1.1 Flashcards
What are the different processes used for law making
- judicial process
- governmental/parliamentary
Judicial law making:
Explain the principle stare decisis and what 2 key factors make it work
- ‘Stand by what has been decided’
– This is the Latin maxim which our system of precedent is based on.
– Where the point of law in the present case and previous case is the same, the judge has to follow it - promotes consistency/fairness/certainty
- 2 key factors which make it work:
-Hierarchy of the courts
-Law Reporting
Judicial law making:
Explain the hierarchy of the courts and how it work
- magistrates courts->crown court-> court of appeals->Supreme Court (used to be called House of Lords)
- A decision taken in a case by a higher court automatically creates an original or binding precedent for all lower courts – one that they must follow when dealing with similar cases.
Judicial law making:
What does following the doctrine of precedent mean
- Every court is bound to follow any decision made by a court above it in the hierarchy
- In general, appellate courts are bound by their past decisions
- The superior courts tend to bind the lower courts.
Judges make law through which two processes?
- judicial precedent
- statutory interpretation
Judicial law making:
What does treating similar cases in the same way (judicial precedent) create ?
- Certainty
- Consistency, and
- Fairness in the legal system
Much of the law of the land has developed from following the decisions made in earlier cases. This helped create a single set of laws common to the whole country, and so the system has come to be known as common law.
Judicial law making:
What are the exceptions to the precedent?
There are two main situations where a court does not have to follow precedent. These are:
Distinguishing:
A precedent from an earlier case is only binding on a present case if the legal principle involved is the same and if the facts are similar in both cases.
Distinguishing means that the judge finds facts in the present case are different enough from the earlier one to allow for a different decision to be reached and therefore does not have to follow precedent from an earlier case.
Overruling:
Overruling is where a court higher up in the hierarchy states that a legal decision in an earlier case is wrong and overturns it.
For example, the Supreme Court can overrule a lower court’s decision when it hears an appeal.
Judicial law making:
Explain an example of overruling precedent
-
The Law on Marital Rape:
R v R (1992) - A husband had been convicted of attempting to rape his wife.
- He appealed on the grounds that where was a centuries-old precedent that a husband could not be guilty of raping his wife because the marriage contract gave a wife’s irrevocable consent to sex.
- The COA overruled this on the grounds that the idea of irrevocable consent was unacceptable today - as partners are equals in the marriage.
- The law on marital rape - example of overruling a precedent.
Judicial law making:
What is statutory interpretation
- judges can make laws by the way they interpret the statutes of Acts of Parliament.
- A statute is a written law and so judges need to interpret the meaning of its words and apply them to case they are judging.
Judicial law making:
What are the 3 main interpretation rules to help them interpret the statues of Acts of Parliament?
- The literal rule
- The golden rule
- The mischief rule
Judicial law making:
Explain the literal rule
Definition: Victorian, plain, ordinary, meaning.
• Often make use of a dictionary.
• Most common rule and least controversial.
• Lord Esher stated…
‘If the words of an Act are clear, you must follow them, even if they lead to a manifest absurdity’
• Heavily criticised as seen to lead to injustice.
Judicial law making:
Explain 2 cases were the literal rule was used
-
Whiteley v Chappell
• The law stated it was an offence to ‘impersonate any person entitled to vote.’
• D used the vote of a dead person.
• He was found not guilty as the court literally interpreted the law… a dead person is not entitled to vote -
R v Bentham
• Bentham pretended he had a gun during a robbery by putting his fingers in his coat pocket. The Firearms Act 1968 states it is an offence to:
‘have in possession a firearm or imitation firearm’.
• People cannot possess their own body parts so this would not include his fingers,
• The HoL’s quashed his conviction
Judicial law making:
Explain the golden rule
- This is an extension of the literal rule.
- The Judge will follow the literal interpretation of the given word unless this would lead to…
-An injustice
-An absurdity
Judicial law making:
Explain two cases where the golden rule was used
-
R v Allen:
• It is an offence to commit the crime of bigamy (marry someone else while still married) under s.57 Offences Against the Person Act 1861
• Issue: the word marry has two meanings
• Held: The court applied the meaning of marriage as the ceremony so the conviction was upheld. -
R v Sigsworth:
• Son murdered his mother in order to inherit her estate.
• The law said the next of kin should receive all the assets.
• Held: Courts used the golden rule (wide approach) to avoid the unjust result the literal rule would have given, as someone should not benefit from murder!
Judicial law making:
Explain the mischief rule
- Under the mischief rule the court’s role is to suppress the mischief the Act is aimed at and advance the remedy.
- The mischief rule was laid down in Heydon’s Case in the sixteenth century, and provides that judges should consider three factors:
-what the law was before the statute was passed;
-what problem, or ‘mischief’, the statute was trying to remedy;
-what remedy Parliament was trying to provide. - The judge should then interpret the statute in such a way as to put a stop to the problem that Parliament was addressing.
