Judicial Processes Of Law Making 1.1

Question 1

What are the two processes through which judges can make laws?

Answer 1

-Judicial precedent
-Statutory interpretation

Question 2

What does judicial precedent mean?

Answer 2

-Past decisions of judges create laws for future judges to follow in similar cases
-Stare decisis (standing by the decided) follow what has been decided in previous cases
-Creates consistency and certainty
-Type of common law
-If no precedent then the decision that the judge makes will become original precedent

Question 3

What are two cases that show judicial precedent?

Answer 3

-Donoghue v Stevenson: friend bought bottle of ginger beer for her, decomposing snail in the bottom, ill and sued. They owed her a duty of care, modern day negligence.
-Daniels v White: bottle of lemonade with corrosive metal in. Case of Donoghue’s used when suing for compensation even tho facts diff. Similar for precedent

Question 4

Court hierarchy from lowest to highest

Answer 4

-Magistrate & county
-Crown court
-High court (QBD, Chancery, Family)
-COA criminal and civil division
-Supreme court

Question 5

What do decisions made by higher courts create for lower courts?

Answer 5

-Binding precedent for all lower courts
-Lower courts have to follow

Question 6

What are the three exceptions to precedent?

Answer 6

1. Distinguishing
2. Overruling
3. Reversing

Question 7

What is distinguishing? And 2 cases

Answer 7

-Precedent can only be binding if the principle of a case is the same and the facts are similar.
-Balfour v Balfour and Merritt v Merritt
-Husbands sending money to wives overseas. Balfour overseas maintenance payments then spirit up. Only social agreement
-Merritt left and lived somewhere else, signed agreement to pay off house, binding

Question 8

What is overruling and 2 cases?

Answer 8

-Higher courts over turn a decision and set new precedent
-BRB v Herrington overruled Addie v Dumbreck. Changed from no duty of care for child trespasser to there is DOC
-R v R: overruled and said that marital rape was an offence.

Question 9

What is reversing and 2 cases?

Answer 9

-Higher court changes a decision made in a lower court on appeal
-Sweet v Parsley: HL reversed COA decision as men’s rea couldn’t be proved. Teacher rented out house to students and they smoked weed
-Tomlinson v Congelton: SC overruled COA saying occupier liable for injuries to trespasser who ignored signs, trespasser claim failed

Question 10

Law on marital rape - overruling precedent

Answer 10

-R v R
-HL agreed with COA that man could be guilty of raping wife
-wiped out martial exemption
-lower court had decided that there wasn’t marital rape

Question 11

What is the literal rule?

Answer 11

-19th century
-give words their literal plain English meaning
-dictionary at the time will be used
-go by what parliament said not meant

Question 12

What are the 3 cases for the literal rule?

Answer 12

-DPP v Cheeseman: indecently exposed himself in public toilets, police officers stationed outside. Act said ‘passenger’s’ This meant passers by. Police not passengers so hadn’t committed an offence. Used literal rule
-Berriman: Man oiling points on railway line when hit by train. Lookout should be provided for relaying and repairing of the track, not relaying or repairing, only maintenance. Used literal.
-Whiteley v Chappel: voted under dead mans name still on register. Offence to impersonate any person entitled to vote. Not entitled as dead. Used literal, got away

Question 13

Advantages of the literal rule

Answer 13

-Follows democratically elected parliament
-Highlights faulty legislation to law makers
-Makes law more certain as interpreted exactly how written
-easier for lawyers to apply
-doesn’t offend separation of powers
-stops unelected judges making law

Question 14

What are the disadvantages of the literal rule?

Answer 14

-Simplistic in way looks at language
-Not all acts perfectly drafted (Whiteley and Chappel)
-Unfair and unjust - BRB
-Some words have more than one meaning - DD acts

Question 15

What is the golden rule?

Answer 15

-Softened version of literal rule. Judge looks at literal meaning and then if will lead to absurd result than can use narrow or wide approach
-Narrow: if words has two meaning s then can choose to apply one that avoids harsh result
-Wide: If word has one meaning but unfair then can substitute for another word

Question 16

2 Cases for narrow approach of golden

Answer 16

-R v Allen
-D charged with bigamy, offence to marry another when already married. 2 meanings, legally marry and marriage ceremony
-Court used 2nd to find D guilty
-Adler v George: staged protest inside RAF base. ‘In vicinity of any prohibited place’ argued vicinity not the same as inside. Said could mean near to and within

Question 17

Case for wide approach

Answer 17

-Re Sigsworth
-Son murdered mother and she didn’t make a will, he would inherit all
-court rewrote the act and applied golden so he would not get anything

Question 18

What are the advantages of the golden rule?

Answer 18

-Respects word of parliament
-Escape route
-Follow intention of parliament and just corrects errors
-avoids worst problems of the literal rule

Question 19

Disadvantages of the golden rule

Answer 19

-Can only be used in limited situations
-Not possible to predict when judges use
-Feeble parachute, can’t rlly do much
-can’t define absurd
-no guidance on when to use
-against sep of powers

Question 20

What is the mischief rule? What are the 4 questions?

Answer 20

-Court can give effect to the intention of parliament where statute was intended to remedy an existing mischief in the law
1) What was the common law before the act was passed?
2) What mishcief (problem) was there in common law that parliament wanted to resolve
3) What remedy did parliament create to deal with that mishcief?
4) What was the reason for the remedy?

Question 21

What are 3 conditions for the mischief rule?

Answer 21

1) must be possible to determine the mischief that of the act was intended to remedy
2)must be apparent that parliament failed to deal with
3) Must be possible to state additional words that parliament would have used

Question 22

What are the advantages of the mischief rule?

Answer 22

-Escape route
-Improves law
-Effect to p’s true intentions

Question 23

What are the disadvantages for the mischief rule?

Answer 23

-Very old law, more complex today
-less extrinsic aids available for older acts
-Judicial law making, defends sep of powers

Question 24

What are the 3 cases for the mischief rule?

Answer 24

-Corkery v Carpenter: drunk in charge of bicycle. Charged w being in charge of carriage. Not carriage, mischief was presence of drunk ppl on highway, didn’t matter transport
-Smith v Hughes: Prostitutes charged with soliciting in public place, doing from window, not public but the mischief was prostitution
-DHSS: Whether they were medical practitioner under the act and allowed to carry out abortions. New ways eg hormonal. Aim was to prevent backstreet abortions

Question 25

What is the purposive approach?

Answer 25

-Courts attempt to find broader purpose behind piece of legislation rather than just words

Question 26

What are the cases for the purposive approach?

Answer 26

-Jones: black employee, abused at work. Said not liable as not acting in course of employment, but changed it as purpose was to eliminate discrimination
-Smith: violent murderer, wanted to find birth mother. Purpose wasn’t to allow the possibility of harm to mother.
-Quintavelle: Embryo creation through CNR not possible, HL used purposive and held that it covered CNR.

Question 27

What are the advantages of the purposive approach?

Answer 27

-Find P’s true intentions
-Use extrinsic aids
-Avoids harsh and absurd result

Question 28

Disadvantages of the purposive approach?

Answer 28

-Freedom to judges, offending sep of powers
-Only used if possible to identify P’s true intentions
-Better suited to EU law