Law 01

Law 01

1. Statutory interpretation

   • literal rule
     • AD; respects Parliamentary Sovereignty, restricts judicial bias, highlights problematic areas to Parliament who are better suited to make amendments [Fisher V Bell]
     • DIS; produces unjust outcomes [LNER V Berriman], produces absurd results [Whitley V Chappel], ambiguous phrasing causes issues with understanding, outdated approach undermines public confidence
   • golden rule
     • AD; avoids absurd results [Allen], drafting errors can be immediately corrected [Alder V George], achieves Parliament's intentions
     • DIS; produces undemocratic decisions as judges are unelected [Sigsworth], broad approach provides too much flexibility of power [Alder V George], applied inconsistently as judges decided what is absurd [Lord Parker]
   • mischief rule
     • DIS; judges go beyond constitutional role to update the law [RCN V DHSS], creates retrospective law [Smith V Hughes], infringes on the separation of powers
     • AD; achieves Parliament's intentions [Corkey V Carpenter], law remains up to date [RCN V DHSS], avoids absurdities that the literal rule produces
   • purposive approach
     • DIS; judges go beyond their constitutional role , infringes separation of powers and become law makers [Fitzparick V Sterling Housing], inconsistency creates issues for lawyers, scope of bias
     • AD; can cope with unforeseen situations [Quintavalle], flexibility allows for a fair result [Cotlman V Bibby Tankers], lack of absurdities increases public confidence
   • rules of language
     • Ejusdem generis; "of the same kind" so judge must interpret the word to be of the same kind of those proceeding it, used when a general word (and similar items clause) follows a list of two or more items [Powell V Kempton Racecourse] couldn't be used in [Allen V Emmerson]
     • Nosciture a sociis; "a word known by the company it keeps" so the judge must interpret the word in the context of those around it [Muir V Keay]
     • Expressio unis est exclusio alteris; "the expression of one thing implies the exclusion of another" so unless explicitly mentioned, the judge must assume that the Act does not apply [Inhabitants of Sebquely]

2. Judicial Precedent

   • avoiding a precedent
     • SC; overrule using the Practice Statement 1966 when 'it appears right to do so' [Herrington] overruling [Addie V Dumbreak], distinguishing when material fact are not sufficiently similar [Wilsher] and [Fairchild]
     • CA; overruling in criminal cases can only occur when it would create injustice, in civil rules were given by [Young v Bristol Aeroplane], distinguishing occured between [Balfour] and [Merritt]
   • features
     • Ratio decidendi; the legal "reason for deciding", binding part of a precedent, [Donoghue v Stevensons] which was used in [Grant V Australian Knitting Mills], Michael Zander = "a propostition of the law which decides the case in light of material facts"
     • based upon the doctrine of stare decisis, meaning "stand by what has been decided".
     • Obiter dicta; meaning "other things said by the way", non binding but persuasive, judge speculation as to the outcome had the material facts varied, [Howe] used in [Gotts]
     • Law reports; essential for an efficient and functioning legal system, includes the case name, charge, material facts, legal arguments and outcome, provides detail for judges about which precedent should be applied and when, can be found online or in print e.g Weekly Law Reports
   • advantages and disadvantages
     • AD; Flexibility = means that the law can be developed [Herrington], allows original precedents to be created [Re A, medical necessity], Complexity and volume = lots of detail about each case is provided making it easier for future judges to know when to apply each precedent [Wilsher] and [Fairchild]
     • DIS; rigidity = one unjust decision can continue for years [R V R, marital rape case], Complexity and volume = difficult to find ratio, one case may have several decision of judges [Brown, five judges all had separate reasons for their verdict]

3. Lay People

   • Magistrates
     • formal requirements = Court Act 2003 = aged 18 to 65, live and work in the serving area, be able to sit 26 half days per year
     • selection = respond to an advert, complete form on Ministry of Justice website (eligibility), attend two interviews (suitability and aptitude), recommendations sent to Senior Presiding judge, appointment on behalf of Lord Chief Justice
     • key qualities; six, including sound judgement, reliability and social awareness
     • training = ongoing, overseen by the Judicial Studies Board, mentoring, 12 month appraisal, extended for chair and youth or family courts
     • AD; representative (52% female and 9% ethnic minority), [Crawford, highlighted importance of adequate reflection], local knowledge is valuable [Paul v DPP], low in cost, Human Rights Act 1998 means they provide verdict reasoning which increases public confidence
     • disqualification= any bankruptcy, seeking asylum, armed forces or police officer (against duty to remain impartial)
     • DIS; unrepresentative (<1% under 25 unlike most defendants), may become case hardened resulting in cases not being sufficiently analysed, biased prosecution [Bingham Justice ex p Jowitt], reliant on legal advisor [Eccles Justices]
   • Jurors
     • selection= Jury Central Summoning Bureau, aged 18 to 75, registered on the electoral roll and have lived in the UK, Channel Islands or Isle of Mann for 5 years after turning 13.
     • disqualification = imprisoned for public protection, conviction in the past 10 years (suspended sentence), hospitalised for mental health issues
     • Excusal= removed for 12 months, certain members of the medical profession, full time armed forces member, aged over 65.
     • Deferral= delay for up to 12 months, operation, exam or holiday
     • DIS; lack of competency = [Vicky Pryce] "demonstrated a fundamental deficit in understanding", perverse verdict= entirely against the weight of the evidence [Peter Sutcliffe, found guilty despite being legally insane], inappropriate methods of reaching a verdict = [Young, used an ouija board to contact a murder victim], media pressure = [West, unavoidable], selection issues = [News of the World, due to last 6 months meaning a possible 80 down to 33 due to scheduled operations etc]
     • AD; tradition = enshrined in the magna carter "lawful judgement by peers", Article 6 ECHR "fair and independent trial", jury equity= protects from state tyranny [Ponting, broke the Official Secrets Act], decision by peers = fairest form of justice [Bushells, judge locked jury away until they agreed with his verdict]