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ELS - JP + SI Flashcards

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1
Q

What is judicial precedent?

A

Judicial precedent is where past decisions of judges in appellate courts create law for future judges to follow. It is based on the principle of stare decisis and applies when the material facts are sufficiently similar.

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2
Q

How does judicial precedent operate?

A

1) Every court is bound to follow the decisions of courts above it in the hierarchy. 2) Generally, appellate courts are bound by their own previous decisions.

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3
Q

What must exist for the system of precedent to function properly?

A

a) A strict court hierarchy
b) An effective system of law reporting
c) A ratio decidendi

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4
Q

Why must the court hierarchy be clear and stable in judicial precedent?

A

So judges know which decisions they are bound by. The UK has separate civil and criminal hierarchies that do not bind each other, but both must follow decisions of higher courts in their own hierarchy.

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5
Q

When was the Supreme Court established and what did it replace?

A

The Supreme Court replaced the House of Lords in 2009, following the Constitutional Reform Act 2005.

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6
Q

Is the Supreme Court bound by its own decisions?

A

Technically, yes—but it may use the Practice Statement to depart from its own decisions if it appears right to do so.

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7
Q

When can the Court of Appeal depart from its own decisions?

A

1) If a previous CA decision conflicts with a later SC decision
2) If there are two conflicting CA decisions, the court can choose
3) If the previous decision was made per incuriam

Criminal Division can also depart where previous ruling is wrong and would cause injustice to the defendant.

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8
Q

What is ratio decidendi?

A

It means ‘the reason for deciding’—the legal principle that forms the basis of the decision. It is binding on all lower courts and must be identified by future judges when analysing law reports.

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9
Q

Why can ratio decidendi be difficult to determine?

A

It is not clearly highlighted by judges and must be identified by analysis.

Example cases: Woollin, Donoghue v Stevenson, DPP v Majewski.

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10
Q

What is obiter dicta?

A

Obiter dicta are ‘things said by the way’—statements not essential to the decision. They are not binding but are persuasive precedents and can become ratio decidendi in future cases if followed.

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11
Q

Give an example of obiter dicta being followed and becoming ratio decidendi.

A

Howe – HL ruled duress isn’t a defence to murder; they also said it wouldn’t be for attempted murder. This OD was followed in Gotts and became binding.

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12
Q

Can obiter dicta ever become binding?

A

Yes. For example, in Ivey v Genting Casinos, obiter comments were treated as binding in later cases like Barton.

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13
Q

What is a law report and what does it contain?

A

A law report is an accurate, authorised published record of an appellate decision. It includes:
• Case name
• Judges’ names
• Hearing date
• Court heard in
• Catchwords
• Facts summary
• Legal issues
• Earlier decisions
• Judgement(s), including ratio decidendi and reasons.

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14
Q

What are the three types of precedent?

A

1) Binding precedent – must be followed in future similar cases from same/higher court
2) Original precedent – established when no prior decision exists; can be overruled later
3) Persuasive precedent – not binding but may be followed and, if followed, becomes binding ratio in future cases.

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15
Q

When must a precedent be followed?

A

When (1) the precedent comes from a court of the same or higher level, and (2) the material facts of the two cases are sufficiently similar.

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16
Q

What is overruling?

A

When a higher court replaces a previous decision with a new one because the earlier decision is considered wrong.

Example: R v R.

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17
Q

What is distinguishing?

A

When a judge avoids following a binding precedent by showing the material facts of the current case are different. The original case remains valid for similar cases.

Example: Balfour v Balfour vs Merritt v Merritt.

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18
Q

What is reversing?

A

When a higher court overturns a decision made by a lower court in the same case on appeal.

Example: Gillick v West Norfolk and Wisbeck AHA.

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19
Q

What did the case of London Street Tramways v London City Council decide about HL decisions?

A

It held that certainty in the law was more important than possible hardship, so the HL was bound by its own past decisions—unless changed by Parliament.

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20
Q

What is the Practice Statement?

A

A statement from the Lord Chancellor allowing the HL (now SC) to depart from its own previous decisions ‘when it appears right to do so’.

Used in BRB v Herrington.

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21
Q

What are the advantages of judicial precedent?

A
  • Certainty and predictability
  • Consistent and fair outcomes
  • Precision in legal principles
  • Flexibility
  • Time-efficient
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22
Q

What are the disadvantages of judicial precedent?

A
  • Rigidity
  • Complexity
  • Potential for illogical decisions
  • Slow development of law
  • Retrospective effect
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23
Q

What are the four rules of statutory interpretation?

A
  1. The Literal Rule
  2. The Golden Rule
  3. The Mischief Rule
  4. The Purposive Approach
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24
Q

What is the literal rule?

A

Judges give words their plain, ordinary and literal meaning, even if the result is absurd or undesirable. Focus is on the exact wording, not Parliament’s intention.

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25
What did Lord Esher say about the literal rule?
“If the words of the act are clear, then you must follow them even though they lead to a manifest absurdity.”
26
What case illustrates the literal rule?
Whiteley v Chappell – D impersonated a dead person to vote. Court held the dead were not entitled to vote, so D was not guilty under a literal interpretation.
27
What is the golden rule?
A modification of the literal rule. Judges begin with the literal meaning but can alter it to avoid absurd outcomes.
28
What are the two approaches to the golden rule?
• Narrow approach: Used when the wording is ambiguous • Wider approach: Used when wording is clear but would produce absurdity
29
What case illustrates the narrow approach?
R v Allen – D charged with bigamy. Literal meaning made offence impossible. Court interpreted “marry” as going through a ceremony to avoid absurdity → D found guilty.
30
What case illustrates the wider approach?
Re Sigsworth – D murdered mother to inherit her estate. Court interpreted Act to exclude killers from inheritance, preventing an absurd result.
31
What is the mischief rule?
Court looks at the gap in the law (mischief) that Parliament intended to remedy, and interprets the Act to suppress the mischief and advance the remedy.
32
What case established the mischief rule?
Heydon’s Case – Courts should consider: 1. What was the law before the Act? 2. What problem (mischief) did the Act aim to solve?
33
What case illustrates the mischief rule?
Smith v Hughes – Prostitutes soliciting from windows/balconies. The Act prohibited soliciting “in the street.” Court applied mischief rule and held they were guilty, as mischief was harassment of public.
34
What is the purposive approach?
Judges look beyond the words to find the purpose or objective of the Act and interpret the law accordingly — even if this means ignoring literal wording.
35
Why has the purposive approach become more common in UK law?
Due to EU influence, where legislation is written broadly and interpreted purposively.
36
What case illustrates the purposive approach?
R v Registrar-General, ex parte Smith – Adopted person with murder history requested birth info. Court denied request to protect biological mother, interpreting the Act in line with its purpose.
37
Advantages of the literal rule?
• Follows wording of Parliament • Ensures certainty and predictability • Prevents unelected judges from making law
38
Disadvantages of the literal rule?
• Can lead to absurd/unjust outcomes • Not all Acts are well-drafted • Words may have multiple meanings
39
Advantages of the golden rule?
• Avoids absurd outcomes (e.g. Re Sigsworth) • Respects wording of Parliament • Allows sensible interpretation
40
Disadvantages of the golden rule?
• Limited use • Hard to predict when it will apply
41
Advantages of the mischief rule?
• Fills gaps in law • Produces just outcomes (e.g. Smith v Hughes)
42
Disadvantages of the mischief rule?
• May lead to judicial law making • Based on old law only • Creates uncertainty
43
Advantages of the purposive approach?
• Avoids absurdity • Adapts to social/technological change • Leads to fairer outcomes
44
Disadvantages of the purposive approach?
• Difficult to find Parliament’s true intention • Gives judges too much discretion • Reduces legal certainty
45
What are internal (intrinsic) aids?
Materials within the Act itself that help clarify meaning.
46
What are examples of internal aids?
• Long/short title: Shows purpose of the Act • Interpretation sections: Define key terms (e.g. Theft Act 1968 s2–s6) • Schedules: Additions that expand the main text (e.g. Hunting Act 2004 exemptions)
47
What case illustrates the use of an internal aid?
Cheeseman v DPP – Word “passenger” in Public Lavatories Act was interpreted literally, using definitions from the Act and dictionary, to mean someone passing through, not someone loitering.
48
What are external (extrinsic) aids?
Materials outside the Act used to clarify its meaning.
49
What are examples of external aids?
• Hansard – Parliamentary debates, used in limited cases • Dictionaries of the time – Used in literal rule to define words at the time of drafting • Earlier Acts – Used to understand context and legislative evolution
50
What case allowed limited use of Hansard in court?
Pepper v Hart – Hansard can be used where wording is ambiguous, obscure, or leads to absurdity, and the statement from Parliament is clear.
51
What are the requirements for using Hansard under Pepper v Hart?
• Legislation must be ambiguous or obscure • The statement must be made by a Minister or sponsor of the Bill • Statement must be clear and unambiguous
52
When are dictionaries of the time used?
Used with the literal rule to understand the meaning of words as they were understood at the time the Act was passed.
53
What are the four rules of statutory interpretation?
1. The Literal Rule 2. The Golden Rule 3. The Mischief Rule 4. The Purposive Approach
54
What is the literal rule?
Judges give words their plain, ordinary and literal meaning, even if the result is absurd or undesirable. Focus is on the exact wording, not Parliament’s intention.
55
What did Lord Esher say about the literal rule?
“If the words of the act are clear, then you must follow them even though they lead to a manifest absurdity.”
56
What case illustrates the literal rule?
Whiteley v Chappell – D impersonated a dead person to vote. Court held the dead were not entitled to vote, so D was not guilty under a literal interpretation.
57
What is the golden rule?
A modification of the literal rule. Judges begin with the literal meaning but can alter it to avoid absurd outcomes.
58
What are the two approaches to the golden rule?
• Narrow approach: Used when the wording is ambiguous • Wider approach: Used when wording is clear but would produce absurdity
59
What case illustrates the narrow approach?
R v Allen – D charged with bigamy. Literal meaning made offence impossible. Court interpreted “marry” as going through a ceremony to avoid absurdity → D found guilty.
60
What case illustrates the wider approach?
Re Sigsworth – D murdered mother to inherit her estate. Court interpreted Act to exclude killers from inheritance, preventing an absurd result.
61
What is the mischief rule?
Court looks at the gap in the law (mischief) that Parliament intended to remedy, and interprets the Act to suppress the mischief and advance the remedy.
62
What case established the mischief rule?
Heydon’s Case – Courts should consider: 1. What was the law before the Act? 2. What problem (mischief) did the Act aim to solve?
63
What case illustrates the mischief rule?
Smith v Hughes – Prostitutes soliciting from windows/balconies. The Act prohibited soliciting “in the street.” Court applied mischief rule and held they were guilty, as mischief was harassment of public.
64
What is the purposive approach?
Judges look beyond the words to find the purpose or objective of the Act and interpret the law accordingly — even if this means ignoring literal wording.
65
Why has the purposive approach become more common in UK law?
Due to EU influence, where legislation is written broadly and interpreted purposively.
66
What case illustrates the purposive approach?
R v Registrar-General, ex parte Smith – Adopted person with murder history requested birth info. Court denied request to protect biological mother, interpreting the Act in line with its purpose.
67
Advantages of the literal rule?
• Follows wording of Parliament • Ensures certainty and predictability • Prevents unelected judges from making law
68
Disadvantages of the literal rule?
• Can lead to absurd/unjust outcomes • Not all Acts are well-drafted • Words may have multiple meanings
69
Advantages of the golden rule?
• Avoids absurd outcomes (e.g. Re Sigsworth) • Respects wording of Parliament • Allows sensible interpretation
70
Disadvantages of the golden rule?
• Limited use • Hard to predict when it will apply
71
Advantages of the mischief rule?
• Fills gaps in law • Produces just outcomes (e.g. Smith v Hughes)
72
Disadvantages of the mischief rule?
• May lead to judicial law making • Based on old law only • Creates uncertainty
73
Advantages of the purposive approach?
• Avoids absurdity • Adapts to social/technological change • Leads to fairer outcomes
74
Disadvantages of the purposive approach?
• Difficult to find Parliament’s true intention • Gives judges too much discretion • Reduces legal certainty
75
What are internal (intrinsic) aids?
Materials within the Act itself that help clarify meaning.
76
What are examples of internal aids?
• Long/short title: Shows purpose of the Act • Interpretation sections: Define key terms (e.g. Theft Act 1968 s2–s6) • Schedules: Additions that expand the main text (e.g. Hunting Act 2004 exemptions)
77
What case illustrates the use of an internal aid?
Cheeseman v DPP – Word “passenger” in Public Lavatories Act was interpreted literally, using definitions from the Act and dictionary, to mean someone passing through, not someone loitering.
78
What are external (extrinsic) aids?
Materials outside the Act used to clarify its meaning.
79
What are examples of external aids?
• Hansard – Parliamentary debates, used in limited cases • Dictionaries of the time – Used in literal rule to define words at the time of drafting • Earlier Acts – Used to understand context and legislative evolution
80
What case allowed limited use of Hansard in court?
Pepper v Hart – Hansard can be used where wording is ambiguous, obscure, or leads to absurdity, and the statement from Parliament is clear.
81
What are the requirements for using Hansard under Pepper v Hart?
• Legislation must be ambiguous or obscure • The statement must be made by a Minister or sponsor of the Bill • Statement must be clear and unambiguous
82
When are dictionaries of the time used?
Used with the literal rule to understand the meaning of words as they were understood at the time the Act was passed.

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