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Paper 1 - Law
- Institution
- AQA
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PAPER 1 LAWChapter 1: The nature of law
1.1 The character of a rule
• Norms of behaviour = The behaviour that the particular society has, over a long period of time,
accepted as the ‘correct’ or ‘normal’ behaviour
• A Rule = A rule is something that determines the way in which behave
- This could be because it is enforceable in some way, or we submit to it voluntarily
- Some rules may ‘harden into rights’ and can be so widely accepted that they become law
- The early common law developed out of customs that were commonly accepted
- Rules are generally obeyed because:
1. Because they carry with hem a sense of moral obligation
2. Because the rule is reasonable and relevant
3. Because a penalty may be imposed if the rule is broken
1.2 Legal rules
• Law is a formal mechanism of social control
• Set of rules imposed and enforced by the state
• Legal rules are enforced through the courts
• In criminal law, there are penalties for breaking the law
• In civil law, courts can order compensation or make some other order trying to put right the
wrong that was done
1.3.1 Criminal law
• Sets out the types of behaviour which are forbidden at risk of punishment
• A person who commits the crime, has offended against the state
• So the state has the right to prosecute them
• If the defendant is found guilty, the defendant will be sentenced
• Courts can send the defendant to prison, making an order that the defendant to a certain number
of hours of unpaid work, fining the defendant or disqualifying the defendant from driving for a cer-
tain period of time
1.3.2 Civil law
• Civil law is about private disputes between individuals and/or businesses
• Law of tort occurs where the civil law holds that, even though there is no contract between
them, one person owes a legal responsibility of some kind to another person, and there has been
a breach of that responsibility
• The person affected can make a claim, if successful the court can award damages
• Courts can also award an injunction (stop the D to do or stop doing something)
1.3.3 Differences between criminal and civil law
Purpose of the law
• Criminal law is aimed at trying to maintain law and order, to protect society
• Civil law upholds the rights of individuals
Person starting the case
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,• Criminal cases are taken on behalf of the state, and the Crown prosecution service are responsi-
ble for conducting most cases
- There are other state agencies which may prosecute certain types of offence
• In civil cases, the person starting the case is the individual or business which has suffered as a
result of the breach of civil law
Courts
• Criminal cases will be tried in either the magistrates court or the crown court
- The magistrates court deal with less serious offences
- Serious offences are tried in the crown court
• Civil cases are heard in the high court or county court
- The high court deals with more serious cases
- County court deals with cases of lower value
Standard of proof
• Criminal cases must be proved ‘beyond reasonable doubt’ - necessary high standard of proof,
because the conviction could result in the defendant serving a long prison sentence
• Civil cases have to be proved on the balance of probabilities .
- Judge decides who is most likely to be right
Outcome of case
• In criminal case, the D is either found guilty or not guilty/ convicted or acquitted
• In a civil case, the D is found liable or not liable
1.4 Sources of law
1.4.1 custom
• Rule of behaviour which develops in a community without being deliberately invented
• Basis of our common law
• Judges based at least some of their decisions on the common customs
1.4.2 Common law
• Common law is the basis of our law today
• Unwritten law that developed from customs and judicial decisions
• Used to distinguish laws that have been developed by judicial decisions from laws that have
been created by state or other legislation
• In tort law most of the law on negligence has been developed by judges
1.4.3 Statute law
• An Act of Parliament is law that has been passed by both house of parliament and received royal
assent
• Law can be changed by an AOP or new laws can be created
• Statue law can create, change or revoke any law
• Statutes often recognise the common law and create laws which rely on the common law
Chapter 5: Law making: Statutory interpretation
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,5.1 The need for statutory interpretation
• To help understanding of a statute, Parliament sometimes includes sections defining certain
words used in that statute
• These are called interpretation sections
• Sometimes a case comes before courts because there is a dispute over the meaning of an AOP,
the court has to decide the exact meaning of a particular word or phrase
• Meanings may be unclear because:
- A broad term - words designed to cover several possibilities e.g Dangerous Dog Act 1991
- Ambiguity - Where words has two or more meanings
- A drafting error - Parliamentary counsel may have made an error which had not been noticed
by Parliament
- New developments - New technology may mean that an old AOP does not cover present day
situations e.g Royal college of nursing v DHSS (1981)
- Changes in the use of language - Meaning of words can change over the years e.g Cheese-
man v DPP (1990)
5.2 The three rules
• Three different rules of interpretation.
- The literal rule
- The Golden rule
- The mischief
• Some judges prefer to use one rule, while other judges prefer another rule
• Interpretation of a statute may differ according to which judge is hearing the case
• Once an interpretation has been laid down, it may form a precedent for future cases under judi-
cial precedent
5.2.1 The literal rule
• Courts will give words their plain, ordinary or literal meaning, even if the result is not very sensi-
ble
• Starting point for interpreting any legislation
• Can lead to harsh decisions
• Assumes that every Act is perfectly crafted
• Words have more than one meaning
• Can lead to absurd results
• Leaves law making to parliament
• Makes law more certain
- Whiteley v Chappell (1868)
- London + North Eastern Railway Co. V Berriman (1946)
5.2.2 The golden rule
• This rule is a modification of the literal rule
• This rule starts at looking at the literal meaning, but then is allowed to avoid an interpretation
which would lead to an absurd result
• Narrow application - Court may only choose between the possible meanings of a word or
phrase. If there is only one meaning then that must be taken
• Wider application - Where the words have only one clear meaning, but that meaning would lead
to a repugnant situation
- Alder v George (1964) - Narrow view
- Re Sigsworth (1935) - Wider application
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, 5.2.3 The mischief Rule
• This rule gives a judge more discretion
• Courts should look to see what the law was before the Act was passed in order to discover what
gap or mischief the act was intended to cover
• Court should then interpret the Act so the gap is covered
- Smith v Hughes (1960)
- Eastbourne Borough Council v Stirling (2000)
- Royal College of nursing v DHSS (1981)
5.3 The purposive approach
• Not only is the court looking to see what the gap was in the old law, judges are deciding what
they believe Parliament meant to achieve
• Leads to justice in individual cases
• broad approach covering more situations
• Allows for new technology
• Leads to judicial law making
• can make law uncertain
• Difficult to discover the intention of parliament
- R v Registrar - general, ex parte Smith (1990)
- R v Human fertilisation and Embryology Authority (2003)
5.3.1 Literal approach vs purposive approach
• Should judges examine each word and take the words literally or should it be accepted that an
AOP cannot cover every situation and that meanings of words cannot always be exact?
• In European law the purposive approach is taken, this is important because European laws are
issued in several languages, so words cannot be taken literally.
• It is not always possible to have an exact translation from one language to another
5.4 Internal and external aids
• Some aids to help the judges with interpretation
• Can either be intrinsic or extrinsic aids
5.4.1 Internal (intrinsic) aids
• Matters within the statute itself that may help to make its meaning clearer
• E.g the long title, the short title, preamble, if any
• Older statutes usually have a preamble which sets out the purpose of enacting that statute
• Long title may also explain briefly parliaments intentions
• Some acts will have an interpretation section in them
• headings before a group of sections, and any schedules attached to the Act can help
- Harrow LBC v Shah and Shah (1999)
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