AS LAW -JUDICIAL PRECEDENT
What is meant by judicial precedents and that judges "are not in liberty to reject them"? (a)Precedent is a law which has been created and is used to make decisions on cases. There are four types of precedent; judicial precedent is when past decisions made by judges are used to create law for future judges to follow. This part of the law is called case law and is used today. If a precedent is bound or binding then this means that a judge must use a previous case and are tied into it and cannot ignore the precedent. If a precedent is persuasive this means that a judge can ignore a past case but can choose to use the decision if they are persuaded that the principles are correct. Finally if you choose to follow a precedent then this is the process of using a past precedent in a future similar case. The Doctrine of Stare Decesis is when cases are treated alike. In order to achieve cases being treated alike, the system was in need of rules. These laws created the source of law known as precedent. In order to create a precedent a judge must make a judgement recorded for future judges. The judgement can be divided into two areas; Ratio Decidendi which is the reason behind the decision. This is part of the judgement that sets out the core of the decision and the reason behind it. It is part of a decision which a future case must be decided by. Secondly a case can be decided on by
Essay on the function of Judicial Review
PUBLIC LAW ASSIGNMENT 2 MICHAEL ROBERTS TUTOR GROUP L ANNELIESE BLACKWOOD 'The primary purpose of judicial review ... is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse.' Discuss with reference to the common law grounds of review. Judicial review is a process which is widely recognised to incorporate three functions or purposes. Firstly there is the function whereby citizens of the state who have been wronged and caused grievance by a public authority may be redressed. Secondly there is the 'normative and expository' role which encourages good governance through the promotion of fundamental principles. Finally, as the title statement propounds, there is the control of government element which helps to ensure that the power exerted by parliament and public authorities does not go unchecked, although judicial review is only concerned with the procedural correctness and legitimacy of such power and usually administrative or political checks are present to assess the merits of decisions made1. The most effective way to explore these purposes would be to go through the three common law grounds of judicial review as set out by Diplock LJ in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (illegality, irrationality and procedural impropriety) plus the effects of the Human Rights Act
"Within the present system of precedent in the English legal system, judges have very little discretion in their decision making."
Judicial Precedent Past year examination questions Zone A 2001 Question 2 "Within the present system of precedent in the English legal system, judges have very little discretion in their decision making." Judges have always been relied upon to interpret and apply the law. Therefore, their decisions should be fair and consistent so as the individuals seeking legal remedies would have more faith in the judicial system of the state. AS the UK has not a very complete and/or codified constitution, this doctrine is very much relied on as contrasted with other countries which seemed to have provisions for virtually any kind of offence, like France or the US where judges had only to refer to legislation. The doctrine of Judicial Precedent operates based on the principle of Stare Decisis, inter alia, to stand by past decisions to establish certainty, fairness and consistency as well as predictability. The rationale of this doctrine was made by Parke J in the early case of Mirehouse v Rennell [1833], where Parke J had stated that for the sake of uniformity, constancy and certainty, judges are not at liberty to reject or abandon precedents even if they feel that those rules were not as convenient or reasonable as they would have liked them to be. Till today, the reasons for its use are still valid in most cases, thus, the doctrine is regarded as a general rule in the UK. An
EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION AGAINST THE EXCESSES OF EXECUTIVE POWER
EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION AGAINST THE EXCESSES OF EXECUTIVE POWER Firstly, in order to provide an adequate evaluation, 'constitutional conventions' and the 'executive' must be defined. The 'executive' can de described as the section of the state that creates policy and is responsible for the operation of those policies (Barnett, 2002). Therefore in formal terms the sovereign is the head of the executive although in practice this position lies primarily with the Prime Minister, his cabinet, and other ministers, followed by those in the Police and the armed forces. Whilst most countries have a written constitution to define the rules, regulations and practices of an executive, Britain (along with Israel and New Zealand) has no such document. It thus follows that formal protections against the exercise of power which exist in those countries with a written constitution do not exist in Britain (Bradley and Ewing, 2003). Instead, the British constitution has three sources of rules: Acts of Parliament; judicial precedent; and non legal rules known as constitutional conventions, (Allen and Thompson, 2002). A.V. Dicey (1965) defines constitutional conventions as: "...understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the
Consider the Arguments For and Against Having a Written Constitution.
Jade Fallen Consider the Arguments For and Against Having a Written Constitution A constitution is a set of rules and principles which determines the relationship between those who govern and those who are governed. It dictates who is in authority and governs the relationships between those who are in authority. It determines the ways that these people exercise their powers and instructs how they must operate. As a source of principles and values in each individual society it maintains how free and open the society is. In the United Kingdom the constitution aims to perpetuate a representative democratic society, yet the sources and evidence for this can not be found in one, singular written document entitled "The Constitution". Instead it can be found in many sources and documents such as the Human Rights Act 1998 and the Bill of Rights, designed to protect citizens from an abuse of power, by those in authority. A written constitution would serve invaluable as a clear index for courts to ascertain where a constitutional breach has occurred. In the United States of America a case Marbury v. Madison [1858] highlighted a situation where the government at the time passed a legislation which was contrary to the constitution. In this case the legislation was over-ruled by the courts as this was a right addressed to them by the legislation. This case highlights a fundamental
Distinguish Criminal law from Civil law in the English Legal System. Outline the jurisdiction and composition of the courts of trial dealing with these two different types of cases.
Distinguish Criminal law from Civil law in the English Legal System. Outline the jurisdiction and composition of the courts of trial dealing with these two different types of cases. FIRST YEAR BA (HONS) ACCOUNTING AND FINANCE PATHWAYS LAW - ASSIGNMENT ONE Distinguish Criminal law from Civil law in the English Legal System. Outline the jurisdiction and composition of the courts of trial dealing with these two different types of cases. To what extent is it possible to appeal against decisions of the courts of trial? One of the main differences between criminal cases and civil cases is that they are held in different courts, this is because there is a significant distinction between a civil wrong and a criminal wrong. Crimes are considered to be a type of wrongdoing, however civil wrongs tend to have only and impact on the parties involved in the case. For example: a breach of contract. Where as criminal wrongs tend to have an impact on society itself. For example: a murder, theft or rape. Criminal law is dealt with in the Magistrates court and if very serious in the Crown court. It is said to be more difficult to win a case in the Magistrates court and Crown court than in a civil court as in a magistrates and crown court the evidence has to be proved beyond doubt and in a civil court evidence can be proved on a balance of probabilities. Criminal and civil cases are dealt
Explain and Comment on the role of the Criminal Cases Review Commission.
Explain and Comment on the role of the Criminal Cases Review Commission [20] June 2001 On 14 March 1991 the then Home Secretary announced the establishment of a Royal Commission on Criminal Justice to be chaired by Viscount Runciman of Doxford. The Royal Commission was charged with examining the effectiveness of the criminal justice system in securing the conviction of the guilty and the acquittal of the innocent. In making the announcement, the Home Secretary referred to such cases as the Birmingham Six and Judith Ward which had raised serious issues of concern to all, and the undermining of public confidence when the arrangements for criminal justice failed. It was felt that the Home Secretary was not sufficiently independent from the Government in order to review cases fairly. The Royal Commission's report was presented to Parliament in July 1993. It recommended the establishment of an independent body: * to consider suspected miscarriages of justice; * to arrange for their investigation where appropriate; and * to refer cases to the Court of Appeal where the investigation revealed matters that ought to be considered further by the courts. The Criminal Appeal Act 1995 was subsequently passed, enabling the establishment of the Criminal Cases Review Commission. The Criminal Cases Review Commission is an independent body (as opposed to what it was before
The worst injuries of war are emotional, not physical With reference to Disabled and Mental Cases to what extent do you agree?
"The worst injuries of war are emotional, not physical" With reference to Disabled and Mental Cases to what extent do you agree? Through phrases such as 'war and madness', Mental Cases and Disabled establish themselves as a rebellion against the old tradition of not questioning orders. Owen's poetry lashes out at the works of Jessie Pope and likewise propaganda, yet does so by not making a tirade about the nature of war, but by attempting to reason the consequences of it. Owen's poetry exhibits the nightmarish truth of emotional and physical injuries, which both shock and sicken the reader. It becomes even more shocking that out of these injuries the physical injuries are conveyed as the worst. Owen usually goes into great repulsive detail of the physical injuries such as 'treading blood from lungs' in Mental Cases. Contrasting this, the first stanza of Disabled plainly states the physical injuries of the persona in, 'legless, sewn short at elbow'. Henceforth, Disabled concentrates on the emotional injuries of war by omitting focus on the physical injuries whereas Mental Cases concentrates on the emotional injuries of war by centralising around the physical injuries. Therefore in both Mental Cases and Disabled it is not what is being said, but rather what is not being said that is most significant. Taking this in account, it is for this reason that Disabled establishes
Is the current law on the non-fatal offences against the person satisfactory?
Reform of the Non-Fatal Offences Against the Person It has been recommended by many leading academic lawyers, including Professor Spencer, that the current legislation on non-fatal offences against the person be reformed to modernise and clarify the law. The Offences Against the Person Act 1861, under which the more serious offences of ABH, GBH and GBH with intent are charged, is one of the "workhorses" of the criminal law, and is responsible for approximately 80,000 cases a year; this strengthens the justification for improving the existing legislation through reform in order to make it more comprehensible. One of the main criticisms of the Act is that it is "outmoded" (Jack Straw), and much of the language is arcane and ambiguous. For example, before the case of Wilson v Pringle, it was unclear whether there was a requirement for hostility in the commission of a battery. Terms such as "occasioning" and "maliciously" are outdated and are in need of modernisation in order to make the law more accessible, particularly to laypeople. An additional complexity arises from the fact that the law is contained in a mixture of statute and case law. The Act itself was a consolidating statute that has been described as a "ragbag of offences" due to the lack of logical structure (for example, ABH is defined under section 47, whereas GBH and GBH with intent are defined under sections
Arguing against the Death penalty.
Should Linda Carty be murdered? In 2002, Linda Carty was sentenced to death for the abduction and murder of Joana Rodriguez and the abduction of her four day old son. She has spent the past eight years on death row and throughout this time she still claims that she is innocent and was framed for the murder by the three men who actually killed her. Carty's execution could take place within the next couple of months but should she really be allowed to die for something she may not have done? Her case has brought controversy about whether the death penalty should still exist, so should it? In 2008, at least 2,390 people were killed by the death penalty. Some of those people could have been innocent. One example is Cameron Todd Willingham. In 2004, he was found guilty of burning his house down killing his three children. He was in fact innocent and in the days leading up to his case evidence was found which showed that the main evidence against him was not valid. This was ignored and in February 2004 he was killed. This is why the death penalty should not exist. We do not know exactly how many people have been given the death sentence when they are innocent because investigations do not usually go on after someone has died of capital punishment. Many people hold the view that those people facing the death penalty deserve to die and it is in the interest of the
