Types of Precedent

• What are the 3 types of precedent?


  BOP

  Binding, Original, Persuasive
• Binding Precedent


  -has been set by a higher court in a previous case which must be followed by a lower court

  -the judge in the most recent case is bound to follow the precedent that was set in an earlier case

  -the binding element is usually found in the RD from the earlier case

  Case: R V Gotts --> CoA followed the OD in the earlier case of R v Howe and set a new binding precedent that duress cannot be a defence for attempted murder
• Original Precedent

  -where a point of law has not been decided before so the decision the judge makes will form a new precedent for later cases to follow

  -once the precedent is declared, it will be binding and original precedent

  Case 1 --> Rylands v Fletcher

  -courts decided a claim can be brought when the D has stored something on their land and then escapes, causing damage to the claimants land

  Case 2 --> Donoughue v Stevenson

  -RD created the neighbour principle for establishing a duty of care negligence
• Persuasive Precedent

  -not binding precedent

  -can be considered by the courts when they are trying to decide a case

  1. Decisions made by lower courts
  2. Obiter Dicta statements
  3. Other Countries
• Decisions made by lower courts

  -a judge in a higher court may use an earlier decision of a lower court to form a precedent

  Case: R v R, the HoL agreed with the CoA ruling that a man could be guilty for raping his wife
• Obiter Dicta Statements

  -statements that have been made by judges in the higher courts can be used to decide a future precedent

  Case: Gotts followed the OD of Howe that duress is not a defence to attempted murder
• Other Countries

  -when a country uses the same principles of common law that are used in our legal system, their decisions may be considered persuasive precedent

  Case: R v Bentham

  • D robbed the V, whom he believed owed him money