non-substantive Flashcards
what is an original precedent + case
- if a point in law in a case has never been decided before, then the decision in that case will create a new precedent
- Re A
what is a binding precedent + case
- precedent from a previous decided case must be followed in a later case when the facts of the cases are sufficiently similar or the decision in the original case is made by court senior or at the same level
- R v Brown
what is a persuasive precedent + case
- not binding on the court
- but may become important where a judge or court considers it from another case and follows it, even though it doesn’t have to
- R v Gotts in R v Howe
what is a dissenting judgement + case
- where a case has been decided by a majority of judges, the judge will have to explain his reasons
- but a higher court may decide to follow the judgement of the Judge who had disagreed
- Candler v Crane Christmas
what are the four key elements to judicial precedent
- ratio decidendi
- obiter dicta
- court hierarchy
- law reporting
what is ratio decidendi + case
- means the legal reason for the decision
- includes an explanation of the principles of law used by the court to come to a decision in the case
- creates binding precedent
- R v Brown
what is obiter dicta + case
- ‘other things said’ or ‘things said by the way’
- found in the judgement
- includes any extra comments made by the judges
- this doesn’t have to be followed in future cases
- R v Wilson
what are the problems in finding the ratio in a case + case
- recognising the ratio decidendi from the obiter dicta
- judgements doesn’t include headings or sub-headings
- there can be many judgements at the end of a case
- more than one judge wants to explain their legal reasoning
- Rylands v Fletcher
what is the court hierarchy in criminal courts
- supreme
- court of appeal
- divisional courts
- crown court
- magistrates court
what is the court hierarchy in civil courts
- supreme
- court of appeal
- divisional courts
- high court
- county court
when were ‘the law reports’ published
1865
what will a law report include
- case name
- court hearing the case/appeal
- judges involved
- summary of the facts
- key legal issues and decisions made in the case
what did the internet make possible to obtain
obtain online case reports with ease and speed
what three choices do judges have when faced with a precedent
- follow
- distinguish
- overrule
what is distinguishing + case
- when deciding a case, a judge may find the facts in the case are different to a previously decided case
- the judge can distinguish between the cases and say there is a difference and so not to follow the earlier precedent
- Balfour and Balfour, and, Merritt and Merritt
what is overruling + case
- where a court higher up in the hierarchy disagrees with a lower court’s decision and says they were wrong
- original decision still stands for the parties, but the courts no longer have to follow the precedent
- Pepper v Hart where HoL overruled its own previous decision in Davis V Johnson
how can the supreme court overrule its own previous decision using the Practice statement 1966 + case
- HoL traditionally was bounded by its own decision unless the decision was made in error
- 1966 Practice Statement was issued by the HoL that allowed them to depart from their own previous precedents where it appeared right to do so
- HoL were careful to use this to begin with
- first major use was in BRB v Herrington
how can the court of appeal avoid its previous decision using the exceptions from Young v BAC
- consisted of three exceptions
- the previous decision was made in ignorance of relevant law
- where there are two previous conflicting CoA decisions, the court can choose which one to follow (R v Spratt and R v Savage)
- where there is a later HoL decision which overrules the previous CoA decision, they must follow the later decision of HoL (DPP v Parmenter)
briefly explain the advantages of judicial precedent
- certainty of outcome in a case and consistency in decision making
- flexibility as it allows a judge to use a method of avoiding precedent
- using a previous present to decide the outcome in a case is time-saving
briefly explain the disadvantages of judicial precedent
- its a rigid system as lower courts are bounded by previous decisions of higher courts
- changing previous precedents/rules is a slow process
- retrospective effect of a courts decision
what is the literal rule + cases
- judges should apply the ordinary, natural meaning of the words used in the act/statute when deciding a case
- supported by judges who say the role of the judge is to apply the law that parliament makes
- Whiteley v Chappell
- LNER v Berriman
what are the advantages of the literal rule
- follows the rule about supremacy of parliament and that unelected judges should dimply apply the law that parliament makes
- element of certainty in the law as the wording will not change
- quick decisions can be made
what are the disadvantages of the literal rule + case
- rule can lead to unfair or unjust decisions as in LNER v Berriman
- restricts judicial creativity and holds back development of law in keeping up with changing social conditions
- assumes that an act of parliament is perfectly drafted
what is the golden rule + cases
- if using the literal rule to interpret words in a statute/act produces an absurdity, court should look for another meaning of the word that avoids the absurd result
- where the words may be interpreted in two different ways, apply the meaning which avoids the absurd result (narrow approach)
- where the words only have one meaning, the court may not apply this meaning (wide approach)
- Re Sigsworth
advantages of the golden rule
- respects parliamentary sovereignty as the literal rule is used in except in limited situations
- allows judges to be more flexible and avoid an absurd result, achieving justice
- prevents absurdity and injustice caused if literal rule was applied
disadvantages of the golden rule
- requires a judge to use common sense and so it depends on what a judge views as absurd
- no clear guidelines on when the golden rule should be used
what is the mischief rule + case
- judge looks at the reason for the statute/act and what problem the law was intended to remedy to cover the gap
- gives judges more discretion
- implies an ability and willingness on the judge to look beyond the words of the statute itself
- Smith v Hughes
advantages of the mischief rule
- tries to give effect to the true intention of parliament and allows the judge to ‘fill in the gaps’ when parliament overlooked a problem
- allows judges to interpret the act considering social, economic, and technological circumstances
- can provide a more just result
disadvantages of the mischief rule
- it’s very old
- may lead to uncertainty within the law as it’s impossible to know when judges will use the rule and what it may lead to
- risk of judicial law-making as judges try to fill in the gaps using their own views on how the law should remedy the gap in law
what is the purposive approach + case
- involves a judge interpreting the law by considering the purpose for which it was enacted
- modern approach
- extension of the mischief rule
- gives judges a lot of scope for interpretation
- R v Registrar-General, ex parte Smith
advantages of purposive approach
- more sensible to look at the whole purpose of the statute/act
- broad approach which allows the law to cover more situations than applying the words literally
- gives judges more discretion than using the literal meaning of words, especially where the literal meaning would lead to an absurd result
disadvantages of purposive approach
- gives more power to unelected judges to make law
- finding the intention of parliament isn’t easy despite the use of Hansard
- impossible to know when this rule may be used or what result it will lead to
examples of internal aids
- long and short title of the act
- preamble
- schedules
- interpretation/ definition section
- individual sections/parts of the act
- objectives section
- punctuation
examples of external aids
- previous acts of parliament on the same topic
- earlier case law in which the act was used
- interpretation act 1978
- dictionaries
- hansard
- reports of law reform bodies