Question 1
Judges are set by the Doctrine of Precedent to decide the outcome of cases. Stare Decisis states that like cases should be treated so. For two separate cases of assault with similar circumstances, the Judge should follow the Doctrine of Precedent giving both cases the same sentence by following the decision made by a previous case setting the sentence.
Regarding Judicial Creativity, when there is no set precedent for a point of law, an original precedent will be made by the Court and will stand for all like cases and all lower Courts in the hierarchy. When creating an original precedent, the Court will usually reason by analogy, look at cases that are nearest in similarity and set the precedent. This is a source of law as Judges are creating a precedent for other Courts and Judges to follow declaring for the first time what the law is for that case and all similar cases.
Question 2
a)
The Supreme Court (SC) is the highest-ranking court in England and can only be overruled by the European Court of Justice. The SC used to be bound by its own previous decisions until the rules changed in 1966 (The Practice Statement) the SC was to treat its past decisions as binding, but could if deemed right, depart from its previous decisions. The decisions set in the Supreme Court are binding precedents for all lower courts. The SC is the only court in England that can stray from or overrule previous decisions made by themselves.
The Court of Appeal (COA) is bound by its own previous decisions unless previous decisions conflict with each other. The COA is able to distinguish which previous decision to follow based on the facts of the case. The COA must refuse to follow a previous decision if that decision has been overruled by the SC. The COA can disapprove a previous decision if that previous decision was made by mistake or carelessly. The COA can also overrule decisions made by courts which are lower in hierarchy than itself. The County Court, Crown Court and Magistrates Court do not create precedents and must follow precedents set by Courts above them in hierarchy.
b) I think it was positive that Anderton V Ryan was overruled as Shivpuri clearly thought they were drugs and intended to commit a crime.
Question 3
a) An advantage of the Literal Rule is it follows the words of Parliament exactly how Parliament intended. Another advantage in taking words for their literal meaning is that the law is clear. Wording will not be interpreted differently by Judges thus easier for the public to understand. It could also be negative as words may often be ambiguous. Using the literal rule could result in the word having a different meaning than intended. The literal rule can also cause a harsh result in a case, for example in the Berriman Case (1946) the Judge took the words ‘repairing and ‘relaying’ in the relevant act literally regarding Mr Berriman oiling the train track when he was killed. Resulting in a harsh outcome as oiling did not come under those two categories.
b) An advantage of using the Golden Rule is it prevents Parliament from having to pass amended legislation. Judges can decide the true meaning of the words of the relevant act instead of taking it literally. The Golden Rule respects Parliaments authority as it only allows words to be altered in situations where using the literal rule would result in a repugnant outcome. A disadvantage is it only allows Judges to change the wording in statues in very limited situations. This can result in unfair outcomes to cases. In the Berriman Case (1946) the Golden Rule could not be used although the outcome was unfair it was not classed as being absurd or repugnant. Another disadvantage is its unpredictability. Since it is used so rarely it is hard for the public and solicitors to predict the outcome of a case as they do not know whether it will be used or not.
C) The Mischief Rule has some disadvantages when it comes to judicial creativity. It allows Judges to fill in gaps in the law with their own views on how they feel certain issues should be dealt with. The Mischief Rule also causes uncertainty in law, as it is impossible to know what the Judge’s interpretation will be and when they will use it. This makes it extremely difficult for solicitors to advise their clients as to what the outcome will be.
Part 2
Question 4
a) A Statutory Instrument which is a Parliamentary delegated legislation dated 2017 and it was the 1112th SI passed in 2017.
b) A Bill which started in the House of Lords and is yet to be passed, this bill was first drafted in 2017 and has until 2019 to be passed.
c) This was a House of Lords Case, the year is in square brackets meaning the year is the primary way to find the book relating to the case it is a case of Rottman against the Metropolitan Police Commissioner and it can be found in section 20 of the book.
d) An Act of the UK Parliament passed in 2017.
e) The Queen against Harris (the defendant) the year is in square brackets which means that the primary way of finding the book relating to this case is the year. It will be in the law series EWCA – England and Wales Court of Appeal and it was a criminal case. When looking at the book you will look for page 1849 to find the section about this case.
Assessment 2
Question 5
a) The Legislature in Britain is Parliament and is made up of the House of Commons and the House of Lords, they make laws, authorise taxes and budgets for the government, investigate and scrutinize government administration and they also debate current issues. The Executive is a branch of the British Government known as His/Her Majesty’s Government, the Executive’s apply the laws made by Parliament and they run the government and country on a day to day basis. The main role of the Judiciary is to hear and resolve matters of the law and to enforce the law. The Judiciary can also develop the law through their judgements.
b) The Separation of Powers ensures that no individual has all the powers of the legislature, executive and judiciary, a benefit of this is to prevent tyranny and preserve liberty. Another benefit is that the legislature, executive and judiciary all have different responsibilities in their own division, this limits one of the branches from performing the functions of another one allowing one of the branches to become supreme against the others and creates balance in the government.
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