Using the source and other cases to illustrate your answer describe persuasive precedent.

Persuasive precedents are not like binding precedents they are not absolutely binding, the courts can choose to follow them if they wish to.

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Using the Source and other cases to illustrate your answer describe persuasive precedent.

 

Persuasive precedent can be described as a judicial decision which can be followed by another judge, but the precedent is not binding and it does not have to be followed in the way that binding precedent does. Unlike persuasive precedent, a fundamental principle upon which the doctrine of binding precedent rests, is that a hierarchy of courts is needed if it is to operate. The concept of stare decisis, meaning stand by what has been decided, forms the basis of the doctrine of judicial precedent. The notion is that like cases should be treated similarly for the sake of certainty and consistency which, it is argued, leads to fairness.

 

The effect of this is that, ordinarily, the legal reasoning on a point of law made in an earlier case must be followed. This does not apply to persuasive precedent.

 

Using the Source - persuasive precedent occurs 'where a court does not have to follow another courts’ decision but can choose to follow it if they wish'. There are a number of sources of persuasive precedent and these are obiter dicta statements, decisions of the Privy council, dissenting judgements, decisions of courts in other countries and decisions made by courts lower in the hierarchy.

 

A key feature of judicial precedent is the Latin term 'ratio decidendi' meaning the rationale for a decision and refers to that the part of the judgement which is delivered at the end of a case explaining the reasons for the decision. This is the important part of the judgement given by the judge dealing with the case. The doctrine of judicial precedent would not be able to operate if it were not for the requirement that the legal reason for past decisions must be stated. It is this part of the judgement which sets a precedent for other judges to follow. Not every part of the judgement is binding. Statements made 'obiter dicta' are not binding and therefore need not be followed by a lower court.

 

The 'ratio decidendi' should be contrasted with parts of the judgement which are known as 'obiter dicta' which simply means 'other things said'. Such remarks made by the judge, although sometimes helpful and influential, are not binding. Obiter statements are a form of persuasive precedent in that whilst they are not binding they may be taken into account and a judge may be persuaded to follow the obiter remarks or reasoning.

 

A well known example of this kind of persuasive precedent is the case of R v Howe (1987) in which the House of Lords ruled that duress could not form a defence to a charge of murder and then went on to say obiter that they saw no good reason why it should be a defence to a charge of attempted murder. Subsequently in R v Gotts (1992) a young defendant was charged with the attempted murder of his mother and pleaded duress as a defence. The Court of Appeal decided to follow the obiter remarks in Howe and rejected the defence.

 

 

The work of the Judicial Committee of the Privy Council can be very important and influential. The Judicial Committee of the Privy Council is the highest court of appeal for many current and former Commonwealth countries, as well as the United Kingdom’s overseas territories, crown dependencies, and military sovereign base areas. In practice these appeals relate to very serious offences and are likely to be the last realistic appeal process open to the defendant. The decisions of the Judicial Committee of the Privy Council are considered to be persuasive authority.



In the Att General for Jersey v Holley (2005), the Privy Council declared that they were announcing the law applicable not only to Jersey but also to England and Wales. This ruling may seem to fly in the face of our understanding of the hierarchy in our English legal system in which we traditionally see The Supreme Court (formerly the the House of Lords), to be the senior English Court. However at the time the Judicial Committee consisted of nine members of the House of Lords so it was not likely that the then House of Lords would have come to a different decision.

 

An example of a further influential decision of the Judicial Committee can be found in the case of The Wagon Mound (No 1) (1961) which concerned the remoteness of damage in the law of tort.

 

Some cases can be particularly complicated, leading to a review of the law consisting of many past decisions made over a long period of time. In addition things are not made any easier if there are several judges. This will probably be the case in important appeal cases in the Court of Appeal and the Supreme Court and it may be necessary to consider not just one speech but several. This may be further complicated as each judge is entitled to set out their own legal reasoning leading to their decision, so legal advisers may have to examine more than one ratio in the judgement. We are also likely to encounter dissenting judgements. Where more than one judge is sitting the views of the majority prevail and their views determine the outcome of a case but there can be dissenting judgements.

 

Dissenting judgements are important but they are not binding. In Candler v Crane, Christmas & Co (1951), The Court of Appeal, in a majority decision, followed the principles of Derry v Peek and refused the claim. They reasoned that any loss from a negligent misstatement was not actionable if there was no contractual or fiduciary duty between the parties.

 

Lord Denning was never one for shying away from an opportunity to right what he considered to be a wrong and this was no exception. He seized upon the moment to deliver a compelling, dissenting speech to the effect that parties owed a duty of care to:- 'any third person to whom they themselves show the accounts, or to whom they know their employer is going to show the accounts, so as to induce them to invest money or take some action on them'.

 

The case of Candler v Crane, Christmas & Co (1951) had involved a tin mine in Cornwall. A director of the company that owned the mine advertised for an investor as they needed capital. They placed an advertisement in The Times newspaper. Mr Candler replied to the effect that he was interested in investing £2,000 and asked to see the company's accounts.Crane, Christmas & Co, a firm of auditors, were instructed to produce the accounts and these were subsequently seen by Mr Candler who, relying upon them, invested £2,000 in the company. The company was, in reality, in a very bad way.

 

Lord Denning's judgement was a dissenting judgement but his argument was a powerful one and it was not long before the courts had the opportunity to reconsider their stance on this issue in Hedley Byrne v Heller & Partners Ltd (1964). The matter came before the House of Lords. The House of Lords upheld the earlier dissenting judgement of Lord Denning in Candler.

 

Decisions of courts in other countries can form persuasive precedent. This applies in the case of countries whose legal system is based around the ideas of common law in the UK and in particular to Commonwealth countries like Australia,Canada & New Zealand.

 

Finally the decisions of courts lower in the hierarchy are not binding on higher courts but they can be persuasive. An example can be seen in the infamous case of R v R (1991) concerning marital rape. The Court of Appeal, having upheld the defendant's conviction, gave leave for a further appeal to the House of Lords. The House of Lords abolished altogether a husband's 250 year old immunity from criminal liability for raping his wife. The House took the view that the law needed to reflect society's expectations, and thought it only proper that it took the opportunity to act. Lord Keith spoke of "a common law fiction which has become anachronistic and offensive.”

 

(Word count 1339)

 

An essay which looks at the place of persuasive precedents in the legal system.

Some of the cases referred to can be accessed by using the links to the right and set ot below are other relevant terms which can be viewed in the glossary.

Binding Precedent; Stare Decisis; Judicial Precedent; Obiter Dicta; Ratio Decidendi:

Privy council overrules Lords to put judgment back on track

Ruling could be adopted by English courts

 

 

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