Judicial Processes

• What are the two ways that Judges can make law?

  (1) Setting Judicial precedents

  (2) Statutory Interpretation
• What is judicial precedent?

  Past decisions of judges will crate law for future judges to follow if the facts of the case are similar.
• What is an example of judicial precedents?

  Donoghue v Stevenson (1932) & Daniels v White (1938)

  In D v S, a woman became ill from a decomposing snail in her drink, and the judge ruled that there was a duty owed and thus the manufacturer was guilty.

  In D v W, corrosive metal was found in lemonade and as the facts of the case were similar, the judge used the same precedent.
• What is the court hierarchy in regards to setting precedent?

  (1) Supreme Court - any decisions made must be followed by the courts below.

  (2) Court of Appeal - follows decisions from the SC & creates precedents for the Crown/Magistrates courts.

  (3) Crown - decisions from above and sets precedents for Magistrates.

  (4) Magistrates - every court above but does not set precedents as there are no judges.
• What are the exceptions to following precedent?

  (a) Distinguishing

  (b) Overruling
• What is distinguishing a precedent?

  As the precedent is only binding if the facts and legal principles of the case are similar, the judge may opt to highlight the differences of the new case to the old precedent to make a different ruling.
• What is overruling a precedent?

  This is when a court high up in the hierarchy states that a precedent made in a lower court is wrong and overturns it.
• In which case was overruling a precedent seen?

  R v R (1991)

  The defendant was convicted of marital rape and appealed as a previous precedent stated that this was not possible.

  The SC overturned the old precedent.
• What are the rules of statutory interpretation?

  (1) The Literal Rule

  (2) The Golden Rule

  (3) The Mischief Rule
• What is the Literal Rule?

  Applying the literal, dictionary meaning to the words of an Act of Parliament.
• What is an advantage & disadvantage of the Literal Rule?

  + Doesn't offend the seperation of powers

  - Can result in absurd rulings
• What are examples of the literal rule being used?

  London & North Eastern Railway Co v Berriman (1946)

  Whitely v Chapel (1868)
• What happened in London North Eastern Railway Co v Berriman?

  Victim was hit and killed by a train whilst oiling points along a railway line.

  The court found that oiling was maintaining the track, and not relaying or repairing it as the statute had mentioned so his family was not given compensation.
• What happened in Whitely v Chapel?

  Appellant had cast two votes in an election by pretending to be somebody who had died & was on the electoral register.

  The court consisted the meaning of the words 'any person entitled to vote' and decided that since the dead cannot vote, the appellant could not have verbs impersonating somebody entitled to vote & was acquitted.
• What is the golden rule?

  The judge is able to modify the wording to avoid absurd rulings that come from the literal rule. There is the:

  (a) Narrow approach - choose a meaning where the wording was ambiguous.

  (b) Wide approach - ignore the literal meaning.
• What is an advantage & disadvantage of the golden rule?

  + Judges cannot change intention of Parliament, only correct errors.

  - No guidance on how & when to use this rule.
• What is a case that shows the narrow approach?

  R v Allen.
• What happened in R v Allen?

  Allen was charged with the offence of bigamy, and the court had to decide which meaning of marriage to use.

  They used the second one as the first one would result in an absurd ruling - if they followed the first, it would mean a person could not get married twice in their lifetime.
• Which case shows a broad approach?

  Adler v George.
• What happened in Adler v George?

  The defendant was caught on military grounds, and tried argue that 'in the vicinity of' did not include being inside of the location, however the judge stated that the definition could include being within the location.
• What is the mischief rule?

  The judge will look at what the statute was trying to achieve, and what mischief it was trying to prevent.
• What is an advantage & disadvantage of the mischief rule?

  + Promotes the purpose of the law and upholds parliamentary sovereignty.

  - Can lead to uncertainty in the law, as the public do not always know when judges will use this rule.
• Which case used the mischief rule?

  Smith v Hughes (1960)
• What happened in Smith v Hughes?

  The Street Offences Act (1960) stated it was an offence for common prostitutes to loiter or solicit in a street, and some chose to solicit from balconies.

  The court convicted them as it stated that Parliament did not want them in public places, and the balconies were still public spaces.
• How does the judiciary contribute to law making through SI?

  Their interpretation will form part of the law for future cases.