Category: Constitutional

Tabnak, Regina v: CACD 19 Feb 2007

The defendant appealed against his conviction under section 35 of the 2004 Act, having pleaded guilty after an adverse ruling as to the law. After being refused asylum and several failed appeals he had refused to give assistance in providing the necessary information to allow his deportation. The CPS and Home Office guidances on the section were in conflict.
Held: The restriction on use of Pepper v Hart in criminal matters had less force when, as in this case it was the defendant seeking to make use of it.

Judges:

Lord Phillips of Worth Matravers LCJ, Burton J, David Clarke J

Citations:

[2007] EWCA Crim 380, [2007] 1 WLR 1317

Links:

Bailii

Statutes:

Asylum and Immigration (Treatment of Claimants) Act 2004 24

Citing:

Cited – Thet v Director of Public Prosecutionsz Admn 19-Oct-2006
The defendant appealed by case stated against his conviction by the magistrates for entering the UK without a passport. He had relied on a false passport povided to him by an agent, and had returned it to the facilitator. He was therefore unable to . .
Considered – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration, Constitutional

Updated: 10 July 2022; Ref: scu.249376

Hodge v The Queen: PC 1883

Judges:

Lord FitzGerald, Sir Barnes Peacock

Citations:

(1883) 9 App Cas 117

Jurisdiction:

Commonwealth

Cited by:

Cited – Regina v The Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta CA 1982
The court considered an application leave to request a judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her government in the UK.
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 10 July 2022; Ref: scu.241376

Gairdner v Macarthur: HL 1 Mar 1916

The defender Captain A. J. Macarthur appealed to the House of Lords from an interlocutor of July 20, 1915, which, on the whole proof, recalled the Sheriffs’ interlocutors, gave new findings in fact, and a finding in law that the defender was liable to the pursuer in the value of certain articles, with decree for pounds 150. The respondent objected to the competency of the appeal. In an appeal from the Sheriff Court the Court of Session allowed additional proof on the ground that the words ‘if necessary’ in section 72 of the Court of Session Act 1868 meant ‘if necessary for the ends of justice.’
Held that an appeal to the House of Lords, on facts set up after such additional proof, was incompetent, being excluded by 6 Geo. IV, cap. 120, sec. 40.

Judges:

Lord Chancellor (Buckmaster), Lord Kinnear, Lord Atkinson, and Lord Shaw

Citations:

[1916] UKHL 297, 53 SLR 297

Links:

Bailii

Jurisdiction:

Scotland

Constitutional, Litigation Practice

Updated: 10 July 2022; Ref: scu.630677

Apollo Engineering Ltd v James Scott Ltd (Scotland): SC 13 Jun 2013

After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an appeal given that he was not a party to the action.
Held: The appeal failed. Any such application must itself be supported by certificates from two counsel. The only question actually before the court was as to the propriety of the order refusing leave, and the Supreme Court should only intervene in such decisions where there was something seriously wrong. Whilst the rules disallowing such representation might deserve re-examination, the decision was within the rules.

Judges:

Lord Hope, Deputy President, Lord Clarke, Lord Carnwath

Citations:

[2013] UKSC 37, 2014 SLT 32, 2013 SC (UKSC) 286, 2013 GWD 21-409, UKSC 2013/0038

Links:

Bailli Summary, Bailii, SC Summary, SC

Statutes:

Court of Session Act 1988 88, Court of Session Act 1988 88

Jurisdiction:

Scotland

Citing:

See Also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 7-Mar-2008
Outer House – Court of Session . .
Cited – Equity and Law Life Assurance Society v Tritonia Ltd HL 1943
Viscount Simon LC said: ‘When an appeal is argued before the House of Lords, no one has any right of audience except counsel instructed on behalf of a party or (when the litigant is a natural person) the party himself. In the case of a corporation, . .
Cited – Airey v Ireland ECHR 9-Oct-1979
Family law proceedings such as judicial separation do give rise to civil rights. In complex cases article 6 might require some provision for legal assistance, the precise form being a matter for the member state. The Court reiterated the importance . .
Cited – John G McGregor (Contractors) Ltd v Grampian Regional Council HL 1991
The House dismissed the Council’s appeal as incompetent. An opinion of the court upon questions of law given on consideration of a case stated under provisions such as those in section 3 of the 1972 Act did not constitute a ‘judgment’ within the . .
At SCS – Apollo Engineering Ltd (In Liquidation) v James Scott Ltd SCS 18-Jan-2012
The parties had for several years been involved in litigation and arbitration. Apollo’s funds had run out and a director sought permission to represent the company before the court. He had asked the court to make an order under article 6 of the . .
Cited – Marks and Spencer Plc v Interflora Inc and Another CA 20-Nov-2012
The court gave guidance on the use of surveys in trials for passing off and trade mark infringement.
Lewison LJ reviewed the practice of conducting interviews and surveys in passing off cases: ‘The upshot of this review is that courts have . .
Leave refused – Apollo Engineering Ltd v James Scott Ltd SCS 27-Nov-2012
Application for leave to appeal to the Supreme Court against order refusing permission for a shareholder and director of a party to represent the company.
Held: Leave was refused. . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 09 July 2022; Ref: scu.510913

Apollo Engineering Ltd (In Liquidation) v James Scott Ltd: SCS 18 Jan 2012

The parties had for several years been involved in litigation and arbitration. Apollo’s funds had run out and a director sought permission to represent the company before the court. He had asked the court to make an order under article 6 of the European Convention on Human Rights which would allow him to represent the company.
Held: The court refused the motion enrolled by Mr Politakis in his own name. He was invited to make submissions on his own behalf, and he did so both orally and in writing. The court held that it was well established by the authorities that Scots law does not permit a company to be represented by a director or an employee of the company. It can be represented only by an advocate or a solicitor with a right of audience. The court also refused leave to appeal to the Supreme Court.

Judges:

Lady Paton, Lord Reed, Lord Bracadale

Citations:

[2012] ScotCS CSIH – 4, 2012 SC 282, [2012] CSIH 4, 2012 GWD 5-82

Links:

Bailii

Statutes:

European Convention on Human Rights 6, Court of Session Act 1988 88

Jurisdiction:

Scotland

Citing:

See also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 7-Mar-2008
Outer House – Court of Session . .
Cited – John G McGregor (Contractors) Ltd v Grampian Regional Council HL 1991
The House dismissed the Council’s appeal as incompetent. An opinion of the court upon questions of law given on consideration of a case stated under provisions such as those in section 3 of the 1972 Act did not constitute a ‘judgment’ within the . .
Cited – Apollo Engineering Ltd v James Scott Ltd SCS 21-May-2009
Application for judicial review of arbitration . .

Cited by:

At SCS – Apollo Engineering Ltd v James Scott Ltd (Scotland) SC 13-Jun-2013
After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional

Updated: 09 July 2022; Ref: scu.450339

Apollo Engineering Ltd v James Scott Ltd: SCS 27 Nov 2012

Application for leave to appeal to the Supreme Court against order refusing permission for a shareholder and director of a party to represent the company.
Held: Leave was refused.

Judges:

Lady Paton, Lord Menzies, Lord Bracadale

Citations:

[2012] ScotCS CSIH – 88

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 7-Mar-2008
Outer House – Court of Session . .
Cited – John G McGregor (Contractors) Ltd v Grampian Regional Council HL 1991
The House dismissed the Council’s appeal as incompetent. An opinion of the court upon questions of law given on consideration of a case stated under provisions such as those in section 3 of the 1972 Act did not constitute a ‘judgment’ within the . .

Cited by:

Leave refused – Apollo Engineering Ltd v James Scott Ltd (Scotland) SC 13-Jun-2013
After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Company, Litigation Practice

Updated: 09 July 2022; Ref: scu.466319

Sellar v Highland Railway Co (No.1): HL 24 Jan 1919

The House considered whether a judge should recuse himself in a case involving a company in which he owned shares.

Judges:

Lord Buckmaster

Citations:

[1919] UKHL 1, 1919 1 SLT 149, 1919 SC (HL) 19

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Kaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Natural Justice

Updated: 09 July 2022; Ref: scu.279678

McGuinness, Re Application for Judicial Review: QBNI 3 Oct 1997

The claimant was an MP from Northern Ireland. As an MP he had been required to swear allegiance to the Crown, but he had refused to do so for his belief in an independent Ireland. He challenged the decision of the Speaker of the House to refuse him his expenses due as an MP.
Held: There was no human rights breach, but the allegation related to a matter within the area of exclusive jurisdiction that the House enjoyed over its own business. The Speaker’s decision ‘could not be challenged by way of judicial review’. The Speaker’s announcement in the House of Commons of action taken by her on behalf of the House to regulate the use by members of services which are ancillary to their work within the Chamber was a proceeding in Parliament and immune from judicial intervention. By virtue of article 9 ‘control of its own internal arrangements has long been recognised as falling uniquely within Parliament’s domain and superintendence from which the court’s intervention is excluded’.

Judges:

Kerr J

Citations:

[1997] NIQB 2, [1997] NI 359

Links:

Bailii

Statutes:

Parliamentary Oaths Act 1866, Bill of Rights 1689 9

Cited by:

Cited – Regina 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 . .
Cited – Chaytor 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 . .
Cited – Chaytor 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.

Northern Ireland, Constitutional

Updated: 09 July 2022; Ref: scu.249212

Regina v Secretary of State for Transport ex parte Factortame Ltd: HL 26 Jul 1990

(Interim Relief Order)

Citations:

[1990] UKHL 7, [1990] 2 LLR 365, [1990] 2 Lloyd’s Rep 365

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Secretary of State for Transport, Ex parte Factortame Ltd HL 18-May-1989
The applicants were companies owned largely by Spanish nationals operating fishing vessels within UK waters. The 1988 Act required them to re-register the vessels as British fishing vessels. The sought suspension of enforcement pending a reference . .

Cited by:

See Also – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
See Also – Regina v Secretary of State for Transport, ex parte Factortame Ltd and others (No 5) HL 28-Oct-1999
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .
Lists of cited by and citing cases may be incomplete.

European, Constitutional

Updated: 09 July 2022; Ref: scu.248738

Regina v Secretary of State for Social Security ex parte Sherwin (a Patient By Her Next Friend Sherwin): Admn 16 Feb 1996

An official in the Benefits Agency, part of the Department of Health and Social Security, suspended an income support/severe disability premium payable to the appellant. The court was asked whether the decision of the Agency, made under the authority of its chief executive, was to be regarded, as a matter of law, as the decision of the Secretary of State. The court examined the Framework document setting out the position of the Agency in relation to the DHSS which ‘acts on behalf of and in accordance with any directions, where appropriate, of the Secretary of State’. Ministers – the Framework provided – remain accountable to Parliament for the full range of their responsibilities.
Held:
After a close examination of the inter-relationship between the Agency and the Department, Lord Justice Kennedy concluded: ‘In my judgment, in the context of this case, the creation of the Benefits Agency has had no effect whatsoever on the operation of the Carltona principle. In addition to the cases to which I have referred, Mr Drabble referred us to a number of academic writings which I have read with interest. At the end of the day I came back to what was said by Lord Griffiths in Oladehinde. The decision was taken by a person of suitable seniority in the Agency (which was itself within the DSS) and it was taken by a person for whom the Secretary of State accepts responsibility. Therefore the Carltona principle applies.’
Latham J added: ‘There may be circumstances in which an agency is established in such a way that a minister could no longer, on any sensible analysis, be accountable to Parliament for its actions. The report of the Efficiency Unit was alive to that particular problem. In my judgment however the Benefits Agency has been established in a way which does not create any such difficulty. The use of the word ‘delegate’ was perhaps unfortunate but it has to be read in context. The intention was to ensure that the administration of benefits was located within a structure which, so far as possible, was a recognisable entity with lines of managerial responsibility intended to make it effective. That did not affect the constitutional position when, in accordance with the guidance which I have set out above, Mr Ash exercised the Secretary of State’s power under Regulation 37. That power was exercised by Mr Ash as a civil servant within the Department of Social Security on the authority of the Secretary of State in circumstances where the Secretary of State was answerable to Parliament.’

Judges:

Lord Justice Kennedy and Mr Justice Latham

Citations:

CO/1724/95, (1996) 32 BMLR 1

Jurisdiction:

England and Wales

Cited by:

Cited – Castle 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. . .
Cited – Bourgass 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.

Constitutional, Benefits

Updated: 08 July 2022; Ref: scu.140391

Thet v Director of Public Prosecutionsz: Admn 19 Oct 2006

The defendant appealed by case stated against his conviction by the magistrates for entering the UK without a passport. He had relied on a false passport povided to him by an agent, and had returned it to the facilitator. He was therefore unable to present it on interview.
Held: The appeal succeded. The Act was ill drafted but not ambiguous as to what was required of him at interview – was it an original passport or the one presented by him on entry. The Act required the production of an original passport, and he therefore had a reasonable excuse for not producing one, it having been impossible to obtain one in his country of origin. The court questioned the use of the Pepper v Hart doctrine in a criminal trial.
Lord Phillips of Worth Matravers said: ‘I would, however, question the use of Pepper v Hart in the context of a criminal prosecution. Mr Chalk was not able to refer the court to any case in which Pepper v Hart has been used in that context. If a criminal statute is ambiguous, I would question whether it is appropriate by the use of Pepper v Hart to extend the ambit of the statute so as to impose criminal liability upon a defendant where in the absence of Parliamentary material the court would not do so. It seems to me at least arguable that if a criminal statute is ambiguous the defendant should have the benefit of the ambiguity.’

Judges:

Lord Phillips of Worth Matravers, Lord Chief Justice and Mr Justice Roderick Evans

Citations:

Times 01-Nov-2006, [2006] EWHC 2701 (Admin), [2007] 1 WLR 2022, [2007] 2 All ER 425

Links:

Bailii

Statutes:

Asylum and Immigration (Treatment of Claimants etc) Act 2004

Citing:

Considered – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .

Cited by:

Cited – Tabnak, Regina v CACD 19-Feb-2007
The defendant appealed against his conviction under section 35 of the 2004 Act, having pleaded guilty after an adverse ruling as to the law. After being refused asylum and several failed appeals he had refused to give assistance in providing the . .
Cited – Khalif, Regina (on The Application of) v Isleworth Crown Court Admn 31-Mar-2015
The defendant appealed against his conviction under the 2004 Act on his plea of guilty saying that he had been given erroneous legal advice as to section 2(4)(c). . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration, Constitutional

Updated: 08 July 2022; Ref: scu.246361

Abou Rahmah and others v Abacha and others: CA 8 Nov 2006

The appellants were victims of a fraud conducted via the respondent bank by one of their clients. They appealed from a decision that the bank was not liable to the victims either in the equitable tort of knowing or dishonest assistance in a breach of trust, or in restitution for money had and received.
Arden LJ said: ‘before this court or the High Court decides to follow a decision of the Privy Council in place of a decision of the House of Lords the circumstances must be quite exceptional and the court must be satisfied that in practice the result would be a foregone conclusion.’

Judges:

Pill LJ, Rix LJ, Arden LJ

Citations:

[2006] EWCA Civ 1492, [2007] WTLR 1, [2007] Bus LR 220, [2007] 1 All ER (Comm) 827, [2007] 1 Lloyd’s Rep 115

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ivey v Genting Casinos (UK) Ltd (T/A Crockfords) SC 25-Oct-2017
The claimant gambler sought payment of his winnings. The casino said that he had operated a system called edge-sorting to achieve the winnings, and that this was a form of cheating so as to excuse their payment. The system exploited tiny variances . .
Cited – Willers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Banking, Constitutional

Updated: 08 July 2022; Ref: scu.245913

Bowe v The State: PC 30 Jan 2006

Constitutional validity of the death sentence in the Bahamas.

Citations:

[2006] UKPC 10, [2006] 1 WLR 1623

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Simmons and Another v Regina PC 3-Apr-2006
(Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
Held: The defendant would have failed in a submission of no . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing

Updated: 07 July 2022; Ref: scu.238917

Ingraham and others v Glinton and Another: PC 24 Jul 2006

(the Bahamas ) The Board was asked whether the Supreme Court of the Bahamas has jurisdiction to strike out proceedings brought by way of an application under article 28 of the Constitution of the Bahamas alleging a contravention of the Constitution on the basis that it discloses no reasonable cause of action.

Judges:

Lord Rodger of Earlsferry, Lord Steyn, Lord Walker of Gestingthorpe, Lord Carswell
Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 40, [2007] 1 WLR 1

Links:

Bailii

Commonwealth, Constitutional

Updated: 07 July 2022; Ref: scu.243386

Thomas v Sorrell: KBD 1674

The plaintiff said that the defendant had sold wine without paying a license fee as required under a statute creating the Company of Vintners.
Held: Vaughan CJ said: ‘every act a man is naturally enabled to do, is in it self equally good, as any other act he is so enabled to do. And so all the schoolmen agree, that actus qua actus non est malus. And that men’s acts are good or bad only as they are precepted or prohibited by a law, according to that truth, where there is no law there is no transgression. Whence it follows, that every malum is in truth a malum prohibitum by some law.’ and
‘A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a license to go beyond the seas, to hunt in a man’s park, to come into his house, are only actions which, without license, had been unlawful. But a license to hunt in a man’s park, and carry away the deer killed to his own use; to cut down a tree in a man’s ground, and to carry it away the next day after to his own use, are licenses as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down, they are grants. So, to license a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the actions of eating, firing my wood, and warming him, they are licenses; but it is consequent necessarily to those actions that my property may be destroyed in the meat eaten, and in the wood burnt. So as in some cases, by consequent and not directly, and as its effect, a dispensation or license may destroy and alter property.’
Vaughan CJ said: ‘And note, if a man have particular damage by a foundrous way, he is generally without remedy, though the nusance is to be punisht by the King. The reason is, because a foundrous way, a decay’d bridge, or the like, are commonly to be repaired by some township, vill, hamlet, or a county who are not corporate, and therefore no action lyes against them for a particular damage, but their neglects are to be presented, and they punish’d by fine to the King.
But if a particular person, or body corporate, be to repair a certain highway, or portion of it, or a bridge, and a man is endamaged particularly by the foundrousness of the way, or decay of the bridge, he may have his action against the person or body corporate, who ought to repair for his damage, because he can bring his action against them; but where there is no person against whom to bring his action, it is as if a man be damaged by one that cannot be known.’

Judges:

Vaughan CJ

Citations:

(1674) Vaughan 330, [1673] EWHC KB J85, 124 ER 1098-1113

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kaisha v Green Cartridge Company (Hong Kong) Limited PC 30-Apr-1997
(Hong Kong) The claimants complained of the sale by the defendants of refilled cartridges for use with their printers.
Held: The spare cartridge manufacturer’s appeal failed: ‘repair is by definition something which does not amount to the . .
Approved – Wood v Leadbitter ExcC 22-Feb-1845
The plaintiff complained of being assaulted. He had been on Doncaster Race Course with a ticket. The owner’s servant requested him to leave, and when he refused gently laid his hands on the plaintiff to remove him. The plaintiff said that his . .
Cited – IDC Group Ltd v Clark CA 2-Jul-1992
The court was asked: ‘whether a deed made between adjoining owners and expressed to ‘grant licence’ to the owners and occupiers for the time being of one property to pass over parts of the other in case of fire operated as the grant of an easement . .
Lists of cited by and citing cases may be incomplete.

Contract, Licensing, Constitutional, Land

Updated: 06 July 2022; Ref: scu.242421

Ellen Street Estates Limited v Minister for Health: CA 1934

S.2 of the Acquisition of Land (Assessment of Compensation) Act 1919 provided for the assessment of compensation in respect of land acquired compulsorily for public purposes according to certain rules. Then by s.7(1): ‘The provisions of the Act or order by which the land is authorised to be acquired, or of any Act incorporated therewith, shall, in relation to the matters dealt with in this Act, have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect . . ‘ S.46 of the Housing Act 1925 provided for the assessment of compensation for land acquired compulsorily under an improvement or reconstruction scheme made under that Act in a manner which was at variance from that prescribed by the Act of 1919.
Held: One Parliament cannot deny or qualify the power of itself or of a later Parliament to exercise that power.
Avory J (referring to dicta in Vauhall Estates): ‘That is absolutely contrary to the constitutional position that Parliament can alter an Act previously passed, and it can do so by repealing in terms the previous Act . . and it can do it also in another way – namely, by enacting a provision which is clearly inconsistent with the previous Act.’
Maugham LJ: ‘The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the Legislature.’

Judges:

Scrutton LJ, Maugham LJ

Citations:

[1934] 1 KB 590, [1934] All ER Rep 385

Statutes:

Acquisition of Land (Assessment of Compensation) Act 1919 2, Housing Act 1925 46

Jurisdiction:

England and Wales

Citing:

Considered – Vauxhall Estates Ltd v Liverpool Corporation KBD 1932
The court looked at the question of the implied repeal of legislation.
Avory J said: ‘I should certainly hold . . that no Act of Parliament can effectively provide that no future Act shall interfere with its provisions . . [I]f they [the two . .

Cited by:

Cited – Manuel 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.

Administrative, Constitutional

Updated: 06 July 2022; Ref: scu.241355

Rost v Edwards: 1990

The plaintiff a Member of Parliament wished to lead evidence about the circumstances in which, having been nominated to serve on a Standing Committee, he was de-selected from the Committee, and in which he failed to secure appointment as the chairman of a Select Committee. He also wished to lead evidence as to questions which were asked in the House by Opposition Members about his conduct, and as to a letter which one of the Opposition Members sent to him and also to the Speaker, complaining about the plaintiff’s conduct. The letter concerned the questions which the Member subsequently raised in the House.
Held: All these matters were fell within the scope of ‘proceedings in Parliament’. Where the exclusion of material on the grounds of Parliamentary privilege made it impossible fairly to determine the issue between the parties, the proceedings should be stopped.

Citations:

[1990] 2 QB 460, [1990] 2 All ER 641

Jurisdiction:

England and Wales

Administrative, Constitutional

Updated: 06 July 2022; Ref: scu.241359

Simmons and Another v Regina: PC 3 Apr 2006

(Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
Held: The defendant would have failed in a submission of no case to answer even without the confessions, and ‘even had the Mushtaq direction been given and the jury disregarded the statement, they must inevitably still have convicted him. ‘. The statement though in effect culpatory had been intended to be exculpatory.

Judges:

Lord Nicholls of Birkenhead, Lord Woolf, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 19

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Cited – Attorney-General of Trinidad and Tobago v Whiteman PC 17-Apr-1991
(Trinidad and Tobago) The time at which an arrested or detained person is to be informed of his/her right to consult with a legal adviser of choice is at a stage before the commencement of ‘in-custody interrogations’.
Lord Keith, in delivering . .
Cited – Mohammed (Allie) v The State PC 9-Dec-1998
(Trinidad and Tobago) A failure to inform a suspect before interview of his right to see a lawyer did not make the interview inadmissible despite the constitutional infringement. It was not as serious as a failure to give fair trial. The judge’s . .
Cited – Regina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
Cited – Gilbert v Regina PC 27-Mar-2006
(Grenada) . .
Cited – Bowe (Junior) and Another v The Queen PC 8-Mar-2006
(Bahamas) The Board considered: ‘(a) the jurisdiction of the Court of Appeal (b) the constitutional history in the Bahamas as it differs from that of other Caribbean states and (c) the constitutionality of the executive act of carrying out a . .
Cited – Teeluck and John v The State PC 23-Mar-2005
(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases . .
Cited – Bowe v The State PC 30-Jan-2006
Constitutional validity of the death sentence in the Bahamas. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice, Constitutional

Updated: 06 July 2022; Ref: scu.240023

Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another: CA 6 Nov 2002

A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an order would question the legitimacy of the actions of a foreign sovereign state, and to adjudicate upon executive actions in the conduct of foreign affairs. The detention was objectionable. The court could provide no direct remedy, since the British government had no control nor active part in it. There was no legitimate expectation created which could support an application for judicial review of the actions of the respondent. The government could continue to make representations, but that must always be in the respondents discretion. The respondent had properly considered the requests, and no more could reasonably be expected.

Judges:

Phillips MR, Waller, Carnwath LJJ

Citations:

Times 08-Nov-2002, Gazette 06-Dec-2002, [2002] EWCA Civ 1598, [2002] All ER (D) 70, [2003] UKHR 76

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Eisentrager v Forrestal 5-Jun-1949
(US Supreme Court) German citizens had been convicted of espionage by a United States military commission after the surrender of Germany at the end of the Second World War. They were repatriated to Landsberg Prison in Germany to serve their . .
Cited – Buck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .
Cited – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – Westland Helicopters Ltd v Arab Organisation for Industrialisation 1995
International arbitration proceedings under a joint venture agreement had led to an award in Westland’s favour against the Organisation. The award was converted into a judgment and Westland obtained garnishee orders nisi against six London banks. . .
Cited – British Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
Cited – In re Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (second phase) ICJ 5-Feb-1970
ICJ The claim arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained . .
Cited – Oppenheimer v Cattermole (Inspector of Taxes) HL 5-Feb-1975
HL Income tax, Schedule D – Foreign possessions – Double taxation relief – German government pension for past services – Paid to British subject of German origin – Whether German nationality deemed to be retained . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai CA 1985
Sir John Donaldson MR said: ‘in the context of a situation with serious implications for the conduct of international relations, the courts should act with a high degree of circumspection in the interests of all concerned. It can rarely, if ever, be . .

Cited by:

Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Shergill 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. . .
Approved – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Judicial Review, Constitutional

Updated: 06 July 2022; Ref: scu.178026

The Port Authority of Trinidad and Tobago v Daban: PC 20 May 2019

(From the Court of Appeal of the Republic of Trinidad and Tobago) Application of section 4(d) of the Constitution of the Republic of Trinidad and Tobago in an employment context.

Judges:

Lord Kerr, Lord Wilson, Lady Black, Lady Arden, Lord Sales

Citations:

[2019] UKPC 22

Links:

Bailii

Jurisdiction:

England and Wales

Constitutional, Employment

Updated: 06 July 2022; Ref: scu.638479

Zabrovsky v The General Officer Commanding Palestine: PC 4 Dec 1946

Mr Zabrovsky’s son, Arie Ben Eliezer, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine. He was then transported to a military detention camp in Eritrea. At the time, Eritrea was ‘held’ by the British under the control of a Chief Administrator. Proclamation No 54 issued by the Chief Administrator permitted detention without charge in Eritrea, and the order of the Eritrean Military Government for Eliezer’s detention had been made pursuant to that Proclamation.
An application for habeas corpus was made in the Supreme Court of Palestine against the British Officer commanding Mandate Palestine and the police. That court, sitting as a High Court and exercising English common law rules, discharged a rule nisi on the basis that, although control could be established, the extant detention order had been issued by a state beyond the Supreme Court of Palestine’s jurisdiction.
Held: The detention was lawful.
‘In the troublous times of war and in the chaotic post-war conditions the scope of legal and permissive interference with personal liberty has been extended and restraints have been legalised by the legislature which would not have been accepted as legitimate in normal times. Thus in England, in what are called the Reg 18B cases, Liversidge v Sir John Anderson . . the House of Lords upheld the legality of a detention of the applicants by the Executive without trial and also held that the Executive could not be compelled to give reasons for the detention . . the effect of the decisions is to vest a plenary discretion in the Executive, affecting the liberty of the subject and pro tanto to substitute the judgment of the court, based on ordinary principles of common law right, the discretion of the Executive acting arbitrarily in the sense that it cannot in substance be inquired into by the court.’
The Board distinguished: ‘[O’Brien] was relied upon for two purposes (1) to support an argument that on the facts of the present case the Palestine Government could properly be ordered to produce the body, and (2), that the proper order was not to discharge the order nisi but to make an order nisi which would enable the court, without deciding the question whether the Palestine Government had control of Eliezer, to clear up any doubts there might be as to the facts. In their Lordships’ view, however, O’Brien’s case does not, when carefully considered, afford any help in this appeal. The central feature in that case was that there never was an effective legal order. The order relied on was made by the English Secretary of State for internment of O’Brien in the Irish Free State after the setting up of an Irish constitution and an Irish Executive. The Court of Appeal held that the order was illegal . . The Secretary of State thereupon produced the body of O’Brien, giving as their justification, the order of internment which the court had held to be bad; the court made the order absolute and O’Brien was released . . In the present case the Palestinian court has found itself unable to say that the detention was illegal. They have said that it was beyond their competence to decide on the illegality of the detention in Eritrea. Their Lordships, as they have indicated, agree with this view but offer no opinion as to the further suggestion of that court, that, if the petitioner wishes to question the validity of the order made in Eritrea, he must do so in the courts of Eritrea. The validity and effect of the Eritrean law and order may raise many difficult questions of constitutional or other law. The legality of acts done, or of detention enforced in, that country in pursuance or assumed pursuance of its law or orders is, however, clearly beyond the jurisdiction of the Palestine court and of this Board on appeal.’

Judges:

Lord Wright, Lord Porter, Lord Uthwatt, Sir Madhavan Nair, Sir John Beaumont

Citations:

[1947] AC 246, [1946] UKPC 49, 177 LT 369, [1947] LJR 1053

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Distinguished – Secretary of State for Home Affairs v O’Brien HL 1923
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in . .
Cited – Liversidge 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 . .

Cited by:

Cited – Bancoult, 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 . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 July 2022; Ref: scu.242143

Attorney-General of Trinidad and Tobago v Whiteman: PC 17 Apr 1991

(Trinidad and Tobago) The time at which an arrested or detained person is to be informed of his/her right to consult with a legal adviser of choice is at a stage before the commencement of ‘in-custody interrogations’.
Lord Keith, in delivering the opinion of the Judicial Committee said:
‘Their Lordships accordingly consider that persons who have been arrested or detained have a constitutional right to be informed of their right to communicate with a legal adviser both upon a proper construction of section 5(2)( h ) of the Constitution of 1976 and on the basis of a settled practice existing when that Constitution was introduced. Davis JA said towards the end of his judgment of the Court of Appeal:
‘I am not prepared to lay down any general rule as to the precise point in time when a person in custody ought to be informed of this right, [but it should be] as early as possible, and in any event before any ‘in-custody interrogation’ takes place.’
Their Lordships would endorse that. It is possible to envisage circumstances where it would not be practicable to inform the person of his right immediately upon his arrest. They would add that it is incumbent upon police officers to see that the arrested person is informed of his right in such a way that he understands it. He may be illiterate, deaf, or unfamiliar with the language. It is plain that the mere exhibition of notices in the police station is insufficient in itself to convey the necessary information.’

Judges:

Keith of Kinkel, Templeman, Griffiths, Ackner, Jauncey of Tullichettle LL

Citations:

[1991] 2 AC 240, [1991] UKPC 16, (1991) 39 WIR 397

Links:

Bailii

Cited by:

Cited – Simmons and Another v Regina PC 3-Apr-2006
(Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
Held: The defendant would have failed in a submission of no . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice, Constitutional

Updated: 06 July 2022; Ref: scu.241302

Bowe (Junior) and Another v The Queen: PC 8 Mar 2006

(Bahamas) The Board considered: ‘(a) the jurisdiction of the Court of Appeal (b) the constitutional history in the Bahamas as it differs from that of other Caribbean states and (c) the constitutionality of the executive act of carrying out a mandatory death sentence’.

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead,Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood

Citations:

[2006] 1 WLR 1623, [2006] UKPC 10

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Simmons and Another v Regina PC 3-Apr-2006
(Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
Held: The defendant would have failed in a submission of no . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing

Updated: 05 July 2022; Ref: scu.238919

Ruddy and others v Procurator Fiscal, Perth and Another; Robertson v Higson: PC 6 Feb 2006

(High Court of Justiciary Scotland)

Citations:

[2006] UKPC D2, 2006 SLT 478, 2006 SC (PC) 22, 2006 SCCR 151, [2006] HRLR 16, 20 BHRC 179

Links:

Bailii

Statutes:

Scotland Act 1998

Jurisdiction:

Scotland

Cited by:

Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Practice

Updated: 05 July 2022; Ref: scu.238744

Societe United Docks v Government of Mauritius; Marine Workers Union v Mauritius Marine Authority: PC 1985

(Mauritius) Dockworkers and the Ports Authority, submitted their wage dispute to binding arbitration. The award granted a substantial wage increase which the workers then sought to have enforced. The government, brought in legislation allowing the Attorney General to object to the award’s enforcement.
Held: Section 3 of the constitution of Mauritius is an enacting section, not a mere preamble or introduction. The more detailed later sections (section 8) did not curtail the ambit of section 3, and the Board held that: ‘A Constitution concerned to protect the fundamental rights and freedoms of the individual should not be narrowly construed in a manner which produces anomalies and inexplicable inconsistencies.’
Lord Templeman: ‘Prior to the Amendment Act the appellants were entitled to an order of the court making the award executory and enforceable and each relevant employee was entitled to sue the MMA for, and to recover, the difference between the salary and allowances in fact paid to him and the salary and allowances to which he was entitled pursuant to the award during the duration of the award. The Amendment Act has thus deprived and was intended to deprive each worker of a chose in action, namely the right to sue for and recover damages for breach by the MMA of its contract of employment.
Section 3 of the Constitution of Mauritius recognises and declares inter alia the right of the individual to protection from deprivation of property without compensation. The Board have already determined in connection with the contemporaneous case of Societe United Docks v Government of Mauritius that the protection afforded by section 3 is not confined to property which has been compulsorily taken possession of or compulsorily acquired within the meaning of section 8. The appellants rightly complained on behalf of the workers employed by the MMA that the workers had been deprived of property, namely their right to sue for and recover damages for breach by the MMA of its contract of employment, contrary to section 3 of the Constitution.’ and ‘It suffices that the Amendment Act was a coercive Act of the government which alone deprived and was intended to deprive the appellants of property without compensation and thus infringed the Constitution.’

Judges:

Lord Templeman

Citations:

[1985] AC 585

Jurisdiction:

Commonwealth

Cited by:

Cited – Bishop of Roman Catholic Diocese of Port Louis and Others v Suttyhudeo Tengur and Others PC 3-Feb-2004
PC (Mauritius) A father challenged the constitutionality of a system where 50% of places in Catholic run secondary schools were allocated to Catholic childen, and fifty per cent according to merit. He feared this . .
Cited – Matadeen and others v M G C Pointu and others (Mauritius) PC 18-Feb-1998
It is a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. Lord Hoffmann said: ‘of course persons . .
Cited – Naidike, 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

Updated: 05 July 2022; Ref: scu.192651

Bell v Director of Public Prosecutions of Jamaica: PC 1985

The appellant had been sentenced to life for firearms offences. After a successfully appeal, a retrial was ordered. More than two years had passed, after a previous attempt failed for absent witnesses.
Held: Referred to the US decision in Barker and Wingo (1972) 407 US 514, invoking the sixth amendment – ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury….’) which identified four factors in assessing whether a defendant had been deprived of his constitutional rights: (1) the length of delay; (2) the reasons given by the prosecution to justify the delay; (3) the responsibility of the accused for asserting his rights; and (4) prejudice to the accused. ‘Their Lordships acknowledge the relevance and importance of the four factors lucidly expanded and comprehensively discussed in Barker v Wingo. Their Lordships also acknowledge the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings. The weight to be attached to each factor must, however, vary from jurisdiction to jurisdiction and from case to case.’ and ‘It was argued on behalf of the respondents, the Director of Public Prosecutions and the Attorney-General, that the applicant was able to obtain redress by waiting until his retrial, ordered for 11 May 1982, and then submitting to the Gun Court at the commencement of the retrial that the proceeding should be dismissed on the grounds that in the events which had happened a retrial would be an abuse of the process of the court. Their Lordships cannot accept this submission. If the constitutional rights of the applicant had been infringed by failing to try him within a reasonable time, he should not be obliged to prepare for a retrial which must necessarily be convened to take place after an unreasonable time.’
‘Their Lordships accept the submission of the respondents that, in giving effect to the rights granted by sections 13 and 20 of the Constitution of Jamaica, the courts of Jamaica must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be found in Jamaica. The administration of justice in Jamaica is faced with a problem, not unknown in other countries, of disparity between the demand for legal services and the supply of legal services. Delays are inevitable. The solution is not necessarily to be found in an increase in the supply of legal services by the appointment of additional judges, the creation of new courts and the qualification of additional lawyers. Expansion of legal services necessarily depends on the financial resources available for that purpose. Moreover an injudicious attempt to expand an existing system of courts, judges and practitioners, could lead to deterioration in the quality of the justice administered and to the conviction of the innocent and the acquittal of the guilty. The task of considering these problems falls on the legislature of Jamaica, mindful of the provisions of the Constitution and mindful of the advice tendered from time to time by the judiciary, the prosecution service and the legal profession of Jamaica. The task of deciding whether and what periods of delay explicable by the burdens imposed on the courts by the weight of criminal causes suffice to contravene the rights of a particular accused to a fair hearing within a reasonable time falls upon the courts of Jamaica and in particular on the members of the Court of Appeal who have extensive knowledge and experience of conditions in Jamaica. In the present case the Full Court stated that a delay of two years in the Gun Court is a current average period of delay in cases in which there are no problems for witnesses. The Court of Appeal did not demur. Their Lordships accept the accuracy of the statement and the conclusion, implicit in the statement, that in present circumstances in Jamaica, such delay does not by itself infringe the rights of an accused to a fair hearing within a reasonable time. No doubt the courts and the prosecution authorities recognise the need to take all reasonable steps to reduce the period of delay wherever possible.’

Judges:

Templeman L

Citations:

[1985] 2 All ER 585, [1985] AC 937

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Chichester Justices ex parte Crowther Admn 14-Oct-1998
The defendant sought judicial review of an order made in 1998 issuing a warrant for his committal for failure to pay a confiscation order made in 1991. He had served 6 years imprisonment, and in default of payment a further 18 months. He was . .
Cited – Director of Public Prosecutions and others v Tokai and others PC 12-Jun-1996
(Trinidad and Tobago) The appellant had been charged in 1981 with offences alleged to have been committed shortly before. The proceedings continued until his appeal for one was dismissed in 1988. The wounding charges were proceeded with only in . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Constitutional

Updated: 05 July 2022; Ref: scu.187181

Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners: PC 18 Jan 1927

An Act removing the right of appeal to the Privy Council was held not to affect an appeal in litigation pending when the Act was passed and decided after its passing, on the ground that (Lord Warrington) ‘[t]o deprive a suitor in pending litigation of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure’. And ‘In considering the construction and effect of this Act the Board is guided by the well known principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms’ and ‘When we are seeking the intention of Parliament that may appear from express words but it may also appear by irresistible inference from the statute read as a whole. But I would agree that, if there is a reasonable doubt, the subject should be given the benefit of the doubt.’
A statute should not be held to take away property rights without compensation unless the intention to do so is expressed in terms which are clear and unambiguous.
Lord MacNaghten: ‘As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.’

Judges:

Lord Warrington, Lord Darling, Viscont Haldane, Viscount Finlay, Viscount Dunedin

Citations:

[1927] AC 343, [1927] UKPC 2

Links:

Bailii

Cited by:

Cited – Minister of Housing and Local Government v Hartnell HL 1965
The law ordinarily entitles a person whose land is taken for a highway to compensation unless the statutory intention to resume without compensation is expressed in clear and unambiguous terms. Lord Wilberforce described a use treated as established . .
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Cited – Peacock, Re SC 22-Feb-2012
The defendant had been convicted of drugs offences, and sentenced under the 1994 Act. The gains he had made exceeded his then assets. Later he acquired further property honestly, and the Court now considered whether those assets could be taken to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 July 2022; Ref: scu.237727

Regina v Secretary of State for Transport ex parte Factortame and others (5): CA 12 Dec 1997

The wrongful passing of a UK Act of Parliament in breach of European Law left the UK liable in damages to individuals who had suffered where the losses could be shown to be serious enough.

Citations:

Times 28-Apr-1998, [1997] EWCA Civ 2982

Jurisdiction:

England and Wales

European, Constitutional

Updated: 04 July 2022; Ref: scu.143381

Oakley Inc v Animal Ltd and others: CA 20 Oct 2005

It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The Attorney general now criticised the judge for failing to allow for the extent of Parliamentary scrutiny afforded to secondary legislation.
Held: ‘It is the people of the United Kingdom, the electorate, who are entitled to the assurance that laws are normally made by primary legislation and will only exceptionally be amended by secondary legislation. ‘ However, s2(2) of the 1972 Act was sui generis: ‘Unlike other provisions allowing for the amendment of primary legislation by secondary legislation, it flows directly from the Treaty obligations of the United Kingdom. ‘ The obligations identified and incorporated were obligations even though secondary, and were validly incoporated.
Waller LJ said that the primary objective of any secondary legislation under section 2(2) must be to bring into force laws which, under the Treaties, the United Kingdom has agreed to make part of its laws.

Judges:

Waller, May, Jacob LJJ

Citations:

Times 07-Nov-2005, [2005] EWCA Civ 1191, [2006] Ch 337

Links:

Bailii

Statutes:

EC Directive 98/71/EC, Registered Designs Regulations 2001, European Communities Act 1972 2

Jurisdiction:

England and Wales

Citing:

Appeal from – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – McKiernon v Secretary of State for Social Security CA 26-Oct-1989
A statute granting a power to be amended by a subordinate instrument can only do so by an express power: ‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination . .
Cited – Regina v Secretary of State for Trade and Industry ex parte Unison 1996
The 1978 Directive required consultation in the case of collective redundancies. Acts had incorrectly incorporated this requirement into English law. The error was corrected in the 1995 Regulations.
Held: Anything is ‘related to’ a Community . .
Cited – Regina v Ministry of Agriculture Fisheries and Food Ex Parte Hedley Lomas (Ireland) Ltd ECJ 23-May-1996
The wrongful prevention by a state of the lawful export of animals gave rise to a right to claim for damages.
LMA The UK had refused to grant licences for the export of live sheep to Spain, on the grounds . .
Cited – Addison v Denholm Ship Management (UK) Ltd EAT 1997
An issue before the EAT was whether regulations made under section 2(2) of the 1972 Act applied to the crew of a floating hotel/ship in the North Sea.
Held: According to European law the UK could choose whether or not to apply employment . .
Cited – Ebony Maritime SA and Loten Navigation Co Ltd v Prefetto della Provincia di Brindisi and others ECJ 27-Feb-1997
Europa 1 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Measures to detain and confiscate . .
See Also – Oakley Inc v Animal Ltd. and others PatC 16-Mar-2005
. .
Cited – Perth and Kinross Council v Donaldson and Others 2004
The court considered whether the TUPE regulations in going beyond what was required under the European Directive was invalid.
Held: ‘If it is to be suggested that the 1981 Regulations have effectively allowed the Directive to operate in that . .
Cited – des Gaz SA v Falks Veritas Ltd CA 1974
The court considered for the first time, the effect of the Rome Treaty. It ‘came about because of a tin can’ .
A question requiring the exercise of a judges discretion is to be determined as at the date that the primary judge gave judgment, . .

Cited by:

Cited – Slack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Cited – Brent London Borough Council and Others v Risk Management Partners Ltd SC 9-Feb-2011
The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European, Constitutional

Updated: 04 July 2022; Ref: scu.231233

Panday v Gordon: PC 5 Oct 2005

(Trinidad and Tobago) A senior politician had accused an opponent of pseudo-racism. The defendant asserted that he had a defence under the constitution, allowing freedom of political speech.
Held: The appeal failed. The statements were defamatory statements of fact. Justification was not pleaded and a defence of privilege was not pursued. The damages were substantial but awarded by a court which knew the significance of the words, and the local context.

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond

Citations:

[2005] UKPC 36

Links:

Bailii, PC

Citing:

Cited – Tse Wai Chun Paul v Albert Cheng 13-Nov-2000
(Court of Final Appeal of Hong Kong) For the purposes of the defence to defamation of fair comment: ‘The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or . .
Cited – Branson v Bower (No 1) CA 24-May-2001
The test of whether comment was fair comment is simply that of whether the opinion was honestly expressed, and on the basis of facts accurately stated. There is no special rule for imputations of corruption or dishonest motives. Nor is there any . .
Cited – Matthew vThe State PC 7-Jul-2004
(Trinidad and Tobago) The court questioned the constitutionality of the mandatory death penalty in Trinidad.
Held: The constitution of Trinidad, when implemented, forbade cruel and unusual punishment, but also preserved existing penalties. The . .
Cited – Horrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
Cited – Lange v Atkinson 21-Jun-2000
(Court of Appeal of New Zealand) The court rejected a test of reasonableness before accepting a defence to defamation associated with the political nature of the speech. . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Lange v Australian Broadcasting Corporation 8-Jul-1997
(High Court of Australia) The court propounded a test of reasonableness of conduct in respect of the publication of political information. Generally publication will not be reasonable unless the maker of the statement had reasonable grounds for . .
Cited – Morris Manning and the Church of Scientology of Toronto v S Casey Hill and The Attorney General for Ontario and others 20-Jul-1995
(Supreme Court of Canada) The publication of defamatory statements ‘constitutes an invasion of the individual’s personal privacy and is an affront to that person’s dignity’. . .
Cited – Botiuk v Toronto Free Press Publications Ltd 21-Sep-1995
(Supreme Court of Canada) Defamation was alleged against lawyers writing on behalf of their clients.
Held: The defendant lawyers were ‘duty-bound’ to undertake a reasonable investigation into the correctness of the document they were signing . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation, Constitutional

Updated: 04 July 2022; Ref: scu.230968

Her Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor): PC 28 Jun 2005

(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European Convention, seeks to guarantee the procedural fairness of the criminal process. Though the Convention is not part of the law of Gibraltar, its cases are persuasive. Such case law did not establish an obligation to create a power to award a defendant his costs against the prosecutor. There was no unconstitutionality, and therefore no possibility in the court to nullify the law. The appeal failed.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2005] UKPC 26, (2005) 20 BHRC 223, [2005] 1 WLR 3335

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Diani 1999
(Gibraltar) The court in Gibralter had no power to award a successful defendant in criminal proceedings his costs. . .
Cited – Liubov Ford v Richard Labrador PC 22-May-2003
(Gibraltar) The appellant had failed in an action for defamation, she had been ordered to pay costs as a condition of her continuing the action.
Held: The order was made by the Chief Justice sitting as a judge of the Court of Appeal in an . .
Cited – Regina v Dotto 4-Apr-2001
(Supreme Court of Gibraltar) A successful defendant in criminal proceedings is not entitled to any award of costs against the prosecution. . .
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Ziegler v Switzerland ECHR 21-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – domestic proceedings . .
Cited – Leutscher v The Netherlands ECHR 26-Mar-1996
Lack of jurisdiction (complaint inadmissible); No violation of Art. 6-2 – The Commission distinguished cases in which there has been no acquittal on the merits of the accusation. . .
Cited – Beer v Austria ECHR 6-Feb-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention . .
Cited – Robins v The United Kingdom ECHR 23-Sep-1997
Over-long delay by court system in settling amount of costs constituted breach of human rights; order made in 1991, not settled till 1995 . .
Cited – Minelli v Switzerland ECHR 25-Mar-1983
It was capable of being an infringement of a defendant’s right to a fair trial, to refuse to order payment of his costs after an acquittal in such a manner as to cast doubt on his innocence. ‘In the Court’s judgment, the presumption of innocence . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – Masson And Van Zon v The Netherlands ECHR 28-Sep-1995
ECHR Judgment (Merits) – Lack of jurisdiction (complaint inadmissible); No violation of Art. 6-1; Not necessary to examine Art. 13.
The court discussed whether article 6 requires a discretion to be given to . .
Cited – Lutz v Germany ECHR 25-Aug-1987
Only criminal charges attract the additional protections under article 6(2) and 6(3). Insofar as these provisions apply to ‘everyone charged with a criminal offence’ it is well established in the jurisprudence of the European Court of Human Rights . .
Cited – Lewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another PC 12-Sep-2000
(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, . .
Cited – Haroon Khan v The State PC 20-Nov-2003
PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been . .
Cited – De Haes and Gijsels v Belgium ECHR 24-Feb-1997
The court emphasised that the press plays an essential role in a democratic society. The court trenchantly observed ‘It is incumbent on the press to impart information and ideas of public interest. Not only does the press have the task of imparting . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Practice

Updated: 01 July 2022; Ref: scu.228316

Harb v King Fahd Bin Abdul Aziz: CA 26 May 2005

Citations:

[2005] EWCA Civ 633

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Harb v King Fahd Bin Abdul Aziz CA 26-May-2005
The wife sought an order for reasonable maintenance from His Majesty King Fahd Bin Abdul Aziz. He replied that he was immune from suit.
Held: The King as king was immune. The judge at first instance had been wrong to give the case fictitious . .
Lists of cited by and citing cases may be incomplete.

Family, Constitutional

Updated: 30 June 2022; Ref: scu.226056

Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General: Admn 28 Jan 2005

The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant that the 1949 Act was void, and that anything passed by its means was also void. This would include the 2004 Act. The 1949 Act was delegated legislation, and it was not in the power of the delegatee (the Commons) to amend the power it had been given.
Held: The sovereignty of Parliament is derived form several sources, and lastly the power emanates from a subordinate legislature which, in the absence of an express power, cannot modify or amend the conditions upon which its power to legislate was granted. The 1911 Act changed the balance between the Houses of Parliament. The words of the 1911 Act explicitly allowed it to be used to pass any public Bill, with listed exclusions. Allowing the Preamble to the 1911 Act as an aid to construction did not assist the clamants. ‘the label of delegated legislation is inapposite. . . . the 1911 Act is a special case which arose in a specific context which bore little or no resemblance to delegated legislation as that concept is generally understood. The purpose of the 1911 Act was to change the relationship between the House of Commons and the House of Lords in the process of enacting legislation ‘ and ‘In my judgment, the correct way to describe the 1911 Act is as a statute which redefined or remodelled the legislature in such a way that there were thenceforth two routes through which Acts of Parliament could be enacted – the traditional way involving the Sovereign, the House of Commons and the House of Lords and the 1911 Act way emanating from the Sovereign and the House of Commons provided that the conditions imposed by the 1911 Act are met.’
As to the third argument ‘there is no established principle applicable to this case which denies a power of amendment of the earlier statute in the absence of the express conferral of one specifically dealing with amendment. What is important is the language of the earlier statute. I do not doubt that it is sufficient to permit amendment in the manner that was achieved by the 1949 Act.’

Judges:

Collins J, Kay LJ

Citations:

[2005] EWHC 94 (Admin), Times 31-Jan-2005

Links:

Bailii

Statutes:

Hunting Act 2004, Parliament Act 1911, Parliament Act 1949

Jurisdiction:

England and Wales

Citing:

Cited – The Queen v Burah PC 5-Jun-1978
The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 and 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the . .
Cited – The Prince’s Case ChD 11-Jan-1606
Parliamentary Roll is Conclusive
A document on the Parliamentary Roll is conclusive as to its validity as an Act if it shows on its face that everything has been done which the common law of the United Kingdom has prescribed for the making of an Act of Parliament – that the Queen, . .
Cited – Attorney-General v Prince Earnest Augustus of Hanover HL 1957
‘legislative antecedents’ may in some circumstances constitute relevant background for the interpretation of statutes in pari materia. Words in a preamble cannot of themselves restrict the scope of enacting words, where the latter are wider or more . .
Cited – McCawley v The King PC 8-Mar-1920
The Board was asked whether a Queensland statute authorising the Governor in Council to appoint a judge of the Court of Industrial Arbitration to hold office for seven years, was in fatal conflict with a provision of the 1859 Order in Council and a . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – The Bribery Commissioner v Ranasinghe PC 5-May-1964
S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but . .
Cited – Thoburn v Sunderland City Council etc Admn 18-Feb-2002
Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it . .
Cited – Pickin 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: . .

Cited by:

Appeal from – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
At First instance – Jackson 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: 29 June 2022; Ref: scu.222722

Regina on the Application of Jackson and others v HM Attorney General: CA 16 Feb 2005

The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the powers under the 1911 Act to amend themselves. If the 1949 Act was invalid then the 2004 Act, passed under its provisions, also fell.
Held: It was permissible to refer to parliamentary debates at the time. These demonstrated that it was understood that the 1911 Act could be used to amend itself so as to reduce the time required. The court had jurisdiction to hear the case. The authorities examined did not establish a principle that constitutions may not be appropriately amended without an express power. ‘A sovereign legislature, uncontrolled by antecedent written constitutional instrument, may alter its own legislative powers and procedures by legislation duly enacted in accordance with its embedded procedures. The resulting amended constitution is controlled to the extent provided by the legislation. Thereafter, further constitutional alterations may be validly enacted under and by means of the altered powers and procedures. Such alterations may include alterations to the powers and procedures prescribed by the first legislation. This is, however, all subject to the proviso that the making of these subsequent alterations is within the power afforded by the first legislation properly understood, and provided that they are duly enacted in accordance with its procedures. ‘ and ‘Having regard to the unusual nature of the 1911 Act, this is not a question to be resolved on the basis of the wording of the Act alone, without considering the circumstances in which it was passed and what was said in the course of debating its provisions. Furthermore, as we have said and for reasons that we shall explain, it is relevant when considering the effect of the 1911 Act to consider not merely parliamentary material in relation to its enactment, but the subsequent understanding of Parliament as to the nature of the constitutional change effected by the 1911 Act. ‘ ‘There was power to amend the 1911 Act to the extent of the amendment contained in the 1949 Act. . . . Once the 1911 Act had made the fundamental change of allowing the consent of the House of Lords to be dispensed with as long as the conditions in s.2(1) of the 1911 Act were complied with, the reduction of the period referred to in s.2(1) in its original form to those contained in the 1949 Act, was a relatively modest and straightforward amendment. ‘

Judges:

Lord Justice May Lord Phillips Master Of The Rolls The Lord Chief Justice Of England And Wales (The Lord Woolf Of Barnes)

Citations:

[2005] EWCA Civ 126, Times 17-Feb-2005

Links:

Bailii

Statutes:

Hunting Act 2004, Parliament Act 1949, Parliament Act 1911

Jurisdiction:

England and Wales

Citing:

Cited – The Prince’s Case ChD 11-Jan-1606
Parliamentary Roll is Conclusive
A document on the Parliamentary Roll is conclusive as to its validity as an Act if it shows on its face that everything has been done which the common law of the United Kingdom has prescribed for the making of an Act of Parliament – that the Queen, . .
Appeal from – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Cited – The Queen v Burah PC 5-Jun-1978
The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 and 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the . .
Cited – Edinburgh and Dalkeith Railway Company v Wauchope HL 22-Mar-1842
The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first they sought to collect a toll, but his proved unprofitable. The . .
Cited – The Bribery Commissioner v Ranasinghe PC 5-May-1964
S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but . .
Cited – McCawley v The King PC 8-Mar-1920
The Board was asked whether a Queensland statute authorising the Governor in Council to appoint a judge of the Court of Industrial Arbitration to hold office for seven years, was in fatal conflict with a provision of the 1859 Order in Council and a . .
Cited – Taylor v Attorney General of Queensland 29-Jun-1917
(High Court of Australia) The 1908 Act provided that, when a bill passed by the Legislative Assembly in two successive sessions had in the same two sessions been rejected by the Legislative Council, it might be submitted by referendum to the . .
Cited – Clayton v Heffron 15-Dec-1960
(High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Robinson v Secretary of State for Northern Ireland and Others HL 25-Jul-2002
The Northern Ireland Parliament had elected its first minister and deputy more than six weeks after the election, but the Act required the election to be within that time. It was argued that as a creature of statute, the Parliament could not act . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – Cape Brandy Syndicate v Inland Revenue Commissioners CA 1921
Rowlatt J said: ‘In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied’ and . .
Cited – Kirkness v John Hudson and Co Ltd HL 1955
Viscount Simonds said: ‘the beliefs or assumptions of those who frame Acts of Parliament cannot make the law’. While subsequent legislation could resolve ambiguity in earlier legislation, it could only do so where the subject of the subsequent . .

Cited by:

Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Appeal from – Jackson 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: 29 June 2022; Ref: scu.222709

The Queen v Burah: PC 5 Jun 1978

The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 and 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the Governor-General in Council.
Held: The 1869 Indian statute did not contravene the Indian High Courts Act nor the letters patent issued under it.
Lord Selborne said: ‘The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament which has, and was intended to have, plenary powers of legislation, as large and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they were restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to enquire further, or to enlarge constructively those conditions and restrictions.’

Judges:

Lord Selborne, Sir James W. Colvile, Sir Barnes Peacock, Sir Montague E. Smith, Sir Robert P. Collier

Citations:

3 App Cas 889, (1877-78) LR 3 App Cas 889, [1878] UKPC 1, [1873] 3 AC 889, [1878] UKPC 26

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Cited – Jackson 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 . .
Cited – Bancoult, 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 . .
Cited – Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations 1986
(New South Wales Court of Appeal) The court upheld the validity of a law which directed a particular outcome of a judicial act. The words included the formula ‘prescribe and confine the scope of the legislative field open to the New South Wales . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 29 June 2022; Ref: scu.222717

Fitzgibbon v HM Attorney General: ChD 9 Feb 2005

The claimant sought declarations that the government of Australia was not being conducted in accordance with the 1900 Act as it should be.
Held: Though the Act was an English Act, the Courts of England now have no jurisdiction over Australia: ‘when HM the Queen is exercising her functions under the Constitution, she is acting pursuant to Australian law. It is for the Australian courts to apply Australian law to determine the capacity in which HM the Queen is acting, the appropriate seal and the consequences (if any) if the wrong seal is used. It is not for the United Kingdom courts to enter the field proffering its view as to the proper interpretation of the Constitution. The claim was rejected on other grounds also.

Judges:

Lightman J

Citations:

[2005] EWHC 114 (Ch), Times 15-Mar-2005

Links:

Bailii

Statutes:

Commonwealth of Australia Act 1900

Jurisdiction:

England and Wales

Citing:

Cited – Buck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .
Cited – Regina v Foreign Secretary ex parte Indian Association of Alberta CA 1982
The court traced the transformation of the doctrine of the indivisibility of the crown to the modern docrtrine of divisibility. May LJ: ‘Although at one time it was correct to describe the Crown as one and indivisible, with the development of the . .
Cited – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for the Foreign and Commonwealth Affairs CA 29-Apr-2004
The claimant sought damages for having had its licence to catch Patagonian toothfish off South Georgia revoked, saying that it had infringed its property rights under the Convention.
Held: Though the Convention rights had been extended to . .
Cited – Regina v Rochdale MBC ex parte Schemet 1992
In a proper case the court may permit a challenge to a decision which is months out of time. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 June 2022; Ref: scu.222591

Denuit And Cordenier: ECJ 27 Jan 2005

(Approximation of Laws) Questions referred for a preliminary ruling – Reference to the Court – National court or tribunal within the meaning of Article 234 EC – Arbitration panel

Citations:

C-125/04, [2005] EUECJ C-125/04, 2005] 1 CMLR 48

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 29 June 2022; Ref: scu.222058

Buck v Attorney General: ChD 1965

The claimant challenged the validity of an order in council. The order used general enabling words, not expressly stating which power had been used for their creation.
Held: The result of those general enabling words was that the order was made under a power conferred by the British Settlements Act 1887 even though that order did not expressly refer to that power. As a result the order was valid.

Judges:

Wilberforce J

Citations:

[1965] Ch 246

Statutes:

British Settlements Act 1887

Jurisdiction:

England and Wales

Cited by:

Appeal from – Buck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .
Cited – Vibixa Ltd, Polestar Jowetts Ltd v Komori UK Ltd and Another, Spectral Technology Ltd CA 9-May-2006
The claimants sought damages for damage to property alleging breach of statutory duty. The defendant said that the regulations were made under European not English law, and that the Secretary of State did not have power to make regulations under the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 28 June 2022; Ref: scu.242271

Manuel 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 treaties. The Attorney General sought the strike out of the claims.
Held: The application for a strike out succeeded. The Act recited that it had been passed at the request of the Canadian Parliament. A British Court could not refuse to obey or question the validity of an Act of Parliament: ‘The Canada Act 1982 is an Act of Parliament, and sitting as a judge in an English court, I owe full and dutiful obedience to that Act.’ Declaratory relief was not available as against a party not before the court.
Sir Robert Megarry V-C: ‘A motion to strike out a pleading should not be treated as being the trial of a demurrer or a preliminary point of law, to be determined one way or the other even if the judge is beset by hesitations and doubts. He who moves such a motion must make out a case that is clear beyond doubt. At the same time, one must beware of any assumption that because a case takes a long time to argue, the points at issue must be doubtful. Arguments must be assessed on their quality rather than on their duration, and sometimes the weaker the case the greater the profusion of ingenuity in supporting it.’ and
‘I have grave doubts about the theory of the transfer of sovereignty as affecting the competence of Parliament. In my view, it is a fundamental of the English constitution that Parliament is supreme. As a matter of law the courts of England recognise Parliament as being omnipotent in all save the power to destroy its own omnipotence. Under the authority of Parliament the courts of a territory may be released from their legal duty to obey Parliament, but that does not trench on the acceptance by the English courts of all that Parliament does. Nor must validity in law be confused with practical enforceability.’

Judges:

Sir Robert Megarry V-C

Citations:

[1983] Ch 77, [1982] 3 All ER 786

Statutes:

Canada Act 1982, Statute of Westminster 1931, British North America Act 1930, British North America Act 1867

Jurisdiction:

England and Wales

Citing:

Cited – Edinburgh and Dalkeith Railway Company v Wauchope HL 22-Mar-1842
The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first they sought to collect a toll, but his proved unprofitable. The . .
Cited – The Case of Heresy 1601
. .
Cited – The Prince’s Case ChD 11-Jan-1606
Parliamentary Roll is Conclusive
A document on the Parliamentary Roll is conclusive as to its validity as an Act if it shows on its face that everything has been done which the common law of the United Kingdom has prescribed for the making of an Act of Parliament – that the Queen, . .
Cited – Rex v Earl Russell HL 1901
Earl Russell was charged with an offence under section 57, namely ‘Whosoever being married shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or . .
Cited – Joyce v Director of Public Prosecutions HL 1948
The defendant was an American citizen but held a British passport. After the outbreak of war between Great Britain and Germany in 1939, he delivered from German territory broadcast talks in English hostile to Great Britain.
Held: His . .
Cited – Minister of the Interior v Harris 1952
(South Africa) A provision entrenched the right of Cape Coloured voters to be on the same voters roll as white voters. The entrenchment was achieved by sections 63 and the proviso to section 152 of the South Africa Act providing that the voting . .
Cited – The Bribery Commissioner v Ranasinghe PC 5-May-1964
S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but . .
Cited – Buck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .
Cited – Madzimbamuto v Lardner-Burke PC 23-Jul-1968
(Southern Rhodesia) The Board considered a submission that legal effect should be given to a convention that the UK Parliament would not legislate without the consent of the government of Southern Rhodesia on matters within the competence of the . .
Cited – Pickin 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: . .
Binding – Regina v The Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta CA 1982
The court considered an application leave to request a judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her government in the UK.
Cited – Ellen Street Estates Limited v Minister for Health CA 1934
S.2 of the Acquisition of Land (Assessment of Compensation) Act 1919 provided for the assessment of compensation in respect of land acquired compulsorily for public purposes according to certain rules. Then by s.7(1): ‘The provisions of the Act or . .
Cited – British Coal Corporation v The King PC 1935
The Board was asked as to the competency of a petition for special leave to appeal to the King in Council from a judgment of a court in Quebec in a criminal matter. The petitioners argued that notwithstanding the provisions of a Canadian statute . .
Cited – 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 . .
Cited – Re Brickman’s Settlement 1981
Caution on the naming of large numbers of parties in pleadings. . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Cited – Blackburn v Attorney-General CA 10-May-1971
The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful . .

Cited by:

Appeal from – Manuel and Others v HM Attorney General CA 30-Jul-1982
The plaintiffs as representatives of the Indian Tribes of Canada sought declarations that the 1982 Act which provided for the independence of Canada was invalid. They appealed the strike out of their claims, saying that they had not been consulted . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Administrative

Updated: 28 June 2022; Ref: scu.241371

Sankoh, Re: CA 27 Sep 2000

The claimant appealed against a refusal to issue a writ oif habeas corpus on behalf of the Sierra Leonean revolutionary leader, Foday Sankoh, who had been detained in Sierra Leone while UK forces were supporting the national government there, and in circumstances where they had been involved in his transfer between detention centres. He relied on O’Brien and argued that a statement by Mr Peter Hain MP, a minister in the Foreign Office, made in response to a demand that Sankoh be released in return for certain hostages, demonstrated sufficiently arguable on-going control for the writ to run. Mr Hain had said that the UK government would not negotiate with hostage takers and that it would not trade Mr Sankoh’s freedom. On the basis of that statement, it was argued that the British government was in a position to trade Mr Sankoh for the hostages. This assertion was directly confronted by the evidence of the Foreign and Commonwealth Office that Mr Sankoh was not under the custody or control of the British government and that there was no agreement between the UK and Sierra Leone under which the British government could require the release or ‘delivery up’ of Mr Sankoh.
Held: The appeal failed. The appellant had not established that the Secretary of State had control over Mr Sankoh’s detention.
Laws LJ said: ‘It seems to me, moreover, looking at the matter more broadly, that unless Mr Sankoh is actually in the custody of the United Kingdom authorities, the applicant’s case must be that the British Government should be required by this court to attempt to persuade Sierra Leone either to identify his whereabouts or to deliver him up. But that involves the proposition that the court should dictate to the executive government steps that it should take in the course of executing Government foreign policy: a hopeless proposition.’

Judges:

Ward, Waller, Laws LJJ

Citations:

[2000] EWCA Civ 386

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Secretary of State for Home Affairs v O’Brien HL 1923
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in . .

Cited by:

Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice, Constitutional

Updated: 27 June 2022; Ref: scu.218692

Pearson and Another v Secretary of State for Home Department and Another: CA 18 Jun 2001

The claimants sought leave to appeal against rejection of their complaint that as serving prisoners they were unable to vote.

Judges:

Simon Brown LJ VP

Citations:

[2001] EWCA Civ 927

Links:

Bailii

Statutes:

European Convention on Human Rights 3, Representation of the People Act 1983 3(1)

Jurisdiction:

England and Wales

Human Rights, Prisons, Constitutional, Elections

Updated: 27 June 2022; Ref: scu.218256

Secretary of State for Social Security v Tunnicliffe: CA 1991

Staughton LJ considered the interpretation of an Act of Parliament to give it retrospective powers: ‘In my judgment 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

Citing:

Appeal from – Secretary of State v Tunnicliffe SSCS 13-Dec-1990
Recovery of overpayment – payment made before repeal of section 119 of the Social Security Act 1975 – whether claimant had an ‘acquired’ or ‘accrued’ right that survived the repeal . .

Cited by:

Cited – Wilson 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 . .
Cited – Secretary of State for Energy and Climate Change v Friends of The Earth and Others CA 25-Jan-2012
The Secretary had issued a consultation on the payments for solar energy feed-in-tarriffs, with a view to the new rate being brought in in April 2012. As the consultation ended, he proposed to reduce rates from December 2011. He now appealed against . .
Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 23 June 2022; Ref: scu.184408

Falciola Angelo Spa v Comune Di Pavia: ECJ 26 Jan 1990

ECJ The procedure provided for in Article 177 of the Treaty is an instrument of cooperation between the Court of Justice and the national courts, whereby the former supplies the latter with the information on the interpretation of Community law which is necessary in order to enable them to settle disputes which are brought before them. A request from a national court may be rejected only if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or to the subject-matter of the main action

Citations:

R-286/88, [1990] EUECJ R-286/88

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 21 June 2022; Ref: scu.215750

Celestri and Co Spa v Ministry of Finance.: ECJ 21 Mar 1985

ECJ Although article 41 of the EEC Treaty, which is based on a clear separation of functions between the national courts and the Court of Justice, does not permit the court either to assess the facts of the case or to review the grounds on which the question submitted for a preliminary ruling is based, it is none the less for the court to set the measure whose validity is contested in context in community law and to examine the criteria for interpretation established by community law in order to be able to give the national court an appropriate answer for the purpose of resolving the main dispute.
Where that examination reveals that the provision of community law on which the court has been requested to give a ruling is not relevant to the solution of the main dispute, the court will declare that it is unnecessary for it to give a decision on the point at issue.

Citations:

R-172/84, [1985] EUECJ R-172/84

Links:

Bailii

European, Constitutional

Updated: 21 June 2022; Ref: scu.215297

Spa Vinal v Spa Orbat: ECJ 14 Jan 1981

ECJ 1. In its present stage of development community law does not restrict the freedom of each member state to lay down tax arrangements which differentiate between certain products on the basis of objective criteria, such as the nature of the raw materials used or the production processes employed. Such differentiation is compatible with community law if it pursues objectives of economic policy which are themselves compatible with the requirements of the treaty and its secondary law and if the detailed rules are such as to avoid any form of discrimination, direct or indirect in regard to imports from other member states or any form of protection of competing domestic products.
2. Tax arrangements which impose heavier charges on denatured synthetic alcohol than on denatured alcohol obtained by fermentation on the basis of the raw materials and the manufacturing processes employed for the two products are not at variance with the first paragraph of article 95 of the eec treaty if they are applied identically to the two categories of alcohol originating in other member states.
Such tax arrangements are justified even though the products in question, whilst derived from different raw materials, are capable of being put to the same uses and have the same practical application.

Where by reason of the taxation of synthetic alcohol, it has been impossible to develop profitable production of that type of alcohol on national territory, the application of such tax arrangements cannot be considered as constituting indirect protection of national production of alcohol obtained by fermentation within the meaning of the second paragraph of article 95 of the eec treaty on the sole ground that their consequence is that the product subject to the heavier taxation is in fact a product which is exclusively imported from other member states of the community.

Citations:

R-46/80, [1981] EUECJ R-46/80, C-46/80

Links:

Bailii

European, Taxes Management, Constitutional

Updated: 21 June 2022; Ref: scu.214964

Internationale Handelsgesellschaft Mbh v Einfuhr Und Vorratsstelle Fuer Getreide Und Futtermittel. (Measures Adopted By Institutions ): ECJ 17 Dec 1970

1. The validity of measures adopted by the institutions of the community can only be judged in the light of community law. The law stemming from the treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called in question. Therefore the validity of a community measure or its effct within a member state cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of its constitutional structure.
2. Respect for fundamental rights forms an integral part of the general principles of law protected by the court of justice. The protection of such rights, whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of the structure and objectives of the community. 3. The requirement by the agricultural regulations of the community of import and export licences involving for the licensees an undertaking to effect the proposed transactions under the guarantee of a deposit constitutes a method which is both necessary and appropriate, for the purposes of articles 40 (3) and 43 of the EEC Treaty, to enable the competent authorities to determine in the most effective manner their interventions on the market in cereals. The system of deposits violates no fundamental right.
4. The concept of force majeure adopted by the agricultural regulations is not limited to absolute impossibility but must be understood in the sense of unusual circumstances, outside the control of the importer or exporter, the consequences of which, in spite of the exercise of all due care, could not have been avoided except at the cost of excessive sacrifice.
5. By limiting the cancellation of the undertaking to export and the release of the deposit to cases of force majeure the community legislature adopted a provision which, without imposing an undue burden on importers or exporters, is appropriate for ensuring the normal functioning of the organization of the market in cereals, in the general interest as defined in article 39 of the Treaty.

Citations:

C-11/70, R-11/70, [1970] EUECJ R-11/70, [1970] EUECJ C-11/70

Links:

Bailii, Bailii

European, Constitutional

Updated: 21 June 2022; Ref: scu.214118

Prasident Ruhrkolec-Verkaufsgesellschaft Mbh, Geitling Ruhrkohlen-Verkaufsgesellschaft Mbh, Mausegatt Ruhrkohlen-Verkaufsgesellschaft Mbh And I. Nold Kg v High Authority Of The European Coal And Steel Community: ECJ 15 Jul 1960

ECJ 1. The court has jurisdiction over the legality of decisions taken by the high authority, but it is not the function of the court to ensure respect for national law in force in a member state, and this is true even of constitutional laws. Therefore the court may neither interpret nor apply national law.
2. Community law, such as it arises under the ecsc treaty, does not contain any general principle, whether explicit or otherwise, guaranteeing the maintenance of vested rights.
3. By article 65 (2), the high authority shall authorize specialization agreements or joint-buying or joint-selling agreements if it finds that the conditions set out in paragraphs 2 (a), (b) and (c) are fulfilled. Such authorization therefore depends on a finding which, of its very nature, comprises an assessment of the situation created by the facts or economic circumstances, and for this reason is partly immune from review by this court. Therefore the high authority has an absolute duty to state specific reasons for these authorizations and this rule must be strictly observed. Those reasons must enable the interested parties, as also the court should occasion arise, to check the information on which the high authority has relied in finding that the requirements necessary for the granting of its authorization are met so as to be in a position to examine whether the authorization was rightly granted as a matter both of fact and of law.
4. The advantages which the selling agencies may derive from trading with the smallest possible number of wholesalers do not constitute a sufficient reason to justify the restriction which is thereby imposed on trade, particularly since the very purpose for which the selling agencies have been created is to take away from the mines the effort involved or organizing the sale of their products on a commercial basis and their function, which is to furnish wholesalers with supplies, constitutes the essential reason for their authorized joint-selling agreement.

Citations:

C-36/59, C-38/59, [1960] EUECJ C-38/59

Links:

Bailii

European, Constitutional

Updated: 21 June 2022; Ref: scu.213748

Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd: HL 1981

Where both parties to a contract are in breach of a mutual obligation owed by each to the other, neither can rely upon the other’s breach as giving him a right to terminate. The Court of Appeal has an inherent power to control its own procedure to stop it being abused. It has a ‘general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice.’ and ‘Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant.’

Judges:

Lord Diplock, Edmund-Davies, Russell of Killowen LL

Citations:

[1981] AC 909, [1981] 1 Lloyds Rep 253

Jurisdiction:

England and Wales

Cited by:

Cited – Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd and Others HL 17-Feb-1993
The court has the power to stay an action which pursued a remedy which was outside the terms of the arbitration agreement determining the dispute. The contract between the parties provided for disputes to be settled by arbitration in Belgium. The . .
Cited – Donovan 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 . .
Cited – Mote v Secretary of State for Work and Pensions and Another CA 14-Dec-2007
The appellant was accused of having received income benefits to which he was not entitled. A prosecution was commenced and at the same time he appealed to the tribunal against the decision that there had been an overpayment. The authorities . .
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice, Constitutional

Updated: 21 June 2022; Ref: scu.184491

Ponnusamy and Others v Secretary of State for Foreign and Commonwealth Affairs: QBD 30 Mar 2015

Application made by the defendant Secretary of State to strike out the Particulars of Claim (POC) and enter judgment for the Defendant pursuant to CPR 3(4) because they disclose no reasonable grounds for bringing the claim. The claim was that: ‘ that the interests of the Indian (mainly Tamil speaking) population of Malaysia were ignored during the period 1944 to 1957 when independence was agreed with a constitution that provided for an entrenched privileged position for the ethnically Malay community. It is contended that the community of mainly Tamil indentured labourers worked on British owned estates and mines. They did not speak the Malay language and many were illiterate and undocumented. They either did not have the right to vote in the emerging democracy after the Second World War or were not registered to vote and in any event were not politically organised or represented. As British subjects or protected persons before the coming in to force of the British Nationality Act 1948, and because the British government were aware of their vulnerable status it is contended that they were entitled to the special protection of the colonial power to safeguard their interests when sovereignty was ceded. It is then contended that this duty of protection was not property discharged, leaving them in a vulnerable position after independence from which each of the claimants has suffered with respect to access to higher education, employment in government, ownership of land, conducting business, the security of Hindu religious land and cemeteries and personal status with respect to registration of marriage and acquisition of citizenship.’

Judges:

Blake J

Citations:

[2015] EWHC 1760 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Human Rights, Constitutional

Updated: 21 June 2022; Ref: scu.549245

Miller 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 that the notice could be given under the Crown Prerogative.
Held: The appeal failed (Majority 8 to 3). Leaving the EU would inevitably involve alteration of citizens’ statutory rights, and as such parliamentary approval was required, and the government could not rely solely on use of the Crown Prerogative to issue the notice. The giving of the notice would lead to an inevitable conclusion.
‘although the 1972 Act gives effect to EU law, it is not itself the originating source of that law. It is . . echoing the illuminating analysis of Professor Finnis, the ‘conduit pipe’ by which EU law is introduced into UK domestic law. So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law.’
. . And: ‘ the fact that EU law will no longer be part of UK domestic law if the United Kingdom withdraws from the EU Treaties does not mean that Parliament contemplated or intended that ministers could cause the United Kingdom to withdraw from the EU Treaties without prior Parliamentary approval. There is a vital difference between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation, and changes in domestic law resulting from withdrawal by the United Kingdom from the European Union. The former involves changes in EU law, which are then brought into domestic law through section 2 of the 1972 Act. The latter involves a unilateral action by the relevant constitutional bodies which effects a fundamental change in the constitutional arrangements of the United Kingdom.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge

Citations:

[2017] UKSC 5, [2017] 2 WLR 583, [2017] WLR(D) 53, UKSC 2016/0196, [2017] NI 141, [2018] AC 61, [2017] HRLR 2, [2017] 1 All ER 593, [2017] 2 CMLR 15

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, Vid 0512am, Vid 0512pm, Vid 0612am, Vid 0612pm, Vid 0712am, Vid 0712pm, Vid 0812am, Vid 0812pm, SC Vid ummary

Statutes:

European Union Act 2011, European Parliamentary Elections Act 2002 1, European Communities Act 1972, European Communities (Amendment) Act 2002, Treaty on the Functioning of the European Union, Bill of Rights 1688 1 2, Claim of Right Act 1689

Jurisdiction:

England and Wales

Citing:

Cited – Proclamations, Case of KBD 1-Nov-1610
The King, as the executive government, sought to govern by making proclamations. In particular the court rejected the proposition that ‘the King by his proclamation may prohibit new buildings in and about London’
Held: The monarch had no power . .
Cited – Secretary of State in Council of India v Kamachee Boye Sahab PC 9-Jul-1859
‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may . .
Cited – 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 . .
Cited – The Zamora PC 1916
Lord Parker said: ‘The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
Cited – Joyce v Director of Public Prosecutions HL 1948
The defendant was an American citizen but held a British passport. After the outbreak of war between Great Britain and Germany in 1939, he delivered from German territory broadcast talks in English hostile to Great Britain.
Held: His . .
Cited – Burmah 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 . .
Appeal from – Miller 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 . .
Appeal from – McCord, Re Judicial Review QBNI 28-Oct-2016
The claimant made application for judicial review of the stated intention of the Government of the UK to issue an article 50 notice to leave the EU, by means of the use of the royal Prerogative. They said that any use of the royal prerogative had . .
Cited – 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 . .
Cited – Laker Airways v Department of Trade CA 15-Dec-1976
Policy guidance issued by the respondent was unlawful because it was contrary to the statutory objectives laid down for the Civil Aviation Authority by section 3 of the 1971 Act. The court discussed the status of guidance issued by the respondent: . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – Thoburn v Northumberland County Council CA 19-Jan-1999
The claimant alleged that the defendant by allowing a flood across a road not to be cleared was in breach of their statutory duty under the 1980 Act.
Held: Though the blockage was not entirely on the Highway, the nature and extent of it was . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg Admn 30-Jul-1993
The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by . .
Cited – Regina v Mayor and Burgesses of London Borough of Southwark ex parte Campisi CA 9-Jul-1998
The claimant had made more than one application for emergency housing.
Held: ‘Clearly the mere assertion that an applicant’s claim ought to be considered cannot impose upon the local authority the onerous duty of making inquiries and . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame Ltd and others (No 5) HL 28-Oct-1999
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .
Cited – Higgs and Mitchell v The Minister of National Security and others PC 14-Dec-1999
(Bahamas) The applicants appealed against sentences of death, saying that the executions would be unlawful while there was a pending appeal to the OAS.
Held: The appeals failed. The Bahamas was a member of the Organisation of American States, . .
Cited – Thoburn v Sunderland City Council etc Admn 18-Feb-2002
Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it . .
Cited – Kobler v Republik Osterreich ECJ 30-Sep-2003
The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from . .
Cited – Bancoult, 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 . .
Cited – Van Gend En Loos v Administratie Der Belastingen ECJ 5-Feb-1963
LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any . .
Cited – HS2 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 . .
Cited – Flaminio Costa v ENEL (Procedure) ECJ 15-Jul-1964
‘The transfer by the states from their domestic legal system to the Community legal system of their rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent . .
Cited – Blackburn v Attorney-General CA 10-May-1971
The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – HS2 Action Alliance and Another, Regina (on The Application of) v The Secretary of State for Transport and Another CA 11-Mar-2015
. .
Cited – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Cited – JR65, Re Judicial Review CANI 16-Mar-2016
The appellant challenged the absolute prohibition within the province of the giving of blood by any male who had had sex with another male, saying that the ban was incompatible with European law.
Held: The request for review was refused, but . .
Cited – Shindler and Another v Chancellor of The Duchy of Lancaster and Another CA 20-May-2016
UK free to disenfranchise citizens resident abroad
The claimants appealed against rejection of their challenges to the 2015 Act. As British citizens who had lived abroad for more than fifteen years, they were not to be allowed to vote.
Held: The claim failed. The Act was not in breach of . .
Cited – Madzimbamuto v Lardner-Burke PC 23-Jul-1968
(Southern Rhodesia) The Board considered a submission that legal effect should be given to a convention that the UK Parliament would not legislate without the consent of the government of Southern Rhodesia on matters within the competence of the . .
Cited – Attorney-General v Jonathan Cape Ltd 1976
The Attorney-General sought restraint on the publication of certain materials in the diary of Richard Crossman, a former cabinet minister, submitting that the protection from disclosure of Cabinet papers was based on collective responsibility.
Cited – 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 . .
Cited – Imperial Tobacco Ltd v The Lord Advocate As Representing The Scottish Ministers SCS 2-Feb-2012
The company sought a reclaiming motion after dismissal of their request for judicial review of the 2010 Act of the Scottish Parliament.
Held: The appeal against the Lord Ordinary’s interlocutor was refused.
Lord Reed said that the nature . .
Cited – Attorney-General, ex rel McWhirter v Independent Broadcasting Authority CA 1972
The court should not interfere in decisions made by broadcasting companies allocating television time to parties before elections unless it is of the view that they were irrational in not giving enough weight to those matters in allocating it only . .

Cited by:

See Also – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Cherry, Joanna Cherry QC Mp and Others for Judicial Review SCS 4-Sep-2019
(Outer House) . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Cited – Micula and Others v Romania SC 19-Feb-2020
The appellant sought to enforce a international arbitration award against the respondent. The award was made under an arrangement which later became unlawful on Romania’s accession to the EU, and Romania obtained s stay pending resolution by the . .
Lists of cited by and citing cases may be incomplete.

Constitutional, European

Leading Case

Updated: 21 June 2022; Ref: scu.573344

Shindler and Another v Chancellor of The Duchy of Lancaster and Another: CA 20 May 2016

UK free to disenfranchise citizens resident abroad

The claimants appealed against rejection of their challenges to the 2015 Act. As British citizens who had lived abroad for more than fifteen years, they were not to be allowed to vote.
Held: The claim failed. The Act was not in breach of European law supporting freedom of movement. The EU had recognised that the decision of a Member State to withdraw is an exercise of national sovereignty which is governed by its own constitutional arrangements. The Act fell outside the scope of European law. Nor did any right at common law override the precedence given to an Act of Parliament.
Lord Dyson MR said that ‘Parliament agreed to join the EU by exercising sovereign powers untrammelled by EU law and I think it would expect to be able to leave the EU in the exercise of the same untrammelled sovereign power’.

Judges:

Lord Dyson MR, Elias, King LJJ

Citations:

C1/2016/1796, [2016] EWCA Civ 469, [2016] WLR(D) 273, [2016] HRLR 14, [2016] 3 WLR 1196, [2017] QB 226, [2016] 3 CMLR 23

Links:

Bailii, Judiciary, JGU Summary, WLRD

Statutes:

EU Referendum Act 2105 2

Jurisdiction:

England and Wales

Citing:

Appeal from – Shindler and Another v Chancellor of The Duchy of Lancaster and Another Admn 28-Apr-2016
The claimants challenged the franchise for the forthcoming European Referendum which excluded them rom voting on the basis that they were not resident within the UK and had neot been registered to vote here for more than five years.
Held: ‘1) . .

Cited by:

Cited – McCord, Re Judicial Review QBNI 28-Oct-2016
The claimant made application for judicial review of the stated intention of the Government of the UK to issue an article 50 notice to leave the EU, by means of the use of the royal Prerogative. They said that any use of the royal prerogative had . .
Cited – Miller 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 . .
Cited – Micula and Others v Romania SC 19-Feb-2020
The appellant sought to enforce a international arbitration award against the respondent. The award was made under an arrangement which later became unlawful on Romania’s accession to the EU, and Romania obtained s stay pending resolution by the . .
Lists of cited by and citing cases may be incomplete.

Elections, European, Constitutional

Leading Case

Updated: 21 June 2022; Ref: scu.564452

Kernkraftwerke Lippe-Ems GmbH v Hauptzollamt Osnabruck: ECJ 7 Dec 2011

Constitutions Compatibility with EU law

ECJ (Judgment) Reference for a preliminary ruling – Article 267 TFEU – Interlocutory procedure for review of constitutionality – Examination of whether a national law complies with both EU law and with the Constitution of the Member State concerned – Discretion enjoyed by a national court to refer questions to the Court of Justice for a preliminary ruling – National legislation levying a duty on the use of nuclear fuel – Directives 2003/96/EC and 2008/118/EC – Article 107 TFEU – Articles 93 EA, 191 EA and 192 EA

Judges:

M Ilesic P

Citations:

[2016] Ch 181, [2016] 2 WLR 369, [2015] WLR(D) 240, [2015] 3 CMLR 41, ECLI:EU:C:2015:354, [2015] EUECJ C-5/14

Links:

Bailii, WLRD

Statutes:

TFEU 267

Jurisdiction:

European

Cited by:

Cited – Micula and Others v Romania SC 19-Feb-2020
The appellant sought to enforce a international arbitration award against the respondent. The award was made under an arrangement which later became unlawful on Romania’s accession to the EU, and Romania obtained s stay pending resolution by the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 21 June 2022; Ref: scu.547699

Barron and Others v Collins: QBD 16 May 2016

The defendant MEP sought an order staying the defamation action brought against her by four MPs from the Rotherham area. She said that as an MEP she had a procedural immunity. She had informed the European Commission that she sought the protection which might be available.
Held: The right approach to the decision in Marra is to treat the term ‘informed’ as requiring a formal communication to the court from the Parliament. There is good reason for that approach, as it gives effect to the underlying principle which is one of co-operation between the Parliament and the national bodies, in their capacities as institutions. Further, this approach allows the Parliament a role in assessing a request for the defence of privilege before it decides to communicate with a national court. The stay should be granted pending the reply of the Parliament, but it would then be for the national court to make the decision.

Judges:

Warby J

Citations:

[2016] EWHC 1166 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Criminal Proceedings Against Zwartveld and Others ECJ 13-Jul-1990
Europa European Communities – Institutions – Obligations – Duty to cooperate with national authorities acting to ensure respect for Community law – Implementation – Disclosure of documents and authorization of . .
Cited – Marra v De Gregorio C-200/07 ECJ 21-Oct-2008
ECJ Reference for a preliminary ruling European- Parliament – Leaflet issued by a Member of the European Parliament containing insulting remarks Claim for non-pecuniary damages Immunity of Members of the European . .
Cited – Patriciello (Privileges And Immunities) ECJ 9-Jun-2011
ECJ Member of the European Parliament – Article 8 of the Protocol on the Privileges and Immunities – Scope of the concept of’opinion expressed in the exercise of parliamentary duties’ – Criminal proceedings for . .
See Also – Barron MP and Others v Collins MEP QBD 29-Apr-2015
Trial of preliminary issues in for defamation. The claimants, MPs for Rotherham areas, said that a speech by the defendant to the UKIP conference and repeated on TV contained assertions defamatory of them.
Held: The words complained of bore . .
Lists of cited by and citing cases may be incomplete.

Defamation, European, Constitutional

Updated: 19 June 2022; Ref: scu.564497

Bates v Inland Revenue Commissioners: HL 1968

Section 402, on its plain meaning, produced results in some cases which were ‘monstrous’ and which Parliament can never have intended. The Commissioners had not sought to amend the legislation, but realising the monstrous result of giving effect to the true construction of the section, worked out what they consider to be an equitable way of operating it which seems to them to result in a fair system of taxation. The court per Lord Upohn, could not understand upon what principle they couldproperly do so.
The words ‘if the income of the body corporate’ were therefore seen as capable of meaning either the whole of the income or some only of the income.

Judges:

Lord Upjohn, Lord Reid

Citations:

[1968] AC 483

Statutes:

Income Tax Act 1952 402

Jurisdiction:

England and Wales

Cited by:

Cited – Regina on the Application of Wilkinson v The Commissioners of Inland Revenue CA 18-Jun-2003
The claimant had not received the same tax allowance following his wife’s death as would have been received by a woman surviving her husband. That law had been declared incompatible with Human Rtights law as discriminatory, but the respondent . .
Cited – Vestey v Inland Revenue Commissioners ChD 1979
The case concerned section 478, which had monstrous and unintended results, if applied in accordance with its natural meaning. The Commissioners did not seek to apply the section in a manner which produced such results. The court held: ‘One should . .
Cited – (Un-named) R(FC) 1/91 SSCS 17-Jan-1991
SSCS Income – earnings of self-employed earner – whether motoring expenses and telephone expenses for both business and personal use may be apportioned – whether bad debts deductible – whether capital drawings . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Constitutional

Updated: 16 June 2022; Ref: scu.184327

Kirkness v John Hudson and Co Ltd: HL 1955

Viscount Simonds said: ‘the beliefs or assumptions of those who frame Acts of Parliament cannot make the law’. While subsequent legislation could resolve ambiguity in earlier legislation, it could only do so where the subject of the subsequent litigation was the same as the earlier Act.

Judges:

Viscount Simonds

Citations:

[1955] AC 696, [1955] 2 WLR 1135, [1955] 2 All ER 345, HL(E ), [1955] UKHL TC – 36 – 28

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Approved – Cape Brandy Syndicate v Inland Revenue Commissioners CA 1921
Rowlatt J said: ‘In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied’ and . .

Cited by:

Cited – BBC Enterprises Ltd v Hi-Tech Xtravision Ltd and Others CA 21-Dec-1989
The plaintiff sold television entertainment through subscriptions. The broadcasts were protected by encryption. The defendant sold equipment which could unscramble the broadcasts. They were sued under the section. At first instance, the claim was . .
Cited – Highland Council (Formerly Ross and Cromarty District Council) v Patience and Others (Scotland) HL 14-Nov-1996
Local Authority tenants sought to exercise their statutory right to purchase their council house. The third defendant had registered against the title a right of pre-emption protecting a feu charter registered in the Registry of Sasines.
Held: . .
Cited – Pritchard v Briggs CA 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported . .
Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 16 June 2022; Ref: scu.180041

Moti v Regina: 7 Dec 2011

High Court of Australia – Mr Moti claimed that he had been deported by officials of the Solomon Islands Government from the Solomon Islands to Australia, where he was wanted for trial. The deportation occurred after the High Commissioner had issued a travel document for Mr Moti and visas for the Solomon Islands officials who were to accompany him on the aircraft bound for Australia, knowing that Solomon Islands law was going to be breached by deporting Mr Moti on the same day without giving him a seven-day opportunity to challenge deportation.
Held: There was no ‘general and universally applicable rule that Australian courts may not be required (or do not have or may not exercise jurisdiction) to form a view about the lawfulness of conduct that occurred outside Australia by reference to foreign law’
‘Here, the question of the lawfulness of the appellant’s removal from Solomon Islands, although effected by the Solomon Islands Government, was ‘a preliminary’ to the decision whether a stay should be granted. The primary judge was not right to conclude that ‘[i]t is not for this court to express an opinion on these decisions made by the Solomon Islands government’.’

Citations:

(2011) 245 CLR 456, (2011) 283 ALR 393, (2011) 86 ALJR 117, (2011) 218 A Crim R 204, [2011] HCA 50

Jurisdiction:

Australia

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 14 June 2022; Ref: scu.634787

Habib v Commonwealth of Australia: 25 Feb 2010

Federal Court of Australia – act of state doctrine – non-justiciability – scope of act of state doctrine – where Australian citizen has brought proceedings against the Commonwealth – where a determination of the proceedings would depend on findings of the legality of the acts of foreign agents outside Australia – whether act of state doctrine applicable where allegations of grave breaches of international law – whether manageable judicial standards

Judges:

Black CJ, Perram and Jagot JJ

Citations:

[2010] FCAFC 12, (2010) 265 ALR 50

Links:

Austlii

Jurisdiction:

Australia

Constitutional

Updated: 14 June 2022; Ref: scu.634786

Nabob of The Carnatic v The East India Company: 2 Jan 1789

A political treaty, between sovereigns, or parties exercising sovereign authority cannot be the subject of a municipal jurisdiction.

Citations:

[1789] EngR 1626, (1789-1817) 1 Ves Jun Supp 149, (1789) 34 ER 729

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Nabob of The Carnatic v The East India Company 1789
. .

Cited by:

See Also – Nabob of The Carnatic v The East India Company 1789
. .
See Also – Nabob of The Carnatic v East India Company 23-Jul-1791
. .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
See Also – Nabob of The Carnatic v East India Company 28-Jan-1793
The case arose out of the East India Company’s controversial relations with the Nabob at a stage when the courts had not yet learned to identify the East India Company with the British government. The Company had assisted the Nabob, a sovereign . .
See Also – Ghoolam Moortoozah Khan Bahadoor v The Government, Representing The Estate Of The Late Nabob Of The Carnatic 15-Jun-1863
. .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Constitutional

Updated: 14 June 2022; Ref: scu.367257

Nairn v University of St Andrews: HL 10 Dec 1908

Women graduates of St Andrews and Edinburgh, who, as graduates, were members of the general council of their university, sought a declarator that they were entitled to vote under section 27 of the 1868 Act. The section provided that ‘every person’ whose name was on the register of the general council, if of full age ‘and not subject to any legal incapacity’, was to be entitled to vote for the member of Parliament for the university.
Held: The section did not confer a right to vote on women graduates.
Lord Loreburn LC commented, ‘It would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process.’
Lord Ashbourne said: ‘If it was intended to make a vast constitutional change in favour of women graduates, one would expect to find plain language and express statement.’

Judges:

Lord Loreburn LC

Citations:

[1909] AC 147, 1909 SC (HL) 10, [1908] UKHL 3, (1908) 16 SLT 619

Links:

Bailii

Statutes:

Representation of the People (Scotland) Act 1868 27, Universities Elections Amendment (Scotland) Act 1881

Jurisdiction:

Scotland

Cited by:

Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Elections, Education

Updated: 14 June 2022; Ref: scu.240006

Jennings v Buchanan: PC 14 Jul 2004

(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the action for defamation claiming the privilege.
Held: The original statement had privilege but the repetition outside parliament by a mere reference was a republication which did not attract the same privilege. The court could rely upon the Hansard record to provide evidence of what was being repeated. At common law every republication of a libel is a new libel and a new cause of action.
‘In a case such as the present, however, reference is made to the parliamentary record only to prove the historical fact that certain words were uttered. The claim is founded on the later extra-parliamentary statement. The propriety of the member’s behaviour as a parliamentarian will not be in issue. Nor will his state of mind, motive or intention when saying what he did in Parliament. The situation is analogous with that where a member repeats outside the House, in extenso, a statement previously made in the House. The claim will be directed solely to the extra-parliamentary republication, for which the parliamentary record will supply only the text. ‘

Judges:

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Dame Sian Elias

Citations:

[2004] UKPC 36, Times 19-Jul-2004, [2004] EMLR 22, [2005] 1 AC 115, [2005] 2 All ER 273

Links:

Bailii, PC, PC

Statutes:

Bill of Rights 1689 9

Citing:

Cited – Attorney-General of Ceylon v de Livera PC 1963
A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a . .
Cited – Sir 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 – Stockdale v Hansard 1839
Bailii It is no defence in law to an action for publishing a libel, that defamatory matter is part of a order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – Pickin 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: . .
Cited – Attorney-General of Ceylon v de Livera PC 1963
A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a . .
Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – Church of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
Cited – A v United Kingdom ECHR 2002
‘Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of defamation and breach of confidence, save where they are protected by qualified privilege.’ and ‘Furthermore, the immunity afforded to MPs in the United . .
Cited – Regina v Secretary of State for Foreign Affairs Ex Parte the World Development Movement Ltd QBD 11-Jan-1995
Judicial Review was granted in respect of a decision to fund the Pergau Dam. There was a possible argument that it involved a misuse of money which had been intended for foreign aid. . .
Cited – Rex v Lord Abingdon 1794
A Member of Parliament chose to have his earlier speech in the House re-published ‘under his authority and sanction . . and at his expense’.
Held: Statements made outside Parliament are not protected by absolute privilege even if they simply . .
Cited – Rex v Creevey Esq MP 1813
A statement made out of Parliament is not to be protected by its absolute privilege even if what is said simply repeats what was said inside the House.
A member of the House of Commons may be convicted upon an indictment for a libel in . .
Cited – Regina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .

Cited by:

Cited – Curistan v Times Newspapers Ltd CA 30-Apr-2008
The court considered the availability of qualified privilege for reporting of statements made in parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the . .
Cited – Regina 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 . .
Cited – Chaytor 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 . .
Cited – Chaytor 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 . .
Cited – Makudi v Baron Triesman of Tottenham In London Borough of Haringey QBD 1-Feb-2013
The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the . .
Cited – Makudi 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.

Commonwealth, Defamation, Constitutional

Updated: 11 June 2022; Ref: scu.198904

Pabla Ky v Finland: ECHR 22 Jun 2004

A member of the Finnish Parliament who also sat as an expert member of the Court of Appeal was said to lack independence as a judge.
Held: The complaint was rejected. Also there was no no objective justification for the applicant’s fear as to a lack of independence and impartiality of the Court of Appeal resulting from the dual role of the expert member. In distinguishing Procola and McGonnell, the Court pointed out that the expert member ‘had not exercised any prior legislative, executive or advisory function in respect of the subject-matter or legal issues before the Court of Appeal for decision in the applicant’s appeal’.

Citations:

47221/99, [2004] ECHR 279, [2006] 42 EHRR 34

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Citing:

Distinguished – Procola v Luxembourg ECHR 28-Sep-1995
A dairy association complained of milk quota orders made with retrospective effect under domestic provisions. A regulation had been submitted in draft to the Conseil d’Etat, which had advised that a statute was necessary to give retrospective effect . .
Distinguished – McGonnell v The United Kingdom ECHR 8-Feb-2000
The applicant owned land in the parish of St Martin’s in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a . .

Cited by:

Cited – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Barclay and Others, Regina (on the Application of) v The Seigneur of Sark and Another Admn 18-Jun-2008
The claimants said that the the laws restricting residence and voting rights and oher constitutional arrangements on the Isle of Sark were in breach of European law, and human rights law.
Held: The claims failed. The composition of Chief Pleas . .
Cited – Barclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional

Updated: 11 June 2022; Ref: scu.198558

Regina v The Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta: CA 1982

The court considered an application leave to request a judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her government in the UK.
Held: The claim failed. The Crown was not single and indivisible but separate in respect of each self-governing territory within the Commonwealth. After 1926 ‘the Crown was no longer single and indivisible. It was separate and divisible for each self-governing dominion or province or territory’. This principle applied as much to a colony as to a dominion. Kerr LJ emphasised that whether the situs of rights and obligations of the Crown is to be found in right, or in respect of, the United Kingdom or of other governments within the Commonwealth of which Her Majesty is Head of State has nothing to do with whether those governments are independent or not: ‘Indeed, independence, or the degree of independence, is wholly irrelevant to the issue, because it is clear that rights and obligations of the Crown will arise exclusively in right or respect of any government outside the bounds of the United Kingdom as soon as soon as it can be seen that there is an established government of the Crown in the overseas territory in question.’
Kerr LJ discussed the argument that Canada was not fully independent of the UK: ‘With respect, in my judgment this argument is wholly fallacious. As shown by the basic constitutional principles discussed at the beginning of this judgment, it is perfectly clear that the question whether the situs of rights and obligations of the Crown is to be found in right or respect of the United Kingdom, or of other governments within those parts of the Commonwealth of which Her Majesty is the ultimate sovereign, has nothing whatever to do with the question whether those governments are wholly independent or not. The situs of such rights and obligations rests with the overseas governments within the realm of the Crown, and not with the Crown in right or respect of the United Kingdom, even though the powers of such governments fall a very long way below the level of independence. Indeed, independence, or the degree of independence, is wholly irrelevant to the issue, because it is clear that rights and obligations of the Crown will arise exclusively in right or respect of any government outside the bounds of the United Kingdom as soon as it can be seen that there is an established government of the Crown in the overseas territory in question. In relation to Canada this had clearly happened by 1867.’
Lord Denning MR said that the treaties having been entered into by the Crown when in law it was one and indivisible, and was the Crown of the United Kingdom. Then in the first quarter of the nineteenth century this law was changed, not by statute but by constitutional usage and practice, so that the Crown thereafter was separate and divisible for each self-governing territory of the Commonwealth. Thereupon the existing obligations of the Crown became obligations of the Crown in respect of the territories to which they related, binding on the Crown only in right of those territories and no longer in right of the United Kingdom.
May LJ said that any treaty or other obligation which the Crown had entered into with the Canadian Indians ‘had become the responsibility of the government of Canada with the attainment of independence, at the latest with the Statute of Westminster 1931.’

Judges:

Lord Denning, Kerr LJ, May LJ

Citations:

[1982] QB 892, [1982] 2 All ER 118

Statutes:

Statute of Westminster 1931

Jurisdiction:

England and Wales

Citing:

Applied – Regina v The Secretary of State for The Home Department, ex parte Bhurosah CA 1968
In Mauritius the Queen is the Queen of Mauritius and the issuing of passports by the Government of Mauritius, although a matter of foreign affairs and therefore under the control of the UK Government, was an act carried out in the name of the Queen . .
Cited – Hodge v The Queen PC 1883
. .

Cited by:

Cited – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
Cited – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs Admn 22-Jul-2003
The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Binding – Manuel 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: 11 June 2022; Ref: scu.197763

Bhagwandeen v Attorney General of Trinidad and Tobago: PC 17 May 2004

Trinidad and Tobago – The Board was asked whether the Commissioner of Police (the Commissioner) had treated the appellant unequally and/or unfairly and had discriminated against him in refusing to recommend him for promotion from the rank of constable to that of corporal, contrary to section 4(b) and (d) of the Constitution.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell

Citations:

[2004] UKPC 21

Links:

Bailii

Jurisdiction:

Commonwealth

Constitutional, Discrimination

Updated: 10 June 2022; Ref: scu.197089

Bushell’s case: 1670

The case was, that Bushel and other jurors in London (for the trial of a traverse on an indictment against several persons for conventicling against the form of the statute lately made) were fin’d and imprisoned at the sessions in the Old Baily, because they gave their verdict against full evidence and the direction of the court in matter of law and so acquitted the prisoners. In this case it was first debated at the Bar, and on the Bench, whether the Common Pleas could award an habeas corpus in this case. Wild, Archer and Tyre1 Justices. This Court may well award it, and for this cited Anderson part 1, 297, 298. 2 Inst 615. Moor Rep 839, 1132. Brownl. part 1, 33, Vaughan Chief Justice on the contrary, and he said, that some habeas corpora’s are granted of course, others not without motion, and for tbis reason on motion, because it is not of necessity to be done of course, therefore there is no necessity for the granting it; for the Court ought to be satisfied that the party hath probably cause to be delivered. This Court has not power to grant it in general, but only in case of privilege, or excess of jurisdiction of an Inferior Court, in which case every one has the privilege of being discharged by the Courts of Westminster. This Court does not grant, because they have cognizance of the cause, but because it is a probable suggestion that this Court can deliver the party. If on the retorn the cause be expresly just, the party ought to be remanded, if expresly unjust, discharged, if doutbtful, bailed. The writ is ad subjiciend’ and recipiend’ qd’ Cur’ consideraverit and ut Cur’ nostr. visa causa illa; or qd’ de jure and consuetudine regni nostr’ fuerit faciend’ andc. But this Court in criminal causes cannot do this. He urged that the want of precedents in this Court is a great argument that such writs are not grantable here. The writ moreover requires that the body una cum die caption’ habeat’, by which the Court ought to be certified how long the party has been in custody ; for if for a long a time and no procedure against him, the Court ought to bail the prisoner though committed for felony or treason, which is improper for this Court that has no cognizance of crimes; for this Court is for Common Pleas, between subject and subject, but in a criminal case the plea is between the King and his prisoner.

Citations:

(1670) 6 St Tr 999, [1729] EngR 49, (1729) T Jones 13, (1729) 84 ER 1123, (1670) Jones T 13, 84 ER 1123

Links:

Commonlii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Torts – Other, Criminal Practice

Updated: 10 June 2022; Ref: scu.194519

Bishop of Roman Catholic Diocese of Port Louis and Others v Suttyhudeo Tengur and Others: PC 3 Feb 2004

PC (Mauritius) A father challenged the constitutionality of a system where 50% of places in Catholic run secondary schools were allocated to Catholic childen, and fifty per cent according to merit. He feared this would discriminate against his daughter as a Hindu. The Supreme Court upheld his claim, and the Colleges appealed.
Held: The constitution acknowledged the rights to establish church based schools, but also guaranteed against discrimination for religion. The giving of preference to one group of applicants necessarily works to the disadvantage of any group of applicants to whom preference is not given, but differentiation without more is not enough to enable the father to succeed. The differentiation required justification, but no sufficient justification had been put forward. The appeal was dismissed.

Citations:

[2004] UKPC 9

Links:

PC, Bailii, PC, PC

Citing:

Cited – Societe United Docks v Government of Mauritius; Marine Workers Union v Mauritius Marine Authority PC 1985
(Mauritius) Dockworkers and the Ports Authority, submitted their wage dispute to binding arbitration. The award granted a substantial wage increase which the workers then sought to have enforced. The government, brought in legislation allowing the . .
Cited – Matadeen and others v M G C Pointu and others (Mauritius) PC 18-Feb-1998
It is a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. Lord Hoffmann said: ‘of course persons . .
Cited – Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
Cited – Canea Catholic Church v Greece ECHR 16-Dec-1997
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 14; Not necessary to examine Art. 9; Not necessary to examine P1-1; Not necessary to examine Art. 14; Pecuniary damage – . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Education

Updated: 09 June 2022; Ref: scu.192650

Balkissoon Roodal v The State: PC 20 Nov 2003

(Trinidad and Tobago) The appellant challenged the automatic death sentence imposed upon him for murder.
Held: There were conflicting constitutional provisions. Following Fisher, in the context of issues of capital sentences a wider view was required. The death penalty should no longer be read as mandatory. Legislation since 1976 meant that the court now had a ciscretion to impose imprisonment.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Millett, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe

Citations:

[2003] UKHL 78, Times 26-Nov-2003, Gazette 15-Jan-2004, [2004] 2 WLR 652, Gazette 05-Feb-2004

Links:

Bailii, PC

Citing:

Cited – Regina v Powell (Anthony) and Another; Regina v English HL 30-Oct-1997
When the court looked at the issue of foreseeability of murder in an allegation of joint enterprise, there was no requirement to show intent by the secondary party. The forseeability of the risk of the principal committing the offence from the point . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
Cited – Reyes 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 . .
Cited – Minister of Home Affairs v Fisher PC 1979
Respect must be paid to the language which has been used in a constitutional statute and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation . .
Cited – Kanda v Government of the Federation of Malaya PC 2-Apr-1962
A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the . .

Cited by:

Cited – Haroon Khan v The State PC 20-Nov-2003
PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been . .
Overruled – Matthew vThe State PC 7-Jul-2004
(Trinidad and Tobago) The court questioned the constitutionality of the mandatory death penalty in Trinidad.
Held: The constitution of Trinidad, when implemented, forbade cruel and unusual punishment, but also preserved existing penalties. The . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing, Commonwealth

Updated: 08 June 2022; Ref: scu.188441

Haroon Khan v The State: PC 20 Nov 2003

PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been re-introduced after it had been repealed as a side effect of abolishing the distinction between felonies and misdemeanours. The appellant now argued that the re-introduction of the rule was unconstitutional, as it was inconsistent with the presumption of innocence. ‘The presumption of innocence is perhaps the most fundamental principle underlying the administration of the criminal law. It places on the prosecution, fairly and squarely, the duty of proving guilt. But it does not control the ingredients of the offence which the prosecution must prove to establish guilt.’ The present case fell within that rule, and the new law was not unconstitutional. The appellant’s sentence of death was however overturned under Roodal.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Millett, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe

Citations:

[2005] 1 AC 374, [2003] UKPC 79, Times 26-Nov-2003, Gazette 15-Jan-2004

Links:

Bailii, PC

Citing:

Cited – Moses v The State PC 29-Jul-1996
(Trinidad and Tobago) The appellant had been convicted under the felony murder rule, where if a victim dies in the course of the defendant committing a felony, the defendant is guilty of murder.
Held: The distinction between felony and murder . .
Cited – Riel v The Queen PC 1885
A power given to a Parliament to ‘make laws for the peace, order and good government’ is ‘apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to’ . .
Cited – Ibralebbe v The Queen PC 1964
(Grenada) In an appeal from the Court of Appeal of Grenada, the Judicial Committee of the Privy Council forms part of the Grenadian judicial system. Section 53 of the constitution which empowered Parliament to ‘make laws for the peace, order and . .
Cited – Darrin Roger Thomas and Haniff Hilaire v Cipriani Baptiste PC 17-Mar-1999
(Trinidad and Tobago) If the reason for delay in executing a prisoner was the slowness of bodies with whom appeals had been undertaken, that delay itself was not to be considered a good reason for preventing the execution. A delay period above 18m . .
Cited – Lewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another PC 12-Sep-2000
(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, . .
Cited – Balkissoon Roodal v The State PC 20-Nov-2003
(Trinidad and Tobago) The appellant challenged the automatic death sentence imposed upon him for murder.
Held: There were conflicting constitutional provisions. Following Fisher, in the context of issues of capital sentences a wider view was . .

Cited by:

Cited – Her Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor) PC 28-Jun-2005
(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Constitutional

Updated: 08 June 2022; Ref: scu.188442

Pilar 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 entirely male.
Held: (Majority) Since juries are chosen at random from jury lists, a non-discriminatory method of compilation of the jury lists is an essential ingredient of a fair trial by jury. This is inherent in the concept of a fair trial by an impartial jury. Fairness is achieved in the composition of a jury by random selection from a list which is itself fairly constituted. Section 19 of the Supreme Court Ordinance violates section 8 of the Constitution in so far as it discriminates between men and women regarding liability for jury service. There is a strong but rebuttable presumption that a jury acts impartially.

Judges:

Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough, Lord Millett, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe

Citations:

[2003] UKHL 76, Times 13-Nov-2003, [2003] UKPC 76, [2004] 1 WLR 201

Links:

PC, Bailii

Citing:

Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Ponsamy Poongavanam v Regina PC 6-Apr-1992
(Mauritius) The defendant appealed conviction on the ground that the jury had been all male. Women being effectively excluded from jury service in Mauritius. The question was whether, having regard to the composition of the jury, the appellant’s . .
Cited – Director 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 – 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 . .
Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .
Cited – Regina v Hughes PC 11-Mar-2002
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading . .
Cited – Reyes 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 . .
Cited – Director of Public Prosecutions of Jamaica v Mollison (No 2) PC 22-Jan-2003
(Jamaica ) The appellant had been convicted of murder as a youth. He was sentenced to be detained during Her Majesty’s pleasure. The actual length of time to be served was decided by the Governor-General. The decision by the Governor was clearly a . .

Cited by:

Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Marshall and Others v Deputy Governor of Bermuda and Others PC 24-May-2010
marshall_dgPC10
(Bermuda) The claimants challenged their recruitment by conscription to the Bermuda Regiment on several different grounds. The issues now were whether conscription was lawful only where volunters were insufficient, and whether the acceptance of . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Discrimination, Criminal Practice

Updated: 08 June 2022; Ref: scu.187746

Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong: PC 1970

(Hong Kong) The plaintiffs sought a declaration that it would not be lawful for the Legislative Council of Hong Kong to pass a particular Bill, together with an injunction to restrain the members of the council from passing it.
Held: The Board had jurisdiction to entertain the claim, but, by a majority, the action should be dismissed summarily as disclosing no cause of action. Passing a Bill which, on enactment, was repugnant to an Imperial Act of Parliament might by a waste of time for the legislators, but it was not in itself unlawful. The conduct of the Legislative Council could not affect the legal rights of anyone, because the Ordinance would be void and inoperative. ‘Conduct however much it lies outside the legal power of the actor does not give rise to any cause of action on the part of any person unless it infringes or threatens to infringe that person’s legal rights. Such an infringement can only occur when steps are taken to enforce the void Ordinance. It is committed not by the makers of the Ordinance but by those who take steps to enforce it after it has been made.’

Judges:

Lord Diplock, Lord Morris of Borth-y-Gest

Citations:

[1970] AC 1136, [1970] UKPC 12

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – The Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 08 June 2022; Ref: scu.187513

Regina on the Application of Southall and Another v Secretary of State for Foreign and Commonwealth Affairs: CA 14 Jul 2003

The claimant sought a declaration that the Treaty of Nice should not be ratified unless and until the consent of the people had been sought in a referendum. Silber J had refused permission to apply for judicial review.
Held: The appeal was dismissed. The declarations sought were ‘unsuitable to be the subject of a court pronouncement’. The question of whether or not a referendum should be held before Parliament passed the legislation necessary to incorporate the treaty was ‘a matter of political judgment and not for the courts.’

Judges:

Lord Justice Schiemann, Lord Justice Scott Baker

Citations:

[2003] EWCA Civ 1002

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 2-May-2008
The applicant sought leave to bring judicial review of the prime minister’s decsion not to hold a referendum on the ratification of the treaty of Lisbon.
Held: The claimant had arguable points under the 2000 Act and otherwise, and permission . .
Lists of cited by and citing cases may be incomplete.

Constitutional, European

Updated: 07 June 2022; Ref: scu.184771

Easterbrook v The United Kingdom: ECHR 12 Jun 2003

The prisoner was convicted of an armed robbery in which a policeman had been shot, and had been sentenced to life imprisonment. The judge set no tariff himself. The tariff was set by the Home Secretary, but only after some time. The discretionary life prisoner had been refused the right to make oral representations to the Lord Chief Justice upon him recommending the tariff he was to serve.
Held: There had been a violation of Article 6.1 regarding the procedure adopted in fixing the applicant’s tariff: ‘The Court would observe that the sentencing exercise carried out in criminal cases must necessarily be carried out by an independent and impartial tribunal, namely a court offering guarantees and procedure of a judicial nature. It was not a court that fixed the applicant’s tariff in a public adversarial hearing and in the circumstances it is not sufficient to satisfy the fundamental principal relating the separation of powers that the member of the executive who issued the decision was guided by judicial opinion’.

Citations:

48015/99, Times 18-Jun-2003, [2003] ECHR 278, [2003] 37 EHHR 812

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1

Jurisdiction:

Human Rights

Citing:

Cited – V v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
Cited – Stafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Cited – Benjamin and Wilson v The United Kingdom ECHR 26-Sep-2002
The applicant challenged the system in the UK of deciding on his release from a secure mental hospital. He had been a discretionary life prisoner, but then later his detention was continued because of his mental condition. Though an independent . .

Cited by:

Cited – Regina (on the Application of Dudson) v Secretary of State for the Home Department and the Lord Chief Justice Admn 21-Nov-2003
The applicant had been sentenced to detention during Her Majesty’s Pleasure. He sought a judicial review of the Lord Chief Justice’s recommendation to the Home Secretary for the minimum term he was to serve.
Held: In exercising this function, . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – Dudson, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The defendant had committed a murder when aged 16, and after conviction sentenced to be detailed during Her Majesty’s Pleasure. His tarriff had been set at 18 years, reduced to 16 years after review.
Held: ‘What is at issue is the general . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Constitutional, Human Rights

Updated: 07 June 2022; Ref: scu.183759

Attorney-General v Momodou Jobe: PC 26 Mar 1984

(Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction of statutory provisions which contravene human rights and freedoms there is a presumption of constitutionality. The presumption of constitutionality is ‘but a particular application of the canon of construction embodied in the Latin maxim magis est ut res valeat quam pereat which is an aid to the resolution of any ambiguities or obscurities in the actual words used in any document that is manifestly intended by its makers to create legal rights or obligations.’

Judges:

Lord Diplock

Citations:

[1984] AC 689, [1984] UKPC 10

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Benjamin, 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 . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Reyes 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 . .
Cited – Observer Publications Limited v Campbell ‘Mickey’ Matthew The Commissioner of Police and The Attorney General PC 19-Mar-2001
PC (Antigua and Barbuda) The claimant complained of the delay by the respondents in processing their request for a licence to run a radio station. It appealed refusal of constitutional redress and thta its right . .
Cited – Commodore 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: 07 June 2022; Ref: scu.182064

Coppard v The Commissioners of Customs and Excise, Lord Chancellor intervening: CA 9 Apr 2003

The judge, a circuit judge who had been appointed a judge of the TCC, had adjudicated on the claimant’s case in the High Court in the false belief that the appointment allowed him to do so.
Held: The judge had not wilfully closed his eyes to the law, and his mistake was understandable. On established principle, the judge was a judge de facto. The true logic of the doctrine was not only that the acts were validated but also the office. Accordingly, the judge was a properly constituted court for Article 6 purposes.

Citations:

[2003] EWCA Civ 631, Times 11-Apr-2003, Gazette 19-Jun-2003, [2003] EWCA Civ 511, [2003] QB 1428, [2003] 3 All ER 351, [2003] 2 WLR 1618

Links:

Bailii, Bailii

Statutes:

Supreme Court Act 1981 68, European Court of Human Rights 6(1)

Jurisdiction:

England and Wales

Citing:

Cited – Fawdry and Co (A Firm) v Murfitt CA 14-May-2002
The judge at first instance who was ticketed to sit as a judge in the Technology and Construction Court, had been asked to sit as a judge of the High Court to take this case. The appellant said she was acting outside her powers.
Held: The . .
Grant of leave – Coppard v Customs and Excise CA 5-Nov-2002
Application for leave to appeal out of time – granted. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights, Constitutional

Updated: 07 June 2022; Ref: scu.180988

Nicholls v London Borough of Greenwich: CA 3 Apr 2003

The claimant had been employed by the respondent, and earned a pension. She challenged legislation which appeared to operate retrospectively to reduce that pension. The respondent argued that the amount agreed to be paid exceeded the maximum statutory amount, and that a payment made upon termination was not to an officer holding a position.
Held: The promise of payment of a retirement gratuity was a term or condition of the contract appointing her to hold office as a school cleaner. It was a part of her employment package. That her contract was terminating did not mean it was not paid to her as a person holding office. Retrospectivity which appeared to take away a right should only be read from the clearest of words.

Judges:

Lord Justice May, Lord Justice Mummery The President

Citations:

[2003] EWCA Civ 416, Times 21-Apr-2003

Links:

Bailii

Statutes:

Superannuation Act 1972 7

Jurisdiction:

England and Wales

Citing:

Cited – Yew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
Cited – Arnold v Central Electricity Generating Board HL 22-Oct-1987
The plaintiff was widow and administratrix of the estate of her deceased husband. He had worked from April 1938 to April 1943 for a predecessor to the CEGB. He had been exposed to asbestos dust as a result of his employer’s negligence and breach of . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Employment

Updated: 07 June 2022; Ref: scu.180454

Perch, 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 Act transferring their contracts were unconstitutional.
Held: Employees of the new corporation were not holders of any public office and were not employed in the service of the Government in a civil capacity within the meaning of section 3(1) of the Constitution. The law recognised retirement as an appropriate means of leaving public service, and that option had been offerred. Abolition was also allowed, and therefore the transfer was not unconstitutional.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Hutton, Lord Millett, Lord Walker of Gestingthorpe

Citations:

[2003] UKPC 17

Links:

PC, Bailii, PC

Citing:

Cited – 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’ . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Cited – Tamlin v Hannaford CA 1950
Discussing the Brtitish Transport Commission, Denning LJ said: ‘It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants, and its property is not Crown property. It is as much bound by Acts . .
Cited – Young v Waller 1898
A legislature or (subject to any relevant legislation) a government may abolish a public office in the interests of good administration. . .
Cited – Reilly v The King HL 1934
The government has power to abolish a public service post, and it is an ‘elementary proposition that if further performance of a contract becomes impossible by legislation having that effect the contract is discharged’. . .

Cited by:

Cited – Antigua Public Utilities Authority v Malcolm Alphonso Edwards PC 2-Oct-2003
PC (Antigua and Barbuda) Upon the transfer of utilities into private companies controlled by the government, the respondent’s employment was also to be transferred. The issue concerned his new contract terms. The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Employment, Constitutional

Updated: 07 June 2022; Ref: scu.179800

Crawford, Regardless Limited and Crawford v Financial Institutions Services Limited: PC 6 Feb 2003

PC Jamaica – petition for special leave to appeal to Her Majesty in Council from a judgment of the Court of Appeal of Jamaica dated 31 July 2001. The petitioners are Donovan Crawford, Regardless Ltd and Alma Crawford, the defendants in the proceedings at trial and the appellants in the Court of Appeal.

Judges:

Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote

Citations:

[2003] UKPC 12

Links:

PC, Bailii, PC

Cited by:

See Also – Donovan 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, Contract

Updated: 07 June 2022; Ref: scu.179137

Jennifer Gairy (as administratrix of the estate of Eric Matthew Gairy, deceased) v The Attorney General of Grenada: PC 19 Jun 2001

(Grenada) The appellant sought to enforce an order of compensation against the crown in Grenada. The new constitution of Grenada expressly replaced all previous laws. It was not to be assumed that protections by way of Crown privilege under the earlier laws could not be presumed to have been preserved. The new constitution which was intended to protect the fundamental rights of the citizen, and could include revocation of earlier protections for the Crown.

Citations:

Times 25-Jun-2001, Appeal No 29 of 2000, [2001] UKPC 30, [2002] 1 AC 167

Links:

Bailii, PC, PC

Statutes:

The Supreme law of Grenada 16

Cited by:

Cited – Chagos 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.

Constitutional, Commonwealth

Updated: 07 June 2022; Ref: scu.179226

Regina (ZL and VL) v Secretary of State for the Home Department and Lord Chancellor’s Department: CA 24 Jan 2003

The applicants’ claims for asylum had been rejected as bound to fail, and under the new Act, they were to be removed from the UK. If they wanted to appeal, they they would have to do so from outside the jurisdiction. The section had been brought into effect before the Act had been formally published.
Held: An Act took effect on Royal assent irrespective of publication, but that rule was not echoed in Human Rights law. Could the respondent give effect to the section before publication? Here the applicant retained a right to apply for judicial review to argue that the absence of publication had caused prejudice. The courts were themselves well placed to judge the issues. The courts should look carefully at the individual circumstances of the case, as well as the fact that certain countries were listed as safe. The fast track procedure was capable of protecting the rights of applicants.
‘If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded’- The test of whether a claim is ‘clearly unfounded’ is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof.

Judges:

Lord Justice Waller, Lord Justice Sedley, Lord Phillips MR

Citations:

[2003] 1 WLR 1230, Times 30-Jan-2003, [2003] EWCA Civ 25, Gazette 20-Mar-2003, [2003] 1 All ER 1062, [2003] Imm AR 330, [2003] INLR 224

Links:

Bailii

Statutes:

Nationality and Asylum Act 2002 115, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .

Cited by:

Cited – Bagdanavicius, Bagdanaviciene v the Secretary of State for Home Department Admn 16-Apr-2003
The applicants sought asylum, saying they had been subjected to repeated ill-treatment by Lithuanian Mafiosi. The claims were rejected as clearly unfounded, denying any right to an appeal.
Held: The court could examine the basis upon which the . .
Cited – The Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .
Cited – Yogachandran, Regina (on the Application Of) v Secretary of State for the Home Department Admn 7-Feb-2006
The applicant appealed rejection of his claim for asylum.
Held: ‘the claimant has wholly failed to demonstrate, even to the very low level of possibility which suffices to quash a certificate, that there is any risk to him if he is returned to . .
Cited – ZT (Kosovo) v Secretary of State for the Home Department HL 4-Feb-2009
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
Cited – EM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 19-Feb-2014
SSHD must examine safety of country for return
The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional, Human Rights

Updated: 07 June 2022; Ref: scu.178797

A v The United Kingdom: ECHR 17 Dec 2002

The applicant complained that the absence of legal aid to allow a challenge what had been said about her in Parliament by way of defamation, violated her right of access to court.
Held: The right to absolute parliamentary privilege was within the margin of freedom enjoyed by a nation state. The applicant was not left entirely without remedy, and the freedom of parliament was properly to be protected. As to the availability of legal aid, limited legal advice was available, and a conditional fee arrangement might also have been available. ‘However, the right of access to court is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.’

Citations:

Times 28-Dec-2002, 35373/97, [2002] ECHR 805, (2002) 36 EHRR 917, [2002] ECHR 811

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6 8.1

Cited by:

Cited – Gray v Avadis QBD 30-Jul-2003
The claimant had made complaints against the defendant solicitor to the Office for the Supervision of Solicitors. In answer the defendant made assertions about the claimant’s mental health, and she now sought to bring action iin defamation on those . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Cited – Westcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Legal Aid, Constitutional

Updated: 06 June 2022; Ref: scu.178596

Imperial 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 matters were reserved to the UK Parliament under the 1998 Act. Second that the Act purported to alter secondary Regulations made by the UK Parliament which again contained matters reserved to that Parliament.
Held: The company’s appeal failed. The Act provided only for matters within the competence of the Scottish Parliament.
Each such provision must be judged independently. The 1998 Act is to be interpreted according to the standards applicable to any other Act of the UK parliament. The fact that the 1998 Act described itself as being constitutional did not of itself import any special rules of construction.
The aim of sections 1 and 9 was to discourage or eliminate sales of tobacco products, and not to protect the consumer from unfair trade practices. Nor did the sections do anything to amend the Regulations.
Lord Hope said that the matters listed have a common theme: ‘It is that matters in which the United Kingdom as a whole has an interest should continue to be the responsibility of the UK Parliament at Westminster. They include matters which are affected by its treaty obligations and matters that are designed to ensure that there is a single market within the United Kingdom for the free movement of goods and services.’

Judges:

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Kerr, Lord Sumption

Citations:

[2012] UKSC 61, UKSC 2012/0066, 2013 SCLR 121, 2013 GWD 1-8, 2013 SLT 2

Links:

Bailii, Bailii Summary, SC, SC Summary

Statutes:

Scotland Act 1998 29(1), Tobacco and Primary Medical Services (Scotland) Act 2010 1(1) 9, Regulations (the Tobacco for Oral Use (Safety) Regulations 1992

Jurisdiction:

Scotland

Citing:

Cited – A v The Scottish Ministers PC 15-Oct-2001
(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate . .
Appeal from – Imperial Tobacco Ltd v The Lord Advocate As Representing The Scottish Ministers SCS 2-Feb-2012
The company sought a reclaiming motion after dismissal of their request for judicial review of the 2010 Act of the Scottish Parliament.
Held: The appeal against the Lord Ordinary’s interlocutor was refused.
Lord Reed said that the nature . .
Cited – Sinclair Collis Ltd v Lord Advocate SCS 2012
The pursuer, a cigarette vending machine operator, challenged section 9 of the 2010 Act saying that the section was incompatible with its rights under article A1P1 of the Convention, and with article 34 of the Treaty on the Functioning of the . .
Cited – AXA 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 . .
Opinion – Imperial Tobacco Ltd, Re Judicial Review SCS 30-Sep-2010
(Opinion) The petitioner sought review of the 2010 Act, saying that its provisions related to matters reserved to the UK parliament by the 1998 Act, and were therefore outwith the powers granted to the Scottish Parliament.
Held: The petition . .
Cited – Martin v Her Majesty’s Advocate SC 3-Mar-2010
The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish . .
Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
Cited – Adams and Others v Lord Advocate IHCS 31-Jul-2002
(Opinion) The applicants challenged the introduction of restrictions of hunting by foxes, arguing that the law would infringe their human rights.
Held: The Act was not infringing. Fox hunting as such was not a private activity protected by the . .
Cited – DS v Her Majesty’s Advocate PC 22-May-2007
An amendment to the 1995 Act placed restrictions on the questioning of the complainer in trials of persons charged with sexual offences. The defendant appealed, saying that the restrictions were incompatible with the right to a fair trial under . .
Cited – Whaley and Another v Lord Advocate HL 28-Nov-2007
The House considered claims that the 2002 Act, which set out to make unawful the hunting of wild mammals with dogs unlawful, infringed the claimants’ human rights, in that it contravened international treaties requiring the support for traditional . .
Cited – Spiers v Ruddy PC 12-Dec-2007
Limits to Powers in Devolution Cases
Mr Spiers had complained as to the competency of two temporary sheriffs called to hear case against him, saying that the temporary nature of their appointments did not allow them to constitute an independent tribunal. He now complained that the . .
Cited – 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 . .
Cited – Regina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
Cited – Kay v Burrows HL 1931
The House considered whether premises (the greater part of which was used for the storage of rags awaiting processing, sorting or subsequent despatch) fell within the proviso to s.3(1) which excluded premises ‘primarily occupied and used [for the] . .
Cited – Regina v Secretary of State for Health, ex parte United States Tobacco International Inc CA 1991
The applicant company produced oral snuff. It had opened a factory in the United Kingdom after the Government, on advice, had negotiated an agreement with it to restrict the marketing of the product. The committee, basing itself not on new evidence . .

Cited by:

Cited – Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Consumer

Updated: 06 June 2022; Ref: scu.467053

Regina v The Secretary of State for The Home Department, ex parte Bhurosah: CA 1968

In Mauritius the Queen is the Queen of Mauritius and the issuing of passports by the Government of Mauritius, although a matter of foreign affairs and therefore under the control of the UK Government, was an act carried out in the name of the Queen in the right of Mauritius, and not the Queen in right of the UK.

Judges:

Lord Denning MR

Citations:

[1968] 1 QB 266

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
Applied – Regina v The Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta CA 1982
The court considered an application leave to request a judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her government in the UK.
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 06 June 2022; Ref: scu.197761

Felix Augustus Durity v The Attorney General of Trinidad and Tobago: PC 13 May 2002

PC (Trinidad and Tobago) The applicant had been a magistrate, and challenged the application of a limitation period to his claim. He had been wrongfully suspended from his work, and the proceedings had been delayed and protracted. No effective progress having been made, he sought to challenge the original suspension. The court refused to hear the application as debarred by limitation. He said that the limitation period should have no application in a case involving a constitutional challenge and infringement of his human rights.
Held: Where the state became liable in tort, it was appropriate that limitation defences available to tortfeasors should also be available to the state, but the considerations on constitutional proceedings are different, and the limitation period did not apply. As a magistrate, making a decision in good faith, even if incorrectly, to allow that mistake to be charged as misconduct was to impugn the independence of the judiciary. The failure to pursue the case over a long period of time, with the magistrate suspended amounted to an abuse of power.

Judges:

Lord Nicholls of Birkenhead Lord Hutton Lord Hobhouse of Woodborough Lord Millett Lord Scott of Foscote

Citations:

[2002] UKPC 20, Appeal No 52 0f 2000

Links:

Bailii, PC

Crime, Commonwealth, Constitutional, Limitation, Human Rights

Updated: 06 June 2022; Ref: scu.174479

Efisol v Commission: ECFI 16 Oct 1996

ECJ 1 Non-contractual liability – Conditions – Illegality – Damage – Causal link
(EC Treaty, Art. 215, second para.)
2 Community law – Principles – Protection of legitimate expectations – Conditions
3 Acts of the institutions – Adoption foreseeable by a prudent and discriminating trader – Principle of the protection of legitimate expectations – Not applicable
4 Environment – Protection of the ozone layer – Regulation No 594/91 on substances that deplete the ozone layer – Authorization to import into the Community – Administrative procedure – Allocation of a quota – Issue of import licences
(Council Regulation No 594/91, Arts 3 and 4)
5 Community law – Principles – Protection of legitimate expectations – Withdrawal of a measure within a reasonable period – No legitimate expectation
6 Community law – Principles – Protection of legitimate expectations – Conduct on the part of a Community institution which is inconsistent with Community rules – No legitimate expectation
7 Procedure – Costs – Costs caused unreasonably or vexatiously
(Rules of Procedure of the Court of First Instance, Art. 87(3), second subpara.)
8 The incurring by the Community of non-contractual liability, within the meaning of the second paragraph of Article 215 of the Treaty, depends on fulfilment of a set of conditions as regards the unlawfulness of the conduct alleged against the Community institution, the fact of damage and the existence of a causal link between the conduct in question and the damage complained of.
9 The right to rely on legitimate expectations extends to any individual who is in a situation in which it is apparent that the Community administration, by giving him precise assurances, has led him to entertain justified expectations.
An individual cannot, by virtue of the allocation to him of an import quota, have a justified expectation that the import licences applied for will subsequently be issued to him, since such allocation is merely the first stage in securing an effective right to import.
10 If a prudent and discriminating trader could have foreseen the adoption of a Community measure likely to affect his interests, he cannot avail himself of any legitimate expectation if the measure is then adopted. Such will be the case where a trader has set in motion the transport by train of the consignments ordered without awaiting the decision of the Community institution on the application for import licences and without taking the precautions necessary to safeguard his interests in the event of the application for licences being rejected.
11 There are two stages in the administrative procedure laid down in Regulation No 594/91 for obtaining authorization to import into the Community substances that deplete the ozone layer: first, the allocation of a quota under Article 3 of that regulation and, second, the issue, pursuant to Article 4 thereof, of one or more import licences corresponding to the quota allocated. It follows that the right to import, accorded when a quota is allocated, takes effect only once an import licence has been issued.
12 There can be no finding that a legitimate expectation has arisen on the part of an individual where the measure liable to give rise to such expectation has been withdrawn by the administration within a reasonable period.
13 A legitimate expectation cannot arise from conduct on the part of a Community institution which is inconsistent with Community rules.
14 Where the conduct on the part of a defendant institution, which was inconsistent with the Community rules, has contributed to the creation of a dispute, an applicant cannot be criticized for having instituted proceedings before the Court for an assessment of that conduct, as well as of any damage which may have resulted from it. It is therefore necessary, in such circumstances, to apply the second subparagraph of Article 87(3) of the Rules of Procedure, according to which the Court may order a party, even if successful, to pay the costs of proceedings which, by its own conduct, it has caused the opposite party to incur.

Citations:

T-336/94, [1996] EUECJ T-336/94, [1997] 3 CMLR 298, [1996] ECR II-1343

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 06 June 2022; Ref: scu.172939

Rusbridger 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: The defendant had made no decision (other than not to prosecute) and there was no decision to challenge. Whilst the other applications should not proceed, the court considered that the possible incompatibility of the 1848 Act with the Human Rights Act was a proper matter of public interest and might be pursued.

Citations:

[2002] EWCA Civ 397

Links:

Bailii

Statutes:

Treason and Felony Act 1848 3, Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Appealed to – Regina 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 . .
Cited – 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 . .
Cited – Rex v Charles Gavan Duffy 1848
The defendant was editor of the Irish newspaper ‘The Nation’. He was accused of treason.
Held: The judge summed up the offence of treason under the Act as follows: ‘if any person shall entertain the intention of deposing Her Majesty from her . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – Imperial Tobacco Ltd v Attorney-General HL 1980
The applicant sought a declaration as to the lawfulness of a lottery scheme whilst criminal proceedings were pending against it for the same scheme.
Held: It was not necessary to decide whether a declaration as to the criminality or otherwise . .
Cited – Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners Admn 18-Oct-2001
The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act . .
Cited – Attorney-General v Able and Others QBD 28-Apr-1983
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing . .
Cited – Joyce v Director of Public Prosecutions HL 1948
The defendant was an American citizen but held a British passport. After the outbreak of war between Great Britain and Germany in 1939, he delivered from German territory broadcast talks in English hostile to Great Britain.
Held: His . .

Cited by:

Appeal from – Regina 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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Media

Updated: 06 June 2022; Ref: scu.170080

Berthill Fox v Regina (No 2): PC 11 Mar 2002

(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all other laws, and guaranteed certain fundamental rights and freedoms. Though it allowed for the possibility of the death sentence for murder, he claimed the sentence was inhuman or degrading punishment or treatment.
Held: The council had already twice held that similar constitutions did not allow for a death penalty which was mandatory. The appeal was allowed, and the case remitted for re-sentencing.

Judges:

Lord Bingham of Cornhill Lord Hutton Lord Hobhouse of Woodborough Lord Millett Lord Rodger of Earlsferry

Citations:

[2002] 2 AC 284, [2002] UKPC 13

Links:

PC, Berthill Fox v. The Qu’ target=’_n’>PC, Bailii, PC

Statutes:

Saint Christopher and Nevis Constitution Order 1983 (SI 1983 No 881)

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Hughes PC 11-Mar-2002
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading . .
Cited – Reyes 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 . .

Cited by:

Cited – Regina v Hughes PC 11-Mar-2002
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading . .
Cited – Pilar 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 . .
Cited – Watson 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 . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights, Constitutional

Updated: 05 June 2022; Ref: scu.167755

Regina v Hughes: PC 11 Mar 2002

(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading punishment or treatment under article 5, and the Crown appealed to the Privy Council.
Held: The mandatory death penalty is indeed to be regarded as inhuman or degrading punishment or treatment. The committee which exercised the prerogative of mercy was not an independent tribunal sufficient to save the procedure. The Crown’s appeal was dismissed, and the case remitted for re-sentence.

Judges:

Lord Bingham of Cornhill Lord Hutton Lord Hobhouse of Woodborough Lord Millett Lord Rodger of Earlsferry

Citations:

[2002] UKPC 12, [2002] 2 AC 259

Links:

PC, Bailii

Statutes:

Criminal Code of Saint Lucia 1992 172, Saint Lucia Constitution Order 1978 (SI 1978 No 1901) 5

Jurisdiction:

Commonwealth

Citing:

Applied – Reyes 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 . .
Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .

Cited by:

Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .
Cited – Pilar 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 . .
Cited – Watson 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 . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing, Human Rights, Commonwealth

Updated: 05 June 2022; Ref: scu.167754

Thoburn v Sunderland City Council etc: Admn 18 Feb 2002

Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it impliedly repealed the 1972 Act to that extent (2(2)).
Held: The EC Treaty was unlike others in creating a new and unique legal order which was supreme above the legal systems of the member states. On accession under the 1972 Act, the United Kingdom bowed its head to that supremacy. The 1972 Act was a constitutional Act, and at common law could only be repealed by express provision. All specific rights and obligations created by European Law were incorporated into domestic law and ranked supreme by the 1972 Act, which was a constitutional statute, and could not be impliedly repealed. That the 1972 Act was a constitutional statute was derived from common law which recognised such a category. The fundamental legal basis of the United Kingdom’s relationship with the EU rested with the domestic, not the European legal powers.

Judges:

Lord Justice Laws, Mr Justice Crane

Citations:

Gazette 11-Apr-2002, [2001] EWCH Admin 195, [2003] QB 151

Links:

Bailii

Statutes:

European Communities Act 1972 2(2), Weights and Measures Act 1985 1, Weights and Measures Act 1985 (Metrification) (Amendment) Order 1994 (SI 1994 No 2866), Unit of Measurement Regulations 1994 (1994 No 2867), Price Marking Order 1999 (1999 No 3042)

Jurisdiction:

England and Wales

Cited by:

Cited – Levi Strauss and Co and Another v Tesco Stores Ltd and others ChD 31-Jul-2002
The trade mark owners sought to restrain the defendants from selling within the EU, articles bearing their mark which had been imported other than through their own channels. The defendants resisted summary judgement after reference to the European . .
Cited – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Cited – Miller 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 . .
Cited – Miller 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, European, Consumer

Updated: 05 June 2022; Ref: scu.167622

Willers v Joyce and Another (Re: Gubay (Deceased) No 2): SC 20 Jul 2016

The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion.
Held: The court set out the position in law and practice to be followed.
In general: ‘There is no doubt that, unless there is a decision of a superior court to the contrary effect, a court in England and Wales can normally be expected to follow a decision of the JCPC, but there is no question of it being bound to do so as a matter of precedent. There is also no doubt that a court should not, at least normally, follow a decision of the JCPC, if it is inconsistent with the decision of a court which is binding in accordance with the principles set out in paras 5, 8 and 9 above.’
The court provided one exception to the absolute nature of the second limb of the above, which was where on an appeal to the JCPC, a party intended to request that it depart from an earlier decision of the House of Lords or the Supreme Court, or of the Court of Appeal on a point of English law, and where the JCPC decides that the House of Lords or Supreme Court, or, as the case may be, the Court of Appeal, was wrong. In such a case: ‘The registrar of the JCPC will draw the attention of the President of the JCPC to the fact there may be such an invitation. The President can then take that fact into account when deciding on the constitution and size of the panel which is to hear the appeal, and, provided that the point at issue is one of English law, the members of that panel can, if they think it appropriate, not only decide that the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal, was wrong, but also can expressly direct that domestic courts should treat the decision of the JCPC as representing the law of England and Wales. ‘

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance. Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Toulson

Citations:

[2016] UKSC 44, UKSC 2015/0154, [2016] WLR(D) 402, UKSC 2015/0154

Links:

Bailii, Bailii Summary,

Jurisdiction:

England and Wales

Citing:

See Also – Willers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Cited – London Street Tramways v London County Council HL 25-Apr-1898
House Decisions binding on Itself
The House laid down principles for the doctrine of precedent. When faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was . .
Appeal from – Willers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
Cited – Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
Cited – Howard De Walden Estates Ltd and Another v Aggio and others; Earl Cadogan and others v 26 Cadogan Square Ltd CA 24-May-2007
Note: ‘In accordance with the well established principles of stare decisis the decisions of a higher court are binding on judges sitting in a lower court. This principle serves the interests of legal certainty: see Broome v. Cassell and Co [1972] AC . .
Cited – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Knauer v Ministry of Justice SC 24-Feb-2016
The court was asked: ‘whether the current approach to assessing the financial losses suffered by the dependant of a person who is wrongfully killed properly reflects the fundamental principle of full compensation, and if it does not whether we . .
Cited – Patel and Others v Secretary of State for The Home Department CA 1-Jun-2012
Where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Fitzleet Estates Ltd v Cherry HL 9-Nov-1977
Income tax – Schedule D, Cases III and VI – Payments of interest and ground rent incurred when property was being developed – Whether capitalised or paid out of profits or gains brought into charge to tax – Income Tax Act 1952 (15 and 16 Geo. 6 and . .
Cited – Gregory v Portsmouth City Council HL 10-Feb-2000
Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Davis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
Cited – Mercedes Benz Ag v Leiduck PC 24-Jul-1995
Mareva relief is not available against a foreigner outside the UK in order to support a court action abroad. A Mareva injunction is not itself a substantive relief and so was not available to support foreign proceedings. A freezing order has to be . .
Cited – Tai Hing Ltd v Liu Chong Hing Bank PC 1985
(Hong Kong) The relationship between banker and customer is principally a contractual one between debtor and creditor. As between the banker and his customer, the risk of loss through forgery of the customer’s signature falls on the banker unless . .
Cited – National 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 . .
Cited – Doughty v Turner Ltd CA 1964
The cover on a cauldron of exceedingly hot molten sodium cyanide was accidentally knocked into the cauldron and the plaintiff was damaged by the resultant explosion.
Held: The plaintiff’s claim failed. The defendant employer owed a duty of . .
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).

Cited by:

See Also – Willers v Joyce and Another Re: Gubay, Deceased ChD 23-May-2017
Defendants’ application to strike out elements of the claimants re-re-amended particulars of claim. . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 June 2022; Ref: scu.567278

Richard Hinds v The Attorney General and The Superintendent of Glendairy Prison: PC 5 Dec 2001

(Barbados) The appellant argued that the denial of free legal representation at his trial infringed his constitutional rights. He had been faced with a charge of arson, but was told the complexity of the case did not require legal assistance. The trial involved issues as to his competence and the admissibility of his confession. The constitution gave him the right to a fair trial, but provided no right to free legal representation. A scheme had been introduced later.
Held: The constitution must be seen as a living document. Barbados, had, in ratifying international conventions explicitly withheld the right to free representation. The right to a fair trial was not however qualified. Breach of a defendant’s constitutional right to a fair trial must result in the conviction being quashed. The provision of a right of appeal did not in this case correct the judge’s failure to consider his individual circumstances properly. However a claim for constitutional relief is not an alternative means of challenging a conviction or a judicial decision, nor an additional means where such a challenge, based on constitutional grounds, has been made and rejected. Appeal dismissed.

Judges:

Lord Bingham of Cornhill Lord Hobhouse of Woodborough Lord Scott of Foscote Sir Murray Stuart-Smith Sir KennethKeith

Citations:

Appeal No 28 0f 2000, [2001] UKPC 56

Links:

PC, PC, Bailii

Citing:

Cited – Mohammed (Allie) v The State PC 9-Dec-1998
(Trinidad and Tobago) A failure to inform a suspect before interview of his right to see a lawyer did not make the interview inadmissible despite the constitutional infringement. It was not as serious as a failure to give fair trial. The judge’s . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Constitutional

Updated: 05 June 2022; Ref: scu.167071

Northern Ireland Devolution Issues, A Reference By The Attorney General (Northern Ireland): SC 5 Feb 2020

Devolution issue arises as to Act of NI Minister

The basis for the Attorney’s reference is his assertion that the universal credit provisions in question breach articles 8, 12 and 14 of the ECHR and article 1 of the first protocol to the ECHR and are therefore invalid per section 24 of the 1998 Act.
Held: The Supreme Court unanimously refused to accept the Attorney General’s application to refer this issue to the court under paragraph 34 of Schedule 10 to the 1998 Act. For a devolution issue to arise, it must be shown that an act or function has been carried out by a Northern Ireland minister or department, and that the act in question is invalid by reason of s. 24.

Judges:

Lady Hale, Lord Reed, Lord Kerr

Citations:

[2020] UKSC 2

Links:

Bailii, Summary

Statutes:

Northern Ireland Act 1998, Welfare Reform (Northern Ireland) Order 2015, European Cnvention on Human Rights 8 12 14, Northern Ireland (Welfare Reform) Act 2015

Jurisdiction:

Northern Ireland

Citing:

Cited – Northern Ireland of devolution issues, Reference by the Attorney General for (Northern Ireland) SC 14-Jan-2019
Five questions referred by the Attorney General for Northern Ireland.
Held: The matter was adjourned: ‘it is desirable that legal questions be determined against the background of a clear factual matrix, rather than as theoretical or academic . .
Cited – SC and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions and Others CA 16-Apr-2019
Challenge to two child limit for child tax credit. . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Benefits, Human Rights

Updated: 05 June 2022; Ref: scu.647068

Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners: Admn 18 Oct 2001

The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act could not be re-interpreted in the light of the Human Rights Act to protect a right of life. There is a direct conflict between the right of life, and the right to protect a body. The Convention protects life and the dignity of life, but does not protect any right to procure one’s own death or confer a right to die. The right to the dignity of life was not a right to die with dignity, but rather a right to live, with as much dignity as could possibly be afforded, until that life reached its natural end.

Judges:

Lord Justice Tuckey, Lady Justice Hale and Mr Justice Silber

Citations:

Times 23-Oct-2001, Gazette 22-Nov-2001, [2001] EWHC Admin 788

Links:

Bailii

Statutes:

Suicide Act 1961 2(1) 2(4)

Citing:

Cited – Attorney General of Trinidad and Tobago v Phillip PC 9-Nov-1994
A pardon which had been give to insurrectionists was invalid, since it purported to excuse future conduct also, but there had been no duress shown. There is no general power to excuse a crime before it is committed. Lord Woolf: ‘A pardon must in the . .
Cited – Regina v Commissioner of Police of the Metropolis, Ex parte Blackburn CA 1968
Answerability of Chief Constables
The constitutional status of the Commissioner had never been defined, either by statute or by the courts. By common law police officers owe to the general public a duty to enforce the criminal law. The court considered the extent to which a court . .
Cited – C (A Minor) v Director of Public Prosecutions HL 17-Mar-1995
The House considered whether the long established rule of the criminal law presuming that a child did not have a guilty mind should be set aside.
Held: Doli incapax, the presumption of a child’s lack of mens rea, is still effective and good . .

Cited by:

Appeal from – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – Rusbridger 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.

Criminal Practice, Constitutional, Human Rights

Updated: 04 June 2022; Ref: scu.166631

Buchholz v Germany: ECHR 6 May 1981

The ECHR did not apply to rights determined by a constitutional court because of their constitutional nature.

Citations:

7759/77, [1981] ECHR 2, (1981) 3 EHRR 597

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6

Cited by:

Not Followed – Deumeland v Germany ECHR 29-May-1986
Although the Constitutional Court had no jurisdiction to rule on the merits of the dispute, its decision was ‘capable of affecting the outcome of the claim’.
The court considered a widow’s supplementary pension arising from her husband’s death . .
Cited – G, Regina (on The Application of) v X School SC 29-Jun-2011
The claimant was employed as a teaching assistant. He was suspended after allegations of sexual misbehaviour with boy at the school. He refused to take part in the disciplinary proceedings until the police investigation was concluded. A decision was . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional

Updated: 04 June 2022; Ref: scu.164897

Whaley v Lord Watson: SCS 16 Feb 2000

The Scottish Parliament and its members have a limited statutory immunity from suit. No interdict or other order could be made against a member of the Parliament if the effect would be to grant an order against the Parliament not otherwise available. There is a remedy against a member in respect of wrongs which only a member could commit, but which the Parliament could not commit. Even so, remedies could only be retrospective not prospective. A member cannot be prevented from promoting a Bill.
Lord President Rodger said: ‘The Lord Ordinary gives insufficient weight to the fundamental character of the Parliament as a body which – however important its role – has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law . . Some of the arguments of counsel for the first respondent appeared to suggest that it was somehow inconsistent with the very idea of a parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law. I do not share that view. On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts. And, now, of course, certain inroads have been made into even that sovereignty by the European Communities Act 1972. By contrast, in many democracies throughout the Commonwealth, for example, even where the parliaments have been modelled in some respects on Westminster, they owe their existence and powers to statute and are in various ways subject to the law and to the courts which act to uphold the law. The Scottish Parliament has simply joined that wider family of parliaments.’

Judges:

Lord President Rodger, Lord Prosser, Lord Morison

Citations:

Times 21-Mar-2000, [2000] ScotCS 41, 2000 SCLR 279, 2000 SC 340

Links:

Bailii, ScotC

Statutes:

Scotland Act 1998

Cited by:

Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Cited – AXA 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.

Constitutional, Scotland

Updated: 04 June 2022; Ref: scu.163781