Law flashcards

Aylesbury mushroom case

Aylesbury mushroom case

When the minister didn’t ask the mushroom Growers association when delegated legislation relating to them was made , declared ultra vires and the decision was overturned.

Literal rule

• When judge use the literal dictionary definition of an ‘ambiguous’ word to apply to a case

• Can often lead to absurdity though (LNER v Berriman) (-)

• However, of all approaches it arguably upholds parliamentary supremacy the most (+)

Golden rule

• Divided into the narrow approach and broad approach

• Narrow - judges had to choose between 2 dictionary definitions of a word (Adler v George)

• Broad - Modify words of a statute to fit the case (RE Sigsworth)

Mischief rule

• Designed to fix the gap in the law parliament intended (e.g. abortion - Royal College of Nursing)

• Upholds Parliamentary supremacy as it focuses on Parliament’s intentions

LNER v Berriman

When the claimants husband died while oiling the tracks and then tried to claim compensation however her claim failed as the judges used the literal rule and didn’t define ‘oiling’ as maintenance and the widow didn’t receive any compensation. This was an absurd result because of the literal rule.

Adler v George

When it was illegal to disrupt police in the vicinity of a prohibited place however 2 men were actually inside the prohibited place. Using the golden rule (narrow) the judges decided that it would be absurd if they weren’t held liable.

RE Sigsworth

When a son murdered his mother and was set to inherit her estate and fortunes. Using the golden rule (broad), judges decided it wasn’t fair for him to inherit anything even though he was her next of kin.

Royal college of nursing v DHSS

Abortion act meant that ‘medical professionals’ ie doctors could only carry out abortions and not nurses. a women had an abortion done by nurses and using the mischief rule, judges decided it was ok because it avoided the mischief of unsafe abortions done by unlicensed medical professionals.

Quintavelle v HFEA

When the original statute was created, embryos could only be made inside the body but in 2003 an embryo was made by cell nuclear replacement (CNR) and judges decided that those embryos were covered by the statute because using the purposive approach, they concluded that it upheld parliament’s purpose.

Pepper v Hart

Allowed the use of Hansard when

1) legislation is ambiguous or leads to absurdity

2) the statements in Hansard relied upon are clear

1966 Practise Statement

Allowed the highest court to depart from its own previous decisions and thus gave it the ability to depart from the precedent set by itself. Judges were encouraged to continue following precedent, it should only be used in certain essential cases. It's because of encouragement to follow precedent. First major use was in Herrington v British Railway Board [1972] - 6 years after it was introduced which showed hesitation from judges.

Hill v Baxter

If a defendant carries out the actus reus of a crime involuntarily, they will not be guilty of the offence e.g. bee sting while driving.

Juries

• Even spread of people so more diverse and representative

• Could be anyone aged 18-75

Disadvantages of jury trials

• no external legal research allowed - uneducated jurors might not understand point of law

• jury secrecy - judges unaware if jury understood complexities within the case/points of laws

• jurors don’t need explain themselves when reaching a verdict so once again unclear if they understood how to apply the law

• Many exceptions to being a juror including people with mental illnesses or wheelchair impaired people which can’t mean the jury system is fully inclusive

Importance of jury’s decisions (key cases)

• Bushell’s Case + R v McKenna

R v Mitchell

A tried to jump the queue at the post office then B confronted him. A pushed B who fell into C who was elderly and C died. A convicted of manslaughter. e.g. of voluntary actus reus.

Advantages of jury trials

• Jury secrecy - cant be influenced by the opinions of the legally educated judge in the room

• Usually an even split of women and men so more representative of the general public

• Exclusions of people in law enforcement everyone has the same level of legal knowledge

• Judges are usually case-hardened from years of experience so it’s better that the jury helps to decide on a case than just judges alone as they may lack empathy for the defendants.

Differences between civil and criminal law

Started by:

• Civil - claimants

• Criminal - the state

Outcome:

• Civil - usually compensation

• Criminal - could range from a fine to a prison sentence

Purpose:

• Civil - justice/ compensation for C

• Criminal - punishing D

Crown Court

• Usually hears indictable offences (like murder) and some triable-either-way offences (like robbery) depending on the severity of the crime

• Has a district judge and a jury

• Has unlimited sentencing powers but has to stick Parliament’s guidelines (i.e has to sit a life sentence for murder) but discretion in deciding the minimum term

Magistrates Court

• Usually deals with summary offences (like s39 CJA) and some triable-either-way offences (like robbery)

• Has either district judges or lay judges but no jury

• Can issue fines + community orders Can sentence up to 12months maximum (recent change in Sentencing Act 2020)

Lay magistrates

• No prior legal experience needed

• Not very representative as magistrates are usually upper class and 53% are women

• Unpaid

• Better alternative to judges saw judges can be case-hardened and lack empathy

• People from local area so representative

• Assisted by a legal advisor (clerk)

• Often in a panel of 3

R v White

D put poison in his mothers’ drink with the intention of killing her however, she died of a heart attack first. Established the ‘but for’ test.

R v Pagett

D kidnapped his 16 year old girlfriend and shot her father in the leg. The police then began chasing him and then using her as a shield, he started shooting at the police. They shot back in self defence and the girl died.

R v Blaue

D stabbed V numerous times but V was a practising Jehovah’s Witness and couldn’t take the blood transfusion that would’ve saved her life. D liable for full extent of her injuries because her religion was her ‘thin-skull’.

R v Smith (MI)

V stabbed by D in the chest. While on the way to the hospital, V was dropped twice. At the hospital he was given CPR by a doctor which caused him to bleed out. D still found guilty of murder as MI rarely breaks chain of causation and the stab wound was a ‘more than minimal’ cause of V’s death.

R v Jordan (MI)

D stabbed V. V was taken to hospital and was recovering successfully from the stab wound. V was then given a large dose of antibiotics that he had already shown resistance to. V was allergic and died. D wasn’t liable for murder as the MI was so negligent that it broke the chain of causation and became a new cause of harm.

R v Roberts

D was sexually harassing V and she didn’t want his advances. V jumped out of the car to escape his advances and was injured. D was liable to the full extent of V’s injuries as her actions were foreseeable to the D.

Mohan

When the D has a strong desire to bring about a certain consequence. Direct intention

R v Nedrick and Woolin

Indirect intention.

In R v Woolin, the D threw his 3 month baby on the ground to stop him from crying.The D didn’t mean to hurt the child however he foresaw injuring the child. Child died.

Created a 2 part test for indirect intention:

1) was the outcome a virtual certainty of D’s actions

2) did the D realise the outcome?

Latimer

D meant to hit someone with his belt but it accidentally hit another woman’s face. D was liable for her injuries because of transferred malice. Same mens rea as D’s intended victim.

Pembliton

D aimed a stone at people. It smashed a window and D wasn’t liable for criminal damage as transferred malice wasn’t possible as the mens rea were different.

Fagan V MPC

D accidentally drove his car onto someone’s foot. He didn’t notice at first but when he was informed, refused to move it for a while. Became liable for her injuries under the coincidence rule as the mens rea came after the actus reus.

Strict liability offences

Offences requiring no fault

E.g. Alphacell - Factory owner caused polluted matter to enter into a river. He was unaware.

Harrow v Shah and Shah - sold lottery tickets to U16s

Transferred malice

When the mens rea of an offence can be transferred to another. e.g Latimer, Pembliton

Common law

Law that has been made from judicial decisions.

Green paper

official consultation documents produced by the government for discussion inside and outside of parliament

White paper

Provides a basis for further consultation and discussion with interested or affected groups and allows final changes to be made before a bill is presented to parliament.

Doctrine of parliamentary supremacy

The idea that Parliament is the most superior, most powerful institution in the legal system as its the only institution that can make or break any law - including that of previous parliaments.

Types of delegated legislation

Order in council - made by privy council

Statutory instrument - made by government minister

By-law - made by local authories e.g. barking.

Advantages of delegated legislation

Saves time for Parliament by allowing experts to create detailed laws

Allows for public input through consultation processes

Reduces the burden on Parliament, freeing up time for other important matters.

Disadvantages of delegated legislation

• Insufficient parliamentary scrutiny

• Overuse of legislation

• Confusion

• Undemocratic as laws are made by unelected officials

Doctrine of judicial precedent

A source of law where past decisions made by judges in individual cases create law for future judges to follow.

Examples of persuasive precedent

• Courts lower in the hierarchy

• Decisions of the judicial committee of the privy council

• statements made ‘obiter dicta’ (other things said)

• a dissenting judgment

what helps form precedent?

• Ratio decidendi - a judge’s reasons for deciding something - reasons listed

• obiter dicta - judges may speculate on what their decision may have been if the facts were different not binding precedent

What judges can do with existing precedent

• Follow - make the same decision

• Distinguish - make new precedent

• Overrule - they replace the decision with precedent

• Reverse - (if the judge sits in a superior court to the one the original precedent was made)

Court of appeal exceptions to following precedent

• when past decisions made by CoA conflict, they can choose whether to reject or follow

• where the supreme court decision overrules a CoA decision

Diminished Responsibility

A partial defence to murder where D claims that their medical condition was the main reason that they killed V. If successful - voluntary manslaughter

Loss of control

A partial defence to murder where D claims that they killed V because of V’s actions.

Loss of control triggers

1) Things done or said of extremely grave character to make D feel a justifiable sense of being wronged.

2) Acting out of fear.

R v Byrne (DR)

where it was shown that D acted abnormally due to the severity of the crime

R v Dietschmann (DR)

Couldn’t use the defence as jury believed it was due to intoxication

R v Wood (DR)

Alcohol dependency syndrome was D’s recognised medical condition so DR was avaliable.

Unlawful act manslaughter

When D commits a crime that leads to the death of V.

R v Mitchell (UAM)

Battery led to V’s death

R v Larkin (UAM)

Objectively dangerous act - threatening someone with a razor

R v JM & SM (UAM)

Dangerous act - fight with security members

Advocate

• Free confidential advice from a helpline

• Can apply for funding but will do ‘means tested’ first

• Helps with all cases criminal or civil

Advocate

• A pro bono legal charity

• Barristers that are responsible for the advocacy of their clients

• Available in criminal cases

Legal centres

• Criminal and civil cases

• Can simply go in and receive free advice

• However, many have had to close down due to cuts in government funding

• Can also give funding

Government-appointed solicitor

• For anyone suspected of a crime at a police station has the right to legal advice

• Available 24 hours a day

• Can also be responsible for advocacy of the client