21

Advantages-
Certainty in law-
Once a precedent has been set in the appeal courts this will lay down a rule of law which will then be applied to future similar fact cases. Possible to predict with fairly accurate degree of certainty of what the decision will be in the current case.
Allows flexibility in the law-
Offers opportunity for the law to grow and change to suit changing social conditions. The practice statement 1966 allows great flexibility as does distinguishing so judges can avoid following previous decisions which they feel are unsuitable for the current case. Herrington v BRB
Time Saving-
It can change things in the law faster than having to wait for an act of parliament to be passed. Once a principle has been established, cases with similar facts are unlikly to go through lengthy process of litigation.
Practical and Precise-
All judicial decision are based on facts of cases that ckme before the court. So, the law becomes more precise as it is illustrated by real life cases, rather than a theoretical Act of parliament.

Question 22

Disadvantages of judicial precedent

Answer 22

Makes the law too rigid-
Very difficult to change a binding precedent especially when society has moved on. Law lords have been reluctant to use practice statement even when they felt the old law is wrong. Precedent can therefore sometimes be out-of-date and make law inflexible.
Illogical decision-
A judge who does not like a previous binding precedent will often point out a minor difference between the facts in the current case and those in the older case to avoid following a precedent. (distinguishing) Leaves law confused and uncertain on some points of law Balfour v Balfour and Merritt v Merritt
Complex-
Nearly half a million reported cases so it’s not easy to find relevant case law, even with computerized databases. Some judgments make no clear distinction between comments and the reason for the decision
Slow to change in law-
Can only change law when suitable cases come to them, which could take years or even decades. Long wait to change an old precedent making the law slow to change.