What is a case of first impression?! — Binding authority is any source of law that a court must follow when deciding a case. Persuasive authority is when court review persuasive precedents when no binding authority exist.! —Courts can depart from precedents if the precedent is based on a clearly erroneous application of the law. When there is no precedent to base a decision is called first impression.
This is true, but to interpret the laws and judge their constitution are the two special functions of the court. The fact that the courts are charged with determining what the law means does not suggest that they will be justified in substituting their will for that of
The general liberty of the people must not be in danger especially of the government power. Therefore, the judicial review plays one of the most important roles among the government even though their power might seem weak as Alexander Hamilton says. Judicial review as way of surveillance over legislature and executive branch and as protection of the people from political threats is the main factors for the necessity in the checks and balances system. Moreover, the importance of the judicial review can be proved by the fact that the judicial review establishing the
In order for legal causation to be established the question to be asked is whether it is fair to attribute blame to the defendant, if the jury believe the defendant can be blamed for the consequence then he is also the legal cause of the consequence. There must also be a direct link from the defendant’s conduct to the consequence; this is known as the chain of causation and so therefore in order for the defendant to be guilty of the consequence then there cannot be any major intervening acts. Intervening acts can include the actions of a third party, the victim’s own act or a natural but unpredictable event. Naturally there are issues with the rules on causation which I will discuss in detail in the remainder of this essay, the first issue comes with defining what is meant by more than a ‘slight or trifling’ link as this is a very vague phrase it can be difficult for juries to understand and so therefore may be misused. The second issue involves the thin skull rule which involves the defendant having to take the victim as he finds him which can be seen as unfair.
Additional requirement for admissibility of multiple hearsay A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless: either of the statements is admissible or all the parties to the proceedings agree; or the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose. ‘Hearsay statement’ means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it. Memory refreshing A witness giving oral evidence in court may use a document to refresh his or her memory, provided that the document was made (or verified) by him at an earlier time, and provided: he states that the document records his recollections of the matter at that earlier time and his recollection of the matter is likely to have been significantly better at the time the document was made, than at the time of his oral evidence. Running head: UNIT 5 ASSIGNMENT 10
Evidence and Justice 1)What factors determine the admissibility and relevancy of evidence? Evidence that can have tendency of the consequence to the determination, to be either more probable cause of the action or less probable cause. 7)What are the differences between presumptions and inferences? Inference is a deduction that can be drawn from evidence, and in some cases have more probable cause then others. Presumption is evidence that indirectly proves a fact.
Judicial review is the right, or duty, the court has to review the constitutionality of legislation and/or actions taken by the executive branch. The court has the right to choose its cases, but these are brought before them not sought after by the court. What is the separation of powers? This is a form of checks and balances between the executive, legislative, and judicial branches of government. They are in place so as to contain the power of any one branch attempting to overstep its authority and act in a tyrannical matter.
There is a strong case for both sides of this argument, but I believe that the power level given to judges is the right amount in relation to how important a role they play in supporting British society to work to its full potential through their requirement of upholding the law. Although, there is a strong argument to claim that despite this, they may not be the right people for the role as their independence and neutrality can be questioned, with a view that their power should potentially be limited. One of the strongest arguments, which can be used to defend the power given to the judiciary, is that despite what many believe, they can not over rule government, and government can in fact overrule the judiciary through their sovereignty, and this was backed by Lord Neuberger, head of the Supreme Court who claimed that the thought of parliament not being sovereign is ‘quite simply wrong’, highlighting the fact that the power is ultimately not with the judiciary. The judges do not have the power to repeal any laws despite their opinions on them; their job states that it is obligatory for them to enforce the law despite their personal opinions. However they do have the ability to make suggestions to possibly amend the law through highlighting flaws.
Policy is an important consideration for the courts to decide the duty owed by defendants. Lord Bridge suggested that it should be fair, just and reasonable when imposing duty on defendant. It is thought that the imposition of a duty solely base on foreseeability of damage is not desirable. As Winfield and Jolowicz suggests that “the court must decide not simply whether there is or is not a duty, but whether there should or should not be one.” For the purpose of this essay, I will discuss how policy can influence the imposition of duty. The most important policy concern has always been the “floodgates argument”.
Judicial precedent is a statement of law made by judges in the higher courts. It is based on the common law principle Stare Decisis which means to 'stand by the decision'. It was modified by the Supreme Court of Judicature through the Judicature Acts 1973-75. When making a decision, judges look to a judgement which is split into two parts. Ratio Decidendi which is the reason for the decision and Obiter Dicta, anything else said.