Law 2019 Flashcards
What is the purposive approach?
More modern version of the mischief rule.
Identify the purpose of the act and interpret any ambiguous provisions in accordance with that purpose.
Seeking to identify and give effect to parliaments intentions.
Judge takes into consideration the whole act.
Judge therefore has a significant amount of discretion.
Judges used this approach in R v Registrar-General.
Purposive approach in relation to the EU?
Use of purposive approach in UK increased significantly following UK joining EU.
EU legislation drafted in a broad manner for judges to interpret. UK legislation passed in response to EU legislation is more likely to use the purposive approach.
Pepper v Hart. First case using the purposive approach for a non-EU law case. Demonstrates the move of UK judges toward a more purposive approach.
Purposive approach in relation to human rights?
Introduction of a the Human Rights Act encouraged a more purposive approach, as if UK law conflicts with the ECHR a judge must amend the meaning so the UK provision gives effect to EXHR.
Advantages of the purposive approach?
- Can give effect to parliamentary intention. Judges are not restricted by the exact wording of an Act of Parliament so they are able to avoid absurd outcomes and create justice, as would have been Parliaments intention.
- If an Act has been poorly drafted, a judge using the purposive approach can establish a judgment that does not produce an absurd result without having to wait for parliament to intervene and amend the legislation. Means the court is producing fair outcomes for the parties involved rather than being restricted by potentially inadequate legislation.
Disadvantages of the purposive approach?
- May not give effect to parliamentary intention. Judges using the purposive approach are able to go beyond the wording of parliament and apply the law as they believe it was intended, however there is no way of definitively ensuring that it was in fact parliaments intention that they are enforcing. By determining parliamentary intention they are creating law, which gives too much power to the unelected judiciary.
- Can produce unfair results. Based upon the idea that the judiciary identify and give effect to parliaments intentions. Very difficult to anticipate how a principle of law is going to be interpreted where a court applies the purposive approach. It could lead to inconsistencies in the outcomes of cases where one judge believes parliaments intentions to be different to another.
What is transferred malice?
Malice refers to the mens rea of the defendant.
The defendant may accidentally commit the actus reus of an offence against an unintended victim, but have the mens rea for a different intended victim.
The malice can be transferred from the intended victim to the unintended victim, making the defendant guilty of a complete offence against the unintended victim.
In what two circumstances does transferred malice apply?
- Where the defendant mistakes the actual victim for the intended victim. Latimer
- Where an additional victim is harmed by the actions of the defendant. Mitchell.
The mens rea cannot transfer to a completely different offence. Pembliton.
What is the definition of murder and who defined it?
Defined by Lord Coke as “the unlawful killing of a reasonable creature in being, and under the queens peace, with malice aforethought, express or implied.”
What must you go through for “unlawful killing”?
Defendant must have caused the death of the victim.
Can commit the offence of murder by omission but only when they are under a duty to act, as in Gibbins and Proctor.
Causation:
Factual causation: but for test
Legal causation: operating and substantial cause with no NAI.
Malcherek v Steel. Doctors switching off life support does not break the chain of causation.
What must you go through for “reasonable creature in being”?
Generally means that they are a living human being.
There are two states of the human form where it has been disputed is the victim is a reasonable creature in being: foetus and brain dead.
You only need to go through under the queens peace if relevant, if not leave it out. True or false?
True
What do you need to go through for the mens rea of murder?
Express malice aforethought: intention to kill.
Implied malice aforethought: intention to do GBH.
Vickers. Confirmed that intention to do GBH is sufficient to satisfy a murder conviction.
Murder cannot be committed recklessly.
Can be direct or indirect intention.
Direct - Mohan. Main wish, want, aim, or desire.
Indirect - Woollin. A result foreseen as virtually certain is an intended result.
