The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The penalties were substantial, though there existed a system of appeals.
Held: The principle that the punishment must fit the crime was irreconcilable with the notion of a substantial fixed penalty. The system was incompatible with the respondents’ article 6 human rights. As to the rights under the European treaty, not every breach of the Convention affecting cross- border trade and services involved an impermissible restriction on Treaty rights. Here the effects of cross-border trade were at best only tenuously established, and that part of the appeal succeeded. Simon Brown LJ ‘. . . the court’s role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility. . . But judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts.’
Laws LJ dissenting set out the following tests of the deference which the judicial arm of government should show to the other arms of government: (1) greater deference is to be paid to an Act of Parliament than to a decision of the executive or subordinate measure; (2) there is more scope for deference ‘where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified’ (per Lord Hope in ex parte Kebilene); (3) greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts; (4) greater or less deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts). ‘The first duty of government is the defence of the realm. It is well settled that executive decisions dealing directly with matters of defence, while not immune from judicial review (that would be repugnant to the rule of law), cannot sensibly be scrutinised by the courts on grounds relating to their factual merits . . ‘
Judges:
Lord Justice Simon Brown, Lord Justice Laws, And, Lord Justice Jonathan Parker
Citations:
Times 26-Feb-2002, [2002] EWCA Civ 158, [2002] 3 WLR 344, [2003] QB 728
Links:
Statutes:
Immigration and Asylum Act 1999, European Convention on Human Rights Art 6, EC Treaty 28 49
Jurisdiction:
England and Wales
Citing:
Appeal from – International Transport Roth GmbH and Others v Secretary of State for the Home Department QBD 5-Dec-2001
The respondent introduced rules imposing fixed and penalties on HGV drivers coming into the UK who were found to have stowaway illegal entrants. The operators sought judicial review.
Held: The penalty was in the character of a criminal . .
Cited by:
Cited – Gora and others v Commissioners of Customs and Excise and others CA 11-Apr-2003
The appellants challenged decisions of the VAT and Duties Tribunal after seizure of their goods, and in particular whether the cases had been criminal or civil cases and following Roth, whether the respondent’s policy had been lawful and . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – British American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Lists of cited by and citing cases may be incomplete.
Transport, Administrative, European, Human Rights
Updated: 05 June 2022; Ref: scu.167653