Obiter is based and may be used by judges

Obiter dictum is anything stated by the judge which was not
he main reasoning behind the decision. Obiter statements are usually used when
creating a distinguishing precedent. In this case an obiter statement was when
Sahni LJ says, “I also take account of the submissions put forward on behalf of
the appellant, namely that to do otherwise would be a breach of Article 8 of
the Human Rights Act 1998”. This was not the main reason as to why Sahni LJ
reached the decisions hence it being an obiter statement.

The ratio decidendi is the legal reasoning upon which the
decision in a particular case is based and may be used by judges in future
cases when confronted with similar facts. In the  judgement of the case, the ratio of deciendi
is when Lord Sahni stated that, the question is whether he was “dressed in such
a manner as to offend against public decency or order” within s 2 of the Act.
On the meaning of public decency I am assisted by the speech of Lord Carter in
the case of R v Corbett in which he said: “Public decency constitutes a level
of behaviour which is generally accepted in the public and is not obscene,
disgusting or shocking for the observers” Mr. Mackenzie was walking around in
his living room behind a blind covered window with no intention of offending
anyone. There was no “overt display” and it is wrong in principle to impose a
criminal offence on anyone who does notintend to commit an offence.” This
formed the ratio in this case it helped Lord Sahni reach his judgment.

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 (4) Using examples from the judgments in the
case, distinguish between the phrases “ratio decidendi” and “obiter dictum”.

Most Acts are compatible with the Human Rights Act unless
there is a statement of incompatibility. The Offending Public Decency Act 2010
is likely to be compatible with the Human Rights Act 1998 therefore this can
influence the case of R v Mackenzie.

Human rights are protected by the Human Rights Act 1998. The
Act gives effect to the human rights set out in the European Convention on
Human Rights. The Act states: the right to respect for your family and private
life, your home and your correspondence is one the rights protected by the
Human Rights Act. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others. With the provision Article 8
of the Human Rights Act 1998, Mr Mackenzie has a right a right to respect for private
life. This means that things occurring in his house are private and he has a
right to respect for his private life. The appellant (Mr Mackenzie) put forward
that there was a breach pf Article 8 which lord Sahni agreed with.

2)With reference to the end of Lord Sahni’s judgment,
explain the provisions of Article 8 of the Human Rights Act 1998 and to what
extent the 1998 Act can affect the court in R v Mackenzie.

 

 Lord sahni also used
the purposive approach .Using this approach, judges look at the reason why a
statue was passed and its purposive. This approach is influenced by our
membership of the European Union as it is widely used in European law, which is
drafted with the expectation that judges will consider the policy behind the
words of a statue or directive. This is similar to the mischief rule but that
is a rule that looks back at what was wrong before the statue and what it was
designed to remedy; the purposive approach looks forward as to how a statue may
achieve a  policy. In this case, the
purpose of the Act is “to protect the public from overt displays of nudity and
public indecency.”

The rules of constructions that were applied by Lord sahni
were the literal rule and the purposive rule. The literal rule is where words
are giving their plain, ordinary and literal meaning. it is the task of the
court to give a statute’s words their literal meaning regardless of whether the
result is sensible or not. In a famous judgment, Lord Diplock in Duport Steel v
Sirs (1980) “The courts may sometimes be willing to apply this rule despite the
manifest absurdity that may result from the outcome of its application.” Lord
sahni used the literal meaning of nudity to fine Mr. Mackenzie not guilty as he
was in his underwear which mean Mr. Mackenzie was clearly not “nude” . In the
case of London & North Eastern Railway Co v Berriman1946AC 278 , Mr
Barriman was killed when oiling points on the truck.the statues that provided
compensation required him to be” re-laying 
or repairing ” Mr Barriman’s family were not entiltles to the
compensation as he was not “re-laying or repairing ” but he was simply “oiling
“the truck.

Rules of construction are ways of interpreting ambiguity in
the law. They are used by judges  In
order to assist them in determining the meaning of legislation, ‘rules’ of
statutory interpretation have been developed by the courts. These are not law,
but guidelines on how to approach the task of interpreting legislation.
Traditionalists would argue that these provide a coherent framework which
assists judges to find the ‘correct’ reading of a statute. A more critical
approach challenges the idea that in difficult cases, there is one correct
meaning, or indeed one fixed parliamentary intention which the courts can
‘find’. Instead, the process of statutory interpretation is seen as a creative
one in which the judges themselves develop the law according to their own
understandings and interpretative priorities.

2) Explain why rules of
construction are used by judges and identify the different rules of
construction that were applied by Lord Sahni.

 

This method of creation of such
legislation differ from a primary legislation. Primary sources are law
generated by a governmental body. Primary sources can be either mandatory
(binding) or persuasive depending on several factors including the jurisdiction
of the sources and  the jurisdiction of the pending case, the facts of
sources and the facts of the pending case, the hierarchy of authority, and the
currency of the source. An Act of Parliament creates a new law or changes an
existing law. An Act is a Bill approved by both the House of Commons and the
House of Lords and formally agreed to by the reigning monarch (known as Royal
Assent). Once implemented, an Act is law and applies to the UK as a whole or to
specific areas of the country. Once an Act is in force, citizens can be
prosecuted under an Act in court if they break the laws laid out within it.
Only Parliament may enact Acts of Parliament. Any such Acts are superior to all
other sources of law and may not be challenged in the courts. Although
Parliament passes the legislation it is the task of the judges to interpret it.

With reference to section3(2) of
the Act, the sort of secondary legislation that is likely to be used to bring
the act into force is delegated legislation. Secondary sources are other
resources which may be written by lawyers or judges or other legal
professionals which comment on the law, categorize the law or otherwise
interpret the primary sources. It allows the government to make changes to the
law using powers conferred by an Act of Parliament. Statutory instruments form
the majority of delegated legislation. They are made in a variety of forms,
most commonly Orders in Council, regulations, rules and orders. The form to be
adopted is usually set out in the enabling Act. Here, power has been delegated
to a judge which is known as judge made laws. Airedale NHS Trust v Bland
(1993), here the House of Lords have to consider the fate of Tony Bland a
football supporter left in a coma after the Hillsborough stadium disaster. The
court had to decide whether it was lawful to stop supplying the drugs and artificial
feeding which kept Mr Bland alive, even though it was known that stopping
medicine would lead to his death. The courts had only option to make a decision
one way or the other, and they decided that the action of stopping the medicine
and artificial feed was lawful in patient’s best interest as per circumstances.