The decisions made by the courts contain two types of branches: ‘ratio decidendi’ and ‘obiter dictum’. Ratio decidendi is based upon the fact that a judgement comes for applying the facts to law and thus the reason for the decision handed down, which is now binding on all inferior courts. Obiter dictums are statements made ‘by the way’, as such they are not binding. Nevertheless, it has been criticised that some judges have taken upon themselves in making law. Subsequently, questioning the separation of powers and perceiving judges as being unconstitutional. However, case law has shown that the higher courts indeed do make law and state the law.
Supreme Court, formally known as the House of Lords since 2009 is the highest court in the kingdom. The UK system has illustrated to show that the lower courts in the English legal system must follow the decisions of the Supreme Court and upholds the previous decisions of the House of Lords, which weren’t changed by the Supreme Court afterwards. Since the UK joining the European Union in 1973, all UK courts are bound by the decisions of the European Court of Justice for matters relating to European Union. Additionally, cases relating to human rights are influenced by the decision made by the European Court of Human Rights. However, they are not binding, but seen as persuasive authorities. This means that courts are not bound to follow the decision but their judgements are influential and should be taken into account is the decision making process. In addition to the European Court of Human Rights, persuasive authorities include the decisions made by the Privy Council and other jurisdictions such as the Commonwealth.
The main debate about the Supreme Court is the extent in which it...
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... the court should decide which one it will be subjected to. The second exception is where a previous decision of the Court of Appeal is in conflict with a later House of Lords decision, then the decision of the House of Lords must be enforced. The last exception is when an earlier decision given per incuriam, the Court of Appeal is not bound to follow the decision.
The Criminal Division also follows the same principles as the civil decision in terms of Young’s exceptions however, in addition it take into account the liberty of the subjects above precedent. A great number of new legislation on criminal justice has prompted the Court to create new precedents because they cannot apply old precedents if they are inconsistent with the new legislation, as parliament is sovereign. This example is consistent with our topic of courts creating precedent through practice.
The first model to the judicial decision making is the attitudinal model. This model of judicial decision making speculates that a judge’s behavior can be predicted mostly by his or her policy attitudes. It perceives judges of the court as motivated by policy goals and unconstrained by the law. Therefore, they decide cases according to moral preference rather than by the meaning or intention of legal texts. One review of the attitudinal model is the fact it relied heavily on unreliable evidence. Also, the attitudinal model of decision making does not always interpret from explaining justice’s decisions at the Supreme Court. Most legal practitioners such as lawyers and judges are likely to think that a very simple attitudinal model is missing
...09). Congress is supposed to enact laws, and the ability of judges to modify them with court decisions shows how their power may extend past what the system of checks and balances had intended. The last aspect that shows how powerful this branch may be is the judges. Originally, the lifetime appointment was supposed to relieve them of pressures when deciding cases, but this serves as a double edged sword. Judges without fear of retribution shows the amount of power that they posses. Overall, the development of judicial review, judges lifetime appointment, and ability to modify laws has led to an unbalance of power by the Judicial Branch among the three branches of government.
The individuals within our society have allowed the people to assess and measure the level of focus and implementation of our justice system to remedy the modern day crime which conflicts with the very existence of our social order. Enlightening us to the devices that will further, establish the order of our society, reside in our ability to observe the Individual’s rights for public order. The governance of our present day public and social order co-exist within the present day individual. Attempts to recognize the essentiality of equality in hopes of achieving an imaginable notion of structure and order, has led evidence-based practitioners such as Herbert Packer to approach crime and the criminal justice system through due process and crime control. A system where packers believed in which ones rights are not to be infringed, defrauded or abused was to be considered to be the ideal for procedural fairness.
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
all judiciary cases in which any fact is involved,) or may they act by representatives, freely and
The issue in this question is regarding the effect of Criminal Justice Act 2003 (CJA 2003) to previous English sentencing system regarding one of the aims of punishment i.e. retribution. It is a duty for courts to apply under section 142 (1) of CJA 2003. The section requires the courts to have regarded the aims in imposing sentence to offenders which has now plays a smaller role in serving punishment. And how profound this changes has been.
Council V Greater London Council (1982), Searose Ltd V Seatrain (UK). Ltd. in the year 1981. There are certain elements that a Judicial Precedent is dependent upon. they are that the material facts of the case must be the same. principle must be a proposition of law, it must form part of the Ratio.
“You must not use a steam hammer to crack a nut if a nut cracker would do.”
INTRODUCTION: Parliament, the supreme law-making body, has unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus, the real role of a judge in any legal system continues to be a phenomenon questioned by many.
Judicial review seeks to enforce and uphold constitutional doctrines which govern the UK’s uncodified constitution by scrutinising administrative action. One constitutional function of judicial review is to enforce the rule of law. It can be argued, in defining the rule of law as “negative value...designed to minimised the harm to freedom and dignity which the law may cause in its pursuit of its goals” Joseph Raz characterised judicial review. The principle of which states the executive is to be ruled by the law and subject to it.
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
Offenders are protected today by both the rule of law, ensuring that all offenders are treated equally, regardless of their age, sex or position in the community, and due process, which ensures that all offenders are given a fair trial with the opportunity to defend themselves and be heard (Williams, 2012). Beccaria’s emphasis on punishment being humane and non-violent has also carried through to modern day corrections. It is still the case today that offenders must only receive punishment that is proportionate to the crime they have committed and the punishment is determined by the law. The power of the judges and the magistrates to make decisions on punishment is guided by the legislation and they do not have the power to change the law (Ferrajoli,
The rule of law is thought to be one of the most fundamental doctrines of the constitution of the whole of the United Kingdom. The distinctive UK‘s constitution has influences previously on the judicial system too. Government and the legal systems in history have both been involved in rules and discretion and most of all the elimination of all discretionary power in which both of these are impossible and unwanted. The rule of law means in one sense, government by the law but obviously government is by the people as well as by the law. As soon as the governing people are added in, the government can’t then be by law on there own. Although the situation is not undoubtedly as the making of particular laws can be guided by open and relatively stable general laws that have been made. For the Rule of Law to have meaning in a democratic society, it has to mean that those who run it have comply with it for it to work; there must be no room for an “ends justifies the means”
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...