AC 1.1 Describe The Process Used In Law Making Judiciary Flashcards
what is judicial precedent
the fact that the court has to follow and apply the law as a set out in decisions in higher courts in other cases, this creates consistsncy
what are 2 exceptions to judicial precedent
distinguishing and overruling
what does distinguishing mean
when the judge finds the facts in the present case different to earlier ones
what is overruling
when an earlier decision is found to be wrong and overturned
what is an example of judicial precedent
Donoghue v Stevenson 1932, 2 friends visited a cafe one drank a bottle of ginger beer that had a decomposing snail in making her ill, she sued the manufacturer and won the case, this was then set as a binding precedent and was followed in other cases
what’s an example of overruling
case of R vs R 1992, a husband convicted of rape on wife appealed on a old precedent that marriage contracts gave wives irreversible consent, the appeal court overruled this as it is unacceptable today
what is statutory interpretation
where judges have to interpret and apply laws made in the past which could cause problems as past laws may be unclear
what are 3 rules to help interpret the law
literal rule
golden rule
mischief
describe literal rule
the ordinary and everyday meaning of a word
why can past laws be unclear
words having multiple meanings, developments in technology, society or drafting error
what’s the golden rule
sometimes literal interpretations can lead to a ridiculous result so the golden rule can overcome this
what’s mischief in terms of interpreting the law
allows the court to enforce what the words were meant to achieve rather than what they say
