Judicial Precedent: Binding, Original And Persuasive Precedents (Copy)
Judicial Precedent: Binding, Original And Persuasive Precedents
Case Precedents & Statutes Sheet (AS Level Law – England and Wales)
Core Framework of Precedent Types
| Type of Precedent | Legal Meaning | Exam Focus |
|---|---|---|
| Binding precedent | Must be followed by lower courts | Certainty |
| Persuasive precedent | May be followed | Flexibility |
| Original precedent | New legal principle created | Law development |
Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course
Binding Precedent — Mandatory Authority
Legal Meaning
- A precedent that must be followed
- Applies when:
- Decision comes from a higher court
- Facts are materially similar
- Ratio decidendi is clear
Key Authorities on Binding Precedent
| Case | Court | Principle | Exam Use |
|---|---|---|---|
| London Street Tramways v London County Council (1898) | House of Lords | Highest court bound by its own decisions (historic) | Certainty |
| Young v Bristol Aeroplane Co Ltd (1944) | Court of Appeal | CA bound by own decisions subject to exceptions | Structure |
| R v Brown (1993) | House of Lords | Binding authority on consent in assault | Criminal example |
| Donoghue v Stevenson (1932) | House of Lords | Binding duty of care principle | Civil example |
Court Hierarchy and Binding Effect
| Higher Court | Binds |
|---|---|
| Supreme Court | All lower courts |
| Court of Appeal | High Court, Crown Court, County Courts |
| High Court | Crown Court, County Courts (limited) |
- Binding precedent ensures:
- Predictability
- Equality before the law
Limits to Binding Precedent
| Authority | Limitation |
|---|---|
| Practice Statement (Judicial Precedent) 1966 | Supreme Court may depart |
| Young v Bristol Aeroplane | CA exceptions |
| Per incuriam doctrine | Decisions given in error |
Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course
Original Precedent — Creation of New Law
Legal Meaning
- Occurs when:
- No existing precedent applies
- Court creates a new legal principle
- Judge is effectively making law
Key Authorities on Original Precedent
| Case | Court | Original Principle | Exam Focus |
|---|---|---|---|
| Donoghue v Stevenson (1932) | House of Lords | Neighbour principle | Landmark |
| R v R (1991) | House of Lords | Marital rape recognised | Social change |
| Gillick v West Norfolk and Wisbech AHA (1986) | House of Lords | Gillick competence | Rights |
| Shaw v DPP (1962) | House of Lords | Offence of conspiracy to corrupt public morals | Controversial |
Significance of Original Precedent
| Advantage | Explanation |
|---|---|
| Flexibility | Law adapts to new situations |
| Speed | Faster than legislation |
| Detail | Based on real disputes |
Criticism
- Judges are unelected
- May conflict with parliamentary supremacy
Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course
Persuasive Precedent — Influential but Not Binding
Legal Meaning
- A precedent a court may follow but is not obliged to follow
- Influences development of law
Sources of Persuasive Precedent
1. Lower Court Decisions
| Case | Court | Persuasive Effect |
|---|---|---|
| R v R (1991) | CA → HL | CA decision persuaded HL |
| Balfour v Balfour (1919) | CA | Persuasive to HL |
2. Decisions from Other Jurisdictions
| Case | Court | Exam Use |
|---|---|---|
| R v R (1991) | International cases cited | Comparative influence |
| Morgentaler v The Queen (1988) | Canadian Supreme Court | Persuasive authority |
3. Obiter Dicta
| Case | Court | Influence |
|---|---|---|
| R v Howe (1987) | House of Lords | Obiter later followed |
| R v Gotts (1992) | House of Lords | Obiter became binding |
4. Statements from the Supreme Court
| Authority | Effect |
|---|---|
| Supreme Court obiter | Strongly persuasive |
| Dissenting judgments | Persuasive reasoning |
Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course
Comparison of Precedent Types
| Feature | Binding | Original | Persuasive |
|---|---|---|---|
| Must be followed | Yes | Becomes binding | No |
| Creates law | No | Yes | No |
| Flexibility | Low | High | Moderate |
| Certainty | High | Moderate | Low |
Examination-Focused Evaluation
| Issue | Authority | Evaluation Point |
|---|---|---|
| Certainty | London Street Tramways | Predictability |
| Flexibility | Practice Statement 1966 | Development |
| Judicial creativity | Shaw v DPP | Controversial |
| Evolution | Donoghue v Stevenson | Necessary change |
High-Band Integration Points
- Link binding precedent to:
- Certainty
- Stare decisis
- Link original precedent to:
- Judicial law-making
- Social change
- Link persuasive precedent to:
- Flexibility
- Gradual development
Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course
Ultra-Condensed Exam Recall Grid
| Concept | Authority | Memory Hook |
|---|---|---|
| Binding precedent | Young v Bristol Aeroplane | Must follow |
| Original precedent | Donoghue v Stevenson | New law |
| Persuasive precedent | Howe → Gotts | Influence |
| Flexibility | Practice Statement 1966 | Depart |
| Criticism | Shaw v DPP | Judges create law |
Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course