Law Making and the English Legal System

1. THE LITERAL RULE
   1. Judges give the words in statutes their plain, ordinary, grammatical meaning, whatever the consequences
      1. R V Judge of the City of London
   2. WHITELY V CHAPPELL
   3. LNER RAILWAY CO V BERRIMAN
   4. FISHER V BELL

      Anmerkungen:

      • Where words have a technical legal meaning: D displayed a flick knife marked with a price in his shop window. Charged under a statute for making an 'offer for sale'.  Technical legal meaning - 'invitation to treat' - not guilty
2. THE GOLDEN RULE
   1. Grammatical ordinary sense of the word is to be followed unless it would lead to some absurdity, or some repugnance, or some inconsistency
      1. Grey V Pearson
      2. Narrow Version
         1. Least absurd meaning of the words should be used
         2. ALLEN
      3. Wide Version
         1. Court finds literal meaning unacceptable
            1. RE SIGSWORTH
3. THE MISCHIEF RULE

   Anmerkungen:

   • Judges interpret the act in such a way as to put a stop to the mischief.  The courts look to the wording in the Act, but also willing to look outside the Act to its social and historical context and extrinsic aids for meaning e.g. Hansard and law reform reports
   1. 1. What was the common law before the statute
      1. 2. What problem, or 'mischief', was the statute trying to remedy
         1. 3. How did Parliament try to remedy the mischief
   2. HEYDON'S CASE
      1. SMITH V HUGHS
      2. ROYAL COLLEGE OF NURSING V DHSS
4. PURPOSIVE APPROACH
   1. Requires court to work out general purpose of Parliament in passing the Act to fulfil that purpose
      1. MAGOR AND ST MELLONS V NEWPORT
   2. COLTMAN V BIBBY TANKERS
   3. R V REGISTRAR-GENERAL, EX PARTE SMITH

Anmerkungen:

• Past decisions of judges creates law for future judges to follow in similar cases - case law or common law

1. Stare Decisis
   1. Fairness as cases are treated alike
   2. Provides certainty in the law
2. Binding precedent

   Anmerkungen:

   • Statement of law from an earlier case which must be followed even if the judge in the current case does not agree with the law
3. MAIN FEATURES
   1. Law Reports

      Anmerkungen:

      • Both lawyers and judges can refer back to the relevant statements of law
      1. Publicise a judgement

         Anmerkungen:

         • What a judge says about the law at the end of a case
      2. Ensure that there is an accurate and authorised record of the reasons for decisions

         Anmerkungen:

         • Authorised by the judge in the case
      3. Written by specialist lawyers
      4. All England, Weekly, LexisNexis
   2. Judgement

      Anmerkungen:

      • Precedent needs a method of identifying the parts of a judgement which bind a future judge from from the other parts which need not be followed
      1. Ratio Decidendi

         Anmerkungen:

         • 'Reason for deciding' In a judgement; judge will explain particular principles he is using to decide why a particular party won
         1. Binding
         2. HOWE

            Anmerkungen:

            • Binding principle; that duress cannot be a defence to murder as you should not be able to choose to kill an innocent person to save your own life
      2. Obiter dicta

         Anmerkungen:

         • 'Other things said'  These comments are not essential to the outcome of a particular case and are often discussions of hypothetical situations None of OD forms part of case law, but judges in later similar cases may be persuaded to follow it in reaching a decision
         1. Persuasive
         2. HOWE

            Anmerkungen:

            • Duress could not be a defence to the crime of attempted murder
   3. Hierarchy

      Anmerkungen:

      • Allow a judge to know who he or she should follow
      1. Courts bound to follow a relevant decision made by a court above it in the hierarchy
      2. Appellate courts bound by their own past decisions
      3. Supreme Court

         Anmerkungen:

         • Decisions must be followed by all other courts in the English legal system usually bound to follow its own past decisions  Hears appeals in both civil and criminal cases where a legal principle of general public importance is involved
      4. Court of Appeal

         Anmerkungen:

         • Both divisions are bound by previous decisions of the Supreme Court  Only persuasive in relation to each other COA usually bound to follow its own past decisions 
      5. High Court

         Anmerkungen:

         • Bound by decisions of all the courts above it in the hierarchy Binds the lower courts  HC judges do not have to follow each other's decisions but will usually do so
      6. Crown, County and Magistrates' Courts

         Anmerkungen:

         • Must follow decisions by all higher courts  Do not usually create precedent themselves 
4. PERSUASIVE PRECEDENT
   1. Court will consider and may be persuaded by, but does not have to follow
   2. Comes from a number of sources
      1. Courts lower in the hierarchy than the court hearing the appeal

         Anmerkungen:

         • R V R - HOL persuaded to follow the same reasoning as the COA in deciding that a man could be guilty of raping his wife 
      2. Statements made Obiter Dicta

         Anmerkungen:

         • HOWE - 'Duress could not be a defence to the crime of attempted murder'  Followed in later case of R V GOTTS
5. AVOIDING A BINDING PRECEDENT
   1. Allows case law to develop and injustice in an individual case avoided