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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…

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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…

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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
Predictable. Being predictable means the law is rigid.…

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Reasoned by analogy using Aldred's Case (1611).

Persuasive precedent:
Persuasive Cases
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…

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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.…

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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…

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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,…

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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.
It would be more efficient for the Court of In Sweet v Parsley, the House…

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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.

Effectiveness of the Practise Statement (1966):
Practise Statement (1966) is effective Practise Statement (1966) is not effective
Can be used to fix…

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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…




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