Judicial processes of law making Flashcards
Criminal Court Hierachy
Supreme Court
Court of Appeal
Crown Court
Magistrates Court
What is judicial precedent?
Past decisions or judges create law for future judges to follow. It is founded on the principle of ‘state decisis’ (‘standing by a decision’)
What does a decision taken in a higher court create?
Creates original or binding precedent for all lower courts - one that they have to follow when dealing with similar cases
What are the two exceptions when a court doesn’t follow precedent?
Distinguishing
Overruling
What is distinguishing?
A judge finds the facts in the present case different enough from the previous case to allow them to reach a different decision to the precedent
What is overruling?
Where a court higher up the hierarchy states that a legal decision in an earlier case is wrong and overturns it. Ex - Supreme Court overrule a lower court’s decision when it hears an appeal
Example of a case that overrules precedent
R v R (1992) - a husband had been convicted of the attempted rape of his wife. The D appealed on the grounds of an old precedent that he could not be guilty of marital rape. The H of L overturned the matrimonial exception to rape. D’s conviction for rape was upheld
What is a statutory interpretation?
Judges interpret the states or Acts of Parliament. A statute is a written law and judges need to interpret the meaning and apply them to the case they are judging
What is a statue?
A statue is a written law created by parliament. Judges need to interpret the meaning of statue and apply them to the cases they are judging.
What are three main rules judges use when interpreting statues?
The literal rule
The golden rule
The mischief rule
Define the literal rule?
The courts simply look at the words of a statue and apply them as they are written giving them their literal and ordinary meaning
