• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Judicial Precedent

Extracts from this document...

Introduction

A judge must make decisions on the law laid out in a statute when there is no appropriate precedent. There are several approaches practiced by judges in this area. They range from the literal to the purposive. There are three 'rules' dictating opposing approaches for making a decision. The first is the 'literal rule' with which a judge takes an Act completely at its face value, declaring that the law should only be the literal meaning of the words contained in the Act, that 'if the words of an act are clear then you must follow them though they lead to a manifest absurdity' [Lord Esher, R v Judge of the City of London Court (1892)]. Although this is the rule most used since its development in the 19th century, it has often 'lead to a manifest absurdity'. For example, in Whitely v Chappell (1868), a man was found not guilty of impersonating 'any person entitled to vote' when he impersonated a dead person - who is not entitled to vote after death. Sometimes the literal approach can also result in are clearly unjust decisions. ...read more.

Middle

The practical application of this question is the consideration of what the Act in question was meant to achieve - what 'mischief' it was intended to stop - and consider that problem solved by the provisions of the Act. For example, in Smith v Hughes (1960), the mischief rule was used to interpret the Street Offences Act 1959, which forbade prostitutes soliciting on the street. The court ruled that the Act was passed in order to 'clean up the streets' and thus covered prostitutes who solicited form balconies, doorways and open windows, and who therefore had the same effect as those actually in the street. Thus a judge using the 'mischief rule' is interpreting what he feels that intention of Parliament was in the law by using a method of analysing the preceding legislation. Although this rule carries with it a risk of judicial law-making, the Law Commission in 1969 recommended that it became the sole method of interpreting legislation. The purposive approach goes even further than the mischief rule. The judges take it upon themselves to decide what Parliament meant in passing a law. ...read more.

Conclusion

Noscitur a sociius is a third language rule, which dictates that the context of a word both within the section and within the rest of the act must be considered. In Inland Revenue Commissioners v Frere (1965), the court decided that 'interest' referred to annual interest, due to the use of the word 'annual' later in the sentence. Certain presumptions are made by judges unless specifically contradicted by the statute. The judge assumes that common law will apply - in Leach v R (1912) the court assumed that the common law tradition that a wife could not be compelled to speak against her husband applied. This was not explicitly contradicted by the Criminal Evidence Act 1898. The judge also assumes that mens rea is required to be proven for all criminal cases. In Sweet v Parsely (1970) the court held that although the defendant was 'concerned with the management' of premises on which people had smoked cannabis, she had rented it out and was unaware of the illegal activities. The Act did not specify that mens rea need not be present. Two other assumptions judges make are that the Crown is not bound by any statute unless the statute expressly says so, and that legislation does not apply retrospectively. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Sources of Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Sources of Law essays

  1. Marked by a teacher

    AS LAW -JUDICIAL PRECEDENT

    4 star(s)

    Decisions of court in other countries ...especially where the same idea of common law are used, commonwealth countries e.g. Australia McLoughin v O'Brian (1983) The extract from Peake J in Mirehouse v Kennel 1883 means that our Common Law systems function is applying new precedents and laws for new circumstances

  2. Marked by a teacher

    Judicial Precedent

    3 star(s)

    Obiter dicta are not binding but they are persuasive. Persuasive precedents are precedents which may be followed by judges in the future should they choose. Should a judge choose to follow the obiter dicta of an earlier case, that obiter dicta then becomes the ratio decidendi of the later case.

  1. Judicial Precedent

    This is the easiest way to avoid an awkward precedent, as no case is the same as another. Where the earlier decision was made in a lower court, the judges can overrule that earlier decision if they disagree with the lower court.

  2. AS LAW - Judicial Precedent

    They can come from 1) Courts lower in the hierarchy e.g. R v R (1991) In this case the law lords followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife. 2) Privy Council decisions.

  1. Torts project - Payment of Compensation in Hit and Run Motor Accident.

    Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to

  2. Legislations and regulations in sport

    Disability Discrimination Act Part II - Employment Provisions The employment provisions apply to employers with 15 or more employees. The provisions, including those that require employers to consider making changes to the physical features of premises that they occupy, have been in force since December 1996.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work