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11.11.2013
CASE LAW
Case law comes from the decisions made by judges in the cases they try. The judges listen to the evidence and the legal argument and they prepare a written decision as to which party wins = the judgement. The judgement contains: - the explanation of the legal principles on which the decision is made = the ratio decidendi (Latin for "reason for deciding") - the binding precedent - forms case-law. - comment which is not strictly relevant to the case = obiter dicta (Latin for "things said by the way") - none of the obiter dicta forms part of the case-law - the persuasive precedent.
Judicial precedent In deciding a case a judge must follow any decision that has been made by a higher court in a case with similar facts. The rules concerning which courts are bound by which are known as the rules of judicial precedent, or stare decisis. When faced with a case on which there appears to be a relevant earlier decision, the judges can do one of the following: - follow - distinguish - overrule - reverse
Certainty Judicial precedent means litigants can assume that like cases will be treated alike, rather than judges making their own random decisions, which nobody could predict. This helps people plan their affairs.
Detailed practical rules Case law is a response to real situations, as opposed to statutes, which may be more heavily based on theory and logic. Case law shows the detailed application of the law to various circumstances, and thus gives more information than statute.
Free market in legal ideas The right-wing philosopher Hayek (1982) has argued that there should be as little legislation as possible, with case law becoming the main source of law. He sees case law as developing in line with market forces: if the ratio of a case is seen not to work, it will be abandoned; if it works, it will be followed. In this way the law can develop in response to demand. Hayek sees statute law as imposed by social planners, forcing their views on society whether they like it or not, and threatening the liberty of the individual.
Flexibility Law needs to be flexible to meet the needs of a changing society, and case law can make changes far more quickly than Parliament.
- complexity and volume - rigidity - illogical distinctions - unpredictability - dependence on chance - unsystematic progression - lack of research - retrospective effect
Rigid The rules of judicial precedent mean that judges should follow a binding precedent even where they think it is bad law, or inappropriate. This can mean that bad judicial decisions are perpetuated for a long time before they come before a court high enough to have the power to overrule them.
Unpredictable The advantages of certainty can be lost if too many of the kind of illogical distinctions referred to above are made, and it may be impossible to work out which precedents will be applied to a new case.
STATUTE LAW
Statutes are made by Parliament. In Britain, Parliament is sovereign = the law it makes takes precedence over that from any other source.
All statutes begin as a Bill = a proposal for a piece of legislation.
Rules of interpretation
1. The literal rule - it gives all the words in a statute their ordinary and natural meaning 2. The golden rule - provides that if the literal rule gives an absurd result then the judge can substitute a reasonable meaning in the light of the statute as a whole 3. The mischief rule - provides that judges should consider three factors: a) what the law was before the statute was passed b) what problem, or mischief, the statute was trying to remedy c) what remedy Parliament was trying to provide
Statutory Interpretation
How can the meaning of a statute be unclear?
A broad term; Ambiguity; A drafting error; Changes in the use of language; Developments since the legislation came into force.
vote Can the dead vote? R v. Greenburg- dishonest appropriation Petrol station theft. R v. Harris (1836)- cut, stab or wound Give me back my nose
Whiteley v Chappell [1868]. In this case the defendant was charged under a section that made it an offence to impersonate 'any person entitled to vote'. D had pretended to be a person whose name was on the voter's list, but had died. The Court held that he was not guilty since a dead person is not, in the literal meaning of the words, 'entitled to vote'.
The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld.
Common law before the Act What was the defect in the common law? What was the remedy Parliament had resolved? What was the true reason for the remedy?
The court can then interpret the statute to ensure the mischief is suppressed.
Smith v Hughes [1960]. Section 1(1) of the Street Offences Act 1959 said "it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purposes of prostitution." The court considered appeals by six different women who had been on a balcony or at the windows of ground floor rooms. In each case, the women were attracting men by calling to them or tapping on a window. They argued they were not guilty since they were not in the street.
The court decided they were guilty: Lord Parker saying: "For my part I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows this was an Act to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in this way it can matter little whether the prostitute is standing in the street or in the doorway or on the balcony, or at a window, or whether the window is shut or open or half open."
Rules of language
Developed by lawyers over time, these rules are really little more than common sense, despite their intimidating names. As with the rules of interpretation, they are not always precisely applied. Examples include:
Ejusdem generis General words which follow specific ones are taken to
include only things of the same kind. For example, if an Act used the phrase dogs, cats and other animals the phrase and other animals would probably include other domestic animals, but not wild ones. Expressio unius est exclusio alterius Express mention of one thing implies the exclusion of another. If an Act specifically mentioned Persian cats, the term would not include other breeds of cat. Noscitur a sociis A word draws meaning from the other words around it. If a statute mentioned cat baskets, toy mice and food, it would be reasonable to assume that food meant cat food, and dog food was not covered by the relevant provision.
Presumptions
The courts assume that certain points are implied in all legislation. These presumptions include the following:
statutes do not change the common law; the legislature does not intend to remove any matters from the jurisdiction of the courts; existing rights are not to be interfered with; laws which create crimes should be interpreted in favour of the citizen where there is ambiguity; legislation does not operate retrospectively: its provisions operate from the day it comes into force, and are not backdated; statutes do not affect the Monarch.