Flashcards
statutory interpretation
Flashcards do conjunto (29)
- 1Describe the LNER V Berriman case (literal rule)The claimant wanted compensation payable on death for those"relaying or repairing" the track, it was found that the defendant's husband was only 'maintaining' the track, LNER were found not liable.
- 2Describe the Fisher V Bell case (literal rule)Restriction of Offensive weapons act made it an offence to "sell or offer for sale" weapons (defendant had pen knives in his shop window), this did not mean that he was actually selling the knives and therefore he was found not guilty.
- 3Describe the Cheeseman case (literal rule)Chartged with preforming a private act to the "annoyance of passengers", the definition of passengers was someone passing through, which the police stationed there were not, the defendant was acquitted.
- 4Describe the Whitley V Chappell case (literal rule)Charged with "impersonating any peron entitled to vote", the individual being was deceased, the defendant was acquitted.
- 5How did Lord Reid describe the literal rule?Words should be given their "natural and ordinary meaning" according to an Oxford dictionary published at the time that the statute was drafted.
- 6What are the advantages of the literal rule?1) respects Parliamentary Sovereignty
2) restricts judicial bias
3) highlights problematic areas of the law to Parliament who can make changes e.g Fisher V Bell
4) gives consistent, predictable outcome, lawyers can advise clients - 7What are the disadvantages of the literal rule?1) absurd results can occur e.g Fisher V Bell or Cheeseman
2) can produce unjust results e.g LNER V Berriman
3) causes issues where there are broad terms or ambiguities, assumes 'unattainable perfection - 8How did Lord Blackburn describe the golden rule?"giving the word their ordinary significance unless when applied they produce an absurdity"
- 9How did Lord Reid describe the golden rule?"If the words of the Act are capable of more than one meaning, you may choose between the meanings, but beyond that you cannot go"
- 10When is the narrow approach of the golden rule applied?Applied when the words or phrase is capable of more than one literal meaning, allows the judge to choose the meaning which avoids an absurdity
- 11When is the broach approach of the golden rule applied?Applied when there is only one literal meaning but applying it would lead to an absurdity
(under the broad approach the court will modify the meaning to avoid the absurdity) - 12Describe the R V Allen case (golden rule - narrow approach)Convicted of bigamy, the offence to marry if already married, marry had two meanings, judge applied the golden rule aand the defendant was foubd to be guilty.
- 13Describe the Alder V George case (golden rule - broad approach)Defendant was trespassing on a military base, offence to "obstruct in the vicinity of a place", vicinity described as 'nearby or around', judge changed the meaning to also include 'in', defendant found to be guilty.
- 14Describe the Sigsworth case (golden rule)Defendant murdered his mother, she had no will and therefore as the 'sole issue' he was entitled to her estate, court applied the golden rule, making it so that the next of kin could inherit the estate, only if they didn't murder the individual to which the estate belonged.
- 15What are the advantages of the golden rule?1) avoids absurdity e.g R V Allen
2) likely to achieve Parliament's intensions
3) respects judges constitutional role, limits them in choosing between a few meanings or slight modifications
4) drafting errors can be immediately corrected e.g Alder v Georg - 16What are the disadvantages to the golden rule?1) judges decide what is 'absurd', open to some judicial bias
2) uncertainty of outcome, difficult for lawyers to give advise e.g Fisher V Bell
3) broad approach allows judges to change Parliament's words, undemocratic and unelected e.g SIgsworth - 17What are Hayden's case rules? (mischief rule)1) What was the common rule before the Act?
2) What was the misheif that the common rule did not provide for?
3) What was the remedy that Parliament passed to cure the mischief? - 18Lord Diplock said that the golden rule should only be used if...- The mischief can be seen in the Act
- Parliament obviously overlooked the issue
- The words required to be added could be identified with a high degree of certainty - 19Describe the Corkey V Carpenter case (mischief rule)Offence to be in control of a "carriage" while drunk, mischief was posing a threat to himself or other road users, judge chose to interpret 'carriage' as including bikes, defendant was found to be guilty
- 20Describe the RCN V DHSS case (mischief rule)Offence for anyone other than registered medical practitioners" to preform abortions, mischief was backstreet abortions (death, infection), judge read it as all medically trained staff, RCN won and nurses were allowed to preform abortions.
- 21Describe the Smith V Hughes case (mischief rule)Defendants were soliciting from a bedroom window, offence of soliciting in a public place, mischief was to prevent soliciting, despite the house not being public, the street on to which they were advertising was, defendants found to be guilty.
- 22What are the advantages of the mischief rule?1) avoids unjust outcomes that the literal rule may produce e.g Berriman
2) enables the law to be applied in the way that Parliament had intended e.g Corkey V Carpenter
3) promotes flexibility, law can stay up to date (medical tech) e.g RCN V DHSS - 23What are the disadvantages of the mischief rule?1) infringes on the Separation of Powers, judges go beyond their constitutional role, updating the law e.g RCN V DHSS
2) inconsistencies may arise
3) creates retrospective law e.g Smith V Hughes
4) mischief not always easy to discover - 24How did Lord Griffiths describe the purposive approach?"seeks to give effect of the true purpose of the legislation"
- 25Describe the Cotlman V Bibby Tankers case (purposive approach)Act said that the employer should be held liable for any death that occurs as a result of "defective equipment", equipment was defined as aircraft, vehicle or clothing, judge ignored the specific list and read it as if including ships, employer found to be liable.
- 26Describe the Quintavalle case (purposive approach)Act made it an offence to experiment after "fertilisation has taken place", positive social purpose was to stop experiments on any form of life,
- 27Describe the Fitzpatrick V Sterling Housing case (purposive approach)Partner of the deceased could remain living in the house only if married, positive social purpose was to allow long term partners to remain, homosexual couples had no option to marry, judge allowed the tenant to remain.
- 28What are the advantages of the purposive approach?1) allows for a fair result e.g the comparison of Berriman and Cotlman
2) judges can cope with unforeseen circumstances e.g Quintavalle
3) creates consistency across countries e.g EU law uses the purposive approach (no differences in translation, law is the same) - 29What are the disadvantages of the purposive approach?1) infringes on the Separation of Powers e.g Fitzpatrick
2) judges have too much power to develop the law e.g Fitzpatrick policy change should have been left to Parliament
3) scope for judicial bias
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- A level Law FlashCards sobre statutory interpretation, criado por Raisha Gibbs em 02-10-2016.
- Criado por
- Raisha Gibbs
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