Persuasive Precedent A01 Flashcards
define persuasive precedent
-doesn’t need to be followed/not binding
BUT
-may be helpful to a judge making a decision, may be persuaded
which courts bind each other
superior courts make precedent that lower courts who have to follow
how can superior courts use the decision of lower courts (case)
the superior courts can use a decision from the lower courts as persuasive precedent
-the UKSC followed the decision in the CoA in RvR to make marital rape an offence
how can obiter dicta be used for persuasive precedent
‘other things said’ judges often make decisions outside of ratio decidendi which can be used as persuasive precedent in cases with similar facts
example (case) where obiter dicta was used to create persuasive precedent
UKSC used obiter dicta from R v Howe (that duress cannot be a defence to attempted murder) as persuasive precedent in R v Gotts in the CoA
How may judges refer to other jurisdictions using persuasive precedent
judges may refer to cases from places where the legal system is similar to the UK e.g: Canada, Australia, New Zealand, America
example (case) of persuasive precedent from another jurisdiction in the uk courts
-Re:S, UK used persuasive precedent by an American Authority
how can the judicial committee of the privy council impact persuasive precedent
JCPC can influence judges to use decisions as persuasive precedent
-The decision made by the JCPC in the Australian case of Wagon Mound became an important part of UK law
how can dissenting judges be used in persuasive precedent
when all judges don’t agree, the disagreeing judgements can be helpful in future cases if a court is considering changing the law
example (case) of a dissenting judgement being used as persuasive precedent
Lord Denning made a dissenting judgment in Candler v Crane which was later persuasive in Byrne v Heller
