Broadcasting Corporation of New Zealand v Attorney General: 1982

(Court of Appeal of New Zealand) Woodhouse P said: ‘the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process may be regarded as fulfilling its purposes.’

Judges:

Woodhouse P

Citations:

[1982] 1 NZLR 120

Jurisdiction:

England and Wales

Cited by:

CitedGuardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 08 May 2022; Ref: scu.452491

In Re Boaler: CA 1915

The court was asked whether the 1896 Act which permitted a court to make an order that a person could not institute proceedings without the leave of the court, applied to the institution of criminal proceedings.
Held: It did not. Scrutton J said: ‘In the case of this statute the legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting part of the statute only, the presumption against the interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to the meaning which effects the least interference with those rights.’ but ‘The object of the court is, from the words used, construed in reference to the subject-matter in which they are used, to get at the intention of the legislature and give effect to it. When the legislature has used general words capable of a larger and a narrower meaning, those words may be restricted by innumerable presumptions all designed to give effect to the reasonable intent of the legislature.’
‘One of the valuable rights of every subject of the King is to appeal to the King in his Courts if he alleges that a civil wrong has been done to him, or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension.’

Judges:

Scrutton J

Citations:

[1915] KB 21

Statutes:

Vexatious Actions Act 1896

Cited by:

CitedA, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
CitedChester v Bateson 1920
A Regulation brought in under the 1914 Act prohibited the bringing of possession proceedings against a munitions worker without the consent of the Minister.
Held: The prohibition was unlawful. It was a grave invasion of the rights of the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Updated: 07 May 2022; Ref: scu.267159

McMonagle v Westminster City Council: HL 1989

The House treated words as surplusage in a statute which contained criminal sanctions in order to avoid the substantial frustration of the object of the Act. Words in an Act are not to be rendered ‘insensible, absurd or ineffective to achieve its evident purpose.’
Lord Bridge said: ‘It is a canon of construction that, if it be possible, effect must be given to every word of an Act of Parliament or other document; but that, if there be a word or a phrase therein to which no sensible meaning can be given, it must be eliminated.’
and ‘I recognise that this is a strong course to take in construing a statute and one which imputes an unusual degree of ineptitude to the draftsman . . the presumption that every word in a statute must be given some effective meaning is a strong one, but the courts have on occasion been driven to disregard particular words or phrases when, by giving effect to them, the operation of the statute would be rendered insensible, absurd or ineffective to achieve its evident purpose.’

Judges:

Lord Bridge

Citations:

[1990] 2 AC 716, [1990] 1 All ER 993

Statutes:

Local Government (Miscellaneous Provisions) Act 1982 Sch 3

Jurisdiction:

England and Wales

Citing:

CitedStone v Yeovil Corporation 1876
Brett J said: ‘It is a canon of construction that, if it be possible, effect must be given to every word of an Act of Parliament or other document; but that, if there be a word or phrase therein to which no sensible meaning can be given, it must be . .

Cited by:

CitedHaw, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 8-May-2006
The applicant had demonstrated continuously against the war in Iraq from the pavement outside the House of Commons. The respondent sought an order for his removal under the law preventing demonstrations near Parliament without consent which was . .
CitedBarratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water) SC 9-Dec-2009
The developers wanted to construct their private sewer to the public sewer at a point convenient to them. The water company said a connection at the point proposed would overload the sewer, and refused. The developer claimed that it had the right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 07 May 2022; Ref: scu.242611

Caledonian Railway Company v North British Railway Company: HL 1881

The House considered the principle of the literal construction of a statute: ‘The more literal construction ought not to prevail, if . . it is opposed to the intentions of the Legislature, as apparent by the statute; and if the words are sufficiently flexible to admit of some other construction by which that intention will be better effectuated.’

Judges:

Lord Selborne

Citations:

(1881) 6 AC 114

Jurisdiction:

England and Wales

Cited by:

CitedNational Grid Gas Plc, Regina (on the Application of) v The Environment Agency Admn 17-May-2006
The claimant sought a judicial review of the decision to hold them responsible for necessary works of remediation. They were statutory successors to British Gas Corporation.
Held: The legislation clearly attempted to hold the contaminator . .
Lists of cited by and citing cases may be incomplete.

Company, Constitutional

Updated: 07 May 2022; Ref: scu.242434

Great Western Railway Co v Mostyn (Owners): HL 1928

The House considered the application of a case precedent where they had been uunable to extract a binding ratio decidendi.
Held: A ratio decidendi cannot be created by aggregating views of minority judges and views of majority judges to secure a numerical majority on a particular issue. Viscount Dunedin (dissenting) said as to the ratio of the case referred to: ‘Now, when any tribunal is bound by the judgment of another Court, either superior or co-ordinate, it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear – as is the case in most instances – what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding. But it is not clear, then I do not think it is part of the tribunal’s duty to spell out with great difficulty a ratio decidendi in order to be bound by it. That is what the Court of Appeal has done here. With great hesitation they have added the opinion of Lord Hatherley to that of Lord Cairns and then, with still greater difficulty, that of Lord Blackburn, and so have secured what they think was a majority in favour of Lord Cairns’s very clear view. I do not think that the respect which they hold and have expressed for the judgments of your Lordships’ House compelled them to go through this difficult and most unsatisfactory performance.’ and ‘[Y]ou cannot extract from the judgments in Wear v Adamson such a ratio decidendi as is binding. That, however, is far from wiping Wear v Adamson off the slate. It remains for two purposes. First, for the judgment itself and, second, for the opinions of the noble Lords, which are entitled to the greatest respect. Now, the judgment is binding. What, therefore, I think is our duty on this occasion is to consider the statute for ourselves in the light of the opinions, diverging as they are, and to give an interpretation; but that interpretation must necessarily be one which would not, if it applied to the facts of Wear v Adamson, lead to a different result.’

Judges:

Viscount Haldane, Viscount Dunedin

Citations:

[1928] AC 57, 97 LJP8, 138 LT 403

Statutes:

Harbours, Docks and Piers Clauses Act 1847 74

Jurisdiction:

England and Wales

Citing:

ExaminedRiver Wear Commissioners v Adamson HL 1877
It was not necessary for there to be an ambiguity in a statutory provision for a court to be allowed to look at the surrounding circumstances.
As to the Golden Rule of interpretation: ‘It is to be borne in mind that the office of the judge is . .
Lists of cited by and citing cases may be incomplete.

Transport, Constitutional

Updated: 07 May 2022; Ref: scu.242136

Attorney-General v Great Southern and Western Rly Co of Ireland: HL 1925

The House considered the effect on the Irish Free State of a liability undertaken by the United Kingdom Government before the formation of the Irish Free State.
Held: No suit can be maintained against the Crown in right of Great Britain or of a dominion or colony in respect of a liability unless it is to be satisfied out of the British exchequer or the treasury of that dominion or colony. The question whether a suit against the Crown should be brought against it in right of one Dominion, Possession, or jurisdiction rather than another depends upon the exchequer or treasury out of which the liability or claim put in suit would be discharged or satisfied. The responsibility of producing the fund out of which the obligation can be met, depends upon provision being made by the Parliaments of the States, if they choose-and only if they choose-so to provide.

Judges:

Viscount Haldane, Lord Phillimore

Citations:

[1925] AC 754

Jurisdiction:

England and Wales

Cited by:

CitedManuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 07 May 2022; Ref: scu.241377

Leach v Rex: HL 1912

Save insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make alterations in the common law.

Citations:

[1912] AC 305

Jurisdiction:

England and Wales

Cited by:

CitedAttorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Updated: 06 May 2022; Ref: scu.214614

Lewisham Borough Council v Roberts: CA 1949

The council sought to exercise its powers under the Act to take possession of part of the defendant’s property.
Held: Denning LJ said: ‘It is necessary to consider the nature of the power to requisition land. It is only a power to take possession of land. It is not a power to acquire any estate or interest in any land . . Once possession is taken the Crown can exercise all the powers incident to possession, such as to license other people to use the premises; . . but it cannot grant a lease or create any legal interest in the land in favour of any other person, because it has itself no estate in the land out of which to carve any interest.’
Jenkins J rejected an argument that the principle was one of delegation: ‘I think this contention is based on a misconception of the relationship between a minister and the officials in his department. A minister must perforce, from the necessity of the case, act through his departmental officials, and where as in the Defence Regulations now under consideration functions are expressed to be committed to a minister, those functions must, as a matter of necessary implication, be exercisable by the minister either personally or through his departmental officials; and acts done in exercise of those functions are equally acts of the minister whether they are done by him personally, or through his departmental officials, as in practice, except in matters of the very first importance, they almost invariably would be done. No question of agency or delegation . . seems to me to arise at all.’

Judges:

Denning LJ

Citations:

[1949] 2 KB 608

Statutes:

Emergency Powers (Defence) Act 1939

Jurisdiction:

England and Wales

Cited by:

CitedBruton v London and Quadrant Housing Trust HL 24-Jun-1999
The claimant sought to oblige the respondent to repair his flat under the 1988 Act. The respondent replied that the arrangement was a licence only, and not protected under the Act.
Held: The housing association had a temporary licence to . .
CitedCastle v Crown Prosecution Service Admn 24-Jan-2014
The defendant appealed from his conviction for having driven in excess of a variable speed limit on the motorway. He said that the Order under which the speed limit had been imposed was irregular. . .
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land, Constitutional

Updated: 06 May 2022; Ref: scu.199979

Thomas v Attorney-General of Trinidad and Tobago: PC 1982

The court deprecated the ‘spoils’ system which operated within the post office.
Lord Diplock set out the purposeof the constitutional commission: ‘The whole purpose of Chapter VIII of the Constitution which bears the rubric ‘The Public Service’ is to insulate members of the civil service, the teaching service and the police service in Trinidad and Tobago from political influence exercised directly upon them by the government of the day. The means adopted for doing this was to vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service. These autonomous commissions, although public authorities, are excluded by section 105(4)(c) from forming part of the service of the Crown.’

Judges:

Lord Diplock

Citations:

[1982] AC 113, (1981) 32 WIR 375, [1981] 3 WLR 601

Jurisdiction:

Commonwealth

Cited by:

CitedPerch, Dennie and Commissiong v The Attorney General of Trinidad and Tobago PC 20-Feb-2003
PC (Trinidad and Tobago) The postal system had been transferred to a company. Employees complained that they had been public servants and had lost privileges associated with that employment, and provisions of the . .
Lists of cited by and citing cases may be incomplete.

Crime, Constitutional, Police

Updated: 06 May 2022; Ref: scu.186584

Wright v Hale: 23 Nov 1860

When considering the retrospective effects of an Act, ‘where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.’

Judges:

Wilde B

Citations:

(1860) 6 H and N 227, [1860] EngR 1191, (1860) 6 H and N 227, (1860) 158 ER 94

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Litigation Practice

Updated: 06 May 2022; Ref: scu.184441

Pillai v Comptroller of Income Tax: PC 1970

The role of the Privy Council is purely appellate, and the court will not rule on points of law which had not been raised in the court from which the appeal lay.

Citations:

[1970] AC 1124

Jurisdiction:

England and Wales

Cited by:

CitedKemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.182906

Regina v Big M Drug Mart: 1985

Supreme Court of Canada – A company was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act. It challenged the legislation. The freedom affected was that of persons prevented by the Act from working on a Sunday.
Held: This was a relevant restriction on the company.
Dickson J said: ‘Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.’

Judges:

Dickson J

Citations:

(1985) 1 RCS 295

Jurisdiction:

Canada

Cited by:

CitedCommodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.582139

Scott v Regina: 2004

Participation in religious prayers were required of soldiers during routine parades at a Canadian Forces base. The soldiers were preceded by an order to remove headdress. The soldier had no religious convictions, had (after having previously raised with his superior his concerns about being made to participate in a prayer service in which he did not believe) refused to remove his headdress (but had evidently continued to stand on parade) and was being charged simply with that refusal.
Held: The order conflicted with paragraph 2(a) of the Charter: ‘The order that was given . . was to show ‘respect’ for what was being done and not mere passive toleration. That is to say, it was designed to constrain him to make a public gesture of approval for a religious ceremony in which he did not believe. .
The fact that the practice of pronouncing prayers at parades and requiring some form of public assent thereto has been hallowed by a tradition of many years in the military as well as other circles cannot justify a breach of the appellant’s Charter rights. We emphasize that what was required of the appellant was active participation in the religious ceremony with which he disagreed. The question of enforced passive participation by mere presence is an entirely different issue and one that we do not reach today.’

Citations:

[2004] 123 CRR (2d) 371

Jurisdiction:

Canada

Cited by:

ApprovedCommodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Armed Forces

Updated: 06 May 2022; Ref: scu.582140

Banton v Alcoa Minerals of Jamaica Inc: 1971

Citations:

(1971) 17 WIR 275

Jurisdiction:

Commonwealth

Cited by:

CitedCommodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.582137

Hope v New Guyana Ltd: 1979

Citations:

(1979) 26 WIR 233

Jurisdiction:

Commonwealth

Cited by:

CitedCommodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.582138

Regina v Secretary of State for the Home Department: Ex parte Muboyayi: CA 1992

Lord Donaldson of Lyminton MR said: ‘Chapters 39 and 40 of Magna Carta provide:
No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any way destroyed, neither will we set forth against him or send against him, except by the lawful judgment of his peers and by the law of the land.
To no one will we sell, to no one will we refuse or delay right or justice.
The duty of the courts is to uphold this classic statement of the rule of law and if, in particular circumstances, a writ of habeas corpus is the appropriate procedure for doing so, it is wholly immaterial that the practical effect may be the same as enjoining the Crown.’
and ‘The great writ of habeas corpus has over the centuries been a flexible remedy adaptable to changing circumstances.’

Judges:

Lord Donaldson of Lyminton MR

Citations:

[1992] 2 QB 244

Statutes:

Magna Carta

Constitutional

Updated: 06 May 2022; Ref: scu.470606

Regina v Secretary of State for the Home Department, Ex parte Rajinder Kaur: CA 1987

The court considered a provision requiring refusal of leave to enter if there was no entry clearance.
Held: Such a mandatory rule was intra vires, the Secretary of State retaining a discretion outside the 1971 Act. Glidewell LJ said: ‘immigration was formerly covered by the royal prerogative and it was a matter which lay entirely within the exercise of that prerogative. Much of the prerogative powers vested in the Crown in this field have now been superseded by a statute but there remains-and this is what the royal prerogative is-a residual power in the Crown, through Her Majesty’s Secretary of State for Home Affairs, to exercise such residual power as is necessary for the proper control of immigration.
In my view, the exercise of discretion in relation to leave to enter outside the rules is an exercise of the remaining part of that prerogative power’

Judges:

Glidewell LJ, Schiemann J

Citations:

[1987] Imm AR 278

Statutes:

Immigration Act 1971

Jurisdiction:

England and Wales

Cited by:

DisapprovedMunir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional

Updated: 06 May 2022; Ref: scu.462963

Case XLIII 2 H 7, 6 Patents, Pardons, Non Obstante: 1220

In cases of the King’s patents with non obstante for the shrievalty of any county, in fee, tail, or for life ; or for the exportation of wool, or for homicide ; although there are statutes which ordain such patents to be void, yet, with a clause of non obstante they are good, and to be allowed : and although the statutes say that such patents shall be void, although they have a clause with non obstante ; yet a patent of such things with words of non obstante any clause derogating from the non obstante will make the patent good. The reason of the law is, the King, by his royalty is trusted with the government, pardons and publick business: particular cases may happen which deserve remission, upon consideration of circumstances.

Citations:

[1220] EngR 267, (1220-1623) Jenk 173, (1220) 145 ER 113 (E)

Links:

Commonlii

Jurisdiction:

England and Wales

Constitutional

Updated: 06 May 2022; Ref: scu.461179

Case XXXV 23 El Dyer, 275, 177 14 El Cap 3 13 El Cap 3 Dyer, 128 Licence Dyer, 62 Forfeiture, Patents, Authority, Revocation 1 And 95 Moor 109 Poph 18 7 Co 11 B Dyer, 276 1 Leon 9, 10 Moor 779 4 Leon 140 2 Roll Rep 13: 1220

The King licenses A. to go beyond sea for a certain time ; after this time is expired, A. is commanded under. the privy seal, upon his allegance to return into England ; he does not obey : his goods, chattels and lands are seisetl into thc King’s hands for this contempt : resolved by all the judges of England, that if A. in this case ; has a manor where there are copyholds ; and timber fit to be felled each season that the King may grant the copyhold, and sell the timber so fit to be felled. If the King makes that the two stewards to keep courts there : ne of them by himself, although with the consent of the other, can neither keep courts nor grant copies ; for they have a joint power. In this case, the King’s grant, quanidiu in manibus nostris fore contigerit, is good ; and such patentee may keep courts in his own name, grant copies ; and sell seasonable timber.

Citations:

[1220] EngR 341, (1220-1623) Jenk 246, (1220) 145 ER 174 (A)

Links:

Commonlii

Intellectual Property, Constitutional

Updated: 06 May 2022; Ref: scu.461253

Sirros v Moore: CA 1974

Lord Denning MR discussed the immunity of judges from suit: ‘Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or to take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear . . These words apply not only to the judges of the superior courts, but to judges of all ranks, high or low.’ However the doctrine of judicial immunity does not apply: ‘if it be shown that [a judge] was not acting judicially, knowing that he had no jurisdiction to do it.’

Judges:

Lord Denning MR

Citations:

[1975] QB 118, [1974] 3 All ER 776

Jurisdiction:

England and Wales

Constitutional, Legal Professions

Updated: 06 May 2022; Ref: scu.452169

Burdett, Bart v The Right Honourable Charles Abbot: CA 22 Apr 1812

Citations:

[1812] EngR 191, (1812) 4 Taunt 401, (1812) 128 ER 384

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Appeal fromSir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .

Cited by:

Appeal fromBurdett (Bart) v Abbot (Speaker, House of Commons); And Burdett (Bart) Colman (Sergeant At Arms) PC 2-Jul-1817
To an action of trespass against the Speaker of the House of Commons forcibly and with the assistance of armed soldiers, breaking into the messuage of the Plainttiff (the outer door being shut and fastened), and arresting him there, and taking him . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.338677

The Wensleydale Peerage: HL 22 Feb 1856

Sir James Parke, a distinguished judge of the Court of the Exchequer, was created a Life Peer but the House of Lords refused to allow him to sit and vote in the House because, they decided, that as the law then stood, the creation of Life Peers was not within the Crown’s prerogative powers.

Citations:

[1856] EngR 294, (1856) 5 HLC 958, (1856) 10 ER 1181

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedViscountess Rhondda’s Claim HL 1922
(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the . .
CitedMereworth v Ministry of Justice ChD 23-May-2011
The claimant’s father had been granted the hereditary title of Baron of Mereworth. The claimant having inherited the title objected to the refusal to issue to him a writ of summons to sit in the House of Lords.
Held: The claim was struck out . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.291049

Burdett (Bart) v Abbot (Speaker, House of Commons); And Burdett (Bart) Colman (Sergeant At Arms): PC 2 Jul 1817

To an action of trespass against the Speaker of the House of Commons forcibly and with the assistance of armed soldiers, breaking into the messuage of the Plainttiff (the outer door being shut and fastened), and arresting him there, and taking him to the Tower of London, and imprisoning there : it is a legal justification to plead that a Parliament was held which was sitting during the period of the trespasses complained of : that the Plaintiff was a member of the House of Commons : and that the House having resolved, ‘that a certain letter, etc. in Cobbett’s Weekly Register was a libellous and scandalous paper, reflecting on the just rights and privileges of the House, and that the Plaintiff, who had admitted that the said Ietter, etc. was printed by his authority, had been thereby guilty of a breach of the privileges of that House ; and having ordered that, for his said offence, he should be committed to the Tower, and that the Speaker should issue his warrant accordingly ; the Defendant as Speaker, in execution of the said order, issued his warrant to the Serjeant at Arms, to
whom the execution of such warrant belonged, to arrest the plaintiff and to commit him to the custody of the Lieutenant of the Tower : and issued another warrant to the Lieutenant of the Tower to receive and detain the Plaintiff in custody during the pleasure of the House ; by virtue of which first warrant the Serjeant at Arms went to the messuage of the Plaintiff,
where he then was, to execute it; and because the outer door was fastened, and he could not enter, after audible notification of his purpose and demand made of admission, he, by the assistance of the said soldiers, broke and entered the Plaintiff’s messuage, and arrested and conveyed him to the Tower, where he was received and detained in custody under the other warrant by the Lieutenant of the Tower. And to a similar action against the Serjeant at Arms, a similar plea, with variations, however, adapted to his situation, is a legal justification.
The Lord Chancellor considering it as clear in law that the House of Commons have the power of committing for contempt, and that this was a commitment for contempt. Lord Erskine concurring.

Citations:

[1817] EngR 614, (1817) 5 Dow PC 165, (1817) 3 ER 1289

Links:

Commonlii

Citing:

At Kings BenchSir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .
Appeal fromBurdett, Bart v The Right Honourable Charles Abbot CA 22-Apr-1812
. .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 May 2022; Ref: scu.333464

Dimes v Lord Cottenham: 2 May 1850

The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court.

Citations:

[1850] EngR 499 (A), (1850) 5 Exch 311

Links:

Commonlii

Citing:

See AlsoDimes v The Company of Proprietors of The Grand Junction Canal CExC 1846
By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
See AlsoThe Grand Junction Canal Company v Dimes 1-May-1849
In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
See AlsoThe Grand Junction Canal Company v Dimes CA 4-Feb-1850
The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .

Cited by:

See AlsoIn Re Dimes 26-Jul-1850
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .
See AlsoDimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
See AlsoDimes v The Proprietors Of The Grand Junction Canal and Others 29-Jun-1852
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Litigation Practice

Updated: 05 May 2022; Ref: scu.297846

The Grand Junction Canal Company v Dimes: CA 4 Feb 1850

The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again applied for the discharge of the order.
Held: The application was dismissed. The Master of the Rolls sat with the Lord Chancellor to concur in the opinion.

Judges:

Lord Cottenham LC,

Citations:

[1850] EngR 242, (1850) 2 Mac and G 285, (1850) 42 ER 110

Links:

Commonlii

Citing:

See AlsoDimes v The Company of Proprietors of The Grand Junction Canal CExC 1846
By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
See AlsoThe Grand Junction Canal Company v Dimes 1-May-1849
In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .

Cited by:

See AlsoDimes v Lord Cottenham 2-May-1850
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
See AlsoIn Re Dimes 26-Jul-1850
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .
Appeal fromDimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
See AlsoDimes v The Proprietors Of The Grand Junction Canal and Others 29-Jun-1852
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 May 2022; Ref: scu.297589

The Case of the Royal Fishery of the Banne: 1610

A royal fishery did not pass by a general grant of all fisheries, because general words in a grant did not pass ‘special royalty which belongeth to the Crown by prerogative’.

Citations:

[1610] Dav 149

Jurisdiction:

England and Wales

Cited by:

AppliedDuke of Somerset v Fogwell 1826
Where a subject is owner of a several fishery in a navigable river, where the tide flows and reflows, granted to him (as must be presumed) before Magna Charta, by the description of ‘separalem piscariam,’ that is an incorporeal and not a territorial . .
CitedCrown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Constitutional

Updated: 05 May 2022; Ref: scu.269747

Tobin v The Queen: 1864

The Commander of a Queen’s ship, employed in the suppression of the slave trade on the coast of Africa, seized a schooner belonging to the suppliant, which he suspected of being engaged in slave traffic. It being inconvenient to take the ship to port for condemnation in a Vice-Admiralty Court, the Commander caused the ship to be burned. The shipowners proceeded by Petition of Right. The supplicant-petitioners claimed to have sustained damages to the amount of andpound;10,000 and humbly prayed that Her Majesty would be pleased to do what was right and just in the premises and to cause her suppliants to be reimbursed and compensated for the losses, damages and injuries so sustained. The Attorney General, on demurrer, argued that if wrong had been done the remedy was against the Commander as the person who did it and, secondly, that the Crown was not responsible for acts such as those detailed in the petition. In the course of a long argument on behalf of the petitioner Sir Hugh Cairns drew attention to Blackstone’s Commentaries – 3 BL Comm 254: ‘That the King can do no wrong, is a necessary and fundamental principle of the English Constitution: meaning that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the King, nor is he, but his ministers, accountable for it to the people; and, second, that the prerogative of the Crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice. Whenever, therefore, it happens that that, by misinformation or inadvertence, the Crown hath been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign (for, who shall command the King?), yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the King of the true state of the matter in dispute: and, as it presumes, that, to know of any injury and to redress it are inseparable in the Royal Breast, it then issues as of course, in the King’s own name, his orders to his judges to do justice to the party aggrieved.’
Held: Erle CJ said: ‘The maxim that the King can do no wrong is true in the sense that he is not liable to be sued civilly or criminally for a supposed wrong. That which the sovereign does personally, the law presumes will not be wrong: that which the sovereign does by command to his servants, cannot be a wrong in the sovereign, because, if the command is unlawful, it is in law no command, and the servant is responsible for the unlawful act, the same as if there had been no command.’ He referred to 3 BL Comm: ‘The King can do no wrong; which antient and fundamental maxim is not to be understood as if everything transacted by the government was of course just and lawful, but means only two things, – first, whatever is exceptionable in the conduct of public affairs is not to be imputed to the King, nor he is answerable for it personally to his people; for, this doctrine would destroy the constitutional independence of the Crown, – and, secondly, that the prerogative of the Crown extends not to do any injury.’
That maxim, said the Chief Justice, had been constantly recognised and he rejected that the King could be responsible in damages for a supposed wrong. He then turned to the use and abuse of petitions of right. The court held that such petitions did not enable an award of damages to be made against the King; if damages were sought, they were to be obtained, if at all, from the officer who did the wrong.

Judges:

Erle CJ

Citations:

(1864) 16 CB (NS) 310

Cited by:

CitedFeather v The Queen 1865
Mr Feather had invented way of protecting ships against shot and obtained an exclusive patent. The Crown then had a ship constructed in a way that infringed the patent. As patentee Mr Feather asked for recompense; by petition of right he asked for . .
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 May 2022; Ref: scu.267401

Inland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd: HL 1952

A court is not prevented from interpreting the common law by an Act of parliament being based upon a different view.

Citations:

[1952] AC 401

Jurisdiction:

England and Wales

Cited by:

CitedWest Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 May 2022; Ref: scu.182110

L’Office Cherifien Des Phosphates and Another v Yamashita-Shinnihon Steamship Co Ltd: HL 19 Jan 1994

The subject matter of statutes is so varied that generalised maxims are not a reliable guide. An arbitrator can dismiss a claim for inordinate and inexcusable delay, even where this had arisen before the Act which created the power.
Lord Mustill said: ‘Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by parliament cannot have been intended to mean what they might appear to say.’ and
‘My Lords, it would be impossible now to doubt that the Court is required to approach questions of statutory interpretation with a disposition, and in some cases a very strong disposition, to assume that a statute is not intended to have retrospective effect. Nor indeed would I wish to cast any doubt on the validity of this approach for it ensures that the Courts are constantly on the alert for the kind of unfairness which is found in, for example, the characterisation as criminal of past conduct which was lawful when it took place, or in alterations to the antecedent national, civil or familial status of individuals. Nevertheless, I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the Court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule.’

Judges:

Lord Mustill

Citations:

Gazette 26-Jan-1994, Independent 19-Jan-1994, Times 17-Dec-1993, [1994] 1 AC 486, [1994] 1 All ER 20, [1994] 1 Lloyds Rep 251, [1994] 2 WLR 39

Statutes:

Arbitration Act 1950 13A

Jurisdiction:

England and Wales

Cited by:

CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
CitedOdelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Constitutional

Updated: 05 May 2022; Ref: scu.90653

Close v Steel Company of Wales Ltd: 1962

The pursuer sought damages after injury arising from the use of a tool for a purpose other than that for which it was intended to be used. Lord Denning quoted Sir Frederick Pollock to say: ‘Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.’ referring to Selborne LC’s judgment in Caledonian Railway, he said: ‘A judgment which is right, and consistent with sound principles, upon the facts and circumstances of the case which the House had to decide, need not be construed as laying down a rule for a substantially different state of facts and circumstances, though some propositions, wider than the case itself required, may appear to have received countenance from those who then advised the House.’

Judges:

Lord Denning

Citations:

[1962] AC 367

Jurisdiction:

England and Wales

Citing:

CitedCaledonian Railway Co v Walker’s Trustees 1882
The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: ‘The obstruction by the execution of the work, of a man’s direct access to his house or land, . .
CitedQuinn v Leathem HL 5-Aug-1901
Unlawful Means Conspiracy has two forms
Quinn was treasurer of a Belfast butchers’ association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union . .

Cited by:

CitedRobb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Lists of cited by and citing cases may be incomplete.

Health and Safety, Scotland, Constitutional

Updated: 04 May 2022; Ref: scu.247757

Mootoo v Attorney-General of Trinidad and Tobago: PC 1979

(Trinidad and Tobago) Proponents of claims that properly passed parliamentary legislation was invalid face a heavy burden.

Citations:

[1979] 1 WLR 1334, [1979] 3 WIR 411

Cited by:

CitedGrant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 04 May 2022; Ref: scu.242105

Geok v Minister of the Interior: PC 1964

A provision of the Constitution of Malaysia allowed the Federal Government to deprive a person of his citizenship ‘if satisfied that he has shown himself by act or speech to be disloyal or disaffected towards the Federation’. The allegations against the appellant were based on what he had said and done after August 1957, when he was treated as a citizen by registration under the Constitution. He had become a citizen of the Federation of Malaya in 1951.
Held: The provision applied only to acts done or speeches made after registration. A complaint made was that the particulars provided of the conduct relied on against him were inadequate. The Board found that the notice would be valid even if no particulars were provided, since the ground was that the appellant had shown himself to be disloyal and disaffected towards the Federation of Malaysia.

Citations:

[1964] 1 WLR 554

Jurisdiction:

Commonwealth

Cited by:

CitedHicks, Regina (on the Application of) v Secretary of State for the Home Department Admn 13-Dec-2005
The claimant, an Australian, presently held by the US as a suspected terrorist in Guantanamo Bay sought to be registered as a British Citizen, saying he was entitled to registration as of right.
Held: The past behaviour of an applicant was not . .
CitedSecretary of State for the Home Department v Hicks CA 12-Apr-2006
The claimant was held as a suspected terrorist by the US government in Guantanamo Bay. He had Australian citizenship but qualified also for British citizenship. He had sought that citizenship and protection. The secretary of state appealed an order . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 May 2022; Ref: scu.237552

AC v Manitoba (Director of Child and Family Services): 26 Jun 2009

(Supreme Court of Canada) Constitutional law – Charter of Rights – Liberty and security of person – Fundamental justice – Medical treatment – Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from receiving blood – Transfusion necessary to avoid severe consequences to child’s health – For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in best interests of child – For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision – Whether legislation arbitrary because it deprives children under 16 of opportunity to demonstrate capacity – Whether legislation infringes child’s liberty and security interests in manner contrary to principles of fundamental justice – Canadian Charter of Rights and Freedoms, s. 7 – Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).

Constitutional law – Charter of Rights – Equality rights – Discrimination on basis of age – Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from receiving blood – Transfusion necessary to avoid severe consequences to child’s health – For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in best interests of child – For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision – Whether legislation infringes child’s equality rights – Canadian Charter of Rights and Freedoms, s. 15 – Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).

Constitutional law – Charter of Rights – Freedom of religion – Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from receiving blood – Transfusion necessary to avoid severe consequences to child’s health – For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in best interests of child – For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision – Whether legislation infringes child’s freedom of religion – If so, whether infringement justifiable – Canadian Charter of Rights and Freedoms, ss. 1, 2(a) – Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).
Status of persons – Child protection – Care while under apprehension – Maturity – Court order authorizing treatment – For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in ‘best interests’ of child – For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision – Whether young person under 16 entitled to demonstrate sufficiency of maturity in medical treatment decisions – Interpretation of ‘best interests’ standard – Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).

Judges:

McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ

Citations:

[2009] SCC 30, [2009] 2 SCR 181

Links:

Canlii

Jurisdiction:

Canada

Cited by:

CitedRe X (A Child) FD 29-Oct-2020
Limited transfusion against young adults wishes
The Court was asked whether a blood transfusion should be administered to a young woman who was almost, not quite, 16, against her profound religious beliefs. X is a Jehovah’s Witness. She has explained to me, in very powerful and moving words, the . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Children, Health

Updated: 04 May 2022; Ref: scu.656348

Dodd v Dodd: 1906

Sir Gorell Barnes P set out the task of a judge saying that it is our task is jus dicere non jus dare – to state the law, not to make the law, but decried the state of family law: ‘That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted. The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects.’
‘The order does not state upon its face the finding of fact upon which the order was made – in other words, it does not state on the face of it that the respondent had been guilty of wilful neglect to provide reasonable maintenance for the petitioner and her child, and that by such neglect he had caused her to leave and live separately and apart from him. It might be said that I could therefore ignore the order and treat it as if it had never been applied for and made, on the general principle that a Magistrate’s order ought to state the finding of fact essential to the exercise of the jurisdiction: see the observations in the case of Brown v. Brown (1898, 62 JP 711); but it is necessary to observe, first, that this point is highly technical, and, on an appeal to this Division, the defect could have been corrected, that the petitioner acted upon the order and endeavoured to enforce it, and that it was undoubtedly treated by both parties as being an effective order, and further, that in the case of Brown v. Brown the effect of the provisions of the Summary Jurisdiction Acts and of the forms which are provided for use under those Acts was not fully considered. According to s. 8 of the Act of 1895 all applications under it are to be made in accordance with the Summary Jurisdiction Acts, and, without going through the details of those Acts as they at present stand, it is sufficient to observe that the Summary Jurisdiction Rules J 886, r. 31, provided that the forms in the schedule thereto, or forms to the like effect, might be used with such variations as circumstances might require; and the forms of orders in that schedule omit to state whether the complaint is found and adjudged to be true: so that although in strictness the order ought to state the findings of fact essential to jurisdiction, having regard to the provisions of the Act and Rules to which I have just referred, I am not prepared to hold, without further argument, that this order ought to be treated as bad on the face of it. I might point out, however, that it is desirable that the practice adopted, I believe, by the Magistrates in London of stating that the cause of complaint is found to be true is desirable in order to avoid any such difficulty as arises in the present case upon this point . . ‘

Judges:

Sir Gorell Barnes P

Citations:

[1906] P 189

Jurisdiction:

England and Wales

Cited by:

CitedOwens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Family

Updated: 04 May 2022; Ref: scu.581124

Lee v Bude and Torrington Junction Railway Co: 1871

It was alleged that Parliament had been induced to pass an Act by fraudulent recitals.
Held: Willes J said: ‘Are we to act as regents over what is done by parliament with the consent of the Queen, lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law. the Courts are bound to obey it. The proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them.’
When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet

Judges:

Willes J

Citations:

(1871) LR 6 CP 576

Jurisdiction:

England and Wales

Cited by:

CitedPickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
CitedHS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 May 2022; Ref: scu.575314

Resolution to amend the Constitution: 28 Sep 1981

Supreme Court of Canada
The References in question were prompted by the opposition of eight provinces to a proposed Resolution, published on October 2, 1980. The proposed Resolution contained an address to be presented to Her Majesty The Queen in right of the United Kingdom and a statute, to which was appended another statute providing for the patriation of the B.N.A. Act, with an amending procedure, and a Charter of Rights and Freedoms. The proposed Resolution carried the approval of only two provinces, Ontario and New Brunswick. The opposition of the others, save Saskatchewan, was based on their assertion that both conventionally and legally the consent of all the provinces was required for the address to be forwarded to Her Majesty with the appended statutes. The proposed Resolution was adopted by the House of Commons and by the Senate on April 23 and 24, 1981.
Questions 1, 2 and 3 of the Manitoba and Newfoundland References submitted for answer and this Court’s answers were as follows:
Question 1 – If the amendments to the Constitution of Canada sought in the ‘Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada’, or any of them, were enacted, would federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments be affected and if so, in what respect or respects?
Answer – Yes.
Question 2 – Is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the United Kingdom of Great Britain and Northern Ireland a measure to amend the Constitution of Canada affecting federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments without first obtaining the agreement of the provinces?
Answer – Yes.
The Chief Justice and Estey and McIntyre JJ. dissenting would answer ‘no’.
Question 3 – Is the agreement of the provinces of Canada constitutionally required for amendment to the Constitution of Canada where such amendment affects federal-provincial relationships or alters the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments?
Answer -For the reasons stated in answer to Question 2, as a matter of constitutional convention, ‘yes’. The Chief Justice and Estey and McIntyre JJ. dissenting would answer ‘no’.
-As a matter of law, ‘no’. Martland and Ritchie JJ. dissenting would answer ‘yes’.
The Question 4 of the Newfoundland Reference submitted for answer and this Court’s answer was as follows:
Question 4 – If Part V of the proposed resolution referred to in question 1 is enacted and proclaimed into force could
(a) the Terms of Union, including terms 2 and 17 thereof contained in the Schedule to the British North America Act, 1949 (12-13 George VI, c. 22 (UK)), or
(b) section 3 of the British North America Act, 1871 (34-35 Victoria, c. 28 (UK))
be amended directly or indirectly pursuant to Part V without the consent of the Government, Legislature or a majority of the people of the Province of Newfoundland voting in a referendum held pursuant to Part V?
Answer – As expressed in the reasons of the Newfoundland Court of Appeal, subject to the correction made in the reasons of this Court.
Questions A and B of the Quebec Reference submitted for answer and this Court’s answers were as follows:
Question A – If the Canada Act and the Constitution Act, 1981 should come into force and if they should be valid in all respects in Canada would they affect:
(i) the legislative competence of the provincial legislatures in virtue of the Canadian Constitution?
(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?
Answers -(i) Yes.
(ii) Yes.
Question B-Does the Canadian Constitution empower, whether by statute, convention or otherwise, the Senate and the House of Commons of Canada to cause the Canadian Constitution to be amended without the consent of the provinces and in spite of the objection of several of them, in such a manner as to affect:
(i) the legislative competence of the provincial legislatures in virtue of the Canadian Constitution?
(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?
Answers -(i)
(a) by statute, no;
(b) by convention, no.
The Chief Justice and Estey and McIntyre JJ. would answer that there is no precluding convention.
(c) as a matter of law, yes.
Martland and Ritchie JJ. dissenting would answer ‘no’.
(ii)
(a) by statute, no;
(b) by convention, no.
The Chief Justice and Estey and McIntyre JJ. would answer that there is no precluding convention.
(c) as a matter of law, yes.
Martland and Ritchie JJ. dissenting would answer ‘no’.
Chief Justice (Laskin) and Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ stated: ‘The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement.’
Chief Justice and Estey and MacIntyre JJ (dissenting) considered the status of conventions: ‘[A] fundamental difference between the legal, that is the statutory and common law rules of the constitution, and the conventional rules is that, while a breach of the legal rules, whether of statutory or common law nature, has a legal consequence in that it will be restrained by the courts, no such sanction exists for breach or non-observance of the conventional rules. The observance of constitutional conventions depends upon the acceptance of the obligation of conformance by the actors deemed to be bound thereby. When this consideration is insufficient to compel observance no court may enforce the convention by legal action. The sanction for non-observance of a convention is political in that disregard of a convention may lead to political defeat, to loss of office, or to other political consequences, but will not engage the attention of the courts which are limited to matters of law alone. Courts, however, may recognise the existence of conventions . . ‘
Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ agreed: ‘It is because the sanctions of convention rest with institutions of government other than courts . . or with public opinion and ultimately, with the electorate, that it is generally said that they are political.’

Judges:

Laskin C. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ

Citations:

[1981] 1 SCR 753, 34 Nfld and PEIR 1, 125 DLR (3d) 1, 1981 CanLII 25 (SCC), [1981] 6 WWR 1, 39 NR 1, [1981] SCJ No 58 (QL), 11 Man R (2d) 1, 1 CRR 59, 95 APR 1

Links:

Canlii

Jurisdiction:

Canada

Cited by:

CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 May 2022; Ref: scu.575307

Fitzgerald v Muldoon: 1976

A Labour government introduced a contributory superannuation scheme. Statute made contribution by employer and employee compulsory. The leader of the National opposition, Muldoon, promised to abolish the scheme immediately on becoming government. National won a landslide victory in November 1975. But the Prime Minister, Muldoon, had no desire to reconvene Parliament until June. Two weeks later he issued a press statement. It said that the compulsory requirement to contribute ‘will cease as from today’.2 The junior public servant, Fitzgerald, issued proceedings challenging the Prime Ministerial statement.

Citations:

[1976] 2 NZLR 5615

Jurisdiction:

New Zealand

Cited by:

CitedMiller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 May 2022; Ref: scu.570777

Point of Ayr Collieries Ltd v Lloyd George: CA 1943

The court considered a challenge to the appropriation of a colliery. The minister was given power under the 1939 Regulations: ‘if it appeared to him that in the interests of the public safety, the defence of the Realm, or the efficient prosecution of the war it was necessary to take control ‘ of property.
Held: The argument was rejected. There was no jurisdiction to interfere with the exercise of an executive power within his delegated authority.
Lord Greene MR said: ‘It is a settled principle, in dealing with documents of this kind, that the rule of omnia rite esse acta is to be applied, and, therefore, when it is stated by the Ministry in the proper way that it appears to the Minister of Fuel and Power that certain things are so, it is to be taken that that is an accurate statement unless and until the contrary is proved.’ and ‘If one thing is settled beyond the possibility of dispute, it is that, in construing regulations of this character expressed in this particular form of language, it is for the competent authority . . to decide as to whether or not a case for the exercise authority to judge of the adequacy of the evidence before it. It is for the competent authority to judge whether or not it is desirable or necessary to make further investigations before taking action. It is for the competent authority to decide whether the situation requires an immediate step, or whether some delay may be allowed for further investigation and perhaps negotiation . . One thing is certain and that is that those matters are not within the competence of this Court. It is the competent authority that is selected to come to the decision. and, if that decision is come to in good faith, this Court has no power to interfere provided, of course, that the action is one within the four corners of the authority . .’

Judges:

Lord Greene MR

Citations:

[1943] 2 All ER 546

Statutes:

Defence (General) Regulations 1939

Constitutional

Updated: 04 May 2022; Ref: scu.546906

Davis v Beason, Sheriff: 3 Feb 1890

United States Supreme Court. The defendant claimed that the First Amendment insulated from civil punishment certain practices inspired or motivated by religious beliefs.
Held: The assetion failed: ‘It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society.’ The Court adopted a strictly theistic definition of religion.

Judges:

Field J

Citations:

133 US 333 (1890), 33 L Ed 637, 10 SCt 299

Links:

Worldlii

Cited by:

CitedHodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages SC 11-Dec-2013
The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .
Lists of cited by and citing cases may be incomplete.

International, Ecclesiastical, Constitutional

Updated: 04 May 2022; Ref: scu.540529

Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component: 10 Jul 2009

Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application of Charter – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Actions brought alleging that transit authorities’ policies violated freedom of expression – Whether entities which operate public transit systems ‘government’ within meaning of s. 32 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Freedom of expression – Advertisements on buses – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Whether advertising policies infringing freedom of expression – If so, whether infringement can be justified – Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Constitutional law – Charter of Rights – Reasonable limits prescribed by law – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies infringing freedom of expression -Whether policies are ‘law’ within meaning of s. 1 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Remedy – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies unjustifiably infringing freedom of expression – Declaration that policies are of ‘no force or effect’ sought – Whether declaration ought to be based on s. 52 of Constitution Act, 1982 or s. 24(1) of Canadian Charter of Rights and Freedoms – Whether policies are ‘law’ within meaning of s. 52 of Constitution Act, 1982.

Judges:

McLachlin CJ and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ

Citations:

[2009] 2 SCR 295, 309 DLR (4th) 277, 2009 SCC 31, [2009] 8 WWR 385, 272 BCAC 29, 389 NR 98, 93 BCLR (4th) 1, EYB 2009-161351, JE 2009-1320, [2009] SCJ No 31 (QL), 179 ACWS (3d) 98, 192 CRR (2d) 336

Links:

Canlii

Commonwealth, Constitutional, Human Rights, Media

Updated: 04 May 2022; Ref: scu.538531

Alberta v Hutterian Brethren of Wilson Colony: 24 Jul 2009

Canlii Constitutional law – Charter of Rights – Freedom of religion – New regulation requiring photo for all Alberta driver’s licences – Members of Hutterian Brethren sincerely believing that Second Commandment prohibits them from having their photograph willingly taken – Whether regulation infringed freedom of religion – If so, whether infringement justified – Canadian Charter of Rights and Freedoms, ss. 1, 2(a) – Operator Licensing and Vehicle Control Regulation, Alta. Reg. 320/2002, s. 14(1)(b) (am. Alta. Reg. 137/2003, s. 3).
Constitutional law – Charter of Rights – Right to equality – Discrimination based on religion – New regulation requiring photo for all Alberta driver’s licences – Members of Hutterian Brethren sincerely believing that Second Commandment prohibits them from having their photograph willingly taken – Whether regulation infringed right to equality – Canadian Charter of Rights and Freedoms, s. 15 – Operator Licensing and Vehicle Control Regulation, Alta. Reg. 320/2002, s. 14(1)(b) (am. Alta. Reg. 137/2003, s. 3).

Judges:

McLachlin CJ and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein J

Citations:

9 Alta LR (5th) 1, 310 DLR (4th) 193, 2009 SCC 37 (CanLII)

Links:

Canlii

Cited by:

CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 04 May 2022; Ref: scu.535121

Lavigne v Ontario Public Service Employees Union: 27 Jun 1991

Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee objecting to expenditure of union dues on causes unrelated to collective bargaining – Whether Charter applies – Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, s. 53 – Canadian Charter of Rights and Freedoms, s. 32(1).
Constitutional law – Charter of Rights – Freedom of association – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee objecting to expenditure of union dues on causes unrelated to collective bargaining – Whether s. 2(d) of Canadian Charter of Rights and Freedoms infringed – If so, whether infringement justifiable under s. 1 of Charter – Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, ss. 51, 52, 53.
Constitutional law – Charter of Rights – Freedom of expression – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee objecting to expenditure of union dues on causes unrelated to collective bargaining – Whether s. 2(b) of Canadian Charter of Rights and Freedoms infringed – If so, whether infringement justifiable under s. 1 of Charter – Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, ss. 51, 52, 53.
Wilson J observed: ‘The Oakes inquiry into ‘rational connection’ between objectives and means to attain them requires nothing more than showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt.’

Judges:

Wilson, La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory and McLachlin JJ

Citations:

[1991] 2 SCR 211, 1991 CanLII 68 (SCC)

Links:

Canlii

Cited by:

CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 04 May 2022; Ref: scu.535122

RJR-MacDonald Inc v Canada (Attorney General): 21 Sep 1995

Supreme Court of Canada – Constitutional law — Division of powers — Charter of Rights — Freedom of expression — Commercial advertising — Cigarette advertising banned — Whether or not legislation validly enacted under criminal law power or under peace, order and good government clause — If so, whether or not Act’s provisions infringing s. 2(b) Charter right to freedom of expression — If so, whether or not infringements justifiable under s. 1 — Canadian Charter of Rights and Freedoms, ss. 1, 2(b) –Constitution Act, 1867, Preamble, s. 91(27) — Tobacco Products Control Act, S.C. 1988, c. 20, ss. 4, 5, 6, 8, 9.

Judges:

Lamer CJ and La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ

Citations:

[1995] 3 SCR 199, 1995 CanLII 64 (SCC), 127 DLR (4th) 1, 100 CCC (3d) 449, 62 CPR (3d) 417, 31 CRR (2d) 189

Links:

Canlii

Cited by:

CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 04 May 2022; Ref: scu.535123

Darnel’s Case: 1627

Charles I demanded that Darnel and at least four others lend him money. Upon their refusal, they were imprisoned. The court refused to order the release of nobles who were being detained under executive warrant by the special command of Charles I, who asserted absolute authority over the parliament (based on the doctrine of divine right).
Hyde CJ said: ‘Whether the commitment be by the King or others, this Court is a place where the King doth sit in person, and we have power to examine it, and if it appears that any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him, if otherwise, he is to be remanded by us to prison.’

Judges:

Hyde CJ

Citations:

(1627) 3 St Tr 1, 59 (KB 1627

Constitutional

Updated: 04 May 2022; Ref: scu.470607

Gallagher v Lynn: PC 1936

Section 4 of the 1920 Act provided that the Parliament of Northern Ireland had power to make laws for the peace, order and good government of Northern Ireland, but not to make laws in respect of, among other things, trade with any place out of Northern Ireland. Challenge was made to the 1934 Act which purported to regulate the supply of milk in Northern Ireland which imposed controls on every person who within Northern Ireland sold or exposed for sale milk, whether produced within or without the territory of Northern Ireland.
Held: The Act was a law for the peace, order and good government of Northern Ireland in respect of precautions taken to secured the health of its inhabitants, not a law in respect of trade.
Lord Atkin went on to explain the ‘pith and substance doctrine’, saying: ‘These questions affecting limitation on the legislative powers of subordinate parliaments or the distribution of powers between parliaments in a federal system are now familiar, and I do not propose to cite the whole range of authority which has largely arisen in discussion of the powers of Canadian Parliaments. It is well established that you are to look at the ‘true nature and character of the legislation’ . . ‘the pith and substance of the legislation.’ If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorized field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field. Nor are you to look only at the object of the legislator. An Act may have a perfectly lawful object, eg to promote the health of the inhabitants, but may seek to achieve that object by invalid methods, eg a direct prohibition of any trade with a foreign country.’

Judges:

Lord Atkin

Citations:

[1937] AC 863

Statutes:

Government of Ireland Act 1920, Milk and Milk Products Act (Northern Ireland) Act 1934

Citing:

CitedCharles Russell v The Queen PC 23-Jun-1882
(New Brunswick) The defendant had been convicted of unlawfully selling intoxicating Licquor contrary to the 1878 Act. He challenged his conviction saying that the Act had been outwith the powers of the Parliament of Canada as provided for by the . .

Cited by:

CitedImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Northern Ireland, Agriculture

Updated: 04 May 2022; Ref: scu.468810

Mangena v Edward Lloyd Ltd: 1908

The plaintiff claimed in defamation after the defendant had republished an extract from a paper laid before parliament.
Held: The ‘blue book’ reflected material laid before both houses of parliament, and reproduction of it was protected under the 1840 Act.
As to whether the paper had been printed by malice, Darling J referred to an earlier case where a plea of justification had been placed on the record but the defendant at the trial had offered no evidence in support of it. Darling J added: ‘A plea of justification ought never to be put on the record unless the person believes in it and is prepared to support it with evidence’.

Judges:

Darling J

Citations:

(1908) 98 LT 64, (1908) 24 TLR 610

Statutes:

Parliamentary Privileges Act 1840 3

Jurisdiction:

England and Wales

Cited by:

CitedMcDonalds Corp and Another v Steel and Another CA 25-Mar-1994
The plaintiff company had sued the defendants in defamation with regard to a leaflet publishd and distributed by them. The defendants argued justification. The defendants appealed against an order striking out parts of their defence, saying that the . .
CitedMcDonalds Corp and Another v Steel and Another CA 25-Mar-1994
The plaintiff company had sued the defendants in defamation with regard to a leaflet publishd and distributed by them. The defendants argued justification. The defendants appealed against an order striking out parts of their defence, saying that the . .
Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 04 May 2022; Ref: scu.465178

Regina v Grant: 17 Jul 2009

Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Arbitrary detention – Right to counsel – Encounter between accused and police going from general neighbourhood policing to situation where police effectively took control over accused and attempted to elicit incriminating information – Whether police conduct would cause a reasonable person in accused’s position to conclude that he or she was not free to go and had to comply with police demand – Whether accused arbitrarily detained – Whether accused’s right to counsel infringed – Meaning of ‘detention’ in ss. 9 and 10 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Enforcement – Exclusion of evidence – Firearm discovered as result of accused’s statements taken in breach of his right against arbitrary detention and right to counsel – Firearm admitted into evidence at trial and accused convicted of five firearms offences – Whether admission of firearm bringing administration of justice into disrepute – Revised framework for determining whether evidence obtained in breach of constitutional rights must be excluded – Canadian Charter of Rights and Freedoms, s. 24(2).
Criminal law – Firearms – Possession of firearm for purposes of weapons trafficking – Whether simple movement of firearm from one place to another without changing hands amounts to weapons trafficking – Meaning of ‘transfer’ of weapon for purposes of ss. 84, 99 and 100 of Criminal Code, R.S.C. 1985, c. C-46.

Judges:

McLachlin CJ and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ

Citations:

2009 SCC 32, [2009] 2 SCR 353, 309 DLR (4th) 1, 245 CCC (3d) 1, 66 CR (6th) 1, 253 OAC 124

Links:

Canlii

Cited by:

CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Human Rights, Criminal Practice, Police

Updated: 04 May 2022; Ref: scu.445390

Roberts v Bass: 12 Dec 2002

Austlii (High Court of Australia) Defamation – Defences – Qualified privilege – State election – Publication of electoral material – Reciprocity of interest – Proof of malice – Improper motive – Whether intention to cause political damage constitutes an improper motive – Relevance of honest belief in truth of statement – Relevance of reckless indifference to truth or falsity of published material – Relevance of knowledge of falsity of published material – Relationship of common law qualified privilege to extended qualified privilege as identified in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.
Constitutional law (Cth) – Implied limitation upon laws restricting freedom of expression concerning governmental and political matters – Whether constitutional question arises having regard to issues before the State trial and appellate courts – Whether constitutional implication may be disregarded – Whether general common law relating to the occasion of qualified privilege is compatible with the Constitution – Whether general common law relating to malice is compatible with the Constitution – Whether common law needs to be developed to ensure compatibility – Ingredients of malice in the circumstances of the case – Whether malice established in communications published in a State electoral campaign.

Words and phrases – ‘malice’.

Judges:

Gleeson CJ

Citations:

[2002] HCA 57, [2002] 212 CLR 1, [2002] 77 ALJR 292, [2002] 194 ALR 161

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedQuinton v Peirce and Another QBD 30-Apr-2009
One election candidate said that another had defamed him in an election leaflet. Additional claims were made in injurious falsehood and under the Data Protection Act.
Held: The claim in defamation failed. There were no special privileges in . .
CitedThornton v Telegraph Media Group Ltd QBD 26-Jul-2011
The claimant alleged defamation and malicious falsehood in an article published and written by the defendants. She complained that she was said to have fabricated an interview with the second defendant for her book. An interview of sorts had now . .
Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 04 May 2022; Ref: scu.442531

London County Council v Attorney General: 1901

Lord MacNaghten said: ‘Income tax, if I may be pardoned for saying so, is a tax on income. It is not meant to be a tax on anything else.’
Lord Macnaghten said of a relator action: ‘The initiation of the litigation, and the determination of the question whether it is a proper case for the Attorney-General to proceed in, is a matter entirely beyond the jurisdiction of this or any other court. It is a question which the law of this country has made to reside exclusively in the Attorney-General’

Judges:

Lord MacNaghten

Citations:

[1901] AC 26

Jurisdiction:

England and Wales

Cited by:

CitedScottish Widows Plc v Revenue and Customs SC 6-Jul-2011
The taxpayer insurance company had transferred sums from accounts designated as Capital Reserves. The Revenue said that these were properly part of the profit and loss accounts for the respective tax years, and chargeable receipts.
Held: The . .
CitedGouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Constitutional

Updated: 04 May 2022; Ref: scu.441626

The Case of Swans: 1572

A prescription to have all wild swans, which are ferae naturae and not marked, building their nests, breeding, and frequenting within a particular creek, is not good.
All white swans not marked, having gained their natural liberty, and swimming in an open and common river, may be seised to the King’s use by his prerogative.
A swan is a Royal fowl, and whales and sturgeons are Royal fish.
Every one who hath swans within his private waters hath a property in them.
A man may prescribe to have a game of swans within his manor, and may prescribe that his mans may swim within the manor of another.
A swan may be an estray.
Cygnets belong equally to the owner of the cock and the owner of the hen, and shall be divided betwixt them.

Citations:

[1572] EngR 403, (1572-1616) 7 Co Rep 15, (1572) 77 ER 435

Links:

Commonlii

Jurisdiction:

England and Wales

Animals, Constitutional

Updated: 02 May 2022; Ref: scu.432369

Hutchinson v Proxmire: 26 Jun 1979

(United States Supreme Court) The petitioner had been funded by the state to carry out research on aggression in certain animals, particularly monkeys. He complained of criticism of his work decsribing it as wasteful.
Held: Efforts to influence executive agencies are not privileged acts. Not every public employee is a public official.

Citations:

[1979] USSC 139, [1979] 443 US 111

Links:

Worldlii

Cited by:

CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
CitedMakudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
Lists of cited by and citing cases may be incomplete.

International, Constitutional, Defamation

Updated: 02 May 2022; Ref: scu.427748

P V Narashimo Rao v State: 17 Apr 1998

(Supreme Court of India) Members of Parliament were protected by privilege from prosecution for bribery in respect of voting in parliamentary proceedings.

Citations:

[1998] INSC 229

Links:

LII of India

Cited by:

CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Crime

Updated: 02 May 2022; Ref: scu.427746

Regina v Home Secretary, ex parte Hosenball: CA 1977

A United States’ citizen was subject to a deportation decision which was held not amenable to judicial review on the ground of national security. He appealed.
Held: Neither a failure to lay rules before Parliament within the allotted time, nor disapproval by negative resolution invalidates them. There was a need for common fairness.
The asylum convention has been given a status superior to the Immigration Rules, but they are not law of the status of a statutory instrument but something rather less.
The immigration rules are ‘a practical guide for the immigration officers’, and ‘a curious amalgam of information and description of executive procedures’.
Lord Denning MR allowed that the public interest in confidentiality can be paramount. He said: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice’ and ‘The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information.’
The Immigration Rules are not law: ‘They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Act. They can be, and often are, prayed in aid by applicants before the courts in immigration cases.
When one bears that in mind, there is no right in the applicant to dictate to the Secretary of State which set of Rules should be applied at the time of the decision of a case. The Rules are essentially rules which have to be regarded at the time of a decision.
The argument of Mr Nathan that in effect this is giving retrospective effect to the Rules, and then by analogy to the interpretation of statutes contending that that was not permissible, is, in my view, a mistaken approach. The Rules and their statutory interpretation depend very largely on vested rights. There were no such rights in the present case.’ and ‘they are not rules in the nature of delegated legislation so as to amount to strict rules of law’
Geoffrey Lane LJ said: ‘if Parliament disapproves of the rules they are not thereby abrogated: it merely becomes necessary for the Secretary of State to devise such fresh rules as appear to him to be required in the circumstances.’
As to the prevailing of public interest over the need for openness: ‘It may well be that if an alien is told with particularity what it is said he has done it will become quite obvious to him from whence that information has been received. The only person who can judge whether such a result is likely is the person who has in his possession all the information available . . If he comes to the conclusion that for reasons such as those which I have just endeavoured to outline he cannot afford to give the alien more than the general charge against him, there one has the dilemma. The alien certainly has inadequate information upon which to prepare or direct his defence to the various charges which are made against him, and the only way that could be remedied would be to disclose information to him which might probably have an adverse effect on the national security. The choice is regrettably clear: the alien must suffer, if suffering there be, and this is so on whichever basis of argument one chooses.’
What is fair cannot be decided in a vacuum.
Lord Widgery CJ said that the ‘principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done.’ He went on to describe the maxim as ‘one of the rules generally accepted in the bundle of the rules making up natural justice.’

Judges:

Geoffrey Lane LJ, Cumming-Bruce LJ, Lord Denning MR, Lord Widgery CJ

Citations:

[1977] 1 WLR 766, [1977] 3 All ER 452

Cited by:

CitedSecretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
CitedAlvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
CitedRegina (Tucker) v Director General of the National Crime Squad CA 17-Jan-2003
The applicant was a senior officer seconded to the National Crime Squad. He complained that his secondment had been terminated in a manner which was unfair, and left him tainted without opportunity to reply. He appealed against rejection of his . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Immigration, Natural Justice

Updated: 02 May 2022; Ref: scu.417813

Regina v Greenaway: CC 25 Jun 1992

(Central Criminal Court) The defendant Member of Parliament had faced charges of accepting bribes in return for advancing the interests of a commercial company.
Held: The charges were dismissed on the request of the prosecution after a separate trial in which the persons accused of having bribed him had been acquitted. Buckley J had earlier ruled that an MP could be charged with the common law offence of bribery.
It had been common ground that in general, members of Parliament are subject to the criminal law and that it would be ‘unacceptable’ for a member of Parliament to be immune from prosecution in the courts of law when there was prima facie evidence of corruption. Without it being suggested that he was questioning or impeaching words spoken in Parliament, he adopted the observations of Lord Salmon that: ‘To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings against . . any member of Parliament who accepts the bribe, stems from the Bill of Rights is possibly a serious mistake . . (the Bill of Rights) is a charter for freedom of speech in the House. It is not a charter for corruption . . the crime of corruption is complete when the bribe is offered or given or solicited and taken.’

Judges:

Buckley J

Citations:

Unreported, 25 June 1992

Cited by:

CitedRegina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 02 May 2022; Ref: scu.418270

Prest v Secretary of State for Wales: CA 1982

Lord Denning MR said: ‘I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands . .’
Watkins LJ said: ‘The taking of a person’s land against his will is a serious invasion of his proprietary rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see to it that that authority is not abused. It must not be used unless it is clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factor which sways his mind into confirmation of the order sought.’

Judges:

Lord Denning MR

Citations:

(1982) 81 LGR 193

Cited by:

ExplainedRegina v Secretary of State for Transport, ex parte de Rothschild CA 1988
The court considered the use of powers of compulsory purchase of land under the Acts.
Held: ‘In answer to counsel’s submissions as to ‘special rules’, I summarise my conclusions thus. First, I do not accept that any special rules beyond the . .
CitedSainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Updated: 02 May 2022; Ref: scu.414936

Wells v Derwent Plastics Limited: EAT 1978

Bristow J said: ‘Where the legal right or obligation with which you are concerned is not a common law right or obligation but is created by statute, what the statute says, and nothing else, is the law. The judges cannot add to or subtract from the law as you find it expressed in the statute, the instrument by which the will of the people through the ordinary constitutional method of Parliamentary process becomes the law. If what the statute says is intelligible and unambiguous it is for the judges to apply it, not to refine it or add to it frills of their own.’

Judges:

Bristow J

Citations:

[1978] ICR 424

Cited by:

CitedHaddon v Van Den Bergh Foods Ltd EAT 10-Nov-1999
An employee did not return to work after a presentation to him of a good service award, because he had drunk alcohol. A new policy required staff not to return to work after consuming alcohol, but had also said that alcohol would not be provided. . .
Lists of cited by and citing cases may be incomplete.

Employment, Constitutional

Updated: 02 May 2022; Ref: scu.374402

The Attorney-General v The Ironmongers’ Company: 23 Jan 1841

Under a, reference to approve a scheme for the application of charity funds, the Master has no authority to allow, still less to invite, any person to intervene in the inquiry, who is not a party to the cause. If any such person is desirous of proposing
a scheme of his own, his proper and only course is to apply to the Court for leave so to do.
In an information, the Attorney-General and not the relator, is the party prosecuting the cause : and, therefore, the Court will not allow counsel for the relator to be heard in any other character than as counsel for the Attorney-General.

Citations:

[1841] EngR 283, (1840-1841) Cr and Ph 208, (1841) 41 ER 469

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoAttorney-General v The Ironmongers’ Company 18-Nov-1834
A testator gave the residue of his estate to trustees, positively forbidding them to diminish the capital thereof, or that the interest and profit arising be applied to any other use or uses than thereinafter directed ; and he proceeded to direct . .
See AlsoAttorney-General v Ironmongers’ Company 3-Jun-1837
Scheme for application of a charity fund left for loans to young freemen of a company and of the interest. . .
See AlsoAttorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 02 May 2022; Ref: scu.308461

Attorney-General v The Ironmongers’ Company Betton’s Charity: 14 Feb 1840

Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the remaining one-fourth towards necessitated decayed freemen of the company. There were no such British slaves to redeem, and a reference was made to the Master to approve of a scheme for the application of the fund thus unapplied, having regard to all the charitable bequests in the will. Held, that the application of the fund to the education of the British emancipated apprenticed negroes was iiot a cy-pres application ; secondly, that the gift to the freemen of the company was a charitable bequest ; and, thirdly, there being no direct objects to which the income could be applied, regard being had to the bequest touching British captives, that the application of the fund to the second and third purposes was as near as could be to the intention of the testator, having regard to all the charitable bequests in the will.
Lord Langdale MR said that: ‘ He did not recognise the relator as distinct from the Attorney-General. That the suit was the suit of the Attorney-General, though at the relation of another person upon whom he relied and who was answerable for costs; and that he could only recognise the counsel for the relator as the counsel for the Attorney-General, and could hear them only by his permission ; that the suit was so entirely under the control of the Attorney-General that he might desire the Court to
‘ dismiss the information, and that if he stated that he did not sanction any proceeding, it would be instantly stopped ‘.

Judges:

Lord Langdale MR

Citations:

[1840] EngR 425, (1840) 2 Beav 313, (1840) 48 ER 1201

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoAttorney-General v The Ironmongers’ Company 18-Nov-1834
A testator gave the residue of his estate to trustees, positively forbidding them to diminish the capital thereof, or that the interest and profit arising be applied to any other use or uses than thereinafter directed ; and he proceeded to direct . .
See AlsoAttorney-General v Ironmongers’ Company 3-Jun-1837
Scheme for application of a charity fund left for loans to young freemen of a company and of the interest. . .

Cited by:

See AlsoThe Attorney-General v The Ironmongers’ Company 23-Jan-1841
Under a, reference to approve a scheme for the application of charity funds, the Master has no authority to allow, still less to invite, any person to intervene in the inquiry, who is not a party to the cause. If any such person is desirous of . .
CitedGouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
CitedGouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Lists of cited by and citing cases may be incomplete.

Charity, Constitutional

Updated: 02 May 2022; Ref: scu.309851

Brown v McLachlan: PC 11 Dec 1872

Where a Statute professes merely to repeal a former Statute of limited operation, and to re-enact its provisions in an amended form, an intention to extend the operation of its provisions to classes of persons not previously subject to them is not to be presumed as a necessary inference, unless the intention to the contrary is clearly shown.

Citations:

[1872] EngR 39, (1872) 9 Moo PC NS 384, (1872) 17 ER 559

Links:

Commonlii

Commonwealth, Constitutional

Updated: 02 May 2022; Ref: scu.280129

Secretary of State for Social Security v Tunnicliffe: CA 1991

Staughton LJ explained the presumption against interpretation of a statute to have retrospective effect: ‘the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.’

Judges:

Staughton LJ

Citations:

[1991] 2 All ER 712

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Kenning, Blackshaw, Fenwick CACD 24-Jun-2008
The defendants appealed against their convictions for conspiracy to aid and abet the production of drugs. They sold materials which could be used for the growing of cannabis, but exhibited a notice warning customers against this. They told . .
CitedOdelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
CitedHand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 02 May 2022; Ref: scu.278579

Matalulu v Director of Public Prosecutions: 2003

(Supreme Court of Fiji) The court considered the nature of judicial control (if any) over decisions by authorities to commence prosecutions and said: ‘the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits’.

Citations:

[2003] 4 LRC 712

Jurisdiction:

Commonwealth

Cited by:

CitedCorner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
CitedLord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.276256

Bowles v Bank of England: KBD 4 Nov 1912

The House of Commons Ways and means committee resolved to assent to the imposition of income tax at the required rate for the next year.
Held: Such a resolution was inadequate to authorise the Crown to levy the tax by its deduction from the Bank’s dividends payable to its shareholders. Authority could be granted only by statute. Parker J said: ‘ No practice or custom, however prolonged or however acquiesced in on the part of the subject could be relied on by the Crown as justifying an infringement of the provisions of the unrepealed Bill of Rights.’

Judges:

Parker J

Citations:

[1913] 1 Ch 57, [1913] 82 LJ Ch 124, [1913] 108 LT 95, [1913] 29 TLR 42, [1913] 57 Sol Jo 43, [1913] 6 Tax Cas 136

Statutes:

Bill of Rights 1689

Cited by:

CitedDavidson v Revenue and Customs Excs 25-Jul-2008
VDT EXCISE – seizure of vehicle and goods – whether seizure challenged – restoration refused – whether appeal against non-restoration of vehicle – whether decision not to restore goods proportionate – whether . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Income Tax

Updated: 01 May 2022; Ref: scu.272909

Fernandes v Secretary of State: CA 1981

Article 8 of the Convention was relied upon by the appellant to resists his return.
Held: The Secretary of State in exercising his statutory powers was not obliged to take into account the provisions of the Convention, it not being part of the law of this country. The Convention is a treaty and may be resorted to in order to help resolve some uncertainty or ambiguity in municipal law.

Citations:

[1981] Imm AR 1

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Lists of cited by and citing cases may be incomplete.

Immigration, Administrative, Constitutional, Human Rights

Updated: 01 May 2022; Ref: scu.272889

Sammut v Strickland: PC 1938

Malta by itself had ceded and taken authority for themselves in the Napoleonic wars.
Held: The action was possible and lawful.

Citations:

[1938] AC 678

Cited by:

CitedChristian and others v The Queen PC 30-Oct-2006
(The Pitcairn Islands) The defendants appealed convictions for assorted sexual offences against underage girls. They denied that the laws under which they were convicted had applied to the Pitcairn Islands.
Held: The appeals against conviction . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.245766

Nyali Ltd v Attorney-General: CA 1956

The Kenyan and British authorities agreed for the building by the plaintiff of a bridge supported by the imposition of tolls. Btitish military were exempt from payment. At the time of the agreement there was only one unit of military, but as time went on more troops arrived, and the bulk of the traffic was exempt. The bridge owner challenged the arrangement in Britain.
Held: The term ‘military’ included all soldiers of the Queen and was not restricted to the original detachment. It remained a military vehicle when driven by a military driver on duty. However, construing the agreement, a toll became payable in certain limited circumstances.
The task of making qualifications to English law to suit the circumstances of overseas territories called for wisdom on the part of their judges. This was a ‘wise provision.’
As to the application of the common law in a foreign jurisdiction, the court recogised the wisdom of applying the common law qualified as necessary to suit local circumstances: ‘Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England.’

Judges:

Lord Denning

Citations:

[1956] 1 QB 1

Cited by:

CitedChristian and others v The Queen PC 30-Oct-2006
(The Pitcairn Islands) The defendants appealed convictions for assorted sexual offences against underage girls. They denied that the laws under which they were convicted had applied to the Pitcairn Islands.
Held: The appeals against conviction . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Land, Armed Forces

Updated: 01 May 2022; Ref: scu.245767

Trustees Executors and Agency Co Ltd v Federal Comr of Taxation: 1933

(High Court of Australia) The court considered the power to create laws for the colonies: ‘The correct general principle is . . whether the law in question can be truly described as being for the peace, order and good government of the Dominion concerned . . The judgment of Lord Macmillan [in Croft v Dunphy [1933] AC 156] affirms the broad principle that the powers possessed are to be treated as analogous to those of ‘a fully sovereign state’, so long as they answer the description of laws for the peace, order, and good government of the constitutional unit in question . .’

Judges:

Evatt J

Citations:

(1933) 49 CLR 220

Jurisdiction:

Australia

Cited by:

CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.242141

Co-operative Committee on Japanese Canadians v Attorney General for Canada: PC 1947

Orders in Council were made by the Governor in Canada under the authority of The War Measures Act. One authorised the Minister of Labour to make orders for the deportation to Japan of a specified group of persons aged 16 or over who were resident in Canada and who had made a request for repatriation. The Order also provided that the wife and children under 16 years of age of any person for whom the Minister made an order for deportation to Japan, might be included in such an order and deported with such a person. The effect was that a wife of a person within the specified groups could be returned without her consent even though she may have had no links by birth, race or nationality to Japan.
Held: The appeal agaiinst the upholding of the orders failed. The statute was interpreted to authorise removal from Canada not merely of persons of Japanese origin who requested repatriation, but also of their wives and children under 16 who resisted their own removal.
Lord Wright summarised part of the argument for the appellants: ‘The order . . not only does not show that by reason of the existence of real or apprehended war it was thought necessary for the security, peace, order, defence or welfare of Canada to make provision for their deportation but, when considered in substance, shows that these matters were not taken into consideration.’ He asked whether there was: ‘any matter which justifies the judiciary in coming to the conclusion that the power was in fact exercised for an unauthorised purpose.’ He answered: ‘In their Lordships’ opinion there is not. The first three sub-sections of section S.2 no doubt deal with the matter which primarily engaged the attention of the Governor in Council [i.e. the sub-sections dealing with the removal of the specified group] but it is not in their Lordships’ view a proper inference from the terms of those sub-sections that the Governor in Council did not also deem it necessary or advisable for the security, defence, peace, order and welfare of Canada that the wives and children under 16 of deportees should, against their will, also be liable to deportation. The making of a Deportation Order as respects the husband or father might create a situation with which, with a view to forwarding this specified purpose, it was proper to deal. Beyond that it is not necessary to go.’

Judges:

Wright L

Citations:

[1947] AC 87

Jurisdiction:

Canada

Cited by:

CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.242142

Campbell v Hall: 1774

The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: The power of the King in Council to make prerogative orders in respect of colonies is restricted at common law: ‘The 6th and last proposition is, that if the King (and when I say the King, I always mean the King without the concurrence of Parliament,) has a power to alter the old and to introduce new laws in a conquered country, this legislation being subordinate, that is, subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles: he cannot exempt an inhabitant from that particular dominion; as for instance, from the laws of trade, or from the power of Parliament, or give him privileges exclusive of his other subjects; and so in many other instances which might be put.’ and ‘no question was ever started before, but that the King has a right to a legislative authority over a conquered country.’

Judges:

Mansfield LCJ

Citations:

(1774) 1 Cowp 204, [1774] EngR 5

Links:

Commonlii

Jurisdiction:

Commonwealth

Cited by:

CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
CitedLiyanage v The Queen PC 1967
(Ceylon) The appellants had been convicted of grave criminal offences under laws of the Parliament of Ceylon. The Act under which they were convicted was passed after an abortive coup, and deprived the appellants retrospectively of their right to . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
CitedLiyange v Regina PC 1966
The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, . .
CitedMisick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 1-May-2009
The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption. . .
CitedLiyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .
CitedBarclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.242139

Burmah Oil Company Limited (Burma Trading) v Lord Advocate: IHCS 1963

The 1965 Act was to be construed restrictively, lest ‘what was intended as a reasonable protection for a public authority would become an engine of oppression.’

Judges:

Lord President Clyde

Citations:

1963 SC 410

Statutes:

War Damage Act 1965

Jurisdiction:

Scotland

Cited by:

Appeal fromBurmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.241354

Bowditch v Balchin: 1855

Pollock CB said: ‘In a case in which the liberty of a subject is concerned we cannot go beyond the natural construction of the statute.’

Judges:

Pollock CB

Citations:

[1850] EngR 599, (1850) 5 Exch 378, (1850) 155 ER 165

Links:

Commonlii

Cited by:

CitedBarnard v Gorman HL 1941
The court considered awarding costs in a judicial review case: ‘There will be no order as to costs in this House, as the Crown has very properly agreed (since this is a case of general importance, and the respondent is a poor man) to pay the costs . .
CitedLiversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.241342

University of Wollongong v Merwally: 22 Nov 1984

(High Court of Australia) Deane J said: ‘A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to be deemed and treated as having been different to what they were. It cannot however objectively expunge the past or alter the facts of history.’

Judges:

Deane J

Citations:

(1984) 158 CLR 447

Links:

Austlii

Cited by:

CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedHazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 01 May 2022; Ref: scu.236524

Wills v Bowley: HL 1983

The section required a constable to ‘take into custody without warrant, and forthwith convey before a Justice, any person who in his view’ commits a range of offences.
Held: It was to be construed in such a way as not unduly to narrow the police’s powers of arrest. Proper consideration should be had to the maintenance of public order and other aspects of the public interest and powers conferred by Parliament should not lightly be rendered ineffective. Lord Bridge of Harwich: ‘If a power of arrest in flagrante delicto is to be effective at all, the person who exercises it needs protection,….so far as the law can give it’. Section 28 of the 1847 Act protected the police, if they honestly if mistakenly believed on reasonable grounds that they have seen an offence being committed. (Majority decision)

Judges:

Lord Bridge of Harwich

Citations:

[1983] 1 AC 57

Statutes:

Town Police Clauses Act l847 47

Jurisdiction:

England and Wales

Cited by:

CitedNaidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago PC 12-Oct-2004
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Police

Updated: 01 May 2022; Ref: scu.237244

Prager v Blatspiel, Stamp and Heacock Ltd: 1924

McCardie J spoke of the demand of an expanding society for an expanding common law. An agent must act bona fide in the interests of his principal.

Judges:

McCardie J

Citations:

[1924] 1 KB 566

Cited by:

CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedF v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Agency

Updated: 30 April 2022; Ref: scu.235925

Rustomjee v The Queen: QBD 1876

The Sovereign acts ‘throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts’

Judges:

Lord Coleridge CJ

Citations:

(1876) 2 QBD 69

Jurisdiction:

England and Wales

Cited by:

CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
CitedMaclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.230262

Post Office v Estuary Radio Ltd: CA 1968

On the proper inerpretation of the legislation, the extent of application of the legislative regime is determined by reference to the concept of the UK’s territorial waters as defined from time to time by the Crown. When the exercise of the Royal Prerogative directly effects an extension or contraction of the jurisdiction without the constitutional need for internal legislation, the court may not only be empowered but required to adjudicate upon the meaning or scope of the terms of an international treaty.
Diplock LJ said: ‘there is a presumption that the Crown did not intend to break an international treaty (see Salomon v Commissioners of Customs and Excise), and if there is any ambiguity in the Order in Council, it should be resolved so as to accord with the provisions of the Convention in so far as that is a plausible meaning of the express words of the order.’
. . And ‘It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction. For such extension, the authority of Parliament is not required.’

Judges:

Diplock LJ

Citations:

[1968] 2 QB 740, [1967] 3 All ER 622

Jurisdiction:

England and Wales

Cited by:

CitedMaclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.230263

Re Edward and Edward: 1987

(Saskatchewan Court of Appeal) The court rejected the idea of making rulings of prospective effect only. Prospective overruling would be a ‘dramatic deviation from the norm in both Canada and England’. Bayda CJS said ‘the most cogent reason for rejecting this technique is the necessity for our courts to maintain their independent, neutral and non-legislative role’. He approved comments that prospective overruling ‘would distort our expectations of the judicial role’ and that ‘confidence may recede at the point where the courts are not seen as adjudicative agencies but as legislators’

Citations:

(1987) 39 DLR (4th) 654

Jurisdiction:

Canada

Cited by:

CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.228293

Re Sigsworth: Bedford v Bedford: 1935

The court was asked to answer a question on the assumed premise that a woman had been murdered by her son and had died intestate. The question for decision was whether the forfeiture rule prevented the son from benefiting under the intestacy provisions of the 1925 Act.
Held: Clauson J said that the forfeiture rule applied: ‘The question, however, which I have to decide is whether the principle grounded on public policy which prevents a sane murderer from benefiting under the will of his victim applies with equal force to the case of the victim dying intestate so as to preclude the murderer (or his personal representative) from claiming, under the provisions of s 46 of the Act, the property in respect of which his victim died intestate.
In my judgment the principle of public policy which precludes a murderer from claiming a benefit conferred on him by his victim’s will precludes him from claiming a benefit conferred on him, in a case of his victim’s intestacy, by statute. The principle (to quote the language of Fry LJ) must be so far regarded in the construction of Acts of Parliament that general words which might include cases obnoxious to the principle must be read and construed as subject to it. This view of the law is adopted by Fry LJ in Cleaver’s case [1892] 1 QB 147, 156 and by Farwell J in In re Pitts [1931] 1 Ch 546, 550, and must in my judgment prevail over the view taken by Joyce J in In re Houghton [1915] 2 Ch 173, 177; and whether or not the opinions so expressed are binding on me, I agree with them and adopt them as my own.’
A person cannot bring an action based on his own wrong. As to the doctrine of judicial precedent ‘we fill in the gaps.’

Judges:

Denning J, Clauson J

Citations:

[1935] Ch 89

Statutes:

Administration of Estates Act 1925

Constitutional, Wills and Probate

Updated: 30 April 2022; Ref: scu.226975

Regina v Secretary of State for the Home Department ex parte Ruddock: QBD 1987

The claimant sought judicial revew of arrangements made to tap his telephone. Given the importance of the point of law at issue, the court allowed an application which might otherwise not have been granted for delay. The imperative to have some degree of judicial supervision of government is manifest; to preclude judicial supervision would be a ‘draconian and dangerous step’.
Taylor J rejected an argument that the Secretary of State case could ‘invariably maintain silence’, observing: ‘I recognise there could occur a case where the issue raised was so sensitive and the revelations necessarily following its decision so damaging to national security that the court might have to take special measures (for example sitting in camera or prohibiting the mention of names). Conceivably (although I would reserve the point) in an extreme case the court might have to decline to try the issues. But in all such cases, cogent evidence of potential damage to national security flowing from the trial of the issues would have to be adduced, whether in open court or in camera, to justify any modification of the court’s normal procedure. Totally to oust the court’s supervisory jurisdiction in a field where ex hypothesi the citizen can have no right to be consulted is a draconian and dangerous step indeed. Evidence to justify the court’s declining to decide a case (if such a course is ever justified) would need to be very strong and specific.

Judges:

Taylor J

Citations:

[1987] 1 WLR 1482, [1987] 2 All ER 518

Jurisdiction:

England and Wales

Judicial Review, Constitutional

Updated: 30 April 2022; Ref: scu.223700

Mohammadally v The State: 2000

(Supreme Court of Mauritius) The appellant had dispensed with the services of her counsel four days before the date of trial and had not taken steps to engage another. The trial judge refused to grant her a postponement, on the ground that she could readily have made efforts to obtain another counsel in the time. She was convicted of a drugs charge and her appeal against conviction was dismissed.
Held: Since she could easily have engaged another counsel in the time and had made no attempt to do so, she had not been denied access to legal advice and there was no breach of section 10 of the Constitution.

Citations:

(2000 SCJ No 289)

Citing:

AppliedGooranah v The Queen 1968
(Supreme Court of Mauritius) The appellant had appeared three times before the court before the date of trial. On the morning of trial he produced a letter from a member of the Bar stating that he had just been instructed for the defence, but as he . .

Cited by:

CitedGianchand Jahree v The State PC 28-Feb-2005
(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice, Constitutional

Updated: 30 April 2022; Ref: scu.223460

Syndicat Northcrest v Amselem: 30 Jun 2004

Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs on balconies of their co-owned property — Syndicate of co-owners requesting removal of succahs because declaration of co-ownership prohibits decorations, alterations and constructions on balconies — Whether freedom of religion infringed by declaration of co-ownership — If so, whether refusal to permit setting up of succahs justified by reliance on right to enjoy property and right to personal security — Whether Orthodox Jewish residents waived their right to freedom of religion by signing declaration of co-ownership — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 1, 3, 6. Constitutional law — Charter of Rights — Freedom of religion — Definition of freedom of religion — Proper approach for freedom of religion analyses — Canadian Charter of Rights and Freedoms, s. 2(a).
The court is concerned to ensure that an assertion of religious belief before it is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’

Judges:

McLachlin CJ and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ

Citations:

(2004) 241 DLR (4th) 1, [2004] 2 SCR 551

Links:

Canlii

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
CitedShergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Human Rights, Constitutional

Updated: 30 April 2022; Ref: scu.223021

Kariapper v Wijesinha: PC 1967

The legislation at issue imposed ‘civil disabilities’ on Members of Parliament against whom allegations of bribery had been sustained, including the loss of their seats in Parliament. The question arose whether they had been punished.
Held: Sir Douglas Menzies contrasted discuplinary and criminal proceedings. In the former category no offence was specified and no declaration of guilt made. ‘Speaking generally, however, their Lordships would observe that it is not readily to be assumed that disciplinary action, however much it may hurt the individual concerned, is personal and retributive rather than corporate and self-respecting.’
The words ‘amend or repeal’ do not cover or allow an alteration of a law by implication.

Citations:

[1968] AC 717, [1967] 3 All ER 485

Cited by:

CitedIndependent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 30 April 2022; Ref: scu.222759

Attorney General of Australia v The Queen and the Boilermakers’ Society of Australia; Kirby v The Queen and Boilermakers’ Society of Australia: PC 1957

When looking at a new court having a different name, the courts must ask the nature of the jurisdiction exercised, and test the method of appointment of judges for conformity with the constitution. It would be a travesty of the constitution if parliament established new bodies exercising similar functions but with different names and less protection of the independence of the officers carrying out judicial type activities.

Judges:

Viscount Simonds

Citations:

[1957] 2 All ER 45, [1957] AC 288, [1957] 2 WLR 607

Jurisdiction:

Australia

Cited by:

CitedHinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
CitedIndependent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.211408

Ladore v Bennett: PC 1939

Parliament cannot sidestep a restriction in the constitution by a colourable device.

Citations:

[1939] 3 All ER 98, [1939] AC 468, 108 LJPC 69

Cited by:

CitedHinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.211411

Liyange v Regina: PC 1966

The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, and the appellant’s conviction was quashed. However judicial power is distributed between courts, it is to continue to be vested in persons appointed to hold judicial office in the manner and terms set down by the constitution in the chapter on the judicature, and even though it may not be set out explicitly. Under a Westminster style constitution, the legislature not only does not, but can not, prescribe the penalty to be imposed in an individual citizen’s case.
‘Their Lordships cannot accept the view that the legislature while removing the fetter of repugnancy to English law, left in existence a fetter of repugnancy to some vague unspecified law of natural justice. The terms of the Colonial Laws Validity Act and especially the words ‘but not otherwise’ in section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy. Morover, their Lordships doubt whether Lord Mansfield was intending to say that what was not repugnant to English law might yet be repugnant to fundamental principles or to set up the latter as a different test from the former. Whatever may have been the possible arguments in this matter prior to the passing of the Colonial Laws Validity Act, they are not maintainable at the present date. No case has been cited in which during the last 100 years any judgment (or, so far as one can see, any argument) has been founded on that portion of Lord Mansfield’s judgment.’

Citations:

[1966] 1 All ER 650, [1967] AC 259, [1966] 2 WLR 682

Citing:

CitedCampbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .

Cited by:

CitedHinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 30 April 2022; Ref: scu.211412

Attorney General for Ontario v Attorney General for Canada: PC 1924

A provincial legislature was said to have exceeded its powers and contravened the British North America Act.
Held: Any provision made by the constitution as to the security of status and tenure of the judiciary applies to all individual judges later appointed in exercise of an analagous jurisdiction, whatever name is actually given to the court in which they sit.

Citations:

[1925] AC 750, 94 LJPC 132, (1924) 4 DLR 520

Cited by:

CitedHinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 30 April 2022; Ref: scu.211409

Tuck and Sons v Priester: 1887

A person should not be penalised except under a clear law: ‘If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.’

Judges:

Lord Esher, MR, Lindley J

Citations:

(1887) 19 QBD 629

Cited by:

CitedAtkins v Director of Public Prosecutions; Goodland v Director of Public Prosecutions Admn 8-Mar-2000
For possession of an indecent image of a child to be proved, it was necessary to establish some knowledge of its existence. Images stored without the defendant’s knowledge by browser software in a hidden cache, of which he was also unaware, were not . .
CitedRegina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
CitedBogdanic 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.

Criminal Practice, Constitutional

Updated: 30 April 2022; Ref: scu.199231

Rossi v Magistrates of Edinburgh: HL 1904

Conditions in an ice-cream vendors’ licence which restricted their right to open their shops when they liked and sell what they pleased were held to be ultra vires of the licensing authority. The court applied the rule that while the legislature may make whatever changes to the law that it likes, subordinate legislative authorities can make only such changes in the law as Parliament has empowered them to make.
It is a general rule of construction that, while the legislature may make whatever changes to the law that it likes, subordinate legislative authorities can make only such changes in the law as Parliament has empowered them to make.

Citations:

(1904) 7 F (HL) 85

Jurisdiction:

Scotland

Cited by:

CitedStewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Licensing, Constitutional

Updated: 29 April 2022; Ref: scu.195469

Jacobs v London County Council: HL 1950

The House considered the operation of the doctrine of precedent: ‘there is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision because he has given another reason also. If it were a proper test to ask whether the decision would have been the same apart from the proposition alleged to be obiter, then a case which ex facie decided two things would decide nothing’. The law of nuisance had travelled far beyond its original limits.

Judges:

Lord Simonds

Citations:

[1950] AC 361

Jurisdiction:

England and Wales

Cited by:

CitedDunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
CitedHunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Nuisance

Updated: 29 April 2022; Ref: scu.194787

Commissioner of Police v Davis: PC 1994

(Bahamas) Certain statutory provisions relating to drug offences infringed the Constitution of The Bahamas. A question then arose on the severability of one of the offending statutory provisions, section 22(8) of the Dangerous Drugs Act. This subsection related both to convictions on information and to summary convictions. The subsection was unconstitutional in its application to summary convictions but not in its application to convictions on information. In holding that section 22(8) was void only in so far as it related to summary convictions the Board applied the Hutchinson ‘substantial severability’ test. The section sought improperly to deprive defendants of their right to a jury trial.

Citations:

[1994] 1 AC 283, [1994] 4 All ER 476, [1994] CLY 496

Citing:

CitedDirector of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .

Cited by:

CitedPilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.187748

La Compagnie Sucriere v Government of Mauritius: PC 1995

Section 1 of the constitution of Mauritiius dealt with deprivation of property and section 6 dealt with compulsory purchase; neither dealt with legislative extinction of title with a provision for overreaching into the purchase price.

Citations:

[1995] (3) LRC 494 PC

Cited by:

CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.186668

Thornton v The Police: PC 1962

Leave to appeal was refused on the ground that the judgment of Hammet J was clearly correct. He held that nothing in the Act ‘precludes either the United Kingdom or any of the colonies from enacting such legislation as they chose to regulate and control the entry into their territory or residence therein of persons whatever their status may be’.

Citations:

[1962] AC 339 PC

Statutes:

British Nationality Act 1948

Jurisdiction:

England and Wales

Cited by:

CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.186644

Pyx Granite Ltd v Ministry of Housing and Local Government: HL 1959

There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court proceedings doing so. Viscount Simonds said: ‘It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights in not to be excluded except by clear words. That is a ‘fundamental rule’ from which I would not for my part sanction any departure.’

Judges:

Viscount Simonds, Lord Goddard

Citations:

[1960] AC 260, [1959] 3 All ER 1

Jurisdiction:

England and Wales

Citing:

Appeal fromPyx Granite Co Ltd v Minister of Housing and Local Government CA 1958
Pyx Granite had the right to quarry in two areas of the Malvern Hills. The company required permission to break fresh surface on one of the sites.
Held: Conditions attached to the planning permission relating to such matters as the times when . .

Cited by:

CitedI-CD Publishing Ltd v The Secretary of State, The Information Commissioner (Interested Party) Admn 21-Jul-2003
The claimant sought judicial review challenging the restrictions on the sale of electoral registers to registered credit reference agencies. Following Robertson (1) the new regulations created two registers, and the claimant sought to be able to . .
ApprovedWandsworth London Borough Council v Winder HL 1985
Rent demands were made by a local authority landlord on one of its tenants. The local authority, using its powers under the Act, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. He argued that the . .
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
CitedSeal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
CitedA, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedValentines Homes and Construction Ltd, Regina (on The Application of) v HM Revenue and Customs CA 31-Mar-2010
The claimant had applied for judicial review of a decision by the defendant to seek to recover a debt from them. The issue had however been settled in the County Court. Costs were ordered against them, and they now appealed. In a small company the . .
CitedManchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Lists of cited by and citing cases may be incomplete.

Planning, Administrative, Constitutional

Updated: 29 April 2022; Ref: scu.185845

Zainal bin Hashim v Government of Malaysia: PC 1980

A statute should not be given a construction that would impair existing rights personal or in property unless the language in which it is couched requires such a construction. The court considered the presumption that vested rights are not affected without clear wording. The rule in Joseph Suche was to be restricted so that ‘for pending actions to be affected by retrospective legislation, the language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature.’ Since the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this narrower presumption will be that much harder to displace, but it was displaced in this case.

Citations:

[1980] AC 734

Citing:

ModifiedIn re Joseph Suche and Co Ltd CA 1875
There is a a presumption, that legislation does not apply to actions which are pending at the time when it comes into force unless the language of the legislation compels the conclusion that Parliament intended that it should. It is ‘a general rule . .

Cited by:

CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.184437

Lopes v Chettiar: PC 1968

(Malaysia) The petitioner had an appeal as of right to the Judicial Committee from the Federal Court of Malaysia under section 74(1)(a)(ii). The Court refused leave to appeal holding that the appeal had no merits and was bound to fail and the petitioner appealed to the Judicial Committee for leave to appeal, or, alternatively, for special leave to appeal from the judgment of the Federal Court.
Held: The Federal Court had no discretion to refuse leave to appeal, but refused to grant special leave to appeal. The granting of special leave to appeal by the Judicial Committee is a matter of discretion and not a right. This case was not a fit one for appeal to the Judicial Committee and leave was not to be granted solely on account of the fact that the appeal was wrongly treated by the Federal Court as one in which that court had a discretion.

Judges:

Viscount Dilhorne

Citations:

[1968] AC 887

Statutes:

Courts of Judicature Act 1964 (Malaysia) 74(1)(a)(ii)

Citing:

CitedDavis v Shaughnessy PC 1932
The grant by the committee of special leave to appeal is discretionary. . .

Cited by:

CitedDonovan Crawford Regardless Limited Alma Crawford v Financial Institutions Services Limited PC 19-Jun-2003
PC (Jamaica) The petitioners sought leave to appeal to the Privy Council. They had an appeal as of right. They now sought special leave, complaining that the Court in Jamaca had granted leave subject to them . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.184492

Ong Ah Chuan v The Public Prosecutor: PC 1980

(Singapore) It was asked whether the mandatory death sentence for trafficking in more than 15 grammes of heroin was unconstitutional. The appellant submitted that the mandatory nature of the sentence rendered it arbitrary, since it debarred the court in punishing offenders from discriminating between them according to their individual blameworthiness. This was said to be contrary to the requirement in article 9(1) of the Constitution that a person might only be deprived of life ‘in accordance with law’. Rejecting this argument, Lord Diplock said there was nothing unusual in a capital sentence being mandatory and that its efficacy as a deterrent might be to some extent diminished if it were not. The committee considered the nature of specific intent: ‘In a crime of specific intent where the difference between it and some lesser offence is the particular purpose with which an act, in itself unlawful, was done, it borders on the fanciful to suggest that a law offends against some fundamental rule of natural justice because it provides that upon the prosecution’s proving that certain acts consistent with that purpose and in themselves unlawful were done by the accused, the court shall infer that they were in part done for that purpose unless there is evidence adduced which on the balance of probabilities suffices to displace the inference. The purpose with which he did an act is peculiarly within the knowledge of the accused. There is nothing unfair in requiring him to satisfy the court that he did the acts for some less heinous purposed if such be the fact . . ‘

Judges:

Lord Diplock

Citations:

[1981] AC 648, [1980] 3 WLR 855, [1981] Crim LR 245

Cited by:

CitedRegina v Daniel CACD 22-Mar-2002
The defendant appealed a conviction for hiding assets from her receiver following her bankruptcy. He said that recent case law suggested that the burden of establishing the defence under section 352 was evidential only.
Held: The conviction . .
CitedWatson v Regina PC 7-Jul-2004
(Jamaica) The defendant was convicted of two murders from the same incident. The Act provided for the death penalty if he was convicted of a second murder. He appealed the death sentence in the circumstances, and said also that it was . .
CitedReyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Sentencing, Constitutional

Updated: 29 April 2022; Ref: scu.184322

Regina v Mitchel: 1848

The judge instructed the jury that advocacy of republicanism was necessarily an offence: ‘There are no two things more inconsistent with each other – no two ideas more opposed to each other – no two expressions more contradictory of each other than that of a republic to a monarchy; and any man who does avow his desire to compass and obtain a republic, must inevitably intend to imagine the deposition and destruction of the monarchy. The two things cannot combine; the destruction of one is involved in the existence of the other. And if, looking to the natural import, tenor and meaning of the words used, you think that he did compass and intend to have a republic, there is necessarily and inevitably implied in that compassing an intention to deprive Her Majesty of her imperial throne.’ This was the last known prosecution under the Act.

Citations:

(1848) St Tr (NS) 599

Statutes:

Treason Felony Act 1848 3

Cited by:

CitedRegina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
CitedRusbridger and Another v Attorney General CA 20-Mar-2002
The paper wanted to publish an article about the monarchy but was concerened that it might lead to it being prosecuted under the 1848 Act. The complainant sought declarations as to the incompatibility of the 1848 Act with the 1998 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 29 April 2022; Ref: scu.184026

Fernando v Sri Lanka Broadcasting Corporation: 1996

(Sri Lanka) Broadcasts were planned including discussion by experts and listeners. Mr Fernando had participated in these discussions. After criticisms of the government the service came to an end and the broadcasts included little listener participation. Art 14 of the Constitution gave every citizen the freedom of speech and expression including publication’. The Supreme Court of Sri Lanka rejected the contention that the right to freedom of information simpliciter is included in the right to freedom of speech and expression. The right to receive information was in Article 10 of the Constitution that ‘every person is entitled to freedom of thought’ which was the corollary of freedom of speech.
Held: The freedom of speech of the petitioner, qua participatory listener, was infringed, because the stoppage of the NFEP prevented his participation. He was in the same position as the contributor of a column in Visuvalingam and the plaintiff in Lamont.

Judges:

Fernando J

Citations:

(1996) 1 BHRC 104

Cited by:

CitedBenjamin, Vanderpool and Gumbs v The Minister of Information and Broadcasting and The Attorney General for Anguilla PC 14-Feb-2001
PC (Anguilla) A first non-religious radio station had been formed, but came to include much criticism of the government. One programme was suspended by the government. The programme makers complained that this . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Media

Updated: 29 April 2022; Ref: scu.182066

Olivier v Buttigieg: PC 1967

(Malta) Following the condemnation by the Archbishop of Malta of a weekly newspaper the ‘Voice of Malta’, the entry into hospitals and branches of his department of newspapers condemned by the church authorities was ‘strictly forbidden’.
Held: On the basis of the provisions of section 14 of the Constitution even if the prohibition did not ‘prevent’ the editor from imparting ideas and information yet it quite plainly ‘hindered’ him in so doing and was an interference. The very purpose and intention of the prohibition was to hinder such imparting. The prohibition was imposed in order to aid the condemnation of the church authorities. The prohibition did not prevent government employees from buying and possessing and reading the ‘Voice of Malta’ at all such times as would not involve their having a copy in their possession while on government premises. But that said only that the most that the Minister thought that he could do was not effective to prevent government employees from reading the ‘Voice of Malta’ if any of them were determined to do so.

Judges:

Lord Morris of Borth-y-Gest

Citations:

[1967] 1 AC 115

Cited by:

CitedBenjamin, Vanderpool and Gumbs v The Minister of Information and Broadcasting and The Attorney General for Anguilla PC 14-Feb-2001
PC (Anguilla) A first non-religious radio station had been formed, but came to include much criticism of the government. One programme was suspended by the government. The programme makers complained that this . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Media

Updated: 29 April 2022; Ref: scu.182067