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Precedent: This Essay Looks At All The Aspects Of Precedent With Cases To Back Up The Essay.

2198 words - 9 pages

Judicial Precedent by Anthony HarteJudicial precedent often referred to as case law, is one of the main sources of English law. Its roots go back to the early common laws of the country. It is based on the Latin maxim Stare decisis et non quieta morvere, which loosely translated means, stand by what has been decided and do not unsettle the established.In order for the judicial precedent system to work, an accurate detailed method of reporting cases is of great importance. After each case, a judge will give a speech, which contains two parts. The most important part is the section that contains details of the principle of law that has been used to base his decision on. This is called the ratio decidendi and means reason for deciding this is the part that creates binding precedent. The rest of the speech is called the obiter dicta, which means other things said. Although this part does not create binding law it may be persuasive, other judges may refer to it and speculate as to what the decision would have been if the facts of the case had been different.This all seems very simple, but in fact, it can be very difficult to find the all important ratio decidendi in the speech. The speech is not given in two parts, the ratio decidendi and obiter dicta are given in a continuous form, not headed up specifying the two separate areas. As a result, it is often difficult for judges looking at the case to separate the obiter dicta from the all important ratio decidendi. It has been known for the Law Lords in the House of Lords not to be able to find the ratio decidendi in a case. Add to this the fact that there may be more than one judge sitting on a case giving a speech with another ratio decidendi contained within it, using a different principle of the law to reach his decision, this can cause problems for future judges looking at the case. I feel that the efficiency of the system would be improved if the two parts of the speech were clearly defined.A binding precedent would be established by a legal rule formed in a position of the higher courts of the hierarchy, either the Court of Appeal or the House of Lords. For example, Gomez followed the precedent held in Morris over appropriation in theft. The legal rule may also have been formed in the same level of court, as in the case of Regina v. Mazo (1997) and Regina v. Hinks (1998), where there were conflicting ratios made within the Court of Appeal over consent and appropriation. Binding precedents may also be considered on a European level at this point, where the effect of the European Court of Justice holds binding influence over the English legal system today. This is evident in the earlier given example of Pickstone v. Freemans over "equal pay" and also in the case of Finnegan v, Clowney Youth Training Programme Ltd (1990) on the retirement age for women under the Sex Discrimination Act 1976. Further to the point of the European Court of Justice, all English courts are required to be consistent with...

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