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Law Paper 1 - ELS + Criminal Law > Law Making > Flashcards

Law Making Flashcards

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1
Q

What is judicial precedent?

A

Laws that are made by judges

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2
Q

What is common law?

A

The decisions made by judges in the cases before

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3
Q

What is a example of a common law?

A

Murder

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4
Q

What is the doctrine of judicial precedent?

A

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

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5
Q

What is stare decisis?

A

Let the decision stand - The judge has to follow the decision or binding legal principle set out by a judge in an earlier case

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6
Q

What is an example of stare decisis?

A

A COA judge must be followed by a High Court judge

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7
Q

What are the positives of using stare decisis?

A

It provides certainty and consistency
May save time and money

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8
Q

What is the ratio decidendi?

A

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

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9
Q

What is an obiter dicta?

A

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

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10
Q

What is a binding precedent?

A

One that must be followed

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11
Q

What is a persuavive precedent?

A

It may be followed but it doesn’t have to be followed

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12
Q

Are decisions of other countries’ courts and decisions of the Privy Council binding or persuasive?

A

Persuavive precedent - R vs R

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13
Q

Are dissenting judgements binding or persuasive?

A

Persuasive

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14
Q

What is original precedent?

A

If a point of law arising in a case has never been decided before

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15
Q

What is the hierarchy of the courts?

A

Supreme Court
Court of Appeal
High Court/Crown Court
County Court/Magistrate’s Court
Small Claims Court

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16
Q

What are the 3 methods of avoiding precedent?

A

Supreme Court
Court of Appeal
Distinguishing

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17
Q

How can the Supreme Court avoid precedent?

A

The Practice Statement 1966

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18
Q

What is the Practice Statement 1966?

A

Allows the Supreme Court to depart from a previous decision where it appeared to be right to do so

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19
Q

Why was the Practice Statement introduced?

A

To allow for societal and technological changes to modern Parliament when needed

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20
Q

What is an example where the Practice Statement was used?

A

R vs Jogee

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21
Q

What is the POL from A vs Hoare?

A

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

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22
Q

What decisions is the Court of Appeal bound by?

A

The Supreme Court and their own decisions

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23
Q

In which scenarios can the COA go against their own decisions?

A
  1. CoA decision conflicts with a Supreme Court decision
  2. There are 2 conflicting CoA decisions
  3. Decision was made per incuriam (in ignorance of the law)
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24
Q

Does the CoA follow precedent ridgidly?

A

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

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25
Q

What are 2 instances of per incuriam?

A

Williams vs Fawcett
R vs Cooper

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26
Q

What is the POL from Williams vs Fawcett?

A

Said previous decision was based on a misunderstanding of the County Court rules

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27
Q

What is the POL from R vs Cooper?

A

New safeguarding rules that were not clear needed to be changed

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28
Q

What is the distinguishing method?

A

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

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29
Q

What is an example of 2 cases whose facts can be distinguished?

A

Balfour vs Balfour and Merritt vs Merritt

30
Q

What is overruling?

A

A higher court can overrule a decision made in an earlier case by a lower court.

31
Q

When will overruling occur?

A

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

32
Q

What are 2 examples of where overruling was used?

A

A vs Hoare
R vs Howe

33
Q

What is reversing?

A

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.

34
Q

What is an example where reversing was used?

A

Sweet vs Parsley - Divisional Court reversed the decision of the QBD (over when something was strict liability)

35
Q

What are some advantages of judicial precedent?

A
  1. Preserves consistency
  2. Maintains predictability
  3. Flexibility
  4. Meets changing needs of society
  5. Provides detailed practical rules
36
Q

What are some disadvantages of judicial precedent?

A
  1. Increases complexity
  2. Increases uncertainty
  3. Increases ridgidty
  4. Increases volume of different rulings
  5. Unconstitutional and undemocratic
  6. Retrospective
37
Q

What are the 3 rules and 1 approach of statutory interpretation?

A
  1. Literal rule
  2. Golden rule
  3. Mischief rule
  4. Purposive approach
38
Q

What is the literal rule?

A

The court will give words their plain, ordinary meaning or literal meaning even if the outcome is absurd

39
Q

What is an example of the literal rule in use?

A

Whiteley vs Chappell

40
Q

What is the POL from Whiteley vs Chappell

A

They impersonated a dead person who, technically, was not entitled to vote

41
Q

What is the golden rule?

A

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

42
Q

What is an example of the golden rule in use?

A

Adler vs George

43
Q

What is the POL from Adler vs George?

A

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’.

44
Q

What is the mischief rule?

A

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

45
Q

What is an example of the mischief rule in use?

A

Royal College of Nursing vs DHSS

46
Q

What is the POL from Royal College of Nursing vs DHSS?

A

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

47
Q

What is the purposive approach?

A

The judges are deciding what they believe parliament meant to achieve

48
Q

What is an example of the purposive approach in use?

A

R vs Registrar-General ex parte Smith

49
Q

What is the POL from R vs Registrar-General ex parte Smith?

A

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

50
Q

What way of statutory interpretation is used by the EU?

A

Purposive approach

51
Q

What are the advantages of the literal rule?

A
  1. Respects parliamentary supremancy
  2. Respects democracy
  3. Increases certainty
  4. Use of extrinsic aids
52
Q

What are the disadvantages of the literal rule?

A
  1. Provides absurd results
  2. Golden rule is more appropriate
  3. Assumes draftmen are perfect
  4. Statute cannot cover every situation
  5. Can be more than 1 definition of a word
53
Q

What are the advantages of the golden rule?

A
  1. Tries to avoid absurd results
  2. Goes further than the literal rule
  3. Have both the narrow and broad approach = flexibility
  4. Use of aids to help
54
Q

What are the disadvantages of the golden rule?

A
  1. Less democratic
  2. Doesn’t give way to parliament’s intentions
  3. Limited in use
  4. Over rely on aids
55
Q

What are the advantages of the mischief rule?

A
  1. Avoids absurd outcomes
  2. Support from law commmission = confidence
  3. Flexibility
  4. Use of aids for help
56
Q

What are the disadvantages of the mischief rule?

A
  1. Judges have too much power
  2. Not easy to identify the gap and some judges may disagree
  3. Not as broad as the purposive approach
  4. Not all aids actually help find the gap
57
Q

What are the advantages of the purposive approach?

A
  1. Most likely to account for parliaments intentions
  2. Consistent with EU
  3. Keeps the law up to date
  4. Aids to help - Hansard
58
Q

What are the disadvantages of the purposive approach?

A
  1. Undemocratic
  2. Time consuming
  3. Hard and expensive for litigation to prepare
  4. Not all aids can help
59
Q

What are intrinsic aids?

A

Things that a judge can use to help them decide that are within the act

60
Q

What are extrinsic aids?

A

Things that a judge can use to help them decide that are outside the act

61
Q

What are the examples of intrinsic aids?

A
  1. Title of the act
  2. Preamble/Objectives section
  3. Schedules (Contents)
  4. Definition section
  5. Punctuation
62
Q

What are the examples of extrinsic aids?

A
  1. Dictionaries at the time of the act
  2. Previous acts
  3. Law reform bodies
  4. Hansard
  5. International treaties
  6. Textbooks
63
Q

What are the advantages of intrinsic aids?

A
  1. Titles may be clear
  2. Preamble provides guidance
  3. Definition section helps with word meanings
  4. Judges don’t have to look further than the actual act
  5. More democratic as judges are using the statute
64
Q

What are the disadvantages of intrinsic aids?

A
  1. Titles not always clear/useful
  2. Doesn’t explain intentions
  3. Often need extrinsic aids as well
  4. Errors in punctuation could lead to it being misread
65
Q

What are the advantages of extrinsic aids?

A
  1. Dictionaries save time
  2. Law reform bodies add clarity to the law
  3. Hansard gives insight into parliamentary debates
  4. Can be very helpful for understanding
66
Q

What are disadvantages of extrinsic aids?

A
  1. Dictionaries don’t help with all approaches
  2. Law reform proposals not all implemented in the same way = wrong interpretations
  3. Looking at parliamentary debates is not for judges = undemocratic
  4. Textbooks quickly become out of date
67
Q

What is the overall impact of EU law?

A

The purposive approach is used more as it has become common practice and is accepted within English law

68
Q

Does EU law transcend UK law?

A

Not anymore as we have left the EU and there is now full parliament supremacy

69
Q

What is the impact of the Human Rights Act 1998?

A

It ensures human rights are followed and protected for all rather than the interests of the few

70
Q

What is the POL from Godin-Mendoza vs Ghaidan?

A

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

Law Paper 1 - ELS + Criminal Law (14 decks)

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