Doctrine And Exam Purpose

Judicial precedent is part of common law method. A court decides the legal issue in a case, gives reasons for its decision, and later courts may have to use those reasons when deciding similar cases. The doctrine is often summarised as stare decisis: stand by decided cases.

The doctrine only works if four features are present:

AQA treats this topic in two main ways. In a short AO1 question, you may need to explain features essential to precedent, such as stare decisis, ratio, hierarchy or law reporting. In a longer answer, precedent can become the AO3 English legal system issue: you may need to assess whether precedent is a good way to develop rules used in criminal, tort, contract or human rights reasoning.

The key skill is therefore not memorising a slogan. A strong answer explains how a previous decision becomes legal authority, then evaluates what that does for certainty, flexibility, complexity and judicial law-making.

Hierarchy And Binding Authority

Binding precedent is a legal rule from an earlier case that a later court must follow. The AQA mark scheme definition is straightforward in substance: a binding precedent is a judgment in an earlier case that has to be followed in later cases. The important A-level step is to explain when that obligation arises.

A later court is bound when:

1. the earlier decision came from a court above it in the hierarchy, or from a court whose previous decisions normally bind it
2. the earlier decision contains a ratio decidendi on the same legal issue
3. the material facts are sufficiently similar
4. no valid method of avoiding the precedent applies, such as distinguishing or overruling

For AQA purposes, the hierarchy can be used like this:

The hierarchy matters because it separates authority from opinion. A Crown Court judge may reason carefully, but that decision will not bind the Court of Appeal. A Supreme Court ratio, by contrast, must normally be applied by lower courts even if a later judge personally dislikes the policy.

A common mistake is to say "a higher court binds a lower court" without explaining what binds. It is the ratio decidendi of the higher court's decision, not every fact, comment, quotation or result.

Ratio Obiter And Law Reporting

The ratio decidendi is the legal reason necessary for the decision. It is binding when it comes from the right court and the later case is materially similar. To find the ratio, ask:

1. What legal issue did the court have to decide?
2. Which material facts affected that legal issue?
3. What rule or principle was necessary to reach the outcome?
4. Which parts of the judgment were explanation, illustration or comment rather than the necessary reason?

Obiter dicta are things said by the way. They are not necessary to the decision, so they do not bind later courts. They can still be persuasive, especially when made by a senior court or a respected judge. This is useful because judges sometimes discuss how the law might apply to future facts that are not directly before the court.

Law reporting is essential because judges and lawyers need reliable access to the earlier decision. A useful law report does more than record who won. It identifies the court, the judges, the material facts, the arguments, the judgment and the legal reasoning. Without accurate reporting, later courts could not confidently identify the ratio or check whether an authority was binding.

Use cases as legal tools, not decorative names. For example, AQA materials use Donoghue v Stevenson as an illustration of common law development through precedent. The useful point in a precedent answer is not to retell every detail of the facts; it is to show that later negligence reasoning can build from a judicially created duty principle. Similarly, Balfour v Balfour and Merritt v Merritt are often used in contract to show how later courts may treat domestic agreements differently where the material context changes.

The safest writing formula is:

Following Distinguishing And Overruling

The operation of precedent is not one single move. A later court must decide what legal effect the earlier case has.

Following means applying the earlier ratio to the later case. This is the ordinary result where a binding precedent exists and the material facts are similar. The consequence is consistency: the same legal rule controls both cases.

Distinguishing means refusing to apply an earlier ratio because the later case has a material factual difference. The earlier case remains good law, but it does not control the new facts. This is a major source of flexibility because a lower court can avoid an apparently relevant precedent without saying that the earlier court was wrong.

Overruling means a higher court, or a court allowed to depart from its own earlier decision, declares that an earlier legal rule should no longer be followed. The earlier precedent loses authority for future cases. This is different from an appeal court reversing the decision in the same case; overruling concerns the legal authority of an earlier precedent.

The Supreme Court's flexibility is linked to the 1966 Practice Statement. AQA's mark scheme describes it as allowing the Supreme Court to depart from a previous decision when it appears right to do so, while bearing in mind the need for certainty, especially in areas such as contracts, property, fiscal arrangements and criminal law. AQA examples include R v Shivpuri overruling Anderton v Ryan, showing that a senior court can correct a previous legal approach even where the earlier decision is recent.

Use this decision route:

Persuasive Authority And Uncertainty

Persuasive authority may influence a court but does not have to be followed. It matters because many legal problems do not arrive with a neat binding precedent. AQA's specification expects students to construct legal arguments even where there are unclear or conflicting precedents.

Persuasive sources can include:

Uncertainty often arises because the ratio is hard to state at the correct level of generality. If the ratio is stated too narrowly, almost every later case can be distinguished. If it is stated too widely, a judge may treat a case as controlling situations the earlier court never needed to decide.

For example, if an earlier decision says "a written threat may amount to assault where it causes apprehension of immediate unlawful violence", the ratio is not simply "letters can be assault" or "all threats are assault". The later court must ask whether the facts create the required immediacy and apprehension. This is how precedent connects to AO2 application in substantive topics.

In an answer, uncertainty should be expressed as legal uncertainty, not vague hesitation. Use phrases such as:

• "The stronger argument is..."
• "This depends on whether the difference is material..."
• "The earlier case is persuasive rather than binding because..."
• "A lower court would probably have to follow the ratio, although it could distinguish if..."

Applying Precedent To Scenarios

Precedent application is a legal comparison between the earlier case and the later facts. Do not retell the story of both cases. Select the facts that matter to the legal rule.

Use this application structure:

Consider this new scenario. A Court of Appeal judge is deciding whether a message sent late at night can amount to an assault. There is an earlier binding appellate decision about threats communicated by phone, but in the new case the message says the sender will come "next month". The earlier case helps because it shows that words or communications can be legally significant. The later court must still ask whether the specific facts satisfy the assault requirement of apprehending immediate unlawful personal violence.

The application should run like this:

• The earlier appellate decision is binding on the Court of Appeal if its ratio covers the issue.
• The fact that both cases involve communicated threats supports following.
• The phrase "next month" may be a material difference because immediacy is weaker.
• The likely conclusion is cautious: the communication point may bind, but the later court may distinguish on immediacy.

This style earns more credit than saying "the court will use precedent". It shows hierarchy, ratio, material facts and calibrated conclusion.

Evaluation And AQA Recap

Evaluation of precedent should use legal criteria, not personal preference. AQA examiner commentaries reward answers that assess advantages such as consistency, predictability, the rule of law and the ability to avoid precedent where appropriate. A weaker answer merely explains the doctrine or lists disadvantages without judging them.

The strongest advantages are:

The main disadvantages are:

A high-quality AO3 paragraph does three things. First, it makes a clear evaluative claim. Second, it anchors that claim in a legal feature of precedent. Third, it reaches a reasoned conclusion.

Example:

Precedent promotes certainty because lower courts must follow binding ratios from higher courts, so lawyers can advise clients with some confidence. However, certainty is reduced where the ratio is hard to identify or where judges distinguish fine factual differences. Overall, precedent is strongest as a source of predictable legal development when law reports are clear and the hierarchy is respected, but it is less effective where old authority survives only because no suitable appeal has reached the Supreme Court.

For AQA answers, remember the division of labour. AO1 explains the doctrine: hierarchy, ratio, obiter, law reporting and the operations of following, distinguishing and overruling. AO2 uses precedent by comparing material facts and deciding whether an earlier rule applies. AO3 evaluates whether precedent makes law more certain, flexible, fair and legitimate, or whether it makes the law too complex and judge-made.