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.