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Criminal Law (AQA) > Mini Topics P1 > Flashcards

Mini Topics P1 Flashcards

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1
Q

What is the literal rule? name the key case and external aid used

A

Using the plain, ordinary literal meaning; even if it leads to an absurd outcome (from Lord Esher). A dictionary of the time is used (Cheeseman v DPP)

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2
Q

What are the adv and disadv of literal rule?

A

Adv:
-Respects Parlimentary Sovereignty
-Uses exact words so predictable
Disadv:
-More than one meaning
-Can lead to absurd outcomes

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3
Q

What is the golden rule? name the two key cases

A

Uses golden narrow or golden broad when literal would lead to absurdity.
Narrow chooses between multiple meanings (Allen - ‘marry’), broad avoids a meaning (Sigsworth - ‘next of kin’)

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4
Q

What are the adv and disadv of golden rule?

A

Adv:
-Avoids absurd outcomes
-Narrow respects sovereignty
Disadv:
-Limited use

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5
Q

What is the mischief rule? name the key case and what established it

A

Established in Heydons Case 1584
Looks at why parliment passes to act/ what ‘mischief’ did they intent to stop?
(Smith v Hughes)

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6
Q

What are the adv and disadv of mischief rule?

A

Adv:
-Likely to produce just result
Disadv:
-Takes power away from Parliment

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7
Q

What is the purposive approach? name the key case

A

Looks beyond the exact words to find what Parliament intended - must be used in EU legislation (Royal College of Nursing v DHSS)

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8
Q

What are the adv and disadv of purposive approach?

A

Adv:
-Covers new situations such as developments in technology
Disadv:
-Judges should just apply the words enacted not look behind for intention

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9
Q

What are two external aids used in statutory interpretation?

A

Dictionary - used in literal rule
Hansard - used in mischief and purposive rule

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10
Q

What are the three internal aids used in statutory interpretation?

A

Short title, Long title and Preambles

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11
Q

What is judicial precedent?

A

The principle that past decisions of judges create law to be followed by future judges - also known as ‘Case Law’

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12
Q

What is stare decisis?

A

To stand by what is decided

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13
Q

What is ratio decidendi? name the key case

A

created by Rupert cross, meaning ‘the reason for the deciding’ - this is binding and must be followed by judges - (R v R)

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14
Q

What is obiter dicta? name the key case

A

‘Other things said’ - this is not binding but can be persuasive - (Hill v Baxter)

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15
Q

How can precedent be avoided?

A

By appealing to the Supreme Court of the Court of Appeal

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16
Q

What is distinguishing in judicial precedent? name the key case

A

A difference found between the old case and the similar case - used to avoid precedent - (Brown) & (Wilson)

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17
Q

What is overruling in judicial precedent?

A

Higher courts ability to correct lower courts on law - used to avoid precedent - (R v R)

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18
Q

What are the adv and disadv of judicial precedent?

A

Adv:
-Consistency (in order to be credible)
-Certainty (lawyers can predict)
Disadv:
-Rigidity (lower courts must follow highers)
-Slowness of growth (law cannot be reformed unless the case goes to SC)

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19
Q

What are summary offences? name the court and maximum sentence

A

The least serious crimes, trialed in Magistrates Court, max 6 months/£5000

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20
Q

What are ‘triable either way’ offences?

A

Vary in seriousness, trialed in Crown Court if deemed too serious, jurisdiction is not sufficient or D chooses trial by jury

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21
Q

What are indictable offences and where are they trialed?

A

The most serious crimes, trialed in Crown Court

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22
Q

When can cases be appealed?

A

On conviction, sentence or a point of law

23
Q

Where do appeals from the magistrates go?

A

Crown court - only open to defence for verdict or sentence to vary or reverse decision
High Courts - both can appeal on a point of law

24
Q

Where do appeals from the Crown Court go?

A

The Court of Appeal - appealed on a point of law to set precedent but will not affect D’s verdict

25
Q

Where do appeals from the Court of Appeals go?

A

Supreme Court - must have leave (permission) and must be a ‘Point of Law of General Public Importance’

26
Q

What is an aggravating factor?

A

Factors which make the sentence more severe

27
Q

What is a mitigating factor?

A

Factors which make the sentence less severe

28
Q

What are the aggravating factors for sentencing?

A

-Gang related
-Weapon used
-Minority discrimination
-No remorse
-Previous convictions
-Vulnerable victim

29
Q

What are mitigating factors for sentencing?

A

-Pleads guilty
-Shows remorse
-No previous convictions
-Has mental illness
-Helped victim/police
-Returned property
-Was provoked

30
Q

What is a custodial sentence?

A

The D serves a term of years in prison

31
Q

What is a suspended sentence?

A

A sentence that becomes a custodial sentence (jail) if the D reoffends

32
Q

What is a community order?

A

requirement to do unpaid work, drug treatment, anger management, curew etc

33
Q

What are the 5 sentencing aims?

A

Retribution
Reparation
Rehabilitation
Incapacitation
Deterrent

34
Q

What is the role of the magistrates?

A

-Decide bail, verdict sentence
-Hear all summary offences, some TEW and no indictable

35
Q

Describe the role of the juries

A

-listen to evidence
-decide verdict in private (must be 10-2 or 11-1)

36
Q

What are the adv and disadv of a jury?

A

Adv:
-Reach a just result
-Cheap
Disadv:
-media influence
-may not understand points of law

37
Q

What is the role of solicitors?

A

-Interviewing and advising clients
-Drafting documents
-Representing clients in police station
-Briefing Barristers in Crown Courts

38
Q

How are Solicitors regulated?

A

The Law Society and Solicitors Regulatory Authority (SRA) for punishment

39
Q

What is Solicitors advocacy in court?

A

-Have limited rights of audience
-Can advocate in Magistrates Court
-Must train to present in Crown Court (solicitor-advocate)

40
Q

What is Barristers advocacy in court?

A

-Full rights of audience
-Trained to advise clients, cannot be instructed by general public
-Can apply to become KC (King’s Council)
-Cannot refuse a case ‘cab rank rule’

41
Q

How are Barristers regulated?

A

The General Council of the Bar and the Bar Standards Board

42
Q

What is the role of legal executives?

A

-Specialise in particular area
-Work in similar to a solicitor, although more straightforward

43
Q

What is the regulation for legal executives?

A

Chartered Institute of Legal Executives (CILEx) and their regulation board

44
Q

What are the 3 inferior judges and what court do they sit in?

A

Circuit judges - Crown Court
Recorders - Crown Court
District Judge - Magistrates Court

45
Q

What are the 4 superior judges and where do they sit?

A

Justices of the Supreme Court - The Supreme Court, Privy Council
Lord Chief Justice - Usually Court of Appeal
Lord Justices of Appeal - Court of Appeal
Puisne Judges - High Court or Crown Court

46
Q

What are the 4 methods of free legal advice?

A

Help lines (CLA), Law centres, Trade Unions, Citizens Advice Bureaux

47
Q

What allows the Supreme Court to avoid precedent?

A

1966 Practice Statement - allows them to depart from a previous decision when ‘it appears right to do so’

48
Q

How can people gain legal funding in criminal cases?

A

Legal Aid agency - must qualify under ‘interests of justice’ and a means test

49
Q

What are the criteria in an Interests of Justice Test? (5)

A

-Liberty at risk
-Understanding
-Point of Law
-Witnesses
-Interests of someone else

50
Q

What does the means testing look at for legal funding?

A

Income - those on benefits or in full time education automatically pass

51
Q

What type of cases can aid be available in civil courts?

A

Under LASPO 2012:
Children’s rights
Mental health
Asylum cases

52
Q

What are the three methods for legal funding using your own money?

A

-Own resources
-Insurance
-Conditional Fee Agreements

53
Q

Explain the golden narrow rule and the key case

A

Allows the judge to choose between multiple definitions
Allen - definition of ‘marry’ to go through a marriage ceremony or to be legally married; cant be legally married to two people so convicted under Offences Against Person Act 1861

Criminal Law (AQA) (10 decks)

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