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Law Paper 1 Criminal Law > non-substantive > Flashcards

non-substantive Flashcards

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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
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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
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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
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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
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5
Q

what are the four key elements to judicial precedent

A
  • ratio decidendi
  • obiter dicta
  • court hierarchy
  • law reporting
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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
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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
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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
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9
Q

what is the court hierarchy in criminal courts

A
  • supreme
  • court of appeal
  • divisional courts
  • crown court
  • magistrates court
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10
Q

what is the court hierarchy in civil courts

A
  • supreme
  • court of appeal
  • divisional courts
  • high court
  • county court
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11
Q

when were ‘the law reports’ published

A

1865

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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
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13
Q

what did the internet make possible to obtain

A

obtain online case reports with ease and speed

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14
Q

what three choices do judges have when faced with a precedent

A
  • follow
  • distinguish
  • overrule
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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
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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
Q

advantages of the golden rule

A
  • 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
Q

disadvantages of the golden rule

A
  • 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
Q

what is the mischief rule + case

A
  • 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
Q

advantages of the mischief rule

A
  • 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
Q

disadvantages of the mischief rule

A
  • 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
Q

what is the purposive approach + case

A
  • 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
Q

advantages of purposive approach

A
  • 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
Q

disadvantages of purposive approach

A
  • 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
Q

examples of internal aids

A
  • long and short title of the act
  • preamble
  • schedules
  • interpretation/ definition section
  • individual sections/parts of the act
  • objectives section
  • punctuation
34
Q

examples of external aids

A
  • 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
35
Q
A

Law Paper 1 Criminal Law (16 decks)

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