Mini Topics P1 Flashcards
What is the literal rule? name the key case and external aid used
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)
What are the adv and disadv of literal rule?
Adv:
-Respects Parlimentary Sovereignty
-Uses exact words so predictable
Disadv:
-More than one meaning
-Can lead to absurd outcomes
What is the golden rule? name the two key cases
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’)
What are the adv and disadv of golden rule?
Adv:
-Avoids absurd outcomes
-Narrow respects sovereignty
Disadv:
-Limited use
What is the mischief rule? name the key case and what established it
Established in Heydons Case 1584
Looks at why parliment passes to act/ what ‘mischief’ did they intent to stop?
(Smith v Hughes)
What are the adv and disadv of mischief rule?
Adv:
-Likely to produce just result
Disadv:
-Takes power away from Parliment
What is the purposive approach? name the key case
Looks beyond the exact words to find what Parliament intended - must be used in EU legislation (Royal College of Nursing v DHSS)
What are the adv and disadv of purposive approach?
Adv:
-Covers new situations such as developments in technology
Disadv:
-Judges should just apply the words enacted not look behind for intention
What are two external aids used in statutory interpretation?
Dictionary - used in literal rule
Hansard - used in mischief and purposive rule
What are the three internal aids used in statutory interpretation?
Short title, Long title and Preambles
What is judicial precedent?
The principle that past decisions of judges create law to be followed by future judges - also known as ‘Case Law’
What is stare decisis?
To stand by what is decided
What is ratio decidendi? name the key case
created by Rupert cross, meaning ‘the reason for the deciding’ - this is binding and must be followed by judges - (R v R)
What is obiter dicta? name the key case
‘Other things said’ - this is not binding but can be persuasive - (Hill v Baxter)
How can precedent be avoided?
By appealing to the Supreme Court of the Court of Appeal
What is distinguishing in judicial precedent? name the key case
A difference found between the old case and the similar case - used to avoid precedent - (Brown) & (Wilson)
What is overruling in judicial precedent?
Higher courts ability to correct lower courts on law - used to avoid precedent - (R v R)
What are the adv and disadv of judicial precedent?
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)
What are summary offences? name the court and maximum sentence
The least serious crimes, trialed in Magistrates Court, max 6 months/£5000
What are ‘triable either way’ offences?
Vary in seriousness, trialed in Crown Court if deemed too serious, jurisdiction is not sufficient or D chooses trial by jury
What are indictable offences and where are they trialed?
The most serious crimes, trialed in Crown Court
When can cases be appealed?
On conviction, sentence or a point of law
Where do appeals from the magistrates go?
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
Where do appeals from the Crown Court go?
The Court of Appeal - appealed on a point of law to set precedent but will not affect D’s verdict
Where do appeals from the Court of Appeals go?
Supreme Court - must have leave (permission) and must be a ‘Point of Law of General Public Importance’
What is an aggravating factor?
Factors which make the sentence more severe
What is a mitigating factor?
Factors which make the sentence less severe
What are the aggravating factors for sentencing?
-Gang related
-Weapon used
-Minority discrimination
-No remorse
-Previous convictions
-Vulnerable victim
What are mitigating factors for sentencing?
-Pleads guilty
-Shows remorse
-No previous convictions
-Has mental illness
-Helped victim/police
-Returned property
-Was provoked
What is a custodial sentence?
The D serves a term of years in prison
What is a suspended sentence?
A sentence that becomes a custodial sentence (jail) if the D reoffends
What is a community order?
requirement to do unpaid work, drug treatment, anger management, curew etc
What are the 5 sentencing aims?
Retribution
Reparation
Rehabilitation
Incapacitation
Deterrent
What is the role of the magistrates?
-Decide bail, verdict sentence
-Hear all summary offences, some TEW and no indictable
Describe the role of the juries
-listen to evidence
-decide verdict in private (must be 10-2 or 11-1)
What are the adv and disadv of a jury?
Adv:
-Reach a just result
-Cheap
Disadv:
-media influence
-may not understand points of law
What is the role of solicitors?
-Interviewing and advising clients
-Drafting documents
-Representing clients in police station
-Briefing Barristers in Crown Courts
How are Solicitors regulated?
The Law Society and Solicitors Regulatory Authority (SRA) for punishment
What is Solicitors advocacy in court?
-Have limited rights of audience
-Can advocate in Magistrates Court
-Must train to present in Crown Court (solicitor-advocate)
What is Barristers advocacy in court?
-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’
How are Barristers regulated?
The General Council of the Bar and the Bar Standards Board
What is the role of legal executives?
-Specialise in particular area
-Work in similar to a solicitor, although more straightforward
What is the regulation for legal executives?
Chartered Institute of Legal Executives (CILEx) and their regulation board
What are the 3 inferior judges and what court do they sit in?
Circuit judges - Crown Court
Recorders - Crown Court
District Judge - Magistrates Court
What are the 4 superior judges and where do they sit?
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
What are the 4 methods of free legal advice?
Help lines (CLA), Law centres, Trade Unions, Citizens Advice Bureaux
What allows the Supreme Court to avoid precedent?
1966 Practice Statement - allows them to depart from a previous decision when ‘it appears right to do so’
How can people gain legal funding in criminal cases?
Legal Aid agency - must qualify under ‘interests of justice’ and a means test
What are the criteria in an Interests of Justice Test? (5)
-Liberty at risk
-Understanding
-Point of Law
-Witnesses
-Interests of someone else
What does the means testing look at for legal funding?
Income - those on benefits or in full time education automatically pass
What type of cases can aid be available in civil courts?
Under LASPO 2012:
Children’s rights
Mental health
Asylum cases
What are the three methods for legal funding using your own money?
-Own resources
-Insurance
-Conditional Fee Agreements
Explain the golden narrow rule and the key case
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
