Law, Paper 1 Non-Substantive

What is Judicial Precedent (the doctrine of precedent) ? And what are the three key elements?

Past judicial decisions from law for future similar cases, when a judge makes a ruling for a case in the future when a similar case shows up the judge/ other judges can use the same/ similar ruling.

three keys elements - Stare decisis, Ratio decidendi and Obiter dicta

What is Stare Decisis?

Means, ‘Stand by what has been decided’, this ensures consistency, fairness and predictability in law.

What is Ratio Decidendi? And what is the key case?

This means that legal reasonings are binding, meaning that a judge cant simply change the rules of a judicial precedent in a case.

Key case: R v Brown (1993) - Ratio was that consent is not a defence for serious harm.

What is Obiter dicta? And what is a key case?

‘Other things said’, this means certain factors may be included to persuade the ruling of the case.

Key case: R v Howe (1987) - Duress not a defence to attempted murder

What is the court Hierarchy?

High courts bind lower courts,

Supreme court

Court of appeal

High court (mostly civil)

Family division Kings bench division Chancery division

Magistrates court County courts

Court Hierarchy: Supreme court

Binds all, can depart from own past under practice statement 1966

Court hierarchy: Court of appeal

Bound by supreme court and usually its own past (exceptions: Young v Bristol Aeroplane (1944)

Court Hierarchy: High court divisional courts

Bind lower courts, follow supreme court and court of appeal

Court Hierarchy: Crown court, Magistrates, County courts

Follow higher courts, do not create binding precedent

What are the three types of Precedent?

Original = New rule where no prior decision, where the judge creates a new precedent that has never existed before, (Re A 2001) - Conjoined twins separation becomes lawful.

Binding = Must be followed if facts similar and from higher/ same court (R v Brown applied R v Emmett)

Persuasive = Not binding but influential, (obiter dicta, dissenting judgements, decisions from lower or foreign courts)

What is law reporting and what are examples?

These are accurate reports essential for precedent. Official reports started with ICLR in 1865. Only certain cases where reported (Law reports, weekly law reports, All England reports)

What are the four methods of avoiding precedent?

Distinguishing = Court find material or factual difference so precedent need not apply. Key case: Balfour v Balfour 1919 (No intent to create legal relations) VS Merit v Merit (1971) (Binding contract separated spouses)

Overruling = Higher court replaces old precedent with new rule Key case: BRB v Herrington (1972) overruled Addie v Dumbreck (1929) using practice statement

Court of Appeal exceptions = Court of Appeal usually bound by itself, expect (Young v Bristol Aeroplane (1944) : 1 if past decision

R v Spratt (1990) vs R v Savage (1992) = Conflicting decisions on foresight of harm; resolved in DPP v Parmenter (1993).

What are Advantages and Disadvantages of Judicial Precedent

Strength - Certainty and predictability in law. Consistency and fairness

Strength - Flexible (supreme court can change law distinguishing allow adaptation)

Strength - Detailed case law provides guidance

Limitation - Complexity as its difficult to extract to ratio from long judgements. Volume of cases makes finding precedent hard

Limitation - Rigidity, lower courts bound by higher, may perpetuate bad law

Limitation - Undemocratic, judges (unelected) effectively make law

Why is statutory interpretation needed?

Judges must interpret statues (Act of Parliament) problems arise where there can be be different interpretations of the wording, especially if words are ambiguous, outdated or broad, or if new tech/ social issues, were not foreseen.

What is the literal rule? and what are two key cases? And what is a Ad/ Disad

Words given in their plain, ordinary meanings, even if result is absurd. Supports parliamentary supremacy.

- Whiteley v Chappell (1868): Not guilty of impersonating a ‘person entitled to vote’ as a dead person not literally entitled.

- LNER v Berriman (1946) - Widow not compensated as husband was ‘maintaining’ not ‘relaying or repairing’

Evaluation - Ad: Certainty, respects parliament, quick to apply

Disad: Can lead to unfair/ absurd outcomes, assumes perfect drafting

What is the Golden rule? And two key cases? And what is a Ad/ Disad

The golden rule is a modification of the literal rule. If literal meaning causes absurdity, judges chooses alternative meanings

Narrow approach - Choose between possible meanings

Wide approach - Avoid wholly unacceptable outcomes

Adler v George (1964) - ‘In the vicinity of’ interpreted to include being inside prohibited place

Re Sigsworth (1935) - Son could not inherit from mother that he murdered

Evaluation - Ad: Avoids absurd result, flexible, still respects parliament mostly

Disad: No clear guidance when to use; depends on judges view of ‘absurd’

What is the Mischief Rule? and what are two key cases? and what is a Ad/Disad?

Established in Heydons case (1584) judges consider the original ‘mischief’ that parliament intended to tackle. Will look at:

1. Law before act

2. Mischief/ Problem

3. Remedy parliament provided

4. true reason for remedy, to fill in gaps

Smith v Hughes (1960) - Prostitutes soliciting from windows treated as ‘in the streets’

RCN v DHSS (1981) - Nurses could perform part of abortion to reflect modern medicine

Evaluation - Ad: Allows flexible, helps fulfil parliaments true intention, adapts to change

Disad: Risk of judicial law making, harder today as acts rarely include reason

What is the Purposive approach? What is the one key case? and what is a Ad/ Disad?

Modern approach; broader than mischief rule. Judges look at purpose of act, even if wording clear, and consider what parliament would want in future situations

R v Registrar - General, ex parte smith (1990) adopted child denied birth records due to risk to birth mother (despite statutory wording)

Evaluation - Ad: Covers more situations, adaptable to new tech/ social changes, provides just outcomes

Disads: Gives more power to unelected judges

What is an example and a case example of Internal (Intrinsic) aids?

They are found within the act its self this could be:

Preamble

Long/ short titles

Objective section interpretation

Section marginal notes

Schedules

Punctuation

Case Example: Abortion Act 1967 (long title used in RCN c DHSS)

What is an example and a case example of External (Extrinsic) aids?

Found outside the act:

Previous acts

Earlier case law

Dictionaries

Hansard

Law commission reports

Case example: Cheeseman v DPP - Dictionary definition used from 1847

What are the three aspects involved in sentacing?

1. Aims of sentencing

2. Types of sentencing

3. Factors in sentencing

What are the 5 aims of sentencing? (S.142 Criminal Justice Act 2003)

1. Retribution

2. Deterrence

3. Reform

4. Protection of public

5. Reparation

What are the 4 types of sentencing?

1. Custodial Sentence (Criminal justice act S.152 2003), This is the most serious type of sentence only imposed if an offence is so serious that a fine or community service is not enough, Example: Assault, Battery, S.47 offence, S.18 offence, S.20 offence (OAPA 1861)

2. Community Orders (Criminal justice act S.177 2003), This is when the court can combine multiple requirements to an offender like, Unpaid work, Curfew, Rehab

3. Fines, Offenders must pay a penalty to the court, most common in magistrates court, rare in crown court. Amount depends on how serious the crime is.

4. Discharges, 1. Conditional discharge: No immediate punishment; reoffending within time limit allows resentencing for both offences 2. Absolute discharge: No punishment, court deems process sufficient penalty. Example: Used for minor or morally blameless offences. Both result in criminal record.

What are some other powers of the courts?

Courts can:

- Disqualify from driving ( eg due to drink driving)

- Issue compensation orders (victim payment)

- Forfeiture orders (Remove items used in offence), like spray paint

What are some factors the judge must think about in sentencing?

- Seriousness of offence

- Maximum penalty

- Sentencing guidelines

- Aggravating and mitigating factors

What are pre sentencing reports?

Prepared by probation service; include offenders background, circumstances, attitude, remorse.

Considered by a judge before deciding sentence. This helps to tailor sentencing to offender and offence seriousness.