PERSUASIVE PRECEDENT

'Persuasive precedent' (also 'persuasive authority') is precedent that is not a binding precedent on the court under common law legal systems such as English law; but the judge may consider that it is the correct principle, so he is persuaded that he should follow it. Persuasive precedent may come from a number of sources such as lower courts, "horizontal" courts, foreign courts or statements made in ''dicta''. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.

Contents

Courts lower in the hierarchy

The judge in R v Howe (1987)(UK) ruled that duress could not be used as a defence for murder. The Lords in obiter dicta commented that it shouldn’t be used as a defence for attempted murder. When later in R v Gotts (1992)(UK) attempted murder defence used duress as a defence. The Obiter statement was used as persuasive precedent by C/A

A judgment heard by a tribunal, and one judge dissented from the decision. The judge in the next case can decide to follow the dissenting judge’s obiter and rationale.

Courts lower in the hierarchy

Shown in R v R (1991)(UK) the judge agreed with a court of appeal in deciding that a man could be guilty of raping his wife.
=== Statements made in obiter dicta

The judge in R v Howe (1987)(UK) ruled that duress could not be used as a defence for murder. The Lords in obiter dicta commented that it shouldn’t be used as a defence for attempted murder. When later in R v Gotts (1992)(UK) attempted murder defence used duress as a defence. The Obiter statement was used as persuasive precedent by C/A

A Dissenting judgement

A judgment heard by a tribunal, and one judge dissented from the decision. The judge in the next case can decide to follow the dissenting judge’s obiter and rationale.

Courts in other countries ===
An English court might cite judgments from countries that share the English common law tradition. These include other commonwealth states (for example, Canada, Australia, or New Zealand) and to some extent the United States.