Deck 7: How Precedent Operates: Ratio Decidendi and Obiter Dictum

Question 1

There is no single set method of drafting a statute: different methods of drafting may be used to convey the same message.

Answer 1

True

Question 2

If a word has a specific meaning defined by a body of case law, this meaning will not be presumed to be the same in a statute.

Answer 2

False

Question 3

Which of the following are aims of the Parliamentary Counsel in drafting statutes (select all that apply)?

A) Converting political policy into law.
B) Converting case law into statute.
C) Ensuring that drafts are read by at least two members of the House of Lords.
D) Ensuring that the new statute is compatible with existing law.
E) Adhering to the traditionally prescribed rules regarding the language of legislation.

Answer 3

A, D, E

Question 4

Complete the following (select all that apply): the case of Wood v Smith (see 7.11 and 8.3.1) demonstrates that…

A) legal certainty is hard to achieve when drafting statutes.
B) judges will disagree about the correct interpretation of a statute.
C) judges are bound to agree about the correct interpretation of a statute.
D) even straightforward and seemingly clear statutory provisions can be uncertain when a complicated or unforeseen fact scenario arises.
E) in law, words always have one specific legal meaning.

Question 5

While legislation is intended to be understandable by the layperson, it is drafted primarily for lawyers.

Question 6

Clean Neighbourhoods and Environment Act 2005
3 Exposing vehicles for sale on a road
1 A person is guilty of an offence if at any time -
(a he leaves two or more motor vehicles parked within 500 metres of each other on a road or roads where they are exposed or advertised for sale, or
b he causes two or more motor vehicles to be so left.
2 A person is not to be convicted of an offence under subsection (1) if he proves to the satisfaction of the court that he was not acting for the purposes of a business of selling motor vehicles
3 …
4 In this section -
'motor vehicle' has the same meaning as in the Refuse Disposal (Amenity) Act 1978 (c.3);
'road' has the same meaning as in the Road Traffic Regulation Act 1984 (c.27).
Now assess whether the following commentary is correct (true) or incorrect (false).
Commentary:
Section 3(1) sets up the offence, which has two disjunctive elements - (a) or (b). Thus, there are two different ways of committing the offence. Questions should be asked as to the meaning of the words 'motor vehicle', 'road', 'parked', 'exposed or advertised for sale', and the phrase 'causing to be left'.
Section 3(2) provides a defence to the offence under section 3 (1). Here, one would need to know the meaning of the phrase 'acting for the purposes of a business of selling motor vehicles'. The burden of proof appears to rest on the defendant because he must 'prove to the satisfaction of the court'.
Section 3(4) is the definition section, providing definitions of 'motor vehicle' and 'road'. These definitions have to be read into subsections (1) and (2). The reader will have to cross-reference to other Acts to understand these definitions.

Question 7

Offences Against the Person Act 1861
58 Every woman, being with child, who, with intent to procure her own miscarriage, shall administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether or not she be with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony…
Which of the following statements constitute the basic offence as set out by section 58?

A) The offence applies to two categories of offender - the woman herself and another offender. Both will be guilty of the offence if they administer poison or other noxious thing, or use an instrument on the pregnant woman, with the intention of procuring a miscarriage.
B) The offence applies to two categories of offender - the woman herself and another offender. Both will be guilty of the offence if they administer poison or other noxious thing, or use an instrument, with the intention of procuring a miscarriage. The difference between the two categories of offender is that, for the woman herself to be guilty, actual pregnancy must be shown, whereas the other offender can be guilty whether or not the woman is actually pregnant or not.
C) The offence applies to two categories of offender - the woman herself and another offender. Both will be guilty of the offence if they administer poison or other noxious thing, or use an instrument, with the intention of procuring a miscarriage. The difference between the two categories of offender is that the woman herself will be guilty whether she is pregnant or not, whereas the other offender can be only be guilty if the woman is actually pregnant.

Question 8

Read the Abortion Act extract below as originally enacted and then the amendment made by the Human Fertilisation and Embryology Act 1990.

A) There is little change - it is purely cosmetic.
B) It is generally cosmetic with one particular change - now the pregnancy can only be terminated under ground (a) if the pregnancy is of less than twenty-four weeks' gestation.
C) It is generally cosmetic, but there are two specific changes: firstly, risk to the life of the pregnant woman has been omitted as a ground for abortion and, secondly, the pregnancy can only be terminated if the pregnancy is of less than twenty-four weeks' gestation.

Question 9

Read the following sections.
Abortion Act 1967
5 (1) Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus).
Infant Life (Preservation) Act 1929
1 (2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.
Human Fertilisation and Embryology Act 1990
Abortion
37 (4) For section 5(1) of that Act (the Abortion Act 1967) there is substituted -
'(1 No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act.'
What is the effect of s 37(4) of the Human Fertilisation and Embryology Act 1990 on the Abortion Act?

A) It has no effect.
B) It amends the Abortion Act. Under s 5(1), Abortion Act s 1(2) of the Infant Life Preservation Act was still applicable, but s 37(4) provides that this provision is no longer to be read into the Abortion Act.
C) It amends the Abortion Act so that the Infant Life Preservation Act 1929 can be read into the Abortion Act.