This document summarizes various methods that courts use to interpret statutes, or acts of Parliament, when the meaning is unclear. It discusses intrinsic aids found within the act itself, such as the title, preamble, definitions, and schedules. It also discusses extrinsic aids outside the act, such as dictionaries, Hansard reports, and international treaties. It then examines rules of language interpretation, such as ejusdem generis and expressio unius. Finally, it analyzes the literal rule, golden rule, mischief rule, and purposive approach that courts can take when interpreting statutes. For each approach, it provides examples of cases where the rule was applied and discusses the advantages and disadvantages.
This document discusses various rules of statutory interpretation used in legal systems, including the literal rule, golden rule, mischief rule, and purposive rule. It provides more detail on the mischief rule, explaining that it looks at the "mischief" or wrong that a statute is intended to correct in order to discover Parliament's intention. The mischief rule was established in Heydon's Case from 1584. The document also summarizes the 1874 case Gorris v Scott, where the court used the mischief rule to determine that a statute requiring animal pens on ships was intended to prevent disease, not protect against property loss.
Pengantar Hukum Internasional - North Sea Continental Shelf CaseMariske Myeke Tampi
The North Sea Continental Shelf case involved a dispute between Germany, Denmark, and the Netherlands over the delimitation of their continental shelf boundaries in the North Sea. The key issues were whether the equidistance principle in Article 6 of the 1958 Continental Shelf Convention should be applied to determine the boundaries, and whether the International Court of Justice had jurisdiction based on the consent of the states involved. The Court ultimately applied the equidistance principle and asserted its jurisdiction based on the consent of Germany, Denmark, and the Netherlands.
This document discusses various rules and approaches to statutory interpretation used by judges when interpreting legislation. It identifies 5 main rules - the literal rule, the golden rule, the mischief rule, the purposive approach, and the integrated approach. It also discusses various canons of language interpretation like ejusdem generis and noscitur a sociis. Finally, it outlines both internal aids within statutes like long titles, and external aids outside statutes like dictionaries, other statutes, and parliamentary materials that judges may consider when interpreting statutes.
This document provides an overview of statutory interpretation rules, including the literal rule and golden rule. It defines the literal rule as giving words their ordinary meaning where possible. The golden rule aims to modify the meaning to avoid absurd outcomes, using either a narrow or wide approach. It discusses cases where the literal rule led to absurd outcomes, necessitating the golden rule. It also covers difficulties in applying the golden rule, such as deciding what constitutes an absurdity. The homework assigns practicing an exam question on the golden rule case R v Allen and researching criticisms of the golden rule.
The mischief rule is used to determine the intention of Parliament when enacting legislation. It looks at the problem or defect that the law was meant to address, known as the "mischief." Heydon's Case established four questions to determine the mischief: 1) what was the common law prior to the Act, 2) what issue was the common law not addressing, 3) how does the Act aim to remedy this, and 4) what was the purpose of the remedy. Later cases like Smith v Hughes and Elliott v Grey applied the mischief rule broadly to find defendants guilty in order to suppress the mischief, even when a literal reading may have found otherwise. The mischief rule aims to achieve Parliament's intent but
This document outlines the hierarchy of courts in England and Wales and the doctrine of precedent that binds courts to follow decisions made by higher courts. It discusses the types of precedent (binding and persuasive) and how courts can deal with precedent through following, overruling, reversing, or distinguishing past decisions. The key aspects of precedent and how it operates at each court level are explained in detail.
This document summarizes several theft case laws related to the concept of appropriation:
- Lawrence (1971) established that taking money with consent could still be appropriation.
- Eddy v Niman (1971) found no appropriation when goods were placed in a store's trolley as this was consistent with the owner's rights.
- McPherson (1973) ruled that placing bottles in a bag showed intent to steal, amounting to appropriation.
- Skipp (1975) determined appropriation occurred when goods were loaded and the route changed, not just upon intending to steal.
- R v Morris (1983) found appropriation as soon as price labels were switched.
This document discusses judicial precedent in Indian law. It begins with introducing judicial precedent as past court decisions that create law to guide future similar cases. It then outlines the objectives to explain elements of precedent like binding precedent that requires lower courts to follow higher court rulings. The document discusses types of precedent like original precedent that establishes new rules and persuasive precedent that is not binding. It notes advantages of precedent like certainty and uniformity in law, but also disadvantages like complexity. Finally, it mentions some landmark judgments that helped develop Indian law.
This document discusses various rules of statutory interpretation used in legal systems, including the literal rule, golden rule, mischief rule, and purposive rule. It provides more detail on the mischief rule, explaining that it looks at the "mischief" or wrong that a statute is intended to correct in order to discover Parliament's intention. The mischief rule was established in Heydon's Case from 1584. The document also summarizes the 1874 case Gorris v Scott, where the court used the mischief rule to determine that a statute requiring animal pens on ships was intended to prevent disease, not protect against property loss.
Pengantar Hukum Internasional - North Sea Continental Shelf CaseMariske Myeke Tampi
The North Sea Continental Shelf case involved a dispute between Germany, Denmark, and the Netherlands over the delimitation of their continental shelf boundaries in the North Sea. The key issues were whether the equidistance principle in Article 6 of the 1958 Continental Shelf Convention should be applied to determine the boundaries, and whether the International Court of Justice had jurisdiction based on the consent of the states involved. The Court ultimately applied the equidistance principle and asserted its jurisdiction based on the consent of Germany, Denmark, and the Netherlands.
This document discusses various rules and approaches to statutory interpretation used by judges when interpreting legislation. It identifies 5 main rules - the literal rule, the golden rule, the mischief rule, the purposive approach, and the integrated approach. It also discusses various canons of language interpretation like ejusdem generis and noscitur a sociis. Finally, it outlines both internal aids within statutes like long titles, and external aids outside statutes like dictionaries, other statutes, and parliamentary materials that judges may consider when interpreting statutes.
This document provides an overview of statutory interpretation rules, including the literal rule and golden rule. It defines the literal rule as giving words their ordinary meaning where possible. The golden rule aims to modify the meaning to avoid absurd outcomes, using either a narrow or wide approach. It discusses cases where the literal rule led to absurd outcomes, necessitating the golden rule. It also covers difficulties in applying the golden rule, such as deciding what constitutes an absurdity. The homework assigns practicing an exam question on the golden rule case R v Allen and researching criticisms of the golden rule.
The mischief rule is used to determine the intention of Parliament when enacting legislation. It looks at the problem or defect that the law was meant to address, known as the "mischief." Heydon's Case established four questions to determine the mischief: 1) what was the common law prior to the Act, 2) what issue was the common law not addressing, 3) how does the Act aim to remedy this, and 4) what was the purpose of the remedy. Later cases like Smith v Hughes and Elliott v Grey applied the mischief rule broadly to find defendants guilty in order to suppress the mischief, even when a literal reading may have found otherwise. The mischief rule aims to achieve Parliament's intent but
This document outlines the hierarchy of courts in England and Wales and the doctrine of precedent that binds courts to follow decisions made by higher courts. It discusses the types of precedent (binding and persuasive) and how courts can deal with precedent through following, overruling, reversing, or distinguishing past decisions. The key aspects of precedent and how it operates at each court level are explained in detail.
This document summarizes several theft case laws related to the concept of appropriation:
- Lawrence (1971) established that taking money with consent could still be appropriation.
- Eddy v Niman (1971) found no appropriation when goods were placed in a store's trolley as this was consistent with the owner's rights.
- McPherson (1973) ruled that placing bottles in a bag showed intent to steal, amounting to appropriation.
- Skipp (1975) determined appropriation occurred when goods were loaded and the route changed, not just upon intending to steal.
- R v Morris (1983) found appropriation as soon as price labels were switched.
This document discusses judicial precedent in Indian law. It begins with introducing judicial precedent as past court decisions that create law to guide future similar cases. It then outlines the objectives to explain elements of precedent like binding precedent that requires lower courts to follow higher court rulings. The document discusses types of precedent like original precedent that establishes new rules and persuasive precedent that is not binding. It notes advantages of precedent like certainty and uniformity in law, but also disadvantages like complexity. Finally, it mentions some landmark judgments that helped develop Indian law.
This document discusses the economic analysis of law and its interaction with various legal fields such as contract law, tort law, and criminal law. It examines how economic considerations can provide insights into the costs and benefits associated with legal rules and how individuals and organizations respond based on these economic factors. It also explores the formal and informal dimensions of law and how people make decisions based on comparing the costs of complying with formal legal requirements versus operating informally.
This document discusses various general defenses under criminal law, including:
1. Unlawful act of child/infancy - Children under 10 are immune from criminal liability in Nepal. Between 10-18, they can claim reduced culpability.
2. Insanity - Several insanity tests have been used over time, including the wild beast test (unable to distinguish right from wrong), McNaughton rules, and Durham/product tests. Current Nepali law considers mental illness as a defense.
3. Intoxication - Voluntary intoxication usually does not excuse criminal liability but may reduce culpability. Involuntary intoxication can be a full defense in some cases.
4. Self-defense,
This document discusses the sources of international law as outlined in Article 38 of the Statute of the International Court of Justice. It identifies the primary sources as international conventions, international custom, and general principles of law recognized by civilized nations. Treaties are considered the most important mode of developing international law. Customary international law requires consistent state practice and opinio juris. General principles of law are derived from common legal principles found in national legal systems. Judicial decisions and scholarly works are secondary sources used to determine rules of international law.
The document is a law student's assignment that critically examines the fusion debate between equity and common law in England. It discusses how the Judicature Acts of 1873 and 1875 merged the courts of equity and common law, though some argue this was only administratively and the two systems remain distinct. The assignment also explores the historical development of equity, key cases that established its relationship to common law, and maxims of equity like "equity follows the law." It concludes there is still debate around the appropriate relationship between equity and common law going forward.
The historical development of equity began in England with petitioners seeking relief from the King when the rigid common law system failed to provide justice. The King delegated these petitions to the Lord Chancellor, who had broad discretion to provide equitable remedies based on fairness. Over time, the Court of Chancery developed as a separate court administering these equitable principles. While equity and common law conflicted at times, the Judicature Acts of 1873-1875 unified the courts and required equitable principles to prevail where conflicts arose between equity and common law.
Understanding Diplomatic Privileges and ImmunitiesKai Bruns
Campus talk @Middlesex University in Dubai
An internal US inspection report released this summer criticized the US ambassador to the UAE, HE Michael Corbin, for misusing parts of his diplomatic privileges. Not only in the UAE the granting of diplomatic privileges and immunities is a controversially debated topic. In the public eye diplomats seem to enjoy traditional prerogatives enabling them to float above the law. In the light of abuses of diplomatic immunities such as parking, speeding or even more serious crimes such as drug and people trafficking the upcoming Monday night speaker lecture will raise the question why states grant diplomatic immunities.
In order to create a basic understanding the lecture will analyze the historical evolution of legal doctrines underlying the concession of diplomatic privileges and immunities. Diplomatic law governing the inviolability of permanent mission premises and immunities of their staff are regulated in the 1961 Vienna Convention on Diplomatic Relations (VCDR). We will look at the codification history of the VCDR and discuss cases of abuses of diplomatic immunities in order to get a feel for the link between legal theory and diplomatic practice to deepen our understanding of the benefits of such long-standing diplomatic practice.
The document summarizes several cases related to mistakes in contracts:
1) Common mistake cases establish that a contract may be void if both parties share the same mistaken assumption about essential facts, such as in Galloway v Galloway where a separation agreement was void since the marriage was invalid.
2) Unilateral mistake cases find that a contract is generally not voidable for a unilateral mistake about non-essential facts, such as quality, but may be if the mistake relates to the identity of the contracting party, as in Cundy v Lindsey.
3) Mutual mistake cases show a contract can be set aside if both parties share the same mistaken belief about an essential fact, such as in
The document discusses the doctrine of precedent in UK courts. It explains that originally, the House of Lords felt bound by its own past decisions for certainty in the law. In 1966, the Lord Chancellor issued a practice statement allowing the House of Lords more flexibility to depart from precedents if a prior decision was wrongly decided. This power transferred to the Supreme Court when it replaced the House of Lords. The Court of Appeal is generally bound by its own past decisions but can depart under certain exceptions. Proper law reporting is necessary for precedents to be established and followed.
The document discusses several equitable doctrines including conversion, election, satisfaction, and performance. The doctrine of conversion provides that equity treats property as if it is in the form intended by the owner, such as considering money directed to purchase land as the land itself. The doctrines of election and satisfaction deal with situations where a person receives a benefit from a will but is also subject to an associated obligation. The doctrine of performance allows an act other than what was originally required to be viewed as fulfilling an obligation.
1) El documento trata sobre la teoría general del tributo y las fuentes del derecho tributario. 2) Define al derecho tributario como una rama del derecho financiero circunscrita a los ingresos públicos cuya fuente es la ley. 3) Señala que las principales fuentes del derecho tributario son la constitución, tratados internacionales, leyes tributarias, decretos supremos, jurisprudencia y doctrina.
The document discusses several court cases related to the interpretation of statutes. It provides background on principles of statutory interpretation like beneficial construction, where words are interpreted broadly to achieve the purpose of benefitting a class. It summarizes key holdings of cases related to maternity benefits, shop closure on holidays, rent control acts, and probation of young offenders. The court generally takes a beneficial approach to interpretation that carries out legislative intent and protects benefits for vulnerable groups.
The document discusses the rule against bias in administrative decision making. It defines bias as a preconceived opinion or predisposition that prevents impartial judgment of a case based solely on evidence. The rule aims to ensure decisions are made impartially and seen to be made impartially. Several types of potential bias are outlined, including personal, pecuniary, subject matter, and preconceived notion biases. Exceptions to the rule like the doctrine of necessity are also discussed. Overall, the document provides an in-depth overview of the rule against bias in administrative law.
Jurisprudence its meaning, nature and scopeanjalidixit21
This document discusses the meaning, nature, and scope of jurisprudence. It defines jurisprudence as the knowledge of law and explains that it is the study of the sources, validity, objectives, functions, and effects of fundamental legal principles. Several jurists are cited defining jurisprudence as the observation of divine and human things, the philosophy of positive law, the science of the first principles of law, and the scientific study of the union of legal rules. The document also outlines different types of jurisprudence according to various jurists and lists several influential books written on the topic.
This document provides an overview of the history and nature of international law. It discusses the definition of international law and how it has evolved over time from ancient Rome and the middle ages to the present. Key developments included the 1648 Peace of Westphalia which recognized principles of sovereignty and non-interference, and the 1815 Congress of Vienna which further codified international law. The nature and enforcement of international law is also examined, noting debate around whether it constitutes true "law" given the lack of formal legislature and judiciary, but also arguing states generally recognize and follow international law in their relations.
Laws are necessary in society to regulate behavior and correspond with what is acceptable to the majority. Law is a set of legal rules that governs how members of society interact. Law promotes order and helps resolve conflicts while protecting basic human rights and minorities. Different branches of law include constitutional law, administrative law, criminal law, civil law, and commercial law. Understanding business law is important for management professionals to ensure their business operates properly and ethically according to legal requirements.
The document discusses the purposive approach to statutory interpretation. It provides the following key points:
1. The purposive approach considers the intention of Parliament and what they meant to achieve with the legislation, going beyond the literal meaning of the words.
2. This approach is more flexible than the literal or golden rules but allows judges to potentially add or remove words not included in the act.
3. Critics argue it allows unelected judges to usurp the legislative function and make law rather than interpreting the words Parliament used. However, supporters counter that it can prevent absurd outcomes and allow statutes to apply to new situations not foreseen at enactment.
4. Overall the document analyzes the
The preliminary referencing procedure enables national courts to refer questions to the Court of Justice on the interpretation or validity of EU law in cases before them. This promotes uniform application of EU law. There are two types of preliminary reference procedures - the discretionary procedure where national courts may refer questions, and the mandatory procedure where courts of last instance must refer questions. National courts play a key role in applying preliminary rulings from the Court of Justice to their specific cases. The Court of Justice also aims to interpret EU law consistently using contextual and purposive techniques.
MALAYSIAN LEGAL SYSTEM Sources of law Part 1xareejx
This document provides an overview of the legislative system in Malaysia. It discusses the sources of law in Malaysia and defines key terminology related to legislation. It then outlines the federal and state legislative bodies, the laws they produce, and their powers according to the Federal Constitution. The document also examines the composition and roles of the federal parliament and its two houses.
This document examines the relationship between law, morality, and religion. It aims to define these concepts and determine the influence of morality and religion on law. The document conducts research through primary sources like questionnaires and observations, as well as secondary sources from the internet, books, and dictionaries. It finds that in primitive societies, religion and morality strongly influenced the creation of laws. While the relationship is less obvious today, many fundamental legal principles are derived from religious rules. The document analyzes court cases to show how laws still uphold societal morals. It ultimately concludes that morality reflects and influences law, and that religion has historically provided a basis for both morality and legal systems.
Guidelines for internal assessment corporate lawmilantrivedi111
The document provides guidelines for an internal assessment consisting of a PowerPoint presentation and word document. It specifies that the presentation is worth 20 marks and the word document 10 marks. Students must have a minimum 75% attendance to be eligible. The PowerPoint presentation should be 30-35 minutes with no more than 25 slides and include 4 randomly selected group members presenting. The word document should be 50 pages following a specified format and include case studies, recommendations, and primary research. Formal business attire is required for presentations.
This document discusses the economic analysis of law and its interaction with various legal fields such as contract law, tort law, and criminal law. It examines how economic considerations can provide insights into the costs and benefits associated with legal rules and how individuals and organizations respond based on these economic factors. It also explores the formal and informal dimensions of law and how people make decisions based on comparing the costs of complying with formal legal requirements versus operating informally.
This document discusses various general defenses under criminal law, including:
1. Unlawful act of child/infancy - Children under 10 are immune from criminal liability in Nepal. Between 10-18, they can claim reduced culpability.
2. Insanity - Several insanity tests have been used over time, including the wild beast test (unable to distinguish right from wrong), McNaughton rules, and Durham/product tests. Current Nepali law considers mental illness as a defense.
3. Intoxication - Voluntary intoxication usually does not excuse criminal liability but may reduce culpability. Involuntary intoxication can be a full defense in some cases.
4. Self-defense,
This document discusses the sources of international law as outlined in Article 38 of the Statute of the International Court of Justice. It identifies the primary sources as international conventions, international custom, and general principles of law recognized by civilized nations. Treaties are considered the most important mode of developing international law. Customary international law requires consistent state practice and opinio juris. General principles of law are derived from common legal principles found in national legal systems. Judicial decisions and scholarly works are secondary sources used to determine rules of international law.
The document is a law student's assignment that critically examines the fusion debate between equity and common law in England. It discusses how the Judicature Acts of 1873 and 1875 merged the courts of equity and common law, though some argue this was only administratively and the two systems remain distinct. The assignment also explores the historical development of equity, key cases that established its relationship to common law, and maxims of equity like "equity follows the law." It concludes there is still debate around the appropriate relationship between equity and common law going forward.
The historical development of equity began in England with petitioners seeking relief from the King when the rigid common law system failed to provide justice. The King delegated these petitions to the Lord Chancellor, who had broad discretion to provide equitable remedies based on fairness. Over time, the Court of Chancery developed as a separate court administering these equitable principles. While equity and common law conflicted at times, the Judicature Acts of 1873-1875 unified the courts and required equitable principles to prevail where conflicts arose between equity and common law.
Understanding Diplomatic Privileges and ImmunitiesKai Bruns
Campus talk @Middlesex University in Dubai
An internal US inspection report released this summer criticized the US ambassador to the UAE, HE Michael Corbin, for misusing parts of his diplomatic privileges. Not only in the UAE the granting of diplomatic privileges and immunities is a controversially debated topic. In the public eye diplomats seem to enjoy traditional prerogatives enabling them to float above the law. In the light of abuses of diplomatic immunities such as parking, speeding or even more serious crimes such as drug and people trafficking the upcoming Monday night speaker lecture will raise the question why states grant diplomatic immunities.
In order to create a basic understanding the lecture will analyze the historical evolution of legal doctrines underlying the concession of diplomatic privileges and immunities. Diplomatic law governing the inviolability of permanent mission premises and immunities of their staff are regulated in the 1961 Vienna Convention on Diplomatic Relations (VCDR). We will look at the codification history of the VCDR and discuss cases of abuses of diplomatic immunities in order to get a feel for the link between legal theory and diplomatic practice to deepen our understanding of the benefits of such long-standing diplomatic practice.
The document summarizes several cases related to mistakes in contracts:
1) Common mistake cases establish that a contract may be void if both parties share the same mistaken assumption about essential facts, such as in Galloway v Galloway where a separation agreement was void since the marriage was invalid.
2) Unilateral mistake cases find that a contract is generally not voidable for a unilateral mistake about non-essential facts, such as quality, but may be if the mistake relates to the identity of the contracting party, as in Cundy v Lindsey.
3) Mutual mistake cases show a contract can be set aside if both parties share the same mistaken belief about an essential fact, such as in
The document discusses the doctrine of precedent in UK courts. It explains that originally, the House of Lords felt bound by its own past decisions for certainty in the law. In 1966, the Lord Chancellor issued a practice statement allowing the House of Lords more flexibility to depart from precedents if a prior decision was wrongly decided. This power transferred to the Supreme Court when it replaced the House of Lords. The Court of Appeal is generally bound by its own past decisions but can depart under certain exceptions. Proper law reporting is necessary for precedents to be established and followed.
The document discusses several equitable doctrines including conversion, election, satisfaction, and performance. The doctrine of conversion provides that equity treats property as if it is in the form intended by the owner, such as considering money directed to purchase land as the land itself. The doctrines of election and satisfaction deal with situations where a person receives a benefit from a will but is also subject to an associated obligation. The doctrine of performance allows an act other than what was originally required to be viewed as fulfilling an obligation.
1) El documento trata sobre la teoría general del tributo y las fuentes del derecho tributario. 2) Define al derecho tributario como una rama del derecho financiero circunscrita a los ingresos públicos cuya fuente es la ley. 3) Señala que las principales fuentes del derecho tributario son la constitución, tratados internacionales, leyes tributarias, decretos supremos, jurisprudencia y doctrina.
The document discusses several court cases related to the interpretation of statutes. It provides background on principles of statutory interpretation like beneficial construction, where words are interpreted broadly to achieve the purpose of benefitting a class. It summarizes key holdings of cases related to maternity benefits, shop closure on holidays, rent control acts, and probation of young offenders. The court generally takes a beneficial approach to interpretation that carries out legislative intent and protects benefits for vulnerable groups.
The document discusses the rule against bias in administrative decision making. It defines bias as a preconceived opinion or predisposition that prevents impartial judgment of a case based solely on evidence. The rule aims to ensure decisions are made impartially and seen to be made impartially. Several types of potential bias are outlined, including personal, pecuniary, subject matter, and preconceived notion biases. Exceptions to the rule like the doctrine of necessity are also discussed. Overall, the document provides an in-depth overview of the rule against bias in administrative law.
Jurisprudence its meaning, nature and scopeanjalidixit21
This document discusses the meaning, nature, and scope of jurisprudence. It defines jurisprudence as the knowledge of law and explains that it is the study of the sources, validity, objectives, functions, and effects of fundamental legal principles. Several jurists are cited defining jurisprudence as the observation of divine and human things, the philosophy of positive law, the science of the first principles of law, and the scientific study of the union of legal rules. The document also outlines different types of jurisprudence according to various jurists and lists several influential books written on the topic.
This document provides an overview of the history and nature of international law. It discusses the definition of international law and how it has evolved over time from ancient Rome and the middle ages to the present. Key developments included the 1648 Peace of Westphalia which recognized principles of sovereignty and non-interference, and the 1815 Congress of Vienna which further codified international law. The nature and enforcement of international law is also examined, noting debate around whether it constitutes true "law" given the lack of formal legislature and judiciary, but also arguing states generally recognize and follow international law in their relations.
Laws are necessary in society to regulate behavior and correspond with what is acceptable to the majority. Law is a set of legal rules that governs how members of society interact. Law promotes order and helps resolve conflicts while protecting basic human rights and minorities. Different branches of law include constitutional law, administrative law, criminal law, civil law, and commercial law. Understanding business law is important for management professionals to ensure their business operates properly and ethically according to legal requirements.
The document discusses the purposive approach to statutory interpretation. It provides the following key points:
1. The purposive approach considers the intention of Parliament and what they meant to achieve with the legislation, going beyond the literal meaning of the words.
2. This approach is more flexible than the literal or golden rules but allows judges to potentially add or remove words not included in the act.
3. Critics argue it allows unelected judges to usurp the legislative function and make law rather than interpreting the words Parliament used. However, supporters counter that it can prevent absurd outcomes and allow statutes to apply to new situations not foreseen at enactment.
4. Overall the document analyzes the
The preliminary referencing procedure enables national courts to refer questions to the Court of Justice on the interpretation or validity of EU law in cases before them. This promotes uniform application of EU law. There are two types of preliminary reference procedures - the discretionary procedure where national courts may refer questions, and the mandatory procedure where courts of last instance must refer questions. National courts play a key role in applying preliminary rulings from the Court of Justice to their specific cases. The Court of Justice also aims to interpret EU law consistently using contextual and purposive techniques.
MALAYSIAN LEGAL SYSTEM Sources of law Part 1xareejx
This document provides an overview of the legislative system in Malaysia. It discusses the sources of law in Malaysia and defines key terminology related to legislation. It then outlines the federal and state legislative bodies, the laws they produce, and their powers according to the Federal Constitution. The document also examines the composition and roles of the federal parliament and its two houses.
This document examines the relationship between law, morality, and religion. It aims to define these concepts and determine the influence of morality and religion on law. The document conducts research through primary sources like questionnaires and observations, as well as secondary sources from the internet, books, and dictionaries. It finds that in primitive societies, religion and morality strongly influenced the creation of laws. While the relationship is less obvious today, many fundamental legal principles are derived from religious rules. The document analyzes court cases to show how laws still uphold societal morals. It ultimately concludes that morality reflects and influences law, and that religion has historically provided a basis for both morality and legal systems.
Guidelines for internal assessment corporate lawmilantrivedi111
The document provides guidelines for an internal assessment consisting of a PowerPoint presentation and word document. It specifies that the presentation is worth 20 marks and the word document 10 marks. Students must have a minimum 75% attendance to be eligible. The PowerPoint presentation should be 30-35 minutes with no more than 25 slides and include 4 randomly selected group members presenting. The word document should be 50 pages following a specified format and include case studies, recommendations, and primary research. Formal business attire is required for presentations.
The document outlines the aims, objectives, research questions, and methodology of a study on the impact of the St. John the Evangelist Anglican Parish Church on the Black River community. The aims are to make citizens and church members aware of the church's spiritual and community impacts. Research questions address the church's effectiveness in spiritual guidance, youth development, and addressing community challenges. The methodology will involve questionnaires distributed to 20 community members over 4 weeks to collect both primary and secondary data.
CAPE Communication Studies IA
Please note that the example of Language/Dialectal Variation used in the Expository piece is "Jamaican Creole" and may not be a suitable example for other countries. Thank you.
This document presents the research findings of a study on labeling theory and its impact on juvenile behavior in high schools. The study utilized questionnaires distributed to students across two high schools to collect primary data, along with statistical data from school administrators. Key findings included that lower class boys and middle class girls were more susceptible to deviant acts. Peer pressure was identified as the main motivation for such acts. Over 80% of respondents believed dysfunctional families contributed to the number of deviants in schools. The research aimed to understand the motivations and impacts of labeling on juvenile behavior, in fulfillment of the sociology syllabus requirements.
1) Legal issues faced by staff include the duty to not deliberately harm others, use reasonable care, and violate others' rights. This can lead to tort suits or civil rights actions seeking monetary damages.
2) Reasonable and ordinary care means using the same level of care and methods a reasonable person would in similar circumstances. Intentional torts involve deliberate actions that could infringe on others' rights.
3) Civil rights actions under Section 1983 allow suits against government entities for violating constitutional rights, seeking to end such violations. Deliberate indifference means intentional disregard of a situation where civil rights are at risk.
The Attorney General is the chief legal adviser to the government and is responsible for instituting legal proceedings on behalf of the government. Judges preside over trials in an impartial manner, determine facts and apply the law. They may also impose sentences in criminal cases. The Registrar administers the court and handles administrative duties such as maintaining records and corresponding on behalf of the court.
1. The document discusses the criminal liability of companies/corporations under Indian law.
2. It notes that a company can be criminally liable for acts committed by employees based on factors like the seriousness of the crime and compliance measures in place.
3. Punishments for companies found criminally liable include fines, restitution, and probation under court supervision.
Precedent (Court of Appeal & Supreme Court)Miss Hart
The document contains a series of short, ambiguous phrases that could have multiple meanings taken out of context. It touches on topics like marriage, violence, gangs, and killing while using wordplay and unconventional phrasing that makes the intent and context behind each statement unclear without more information. Overall, the document presents a confusing set of statements that require additional context to understand fully.
This document provides an overview of the legislative process in the UK. It begins with some introductory information on key legal theories like separation of powers and parliamentary sovereignty. It then discusses the pre-legislative stages of creating laws, including consultation processes like green papers and white papers. Various terms related to legislation are also defined. The document goes on to explain the different types of bills and provides a word search puzzle to identify some key terms. Finally, it discusses the process by which a bill becomes an act, outlining the different stages it must pass through the House of Commons and House of Lords.
Here are potential links between the pictures and the topic of precedent in law:
Picture 1 (scales of justice): The scales of justice represent fairness and balance, which is what courts aim for when applying and following precedent - treating similar cases similarly. Precedent aims to promote consistency and predictability in the law.
Picture 2 (books): Law reports and law books contain published judgments from past cases that set precedents. Lawyers and judges research these sources to find binding and persuasive precedents to apply to current cases.
Picture 3 (gavel): The gavel is a symbol of a judge's authority in a courtroom. When a higher court overrules a lower court's decision, it is exercising its hierarchical authority established by
Power point on the information delivered in class about the Mischief rule, as well as recap questions for golden rule and a little intro to Purposive Approach.
Literatures in English Unit 1 - Essay on Twelfth NightOmziiNella Bell
“Disguise is central to the dramatic impact of ‘Twelfth Night or What You Will’; no other feature of drama is important.” Discuss the validity of this statement.
The document provides information about the AS Law course at Queensbury Academy. It will cover the English legal system, sources of law, and topics like criminal liability. Students will need skills like essay writing, attention to detail, meeting deadlines, and working independently. They will have two exams that are each worth 50% of the final A Level grade. The document also provides sample law cases and discusses the concept of precedent in English law.
Holden expresses disdain for Ossenburger, the man his dorm wing is named after. Ossenburger made money in the undertaking business by starting cheap funeral parlors. Holden implies Ossenburger provides poor quality burials for little money. While Ossenburger donated money to the school, Holden resents having to cheer for him at a football game and having his dorm named after a man he sees as uncaring about proper burials.
The document discusses factors considered when sentencing offenders. It describes four levels of understanding from limited to well-developed knowledge. The higher levels expect candidates to cite relevant statutes and case law. Candidates are asked to discuss which sentences are most appropriate for deterring offending where deterrence is the aim of sentencing. Victim impact meetings are suggested to deter future harm, but may not work if the offender does not want change.
Theory on principle of separation of powers Udisha Singh
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- The role and responsibilities of the custody officer
- Rights of detained persons, such as access to legal advice, which can be delayed under certain conditions
- Rules around conducting interviews, including use of cautions and right to silence
- Types of searches police can perform on suspects and applicable safeguards
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The document aims to explain the balance between police powers and
The document provides an overview of statutory interpretation and the various approaches and rules used in interpreting legislation in the UK. It discusses the literal and purposive approaches, as well as several rules of statutory interpretation including the literal rule, golden rule, mischief rule, rules of language like ejusdem generis and expressio unius, and presumptions used in statutory interpretation. It also discusses the use of intrinsic and extrinsic aids like Hansard and the relaxation of the ban on using Hansard in Pepper v Hart in 1993.
Statutory Interpretation - approaches and rules appliedRonit Himatlal
The document discusses four approaches to statutory interpretation used by judges:
1) The literal approach interprets words based on their plain meaning using rules like the literal rule, golden rule, and mischief rule.
2) The purposive approach looks at the overall purpose of Parliament to interpret ambiguous words.
3) Cases like Smith v Hughes and Jones v Tower Boot Co. illustrate judges using the mischief rule and purposive approach to interpret statutes broadly to address the problems Parliament intended to fix.
4) The trend is for courts to increasingly use the purposive approach influenced by European law, but the literal approach remains more common in English courts.
The document provides an overview of rules of statutory interpretation used by judges in the UK. It discusses the literal rule, where words are given their plain meaning, and the golden rule and mischief rule, which allow interpretations to avoid absurd outcomes or address the problems the statute aimed to fix. It also covers maxims like ejusdem generis and noscitur a sociis that help define terms based on associated words. Case examples are used to illustrate how the different rules have been applied in practice.
First time oral presentation regarding english legal system assignment. Preparation had to be done a lot during the process. A lot of research had done and information shared within group members via email and ppt slide. Great experience with collaborative goals. Textbooks and materials are always used for the purpose of referring.
Precedents are previous court cases that are used to guide future legal decisions. There are four types of precedents: 1) Authoritative precedents that judges must follow, including absolute precedents they must always follow and conditional precedents they can disregard in special cases; 2) Convincing precedents that judges can choose to follow as they see fit; 3) Original precedents that establish new legal rules; and 4) Declaratory precedents that simply apply existing rules. Precedents provide consistency, efficiency, and help adapt laws to changing social conditions.
The document discusses different rules of statutory interpretation that judges use when the meaning of a statute is unclear:
- The literal rule interprets statutes based only on the ordinary meaning of the words used, even if it leads to absurdity.
- The golden rule allows interpreting statutes in a way that avoids absurdity, by considering alternative meanings.
- The mischief rule examines the gap in previous law that the statute was meant to address, to "suppress the mischief" intended by Parliament.
The document analyzes cases that applied each rule and their advantages and disadvantages. It provides guidance for students on understanding and applying statutory interpretation.
This document discusses the debate around whether judges make law or merely declare existing law. [1] It outlines the traditional declaratory theory view that judges only discover and apply the law. [2] However, modern views recognize that judges necessarily make new law in cases where no rules exist or when interpreting statutes. [3] Judges exercise creativity through distinguishing precedents, setting original precedents, and interpreting statutes purposively rather than literally.
VAIBHAV KUMAR GARG (77)-Legal English and Research Methodology .pptxSajjanKumar75
The mischief rule is used to interpret statutes based on the purpose and intention of Parliament rather than just the literal meaning. It examines the problem or "mischief" that the statute aims to address. The rule originated in Heydon's Case in 1584 and involves considering the law prior to the statute, the flaws in the prior law, and how Parliament intended for the new statute to remedy issues. While it provides flexibility and helps achieve parliamentary intent, critics argue it allows judges to rewrite laws and determining intention requires relying on assumptions about parliamentary purpose.
This document discusses principles of statutory interpretation in UK law, including the literal rule, golden rule, mischief rule, and harmonious construction. It provides definitions and examples of each rule.
The literal rule requires judges to rely solely on the exact wording of the statute without interpreting meaning. The golden rule allows modifying the literal meaning to avoid absurd outcomes. The mischief rule examines the common law and intent of the statute to rectify problems. Harmonious construction seeks an interpretation that avoids conflicts between statutes.
While the literal rule promotes certainty, it can lead to injustice. The golden rule and mischief rule give judges more discretion but risk imposing their own views. Overall, the rules aim to balance upholding the legislature
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This document provides an overview of how law is developed and applied in the UK. It discusses that laws originate from unspoken social rules and customs that developed over generations. These became codified into common law through judicial precedent, where higher courts establish binding precedents that lower courts must follow. Legislation has now become the primary source of law in the UK. The key concepts covered include:
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This document summarizes a presentation on judicial precedent given by Arpita Das, Mitu Chowdhury, and Sahadat Hossain at Green University of Bangladesh's Department of Law. It was supervised by Dr. MD Mehedi Hasan, Assistant Professor at the Department of Law. The presentation covered the definition of precedent, the different types of judicial precedents (authoritative, persuasive, original, and declaratory), the binding force of precedents, and the merits and demerits of the precedent doctrine. The presentation provided details on how precedents guide judicial decisions and develop legal principles over time, while also acknowledging criticisms around conflicting decisions and overlooked authorities.
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Lecture 1 statutory interpretation on Literal Ruleshummi
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This document discusses how judges interpret Acts of Parliament passed by the legislature. It outlines several approaches judges may take, including literal interpretation focusing strictly on the wording, golden rules that allow flexibility in interpretation to avoid absurd outcomes, and purposive interpretation seeking to understand the overall purpose and intent of the legislation. Later approaches like the mischief rule examine the original problem or issue the legislation aimed to address. The need for interpretation arises from vagueness or ambiguity in language and changes over time.
The document discusses the literal rule of statutory interpretation and provides examples of cases that illustrate the application of this rule. It begins by outlining the key aspects of the literal rule, namely that words in a statute must be given their plain meaning, the objective is to discover parliamentary intent as expressed in the words used, and this approach is followed even if it produces absurdity or hardship. It then summarizes several cases where the courts applied a strict literal interpretation of statutes, regardless of consequences.
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2. Intrinsic aids
Matters within the act itself which the court can use to help make the acts meaning clear to
the judge
• The long and short title of the act
• In the Abortion act the short title said “an act to amend and clarify the law to
termination of pregnancy by registered medical practitioners”
• The preamble
• In the climate change act it states the purpose of the act is “to enhance the UK’s
contribution to combat climate change”
• The definition section
• Section 1 of the theft act defines theft, so the judge can use this particular meaning
in court.
• Schedules
• This is an addition to the act as in the hunting act refers to exempt hunting activities
which are listed in Schedule 1
3. Extrinsic Aids
• Dictionary
• Of the same year the act was made – as in Cheeseman he wasn't convicted after the
court looked up the word “passenger”
• Hansards
• Official reports of parliament about the act – if the word trying to be interpreted has
been discussed in parliamentary debate
• Reports
• On which the act was based – As in DPP v Bull a report on homosexuality was
referred to.
• International Treaties
• Any that the UK have signed and if the relevant word is defined in there
• IE: The treaty of Rome 1957, which set up the EU
4. Rules of Language
• Ejusdem Generis
(General words rule)
• General words in a list
are of the same type
as specific words
• Powell v KPRC
• Specific: Room,
office, house
• General: Other
place
• Outcome: Specific are
all indoors so “place”
must also be indoors
• Expressio Unius
(Express words rule)
• Only words
expressly used in
the act are included
• Sedgely Miners
• Express: Coal
mines, act only
refers to coal
mines
• Noscitur a Sociis
(context rule)
• Unclear words in the
act take their meaning
from all other words in
the act.
• Muir v Keay
• Unclear word:
“Entertainment”
• Court discovered its
meaning by examining
other parts of the Act.
So café was a place of
entertainment.
5. Literal Rule
The judge takes the plain ordinary
meaning of the words of the act
even if it leads to an absurd result.
If the judge uses this rule, they
believe that they are under
parliament and must follow the
words of the act
• Whitely v Chappel
• Act said it was illegal to
impersonate a person “entitled to
vote”. D impersonated a dead
person at a vote.
• Judge said that the dead person
was not entitled to vote and so D
was not guilty
• Cheeseman
• Judge used a dictionary of 1847 to
find the meaning of passenger and
used the literal rule.
6. Literal rule
Advantages
• It respects the hierarchy of parliament
• The literal rule avoids judges taking important policy decisions that should be taken
by parliament
• DHSS v Royal college of nursing – the house of lords used the mischief rule but some judges
felt that the literal rule should have been used and then the matter considered by parliament.
• Democratic
• Judges are unelected and it would not be right for them to change what elected
politicians have written
• Encourages parliament to review acts
• Using the literal rule can highlight problems with an act
• In Fisher v Bell, Judges said that advertising a flick knife in a shop window was technically not
offering it for sale
7. Literal Rule
Advantages
• Certainty and predictability
• The rule encourages certainty which helps people know where they stand
• If judges are always changing the words in acts, it creates confusion
• A lawyer can advise a business how the unfair contract terms act will apply to
agreements
• Quick and cheap to use
• Often the ordinary and literal meaning can be found from a dictionary
• In Vaughn v Vaughn, The word molest was quickly found in a 1973 dictionary
• Or Cheeseman, the word passenger was quickly found in a 1847 dictionary
8. Literal Rule
Disadvantages
• Absurd Results
• The rule may lead to absurd or unfair results which parliament could not have
intended
• In Whitely V Chappell, it was obviously parliaments intention to stop all kinds of electoral
fraud.
• Inflexibility
• Where there is more than one dictionary meaning, the literal rule cannot provide a
solution
• Its always going to be difficult for the words in an statute to cover every eventuality
• It adds to the work of Parliament
• Parliament is very busy, it is not helpful that judges refused to make minor changes
9. Literal Rule
Disadvantages
• It ignores the limitations of language
• Parliament can make mistakes and some parts of the act may be poorly
constructed
• The law commission criticised the literal rule for relying on “unattainable perfection in
draftmanship”
• It can result in cases being decided on technicalities rather than
common sense
• This may mean that jusice is not done and leave people feeling that the law is
not working properly
• In fisher v Bell, displaying a flick knife in the shop window was not considered to be and
offer to sell
10. Golden Rule
A modification of the literal rule. The
golden rule starts by looking at the literal
meaning but then allows the judge to avoid
an interpretation that would lead to an
absurd result
Narrow Application
if a word is ambiguous the judge
may choose between possible meanings of
the word to avoid an absurd outcome
Wide application
when there is only one meaning to
the word but It would lead to an absurd
outcome, the judge can change the
meaning of the word to avoid it.
Narrow case – R v Allen
the offence of bigamy is committed by
marrying someone whilst married. Literally it
is impossible to commit the offence, because
you cannot marry whilst married.
The court held that “to marry” meant to ‘go
through a ceremony of marriage’ and
convicted Allen
Wide Case – Adler v George
The official secrets act made it an offence
to be found ‘ in the vicinity of a prohibited
place’ The accused was arrested inside the
prohibited place therefore argued he could
not be guilty.
The judge changed the meaning to ‘being in
or in the vicinity of a prohibited place’.
11. Golden Rule
Advantages
• Courts can avoid an absurd result
• Courts can alter the wording of a stature if the result is absurd
• R v Allen when they altered the meaning of the word to marry
• Saves parliament time
• The golden rule prevent parliament from having to pass an amending
legislation as the court can do it easily
• R v Allen, Adler v George
• Respects the authority of Parliament
• Because it is still using the words of the statute and usually only choosing
between definitions so still respects what parliament wrote.
• Only the wider application will change the word and this is only in extreme
circumstances as in Sigsworth
12. Golden Rule
Disadvantages
• It only allows the words to be changed in certain circumstances
• For example in Berriman, the word could not be changed because although the
outcome was unfair it was not absurd
• Its unpredictable
• There is a lack of guidelines to when it should be used, as there are no tests to
whether or not the outcome will be absurd.
• Made worse by the two applications as some judges say you should not go further
than the narrow approach and some use the wide as in Adler v George
• The application is inconcistent
• Even when the same judge is used as the same judge used the Golden rule in Adler v
George but the literal rule in Fisher v Bell, where the outcome was just as absurd.
13. Mischief Rule
The rule is laid down in Heydons case.
There are three factors to consider
when using the rule
1. What was the common law before
the act was passed
2. What was the mischief that the act
was designed to remedy
3. What was the remedy that
parliament was trying to provide
4. What was the reason for the
remedy
Judges should identify the mischief and
interpret the act so a remedy is
achieved
Smith v Hughes
“soliciting on the street” was forbidden
in the street offences act. In this case, it
was held that this included soliciting from a
window as the aim of the act was to allow
people to walk along the street without
being solicited.
Royal college of nursing v DHSS
“Registered medical practitioner” -
House of lords held that the purpose of this
act was to prevent illegal backstreet
abortions and that having nurses carry
them out was not unlawful.
14. Mischief Rule
Advantages
• Respects parliaments intentions
• In Smith v Hughes it was clearly parliaments intention to stop prostitutes for
being a nuisance
• Saves parliament time
• It allows judges to use their common sense – it allows judges to fill the gaps
when parliament have left something out and saves them having to pass and
amending act
• It allows judges to consider social and technological advances
• Royal college on nursing – they recognized that medical practice had changed
since the abortion act.
15. Mischief Rule
Disadvantages
• Finding the intention of parliament can be hard
• Can be argued that the intention of parliament is what is written in the act
and if its not their then they didn’t intend it – but in Smith v Hughes, if
parliament intend to stop soliciting in houses, it would have said so.
• Its undemocratic
• It gives too much power to unelected judges – some argue judges should be
lead by the acts and not parliaments intentions.
• Rule is out of date
• It does not reflect the modern needs – Heydons case was in 1584, and isnt
really relevant any longer.
16. Purposive Approach
This approach requires the court
to examine the object of the act
and to interpret and doubt
passages in accordance with that
purpose
Jones v Tower boot company.
The court decided that racist
harassment by fellow workers
happened ‘in the course of
employment’ – Court of appeal said
it was right to give the words a
meaning other than their natural
meaning so that the purpose of the
legislation could be achieved.
17. Purposive Approach
Advantages
• Most relevant of all the rules
• It makes sense to look at the whole purpose of the act. Now a days judges should be
able to look at what the act was designed to do rather than just look for the mischief.
• Respects Parliaments intentions
• It allows for mistakes in the act or when parliament have forgotten to include
something which should obviously be included in their intention
• It allows judges to use common sense
• It allows judges to ‘fill the gaps’ when parliament have left something out.
• Allows judges to take into account technological changes
• In RCN v DHSS they recognized medical practice had changed since the abortion act.
18. Purposive Approach
Disadvantages
• Finding intention of parliament can be hard
• It can be argued that the intention of parliament can be found in the act and
is not elsewhere. And that in some cases assuming the act included other
things could be wrong else parliament would have included it
• It is Undemocratic
• It gives too much power to unelected judges – judges are to be are to be
guided by parliaments enactments and not by their intentions.
• It might cause confusion
• When a judge changes the meaning of a statute – some judges refuse to alter
the words of a statute because it would mean that ordinary citizens did not
know where they stand.
19. Avoiding Precedent
Distinguishing
• If the judge finds that the facts
of the case are materially
different from the case setting
the precedent, they can
distinguish the case and avoid
following that precedent.
• Balfour v Balfour
• Unable to enforce and agreement
as it had been made during
marriage.
• Merritt v Merritt
• The couple had an agreement. The
judge said this agreement was
binding as it had been made after
the marriage broke down so was
materially different from balfour.
20. Avoiding Precedent
Overruling
• Judges in the higher courts can
overrule the decisions of the
lower courts if they consider the
legal principles to be wrong.
• The Practice statement 1966
allows the supreme court to
overrule their own decisions.
• Court of Appeal can refer to
young v Bristol Aeroplane to
avoid injustice in criminal cases.
• Herrington
• Child trespasser injured on railway
line
• An occupier of land owes child
trespassers a duty to protect them
from injury
• The HL overruled its own previous
decision made in Addie v Dumbreck
1929
21. Avoiding Precedent
Disapproving
• A judge may disapprove a
decision if they think the
precedent is wrong but has to
follow it and cannot overrule it.
• The disapproving comments are
persuasive and may influence
decisions in future cases
• Hasan
• The house of lords disapproved
the earlier decision of the court of
appeal in Hudson v Taylor about
the availability of the defence of
duress where there was
opportunity to go to the police.
22. Practice statement of 1966
• R v Shivpuri
• D tried to deal drugs but the
substance turned out to be
vegetable powder not drugs
• Legal decision
• A person can be guilty of attempting
the impossible
• The first use of the practice
statement
• The supreme court overruled their
own decision only a year earlier
admitting they had got the law
wrong.
• R v R
• A man raped his wife
• Legal decision
• The supreme court overruled the
long-standing but outdated
assumption that there could not be
rape within marriage
• The law must meet changing social
values.
23. Young v Bristol Aeroplane CA
• This case allows 3 exceptions for the CA to avoid its own decisions.
1. If there are two precious decisions of the Court that conflict
• The court must then decide which of its decisions to follow
• Parmenter
• D injured his baby handling him roughly
• The CA had decided bodily harm could only be committed if D had foreseen the risk of injury. They had also
decided that foresight of harm was not required.
2. If a previous decision of the CA conflicts with a HL decision
• The CA must then follow the HL
3. If a previous decision of the CA is made carelessly or by mistake (incuriam)
• Then the court is not bound by its earlier decion
• Rakhit v Carty
• The court of appeal di not have to follow two earlier cases concerning a “fair rent” because they had
been decided without reference to the rent act
24. Young v Bristol aeroplane CA
• In Criminal cases, the CA has an
extra power to avoid its own
decision if it causes injustice to
the defendant
• R v Spencer
• Court recognized it may be
necessary ‘In the interest of
justice’ to depart from previous
precedent in criminal cases
because a persons liberty may be
at stake
25. Precedent
Advantages
• Consistency
• Certainty allows people to know what the law is enabling lawyers to predict the likely
outcome of a case. Without this people could not be sure that the law would stay
the same and that would make panning for the future much more difficult.
• Flexibility
• As precedent can be overruled, distinguished and disapproved. This allows the law to
evolve. As in R v R when the house of lords accepted that a man could be guilty of
raping his wife (Example of changes in social attitude)
• Based on Real-life situations
• As the law is made form actual cases it becomes very precise and builds up to a large
body of law covering almost every situation. It is also more likely that the law will
have developed in a common-sense way.
26. Precedent
Disadvantages
• Lack of Research
• In order to decide a case the judge is only presented with the facts of the
case. Unlike parliaments who have time and methods of researching
thoroughly to ensure the law is done properly.
• Retrospective effect
• After the precedent has been passed, it applies to event that occurred before
it was set. This could lead to unfairness as parties involved in the case could
not have known what the law was prior to their actions as in R v R
• Rigidity
• The strict hierarchy means that judges have to follow binding precedent.
Therefore, bad or inappropriate decisions cannot be changed unless they are
heard in a higher court that can overrule them.
27. Ratio Decidendi
• The legal principle upon which
the decision of the court is
based. It means reasons for the
decision
• It is the binding part of the
decision
• R v Howe (House of Lords)
• D took part in murder but claimed
he was acting under duress
because of threats to kill him if he
didn’t.
• It was held that the defence of
duress is not available for murder
• This rule was then followed by court
of appeal
28. Obiter Dicta
• Means ‘other things said’
• Refers to anything the judge said
that is not essential part of the
ratio
• They do not form part of the
binding precedent
• Judges below don’t have to follow
them but can be persuaded by it.
• R v Gotts
• D tried to kill his mother
because his father threatened
him if he didn't. But she survived
the stabbing
• Court of appeal were persuaded
by the obiter in R v Howe which
stated that the defence of duress
should not be a defence to
attempted murder either
29. Persuasive Precedent
• This is precedent that is not binding on the court. But they are persuaded
to follow it. It comes from multiple sources:
• Statements made in Obiter Dicta : R v Gotts, from R v Howe
• Courts lower in the hierarchy : R v R, the HL agreed with CA
• Dissenting Judgments: Where a judge disagrees with the majority ie: 2-1 in the CA.
The judge who disagreed will explain his reasoning. If the case is then appealed, the
supreme court may prefer the dissenting judgment and follow it
• Decisions of courts in other countries: This includes Scotland and the US, especially
countries which based their legal system on ours i.e.: Canada and Australia
• Decisions of the privy council: This court is not part of the court hierarchy in England,
but many of its judges are also members of the supreme court. So their judgments
may often be followed : Holley – The decision is not binding in England but CA
followed it and supreme court approved.
30. Original Precedent
• If the point of law has never
been decided before, whatever
the judge decides will form a
new precedent for future cases
• Donoghue V Stevenson
• This case set a major precedent in
the law of negligence.
• D went into a café with a friend
who bought some ginger beer. The
bottle was poured out and a
decomposed snail came out of the
bottle. Mrs. D became ill.
• Mrs. D could not sue the café as
she did not buy the drink. But
could sue the manufacturer for
their negligence
• Legal decision of D V S
• People had a duty in law not to do
anything which they should realize might
cause injury to other people
• The manufacturer had been negligent
• He owed Mrs. D a duty of care which he
broke
• So Mrs. D was entitled to compensation.
31. Magistrates
• Trying summary offences and most
triable either way offences
• Mode of trial proceedings for
either way cases
• ‘Sending for trial’ hearings in
indictable cases
• Youth court cases where D is aged
10-17
• Issuing arrest and search warrants
• Deciding bail
32. Qualifications of Magistrates
• Age limit
• Minimum of 18-65
• Retirement at 70
• Time
• A mag must be able to attend court at
least 26 half days a year
• Swearing of Oath of allegiance
• Magistrates must promise to serve the
British monarch, although British
nationality is not a requirement.
• Over 30000 magistrates trying over a
million cases a year.
• 6 Key personal Qualities
• Good character
• Understanding and Communication
• Social awareness
• Maturity and sound temperament
• Sound Judgment
• Commitment and Reliability
• Disqualified groups
• Disqualified
• Have a serious criminal conviction
• Have been declared bankrupt
• Ineligible
• Work in incompatible jobs such as police
force
• Are seeking election to parliament
33. Magistrate selection (Justices of peace act)
• Advertisement
• In the area where the need has arisen.
Applicants must live or work in that locality
• Application form
• Available from the ministry of justice,
online or hard copy. This is checked by the
local advisory committee. Made up of
former magistrates and local political
parties
• Interview
• First interview
• To assess personality and the 6 key
characteristics
• Second interview
• To assess ability by discussing practical
examples
• Composition of the bench
• Each bench should reflect the community it
serves. However most magistrates still
come from a professional managerial
background and 40% are retired from a full
time job
APPOINTMENT
• The local Advisory committee will submit
the names of successful candidates to the
lord chief justice whoe will make the
appointments under the Crime and
courts act.
• The final stage is the ‘swearing in’ of the
new mags, by a Senior Circuit Judge
34. Magistrate Training
• Training is supervised by the
judicial studies board and carried
out by legal advisors at court.
• Training is based on competences
• Managing yourself
• Personal organization and conduct in
court
• Working as a team member
• Usually on a bench of 3 magistrates
• Making judicial decisions
• Making impartial and structured
decisions
• Early Training
• A new magistrate will undergo
introductory training on the basics of
the role, after this they will sit in the
court with two experienced mags
• Mentoring
• Each new magistrate has a specially
trained magistrate mentor to guide
them through their first months and
they meet to discuss their progress
35. Magistrate Training
• Core training
• During the first year, new
magistrates visit courts and
prisons to help them understand
more about the criminal justice
system.
• Appraisal
• About 12-18 months after
appointment, the new magistrate
is appraised to check that they are
fully competent
• Continuing Training and
Development
• Appraisals continue every three
years
• If a magistrate wants to take on
further responsibilities such as
becoming a chairperson or
working in the youth court they
must undergo additional training.
36. Role of magistrates
• Summary Offences
• Before the trial
• Under the Bail act, magistrates decide whether or
not to grant bail
• They also make decisions on legal aid entitlement
• Carry out a pre-trial review to ensure both sides are
ready for trial
• At the trial
• As a bench of three, magistrates hear evidence from
both sides
• They then decided guilt as a unanimous/majority
decision
• After the trial
• Decide sentence with reference to maximum
sentencing power
• 6 month imprisonment for each crime
• Unlimited fine
• Send case to crown court if sentence powers are
insufficient
• Either way offences
• Before trial
• Conduct plea before venue process including a mode
of trial hearing if D pleads not guilty
• Power to send for trial to crown court
• Pretrial review if offence to be tried summarily
• Sentence or send for sentence following guilty plea
• Bail or custody if case is adjourned for any reason
• Trial as in summary case
• After trial
• Decide sentence with reference to maximum
sentencing powers
• Send (Commit) case to crown court for sentence if
powers are insufficient
• Indictable offences
• Carry out a ‘sending for trial’
• Decide bail
37. Other roles of magistrates
• Appeals in the crown court
• They sit alongside a Judge in the
crown court hearing appeals against
conviction or sentence.
• Hearings in the youth court
• Specially trained magistrates deal
with young offenders, usually in
private
• Both sexes are represented on the
bench to ensure the young person
feels comfortable
• If they find them guilty they have
different sentencing powers such as
they cannot go to prison
• Duties outside of court
• Magistrates may grant police
warrants for arrest and search of
premises and extensions of custody
up to a max of 96 hours
• Some act as mentors to new
magistrates during their training or
make visits to schools or prisons
• Under the licensing act magistrates
have a role in civil law hearing
appeals against refusals to grant
alcohol or gaming licenses, they do
some family work like care orders and
emergency protection orders.
38. Magistrates Court
• Legal Advisors
• Legally qualified advisers, sit with
lay magistrates in court
• Their role is to explain the law
• Decisions must still be made by
the magistrates and the adviser is
only there to guide them
• In R v Eccles justices – The verdict
was overturned on appeal
because the adviser took part in
the decision
• District Judges
• District judges are legally qualified
• They normally work as barristers
or solicitors when they are not
sitting as a judge
• They are able to hear cases alone
in the magistrates court. The
justices of peace act 1997 allows
them to have the same powers as
a bench of magistrates sitting
together
39. Advantages of Magistrates
• Cost compared to judge
• Unpaid – Most cases tried without need of a judge – judge salary over £90,000 a year
– saves £100million a year (In 1998 mags court case cost £550, whereas crown court
cost £8,600)
• Local knowledge
• Sentencing can take into account local problems – explanations of areas not required
like they are in crown court
• In Paul v DPP – D was charged with kerb-crawling. Magistrates knew the neighbourhood and
knew it would be a problem and convicted
• Few appeals
• Very few defendant challenge the decisions made by lay magistrates which suggest
they are good
• Less than 1% of magistrates’ decisions are appealed.
40. Disadvantages of Magistrates
• Unrepresentative of society
• Socially unrepresentative – white, middleclass, professional and wealthy – some
racial mix is better reflected. (4% are under 40 years old and 50% are over 60)
• Inconsistent sentencing
• Inconsistency between neighboring benches
• In Lincolnshire, 4% of defendants sentenced to immediate custody compared to 14% in
humberside. In south wales, 21% convicted of driving whilst disqualified were sent to prison
compared to 77% in Essex.
• Biased in favor of police
• Same police witnesses seen again and again – they often believe the police
regardless
• R v Bingham justices – D and police officer contradicted each other ( chairman said ‘”my
principle in such cases has always been to believe the evidence from the police officer”)
• Rely too heavily on legal advisors
• Not allowed to help but can seem as though they are
• R v Eccles Justices
41. Juries
• In bushels case it was
established that the jury were
the sole judges of fact and that
juries may acquit a defendant,
even when the law demands a
guilty verdict
• R v Ponting
• D found out that the government
had lied about the sinking of a ship,
he gave the documents to a MP so it
could be raised in parliament
• Jury saw that although he broke the
law, he did it for good reasons and
equitted him
• Juries take part in less than 1%
of all criminal trials.
• Qualification
• Under the Juries act
• Age limit – 18 to 75 (changed to 75 in
criminal courts and justice act 2015)
• Residence – Lived in the UK for at
least 5 years since their 13th birthday
• On the electoral list
42. Jury (Not qualifying)
Disqualification
• Under criminal just act 2003
• On Bail
• Criminal convictions
• Permanently disqualified
• Served in prison longer than 5 years
• Disqualified for 10 years
• Served any prison or community
service
• Mental disorders or mental health
problems
• A juror can be discharged if unable to
perform their duties due to:
• Physical disability, such as deafness
• Insufficient understanding of English
• Deferral
• This delays jury service for up to a year if
you can show a valid reason why you
cannot attend the original dates
• Eg: work commitments or holidays
• Excusal
• This takes a person off the list for a year
• Right to be excused
• Member of the armed forces with a note
from the CO
• Others have to apply for permission
• People who have already served in the past
2 years at a long or distressing hearing
• MP’s/medical professionals
• Those over 65 years of age
• Lawyers and police no longer have a right
to be excused.
43. Selection of Jurors
• Jury central summoning bureau
(JCSB)
• JCSB select a pool of names at
random for each court area using the
electoral register.
• Letters are sent to each prospective
juror informing them of their
selection
• Information is provided on what to do
if the potential juror thinks they are
unable to attend
• If a disqualified person fails to
disclose, they are liable to be fined
£5,000
• Anyone who fails to turn up when
summoned is guilty of a criminal
offence
• In jury waiting room
• On their specified date the candidates
turn up at the court and are placed
together in a jury assembly area or
waiting room
• At random, a court official will select
15 candidates from this pool for each
court
• 15 are chosen
• In case a candidate is prevented from
serving in a particular courtroom due
to a connection with the case or if it is
expected to last more than 2 weeks
• In court
• Names are again drawn randomly by
the clerk and before each juror is
sworn in they may be challenged
44. Jury Challenges
• The prosecution can use stand
by the crown without giving
reason, to remove ‘a manifestly
unsuitable juror’, usually where
jury vetting has been authorized
• Vetting
• CRB checks – to see if criminal
offences have not been declared
• Authorized jury check – in cases of
national security.
• The defence and prosecution
can challenge ‘for cause’ if they
give a good reason why an
individual juror should not serve
• The juror is personally known
• Challenge ‘To the array’ – where
both parties may challenge the
whole jury panel
• Because its not representative of
the community
• In the Romford jury case out of a
panel of 12, nine came from Romford
living within 20 doors of eachother
45. Role of Juries
• Number of cases decided by juries
each year is about 60,000
• During the trial
• The jury listen to evidence and
submissions by pros and defence
counsel
• Looking and exhibits, photos and
videos
• Notes may be taken and jurors may
pass questions to the judge
• At the end of the case
• The jury listen to the judge
summaries the evidence in the case
and direct the jury on relevant legal
issues
• In complicated cases, the judge will
also provide a structured set of
questions to assist the jury in the
deliberations
• Jury Room
• The jury retire to a private room for a
secret discussion to consider their
verdict
• It is the offence of contempt of court
to try and get information from jurors
• Mirza – Juror had been bullied during
deliberations. HL refused to intervene
because what happens in the jury
room is meant to be a secret.
46. Roles of Juries
• Unanimous and majority
verdicts
• At first the jury must try to reach a
unanimous verdict
• After a minimum period of 2 hours
if they cannot all agree the judge
may accept a majority verdict
under the criminal justice act (a
minimum of 10 must agree)
• Public announcement of verdict
• The jury choose a spokesperson to
deliver their verdict when they
return to court
47. Advantages of Juries
• Balance against state interference
• Juries can find defendants not guilty even if they are obviously guilty
• R v Ponting – R v Kronlid – Bushels case
• Racially balanced
• 2007 research shows no difference between white and black minority ethnic
people in positive respons to jury service
• Thomas report of 2010 – 63% of white defendants and 67% of Black defendants
• Elimination of Bias
• Juries are free from bias and are regarded as the fairest way of reaching a
decision In the courts
• 81% of juries in 2008 reached a unanimous verdict
48. Disadvantages of Juries
• No reasons given for the verdict
• Jurors can be forced to go with flow or give genuinely perverse verdicts
• R v Mirza – HL refused to intervene when told how a jury reached their decision
• R v Young – Jury used a ouija board to help their decision. This could be investigated as it was
outside the jury room
• Jury Nobbling
• There is a danger juries may be bribed or intimidated into reaching a verdict
• Criminal justice act 2003 allows trial by judge without jury if there was areal danger of jury
nobbling – R v twomey after 3 previous trials
• Not truly representative of the public
• Too many reasons not to qualify – reluctant jurors try harder to get out of it
• Mothers of young children are often excused – 26% of jurors were excused on discretionary
grounds – the average age of juries is older than it should be because young people are more
likely to be excused from serving
49. Appeals from magistrates court
• Appeal against conviction
• Appeal by the defence
• Heard in the crown court by a
professional judge and two
magistrates
• Essentially a re-trial where the
court will review evidence again
• Crown court decision is final and
no further route of appeal against
conviction
• Appeal ‘by way of case stated’
• Appeal by either the prosecution
of the defence
• Heard in the Divisional court
• This is an appeal on a point of law.
There is no need to hear from any
witnesses.
• Final Appeal
• From the divisional court to the
supreme court but only on a point
of law of public importance
50. Appeals from Crown court
• If D found guilty
• Appeals by the defendant can be made against
sentence or conviction to the court of appeal
• Leave to appeal has to be granted by the judge
• Appeals against conviction
• If the court of appeal decides that the conviction is
unsafe, they can
• Quash the conviction
• Substitute a conviction for a lesser offence
• Order a new trial
• Appeals against sentence
• Court of appeal can confirm or reduce sentence
• The prosecution can appeal against ‘an unduly
lenient sentence’.
• If D found not Guilty
• Impossible for prosecution to appeal a not guilty except in cases
of jury nobbling or where new evidence has come forward
• Jury Nobbling
• Under the criminal procedure and investigations act the court of
appeal can order a retrial if the jury has been bribed or
threatened.
• New and compelling evidence
• Under the criminal justice act the court of appeal can order a
retrial when new and compelling evidence is produced
• It is only available for the most serious offences, and usually
happens because of DNA evidence
• Attorney Generals references
• The prosecution may appeal on a point of law by asking the AG
to refer case to the court of Appeal
• Purpose is to correct the legal rule for future cases and it does
not affect the innocence of the person in the trial.
51. Intention to create Legal relations
• Family
• Jones v Padavatton
• Despite the high value (moving to UK
in exchange for a house) –
agreements between family (mother
+ daughter) not binding
• Exception Simpkin v Pays
• Agreement between 2 family
members and their lodger was
binding because the lodger was a 3rd
partyy
• Business
• McGowen v Radio Buxton
• Any agreement intended to advance
trade or increase profits (radio
competition to win a car) will be
binding
• Jones v Vernon Pools
• Pools coupons carry a clause saying
they are binding in honor only this
prevents the coupon from becoming
a contract