1.1 Judicial processes for law making
judicial precedent
Where the judge follows a certain method in similar cases
Stare decisis, Latin for 'stand by the decision
Court hierarchy (highest to lowest)
Supreme court
Court of appeal
High court- kings bench division
Crown court
Magistrates court
Donoghue v Stevenson 1932
Mrs Donoghue was brought a ginger beer by her friend, she consumed half of the bottle, and poured the remaining half into a tumbler. Then the decomposed remains of a snail floated up causing her alleged shock and severe gastro-enteritis.
'Neighbour principle'- Lord Atkin
The rule that you are to love your neighbour becomes in law.
you must not injure your neighbour
you mist take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour
The outcome: The decision had several components: first negligence is distinct and separate; second, there does not need to be a contractual relationship for a duty to be established; third, manufacturers owe a duty to the consumers who they intend to use their product.
Judge made laws are referred to as COMMON LAW
Judges need to be consistent with their decisions so that people are treated fairly
they must make decisions which are common with other decisions
Methods to avoid following a precedent
Follow- the majority of the time judges will simply follow the existing binding precedent
Overruling- a court in a later case decides that a judge in the earlier case was wrong and overrules the precedent created. this can only be done in a higher court.
Reversing- similar to overruling, but this happens in the same case- so a decision is reversed on appeal.
Distinguishing- the judge decides the fact of the case are sufficiently different from the precedent, that a different decision is justified
Statutory precedent
Sometimes a judge may make a new rule to be used in future cases by interpreting something into an existing Act of Parliament
The 'statute' refers to the law the defendant has supposedly broken in the case the judge is hearing.
The 'interpretation' refers to the way the judge reads, understand, and then applies the law to the case before them.
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three rules judges can decide to use
Literal rule- this is when the judge applies the law in its plain and ordinary meaning, even if it leads to an absurd decision which does not make sense
Golden rule- this is when the judge follows the literal rule, until the decision would be absurd, in which case they make the commonsense decision
Mischief rule- this is when the judge has more flexibility and is able to look for the 'mischief' or 'problem' within society that the law was trying to deal with, and then makes the decision that addresses that problem.