Karteikarten
Rules with evaluation
Karten in diesem Stapel (9)
- 1Describe Literal rule (10)1) Judge reads statute, context, normal, ordinary dictionary meaning. Lord Reid. Pinner V Everett "Determining meaning, statute. always natural + ordinary meaning context, statute"
2) Problem= ordinary meaning, contrary parliament intention. Lord Esher, R v Judge city London "Court nothing legislature absurdity"
3) Judge ordinary meaning even absurd, stick to statute, don't question
4) Whiteley v Chappell- offence 'impersonate entitled vote. D cast vote dead person. LITERALLY dead can't vote, D not impersonating entitled vote, unfair D should've been found guilty.
5) Fisher v Bell- Unlawful sell or 'offer sale flick-knives'. D had one shop window. Contract law- item shop window not offer sale, but 'invitation treat'. D not liable- technically nothing wrong. - 2Literal rule advantages (10)1) Agrees with Parliamentary Sovereignty- theory A.V. Dicey- Parliament = Supreme law-making body. authority create law. Agrees- judges interpret parliament exact words. Don't change law even outcome absurd. Advantage- respect theory, judges declare law, don't alter based views.
2) Agrees with S.O.P- Montesquieu- 3 state powers separate- avoid authority. Parliament- write law, Judges- apply law, Government- decide law. Agrees-judges apply meaning statute, don't question, absurd (Whiteley v Chappell) - D not guilty cast vote name dead person. Advantage- judges stick apply law, no change- too much power + overlap legislature work
3) Judges use rule- creates certainty + predictability- precise way interpreting law using ordinary meaning words. Judges same decisions, law clear for all. Easy lawyers + public predict outcome case- law applied same way- fast process cases dealt court- all parties clear law's meaning. - 3Literal rule disadvantages (10)1) Absurd decisions parliament not want. Decisions- absurd, harsh + unjust e.g Whiteley v Chappell- decision fact dead person- literally not 'entitled vote'. Parliament create law- avoid vote false identity, decision contradict law purpose. Fisher v Bell- unfair. D clearly flick knives shop display. Display- not literally 'offer for sale'- D nothing wrong. Parliament- almost certainly unhappy decision.
2) Judges assume acts perfectly drafted. If error parliament draft law, not considered possibilities- law applied way parliament not intend. Rule- rigid, not allow judge change outcome case if illogical
3) Not take account words have more one meaning. Old fashioned interpret law. Words laws intended parliament broad effect + apply variety situations. Zander- "literal rule too mechanical + divorced realities language"- words not intended taken literally. Language- complex- meaning carefully considered each case - 4Describe Golden rule (10)1) Extension literal rule- states should be followed unless leads absurd decision parliament wouldn't intend- 'Safety valve'
2) Rule developed Becke v Smith (1843) + Gray v Pearson, Lord Wensleydale "Grammatical + ordinary sense word adhered unless absurdity"
Two approaches:
a) Narrow approach- court choose between different meanings word (Lord Reid). R v Allen- statute- "Whoever married + marries another, guilty bigamy." Literally- married never guilty bigamy as cannot marry legally already married. Marriage= ceremony= decision sensible. Using literal rule- ridiculous outcome, nobody guilty bigamy.
b) Wide approach- words only one clear meaning, but lead absurdity- courts modify words meaning. Sigsworth- son 'next kin'- entitled inherit mum property when dead without will. Son murders mum- court use Golden rule, so can't inherit. No longer 'next of kin' as murdered person question. Phrase modified, no longer 'next kin' if murdered deceased. - 5Golden rule advantages (10)1) Agrees parliamentary sovereignty- judges using parliament words find intention. GR agrees as judges focus exact words. not change law word, but look closely possible meaning words used act, even outcome absurd. Advantage as respect P.S. + judges declaring most appropriate meaning words used.
2) Judges 'escape route' from literal rule- avoid absurd decisions- choosing different meaning word/phrase (narrow approach) or modify meaning (wide approach). R v Allen- judge avoid ridiculous decision would've created literal rule- no one ever guilty bigamy- judges avoided absurd outcome by choosing word 'marriage' mean 'go through marriage ceremony'- anyone went through whilst already legally married- could guilty bigamy
3) Flexibility- sensible decisions. Judges discretion ensure flexible decisions. Judges given more flexibility how interpret law. Judges using GR no longer adhere normal meaning word if felt create poor decision. Sigsworth- unfair murderer inherit as 'next kin'- judge modify- not include murder deceased- sensible decision - 6Golden rule disadvantages (10)1) Judges rarely use- difficult determine counts 'absurd decision'- difficult determine when GR used. Judges feel describe decision 'absurd'- critical legislature + this reason- avoid using GR altogether.
2) Creates uncertainty when rule used- uncertainty judges doing job- problems lawyers + public as hard know when judges choose follow G.R. Judges interpret law inconsistently- law + application cases uncertain + difficult predict. Zander- Golden Rule= 'feeble parachute' + therefore 'not ideal safety valve'
3) Rule conflict S.O.P- Montesquieu- 3 powers separate avoid authority. Parliament- write, Government- decide, Judges- apply. G.R conflicts if judges adding/adapting law- problematic when judges wide approach e.g- Sigsworth- changed law meaning modifying 'next kin'. Disadvantage- not for judges make changes + seen some as judges assume power. - 7Describe Mischief rule (10)1) Courts try discover reason for law-old defect trying fix (mischief trying prevent)
2) Heydon's case (1584). Judges consider:
a) Old law before statute
b) Problem parliament trying resolve
c) Solution parliament want provide
d) True reason for solution
3) Smith v Hughes- new statute- offence solicit 'public place'. D tap balcony window above attract men attention. Court- parliament try resolve problem people pestered as walk. Prostitute- guilty- even though not in public place. Decision-allowed parliament true intention + 'spirit of law' be shown
4) Royal College Nursing- only 'doctors' permitted carry abortions legally under Abortion Act. But nurses able perform drug-induced abortions without doctor- breaking law. Judge look at aim of law- parliament not intend prohibit nurses carrying out abortions as defect wanted stop= 'backstreet abortions'- dangerous for women. Therefore nurses not contributing to defect. - 8Mischief rule advantages (10)1) Promotes aim of law. Judges declare parliament's true intention consider defect law trying fix- Royal college- law created prevent backstreet abortions- dangerous women. Decision= nurses hospitals not contributing problems associated backstreet abortions so law not trying prevent them involved. 'GP's may perform abortions in hospitals'- assumed include nurses- parliament's true intention- 'spirit of law'- help make abortion procedure women safer
2) More 'just' outcomes- decisions using rule- fair + promote justice- focus law's aim + defect trying prevent- Smith + Hughes- fair D guilty pestering men street even though on balcony- still seen from street- rule allowed judge fair decision- not under LR
3) Flexible- allows judges use discretion + common sense when interpret law. Vital as given chance do this- law may not account for different situations if parliament didn't consider at time- spirit of law achieved- Smith + Hughes- judges able extend 'public places'- include 'private' but seen from street. Law Commission- praised rule- 'pleasing' decisions- 'more satisfactory approach' - 9Mischief rule disadvantages (10)1) Disagrees Separation of powers-- ensure nobody too much power- parliament write, judges apply, government decide. Not agree as judges may not be declaring + applying law- actually making. e.g- RCN- judges added law nurses able perform abortions hospitals well as doctors- leave parliament only. Shouldn't be left judges decide what parliament wanted achieve, as weren't there when law written + shouldn't presume know what discussed at time
2) Judges may not declare parliament's intention if misunderstand reason for law + trying to find parliament intention= lengthy e.g using Hansard. Trying find defect parliament trying fix= lengthy e.g using Hansard find reason for law difficult given debates take place parliament- confusing- mistakes by judges when trying determine reason for law. Lord Scarman Hansard- "Unreliable + confusing"
3) Difficult determine outcome cases when rule used- uncertainty. Difficult lawyers + public determine outcome cases- uncertainty as judges use discretion apply law as see fit. Argued- literal rule= better for interpretation- lawyers + public confident
Informationen
- Beschreibung
- Literal rule, Golden rule, Mischief rule, Purposive approach with advantages and disadvantages
- Erstellt von
- edwira tientcheu
- Aufrufe
- 3
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