I will describe how precedents are applied in court and explain the rules of statutory interpretation. Firstly I will explain what a precedent is.
“In common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts” Example
Let's say that a Court establishes that it is illegal for people to smoke or be in possession of Tobacco. The Court has clearly explained, in its decision, why it is illegal according to law to smoke Tobacco. This is Case A.Now, someone is arrested for smoking Tobacco, and is tried in Court for breach of this new law. The Judges in this case, in order to explain why they are holding the person guilty, will refer to Case A, which put down the principles concerning this offence. Case A thus becomes a precedent.A precedent is usually a decision which is so important and so well explained that it clears the fog surrounding certain issues and, in so doing, guides Courts in the future, whenever any dispute arises concerning those issues. Example 2
A court decision that becomes a rule used to makefuture decisions. For example:The government passes a law saying that ugly shirts may no longer be worn, but doesn't specify what "ugly" means.You wear a lime green shirt and are arrested and found guilty. You appeal the decision. A court decides to write some rules regarding what qualifies as "ugly", so that the lower courts and law enforcement have a better idea what is legal. This decision, if applied broadly to the issue, becomes a judicial precedent thatother courts are meant to follow.It is different from a law because the same court or a higher could decide to change it, setting a new precedent.
How precedents are applied in court
If a Judge in a magistrate’s court makes up a new law, it can be discarded by a judge from a higher up court, but not vice versa. Also if a judge comes across a case where there may be a relevant previous decision made by either the court they are currently in or another one in the hierarchy they have four possible courses of actions: Follow- If the facts are similar in the case then the judge will chose to follow the precedent in place. Distinguish- If the facts are different then the judge can distinguish between the two cases and doesn't need to follow the original precedent. Overrule - If the original precedent was set in a lower court the judge may overrule it if they disagree with it. (As I stated earlier). Reverse- If the decision made by a lower court is appealed to a higher one the higher court may reverse the decision if they think the lower court has misinterpreted the law. Example of a precedent been applied in court.
“A husband had sexual intercourse with his wife without her consent. The married couple had separated, but the husband forced his way into his wife's home and forced her to have intercourse with him. Up until this time the common law rule was that a husband could not be criminally liable for raping his wife, as the woman's marriage vows constituted ongoing consent for sexual relations. The judge in R v R 1991 recognised the changed attitudes of society towards the status of women and created judicial precedent which outlined that all non-consensual intercourse was rape, regardless of marital status” Basically before this case it was not illegal for a husband to rape his wife because it was in their marriage vows. So the judge made it law that it is illegal for a husband to rape his wife. Thus preventing husbands in future cases, standing up and saying their not doing anything illegal. Statute law
Statute law is law that has been formally written down and recorded in an Act of Parliament. It has three parts, each if which has a role to play in making the law. Statute law differs from common law in the
It was created by Parliament, not by judges.
It is not bound by judicial precedent.
It can abolish and replace common law.
It is formally recorded in an Act of law.
Basically it’s a law made by parliament.
Rules of statutory interpretation.
The literal rule
“According to this rule the workings of the Act must be interpreted according to its literal and grammatical meaning.” For example in Fisher v Bell (1961)
The defendant, a shopkeeper, was prosecuted for displaying an illegal flick-knife for sale. Because it is an offense to offer such an item for sale (Restriction Of Offensive Weapons Act 1951) he was convicted. On appeal, however, it was held that “offer for sale” has a technical meaning in law, and a shop window display is an Invitation to Treat, not an Offer in contractual terms. The conviction was therefore quashed. The golden rule-
“The golden rule of statutory interpretation may be applied where an application of the literal rule would lead to an absurdity.” For Example in the case of Sigsworth (1935)
The court decided that a man who had murdered his mother was not entitled to inherit her estate even though the Administration of Estates Act 1925 said that where a will had not been made the person's estate should go to the next of kin. In this case the next of kin was the person's murderer and this would have been a ridiculous result. The mischief rule
The mischief rule of statutory interpretation is the oldest of the rules. The mischief rule was established in Heydon (1584) In this rule the courts try to discover what mischief the Act of Parliament was trying to remedy and then interpret the words accordingly. An example of this is Smith v Hughes (1960). A prostitute claimed that she was not soliciting for business even though she was attracting the attention of male passers-by, tapping on the window of a house. The Street Offences Act (1959) made it a criminal offence to solicit for business in a public place or a street. The prostitute argued that since she was not in a public place she was not guilty of an offence. The court found that the mischief that Act had been created to remedy was to try to stop people being solicited in the street and since she was attracting the attention of people in the street she was guilty of an offence. Advantages of these rules.
Closes loopholes and allows the law to develop and adapt to changing needs, Recognises Parliament as the supreme law maker. Disadvantages of these rules.
Judges can bring their own views, sense of morality and prejudices to a case. Can be difficult to interpret. .