Judicial Precedent

Judicial Precedent by Anthony Harte Judicial 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

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  • Level: University Degree
  • Subject: Law
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Judicial precedent

Assignment 2.2 A.) Judicial precedent comes from decisions made by judges which create laws for later judges to follow. Depending in which court a judge is operating in, they can be bound by that decision and must follow it, this is also known as case law. Precedent means once a decision has been made in one case on point of law, that decision must be kept in future cases. Although precedent has been around for hundreds of years it was only established in the late nineteenth century. Baron Parke an important judge of his era, said precedents must be regarded in subsequent cases and it was not open to the courts: "To reject them and abandon all analogy to them" (Mirehouse v Renell) Precedent is created by the judgments on past cases. The judgment is the speech made by the judge who has made the decision on the case, and it is split into two parts. It should be noted that there is often more than one judge hearing a case, and so there may be many judgments on one case. The first part is the "ratio decidendi" ("reason for deciding"). This is the most important part as it gives the judge's decision. He will give a summary of the facts of the case, review the arguments put by both sides, and explain the parts of the law (and any previous cases) he has used to make his decision. This is the part of the speech which creates the precedent. The other part of the judgment is called

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  • Level: University Degree
  • Subject: Law
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Judicial Precedent

Judicial Precedent Where the facts of a case are similar to a one which has already been decided, the judge must follow that previous decision, especially if the decision was reached by a higher court in the hierarchy. This is the basis of judicial precedent and is called stare decisis-'let the decision stand.' After hearing a case, a judge presents his written judgement (case law) which sets out the facts of the case and legal principles used. The legal principles are set out in the ratio decendi-'reasons for deciding.' The ratio decendi also forms the basis of binding precedent. Obiter dicta is another part of the judgment and means 'things said by the way.' This forms the basis of persuasive precedent. For the system of precedent to work there must be strict rules for a judge to follow. There is a system of hierarchy where higher courts bind lower courts. The European Court of Justice binds all UK courts. The House of Lords is the highest appeal court in UK. Binds all lower courts and itself unless the decision was 'per incuriam' (in error) or it uses the Practise Statement 1966, which is used very sparingly and only when it would be just or right to depart from an earlier decision. The Court of Appeal binds all lower courts and itself unless under Young v Bristol Aeroplane Co Ltd where the decision was per incuriam or where two Court of Appeal decisions conflict or

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  • Subject: Law
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Judicial review.

Elizabeth Mount Public Law B JUDICIAL REVIEW The [fictional] Inner City Regeneration Act provides for the establishment of the Inner City Regeneration Fund, to be administered by a new body called the Authority for the Regeneration of Inner Cities [ARIC]. Section 1 of the Act provides that in considering applications for grants ARIC should seek "to promote initiatives designed to address problems presented to inner cities by homeless persons". ARIC refused an application for a grant made by Rummidge Society for the Homeless [RSFH] to replace the heating system in their shelter for homeless persons, located just off Old Street in Rummidge Inner City. In their application the Society had indicated that without this financial assistance the shelter would probably have to close. This would mean that there would be no overnight accommodation for homeless persons in the Inner City, which would cause problems for the police and others. Explaining its decision to refuse grant support, ARIC stated that it was not its policy to support initiatives designed to cater for the needs or well being of homeless persons. Its primary purposes, it said, are to dissuade such persons from establishing themselves in inner city areas and to minimise their impact on the enjoyment of inner cities by others. The Chief Executive of ARIC is a School Governor of an Independent School located next

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Legal Personality

Course W100: eTMA 3: Evaluate the importance of the concept of legal personality in English law, drawing on examples from your study of W100 so far. The concept of legal personality is 'a fundamental question in law ...' answering ' ... to whom does the law apply? Who can sue and ... who can be sued[b1]?' Since the introduction to Block 2 of W100 so unequivocally aligns the student to the notion that legal personality is indeed an important part of the foundations of the law, it would be brave to seek to argue against the inference of the question[b2]. Mercifully, since considerations of legal personality directly interfere with the most basic issues of human existence - as will be seen literally life and death issues on occasion - such a contradiction is unnecessary. Further, since it is readily demonstrable that the various 'statuses' afforded by legal personality effect (affect) pretty much all aspects of our rights and responsibilities, the task becomes a recital of the considerable weight of material which supports the question's assertion rather than a polemic[b3]. To make your introduction more effective, remember that it needs to do the following: to explain to the reader how you interpret the question (I think that you did this, although I would query some of that interpretation), identify some of the major issues/debates, explain how your essay is going to

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  • Subject: Law
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Law and Morality

Law and Morality Rules exist in many contexts, not just in the case of legal rules or even moral rules. The term rule has been defined by Twining and Miers as 'a general norm mandating or guiding conduct'. In other words, a rule is something that determines the way in which we behave, whether because we submit ourselves to it voluntarily, as would be the case with moral rules, or because it is enforceable in some general way, as would be the case with laws. Rules either develop through time, reflecting current ideology or through custom or practice, and would thereby involve the disapproval of the community if broken. Rules are generally obeyed because: * They carry with them a sense of moral obligation. The very nature of the word Tort (meaning wrong) indicates that there is a good deal of morality attached to it, and that people should be free from invasion with their personal life or property. * It is reasonable and relevant, and this clearly didn't apply to the Poll Tax of the 1980's which was thereby duly repealed * Penalty may be imposed if the rule is broken, despite personal disagreement; compulsory seat belts still had to be obeyed. So it is possible to describe law as the body of official rules and regulations, governing found in constitutions legislation, judicial opinions and the like, that is used to govern a society and to control the behaviours of its

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  • Subject: Law
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Law of Evidence

Law of Evidence (Law 249) Assessed Coursework (Q1) Naveed Ahmed "It seems that memories are short. Despite its manifest failings, there is now a certain nostalgia for s.2 of the Sexual Offences (Amendment) Act 1976 whilst vitriol is reserved for ss.41-43 of the Youth and Criminal Evidence Act 1999." 1 The question of whether there should be some, and if so what restriction on the scope of the cross-examination regarding sexual behaviour on the part of the complainant in trials involving allegations of a sexual offence has occasioned great difficulty for the law of evidence.2 Precipitated by the need to strike a balance between the interests of the accused to adduce relevant evidence which legitimately supports the defence on the facts and evidence which can only be regarded as an attempt to discredit the complainant the development of the law has been both complex and controversial.3 At common law, the complainant in a rape offence could be cross-examined about her sexual history if the questions were directly relevant to a fact in issue such as consent or the identity of the perpetrator.4 In contrast to this evidence relating to the complainant's sexual history on other occasions or with persons other than the accused was considered as a collateral issue which was relevant to the complainant's credibility as a witness the corollary of which was that it was subject to the

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  • Level: University Degree
  • Subject: Law
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Law of Tort

Law of Tort Module Code: LAW 324 M1 Tutor: Brian Collins Assignment Question: 1 In Rylands v Fletcher (1865) Lord Cairns stated that liability thereunder would only arise when the accumulation amounted to a non-natural use of the land. Explain fully what is meant by this concept and trace its development in case law to the present day. This rule in Rylands v Fletcher originated in the tort of nuisance in the nineteenth century during the industrial revolution. It was based on the principle that if a person purchased land or put his land to use for industrial purposes, and as a result damage was caused to a neighbours land, then the cost of that damage would be borne by the industrialist, without the need for the claimant to prove fault. The essence of the rule is that it is a form of strict liability for the escape of 'things' likely to cause damage, that have been brought onto land. Probably the best example of the rule functioning is in Rylands v Fletcher1 itself. The defendant, a mill owner, employed an independent contractor to build a reservoir on his land, the contractor failed to block disused mine shafts that he had come across on the site. When the reservoir was filled, the water escaped down the shafts and flooded the plaintiffs adjoining mine, causing damage estimated at almost £1000. D had not been negligent because he could not have known about the shafts

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  • Level: University Degree
  • Subject: Law
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Merging of the Legal Professions.

Merging of the Legal Professions The English legal profession is atypical of the majority of the rest of the world due the fact that is divided. Unlike countries such as the USA where they have just one lawyer known as an 'advocate´, in England we have two different types, each with different roles and responsibilities within the system. The principal distinguishing factor between them is that solicitors primarily do the paperwork whereas the role of barristers is mainly concerned with advocacy. The profession has been separated in such a way ever since the nineteenth century as a result of an agreement with the Bar. Solicitors were given the job of direct client contact and the writing of all legal documents in exchange for barristers to have the exclusive rights of audience in the higher courts and eligibility to become senior judges. In spite of this over recent years there has been a sequence of changes resulting in gradual progression towards the merger of the two legal professions. The first step towards an attempt at equality for solicitors and barristers came in 1969 when the Law Society argued for rights of audience in the higher courts. However, their plea was essentially unsuccessful as the Beeching Report recommended that this should only be allowed if there were insufficient numbers of barristers, and even then this right could only been permitted by the Lord

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  • Subject: Law
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Stop and Search

Stop and Search This essay shall explore various issues in relation to police stop and search such as racism and discrimination directed from the police force and the pros and cons of the police powers of stop and search. The Police and Criminal Evidence Act 1984 (PACE) was introduced in order to balance the competing demands of bringing offenders to justice whilst preserving and maintaining the rights and liberties of suspects. In section (a) of this question, paying particular attention to the police powers of stop and search, this essay shall discuss and evaluate whether the balance of bringing offenders to justice whilst preserving the rights and liberties of suspects has been achieved in practice. In the second part of this question, section (b), my view will be given on whether the various steps taken by the government since 1999 to increase public confidence in stop and search procedures will remedy any perceived problems in this regard. Section (a) The Act (PACE) was the product of a Royal Commission set up following an earlier miscarriage of justice.1 This was in relation to the murder of a man in 1977 which resulted in three boys aged 14, 15 and 18, one of whom was educationally subnormal2, being arrested, interrogated and as a result of their confessions charged with murder. However, three years later all three were released after a report into the case (Fisher

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  • Level: University Degree
  • Subject: Law
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