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Wrapped: Legal Systems > LS8: Judicial Power and case law > Flashcards

LS8: Judicial Power and case law Flashcards

1
Q

What is the role of a judge?

A

To apply the law, via statutes and earlier case law. Most cases are predictable.

Judges also conduct judicial review of government action to check it is lawful.

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2
Q

How are case names laid out for:
appeals
wills
family law
criminal cases
judicial review?

A

Appeals: appellant is named first appealing against decision from lower court.

Wills & Succession: Re (in the matter of) with the Surname of the deceased, e.g. Re Wingham

Family law: Re and the initial of their first name - Re S (Transfer of Residence) [2010] to protect privacy.

Criminal: Official title has R (rex) v Surname, but textbooks often omit R v and just have surname and year.

Judicial review: R(surname of the person who began the review) v defendant, e.g. R(Miller) v Secretary of State for Exiting the European Union [2017].

Pre 2001, R v defendant ex p Surname of person who started review, e.g. R v Secretary of State… ex p Brind

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3
Q

What are conjoined cases?

A

In CoA, HoL or SC, case names combine where similar points of law are disputed, e.g. Miller v Miller, McFarlane v McFarlane [2006]

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4
Q

What does ex parte/ex p mean?

A

On the part of/ on behalf of (person who is bringing the judicial review)

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5
Q

What is the meaning of the following citation:

Ghaidan v Godin-Mendoza [2004] 3 All ER 411.

A

3 All ER - Volume 3 of the All England Law Reports

411 - page number

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6
Q

What is the meaning of the following citation:

Ghaidan v Godin-­Mendoza [2004] UKHL 30.

A

Neutral citation

UKHL - UK House of Lords
(UKSC, Supreme Court, EWCA, England Wales Court of Appeal)

30 - Case number

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7
Q

What is the doctrine of judicial precedent?

A

High courts are more important than lower courts and follow the higher court’s decisions.

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8
Q

What is stare decisis?

A

To stand by decided matters, when higher courts bind lower courts in subsequent cases where facts are similar.

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9
Q

Which courts don’t set binding precedents?

A

Magistrates Court
Country Court
Crown Court (although persuasive)

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10
Q

Which court is bound by the High Court?

A

The County Court
(High Court not bound by its decisions, but persuasive)

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11
Q

Which courts are bound by the Divisional Court of the High Court?

A

Magistrates’ Court
County Court
Crown Court
High Court
Also itself, Divisional Court of the High Court

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12
Q

What is the Family Court bound by?

A

Court of Appeal
House of Lords
Supreme Court
NOT itself, but persuasive

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13
Q

In the Court of Appeal, what are both divisions bound by?

A

Both: Supreme Court and House of Lords.

Civil division: bound by own decisions, unless

  • Clash with CoA decision, choose
  • Clash with HoL/SC, it will follow HoL/SC
  • CoA decision per incuriam (carelessness), choose
  • Clash with ECtHR decision, choose
  • Clash with European Patents Office Board of Appeal, choose.

Criminal division: NOT bound by own decisions, but persuasive - due to its decisions depriving an individual of their liberty.

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14
Q

When did the highest court change from House of Lords to Supreme Court?

A

October 2009.

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15
Q

Are House of Lords decisions still binding?

A

Yes, continue to be binding subject to later decisions of Supreme Court.

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16
Q

Was the House of Lords bound by its own decisions?

A

Mostly, only if it was considered ‘right to do so’.

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17
Q

What kind of cases do the Supreme Court hear? Which countries can the cases originate from?

A

Appeals which raise points of general public importance.

Civil appeals from all of UK

Criminal appeals for England, Wales, NI. Not Scotland.

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18
Q

What statement do the Supreme Court follow?

A

Practice Statement (Judicial Decision as Authority: House of Lords) [1966]

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19
Q

Are Supreme Court rulings binding for the Supreme Court?

A

No, but highly persuasive.

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20
Q

Are ECtHR decisions binding on the UK courts?

A

No, not binding, but highly persuasive due to s2 Human Rights Act 1998.

21
Q

Are Court of Justice of the European Union decisions binding on the UK?

A

Not anymore after Brexit, but they were before. Decisions made before Brexit are incorporated into UK law as retained EU case law via the European Union (Withdrawal ) Act 2018. These decisions remain binding on all courts except the Supreme Court and Court of Appeal (can only depart when ‘it is right to do so’).

22
Q

What is the purpose of the Judicial Committee of the Privy Council?

A

Also known as the Privy Council.

Hears appeals from some small Commonwealth countries, esp Caribbean and UK’s remaining overseas territories.

Also hears appeals against decisions of some professional bodies.

23
Q

Are Privy Council decisions binding on UK courts?

A

No, not binding, but strongly persuasive due to judges being Supreme Court Justices (previously Law Lords)

24
Q

What is ratio decidendi?

A

The reason for the decision.

The binding element of a judgment.

25
Q

What is obiter dicta?

A

Words said by the way.

The non-binding element of a judgment, but strongly persuasive when made in SC, CoA, HoL.

26
Q

What are the 3 ways a judge can move away from a precedent?

A

Distinguishing
Overruling
Disapproval

27
Q

What does distinguishing a case mean?

A

The judge in a later case can distinguish the earlier case by saying its facts are different in a way that is legally significant. Previous precedent may be so unjust for the parties that it is not acceptable.

This is a way to allow a court to make a decision without openly refusing to follow a precedent.

28
Q

What does overruling a case mean?

A

Earlier decisions that are no longer regarded as good law can be overruled. Does not affect earlier case, but will set a new precedent.

29
Q

What does disapproving a case mean?

A

This is a less formal way of saying a judge disagrees with a case decisions rather than overruling it. Usually used in judgment when a they discuss barrister’s relevant cases.

30
Q

What does reversing and upholding an appeal mean?

A

Reversing: a high court reverses a lower court’s decision

Upholding: a high court upholds a lower court’s decision.

31
Q

What is statutory interpretation?

A

When a statute is ambiguous or unclear, the judge will make a decision on its meaning, affecting the case.

32
Q

What are the rules around statutory interpretation?

A

The literal rule
The golden rule
The mischief rule
The purposive/contextual approach

33
Q

What is the literal rule?

A

In the absence of any ambiguity, words in a statue should be given their literal meaning - judges often use the dictionary for words’ natural meaning.

Argument for this rule is that Parliament’s intentions are best reflected in the words they have used.

34
Q

Which case is useful when discussing the literal rule?

A

Fisher v Bell [1961]

Knife in window, not able to be offered for sale. Court ruled that knife in window was only an invitation to treat.

35
Q

What is the golden rule?

A

A common sense approach, where following legislation which produces an absurd result.

36
Q

Which case is useful when discussing the golden rule?

A

Allen [1872]

Offence of bigamy, as drafted, would not be able to be committed, as legislation made it void. ‘Shall marry’ was interpreted as ‘shall go through a marriage ceremony with’ instead.

37
Q

What is the mischief rule?

A

Examines former law in order to figure out what Parliament meant. (Mischief here means wrong or harm.)

4 RULES

  1. What was the common law (case law) before the making of the Act?
  2. What was the mischief and defect for which the common law did not provide?
  3. What was the remedy proposed by Parliament to rectify the situation?
  4. What was the true reason for the remedy?

Helps to try to understand what Parliament means.

38
Q

Which case is useful when discussing the purposive approach?

A

Gorris v Scott [1874]

Sheep being swept overboard due to not being penned in according to the Contagious Diseases (Animals) Act 1689. Held that overboard sheep was not the purpose of the Act, so claim failed.

39
Q

What is the purposive approach?

A

Also contextual approach.

Based on mischief rule, allows courts to look beyond the words used to find an interpretation that furthers the purpose of the legislation.

40
Q

Which case is useful when discussing the purposive approach?

A

Pepper (Inspection of Taxes) v Hart [1993]

Allowed courts to refer to any statement made by a minister, or anyone else promoting the Bill, when proposed legislation is passing through Parliament. Only when literal meaning of Act is ambiguous - can’t ignore the literal.

Also Royal College of Nursing v Department of Health and Social Security [1981], where Abortion Act 1967 said ‘registered medical practitioner’ but abortions were done by nurses, as medicine had moved on.

41
Q

What did the Constitutional Reform Act 2005 do?

A

Created the UK Supreme Court, separating UK’s highest court from Parliament.

Changed the Lord Chancellor position.

42
Q

In the Constitutional Reform Act 2005, how did the Lord Chancellor’s position change?

A

Lord Chancellor is no longer:

  • a Judge
  • Head of Judiciary
  • Speaker of the House of Lords
  • a large part of judicial appointments

They continue to be:

  • an important political role
  • the Secretary of State for Justice
  • responsible for courts and prisons
  • a member of the cabinet

They must:

  • uphold independence of judiciary
  • have the need to defend that independence
43
Q

When would judges leave their post?

A
  • when they don’t have ‘good behaviour’
  • when they are permanently incapacitated
  • when they retire at 70

Otherwise it is very difficult to remove a judge from office.

44
Q

How many of the 12 Supreme Justices are women or BAME?

A

2 out of 12 women

None BAME

45
Q

Who selects judges?

A

The Judicial Appointments Commission of England and Wales (the JAC).

46
Q

Who is in the Judicial Appointments Commission of England and Wales and which judges do they select?

A

No government.

15 commissioners, including lay chair and 5 lay members.

Select judges up to High Court level. Also help with CoA judges.

47
Q

Who makes the formal appointments of judges?

A

The King.

48
Q

Who selects Supreme Court Justices?

A

Prime Minister recommends, King formally appoints, but decision is made by the Supreme Court Selection Commission and Lord Chancellor.

Must be odd, no less than 5 and includes:
- Lay member
- Supreme Court Justice
- Member of JAC (usually chair)
- Member of Judicial Appointments Board for Scotland
Member of Northern Ireland Judicial Appointments Commission

Wrapped: Legal Systems (11 decks)

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