AC1.1 Describe the judical processes of law aiing Flashcards

1
Q

judges can makes laws through which 2 processes

A

-judicial precedent
-statutory interpretation

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2
Q

What is judicial precedent

A

a type of law making where past decisions of judges create laws for future judges to follow

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3
Q

define the term ‘principle of standing by’ what does it create

A

judges follow what has been decided in previous cases where the point of las is the same.
this creates certainty, consistency and fairness sin the legal system

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4
Q

what should judge do if there’s no precedent

A

give an original precedent

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5
Q

2 case example showing judicial precedent in action

A

Donoghue v stevenson 1932
Daniels v white 1938

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6
Q

donoghue v stevenson 1932

A

two friends visited a cafe, one drank a bottle of ginger beer, contained a decomposing snail, woman fell Ill, sued the manufacturer, won her case, the court decided that a duty of care was owed by the manufacturer to the woman. known as ‘neighbour principle’
—this case founded the oder day law of negligence —

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7
Q

Daniels v white 1938

A

claimant brought a bottle of lemonade and when it was drank felt burning sensation n throat, it contained corrosive metal. The case of Donoghue and Stevenson was used when suing for compensation even tough facts were slightly different.

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8
Q

what are the exceptions to precedent

A

distinguishing
overruling
reversing

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9
Q

what is meant by distinguishing

A

precedent can only be binding if the principle of a case is the same, and facts are similar

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10
Q

case example of distinguishing

A

balfour v balfour

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11
Q

blalfoour v balfour / merit v merit case

A

husbands sending money to wives, overseas matinee payments then split, not bound only social, merit left and lived elsewhere and signed agreement to pay of home

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12
Q

what is meant by overruling

A

higher courts can overrule/ turns decisions and set a new precedent

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13
Q

case example of overruling

A

R V Riaal marital rape

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14
Q

R V Riaall

A

houses of laws(supreme court) agreed with court of appeal that a man could be guilty of raping his wife, wiped out exemption

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15
Q

what is meant by reversing

A

a higher court changes a decision made in a lower court of appeal

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16
Q

sweet v parsley (reversing example)

A

house of lords reveres court of appeal decision snd found defendant not guilty men’s rea couldn’t be proved

17
Q

what is statutory interpretation

A

In Superior Court, such as Court of Appeal, Supreme Court, judges are sometimes called upon to interpret words and phrases with a statue. in this way, they can make law by the way they interpret such statues or acts and apply them to cases that are being judged

18
Q

Judges have three main interpretation rules to help them do this:

A

literall rule
golden rule
mischief rule

19
Q

what is the literal rule

A

judges give words of an act there literal/ ordinary meaning, doctors of time of act will be used.

20
Q

advantages and disadvantages of literall rule

A

advantages;
-follows word of democracy elected parliament, parliament make laws so judges should follow/apply how its written . stops unelected judges making lawmakers low more certain.
disadvantages;
-not all acts perfectly drafted, have more than one meaning, can lead to unfair/ unjust decisions

21
Q

cases of literal rule

A

Cheeseman: indecently exposed himself in public toilets, police officers stationed outside. Act said ‘passenger’s’ This meant passers by. Police not passengers so hadn’t committed an offence. Used literal rule
Berriman: Man oiling points on railway line when hit by train. Lookout should be provided for relaying and repairing of the track, not relaying or repairing, only maintenance. Used literal.

22
Q

what is the golden rule (narrow/wide)

A

an extension of the literal rule, may be applied when application of literall a rule woullead to absurdity.
narrow-it’s applied when word or phrase is capable of more than one literal meaning
wide-applied when there is only one literal meaning

23
Q

advantages and disadvantages of golden rule

A

advantages;
-Respects word of parliament
-Escape route
-Follow intention of parliament and just corrects errors
-avoids worst problems of the literal rule
disadvantages;
-no guidance on how ans where to use rule
-holds parliament to high standards

24
Q

2 cases of the narrow approach (golden)

A

-R v Allen
-Defendant charged with bigamy, offence to marry another when already married. 2 meanings, legally marry and marriage ceremony
-Court used 2nd to find Defendant guilty
-Adler v George: staged protest inside RAF base. ‘In vicinity of any prohibited place’ argued vicinity not the same as inside. Said could mean near to and within

25
Q

case of wide approach (golden)

A

-Re Sigsworth
-Son murdered mother and she didn’t make a will, he would inherit all
-court rewrote the act and applied golden so he would not get anything