non-substantive Flashcards
1
Q
what is an original precedent + case
A
- 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
2
Q
what is a binding precedent + case
A
- 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
3
Q
what is a persuasive precedent + case
A
- 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
4
Q
what is a dissenting judgement + case
A
- 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
5
Q
what are the four key elements to judicial precedent
A
- ratio decidendi
- obiter dicta
- court hierarchy
- law reporting
6
Q
what is ratio decidendi + case
A
- 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
7
Q
what is obiter dicta + case
A
- ‘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
8
Q
what are the problems in finding the ratio in a case + case
A
- 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
9
Q
what is the court hierarchy in criminal courts
A
- supreme
- court of appeal
- divisional courts
- crown court
- magistrates court
10
Q
what is the court hierarchy in civil courts
A
- supreme
- court of appeal
- divisional courts
- high court
- county court
11
Q
when were ‘the law reports’ published
A
1865
12
Q
what will a law report include
A
- case name
- court hearing the case/appeal
- judges involved
- summary of the facts
- key legal issues and decisions made in the case
13
Q
what did the internet make possible to obtain
A
obtain online case reports with ease and speed
14
Q
what three choices do judges have when faced with a precedent
A
- follow
- distinguish
- overrule
15
Q
what is distinguishing + case
A
- 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
16
Q
what is overruling + case
A
- 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
17
Q
how can the supreme court overrule its own previous decision using the Practice statement 1966 + case
A
- 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
18
Q
how can the court of appeal avoid its previous decision using the exceptions from Young v BAC
A
- 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)
19
Q
briefly explain the advantages of judicial precedent
A
- 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
20
Q
briefly explain the disadvantages of judicial precedent
A
- 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
21
Q
what is the literal rule + cases
A
- 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
22
Q
what are the advantages of the literal rule
A
- 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
23
Q
what are the disadvantages of the literal rule + case
A
- 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
24
Q
what is the golden rule + cases
A
- 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
25
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
26
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
27
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
28
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
29
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
30
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
31
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
32
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
33
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
34
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
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