Briefly explain what is meant by the doctrine of judicial precedent.
Briefly explain what is meant by the doctrine of judicial precedent. (10 Marks) Judicial precedent refers to the sources of law where past decisions made by judges create law for future judges to follow. The English system of precedent is based on stare decisis, which translated from Latin loosely means "To stand by what has been decided". Stare decisis provides fairness and certainty in the law. It is divided into two parts: ratio decidendi and obiter dicta. Ratio decidendi are the principles of law that a judge has used to come to the decision at the end of a case, which is outlined in his speech. Ratio decidendi loosely means "Any rule expressed or implied by the judge as a necessary step in reaching his conclusion". Obiter dicta refers to "the other things said" by the judges and does not have to be followed by future judges. An example of this may include what the judge's decision would have been if the facts were different but does not have to followed as it is not binding precedent. It is often difficult to distinguish between ratio decidendi and obiter dicta as the judgement is usually in a continuous form, without any headings specifying what is ratio decidendi and what is not. Original precedent is a new legal rule established through a case decision. Binding precedent must be followed by the court and persuasive precedent does not have to be followed but can be
How satisfactory is the current law of murder?
How satisfactory is the current law of murder? During this essay the law of murder will need to be analysed and assessed in order to answer the question of it's current state. Whilst analysing the law of murder the Actus Reus and the Mens Rea along with any other problems will need to be dealt with. However we need to realise what the law of murder is and how it came into affect. Murder is a special law as it is a common law offence or rather a judge made law. What this means is that the law has been made over the years when cases arise. Due to this the law has been improvised and changed through the years due to the circumstances. Most pieces of legislation are acts of parliament that are produced by the parliament (House of Lords, House of Commons and the Queen), however judges have made this piece of legislation. The law of murder first can be claimed to be unsatisfactory or misleading due to the very fact that it is judge made law. This causes problems, as there are no guidelines to stick to, this led to many different outcomes occurring when sentencing and the law being called overcomplicated. There are so many cases that can be used when a murder offence arises this is due to the fact that judges made different decisions when sentencing and also the fact that the needs of the modern or present day needed to be met. The law of murder also carries a mandatory life
LAW REPORT on Macgregor(TM)s case
Title: LAW REPORT on Macgregor's case The Problem Peter booked a room for a week at MacGregor's Hotel. At the reception desk, where he made the booking, was a notice in the form laid down by the hotel Proprietors Act 1956 limiting the hotel's liability for loss of, or damage to guest's property. Peter asked the receptionist to look after his expensive Olympus camera but she refused saying that there was no room in the hotel safe. On the second night of his stay he invited his friend Beatrice to dinner in the hotel's restaurant. At dinner, without consulting Beatrice, Peter ordered Helford oysters for both of them. The oysters that were served to them in fact came from Whitstable and several of them were bad. Later in the meal Beatrice, already beginning to feel the effects of the oysters, left table in search of a lavatory. On her way there, suddenly overcome by dizziness, she tripped on a piece of torn stair carpet and fell heavily, breaking her arm. The meal was abandoned and Peter returned to his room hungry and bad tempered only to discover that his Olympus camera had been stolen. Being the defence advice MacGregor about his legal liabilities. Introduction This brief advises MacGregor as to the legal liabilities he faces as a consequence of the incidents as detailed above. It is advised that if this matter proceeds to court, which is likely, then Beatrice's
Explain, using examples, what is meant by delegated legislation. Describe how delegated legislation is controlled by both judges and Parliament.
(a) Explain, using examples, what is meant by delegated legislation. Describe how delegated legislation is controlled by both judges and Parliament. An enabling Act of parliament authorises somebody else or another organisation other than parliament to make laws. This form of legislating is called 'delegated legislation'. These powers that have been granted to certain bodies are exercised through statutory instruments, orders in Council, or bye-laws. Examples of delegated legislation by a local authority are the legislating of a Bye-law, made by Bristol city council concerning the fouling of pavements by dogs. This delegated legislation by the council stemmed from the Local government Act 1972. An example of an individual possessing delegated legislative powers was where the secretary of State created Motor cycles (protective Helmets) Regulations 1980, stemming from the parent act - Road Traffic act 1988. When parliament delegates legislation, the powers by the delegated authority are chosen by parliament when setting the enabling act. Before an individual, such as a government minister or another authority that possesses legislative powers, can make an act, they may have to undergo consultations with specified organisations or people. This allows them to point out any faults with the proposals. When ministers are delegated legislative power, parliament requires them to
Discuss the advantages and disadvantages of the mischief rule
Discuss the advantages and disadvantages of the mischief rule (10 marks) The mischief rule is where judges look for as mischief or gap in the law that Parliament designed an Act to remedy. The judges must interpret the act as to fill the gap and to remedy the mischief that Parliament had been aiming to remedy. The mischief rule originates from Heydon's case (1584), here the judges said that the court should consider four things when attempting to interpret a statutory provision: common law before the act; what was the defect or mischief; what does the act try to do; what is the real reason for the act. An advantage of the mischief rule is that application of this rule avoids absurd and unjust outcomes because the judges are looking to remedy the law. This follows Parliaments intent and avoids an absurd result. A case which uses the mischief rule and shows that by applying this rule judges can avoid absurd outcomes is Smith V Hughes (1960). Under the street offences act it was an offence to solicit in the street or a public place. So prostitutes solicited men from their balconies. Lord Parker looked at the mischief that the Act came to remedy, this was to clean up the streets, so the court found the defendants guilty as it didn't matter where the soliciting originated from. Another advantage of the mischief rule is that it promotes flexibility because the judges decide what
Alternative Dispute Resolution (ADR) is the name given to the process where parties in a dispute come to a compromise (or settle their dispute) without going to court.
Assignment 2.9 a)Alternative Dispute Resolution (ADR) is the name given to the process where parties in a dispute come to a compromise (or settle their dispute) without going to court. The main reason people use ADR is to save the expense of using the courts and solicitors. There are four types of ADR mediation, negotiation, conciliation and arbitration. Negotiation is the simplest form of ADR. Where two people have a dispute they can negotiate a solution themselves. The advantages to the parties involved are that it is completely private and it's fast and cheap. This is where parties to a dispute cannot settle it themselves they may instruct solicitors who will negotiate on their behalf. Even when negotiation fails at these early stages of a dispute and court proceedings start, solicitors will usually continue to negotiate on their client's behalf. This results in many cases being settled out of court. Mediation is where a neutral person (the mediator) helps the parties to reach a compromise. The job of the mediator is to consult with each party and see how much common ground there is between them. S/he should act as a facilitator, taking offers between the parties. The mediator doesn't offer an opinion. Mediation is most suitable where there is some chance that the parties will co-operate. such a in family disputes. Mediation is not legally binding on the
Three forms of Delegated Legislation and Control over it.
Three forms of delegated legislation Delegated legislation is law made by a person or body that parliament has delegated law-making power to. The three types of delegated legislation are orders in council, statutory instruments and by-laws. Orders in council are drafted by the Government and given formal approval by the Queen and the Privy Council. Orders in Council are generally used where it would be inappropriate for the order to be made by a Minister, for example where the matter is of constitutional significance (such as transferring powers and functions from one Minister to another, or bringing into force emergency powers to be exercised by Ministers e.g. emergency powers Act 1920). Statutory instruments are laws made by a government minister under the authority of a parent/enabling Act within the area of their ministerial responsibility. Statutory instruments are often used to update law, for example to increase in the amount of the national minimum wage under the National minimum wage Act 1998. Law that is made to comply with directives from the European Union is usually made in the form of a statutory instrument e.g. the Sale and Supply of Goods to Consumer Regulations 2002 were made in order to comply with the Sale of Consumer Goods Directive 1999. By-laws are made by local authorities and public corporations or companies. They must be confirmed by the relevant
Briefly explain the meaning of, and reasons for, strict liability as a criminal offence
Briefly explain the meaning of, and reasons for, strict liability as a criminal offence (8 marks) Strict liability are offences which require no mens rea. A person can be guilty of the offence by just having the actus reus. This can seem unfair as one may not have the intention to commit the offence but just by having the conduct and consequence is sufficient. For example, in relation to speeding, it is sufficient if one can prove that they are above the speed limit, the intention of speeding is not required. As seen in the case of Larsonneur, the defendant didn't have the intention to return back to the UK, hence there was no mens rea; however, the act of being present in the UK was sufficient for a strict liability offence. Some examples of strict liability offences can include parking and speeding offences, selling unfit food for human consumption, health and safety at work regulations, trade description offences etc. Even though these offences may seem small, they are common as nearly 50% of strict liability cases are taken to court. The type of court would depend on the fine limit; i.e. the Magistrates court would fine up to £5000, however, the Crown court do not have a maximum penalty, but in severe cases, it could lead to imprisonment. The case of Gommon (Hong Kong) LTD V Attorney General for Hong Kong was a House of Lords case. Lord Garmon sets out the
OCR Feb 10 Exam Paper Non-Fatal Offences Problem Case. The scenario states that Colin ran towards Sarah waving a knife. The actions by Colin caused Sarah to scream.
OCR Feb 10 Exam Paper - Non-Fatal Offences Sarah is walking home when Colin runs towards her waving a knife. Sarah Screams. Colin grabs Sarah's coat and then punches her in the face which breaks her nose and causes her to fall to the ground. Gregory, a passer-by, runs to help Sarah. Colin lunges wildly at Gregory with the knife and slashes Gregory's hand, causing severe bleeding. Colin takes aim and kicks Sarah in the stomach, causing serious internal injuries. [35] The scenario states that Colin ran towards Sarah "waving a knife". The actions by Colin caused Sarah to scream. The Actus Reus for assault is 'any act which causes the 'victim' (V) to fear immediate unlawful force'. The meaning of immediate was defined in the Smith (1983), a case where a man looked into the window of a women in her flat thus causing her to be terrified, as to meaning "imminent". The fact that Sarah screamed after seeing Colin running towards her illustrates she feared of action imminently. The Mens Rea for Assault is 'intention or recklessness to cause another to fear immediate unlawful force'. By referring to the definition set out in Smith, Richard waving the knife around, coupled with him heading towards Sarah, clearly shows that he was reckless as to make Sarah fear imminent unlawful force. Colin is therefore guilty of committing the Common Law offence of assault, and can be sentenced up to
Billy Joel Business Ethics and Law Case Study. In the above case scenario, the oral contract that was made between the seller and the buyer are not binding in the court of law in accordance to the contract law.
Business Ethics & Law Case Study Case Study Billy Joel decided he wanted to learn to play the violin for his next set of concerts. He called a violin salesman in New York and asked if he had any for sale. The salesman stated he had a Stradivarius and a Guarnerius (two famous brands of violins) and offered to sell them to Billy for $80,000 and $24,000, respectively. Billy agreed, over the phone, to purchase the violins from the salesman and told him he would be in town the next week to pick them up. Billy didn't show up for two months, and when he entered the store, the salesman wasn't there. His wife, Margaret, was there in the store, however, and she had full knowledge of the deal cut between her husband and Billy. (She'd heard her husband whining, complaining, and wailing about Billy not showing up for the last 2 months - and she was really sick of hearing about it.) Billy asked to see the violins, and Margaret showed him both of them. Billy stated he would agree to pay $65,000 for both of them, and Margaret, knowing that they were counterfeits and only worth $2,000 AND realizing that their house was about to go into foreclosure, agreed to the reduction in price and sold Billy the two violins for $65,000. She gave him a bill of sale that she wrote out on a note pad on the counter, which said, "Paid in full. Strativarus and Granruius violans. $65,000. Chk # 4301 Billy
