Non - substantive Flashcards
The Golden Rule
starting point for interpretation, applies the dictionary definition where the judge is required to consider what the legislation actually says rather than to consider what it means
Case: LNER V Berriman
‘repairing or relaying lines’, Berriman killed whilst ‘maintaining’ lines
Advantages of the Literal Rule
- leaves law making to parliament
Parliamentary sovereignty is respected which is that Parliament is the supreme law maker
Sometimes highlight to Parliament the problems with the Act and then Parliament can ammend legislation (Berriman) - predictable/certainty
Solicitors can advise their clients at the most likely outcome of their case (Berriman)
Disadvantages of the Literal Rule
-unfair/unjust decisions, if the literal rule is used to create bad precedent then this has to be followed by all judges in lower courts in future cases
- Ignoring parliament’s intention, Parliament would not intend the act to produce absurd results (Berriman)
-words have more than one meaning so the act is unclear, in this case another rule or aid to interpretation is required
The Golden Rule
extension of the literal rule, generally applied where the application of the literal rule is likely to be an obviously absurd result
2 applications of the Golden Rule
Narrow application
where the words can have more than one meaning the judge can choose between the meanings
Case: Allen - “Whosover being married shall marry any other person during the life of the former husband and wife shall be guilty of bigamy”
Wider application
where the words only have one meaning but that meaning would lead to an unsatisfactory result
Case: Sigsworth - using the literal rule in this instance would have meant that the son would inherit his mother’s will, the golden rule would be used to stop the son from inheriting as he murdered his mother
Advantages of the Golden Rule
- Respects the exact working of Parliament, escape route (Sigsworth)
- Judges can choose the most sensible meaning of words when there is more than one meaning to an act, provides sensible decisions when the literal rule would lead to a repugnant situation (Allen)
- Judges are still seen to be applying law upholding the doctrine of the Separation of Powers
Disadvantages of the Golden Rule
- only used on rare occasions as an escape route from the literal rule but can only be used when the wording is absurd or repugnant
Michael Zander ‘a feeble parachute’ - not always predictable making it difficult for lawyers to advise their clients on whether to pursue a case (Berriman)
The Mischief Rule
Judges fill in the ‘gaps’ in the law, an attempt to discover the intention of Parliament, the ‘mischief’ Parliament intended to cover
First used in Heydon’s to consider:
- what was the law before the act was passed
- judges looks at this common law in order to establish what gap or ‘mischief’ the act was intended to cover
- the court should then interpret the Act in such a way that the gap is covered
Case: Smith V Hughes ‘soliciting in a street or public place’
Advantages of the Mischief Rule
- avoids absurdity and injustice of the literal rule
Smith V Hughes (soliciting on balcony) - flexibility
promotes to find the purpose of the act, gives legal experts more freedom of choice in their decision, allows the law to be applied as Parliament intended rather than what is stated in the act (Smith V Hughes)
Disadvantages of the Mischief Rule
-risk of judicial law making
allows judicial law making which is undemocratic, judges shouldn’t make law that is the role of Parliament, judges fill in the gaps with their own views
- makes the law uncertain
impossible to know when a judge may use the rule and what result it may lead to
different judges may come to different conclusions as to the remedy and outcome of the case - inconsistent interpretation - retrospective law making
judges are ‘creating’ law after legislation has been passed and applying it to cases that may not previously had been considered
Purposive approach
not just looking to see what the gap was in the old law; the judges are deciding what they believe Parliament meant to achieve - the purpose of the act
Case: Jones V Tower Boot Co “to physically or verbally abuse within the course of employment” - racially abused during unpaid work hour, Parliament’s intention
Advantages of the Purposive Approach
flexibility
promotes to find the purpose of the act and gives the legal experts more freedom of choice in their decision, enables the law to be applied as Parliament intented rather than as stated in the act (Jones)
- allows judges to find the purpose of the legislation
Lord Denning, Parliament has left something out and to use common sense and to use wording to reflect what P was trying to deal with (Jones) - changes in society
allows the act to be interpreted to take into account the social, economic and technological changes into account (Jones)
Disadvantages of the Purposive Approach
(ALL JONES)
- risk of judicial law making
undemocratic as judges shouldn’t make law - role of Parliament
- makes the law uncertain
- retrospective law making
Aids to Interpretation
- intrinsic assistance
come from within the statue - judges use the full statue to understand the meaning of a particular part of it
e.g. long and short title
short: just name the act ‘The Abortion Act’
long: give some explanation as to what the act is trying to achieve
e.g. preamble - newer statutes may contain an objective or purpose section at the beginning of the act
Judicial precedent
rules judges must follow when deciding cases
a judge must follow any decision that has been made by a higher court with similar facts
rules are known as ‘rules of judicial precedent’ or ‘stare decisis’
Binding Precedent
Judges have to use, they will check to see if a similar situation has come before the court previously
If the precedent was set by a court of equal or higher status to the court deciding the new case the judge will have to follow that PoL
Persuasive Precedent
not binding, judges don’t have to use but they may consider it and decide that it is the correct principle and be persuaded to follow it
Can come from:
- courts lower in the hierarchy (RVR)
- statements made in the Obiter Dicta (Howe)
-decisions of courts in other countries (Commonwealth - Australia ruled on DOC in negligence, we followed it)
The Ratio
The reason for the decision - what creates precedent for judges to follow in future cases
The BINDING part of the decision
Case: Howe - duress is never a defence to murder (why is your life more meaningful than someone else’s?)
The Obiter
Other things said, judges do not have to follow it is only persuasive on all other courts
Sometimes be the judge speculating what his decision would have been if the facts of the case would have been different - hypothetical situation
Case: Gotts - duress is never a defence for ATTEMPTED murder
Original Precedent
Judges are sometimes forced to make new law if the PoL has never been decided before
Case: Brown - consent can never be a defence to ABH or GBH
Judges can also make law through the process of statutory interpretation
Case: Smith V Hughes
House of Lords/ Supreme Court
HoL not bound by their decisions prior to 1898
Case: London Street Tramways - from now on they would also be bound by their own previous decisions continued until 1966 - was unsatisfactory as the law could not change to meet changing social conditions OR ‘wrong’ decisions be changed by the courts
Practice Statement
Stated that the HoL would depart from its own decision ‘when it appears right to do so’
First major use: Herrington V British Railways Board OVERRULED Addie V Dumbreck
Case: Austin V London Borough of Southwark - SC confirmed that the power to use the practice statement had been transferred to them
Court of Appeal (civil)
used in BOTH divisions (civil and criminal)
The decisions of the CoA bind all inferior courts, they themselves are bound by the HoL. The CoA is bound by its own previous decisions
Principle established in Young V Bristol Aeroplane
Decided they did not have to follow their own previous decisions when:
- the previous decision has been made ‘per incuriam (in error) because of an act of Parliament has not been followed
- a decision on the HoL which contradicts the CoA - the CoA must follow the HoL
- if there are different decisions in past CoA cases the court can chose which to follow and which to reject
Court of Appeal (criminal)
Court is bound by the HoL
Civil CANNOT bind the criminal and the criminal CANNOT bind the civil
The criminal has adopted a more flexible approach than the civil
Case: Gould - if the law in a previous CoA case had been misunderstood or misapplied then they would overrule
2 ways of avoiding following precedent
- Distinguishing
the judge finds the material facts of the case he is deciding on sufficiently different from a previous case he is not bound by the previous case
Wilson (can consent - held to be tattoo not GBH) distinguished from Brown (can’t consent to ABH and GBH)
- Overruling
when a higher court overrules a decision made in an earlier case in a lower court
Candler V Crane Christmas was overruled by Hedley Byrne V Heller
