What is the doctrine of precedent

A binding precedent would be established by a legal rule formed in a position of the higher courts of the hierarchy, either the Court of Appeal or the House of Lords. For example, Gomez followed the precedent held in Morris over appropriation in theft. The legal rule may also have been formed in the same level of court, as in the case of Regina v. Mazo (1997) 2 Cr. App. R. 518, and Regina v. Hinks [1998] Crim. L.R. 904, where there were conflicting ratios made within the Court of Appeal over consent and appropriation. Binding precendents may also be considered on a European level at this point, where the affect of the European Court of Justice holds binding influence over the English legal system today. This is evident in the earlier given example of Pickstone v. Freemans over "equal pay" and also in the case of Finnegan v, Clowney Youth Training Programme Ltd [1990] 2 All ER 546 on the retirement age for women under the Sex Discrimination Act 1976. Further to the point of the European Court of Justice, all English courts are required to be consistent with the jurisdiction laid down from U.K.'s membership to the E.U. particularly in relation to the Human Rights Act 1998.

A persuasive precedent is different to a binding precedent in that the lower courts are unable to bind the higher courts to their decision, but can only be persuasive. As in the Mandla v. Dowell Lee case, we can identify how the House of Lords decision was swayed by the decision made in the Court of Appeal level in Australia. Decisions made within the Common Law world can only act as an aid to the reasoning and decision-making of higher courts in the U.K. Persuasion of the lower courts could either be followed, disapproved, or overruled. Persuasive precedent can also be derived from courts of the same level, for example, if the House of Lords decide that a previous decision on a case with similar material facts was decided incorrectly, they would simply ignore that decision, or, on rare ocassions, overturn that decision. This is evident in Regina v. Shivpuri [1987] AC 1 and Anderton v. Ryan [1985] AC 567 where the Law Lords decided Anderton had been wrongly decided as to criminal attempts and overturned its own decision in Shivpuri.

In general, the Court of Appeal must adhere to the doctrine of stare decisis and follow the precedent of the House of Lords. However, in attempt to overturn this principle, Lord Denning M.R. tried to make a House of Lords decision per incuriam. A previous court ruling can be labelled as per incuriam, i.e. the decision oversaw a number of significant material facts before submitting a legal rule. This attempt was made and condemned later in the House of Lords in Broome v. Cassell [1972] 2 Qb 354. Lord Denning M.R. tried to ignore the ratio in Rookes v Barnard [1964] AC 1129 with the reasoning that there was a significant oversight made by the Law Lords. When this case reached the House of Lords, Lord Hailsham stated, "In the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers". This affirms the doctrine of precedent that lower courts cannot overturn the precedent set out in higher courts.