Law Making Flashcards
What is judicial precedent?
Laws that are made by judges
What is common law?
The decisions made by judges in the cases before
What is a example of a common law?
Murder
What is the doctrine of judicial precedent?
The rules which state which court is bound by which court - A court has to abide by rules and decisions made in a higher court
What is stare decisis?
Let the decision stand - The judge has to follow the decision or binding legal principle set out by a judge in an earlier case
What is an example of stare decisis?
A COA judge must be followed by a High Court judge
What are the positives of using stare decisis?
It provides certainty and consistency
May save time and money
What is the ratio decidendi?
The point of law or the reason for the decision - this is the legally binding part of the judgement that all lower courts and judges in the hierarchy must follow
What is an obiter dicta?
Things said by the way - this is merely persuasive advice by a judge where they speculate what the outcome of the case would’ve been if the facts were slightly different
What is a binding precedent?
One that must be followed
What is a persuavive precedent?
It may be followed but it doesn’t have to be followed
Are decisions of other countries’ courts and decisions of the Privy Council binding or persuasive?
Persuavive precedent - R vs R
Are dissenting judgements binding or persuasive?
Persuasive
What is original precedent?
If a point of law arising in a case has never been decided before
What is the hierarchy of the courts?
Supreme Court
Court of Appeal
High Court/Crown Court
County Court/Magistrate’s Court
Small Claims Court
What are the 3 methods of avoiding precedent?
Supreme Court
Court of Appeal
Distinguishing
How can the Supreme Court avoid precedent?
The Practice Statement 1966
What is the Practice Statement 1966?
Allows the Supreme Court to depart from a previous decision where it appeared to be right to do so
Why was the Practice Statement introduced?
To allow for societal and technological changes to modern Parliament when needed
What is an example where the Practice Statement was used?
R vs Jogee
What is the POL from A vs Hoare?
Due to the Limitation Act 1980 a SA victim wasn’t able to claim, but the Supreme Court exercised its decision and said that she could claim from him
What decisions is the Court of Appeal bound by?
The Supreme Court and their own decisions
In which scenarios can the COA go against their own decisions?
- CoA decision conflicts with a Supreme Court decision
- There are 2 conflicting CoA decisions
- Decision was made per incuriam (in ignorance of the law)
Does the CoA follow precedent ridgidly?
The CoA Criminal Decision does not follow precedent as ridgidly as someone’s liberty is at stake - If the court feels it is in the interests of justice they may go against a previous decision
What are 2 instances of per incuriam?
Williams vs Fawcett
R vs Cooper
What is the POL from Williams vs Fawcett?
Said previous decision was based on a misunderstanding of the County Court rules
What is the POL from R vs Cooper?
New safeguarding rules that were not clear needed to be changed
What is the distinguishing method?
Distinguishing a case on its facts or on the POL involved is used to avoid the consequences of an earlier inconvenient decision that is binding. It is used when the court finds a difference in the facts between the case it is hearing and an otherwise binding precedent
What is an example of 2 cases whose facts can be distinguished?
Balfour vs Balfour and Merritt vs Merritt
What is overruling?
A higher court can overrule a decision made in an earlier case by a lower court.
When will overruling occur?
When, in the opinion of the higher court, the previous court did not correctly apply the law, or because the later court consideres that the rule of law contained in the previous ratio decidendi is no longer desirable
What are 2 examples of where overruling was used?
A vs Hoare
R vs Howe
What is reversing?
If the decision of a lower court is appealed to a higher one, the higher court may change it if they feel the lower court has wrongly interpreted the law. When a decision is reversed, the higher court is usually overruling the lower court’s decision.
What is an example where reversing was used?
Sweet vs Parsley - Divisional Court reversed the decision of the QBD (over when something was strict liability)
What are some advantages of judicial precedent?
- Preserves consistency
- Maintains predictability
- Flexibility
- Meets changing needs of society
- Provides detailed practical rules
What are some disadvantages of judicial precedent?
- Increases complexity
- Increases uncertainty
- Increases ridgidty
- Increases volume of different rulings
- Unconstitutional and undemocratic
- Retrospective
What are the 3 rules and 1 approach of statutory interpretation?
- Literal rule
- Golden rule
- Mischief rule
- Purposive approach
What is the literal rule?
The court will give words their plain, ordinary meaning or literal meaning even if the outcome is absurd
What is an example of the literal rule in use?
Whiteley vs Chappell
What is the POL from Whiteley vs Chappell
They impersonated a dead person who, technically, was not entitled to vote
What is the golden rule?
The judge looks at the literal meaning of a word/phrase but they are then allowed to avoid an interpretation which would lead to an absurd result
What is an example of the golden rule in use?
Adler vs George
What is the POL from Adler vs George?
The defendant argued that he was ‘in’ the place rather that in the ‘vicinity’, however, the court interpreted to include ‘in’ as well as ‘vicinity’.
What is the mischief rule?
The court can look at what the law was before the Act was passed in order to discover what gap or ‘mischief’ the Act was intended to cover
What is an example of the mischief rule in use?
Royal College of Nursing vs DHSS
What is the POL from Royal College of Nursing vs DHSS?
The mischief that parliament was trying to cover was illegal abortions - so all abortions had to be carried out by a doctor or a nurse
What is the purposive approach?
The judges are deciding what they believe parliament meant to achieve
What is an example of the purposive approach in use?
R vs Registrar-General ex parte Smith
What is the POL from R vs Registrar-General ex parte Smith?
The court said that R-G did not have to supply the birth certificate as parliament wouldn’t have intended to promote serious crime by supplying information in this way
What way of statutory interpretation is used by the EU?
Purposive approach
What are the advantages of the literal rule?
- Respects parliamentary supremancy
- Respects democracy
- Increases certainty
- Use of extrinsic aids
What are the disadvantages of the literal rule?
- Provides absurd results
- Golden rule is more appropriate
- Assumes draftmen are perfect
- Statute cannot cover every situation
- Can be more than 1 definition of a word
What are the advantages of the golden rule?
- Tries to avoid absurd results
- Goes further than the literal rule
- Have both the narrow and broad approach = flexibility
- Use of aids to help
What are the disadvantages of the golden rule?
- Less democratic
- Doesn’t give way to parliament’s intentions
- Limited in use
- Over rely on aids
What are the advantages of the mischief rule?
- Avoids absurd outcomes
- Support from law commmission = confidence
- Flexibility
- Use of aids for help
What are the disadvantages of the mischief rule?
- Judges have too much power
- Not easy to identify the gap and some judges may disagree
- Not as broad as the purposive approach
- Not all aids actually help find the gap
What are the advantages of the purposive approach?
- Most likely to account for parliaments intentions
- Consistent with EU
- Keeps the law up to date
- Aids to help - Hansard
What are the disadvantages of the purposive approach?
- Undemocratic
- Time consuming
- Hard and expensive for litigation to prepare
- Not all aids can help
What are intrinsic aids?
Things that a judge can use to help them decide that are within the act
What are extrinsic aids?
Things that a judge can use to help them decide that are outside the act
What are the examples of intrinsic aids?
- Title of the act
- Preamble/Objectives section
- Schedules (Contents)
- Definition section
- Punctuation
What are the examples of extrinsic aids?
- Dictionaries at the time of the act
- Previous acts
- Law reform bodies
- Hansard
- International treaties
- Textbooks
What are the advantages of intrinsic aids?
- Titles may be clear
- Preamble provides guidance
- Definition section helps with word meanings
- Judges don’t have to look further than the actual act
- More democratic as judges are using the statute
What are the disadvantages of intrinsic aids?
- Titles not always clear/useful
- Doesn’t explain intentions
- Often need extrinsic aids as well
- Errors in punctuation could lead to it being misread
What are the advantages of extrinsic aids?
- Dictionaries save time
- Law reform bodies add clarity to the law
- Hansard gives insight into parliamentary debates
- Can be very helpful for understanding
What are disadvantages of extrinsic aids?
- Dictionaries don’t help with all approaches
- Law reform proposals not all implemented in the same way = wrong interpretations
- Looking at parliamentary debates is not for judges = undemocratic
- Textbooks quickly become out of date
What is the overall impact of EU law?
The purposive approach is used more as it has become common practice and is accepted within English law
Does EU law transcend UK law?
Not anymore as we have left the EU and there is now full parliament supremacy
What is the impact of the Human Rights Act 1998?
It ensures human rights are followed and protected for all rather than the interests of the few
What is the POL from Godin-Mendoza vs Ghaidan?
House of Lords said that same-sex partners did not have the same right as opposite-sex partner, the ECHR held this to be a breach of human rights and the House of Lords changed their stance
