Introduction
Persuasive precedent is a prior legal case that is not binding to courts but aid and guide lawyers in making current rulings to be consistent with previous rulings thus enhancing justice. The persuasive precedent also enables the lawyers to make instant decisions with confidence of exercising justice. Bronaugh argues that, “…persuasive precedents are powerful and fair instruments of invention because, when convincing, they will show ways in which again rationally and in all fairness –the fetters of binding precedent can be slipped” (1991, p.247). Hence, the rulings of lawyers depend on the binding and persuasive precedents.
The binding precedent has overriding effect on persuasive precedent meaning that persuasive precedent can only be effective in absence of the binding precedent. Lawyers have prerogative in deciding how and what persuasive precedent is applicable to the cases at hand. This paper explores how R v Howe (1987) works as a persuasive precedent in justification of criminal acts.
Defense of Duress
A persuasive precedent such as R v Howe (1987) is very crucial in justification of criminal acts that defendant commits under duress. According to R v Howe (1987), defense of duress should not be applicable in justification of criminal acts such as murder and attempted murder.
The doctrine of duress holds that, “…threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts, which would otherwise be criminal” (Jepson 2008, p.4). R v Howe (1987) made obiter dictum that the defense of duress should not apply in justification of criminal acts such murder or attempted murder. The obiter dictum made in R v. Howe (1987) later became a persuasive precedent to the Court of Appeal when they made a ruling in R v Gotts (1992). Therefore, the obiter dictum in R v Howe (1987) sets persuasive precedent in justification of other criminal acts except cases that involves murder.
Decisions and Opinions
The decisions of the Privy Council are not binding but persuasive to the lower courts. The Privy Council decisions cannot have a binding effect on the justification of crimes but can have persuasive effect similar with the case of R v Howe (1987). This case provided that the cases of murder or attempted murder are not justifiable by defense of duress. In the cases of murder, Privy Council can make decisions regarding the nature of criminal acts and their respective justification that can have persuasive effect to the courts.
Moreover, R v Howe (1987) has persuasive effect on the decisions of the Privy Council since the Supreme Court considers it as a persuasive precedent. Bronaugh argues that, “…persuasive precedent is fair and that not to follow one is unfair” (1991, p. 227). The persuasive precedent provides basis of ensuring fairness because they are diverse and unique cases in justice system that have common ruling. If the persuasive precedent is quite fair, then subsequent cases will enhance its fairness and set another fair precedent.
Obiter dicta are persuasive because lawyers analyze the persuasive precedents and further recommend on their application. R v Howe (1987) examined the circumstances surrounding murder where a defendant argued that he was under threats to commit a murder but the court ruled that justification of murder was not applicable in cases of murder. “In their judgment, the House of Lords made obiter dictum that duress should not be available to someone who has been charged with attempted murder” (Jepson 2008, p. 5).
The obiter dictum subsequently became persuasive to the Court of Appealed when they ruled case R v Gotts (1992) where the defendant aged 16 argued that he injured his mother since his father threatened to kill him if he did not commit the criminal act of killing his mother. The Court of Appeal followed the persuasive precedent R v Howe (1987) and rejected the defense as inapplicable in cases of murder or attempted murder. The obiter dictum restricted justification of criminal acts based on duress by providing exceptions. Usually, the opinions of the supreme or higher courts are persuasive to the lower courts thus considered obiter dicta.
Although persuasive precedents are worth applying, dissenting judgments do arise regarding their validity. The precedents determine the bearing of the case and “…dissents may strongly influence what the law becomes later … when a case is a precedent today, it is a case valid today in its own domain, not having been overruled or ever become dead-letter there” (Bronaugh 1991, p.219). The dissenting judgments seek to overrule the validity of the persuasive precedents and establish new precedents that deem valuable. For instance, in justification of crimes based on R v Howe (1987), dissents can overrule that the precedent is invalid because there are special circumstances that warrants justification of murder or attempted murder due duress. Such dissenting judgments invalidate old precedents and set up new ones that will enhance justice in the society.
Courts’ Precedents
Decisions of courts from other countries can form persuasive precedent that influences landmark rulings in a country. Due to globalization, many countries have common and similar justification of criminal acts. The persuasive nature of the foreign court decisions depends on a number of factors. Wyner argues that the persuasive nature of the precedents depends on “…the rank of the court in the hierarchy, the prestige of the judge(s) involved, the date of the case, whether judgment was reserved or given ex tempore, whether there was any dissenting opinion, a case contested, or conceded” (2007 p.12).
In this case, the justification of criminal acts tends to follow international precedents set by powerful countries with credible justice system, hence justification of crimes on the basis of duress as in the cases of R v Howe (1987) and R v Gotts (1992), have an international persuasive effect.
So long as the lower courts apply the legal principles of justice that upholds constitution, their judgments can be persuasive to the higher courts. The application of the law is consistent throughout the justice system, and thus the higher courts have an obligation to act in consistency with the lower courts. Tufal argues that the higher courts have prerogative to overrule persuasive precedents of the lower court and this “…can occur if the previous court did not correctly apply the law, or because the later considers that the rule of the law contained in the previous ratio decidendi is no longer desirable” (2007, p. 2). Although the persuasive nature of precedents depends upon the hierarchy of the courts, the lower courts can also set persuasive precedents by observing proper legal principles in their rulings.
Conclusion
Persuasive precedent provides a platform where lawyers can argue concerning their independent rulings, while in contrast, binding precedent restrict lawyers from making independent rulings. These two types of precedents determine the bearing of the landmark rulings. The persuasive precedents are very flexible because they are not binding thus lawyers have freedom to choose and apply appropriate precedents to the cases at hand. The justification of crimes depends on the persuasive effect of the R v Howe (1987) which provides that defense of duress is not applicable to the cases of murder and attempted murder.
References
Bronaugh, R 1991, Precedent in Law, Oxford University Press, New York.
Jepson, P 2008, “Duress by Threats”, Criminal Law Journal, vol. 16, no. 3, pp. 1-5.
Tufal, A 2007, “Judicial Precedent”, Law Journal, vol. 9, no. 3, pp. 2-10.
Wyner, Z 2007, “Precedent and Procedure: an Argument Theoretic Analysis”, Law and Governance, pp. 1-15.