Judges give the words in statutes their plain, ordinary,
grammatical meaning, whatever the consequences
R V Judge of the City of London
WHITELY V CHAPPELL
LNER RAILWAY CO V BERRIMAN
FISHER V BELL
Nota:
Where words have a technical legal meaning:
D displayed a flick knife marked with a price in his shop window. Charged under a statute for making an 'offer for sale'.
Technical legal meaning - 'invitation to treat' - not guilty
THE GOLDEN RULE
Grammatical ordinary sense of the word is to be
followed unless it would lead to some absurdity, or
some repugnance, or some inconsistency
Grey V Pearson
Narrow Version
Least absurd meaning of the
words should be used
ALLEN
Wide Version
Court finds literal meaning
unacceptable
RE SIGSWORTH
THE MISCHIEF RULE
Nota:
Judges interpret the act in such a way as to put a stop to the mischief.
The courts look to the wording in the Act, but also willing to look outside the Act to its social and historical context and extrinsic aids for meaning e.g. Hansard and law reform reports
1. What was the common
law before the statute
2. What problem, or 'mischief',
was the statute trying to remedy
3. How did Parliament try to
remedy the mischief
HEYDON'S CASE
SMITH V HUGHS
ROYAL COLLEGE OF NURSING V DHSS
PURPOSIVE APPROACH
Requires court to work out general
purpose of Parliament in passing
the Act to fulfil that purpose
MAGOR AND ST MELLONS V NEWPORT
COLTMAN V BIBBY TANKERS
R V REGISTRAR-GENERAL, EX PARTE SMITH
JUDICIAL PRECEDENT
Nota:
Past decisions of judges creates law for future judges to follow in similar cases - case law or common law
Stare Decisis
Fairness as cases are treated alike
Provides certainty in the law
Binding precedent
Nota:
Statement of law from an earlier case which must be followed even if the judge in the current case does not agree with the law
MAIN FEATURES
Law Reports
Nota:
Both lawyers and judges can refer back to the relevant statements of law
Publicise a judgement
Nota:
What a judge says about the law at the end of a case
Ensure that there is an
accurate and authorised
record of the reasons
for decisions
Nota:
Authorised by the judge in the case
Written by specialist lawyers
All England, Weekly, LexisNexis
Judgement
Nota:
Precedent needs a method of identifying the parts of a judgement which bind a future judge from from the other parts which need not be followed
Ratio Decidendi
Nota:
'Reason for deciding'
In a judgement; judge will explain particular principles he is using to decide why a particular party won
Binding
HOWE
Nota:
Binding principle; that duress cannot be a defence to murder as you should not be able to choose to kill an innocent person to save your own life
Obiter dicta
Nota:
'Other things said'
These comments are not essential to the outcome of a particular case and are often discussions of hypothetical situations
None of OD forms part of case law, but judges in later similar cases may be persuaded to follow it in reaching a decision
Persuasive
HOWE
Nota:
Duress could not be a defence to the crime of attempted murder
Hierarchy
Nota:
Allow a judge to know who he or she should follow
Courts bound to follow
a relevant decision
made by a court above
it in the hierarchy
Appellate courts
bound by their own
past decisions
Supreme Court
Nota:
Decisions must be followed by all other courts in the English legal system
usually bound to follow its own past decisions
Hears appeals in both civil and criminal cases where a legal principle of general public importance is involved
Court of Appeal
Nota:
Both divisions are bound by previous decisions of the Supreme Court
Only persuasive in relation to each other
COA usually bound to follow its own past decisions
High Court
Nota:
Bound by decisions of all the courts above it in the hierarchy
Binds the lower courts
HC judges do not have to follow each other's decisions but will usually do so
Crown, County and Magistrates' Courts
Nota:
Must follow decisions by all higher courts
Do not usually create precedent themselves
PERSUASIVE PRECEDENT
Court will consider and
may be persuaded by, but
does not have to follow
Comes from a number of sources
Courts lower in
the hierarchy than
the court hearing
the appeal
Nota:
R V R - HOL persuaded to follow the same reasoning as the COA in deciding that a man could be guilty of raping his wife
Statements made
Obiter Dicta
Nota:
HOWE - 'Duress could not be a defence to the crime of attempted murder'
Followed in later case of R V GOTTS
AVOIDING A BINDING PRECEDENT
Allows case law to develop
and injustice in an
individual case avoided