test 1 revision Flashcards
what is primary legislation
created by Parliament, within Westminster
what is secondary legislation
delegated legislation made by a body (or individual) under authority which originally existed in primary legislation
the literal rule
The Judges considers what the legislation says, rather than what it might means. Gives the words their ordinary and every day meaning.
Fisher v Bell 1960 - the literal rule
raised the issue. Shopkeeper displayed flick knives in shop window despite it being an offence to offer to sell them. Placing in shop window was not an offer, it was an invitation. Using the literal meaning, offer was not applicable here and was invitation.
- Parliament changed law after this anyway
the golden rule
Modification of literal. If using the literal would result in ‘absurdity’ then the court should look for another definition
R v Allen 1872 - the golden rule
D charged w/ Bigamy. Using literal interp this wouldn’t have been possible due to the fact that civil law would have rendered it an impossibility. Golden rule intervened and claimed that ‘marry’ = go through a marriage ceremony
the mischief rule
More discretion than the others. Court must look at what the mischief the parliament intended to cover. They then interpret to ensure it is covered. Introduced in Heydon’s Case [1584]
the purpose approach
the court need to look at what they felt Parliament wanted to achieve. Effectively asking judges to make up their own mind.
3 types of precedent
Ratio Decidendi
Obiter Dicta
Stare Decisis
what is Ratio Decidendi
reason for the decision
what is obiter Dicta
other things said
what is Stare Decisis
stand by the decision
binding
going down
persuasive
going up
why have precedent
Allows judges to change the law as they see fit - they see it every day and are the best qualified to adapt it most appropriately
