AS Law Sources of Law Revision Guide (OCR)

Arguments and evidence for all Sources of Law past questions, in table form.

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AS Law Sources of Law Revision Guide (OCR)
The mechanics of precedent:
Stare decisis To stand by matters that have been decided.
Britain's oldest and most important source of source, which forms the basis of most of
the fundamental areas of law.
Provides certainty, predictability and stability in the legal system.
Law reports Required for precedent to operate effectively.
Case notes which feature the ratio decidendi and obiter dicta of a case.
Law reports have existed since at least the 13th Century but until 1865 they were
variable in quality and reliability.
In 1865, the Incorporated Council of Law Reporting was set up to make more accurate
reports.
The All England Series has reported many major cases from 1936 onwards.
Ratio Reasons for decision.
decidendi Must be followed in future cases.
In BRB v Herrington (1972), the ratio decidendi was a duty of care is owed to child
trespassers.
Obiter dicta Other things said by the judge.
A form of persuasive precedent.
Don't have to be followed in future cases, but may influence the verdict.
In R v Gotts (1992), the court found the boy who committed attempted murder under
duress guilty by being influenced by the obiter dicta from R v Howe (1987) that duress
should not be available for attempted murder.
Binding Decisions that must be followed by the same court and by courts lower than it in the
precedent court hierarchy.
R v Brown (1993) followed R v Donovan (1934) on the basis that consent cannot be
given ABH or GBH if there is a sexual motive.
Original A point of law within a case is unique and hasn't been considered before.
precedent Donoghue v Stevenson (1932) created the modern law of civil negligence and
established the neighbour test.
Persuasive Decisions which influence (but do not bind) a case can come from:
precedent Courts lower in the hierarchy.
Obiter dicta statements.
Decisions of other countries.
Privy Council decisions, which deals with commonwealth issues.
Dissenting judgements, in which one judge disagrees with the verdict and speaks out.
Overruling A decision which states that a precedent made in an earlier case is wrong.
The Supreme Court can sometimes overrule its own binding precedents due to the
Practise Statement (1966).
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The Court of Appeal can sometimes overrule its own binding precedents using the
Young v Bristol Aeroplane (1944) exceptions.
Reversing A higher court can change a lower court's decision if the disagree with it.
In Fairchild and Others (2002), the House of Lords reversed the Court of Appeal's
decision on the basis that businesses are liable to be sued for being becoming ill due to
the business's asbestos in their house.…read more

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R v Brown (1993) followed R v Donovan This means that law can remain unfair for a long
(1934) on the basis that consent cannot time if it is not rectified.
be given ABH or GBH if there is a sexual
motive.
Predictable. Being predictable means the law is rigid.
Lawyers can give accurate advice, which One wrong decision has to be followed.
is good for all parties involved.…read more

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Reasoned by analogy using Aldred's Case (1611).
Persuasive precedent:
Persuasive Cases
precedent
Courts lower in R v R (1980) husband raped wife Court of Appeal persuaded the House of Lords
the hierarchy to abolish the marital rape exemption rule.
Obiter dicta R v Howe (1987) Howe and Bailey murdered two people while being threatened
statements by Murray found guilty because duress not available for murder the obiter dicta
was that duress should not be available for attempted murder.…read more

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Miliangos v George Frank (1976) overruled Havana Railways (1961) on the basis that
damages now don't have to be awarded in sterling for a breach of contract.
R v Shivpuri (1986) overruled Anderton v Ryan (1985) on the basis that you can now be
found guilty of attempting the impossible.
Austin v Southwark (2010) overruled Brent LBC v Knightley (1997) on an issue of tenant
law.…read more

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Definitio When a judge can avoid an otherwise binding precedent by showing that there is a
n difference in the material facts of two cases.
Features If the material facts are sufficiently different, the judge is not bound.
The precedent need not be followed and a new decision can be made.
Has been used to avoid absurdity in a specific situation.…read more

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Distinguishin R v Wilson (1997) was distinguished from R v Brown (1993) on the basis that there
g wasn't a sexual motive, so consent for ABH could be given.
The powers of the Court of Appeal:
Binding Second highest court and binds all lower courts.
Bound by the Supreme Court, unless it conflicts with the ECJ, e.g. Sharp v Caledonia
Group Services Ltd (2005) involving the Equal Pay Act.
Can overrule its own precedents if they conflict with the ECJ.…read more

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Could lead to the system of precedent
breaking down.
The Court of Appeal is already the final court The last possible chance of an appeal to the
for most cases. Supreme Court would be lost.…read more

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This means in theory the judiciary should not This wastes Parliament's time which could be
overrule because they should just follow the spent on more important issues.
law.
Effectiveness of the Practise Statement (1966):
Practise Statement (1966) is effective Practise Statement (1966) is not effective
Can be used to fix mistakes. Rarely used, meaning some mistakes aren't fixed.…read more

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Advantages and disadvantages of the literal rule:
Advantages of the literal rule Disadvantages of the literal rule
Increased fairness due to increased Decreased fairness as it can cause injustice and
certainty. absurdity.
The verdict will be the same for everyone. In London and N.E. Railway Co. v Berriman
Cheeseman v DPP (1990) defendant not (1946), the wife of a worker killed whilst
guilty, so other defendants in the same "maintaining" the tracks was denied
situation will be not guilty.…read more

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