Unit 2 Flashcards
(19 cards)
Private Law
law concerning relations between people eg contract
Public Law
law concerning the state and its relations with persons within the state eg criminal law
Statutory Interpretation
- tools not rules
- how you interpret the statute
- “vast majority of statutes never come before the courts for interpretation”
Problems in interpretating
- ambiguity- words have different meanings
- words change meaning over time
- difficulties with drafting-time pressure
Holliday v Henry
- vehicles (Excise) Act - if anyone on road has a mechanically propelled vehicle with no license- liable to damages
- if unlicensed car was on the road, balanced on four rollerskates is it ‘on’ the road?
- held vehicle is clearly on road
Legislative History
- prior legislation
- pre parliamentary material
- parliament material
Pepper v Hart
- Finance Act
- Pepper is a tax authority, Hart a school teacher in a tax paying school
- school has system where teacher’s children get discount
- Hart was a higher rate tax payer
- argued that the cost is the amount of any expense incurred or in connection with its provision
- Judge looked at Hansard
- new argument to a bigger court to see if Hansard should be use- majority in favour
When can you refer to Hansard
- statute is ambiguous, obscure, or absurd
- statement from a promoter of a Bill
Advs of Hansard
- helps decide the objective of the legislation
- helps know the intention of the legislation
Disadvs of Hansard
-might be irrelevant- unlikely the precise question before court was discussed
Unenacted Law
-Roman law
-Institutional Writings- Stair, Dalrymple “institutions of the law of Scotland”
-case law- ratio decidendi
-precedent-look at previous actions to decide future
-treat like cases alike for fairness and consistency
law reports- Scots law times
Stare Decisis
- hierarchy based approach
- higher courts bind lower courts
Stare Decisis special issues:
- Devolution
- human rights
- EU law
Devolution Case
Cadder v HM Advocate
- access to a solicitor during pre arrest detention period
- relevant European Convention of Human Rights Act
- binding nature of Human Rights Act
Court of Session
- reports OH to IH
- whole court- previously 13 or 15 now 34 judges- Bell v Bell
- full court-5,7,9 judges
- 5 judge bound by 7 etc
The Supreme Court of the UK
- bound by own decisions
- can overturn previous decisions but more judges will be there
- judge from Ireland, Scotland, England, Wales
- when it hears a Scottish appeal Scottish court etc
Ratio Decidendi
- rule derived from a case
- Burried Treasure Argument
- rule consistent with the decision of the case
- “if… then…” statements
Ratio Decidendi Case
Donogue v Stevenson
- D had bottle of ginger beer bought by friend from S manufacturer (no contract)
- snail remains in ginger beer
- new basis for most of the modern law for negligence
- general ratio: if you are a drink/food manuf for consumption by the public and you produce such drink/food in sealed containers, then you are liable.
Stare Decisis Case
Jessop v Stevenson
- sherrif court (criminal)
- found in possession of machine gun that had been modified
- sheriff said gun was not prohibited weapon- crown appealed
- sheriff was wrong as decision from high court should have been binding upon all judges in lower courts
