Legal system and law-making process
Laypeople are people without any formal legal training. They can also be called lay magistrates, lay Justices or Justices of the Peace. Lay people are magistrates in the magistrates' court and juries in the crown court. Most lay people are appointed by the Lord Chancellor who chooses about 1500 people each year taken from the country's elector list.
Using laypeople makes law more accessible to everyday people as it helps reduce specialised language. Decisions are made by ordinary people from different backgrounds. As they are not qualified they do not usually make decisions on their own but sit on a bench that is a minimum of two up to a maximum of 7. They must be over the age of 18 and no older than 70. They must be registered as a parliament or local government elector. You are only disqualified from being a lay magistrate if you have been in imprisonment, detention or are in custody for life or detention for public protection. Other causes of being disqualified can be; Lack of capacity, people who are currently on bail or are going through criminal proceedings.
A lay magistrate must have six key qualities to enable them to be appointed, these ensure that the magistrate is of good mind and judgement.
You can be excused only if you are working full time as a member of the armed forces. You are required to sit if you are a doctor, nurse, judge, lawyer or police.
Courts will accept discretionary excusals if you have a good enough reason. If you suffer from, or have suffered from a mental disorder/mental health problem and because of that state of health:
- You are presently a resident in a hospital or other similar establishment.
- You frequently visit a medical practitioner for treatment
- You are legally responsible for someone under section 7 of the Mental Health Act 1983
- Or if a judge has decided that you are not capable of managing and administering your property or affairs because you have an illness.
Jayne and Jim if your cases are heard in the Crown Court the judge will explain the law and they may use a jury to determine the verdict based on the facts in relation to the law. They are also used when the defendant pleads not guilty.
Jayne your civil case will either be heard in the county court or the small claims court. If it is heard in the County Court, juries are only used in limited circumstances. Such as defamation, false imprisonment, malicious prosecution and fraud.
If it is heard in the county court you may also have a panel of lay people who will then decide if the defendant is guilty or not.
Lay Magistrates judge a defendant in either the Crown, high or coroners court when they plead not guilty they are sworn into hear the case and decide if they are guilty or not. They decide the facts of the case.
Magistrates must be of good character and have personal integrity, they should have common sense and the ability to weigh evidence and reach reasoned decisions. Magistrates must live or work in the area and need to have good knowledge and understanding of the local community. They need to be firm yet compassionate and be able to work as a member of a team. They are not required to have formal qualifications.
The difference between the use of lay people in magistrates and crown courts are that in the magistrates court the lay people do the sentencing but in the crown court this is left up to the judge. This means that magistrates need an element of legal training before undertaking their role, but this isn't true of juries. They deal with civil and criminal cases. Lay people are also used in tribunals as advisors.
Lay magistrates role within the criminal court
In criminal cases lay people decide if the defendant is guilty or not. They are only used in crown court where the defendant pleads not guilty. Juries are only used 1% of the time in criminal cases. Lay people also deal with bail applications, remand hearings and committal proceedings.
Lay magistrates role within the civil courts
In civil cases lay people are only used in limited circumstances and have a dual role. A magistrate's role within the civil court is made up of licensing, family matters and debt work. Specially qualified lay magistrates deal with cases within youth courts this includes most crimes except those exempt of serious disposition. They will attempt 10 to 17 year olds.
Roles of solicitors, barristers and judges in civil and criminal cases.
People have direct contact with solicitors unlike other legal professions. Barristers get instructions from solicitors and have very little or no contact with the public.
Solicitors undertake legal business for individual and corporate clients, while barristers advise on legal problems submitted through solicitors and present cases in higher courts. They both present cases in lower courts.
When people need legal advice, they contact a solicitor. Solicitors offer skilled advice on all sorts of legal matters - from buying a home to selling a company /business.
Solicitors represent their clients in court, mostly in the lower courts; but some have advocacy rights in higher courts.
Many solicitors are in private businesses. They work in multinational City firms with large numbers of staff, in high street offices as sole practitioners. Many solicitors have jobs in local government, law centres, the civil service, commerce and industry.
Solicitors deal with people from a wide cross-section of the society. Solicitors work in an office and wear a business suit to work.
Barristers fulfil two roles. When specialist knowledge is needed, they give opinions on complex matters of law. And when clients require representation in the higher courts, Crown Courts, Court of Appeal and House of Lords, barristers provide a specialist advocacy service. Barristers will wear a black gown and a wig when in court.
Solicitors have much more contact with the public, while barristers do not. Solicitors employ barristers to act on their behalf, and no contract exists between the barrister and those whom they are representing in court. While solicitors have a contract with their customers.
The main difference between a barrister and a solicitor is their day to day work.
A barrister is essentially an advocate speaking on behalf of his or her client, arguing the case and persuading a judge or jury to their way of thinking. The life of a barrister tends to be influenced by the demands of the courts e.g. the High Court, Crown Court, County Court and possibly the Magistrate's Court, with time split between working in chambers and appearing in court. Barrister works on their own account, but groups of them commonly share 'chambers' and collectively employ a barristers' clerk, but it is one of the strangeness's of English law that this agreement is binding in honour only, so that a barrister cannot sue for unpaid fees, although a solicitor who does not pay may be reported to the Law Society.
A barrister cannot be sued for negligence in the conduct of a case in court or matters which occur before a trial and which are essentially connected with the conduct or management of the case in court. Barristers are self-employed.
The work of a solicitor can be very varied, usually involving one-to-one discussions with clients though for in-house and large City commercial firms, teamwork - often in multidisciplinary groups - is the norm. Solicitors are usually employed by the firm or organisation for which they work. The office is their primary place of work, whether employed as a partner in a small high street practice or as an in-house lawyer with a multinational company.
Public people can go to a solicitor to ask for his/her advice. A variety of matters are bought to a solicitor to deal with, including conveyancing, most of a solicitors work is probate and lawsuit proceedings. Solicitors are the only method of gaining access to a barrister; however, professionals such as accountants may approach a supporter directly.
The relationship between a solicitor and client in contractual and such is subject to the ordinary law of contract. A solicitor can sue for their fees. If the solicitor is negligent the client may have an action against him for breach of duty for damages.
The solicitor must act in good faith in everything dealing with his client. A solicitor owes a duty of confidentiality to his client.
A solicitor is liable to disciplinary proceedings where his conduct falls short of a criminal offence before the Solicitors Disciplinary Tribunal. The tribunal members of the Supreme Court have the jurisdiction to strike his name from the name off from the roll or suspended him for misconduct.
Just like a barrister, a solicitor can be liable for contempt of court.
A barrister can be called upon to prosecute in one case and defend in the other. A barrister must be content with paperwork. Paperwork comes in the pre-trail stages of a case. S/he may be asked to give written advice on a legal matter.
Barristers are not allowed to form partnerships but can share chambers and a clerk who serves other barristers. Barristers can be fired or imprisoned for contempt of court and can be sued for negligence by their clients at any time.
- Barristers are specialist advocates trained to put arguments in court
- They are independent and objective
- Their specialist knowledge can make a substantial difference to the outcome of a case
- They can also draft documents and advise on agreements
Barristers have a duty to the court as well as to their clients.
In criminal cases, if prosecuting counsel is aware of facts which support the defendant's case or lessen the gravity of the offence, he must state them: it is his task to see that justice is done, and not necessarily to attempt at all costs to secure a conviction.
The court lawyer does not have direct contact with their lay clients, apart from conferences arranged and attended by the instructing solicitor, through whom all a barrister's work must come. He is not permitted to advertise.
A barrister is expected not to refuse a brief in any case, unless he has a financial interest in the matter or has already been instructed by the opposite party.
The basic role of judges is to maintain and support national law.
- They decide whether someone is guilty or innocence
- They weigh the merits of claims between individuals and the state.
- They make rulings on points of law, sum up cases, give judgments, and passing sentences.
- They need to ensure that defendants, witnesses and victims are treated fairly and that those accused of having committed a criminal offence receive a fair trial.
- Peoples rights are respected at all times and that only evidence which has been properly obtained should be admissible in court.
Judge's role in civil cases
Civil cases include hearings in court which the public can attend. Hearings in the judge's private room from which the public are excluded; and matters decided by the judge in private but on the basis of the papers alone, without any attendances by the parties or their legal representatives
A judge hearing a civil case
Before trying a civil case the judge will read the relevant case papers to become familiar with the details.
The majority of civil cases tried in court do not have a jury the only exceptions are; libel and slander trials. The judge will hear them by himself, to then decide by using the facts and applying them to the relevant law.
Judges also take an active role in managing civil cases when they have started to ensure they proceed as quickly and efficiently as possible.
Judges help encourage parties to co-operate with each other during court to ensure they settle the case. They also encourage the parties to use an alternative disagreement resolution procedure if it is appropriate. They also make sure the case is making progress e.g. staying on track.
Occasionally, the parties will have agreed the relevant facts and it will not be necessary for the judge to hear any live evidence. The issues may concern the law to be applied or the terms of the judgment to be given. Written and live evidence will be given by the parties and their witnesses and the live witnesses may be cross-examined.
The judge ensures that all parties involved are given the opportunity to have their case presented and considered as fully and fairly as possible. During the case the judge will ask questions on any point he feels requires clarification, or which he feels is relevant and will help with his decision but has not been covered. The judge also decides on all matters of procedure which may arise during a hearing.
Once the judge has heard the evidence from all parties involved and any submissions they wish to put forward, the judge will deliver his judgment. This can be immediately, or if the case is complex, his judgment may be given at a later date.
Civil judges do have the power to punish parties if they are in contempt of court but, generally, civil cases do not involve the imposition of any punishment on anyone. The claimant - the person who has brought the case to court - will have asked for some form of relief against the defendant.
This is likely to be damages to compensate them for the losses they say have suffered as a result of the defendant's actions. Then, if the judge decides that the claimant is entitled to damages, he will have to go on to decide the amount.
Or the claimant may have asked for an injunction or a declaration - an order specifying the precise boundary between two properties about which the parties had never been able to agree. The task of the judge to is to decide on what is the appropriate remedy, if any, and on the precise terms of it.
When the judgment in the case has been delivered and the result is known, the judge must deal with the cost of the case - like the fees of lawyers, the court fees paid out by the parties, the fees of expert witnesses, the allowances that may be allowed to litigants who have acted in person, and the earnings lost and travelling and other expenses incurred by the parties and their witnesses in getting to and from court and in preparing for the case.
The judge's decision on this part of the case will be highly crucial to the parties. He may decide that the unsuccessful party should pay only a proportion of the successful party's costs or that each party should bear their own costs.
Judge's role in a Crown Court criminal case
A Circuit Judge has control over a criminal trial and is responsible for all matters of law and making sure that all the rules of procedure are properly applied.
A judge hearing a criminal case
Before a criminal trial starts the judge will familiarise themselves with the details of the case by reading the relevant case papers. This will include the statement which sets out the charges on which the defendant is to be tried, witness statements, exhibits and documentation on applications to be made by any party concerning the acceptability of evidence in the trial.
The judge's role is to supervise the range and swearing in the jury, giving the jurors a direction about their special place in the trial in deciding the facts and warning them not to discuss the case with anyone else.
When the trial has started the judges role is to ensure that all parties involved are given the opportunity for their case to be offered and considered as fully and fairly as possible. The judge controls the way the case is conducted in accordance with relevant law and practice. The judge makes notes of the evidence and decides on legal issues to whether evidence is acceptable and valid.
When all evidence in the case has been heard the judge's summing up takes place. The judge sets out for the jury the law on each of the charges made and what the prosecution must prove to make the jury sure of the case. The judge goes back over his notes that s/he made during the course of the trial and reminds the jury of the key points in the case which highlights the strengths and weaknesses of each side's argument. The judge then gives directions about the duties of the jury before they retire to the jury deliberation room to consider the verdict.
If the jury finds the defendant guilty then the judge will decide on a suitable sentence. The sentence is influenced by different factors. Which are;
- The conditions of the case
- the impact that the crime has had on the victim
- The relevant law especially guideline cases from the Court of Appeal.
The judge takes into account the mitigation and any reports and references on the defendant. When the judge has considered all of these factors will the appropriate sentence or punishment be definite.
Roles and functions of lay people and lawyers.
Lay people are individuals without legal training whereas lawyers are skilled professionals. Lay people can be called jurors and magistrates. Lay people can be part of tribunals. Lay people Using lay people helps reduce technical language and makes the law accessible to ordinary people. Also means that decisions are made by ordinary people from a variety of backgrounds Helps promote the idea of a society free from state control. A Lawyer is an individual who goes to court everyday and stands before a judge defending the freedom of another individual. This is true in some cases; however, there are many different types of lawyers with a variety of job responsibilities and duties. No matter what type of lawyer one may be they ultimately have an extremely important role in the lives of others.
Responsibilities of a Lawyer?
Lawyers have many different responsibilities. A lawyer represents clients in court; intervene to resolve conflicts, business transactions and other important legal proceedings or agreements where the law will be talked over.
The lawyer will meet with the client before, during and after legal dealings to ensure that the client completely understands all aspects of their case. The lawyer is an individual who represents another in all matters where legal interpretation is advised and considered vital.
Specific Duties of Lawyers?
A lawyer has many duties significant to their profession. One of the most important duties that a lawyer must perform in their line of work is to maintain client contact. Lawyers always represent someone, an individual or entity. This means it is important that the lawyer reports all progress and important information to their client in order to keep them well up to date.
Another particular duty of lawyers is to give in-person representation at court hearings and other legal proceedings. Whether the lawyer is involved with criminal litigation or civil litigation, there is most likely going to be some form of legal proceeding that they must attend on behalf of their client. The lawyer will speak on behalf of the client and give advice to the client on how to continue.
Lawyers don't just appear in court and argue single-mindedly on behalf of their client. There is a mass of background work which lawyers must do in order to sufficiently prepare a case or pursue a legal matter. There are lots of legal papers that need to be drafted and even though lawyers assistants and legal secretaries know how to draft some of these documents, there are still many lawyers who choose to do so themselves.
Lawyers keep in contact with their clients as well as spending a lot of time talking on the phone, discussing terms of agreements, sending email and mail letters and faxing significant documents to and from involved parties. Lawyers do a lot of research. Which involves research on statutes, procedural rules, facts, relevant documentation and more. Lawyers spend a lot of time reviewing and compiling research to aid them in the representation of a client.
What Qualities Must An Individual Have In Order to Be An Effective Lawyer?
For an individual to be an effective Lawyer, he/she must have certain Qualities and attributes in order to do extremely well in this profession. One important feature which lawyers should possess is that of communication. A lawyer who can communicate well is one who is likely to succeed against opposing parties in court and impress and put their client at ease as well. A fluent lawyer is one who will see results.
Intelligence is another important quality a lawyer should have. For a lawyer to have a positive quality it will ensure that the person representing the client is one who is smart enough to know what to do, when to do it and how to go about getting the results which are necessary to win the case and/or abide by the client's wishes. A lawyer who uses their brain is more likely to see the best possible outcome from a case.
Good understanding skills are important if you are a lawyer. Statutes and procedural rules are hard to understand at times and those who have good comprehension skills may do well at being a lawyer as they will have to read the relevant documentation much less than those without good comprehension skills.
It is important that Lawyers have a good personality and are willing to work well with others. Persistent determination is also important to resolve matters. Persuasiveness is another important quality to have as the legal profession is based around lawyers persuading individuals to see their point of view, a lawyer must be persuasive in their speech and tactics. A lawyer who can get their point across and persuade individuals to acknowledge it is one who will see many victories.
Layers roles in society are more important as they are acting as a voice for others.
It is important that lawyers are able to communicate legal issues to laypeople who are involved in particular cases. As the decisions are made by those from different backgrounds.
In Jayne's case the use of lay people will reduce the strict interpreted language and makes the law accessible to ordinary people like her. A lawyer will represent Jayne in her case to help any conflicts and her with any legal proceedings or agreements that will be talk over. The lawyer will meet Jayne before the hearing in the court to make sure she understands what will happen.
D1 Task 5
The effectiveness of lay magistrate's ad the jury in the English criminal courts.
Using lay magistrates has been recognised to be effective as when trying a defendant by 12 people who have been randomly chosen helps to maintain a justice system that is fair and independent.
Lay Magistrates help to maintain the principle of the legal system. It is effective because of people's participation from ordinary people to see the management of justice.
Lay magistrates are unpaid volunteers who work part time - 26 half days per year this shows dedication.
Lay magistrates are trained before they sit in a court proceeding. These are the four sections of training:
- Managing yourself - you need to be able to manage yourself, this means you need to be able to focus on some of the basic aspects of self-management in relation to preparing for court, conduct in court and on going learning.
- Working as a member of a team - you need to be able to work as part of a team to help make decision making effective in the Magistrates' Court
- Making judicial decisions - you need to be able to make judicial decisions which means to focus on impartial and structured decision making
- Managing judicial decision making - you need to be able to make judicial decision making which appeals only for the chair of the bench and concentrates on working with the clerk, managing the court and ensuring effective, not biased decision making
Advantages of using Lay magistrates
- Local Knowledge - Lay Magistrates come from the local area and therefore have local knowledge and understanding within that area which will help them make reasonable decisions in the court. This helps reduce any unfairness against magistrates as they are being honourably upright to the law system.
- Lack of Bias - Having a bench of three Magistrates helps to avoid bias and gives a balanced view. 12 people listening to facts without legal knowledge.
- Gender Balance - Lay Magistrates come from a wider cross section of society than professional judges. In particular there is greater gender balance with 49% of Lay Magistrates being female.
- Saves Money - using Lay Magistrates is much more cost effective to gain justice than using juries they are only paid expenses saving the tax payer money. They are working for free, this saves the government money which can then be spent on other subjects such as hospitals military and the police force. A trial that is heard in the magistrate's court is cheaper and more efficient than a trail in a crown court because they use lay people. Working for free also shows their dedication to the job.
- Saves Time - Lay Magistrates act as a filter meaning only the most serious cases are heard in the Crown Court.
- They are more involved that judges
Disadvantages of using lay Magistrates
- Prosecution Bias - Conviction rates in the Magistrates' Court are much higher than the Crown Court. They are also to be regarded with suspicion. Therefore the accused party is most definitely going to choose a jury style proceeding.
- Too Middle Class - The middle classes are over represented on the bench. Far too few working class people have the time to become Lay Magistrates.
- Middle aged - middle minded
- Inconsistency - Sentences vary greatly between different Magistrates' Courts and even between different Lay Magistrates in the same court. There are also inconsistencies in the granting of bail. They are more likely to declare some body guilty.
- Over Reliance on the Clerk - Lay Magistrates have little legal knowledge and rely too heavily on the Clerk of the Court.
- There is also a lack of consistency between benches as magistrates are only chosen from those that come forward.
- Lay magistrates serve for a long time and so will get used to the same cases. They become known with what excuses people use and can see through them. This could also be seen as an advantage as well. They may also get to know the local criminals as they see them come up before their bench time and time again. This would make it difficult for them to judge them without being opinionated by their previous convictions. If you happen to see the same guy up for the same sort of cases, it would difficult for you to think that he could be innocent if you have found him guilty and he'd pleaded guilty every time before.
Effectiveness of the jury in the English Criminal courts.
The advantages of juries within the English criminal system
The English legal system has chosen to use juries in their judiciary system for over 1000 years as it creates lots of benefits.
Public participation - is one of the main principals for having a jury in the English legal system. A jury lets ordinary people to partake in the administration of justice which means the verdict is seen as a representation of societies view rather than the view of just one member of the judiciary system. Jury service provides ordinary people with a lesson in citizenship and public contribution. So therefore having a jury present in some trails is seen as a fair system.
The defendant and prosecution will always strive for justice therefore they may believe that the selective judiciary system made up of qualified people from roughly the same back ground may not be able to provide them with this, this is why public participation is needed as it ensures that justice is not only done but it is seen to be done.
Juries provide definitely, as they only have to deliver a guilty or not guilty verdict. This leaves no room for confusion and can't be misinterpreted which means the decision is not open for debate. This is very important as it ensures there can be no grounds for appeal on the jury's verdict unless it was made for the wrong reasons and this is very hard to find out as the juries decision is made in secret.
The case was obviously quashed as the court fell able to inquire into the event as they had taken place out side of the court. Obviously this is only one example of a rare case and the probability of a challenge to the jury's verdict is very small.
Jurors are able to judge on the sense of right and wrong which is reinforced by the fact that they do not have to explain through reasoning for reaching a certain verdict. This means they are given protection from billing and oppression some lines exercised by the prosecution, therefore enabling them to make a fair decision based on their beliefs.
Juries have the final right to decide a verdict also protects them in certain ways against domination or bulling.
Jurors come from a wider cross section of society than lay magistrates whichenables them to give the views of society as a whole. This also ensures that the jury are able to bring knowledge and experience of different backgrounds as they are thought to have different Life experiences to the usual stereotypical member of the judicial system, who are believed to be white males from a middle class background, who attended private schooling. It could also be argued that the jury could sympathize with the both parties is the case as the jury would have local knowledge and understanding of their areas problems.
Twelve views are better than one 12 people from the public would enable the defendant to see the decision reasonable as it is made by 12 people rather than just one person.
Independence of a jury it is important as it enables a judgment to be fair to the people involved this creates public confidence.
Most juries should be impartial, as they are not usually connected to other cases. As the jury is selected from a cross section of society, this ensures that extreme views will cancel each other out. This is seen to be fairer as it provides a balance in opinions rather than a verdict than is made by one person who could have extreme views, therefore giving an unbalanced opinion which is clearly unfair.
Disadvantages of juries within the English, legal system
Time and expense - cases that are heard by a juror is lengthier and more expensive. It must be taken into consideration that a jury trial is more expensive than that of a trial in the magistrate's court.
A Crown Court costs the taxpayer £7400 per day, whereas magistrates cost £1000. Juries spend a lot of time waiting around to be summoned into the court room, this time would not be wasted if cases were heard by qualified judges. Juries need the law explained to them, to be able to make reasonable judgement, this takes up further time which would be needed if the case was dealt with by a qualified person within the judiciary.
Lack Of competence
This is a disadvantage in juries. Jurors are chosen; from such a wide section of society they are not competent to perform the task. Since changes made in 1972 a wider contingent of people were made eligible for jury service, this meant that many jurors summoned were not intelligent or educated enough to perform the task of jury service properly. Denning suggests that jurors should be selected in much the same way, as magistrates are 'The Roskill Committee supports Denning's Theory and explained that trial by random jury was not a satisfactory way of achieving justice. This basically means that it is unfair to randomly select a jury, as many people may not be intelligent enough to handle the case competently, therefore restricting their ability to make an informed decision. It must also be noted that serving on a jury requires no educational qualification, language abilities or comprehension requirements making it is possible for someone with no concept of what is going on to sit on a jury and hear a case. '
Juries are more likely to acquit
Juries were twice as likely to acquit, people could say this was because their inability to perform the role or because they sympathise with the defendant. This is obviously a disadvantage as it shows the juries decision to be unfair and incompetent, therefore causing an unfair verdict to be delivered. This therefore undermines the whole system entirely.
An important point that must be considered is the fact that juries are just ordinary members of the public. Therefore they may be for or against a certain group based purely on a preconception, for example they may favour attractive members of the opposite sex or be prejudiced towards a member of the police department. It has been found this is a particular problem in libel cases, as often the jury decides to award money to famous people as they often have a preconceived notion which is unfair towards newspapers.
There are also problems with racist juries. A jury member had passed a note to the judge during his trial explaining that they believed a member of the jury to be racist, the judge had not dealt with this in the correct manner. This therefore enabled Sander to go to the European court of appeal. Racist juries are a huge disadvantage to the jury system, as they will never deliver a fair verdict. It also must be considered that it is very hard to prove whether a jury is racist; because all jury discussion and decisions take place in secret.
Finally a jury can also be influenced by local bias, for example they may be more likely to deliver a guilty verdict to a person who is believed to have committed a car theft, if car theft is a frequent occurrence in their local area. Bias is also a huge disadvantage of a jury system, as bias can affect the outcome of a verdict and prevents a competent decision being reached. It also must be considered that a juror could be swayed by-'good advocacy skills and not concentrate on the fundamental facts of a case.
Jury nobbling has lead to many suspensions of juries, the most famous of these was the suspension of the jury which was sitting on a terrorist offence in Ireland. Jury nobbling is an obvious threat to the reliability of a verdict. Yet it must be remembered that nobbling the jury is a very hard task because the judge will only accept a majority verdict of 10-2orl 1-11 meaning that the jury must have at least three corrupt jurors in any one case. The 1994 criminal justice and public order act gave more protection to jury members by making it an offence to intimidate or threaten to harm a member of the jury physically or financially. So although Jury nobbling is a huge disadvantage to the jury system, it does not pose that much of a threat, yet it is impossible to prevent its occurrence.
Lack of reason
Many juries will never completely understand court procedures, as most of them will not posses legal qualifications. The fact must be considered that the jury only have to return to the court and state their verdict; they do not have to explain their reasoning for their decision, enabling it to be a possibility that they had lack of reasoning when coming to a verdict. An example of this is that it could be the case that they just decided their verdict based upon the party they favoured. This causes jury to make an unfair decision, which could have been prevented if a judge had tried the case. Also it must be considered that when a judge sits alone, he or she must makes a judgement and then explain their reasoning for coming to this judgement, therefore should this not be the case for a jury.
No counselling offered to members of the jury
In cases that involve serious crimes of violence, for example rape, murder or child abuse, members of the jury may have to hear and observe disturbing evidence, which may leave them becoming deeply distressed. They may have to observe closely graphic photograph of tape evidence. By the end of the case jury members may be dealing with stress caused by the case. The courts offer no counselling and it is only given in extreme cases when the jury member requests it. This means that the court expects people to go back to their ordinary lives and forget about what they have seen or heard. This is obviously a great disadvantage as it is a potential danger to other jurors and themselves and is a very unfair burden thrust upon the jurors by the courts.
In conclusion there are many disadvantages to the jury system but considering everything it is a fairway of delivering a verdict which represents views of society. Juries show that freedom lives' and would say that juries are essential when administering justice.
The English Legal system has a policy of compulsory jury service; this is frequently very unpopular with members of the public, as no one can refuse to do this duty. This could create a situation, in which jurors become resentful, which may lead them to make unsatisfactory and uninformed decision. This could apply to jurors who want to leave jury service as quick a possible, it could be argued that they may go along with the majority verdict even if it is contrary to their own beliefs, just to speed the decision process. This is a great disadvantages, as it does not enable a fair and accurate verdict, therefore underlies the principles of the jury system.
A Precedent is a ruling made in a court which then effects future cases involving similar issues.
Precedents are used and applied in court where past decisions of judges are followed in future cases when the acts of the case are similar. Once a judge has laid down a legal principle, this same legal principle must be used in future legal cases with similar facts. This is known as case law or common law. Judicial precedent is based on: The judges' judgement, Hierarchy of courts, and a good system of law reporting Judges.
How are precedents used and applied in court?
Judicial precedent: A judgment of a court of law cited as an authority for deciding a comparable set of facts; a case which serves as authority for the legal principle incorporated in its judgment. The common law has developed by expanding down from precedent to precedent.
When giving judgment the judge will set out the evidence of the case, they state the law appropriate to the facts and then provide his or her decision. It is the ratio decidendi which is the legal way of thinking or ground for the judicial decision which is binding on later courts under the system of judicial precedent.
Every examination made by the judge on a legal issue suggested by the case before him or her but not arising in such a manner as requiring a decision is known as obiter dictum. There can be several reasons for a result provided by the judge in any given judgment and you must not suppose that a reason can be considered as 'obiter' because some other 'ratio' has been provided.
A decision from a superior court is entirely obliged on following inferior courts. But certain superior courts consider themselves as bound by their own decisions whilst others do not.
Decisions of the House of Lords tie all other courts but the House does not consider itself as strictly bound by its earlier decisions. The House elected to overrule its earlier decision on the issue of a local authority's liability in negligence to future purchasers of property.
The Court of Appeal, Civil Division, holds itself bound by its previous decisions but has disregarded its own previous decision in some cases this is because two Court of Appeal decisions conflicted and if the decision although not expressly overruled conflicts with a later decision of the House of Lords; and if the earlier decision was given through want of care but cannot ignore a decision of the House of Lords on the same basis.
Divisional courts of the High Court have chosen the rule laid down in previous cases. Judges sitting at first event are not certain to follow the decisions of other High Court judges although they tend to do so for the sake of assurance.
Judicial precedent is an important source of English law as an original precedent is one which creates and applies a new rule. Later decisions that take place in the higher courts can have different effects upon precedents. Such as:
- Reversed: This means an appeal in the same case the conclusion is reversed, the original decision will not have any effect.
- Overruled: this means a later case in a higher court decides that the first case was wrongly decided
- A refusal to follow: this means a court is not obliged by the verdict; they cannot overrule it but does not wish to follow it so they refuse to follow the earlier decision.
- Distinguished: this means an earlier case is discarded as authority, which can be because the material facts vary or because the statement of law in the prior case is too thin to be properly applied to the new set of facts
- Explained: This means a judge can look to interpret a previous decision before applying it or distinguishing it. The effect of the previous situation is wide-ranging in the circumstances of the present situation.
Doctrine of Stare Decisis
The English system of precedent is based on the Latin maxim: "Stare Decisis et Non Queita Movere", which means stand by what has been decided and do not disturb the established. By following precedents, which are the previous decisions of judges, fairness and certainty will be provided.
Precedents can only function if the legal justification for past decisions is known. At the end of a civil case there will be a judgement in which the judge will give his/her decision but the legal reasoning which lies behind it.
This is the legal reason or principal which lies behind the decision and it is this ratio which will provide the precedent for judges to follow in future cases. The remainder of the judgement is known as the:
Means "Other things said by the way."
This does not form part of the way of thinking and are not part of the precedent. A judge will often speculate on what his decision would have been if the facts had been different.
Different types of precedent
If a stage of law has never been determined before, then whatever the judge decides will then form a new precedent for later cases to follow. "Donaghue v Stephenson (1932) snail in a bottle case - negligence." As there were no past cases for the judge to build his decision on, the judge will look at cases that are closest in principal and may decide to use comparable reasoning. This is also known as arriving at a judgement with 'reasoning by analogy'.
A precedent from a previous situation, which will be followed even if the judge in the later case does not agree with the legal interpretation. A binding precedent is simply created when the facts of the second case are adequately alike to the original case and the decisions was made by a court which is superior, in some cases the same level as, the court hearing the later case.
These are not binding on the court; however a judge may consider such a precedent and decide that it is the correct principal to follow. The judge is persuaded that he should follow it. They can come from 1 Court which is lower in the hierarchy e.g. R v R (1991 In this case the law lords followed the same way of thinking as the Court of Appeal in deciding that a man could be guilty of raping his wife.
Record £24,000 Fine for Kentucky Fried Chicken
A Kentucky Fried Chicken restaurant at the Hernston Business Park in Bridgend was fined £24,000 plus costs of £2,000 after pleading guilty at Bridgend Magistrates Court to multiple food hygiene offences - this was the largest penalty handed out to date for such offences in Bridgend County Borough.
Bridgend County Borough Council brought two prosecutions against KFC (GB) Ltd resulting from inspections completed by the Public Protection team on 25 September 2005 and 22 May 2006.
Throughout the first inspection, officers revealed a very poor state of cleanliness which included dirty floors and equipment soiled by food splashes and grease. The boiler was switched off and there was no hot water to the wash hand basins or equipment sink. A numeral of poor food hygiene practices were witnessed which posed a risk of cross contamination, which can lead to food poisoning. These included staff wearing dirty aprons and not washing their hands after handling raw chicken.
The council gave Hygiene Improvement Notices directing the company to put their problems and a prosecution was brought under the Food Safety (General Food Hygiene) Regulations 1995. More visits were carried out to ensure compliance with the notices and further advice was given to the business.
A complaint from a member of the public, another inspection was made on 22 May 2006. Once again, officers found a very poor state of cleanliness with accumulations of food debris and grease on the floor, ingrained food debris around the children's tables and highchair and dirty and greasy equipment. A number of structural issues were also found including damaged floor tiles, missing ceiling tiles and paintwork that were in poor condition. There were insufficient provisions for hand washing - one of the basins was blocked with cleaning chemical bottles - and the soap dispenser was empty.
More poor food hygiene practices were witnessed during the second inspection. These included the storing of packaging on the floor, staff not wearing appropriate protective clothing when handling raw chicken and staff wearing very dirty uniforms. Hygiene Improvement Notices were again served and a prosecution was brought under the Food Hygiene (Wales) Regulations 2006.
Both cases were heard at Bridgend Magistrates Court on Monday 27 November 2006. KFC (GB) Ltd pleaded guilty to a total of 12 charges, six relating to each date. The total fines amounted to £24,000 with full costs of £2,000 awarded to the council.
The premises were again inspected recently and officers found an overall improvement in cleanliness and practices, although a number of contraventions were recognised. The level of management at the restaurant has since gotten better and trading hours have been decreased to let better cleaning to be undertaken. KFC (GB) Ltd has also approached the council to discuss a joint visit at the restaurant to deal with any ongoing issues and allow improvements to progress.
"This case demonstrates the importance for food premises to maintain high levels of hygiene. Bridgend County Borough Council works with local businesses to ensure high standards in the interests of public health, but we will continue to take strict enforcement action against any premises that fail to meet their responsibilities."
I think they would have used the original precedent in Jayne's case as they have already experienced a case with a snail being found in a product.
An Act of Parliament / Statute is a document that sets out legal rules and has usually been passed by both Houses of Parliament e.g. (House of commons and house of lords) in the form of a Bill and is examined, discussed and agreed to by the Crown. When everyone is happy with the bill it is represented to the reigning monarch for approval. When royal assent has been given the bill becomes an act of parliament. The bill is a suggestion for a new law to change an existing one this is presented in Parliament.
Bills are introduced by the government, private individuals, organizations, Individual MPS and lords.
There are three different types of Bill: Public, Private and Hybrid Bills. There is also another type of Public Bill called Private Members' Bills.
The bill will either start in the House of Lords or the House of Commons it must be approved by both.
The differences between a private members bill and a government bill are as follows;
Private Bills normally deal with individual people or places, whereas Public Bills apply to the whole nation, they can be controversial dealing with problems such as taxes, or Gun Control or National Health Insurance.
Private members Bill
MPS and Lords who aren't government ministers introduce Private Members' Bills which are Public Bills. Their purpose like other bills is to change the law as it requests by the general residents in the region. Most Private Members bills are introduced in the House of Lords or the House of Commons. It doesn't always go through the bill stages as there is less time.
To introduce a Private Bill a Member needs to present a short title and a long title which explains briefly what it does. Private Members' Bills are never published in full so whole texts aren't needed.
Presenting Private Members' Bills can take place in the House of Commons, the Ballot or the Ten Minute Rule and Presentation.
Ballot Bills are most likely to become law, as they are of higher importance for the restricted amount of debating time available. The names of Members applying for a Bill are drawn in a ballot held at the start of the parliamentary year. Quite often the first seven ballot Bills get a day's debate.
Ten Minute Rule Bills are usually an opportunity for political representatives to speak their opinion on a subject or aspect of existing legislation, instead of a serious attempt to get a Bill passed. Members make speeches that last no more than ten minutes to outline their position, which another Member may oppose in a similar small announcement. The ten minute rule is a good opportunity to raise the matter of an issue and to see whether it has support among other Members.
Any political representative can introduce a Bill in this way as long as he or she has previously given notice of their intention to do so. They formally introduce the title of the Bill but do not speak in support of it which means they infrequently become law.
Private Members' Bills that are introduced in the Lords go through the same stages as any other Public Bill. When they are completed, and if an MP supports the Bill, it keeps going in the Commons. Lords Private Members' Bills are treated like other Private Members' Bills, but do not have greater importance over Bills which are introduced in the Commons. Which means they are unlikely to have much, if any, time devoted to them.
Members of the public who want to speak their cause of opposition to Private Members' Bills can do so by writing to the government department who is responsible for the bill, write to their MP or lord or go to the voting corridor in parliament where they can vote against bills and proposals.
The government Bill
These Bills are of overall effect and connect to public policy. Bills will start in either House. The title of a Bill which starts in the HOL is followed by the initials [HL].
The most important Bills are introduced by Ministers and are outlined in the Queen's Speech which sets out the Government's intentions for each parliamentary meeting. Public Bills are presented by a backbench member and is called Private Members' Bills. Different in the Commons, peers have an unobstructed right to introduce Private Members' Bills and time is usually found for them. As time is limited in the Commons, limited number of these Bills last unless they order general support. They are often seen as a helpful means of testing opinion.
The Bill process necessary for the bill to become an Act of Parliament is as follows:
It starts with the first reading which is a formality and does not include a debate. It can take place at any time during parliament. Once it has been formally introduced the Bill is printed out. Before the second reading a number of speakers that are interested will put their names forward to be included in the debate.
The next stage is the second reading this gives the members of one of the commons to have a debate over the main principles and to identify the purpose of the Bill. This also gives them a chance to talk about any concerns they have and if they feel it needs to be amended. The second reading is likely to take place less than 2 weeks from the first.
The spokesperson, Government minister or member of the House of Lords / House of Commons is responsible for opening the debate of the bill. All members can speak in the debate which shows who is interested in the bill and who is likely to amend the bill in different stages.
Once the second reading is over the bill will go to the committee stage. This is where a detailed examination, discussion and amendments of the bill take place. Any member of the HOL or HOC can participate. This isn't likely to start after 2 weeks of the second reading.
The day before the committee stage starts, improvements are published in an organised List - in which all the amendments are placed in order.
Amendments on related subjects to the bill and these are grouped together and a list is published on the day.
Every clause of the Bill has to be agreed to and votes on the amendments can take place. All improvements are discussed with no time limit.
Once the Bill has been changed it is then reprinted with all the agreed improvements.
At the end of committee stage, the Bill moves to the report stage for further examination.
Further changes take place at the Report stage in the Chamber; it gives all Members of the HOL or HOC the opportunity to reflect on all amendments of the Bill. The report stage usually takes place 2 weeks are the committee stage.
Once the report stage is over the bill is reprinted. The bill then moves to the third reading where HOL and HOC have their final chance to have a debate and make any additional changes.
A minimum of three sitting days usually pass between report stage and third reading.
Different to the Commons, changes can be made at the third reading, providing the issue has not been fully considered and voted on at an earlier stage.
The third reading is to clarify particular parts of the Bill and to allow the Government to make good any promises of changes to the Bill made at earlier stages.
After the third reading the Bill will get passed to the other house so they can start their first reading.
Once both houses have considered the amendments in the third readings it is returned to where it first started. So the Second house can consider any changes. Both houses must agree to the bill. If any of the houses disagrees with something in the bill it will be sent back to the other house. It will continue to go back and forth until both houses reach an agreement. Once both houses agree on the final bill it will be sent to get royal assent and become an act of Parliament. If the houses do not reach an agreement the bill will fail.
When Royal Assent has been given to a Bill, an announcement is then made in both Houses by the Lord Speaker in the Lords and the Speaker in the Commons.
At the end to a parliamentary year Black Rod interrupts the proceedings of the Commons and summons MPs to the Lords Chamber to hear the Lords Commissioners announce Royal Assent for every Bill.
The making of laws within the Bill can commence straight after a set period or only after a commencement order by a Government minister.
A commencement order is intended to bring into force the whole or part of an Act of Parliament at a date later than the date of the Royal Assent.
If there is no commencing order, the Act will come into force from midnight at the beginning of the day of the Royal Assent.
The rules of statutory interpretation are used by the courts to interpret the meaning of an Act. They are essential because the meanings of an Act can be unclear, and these "rules" are used to make a judge's task of reaching a clear understanding of an Act, much easier.
Laypeople are people without any formal legal training.re are three rules of statutory interpretation:
- The Literal rule
- The Golden rule
- The Mischief rule
The literal rule
The literal rule means courts will give words their simple, ordinary or literal meaning even if the result is not very sensible and does not appear to be the on which parliament intended when making the law.
An advantage of the literal rule is that it encourages more thorough drafting. A disadvantage of this rule is those who apply it often speak of the dictionary meaning of the words in question, but dictionaries give a numeral of other meanings.
An example of a case where the Literal rule was applied is London & North Eastern Railway v Berriman .
Mr Berriman was a railway worker who was hit and killed by a train while he was oiling points along the railway line and doing other maintenance work. His widow tried to claim compensation for his death because the railway company had not provided a lookout man. Regulations stated that a lookout should be provided for men working on the other railway line 'for the purposes of relaying or repairing it'. The court looked at the specific words in the regulation and was not prepared to look at any broad principle that the purpose of making a regulation that a lookout man should be provided was to protect those working on railway lines. The court ruled that the relevant regulation did not cover maintenance work and so Mrs Berriman's claim failed. Compensation was only payable if he had been relaying or repairing the line. The HL held oiling points was maintaining the line and not relaying or repairing.
The Golden Rule
The Golden rule is an alteration of the literal rule. It starts by using the literal rule but then avoids an explanation which would lead to a ridiculous result.
A benefit of this rule is that it produces common sense results. A drawback of this rule is that it is sometimes seen as being used incorrectly, meaning the word is altered too much.
An example of a case where the Golden rule was applied is Adler v George .
Adler gained access to a RAF station which is a forbidden place within the meaning of the Official Secrets Act 1920 and was actually within its boundaries.
It was an offence to obstruct a member of Her Majesty's Forces who was engaged in the security duty in the vicinity of a prohibited place. The defendants had obstructed HM Forces in a prohibited place such as an army base and argued that they were not liable. The court found them guilty as in the vicinity of meant near or in the place.
Adler argued that, as he was actually in the prohibited place, he could not be said to be "in the vicinity" of the prohibited place.
"Held: The defendant was guilty of the offence because "in the vicinity of" should be interpreted to mean on or near the prohibited place."
The mischief rule gives a judge more judgment than either the literal or the golden rule. The mischief rule requires the court to look to what the law was before the statute was passed in order to discover what gap or mischief the statute was intended to cover. The court is then required to understand the statute in such a way to ensure that the gap is covered.
The mischief rule lets the judges to take into account 3 points before applying the statute;
- What was the law before the statute was passed?
- What was the remedy that Parliament was trying to provide in passing the Act?
- What problem is the statute trying to remedy?
An example of where the Mischief rule has been applied is the Royal College of Nurses v DHSS.
Use of nurses to carry out abortions who used drugs and procedures was not thought of when the Act was passed in 1967. The Act required abortions to be carried out by a 'registered medical practitioner'. The Judge held that the Act was intended to provide safe abortions and nurses could do this. Lord Wilberforce and Lord Edmund Davies claimed that judges were not interpreting legislation but re-writing it.
Advantages and Disadvantages of law made by precedent and that made by statute/ an act of parliament.
Advantages and disadvantages of the doctrine of judicial precedent
- Certainty- It creates certainty in the law and means solicitors and barristers can advise their clients on the probable outcome of their case.
- Fairness - Similar cases are treated in a similar way, this is in the interests of justice and fairness. The concerns of justice also demand independence from the judge which is ensured by a binding precedent.
- Law Advance - this allows the law to grow alongside society.
- Offers opportunity to develop the law - The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances.
- Convenient and saves time - It saves time in court as many situations there is already a present resolution.
- Stops unfairness - The doctrine of precedent may serve the interests of justice. It would be unjust to reach a different decision in a following case.
- Greater certainty in law - this lets people order their affairs and come to agreements with confidence.
- Avoiding mistakes - a precedent can help a judge making a mistake that he may make if he went by his own judgement and without any guidance.
- Practical character - Case law is sensible in character. It is based on the experience of actual cases brought before the courts rather than on logic or theory.
- Can become uncaring - The convenience of following precedent should not be allowed to deteriorate into a mere mechanical exercise performed without any thought.
- Injustice - The overruling of an earlier case may cause unfairness to those who have ordered their affairs in confidence on it. Precedent may produce justice in the individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unfair rule.
- Too confusing- Certainty is lost where there are hundreds of cases that are reported which make it hard to find the relevant precedent to follow which causes confusion.
- Too many precedents - The reference of power in court should be kept within sensible boundaries because it can become expensive in terms of time and money.
- Inflexible - The system is too inflexible and does not allow the law to change and grow enough. A judge is not so flexible when there is a binding precedent. The Judges judgment is thereby restricted and the alleged flexibility of case law becomes inflexible.
- Limits development of the law - The doctrine of stare decisis is a limiting factor in the development of judge-made law. Practical law is founded on experience but the scope for further experience is restricted if the first case is binding.
- Slow Progress - The law is slow to develop under the system of judicial precedent. The law cannot be changed until a case on a specific point of law comes before one of the higher courts where they have a jurisdiction to hear appeals and review decisions of lower courts.
- Complexity - The law is rather complicated with thousands of superior distinctions.
Advantages and disadvantages of law made by statute/an act of parliament.
- it can be easily accessed by general public
- very long inspection process
- can be repealed if changes in society/technology require
- the laws are made by politicians; who possibly know what the public want best
- Laws of statutes are not made by judges but people who know the law best
- too firm; not as flexible as common law
- takes a long time to change; drawn out process
- can be dominated by political agenda of government
- issues relating to separation of powers
- little public knowledge of bills going through parliament
What is delegated legislation?
"Delegated or secondary legislation is usually concerned with detailed changes to the law made under powers from an existing Act of Parliament. Statutory instruments form the majority of delegated legislation but it can also include Rules or Codes of Practice." Accessed on the 01/02/2010 http://www.parliament.uk/about/how/laws/delegated.cfm
Delegated legislation allows the Government to make changes to a law without needing to push through a completely new Act of Parliament. Primary Legislation has provisions that allow for future delegated legislation to alter the law to differing degrees.
Statutory instruments is a type of delegated legislation they are drafted by the legal office of the appropriate government department
Advantages and disadvantages of delegated legislation
- Delegated legislation allows laws to be proposed which saves restricted time in Parliament. Parliament is free to talk over matters of the board principle and policy.
- It eases the workload of parliament; Delegated legislation is costly, burdensome. Authorities belong to experts as this is most suitable to meet the needs of the community.
- It allows quick change, delegated legislation is adaptable to deal with changing situations
- Some MPs lack thorough or specialized knowledge. Delegated legislation lets those with professional knowledge to prepare laws which relate to specialist matters.
- Delegated legislation provides immediate response to new developments.
- Delegated legislation enables small changes to statutes, such as differing in sentences.
- Judicial review may be required, by parties with locus who are People adequately affected by the legislation, so time is not wasted by Parliament considering them all.
- Removal or alteration is easy.
- Delegated Legislation suggests that Parliament has not enough time to examine it. This means Parliament is not reviewing legislation correctly maybe because they spend more time on primary legislation.
- Sub-delegation of powers a further problem.
- Complication - it is not possible for anyone to keep well informed of all delegated legislation.
- Lack of exposure, delegated legislation is not known about by the public and frequently lawyers. So people unknowingly break the law.
- It is unfair as most regulations are made by civil servant or other unelected people, except for local authority bylaws made by elected councillors
Delegated legislation may be viewed as a way of removing contentious matters because they are considered as matters of detail.
Judges role in the creation of precedent.
Not everything in a court case sets a precedent. The contents of a case report can be divided into two categories:
- Ratio Decidendi
- Obiter dictum
Why do judges use ratio decidendi?
Ratio decidendiof a case is not the definite decision, like 'guilty' or 'the defendant is liable to pay compensation'. The precedent is set by the rule of law used by the judge or judges in deciding the legal problem raised by the facts of the case. Here is a real case where the ratio decidendi has been used.
A couple left their dog in their car while they went to a shop. The dog gets excited and jumps around. There was no sign that the dog was suffering from dehydration or over heating in the car. The dog through excitement pawed the rear glass window causing it to shatter and a broken bit of glass flew and landed in the eye of a passer by who has unfortunately had to have their eye removed. The argument was does the couple have to pay compensation for what happened to the mans eye? The judges said no. The judges said that people should take care and look out for dangers. They said if they had caused harm by doing something predictive that would cause harm. The judges said the event was a bizarre possibility. The couple did not pay compensation. The ratio decidendi stated that as the pedestrian was harmed through the dog smashing the window on the car it was in and this event was unpredictable so the defendants were not liable to pay compensation.
In a case judgment, any statement of law that is not an essential part of theratio decidendiis, more than necessary. These statements are referred to asobiter dictum. Obiter dictastatements do not form part of the binding precedent; they are persuasive authority and can be taken into careful thought in later cases, if the judge in the later case considers it appropriate to do so.
Here is an example of when judges have used obiter dictum in a case. In the same case as above a different judge said that if the couple knew their dog had an easy stimulated general inclination or went frantic in cars then they would be liable if it caused harm in an expected way the couple would have to pay compensation. The judge didn't rule the couple might have a dog with stimulated excitement. His observations were made 'by the way' so is referred to as Obiter dictum. In future cases if a dog is known by an owner to have an excitable nature a lawyer on the behalf of the injured person making a claim and refer back to the judge's obiter dictum.
Judges do not separate their judgments into the two clear defined divisions so it is up to the person reading the case to determine what theratiois.
The main methods through which judges alter or avoid precedents are:
Overruling is the procedure which means a court higher up in the hierarchy sets aside a legal ruling established in a previous case. Overruling is a step inside the stare decisis where precedents acquire larger right to command with the process of passing time.
As a result, courts are generally inclined to rule against longstanding authorities even if they no longer correctly reflect existing practices or morals. To maintain a high extent of certainty in the law, the main reason for judicial lack of enthusiasm overrules old decisions which would appear to be the fact that overruling functionsreviewing the past, with the effect that the principle of law being overruled is held never to have been law. It can lead to the deception of criminal liability on already lawful behaviour. Courts will not shrink from overruling authorities where they see them as no longer representing an appropriate statement of law.
Overruling should not be confused with 'reversing', which is the procedure by which a superior court in the hierarchy reverses the decision of a lower court in the same case.
Similar to overruling, which is almost never used, the main ploy for avoiding binding precedent is to show differences. Theratio decidendiof any case is based upon the material facts of the case. This opens up the possibility that a court may regard the facts of the case before it is significantly different from the facts of a cited precedent, so it will not find itself bound to follow that precedent. Judges use the device of distinguishing where, for some reason, they are unwilling to follow a particular precedent. Law reports provide many examples of strained distinctions where a court has quite evidently not wanted to follow an authority that it would otherwise have been bound by.
Judges use of interpretation
Judges are guided by the advocate whether counsel or solicitor as to what the particular interpretation should apply. In common law jurisdictions as you know strict literal interpretation is normal but in Europe the common law jurisdictions namely England and Wales and the republic of Ireland and Northern Ireland are now heavily laden with EU directives which are translated into domestic law. These seek to look to objectives of statute also known as teleological interpretation rather than look to rules of strict literal interpretation.
Most decisions are based on the rules of evidence so a judge does not have to be guided but only rarely in the above manner.
In conclusion Courts can have a particularly difficult time using the many and varied rules of statutory interpretation. To say that the rules are intended to ensure judges uphold the intention of the legislature is teleological in itself. An object is difficult to achieve and that is in practice not always reflected in a Courts decision.
Rules of interpretation
The literal rule states that the best way is to interpret the words literally.
displayed a flick knife in a shop conflicting to offensive weapons legislation
The use of the literal rule is illustrated by the case ofFisher v Bell(1960). The Restriction of Offensive Weapons Act 1959 made it an offence to offer for sale certain offensive weapons including flick knives. James Bell, a Bristol shopkeeper, displayed a weapon of this type in his shop window in the arcade at Broadmead. The Divisional Court held that he could not be convicted because, giving the words in the statute a tight literal meaning, Mr Bell had not offered the knives for sale. In the law of contract, placing something in a shop window is not technically an offer for sale; it is merely an invitation to treat. (An invitation to treat is an invitation to others to make offers, as by displaying goods in a shop window.) It is the customer who makes an offer to the shop when he offers money for an item on sale. The court upheld that under the literal meaning of offer, the shopkeeper had not made an offer to sell and so was not guilty of the offence. Parliament subsequently changed the law to make it clear that displaying a flick knife in a shop window was an offence.
The literal rule advantages and disadvantages.
The literal rule respects parliamentary position of superiority and the right of Parliament to make any laws it might wish no matter how ridiculous they may seem.
It also gives accuracy in drafting and ensures that anyone who can read English can determine the law, which promotes certainty and reduces litigation.
It is unsuccessful in recognising that the English language itself can cause uncertainty and has more than one meaning in different contexts. The use of this rule can sometimes lead to absurdities and gaps in law which can be exploited by an uncommendable party in lawsuit. Judges tend to over-stress the literal meaning of statutory provisions without giving due importance to their meaning in a wider context. Placing importance on the literal meaning of words supposes an un-available perfection in draftsman ship.
The golden rule
This is used if the literal rule gives a ludicrous result, which the parliament could not have planned, and then the judge can add a reasonable meaning in the quality of the statue.
River Wear Commissioners v Adamson HL
Lord Blackburn described the golden rule, stating:-
"It is to be borne in mind that the office of the judge is not to legislate, but to declare the expressed intention of the legislature even if that expressed intention appeared to the court to be injudicious; and I believe that it is not disputed that what Lord Wensleydale used to call the Golden rule is right viz. that we are to take the whole statute together and construe it all together, giving the words their ordinary significance unless when so applied they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification and to justify the court in putting on them some other significance which though less proper is one which the court thinks the words will bear."
Therefore, the golden rule requires that the literal rule should be applied to the statute in the first instance, but that if the literal rule results in an ambiguity or absurdity the court should try to interpret it in another manner so as to avoid the ambiguity or absurdity.
The mischief rule
The rule gives a judge more freedom to decide than either the literal or the golden rule. This rule needs the court to look to what the law was before the statute was passed in order to discover what gap or mischief the statute was intended to cover. The court then needs to interpret the statute in such a way to ensure that the gap is covered.
Lord Coke in Sir John Heydon's Case:
Statutes in the 16th century and for long after that time in addition to the enacting words contained lengthy preambles reciting the particular mischief or defect in the common law that the enacting words were designed to remedy. So, when it was laid down, the 'mischief' rule did not require the court to travel beyond the actual words of the statute itself to identify 'the mischief and defect for which the common law did not provide', for this would have been stated in the preamble part of document.
The judges have to look back at:
- What was common law before the Act?
- What was the mischief for which the existing law did not provide?
- What remedy Parliament decided upon?
- Judge should make such interpretation on the Act to stop the mischief and slight inventions and evasions for continuance of the mischief, according to the correct intent of the makers of the Act.
"For the sure and true interpretation of all statutes in general (bethey penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered.
What was the common law before the making of the Act?
What was the mischief and defect for which the common law did not provide.
What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and proprivatecommodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bonopublic"