Persuasive precedent

A previous decision which does not have to be followed by the judge in a later case.

Although the judge is not bound to follow the previous decision because it is only persuasive and not binding, he or she may be influenced by it and 'persuaded' that the legal principles referred to should be followed.

It is important to appreciate that persuasive precedent comes from a number of different sources:

Courts lower in the hierarchy

This can be illustrated by the case of R v R [1991] where the Court of Appeal decided that a man could be guilty of raping his wife and the House of Lords followed the same legal reasoning and agreed with the Court of Appeal's decision although the House of Lords being higher in the hierarchy than the Court of Appeal were not bound to follow the decision.

Decisions of the Judicial Committee of the Privy Council

The decisions of the Privy council are not binding as the court is not part of the court hierarchy.  Its decisions are merely persuasive.  In practice many of the judges which make up the Judicial committee of the Privy council are judges of the House of Lords, so its decisions are considered to be important and worthy of consideration and it is not unusual for them to be followed.

Obiter dicta

This simply means 'other things said' by the judge as part of his or her judgment.

The judge will sometimes speculate on what his decision might have been had the facts of the case been different.  It is not always easy to separate the 'Ratio decidendi' from the 'obiter dicta' in the judgment, as the judgment may consist of many pages and there are no headings labelling which part of the judgment consists of the 'ratio' and that part which constitutes the 'obiter dicta' part.  Such Obiter comments are merely persuasive and cannot from part of the ratio decidendi or binding precedent.

This principle is very well illustrated by the case of R v Howe [1986]  which concerned the law of duress in respect of a criminal charge.  In this case the House of Lords ruled that duress could never be a defence to a charge of murder.  The House of Lords then went on to comment (in the obiter part of the judgment) that duress could never amount to a defence to a charge of attempted murder. 

In R v Gotts (1992)  a  young boy defendant raised the defence of duress to a charge of attempted murder of his mother.  The Court of Appeal were 'persuaded' by the reasoning in the obiter comments of the House of Lords in the earlier decision of R v Howe and decided to follow it.

Dissenting judgments

This arises where a case has been decided not by a unanimous decision but by a majority of the judges ( for example 3-2 or 2-1).  The judge who disagrees with the majority will set out their legal reasoning for their decision in a dissenting judgment.  In the event of an appeal, the higher court for example the house of Lords may be 'persuaded' by the reasoning of the dissenting judgment and give a ruling which reflects their preferred reasoning.

Decisions of courts in other countries

This particularly applies to Commonwealth countries such as Australia, New Zealand and Canada as their legal systems have evolved in a very similar way to our own.

Privy council overrules Lords to put judgment back on track | UK news ..


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