Category: Constitutional

Hoekstra and Others v Her Majesty’s Advocate High Court of Justiciary: PC 26 Oct 2000

The Privy Council has no standing to act as a general court of appeal on Scottish law. The jurisdiction given to it by the Act, was limited as prescribed by the Act to what are called devolution issues, issues related to the acts of devolution. Not all constitutional issues were indeed devolution issues.
Save for devolution issues as defined by paragraph 1 of Schedule 6 to the Scotland Act 1998, every interlocutor of the High Court of Justiciary such as that pronounced by the judges at the second sift is final and conclusive and not subject to review by any court whatsoever:

Judges:

Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde

Citations:

Times 31-Oct-2000, [2000] UKHL D2, 2000 GWD 40-148, [2001] AC 216, (2000) 144 SJLB 272, 2000 SCCR 1121, [2000] 3 WLR 1817, 2001 SLT 28

Links:

PC, Bailii

Statutes:

Scotland Act 1998, Criminal Procedure (Scotland) Act 1995 124(2)

Citing:

See Also – Note of Appeal Against Conviction and Sentence By Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Her Majesty’s Advocate HCJ 28-Jan-2000
. .
See Also – Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Endrik Van Rijs v Her Majesty’s Advocate HCJ 7-Mar-2000
. .
See Also – Liewe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Hm Advocate HCJ 14-Apr-2000
A judge, having given judgment in an appeal case involving the application of the convention on Human Rights, wrote and published an article critical of the convention, and of its application in national law. The appeal decision was set aside, since . .
Appeal from – Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Her Majesty’s Advocate HCJ 2-Jun-2000
. .

Cited by:

Cited – Hoekstra and Van Rijs etc v Her Majesty’s Advocate HCJ 18-Jan-2001
. .
Cited – Hoekstra and Van Rijs and Van Rijs and Van Rijs v Her Majesty’s Advocate HCJ 23-Jan-2002
. .
Cited – Kinloch v Her Majesty’s Advocate SC 19-Dec-2012
The appellant said that the police officers had acted unlawfully when collecting the evidence used against him, in that the information used to support the request for permission to undertake clandestine surveillance had been insufficiently . .
Lists of cited by and citing cases may be incomplete.

Scotland, Constitutional

Updated: 04 June 2022; Ref: scu.163267

Ogilvy v The Minister of Legal Affairs (Reasons for a decision upon a Notice of Motion): PC 13 Feb 2002

(St Lucia) The appellant had sought to challenge the refusal of his application for a position as a magistrate in St Lucia. This was his second application. The committee would only accept second petitions in exceptional circumstances, and none such had been shown here. The basis of the claim was that his application had been rejected by a procedure inconsistent with the constitution.

Citations:

[2002] UKPC 7, (Reasons for a decision upon a Notice of Motion)

Links:

PC, PC, PC, Bailii

Statutes:

Constitution of Saint Lucia 91(2)

Jurisdiction:

England and Wales

Constitutional

Updated: 04 June 2022; Ref: scu.167621

Commission v France: ECJ 13 Mar 1997

ECJ (Judgment) 1 Member States – Obligations – Failure to fulfil obligations – Retention of a national provision incompatible with Community law – Justification on the basis of administrative practices ensuring that the Treaty is applied – Not permissible
2 Acts of the institutions – Directives – Implementation by the Member States – Directive intended to confer rights on individuals – Transposition without legislative action – Not permissible
3 The incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty.
4 The provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty, under which, in the case of a directive intended to confer rights on individuals, persons concerned must be enabled to ascertain the full extent of their rights.
That is not the case where, because a legislative provision incompatible with a provision in a directive has been retained, individuals are in a position of uncertainty as to their legal situation and exposed to unwarranted criminal proceedings. Neither the obligation for national courts to secure the full effect of Article 5 of the directive by not applying any contrary national provision, nor a ministerial answer to a parliamentary question can have the effect of amending a statutory provision.

Citations:

[1997] ECR I-1489, C-197/96, [1997] EUECJ C-197/96

Links:

Bailii

European, Constitutional

Updated: 03 June 2022; Ref: scu.161887

de Rijk v Commission: ECJ 29 May 1997

(Judgment) 1 Appeals – Pleas in law – Only pleas in law supported by legal argument admissible
(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))
2 Appeals – Pleas in law – Inadequate reasoning – Principle of sound management – Sickness insurance – Sickness expenses – Supplementary sickness insurance scheme for officials posted outside the Community – Scope – Appeal dismissed
(Staff Regulations, Art. 72 and Annex X, Art. 24)
3 Pursuant to Article 168a of the Treaty and Article 51 of the Statute of the Court of Justice an appeal may be based only on pleas in law relating to an infringement of rules of law, to the exclusion of any issue challenging the facts as established by the Court of First Instance, and must, in accordance with Article 112(1)(c) of the Rules of Procedure of the Court of Justice, specify the pleas in law and the legal arguments relied upon in support of it. It follows from those provisions that an appeal must indicate precisely which elements of the contested judgment it challenges, and also the legal arguments which specifically support the appeal.
4 There is no inadequate or contradictory reasoning where a judgment of the Court of First Instance finds (i) that the application of the scheme provided for in Article 24 of Annex X to the Staff Regulations (which establishes a supplementary insurance scheme for officials posted outside the Community, their spouses, their children and other persons dependent on them to cover the difference between costs actually incurred and sickness benefits available under Article 72) is justified in the light of the principle of sound management when the costs incurred in a non-member country are no higher than they would be in the Community or when the costs have been incurred during a temporary stay in the Community, and (ii) that Article 24 is otiose unless and in so far as the specific disadvantages which led to its adoption exist.
The legislature made a legitimate choice in opting for a scheme not unduly complex and therefore easily manageable, on the ground that it would have been disproportionate to seek to establish for each country the actual costs of medical services or the level of health risks in view of the work that would require, the small number of countries in which the costs or health risks are no greater than in the Community, the few officials serving in those countries and the difficulty of comparing medical practice from one country to another.
Conversely, where the absence of the specific disadvantages connected with a posting outside the Community is the rule rather than the exception, that is to say, where residence in the Community is permanent, there is no reason to apply Article 24 of Annex X.

Citations:

C-153/96, [1997] EUECJ C-153/96P

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 03 June 2022; Ref: scu.161856

In re Joseph Suche and Co Ltd: CA 1875

There is a a presumption, that legislation does not apply to actions which are pending at the time when it comes into force unless the language of the legislation compels the conclusion that Parliament intended that it should. It is ‘a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them.’

Judges:

Sir George Jessel MR

Citations:

(1875) 1 Ch D 48

Jurisdiction:

England and Wales

Cited by:

Modified – Zainal bin Hashim v Government of Malaysia PC 1980
A statute should not be given a construction that would impair existing rights personal or in property unless the language in which it is couched requires such a construction. The court considered the presumption that vested rights are not affected . .
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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 03 June 2022; Ref: scu.184440

An Taisce and WWF UK v Commission of the European Communities.: ECJ 11 Jul 1996

ECJ (Order) 1. The purpose of the procedure in respect of failure to fulfil obligations provided for by Article 169 of the Treaty is to have the Court declare a Member State to be in breach of Community law and require its conduct to be brought to an end, whereas the procedure provided for by Article 24 of Regulation No 4253/88 on coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments is intended to allow the Commission to suspend or reduce Community financial aid in the event of any irregularity on the part of the Member State concerned, in particular where, without seeking approval, the Member State makes a significant change to the nature of, or conditions for, implementation of the action or measure.
Consequently, neither commencement of Article 169 proceedings for failure to fulfil obligations nor even a declaration by the Court of Justice that there has been such a failure can automatically entail suspension or reduction of Community financial assistance. For that, it is necessary that the Commission should adopt a decision which, it is true, must take account of the proceedings commenced under Article 169 of the Treaty or of the declaring by the Court of Justice that there has been a failure to fulfil obligations.
Unlike the institution of proceedings under Article 169 of the Treaty, a decision suspending or reducing Community financing constitutes a measure adversely affecting the party to whom it is addressed and may be the subject of an action before the Community courts.
A decision adopted under Article 24 of Regulation No 4253/88 is therefore distinct from institution of Article 169 proceedings or from a decision not to pursue such proceedings. Those two procedures are independent of each other, serve different aims and are subject to different rules.
The decision by the Commission not to institute proceedings under Article 169 of the Treaty cannot therefore implicitly entail the taking of a separate decision based on Article 24 of that regulation.
2. Under Article 168a of the EC Treaty, an appeal is confined to points of law, a limitation which is further embodied in the first paragraph of Article 51 of the EC Statute of the Court of Justice. An appeal may thus rely only on grounds relating to infringement of rules of law, to the exclusion of any appraisal of facts, and is therefore admissible only in so far as the decision of the Court of First Instance is claimed to be incompatible with rules of law the observance of which it had to ensure, although this incompatibility may result from a mistaken assessment of the facts.

Citations:

C-325/94, [1996] EUECJ C-325/94P

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 03 June 2022; Ref: scu.161478

Parliament v Council: ECJ 5 Jul 1995

ECJ 1. Due consultation of the Parliament in the cases provided for by the Treaty constitutes an essential formal requirement breach of which renders the measure concerned void. The effective participation of the Parliament in the legislative process of the Community, in accordance with the procedures laid down by the Treaty, represents an essential factor in the institutional balance intended by the Treaty. Such power reflects the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative assembly.
The duty to consult the European Parliament in the course of the legislative procedure, in the cases provided for by the Treaty, implies the requirement that the Parliament should be reconsulted whenever the text finally adopted, viewed as a whole, departs substantially from the text on which the Parliament has already been consulted, except where the amendments essentially correspond to the wish of the Parliament itself.
It is not possible for the institution adopting the final text to evade that duty on the ground that it was sufficiently well informed as to the opinion of the Parliament on the essential points at issue, since that would result in seriously undermining the effective participation of the Parliament in the legislative processes of the Community which is essential to the maintenance of the institutional balance intended by the Treaty, and would amount to disregarding the influence that due consultation of the Parliament can have on adoption of the measure in question.
2. It is apparent from a comparison between the Commission’ s initial proposal for a directive and the content of Directive 93/89, as adopted by the Council, that as regards the objective of introducing a harmonized system of road charging to include vehicle taxes, excise duty on fuel and charges for the use of certain types of road infrastructure, taking infrastructure and external costs into account, a text requiring the Commission to submit a report and proposals for achieving that objective in order that the Council should adopt a harmonized system by 31 December 1998 at the latest has been replaced by another text under which not only is the Council no longer obliged to adopt a harmonized system within the prescribed period, but also the Commission is no longer required to submit in its report proposals for establishing cost-charging arrangements based on the principle of territoriality.
Those are substantial amendments. Since they do not correspond to any wish expressed by Parliament and do affect the scheme of the proposal as a whole, since the legislative procedure is governed by Articles 75 and 99 of the Treaty, the Parliament must be reconsulted. The fact that it was not reconsulted constitutes an infringement of essential procedural requirements as a result of which Directive 93/89 must be annulled.
3. The need to ensure that annulment, for infringement of the obligation properly to consult Parliament, of Directive 93/89 concerning taxes on certain vehicles used for the carriage of goods by road and road charges for the use of certian infrastructures does not lead to discontinuity in the programme for the harmonization of transport taxation and also important considerations of legal certainty, comparable with those arising where certain regulations are annulled, justify the Court in exercising the power expressly conferred on it by the second paragraph of Article 174 of the EC Treaty when it annuls a regulation and in ruling that all the effects of the annulled directive should be preserved provisionally until the Council has adopted a new directive.
Although the Court does not have jurisdiction, in the context of its review of the legality of an act under Article 173 of the Treaty, to issue an order to the Council imposing a time-limit within which the latter must adopt new rules on the matter, the Council is none the less under a duty to put an end within a reasonable period to the infringement it has committed.

Judges:

G.C. Rodriguez Iglesias, P

Citations:

C-21/94, [1995] EUECJ C-21/94

Links:

Bailii

European, Constitutional

Updated: 03 June 2022; Ref: scu.161274

Ramawat Dosoruth v The State of Mauritius The Director of Public Prosecutions: PC 21 Oct 2004

PC (Mauritius) The defendant challenged his conviction for having taken a bribe saying there had been an injustice, and seeking protection directly under the constitution. The evidence against him was that a transaction had been carried out at a bank on a certain day. Only after the trial was it realised that that day was a Saturday, and that it could not have happened. He had not been allowed to raise this point on appeal.
Held: The court had been correct to take judicial note of a bank not being open on a Saturday afteroon. Whilst the court might be more ready to apply a broader test for admission of new evidence on an appeal, not all such evidence should be admitted. The powers of the appellate court in Mauritius were not limited to the provision of a re-hearing, but could include other actions as provided by the constitution. The petition was dismissed.

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood, Sir Andrew Leggatt

Citations:

[2004] UKPC 51

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Stafford CACD 1968
The court considered the admission of evidence which had become available only after the trial.
Held: ‘public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time would . .
Cited – Mills v HM Advocate and Another PC 22-Jul-2002
(The High Court of Justiciary) The defendant appealed on the basis that the delay in the sentencing process had resulted in an infringement of his human rights.
Held: The appeal itself had been without merit. The delay had been to such an . .
Cited – Regina v Beresford CACD 1971
When asked whether the appellate courts in England and Wales should entertain additional evidence under the section, which required the court to be satisfied that there was a reasonable explanation for the failure to adduce it: ‘The court has in . .
Cited – Darmalingum v The State PC 10-Jul-2000
(Mauritius) The constitutional right of a defendant to have his case tried within a reasonable time applied not just to the initial trial but also to any appeal arising from that trial. Where there had been inordinate and inexcusable delay between . .
Cited – Church v H M Advocate HCJ 1995
The court should in general take a broad, rather than a narrow, approach to the admission of new evidence on appeal. . .
Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 02 June 2022; Ref: scu.218715

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 1 Eliz. 2, c. 10), j. 170.
The House was invited to depart from its own precedent set eleven years before. Lord Wilberforce said: ‘There is therefore nothing left to the appellant but to contend – as he frankly does – that the 1965 decision is wrong. This contention means, when interpreted, that three or more of your Lordships ought to take the view which appealed then to the minority.
My Lords, in my firm opinion, the Practice Statement of 1966 was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view, which its predecessors rejected. True that the earlier decision was by majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate, two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it.’

Judges:

Lord Wilberforce, Lord Salmon and Lord Keith

Citations:

[1977] 1 WLR 1345, [1977] UKHL TC – 51 – 708, [1977] 3 All ER 996, [1977] STC 397, [1977] TR 217, 51 TC 708

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 by:

Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Applied – McDonnell v Congregation of Christian Brothers Trustees (Formerly Irish Christian Brothers) and others HL 4-Dec-2003
In 2000, the claimant sought damages for sexual abuse from before 1951. The issue was as to whether the limitation law which applied was that as at the date of the incidents, or that which applied as at the date when he would be deemed uner the . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Gibson v United States of America PC 23-Jul-2007
(The Bahamas) The US government sought the extradition of the appellant from the Bahamas on drugs charges. The warrants were found to be void, and the defendant released unconditionally, when the nmagistrate rejected evidence from an admitted . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – 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. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Income Tax

Updated: 02 June 2022; Ref: scu.186956

Criminal proceedings against Vanacker and Lesage: ECJ 12 Oct 1993

(Judgment) 1. Under the system of judicial cooperation established by Article 177 of the Treaty, the interpretation of national rules is a matter for the national courts and not for the Court of Justice, even though it has been consistently held that where national rules have been adopted in order to implement a Community directive, those courts are required to interpret their national law in the light of the wording and the purpose of the directive.
2. Directive 75/439 on the disposal of waste oils precludes national legislation establishing a system of collection and disposal of waste oils for the benefit of undertakings to which the administrative authorities grant approval for exclusive zones, and which in fact allows such approval to be granted only to national undertakings.

Citations:

1993] ECR I-4947, C-37/92, [1993] EUECJ C-37/92

Links:

Bailii

Jurisdiction:

European

Constitutional, European

Updated: 01 June 2022; Ref: scu.160868

Commission v Council: ECJ 11 Jun 1991

ECJ 1. In the context of the organization of the powers of the Community the choice of the legal basis for a measure may not depend simply on an institution’s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review. Those factors include in particular the aim and content of the measure. 2. Where an institution’ s power is based on two provisions of the Treaty, it is bound to adopt the relevant measures on the basis of the two relevant provisions. However, where, as in the case of Article 100a of the Treaty, one of the enabling provisions requires recourse to the cooperation procedure provided for in Article 149(2) of the Treaty, on conclusion of which the Council may act by a qualified majority provided that it intends accepting the amendments proposed by the Parliament and put forward by the Commission, and the other provision, as in the case of Article 130s, requires the Council to act unanimously after merely consulting the European Parliament, use of both of them as a joint legal basis would divest the cooperation procedure of its very substance, the purpose of that procedure being to increase the involvement of the European Parliament in the legislative process of the Community. That participation reflects a fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. It follows that in such a case recourse to a dual legal basis is excluded and that it is necessary to determine which of those two provisions is the appropriate legal basis.
Europa 3 In view of the fact that, in the first place, it is apparent from the very terms of Article 130r(2) of the Treaty that a Community measure cannot be covered by Article 130s merely because it pursues, among others, objectives of environmental protection, secondly, that action intended to approximate, in a given industrial sector, national rules concerning production conditions which were adopted for reasons relating to environmental protection but are liable to lead to distortions of competition, falls within the scope of Article 100a, since it is conducive to the attainment of the internal market, and, finally, that the objectives of environmental protection referred to in Article 130r may be effectively pursued by means of harmonizing measures adopted on the basis of Article 100a, the Council should have used Article 100a as the legal basis for Directive 89/428/EEC on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry. Since the Council wrongly based the directive on Article 130s, the directive must be annulled.

Citations:

C-300/89, [1991] EUECJ C-300/89, [1991] ECR I-2867

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Commission v Council (Police And Judicial Cooperation In Criminal Matters) ECJ 13-Sep-2005
The Commission sought anullment of Council Framework Decision 2003/80/JHA on the protection of the environment through criminal law. The framework decision laid down a number of environmental offences, in respect of which the Member States are . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 June 2022; Ref: scu.160347

Panton and Panton v The Minister of Finance and the Attorney General: PC 12 Jul 2001

(Jamaica) The appellants were shareholders in failed financial institutions. Arrangements were made which compensated creditors and depositors, through the contribution of funds by the government, but shareholders were not compensated. The Attorney General in the case had served in the government which made the arrangements, and they said he should have disqualified himself.
Held: There was no evidence of his being involved in the promotion of the bill being challenged, and that claim failed. They argued also that the bill had taken their property in contravention of the constitution. The arrangements made were temporary, and were regulatory rather than a confiscatory nature, and the appellants were not entitled to compensation.

Citations:

[2001] UKPC 33

Links:

Bailii, PC, PC

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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Natural Justice, Commonwealth

Updated: 01 June 2022; Ref: scu.159473

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, but the rules of that organisation had not been incorporated into its law. The planned execution of prisoners before obtaining a result from an application to the OAS for decision on whether there had been a breach of the prisoner’s human rights was not unlawful.
An international treaty could only be incorporated by statute, and a national court could not rule on what was an issue for that international organisation. The fact that treaties are not part of domestic law is the ‘corollary’ of the Crown’s treaty-making power.
PC The Bahamas (Appeal No.45 of 1999). The appellants had been convicted of murder, and had exhausted all normal avenues of appeal. They had petitioned the Inter-American Commission on Human Rights, and awaited a decision. They sought to appeal pending the result of the petition, and claimed that the prolonged delay in carrying out the death penalty contravened Art 17(1) of the constitution.
Held: The OAS is an international Treaty, and accession to it is an act of the Crown, but does not become part of domestic Bahamian law without enactment by the legislature. This case fell within Fisher (No 2). No legitimate expectation had been created that the execution would await the result of the OAS petitions. The Bahamian constitution did not have a due process clause to bring the case within Thomas v Baptiste. Pre-trial delay can seldom be regarded as an additional form of punishment to make the delay a cruel and unusual punishment, and nor could the prison conditions of themselves add to such a claim. It is a question of fact and degree. Appeals dismissed (Lord Steyn and Lord Cooke dissenting)

Judges:

Lord Steyn, Lord Hoffmann, Lord Cooke of Thorndon, Lord Hobhouse of Woodborough, Mr. Justice Henry

Citations:

Times 23-Dec-1999, [1999] UKPC 55, [2000] 2 AC 228, [1999] 1 WLR 1679

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others PC 16-Dec-1997
(The Bahamas) The extent of a delay before a trial is not relevant when considering whether a subsequent delay in carrying out an execution is cruel and inhuman punishment . .
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 – The Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
Cited – Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others (No 2) PC 5-Oct-1998
PC (The Bahamas) The applicant had been convicted of murder and sentenced to death. His case was pending before the Inter-American Commission on Human Rights. He appealed a second time to the board, saying the . .
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 by:

Cited – Napier, Re Petition for Judicial Review; Higgs v The Scottish Ministers OHCS 26-Apr-2004
The petitioner complained of the conditions in the Barlinnie Prison in Glasgow.
Held: The conditions in the prison infringed the petitioner’s human rights against inhuman or degrading treatment and respect for privacy, and he was entitled to . .
Cited – Gianchand Jahree v The State PC 28-Feb-2005
(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation . .
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.

International, Criminal Sentencing, Constitutional

Updated: 01 June 2022; Ref: scu.159387

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 speak out.
Held: The demonstration did contravene the restriction on publishing his views. Analogies with private employment were not useful. They were both servants of the State, and the Minister a politician necessarily and properly exposed to public opinion. The general proposition that civil servants hold a unique status in a democratic society does not necessarily justify a substantial invasion of their basic rights and freedoms. A blanket prohibition against all public discussion of all public issues by all public servants would deny fundamental democratic rights to far too many people.
The interdiction, and the intended disciplinary proceedings contravened the appellant’s constitutional rights. In determining whether a limitation (by an act, rule or decision) is proportionate arbitrary or excessive the court should ask itself: ‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’

Judges:

Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Clyde

Citations:

[1998] UKPC 30, [1999] 1 AC 69, Appeal No 42 of 1997, [1998] 3 WLR 675, 4 BHRC 563

Links:

Bailii

Citing:

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 – 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 . .
Cited – Vogt v Germany ECHR 1-Nov-1995
The German courts construed a teacher’s duty of loyalty as absolute and owed equally by every civil servant, regardless of his or her function and rank under national law. Every civil servant, whatever his or her own opinion on the matter, must . .
Cited – Regina v Oakes 28-Feb-1986
Supreme Court of Canada – Constitutional law — Charter of Rights — Presumption of innocence (s. 11(d)) — Reverse onus clause — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — . .

Cited by:

Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – George Worme Grenada Today Limited v The Commissioner of Police PC 29-Jan-2004
PC (Grenada) The defendant was editor of a newspaper which carried a story severely defamatory of the prime minister. He was convicted of criminal libel, and appealed.
Held: The appeal was dismissed. The . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Attorney General v Scotcher HL 19-May-2005
Following a trial, a juror wrote to the defendant’s mother to say that other jury members had not considered the case in a proper manner. He had been given written advice that he was not free to discuss a case with anyone. He appealed his conviction . .
Cited – Forbes v Secretary of State for the Home Department QBD 26-Jul-2005
The defendant argued that the 2003 Act was in breach of his article 8 rights. He had been registered as a sex offender, but the offence for which he had been convicted involved no proof of intention.
Held: The claimant having brought the . .
Cited – Bradley v The Jockey Club CA 12-Jul-2005
The Jockey had been disqualified from riding for five years for breaches of the club’s rules. He said the punishment was disproportionate in effectively preventing him working for a living.
Held: The appeal failed, and the judge’s analysis was . .
Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Suryananda, Regina (on the Application of) v The Welsh Ministers Admn 16-Jul-2007
The claimants, trustees of a Hindu temple, sought judicial review of a decision that a bullock in their temple should be slaughtered having positively reacted to a test for bovine tuberculosis bacterium. They said that the animal posed no threat . .
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 – F and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .
Cited – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Cited – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Akerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Employment

Updated: 01 June 2022; Ref: scu.159311

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 should be uniformly treated unless there is some valid reason to treat them differently . . The reasons for not treating people uniformly often involve . . questions of social policy’ and ‘treating like cases alike, and unlike cases differently is a general axiom of rational behaviour.’ and ‘Is it of the essence of democracy that there should be a general justiciable principle of equality? . . Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational.’

Judges:

Lord Hoffmann

Citations:

[1998] UKPC 9, [1999] 1 AC 98, [1998] 3 WLR 18

Links:

Bailii

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 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 – 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 – X, Regina (on the Application of) v Y School Admn 21-Feb-2007
The court was asked whether a school was entitled to refuse to allow a Muslim girl to wear the niqab full face veil at school. The reasons were ‘first educational factors resulting from a teacher being unable to see the face of the girl with a . .
Cited – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Cited – AC v Berkshire West Primary Care Trust, Equality and Human Rights Commissions intervening Admn 25-May-2010
The claimant, a male to female transsexual, challenged a decision by the respondent to refuse breast augmentation treatment. The Trust had a policy ‘GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not . .
Cited – Rotherham Metropolitan Borough Council and Others, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 25-Feb-2015
Appeal about the distribution of European Structural Funds among the regions of the United Kingdom. It arises out of the complaint of a number of local authorities in Merseyside and South Yorkshire about the way in which it is proposed to distribute . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Discrimination

Updated: 01 June 2022; Ref: scu.159291

Alleyne-Forte v The Attorney General of Trinidad and Tobago and others: PC 20 Oct 1997

(Trinidad and Tobago) The appellant had parked his car away from the kerb, and it had been towed away under the regulations. He challenged the validity of the regulations, which charged a high fee for storage and restoration, claiming that this dedprived him of his right to a fair hearing.
Held: The removal of a car parked illegally, and the temporary loss of use of the car, cannot be regarded as a constitutional infringement. Nor can the obligation to pay a reasonable, statutorily-prescribed sum by way of removal and custody charges. The board complained that such a matter might be allowed to get this far.

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Hutton

Citations:

[1997] UKPC 49

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Harrikissoon v Attorney-General of Trinidad and Tobago PC 1980
(Trinidad and Tobago) The appellant teacher alleged that he had been transferred from one school to another without proper notice and as punishment. The appellant instead of following a laid out procedure which would have eventually led to a . .
Cited – Frater v The Queen (Note) PC 1981
(Trinidad and Tobago) Similar vigilance should be observed as has been requested in Harrikissoon to see that claims made by appellants to be entitled to appeal as of right under section 110(1)(c) are not granted unless they do involve a genuinely . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Updated: 01 June 2022; Ref: scu.159261

De Morgan and Another v Director-General of Social Welfare: PC 7 Oct 1997

The right of appeal to the Privy Council can be removed or limited by the use of words which fell short of an express limitation, but which still showed the necessary intention. Lord Browne-Wilkinson said that the power is ‘at best, a power which is in substance statutory, being regulated by the Judicial Committee Acts, with a vestigial and purely formal residue of the old prerogative powers’.
(New Zealand)

Judges:

Lord Browne-Wilkinson

Citations:

Times 04-Nov-1997, [1997] UKPC 46, [1998] AC 275

Links:

Bailii

Cited by:

Cited – The Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
Cited – David Grant v Director of Correctional Services and Another; The Director of Public Prosecutions PC 14-Jun-2004
(Jamaica) The defendant had pleaded guilty to drugs offences in the US, and had fled to Jamaica. He appealed against a refusal of Habeas Corpus having been arrested and held for extradition. The Board considered its jurisdiction to hear such an . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 June 2022; Ref: scu.159256

Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others: PC 30 Jul 1946

(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity appeared to be subsequently accepted. The committee could not reverse a finding of fact save in the case of a manifest blunder by the lower court, or where there were concurrent and contradictory findings of separate lower courts, or in exceptional cases. The court should be careful to respect the traditions and systems of the countries from which appeal was made. The appellant had been in possession of the estate for many years. However in Hindu law, her possession could not be adverse to that of her husband even though he might be presumed to be dead.
Held: The Board will only in exceptional circumstances review evidence for a third time. Exceptional circumstances might include a miscarriage of justice or violation of a principle of law or procedure: ‘That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.’

Judges:

Lord Thankerton, Lord du Parcq, Sir Madhavan Nair

Citations:

[1946] AC 508, [1946] UKPC 1

Links:

Bailii, PC

Citing:

Cited – Mudhoo Soodun Sundial v Suroop Chunder Sirkar Chowdry PC 1849
‘Both the Courts below have decided against the validity of the instrument; a fact which, considering the advantages the Judges in India generally possess, of forming a correct opinion of the probability of the transaction, and in some cases of the . .
Cited – Naragunty Lutchmeedavamah v Vengama Naidoo PC 1861
The Board restated its power to reconsider all points including the facts of an appeal brought before it. . .
Cited – Tareeny Churn Bonnerjee v Maitland 1867
When hearing a cae, the Board may itself reconsider the whole case including the evidence. . .

Cited by:

Cited – Mak v Wocom Commodities Limited PC 11-Nov-1996
(Hong Kong) The appellant had placed foreign exchange transactions with the respondents. He claimed that they were acting as his agents, and claimed that they had made undisclosed profits. They claimed to have been acting as principals. He now . .
Cited – Gilrose Finance Limited v Ellis Gould PC 23-Mar-2000
PC (New Zealand) An investor had agreed to invest in a tour by a sports star. The tour failed, and the propmeter turned out to have criminal convictions for dishonesty. He had asked his solicitor to look into the . .
Cited – Lewis v Henry St Hillaire and others PC 22-May-1996
(Saint Vincent and The Grenadines) A writ was issued, but little progress was made. The respondent applied for a declaration that the action had been abandoned and was incapable of being revived.
Held: The provision was one local to the home . .
Cited – Kwasi Bekoe v Horace Broomes PC 31-Oct-2005
PC (Trinidad and Tobago) The appellant defendant was an attorney-at-law, and the respondent a senior magistrate who was said to have accused the claimant of having given a bribe. The appellant challenged the . .
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, Wills and Probate, Limitation, Commonwealth

Updated: 31 May 2022; Ref: scu.159146

Douglas and others v The Right Honourable Sir Lynden Oscar Pindling: PC 13 May 1996

(Bahamas) A commission investigating the activities of a company, sought disclosure of its bankers records. The committee held that this was not a constitutional issue, and that leave to appeal as of right did not exist, but special leave was possible and appropriate. The Act gave wider powers to order inspection than only for special cause. Such a commission was inquisitorial and rules applicable in adversarial proceedings need not apply.

Judges:

Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson, Lord Nicholls of Birkenhead, Sir John May

Citations:

Gazette 30-May-1996, [1996] UKPC 8, [1996] AC 890

Links:

Bailii

Statutes:

Bankers Books Evidence Act (Bahamas)

Citing:

Considered – Polock v Garle 1898
Lord Lindley MR said: ‘The Bankers’ Books Evidence Acts were passed for the obvious purpose of getting over a difficulty and hardship as to the production of bankers’ books. If such books contained anything which would be evidence for either of the . .
Considered – Ross v Costigan 1982
(Australia) ‘In determining what is relevant to a Royal Commission inquiry, regard must be had to its investigatory character. Where broad terms of reference are given to it, as in this case, the commission is not determining issues between parties . .

Cited by:

Cited – Mount Murray Country Club Ltd and others v Commission of Inquiry Into Mount Murray and Another (1) PC 7-Jul-2003
(Isle of Man) The company appealed an order requiring disclosure of their tax documents to an enquiry. The enquiry into possible corruption had been ordered by the Tynwald.
Held: The provisions of the Act protecting tax documents from . .
Lists of cited by and citing cases may be incomplete.

Banking, Constitutional, Commonwealth

Updated: 31 May 2022; Ref: scu.159164

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 1994. He complained that the delay was an abuse, and his appeal succeeded. The prosecutor now appealed.
Held: Lord Keith of Kinkel said: ‘this Constitution, unlike some of those in other Caribbean countries and elsewhere, particularly the United States of America and Canada, does not include in the catalogue of fundamental rights and freedoms the right to a speedy trial or trial within a reasonable time.’
The provisions of the Constitution of Trinidad and Tobago do not confer on individuals the right to a trial within a reasonable time. The delay was not unjustifiable, the chances of prejudice were small; the trial process would have provided ample protection for the accused; there was no danger of the trial being unfair; finally, the case was not in any sense exceptional so as to justify a stay.

Judges:

Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead

Citations:

[1996] AC 856, Appeal No 53 of 1995, [1996] UKPC 2, [1996] UKPC 19

Links:

Bailii, Bailii

Citing:

Cited – Attorney General’s Reference (No 1 of 1990) CACD 1990
A police officer attended an incident where two people were arrested. Complaints about his conduct were made of which he was given notice. A formal investigation was instituted and adjourned pending the outcome of criminal proceedings against those . .
Cited – Connelly v Director of Public Prosecutions HL 1964
Plea of Autrefois Acquit is Narrow in Scope
The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
Held: The majority identified a narrow . .
Cited – Regina v Telford Justices, ex parte Badhan CACD 1991
The defendant was accused of a sexual offence alleged to have been committed some 15 years earlier. He asked the magistrates to dismiss the charge as an abuse of process, and now appealed their refusal.
Held: The onus was on the accused to . .
Cited – Jago v District Court of New South Wales 12-Oct-1989
(High Court of Australia) If applications to stop criminal proceedings for abuse were commonly granted, they would be seen with suspicion. . .
Cited – Nankissoon Boodram v Attorney-General of Trinidad and Tobago PC 19-Feb-1996
The court considered the effect of prejudicial reporting on a trial: ‘In a case such as this, the publications either will or will not prove to have been so harmful that when the time for the trial arrives the techniques available to the trial judge . .
Cited – 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 . .
Cited – Vincent v The Queen; Franklyn v the Queen PC 30-Jun-1993
Jamaica- prosecution must provide copies of statements to defence. The provisions of section 20(1) and (6) of the Jamaican Constitution ‘do no more than codify in writing the requirements of the common law which ensure that an accused person . .
Cited – Attorney-General of Hong Kong v Cheung (Wai-Bun) PC 1994
(Hong Kong) The defendant was indicted on charges of conspiracy to defraud and false accounting, the allegation being that the false accounting offences had been committed in order to conceal the conspiracy. The Crown sought to rely on the cover-up . .
Cited – Sookermany v Director of Public Prosecutions 1-May-1996
The Court of Appeal of Trinidad and Tobago dismissed an appeal against refusal of constitutional relief claimed on the ground of undue delay:- ‘As there are admittedly measures available to a trial judge to negative the prejudicial effect on the . .

Cited by:

Cited – Boodhoo, Jagram, (suing on behalf of themselves and the Sanatan Dharma Sudhar Sadha) v The Attorney General of Trinidad and Tobago PC 1-Apr-2004
PC (Trinidad and Tobago) The complainant said that his constitutional rights had been infringed by the court’s delay. Proceedings had begun in 1987 for redress with regard to a land dispute. There was substantial . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth, Constitutional

Updated: 31 May 2022; Ref: scu.159174

Farrington v The Queen: PC 17 Jun 1996

(Bahamas) The applicant sought leave to appeal as a poor person. He had been convicted of murder and sentenced to death. He had sought to argue that the delay in his execution had contravened his right not to be subjected to unusual and cruel punishment as established in Pratt. His application for a stay pending the decision on this constitutional question was dismissed, but a stay pending the appeal was allowed.
Held: The decision to reject a stay of execution without making a formal dismissal grounded an appeal, and leave was given, but ‘On the other hand, for the avoidance of doubt their Lordships make clear that even in a case where an appeal lies as of right their Lordships consider that it would be inappropriate to grant special leave to appeal as a poor person where it is plain beyond rational argument that the appeal is doomed to fail.’

Judges:

Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Steyn

Citations:

Times 16-Jul-1996, [1996] UKPC 20

Links:

Bailii

Citing:

Cited – Pratt and Morgan v The Attorney General for Jamaica and Another PC 2-Nov-1993
(Jamaica) A five year delay in execution is excessive, and can itself amount to inhuman or degrading punishment. ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth, Constitutional

Updated: 31 May 2022; Ref: scu.159178

Regina v Secretary of State for Health and Others, ex parte Imperial Tobacco Limited and others: HL 7 Dec 2000

Where a party sought an injunction to prevent a government from implementing a European Union directive, pending a decision from the European Court, on whether domestic or community law was to be applied, the domestic court must refer the matter to the European Court of Justice. This was necessary to achieve consistency throughout the Union, and even though such an order would interfere with the operation of the directive.

Judges:

Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Hoffmann Lord Clyde Lord Millett

Citations:

Times 20-Dec-2000, [2000] UKHL 60, [2001] 1 All ER 850, [2001] 1 WLR 127

Links:

House of Lords, Bailii

Statutes:

Directive 98/43/EC

Jurisdiction:

England and Wales

Citing:

Cited – Zuckerfabrik Suderdithmarschen and Zuckerfabrik Soest v Hauptzollamt Itzehoe and Hauptzollamt Paderborn ECJ 21-Feb-1991
. .
Lists of cited by and citing cases may be incomplete.

European, Constitutional, Media

Updated: 31 May 2022; Ref: scu.159094

Her Majesty’s Attorney General v Foley and Foley: CA 1 Mar 2000

A respondent to an application by the Attorney General for a vexatious litigant order asserted that the Attorney-General had not instructed the Treasury Solicitor to act in this case.
Held: The Attorney-General and Treasury solicitor in this case were as client and solicitor, and proper instruction should be presumed. If the respondent did bring evidence, which was absent in this case, of such a lack, then there would be a requirement to give an explanation. Without such evidence, no explanation should be required.

Citations:

Gazette 30-Mar-2000, Times 07-Mar-2000, [2000] EWCA Civ 62

Links:

Bailii

Jurisdiction:

England and Wales

Constitutional, Legal Professions

Updated: 31 May 2022; Ref: scu.147095

XH and AIT, Regina (on The Application of) v Secretary of State for The Home Department: Admn 28 Jul 2016

The claimants challenged the right of the respondent, purporting to us the royal prerogative, to withdraw their passports on being suspect of terrorist links.
Held: The claims were dismissed. The use of the Royal Preogative was long established, and ‘we are in no doubt that it is not to be implied that Parliament intended to abrogate the Royal Prerogative power in relation to terrorism related activities when it enacted the TPIM Act.’

Judges:

Hamblen LJ, Cranston J

Citations:

[2016] EWHC 1898 (Admin), [2016] WLR(D) 437

Links:

Bailii, WLRD

Statutes:

Terrorism Prevention and Investigation Measures Act 2011, Charter of Fundamental Rights of the European Union 41, Parliament and Council Directive EC/2004/38 27

Jurisdiction:

England and Wales

European, Human Rights, Constitutional

Updated: 30 May 2022; Ref: scu.567875

Chief Adjudication Officer and Another v Maguire: CA 23 Mar 1999

A claimant who had satisfied the conditions required to become eligible for special hardship allowance but who had yet made no claim, retained his right to the allowance after the Act under which the claim might be brought was repealed. ‘A mere hope or expectation of acquiring a right is insufficient. An entitlement, however, even if inchoate or contingent, suffices. The fact that further steps may still be necessary to prove that the entitlement existed before repeal, or to prove its true extent, does not preclude it being regarded as a right . . [W]hether or not there is an acquired right depends upon whether at the date of repeal the claimant has an entitlement (at least contingent) to money or other certain benefit receivable by him, provided only that he takes all appropriate steps by way of notices and/or claims thereafter.’

Judges:

Simon Brown LJ

Citations:

Times 29-Mar-1999, Gazette 26-May-1999, [1999] EWCA Civ 1060, [1999] 1 WLR 1778

Links:

Bailii

Statutes:

Interpretation Act 1978 16(1), Social Security Act 1975

Jurisdiction:

England and Wales

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 – Odelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
Lists of cited by and citing cases may be incomplete.

Benefits, Constitutional

Updated: 30 May 2022; Ref: scu.145975

Hamilton v Al Fayed: CA 24 Nov 1998

The defendant had made allegations of misconduct against the plaintiff as to his actions as an MP. The plaintiff now sought by this action, in effect, to overturn the results of the resultant parliamentary inquiry.

Judges:

Judge LJ, Sirc Christopher Knox

Citations:

[1998] EWCA Civ 1830

Jurisdiction:

England and Wales

Cited by:

See Also – Hamilton v Al Fayed CA 26-Mar-1999
A member of Parliament was able to proceed with an action for defamation in respect of matters of which he had been criticised by the appropriate committee in Parliament. The trial would not impeach Parliament though retrying the issues. Lord Woolf . .
Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 30 May 2022; Ref: scu.145309

James Earl of Lonsdale v Henry Littledale: PC 26 May 1794

A Peer of parliament, having pleaded in chief to a bill filed against him, in the Court of King’s Bench, cannot afterwards assign for error, that he ought to have been sued by original writ, and not by bill.
Quaere? Whether the Court of King’s Bench has jurisdiction to proceed against a peer of parliament by bill.

Citations:

[1794] EngR 2210, (1794) 5 Bro PC 520, (1794) 2 ER 836

Links:

Commonlii

Jurisdiction:

England and Wales

Constitutional

Updated: 30 May 2022; Ref: scu.371142

Regina v Ali, Regina v Rasool (Mauritius): PC 25 Mar 1992

The Mauritian Director of Public Prosecution’s combined duty prosecute and power to select the trial court with different penalties, infringed the constitutional need to maintain the separation of powers.

Citations:

Gazette 25-Mar-1992

Jurisdiction:

England and Wales

Constitutional, Criminal Practice

Updated: 29 May 2022; Ref: scu.88370

Bell v Secretary of State for Defence: CA 1986

The deceased was injured serving in the forces in Germany. His injury was worstened after negligent communications between army doctors. The defendant relied upon State Immunity to defend a claim, saying he had issued a certificate that he had died on active duty.
Held: The Secretary was entitled to issue the certificate of entitlement even though at the time no-one was entitled to receive an award, and the only effect was to achieve immunity from suit. However the action which caused the injury was the failure to communicate the deceased’s condition, which happened at the civilian hospital and not on Crown Land, and therefore the section did not give immunity.

Citations:

[1986] QB 322, [1985] 3 All ER 661

Statutes:

Crown Proceedings Act 1947 10(1)(a)(b)

Jurisdiction:

England and Wales

Citing:

Approved – Adams v War Office QBD 1955
The fact that the Secretary of State has issued a certificate under section 10(1)(b) is no guarantee that the person in respect of whose case it is issued will be awarded a pension. . .

Cited by:

Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Lists of cited by and citing cases may be incomplete.

Negligence, Constitutional, Armed Forces

Updated: 29 May 2022; Ref: scu.179733

Williamson v Archbishop of Canterbury Archbishop of York Church Commissioners: CA 5 Sep 1996

Parties sought to challenge the decision to allow ordination of women by the church.
Held: The merits of a religious controversy are a matter on which the court is not entitled to hold any opinion. The measures had been made under the procedure set up by the 1919 Act which gave power to the Synod to make them. That Act and the procedure followed and the Measures were not contrary to the Coronation Oath of the Queen.

Citations:

[1996] EWCA Civ 600

Statutes:

Church of England Assembly (Powers) Act 1919, Priest (Ordination of Women) Measure, The Ordination of Women (Financial Provisions) Measure

Jurisdiction:

England and Wales

Citing:

Appeal from – Williamson v Archbishop of Canterbury and Others ChD 25-Nov-1994
Church of England has the power to pay properly ordained women priests. Measures providing for ordination were valid – within Parliament’s power. . .

Cited by:

Appealed to – Williamson v Archbishop of Canterbury and Others ChD 25-Nov-1994
Church of England has the power to pay properly ordained women priests. Measures providing for ordination were valid – within Parliament’s power. . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Constitutional

Updated: 29 May 2022; Ref: scu.140467

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: The court had jurisdiction. An Order in Council banishing British citizens from their home island was unlawful. Any such abrogation of fundamental constitutional rights could only take place, if at all, either by primary legislation, or by subordinate legislation under primary legislation expressly framed to create this power. This was a ceded colony, and not a settled colony, and therefore the Act did not apply, and the British courts were left with jurisdiction. The court commended the defendant for having: ‘disclosed without cavil or argument all the material documents contained in the files of government departments, some of which (as will be obvious from the narrative I have given) are embarrassing and worse’ whuch ‘exemplified a high tradition of co-operation between the executive and the judiciary in the doing of justice; and upholding the rule of law.’

Judges:

Laws, Gibbs LJJ

Citations:

Times 10-Nov-2000, Gazette 07-Dec-2000, [2000] EWHC Admin 413, [2001] QB 1067

Links:

Bailii

Statutes:

British Settlement Act 1887, British Indian Ocean Territory Ordinance 1971 No 1 of 1971

Jurisdiction:

England and Wales

Citing:

Cited – Rex v Cowle 1759
The case establishes the English High Court’s jurisdiction to grant prerogative writs against the Crown’s servants whether in Great Britain or overseas provided the subject matter of the application arises in relation to the territory of the Crown. . .
Leave to bring review – Regina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
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.
Cited – 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 – Liyanage v The Queen PC 1967
(Ceylon) The appellants had been convicted of grave criminal offences under laws of the Parliament of Ceylon. The Act under which they were convicted was passed after an abortive coup, and deprived the appellants retrospectively of their right to . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .

Cited by:

See also – Regina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
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 – Chagos Islanders v Attorney-General and Another CA 22-Jul-2004
The claimants sought leave to appeal against a finding that they had no cause of action for their expulsion from their islands.
Held: ‘Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already . .
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 . .
See Also – 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 . .
At first instance – 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 . .
See Also – Secretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 25-Jul-2012
The claimant sought in advance permission to cross examine two civil servants at a forthcoming judicial review. Documents had been leaked and widely published suggesting that the decision now to be challenged had been taken for improper purposes. . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 21-Nov-2012
Reasons for decision allowing re-amendment of claim and requiring production of documents by a non-party. . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 29 May 2022; Ref: scu.140229

English Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others: Admn 15 Oct 2015

The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal Charter. The result would substantiallyy affect support for the game.
Held: The request for review was refused.
Dove J said: ‘I am entirely satisfied that it is permissible to have regard to parts of an Act which have been repealed in seeking to understand the will and purpose of Parliament in enacting a part of the Act which remains in force. At the time when an Act is passed it is meant to be read and understood as a whole. Thus reading the Act as a whole, and as passed, will properly assist in an understanding of the will of Parliament in enacting each individual part of it. Defining the intention of Parliament in respect of each individual ingredient of the legislation can and should be legitimately undertaken having regard to the meaning of each ingredient within the context of how the statute was enacted in its entirety. Whilst upon repeal of a part of the statute that part will cease to have substantive legal effect, there is in my view no reason in principle why it should not continue to be regarded as part of the context of the enactment of the statute as a whole and therefore a legitimate aid to construction.’
As to the 1937 Act: ‘bearing on the scope of the phrase ‘physical training and recreation’ it is perfectly clear that that phrase is focused upon physical activity and was intended to encompass physical recreation, rather than any other kind of recreation.’ and ‘physical training and recreation’ within s3(1)(a) is to be interpreted as meaning physical training and physical recreation. ‘ and ‘I am satisfied that the proper interpretation of the 1937 Act and the surrounding factual context of the 1996 Royal Charter are of far greater significance than any help which is to be derived from dictionary definitions of the individual words comprising the phrase in question. Read in context therefore, the word ‘sport’ as it appears in the 1996 Royal Charter phrase ‘sport and physical recreation’ connotes and requires an essential element of physical activity. In this connection the decision of the defendant to adopt the European Sport Charter definition of sport which requires an element of physical activity was entirely consistent with the proper understanding of their Royal Charter. Thus, whilst the word ‘sport’ may have other definitions in other contexts, the correct interpretation of the operative phrase in the 1996 Royal Charter incorporates in this instance an essential element of physical activity.’

Judges:

Dove J

Citations:

[2015] EWHC 2875 (Admin)

Links:

Bailii

Statutes:

Physical Training and Recreation Act 1937, Charities Act 2011 3(2)(d)

Jurisdiction:

England and Wales

Citing:

Cited – Surtees And Another, Assignees Of The Estate And Effects Of A Bankrupt, v Ellison 6-Jul-1829
Evidence of a trading which ceased before the 6 G. 4, c. 16, took effect, will not support a commission of bankrupt issued after that time. . .
Cited – In The Matter Of The Mexican And South American Company Grisewood And Smith’s Case De Pass’s Case 15-Jul-1859
A trading company was established in 1838, upon the terms contained in the prospectus, which placed its affairs under the management of individual directors, but contained no provision as to the transfers of shares. The certificates of shares . .
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 – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – The Project Management Institute, Regina (on The Application of) v The Minister for The Cabinet Office and Others Admn 17-Jul-2014
Mitting J set out the background to Royal Charters: ‘This is, I believe, the first time that the grant or refusal of a Royal Charter has been the subject of litigation. I propose, therefore, to begin by a brief analysis of the history and nature of . .
Cited – Yemshaw v London Borough of Hounslow SC 26-Jan-2011
The appellant sought housing after leaving her home to escape domestic violence. The violence was short of physical violence, and the authority had denied a duty to rehouse her. She said that the term ‘domestic violence’ in the Act was not intended . .
Lists of cited by and citing cases may be incomplete.

Administrative, Constitutional

Updated: 28 May 2022; Ref: scu.553493

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. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogaive involves any power to prescribe or alter the law administered in Courts of Common Law or Equity . . Those who are responsible for the national security must be the sole judge of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public.’

Judges:

Lord Parker of Waddington

Citations:

[1916] 2 AC 77

Jurisdiction:

England and Wales

Cited by:

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 – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
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.

Evidence, Constitutional

Updated: 28 May 2022; Ref: scu.238151

Campaign for Nuclear Disarmament (CND) v Prime Minister and others: Admn 17 Dec 2002

CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action in the event of non-compliance by Iraq with its terms. CND said that the purpose of its application was to ensure that the government did not in the future embark upon unlawful military action against Iraq through an erroneous understanding of the true legal position. CND invited the court to declare that the government would be acting in breach of international law were it to take military action against Iraq without a further resolution.
Held: The court refused the declaration. A court should not declare the meaning of an international instrument operating purely on the plane of international law. All the cases in which the court has pronounced on some issue of international law are cases where it has been necessary to do so in order to determine rights and obligations under domestic law.
Simon Brown LJ said that the court should not declare the meaning of an international instrument operating purely on the plane of international law. All the cases in which the court has pronounced on some issue of international law are cases where it has been necessary to do so in order to determine rights and obligations under domestic law. He gave a number of examples. Just as in Lyons the House of Lords had refused to take account of the state’s duty in international law since it did not properly sound in domestic law, so in CND the court refused to express a view upon the meaning and effect of UN resolution 1441. Simon Brown LJ: ‘What is sought here is a ruling on the interpretation of an international instrument, no more and no less. It is one thing, as in cases like Kebilene and Launder, for our courts to consider the application of an international treaty by reference to the facts of an individual case. (That, indeed, would have been the position in Lyons itself had the courts been prepared to undertake the exercise.) It is quite another thing to pronounce generally upon a treaty’s true interpretation and effect. There is no distinction between the position of the United Kingdom and that of all other States to whom Resolution 1441 applies. Why should the English courts presume to give an authoritative ruling on its meaning? Plainly such a ruling would not bind other States. How could our assumption of jurisdiction here be regarded around the world as anything other than an exorbitant arrogation of adjudicative power?’ There was no foothold in domestic law for any ruling to be given on international law, in which he included a ruling on the meaning and effect of resolution 1441.
Maurice Kay J noted that there were what Lord Phillips had described in Abbasi at as forbidden areas and concluded that the subject matter of CND’s application fell within them. The issue was non-justiciability. Consideration by the government of whether military action would be lawful under international law by reason of resolution 1441 as part of the exercise of the prerogative powers of the executive and non-justiciable.
Richards J rejected the application on discretionary grounds but also said that the claim was not justiciable because it would take the court into areas of foreign affairs and defence which were the exclusive responsibility of the executive government, a forbidden area. He rejected a submission that it was possible to isolate a purely judicial or legal issue as ‘a clinical point of law’. He set out detailed reasons for agreeing that the application must fail on the ground that it asked the national court to declare the meaning and effect of an instrument of international law, viz resolution 1441.

Judges:

Simon Brown LJ, Maurice Kay LJ, Richards J

Citations:

[2003] LRC 335, [2002] EWHC 2777 (Admin), 126 ILR 727

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .
See Also – Campaign for Nuclear Disarmament, Regina (on the Application of) v Secretary of State for Defence Admn 5-Dec-2002
. .

Cited by:

See Also – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and Others QBD 17-Dec-2002
The applicant sought an advisory order from the court to interpret the meaning of United Nations Security Council resolution no 1441 with regard to steps to be taken under the resolution in the event of the failure of Iraq to comply.
Held: A . .
Cited – Gentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
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. . .
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, International

Updated: 28 May 2022; Ref: scu.241520

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 not brought to court, and sought habeas corpus. An order was made for his deportation, of which he sought judicial review.
Held: As to the complaint about the lack of opportunity to make representations on the non renewal of his work permit, it was said that he had taken unpaid work as a pastor. He had not been given opportunity to make representations on that. Appeal allowed in part.
Lady Hale said: ‘The decision-maker has to balance the reason for the expulsion against the impact upon other family members, including any alternative means of preserving family ties. The reason for deporting may be comparatively weak, while the impact on the rest of the family, either of being left behind or of being forced to leave their own country, may be severe. On the other hand, the reason for deporting may be very strong, or it may be entirely reasonable to expect the other family members to leave with the person deported.’

Judges:

Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2004] 3 WLR 1430, [2005] 1 AC 538, [2004] UKPC 49

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Cited – McInnes v Onslow-Fane ChD 1978
The applicant had been granted a boxing manager’s licence for several years. He appealed its refusal now over a few years.
Held: The case was in the application for a licence rather than in a forfeiture or an expectation class, and there was . .
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 – Rees and Others v Crane PC 30-Mar-1994
(Trinidad and Tobago) A High Court judge complained that he had been unlawfully excluded from the roster of sittings for the following term.
Held: The procedure to suspend judge had to be followed closely. In this case there had been a breach . .
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – Wills v Bowley HL 1983
The section required a constable to ‘take into custody without warrant, and forthwith convey before a Justice, any person who in his view’ commits a range of offences.
Held: It was to be construed in such a way as not unduly to narrow the . .
Cited – Tre Traktorer Aktiebolag v Sweden ECHR 7-Jul-1989
An alcohol licence for a restaurant was withdrawn with immediate effect because of financial irregularities, with the result that the restaurant business collapsed.
Held: ‘The government argued that a licence to sell alcoholic beverages could . .
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 – Regina v Assistant Commissioner of Police of the Metropolis ex parte Howell 1986
After twelve years a London cab driver’s licence was not renewed on medical grounds.
Held: His challenge succeeded because he had been given no opportunity to make representations about the matters said to have concerned the decision-makers. . .
Cited – Regina v Hallstrom and another, ex parte W (No 2) 1986
A judicial review application by a mental patient, requires the permission of a High Court judge: ‘There is . . a canon of construction that Parliament is presumed not to enact legislation which interferes with the liberty of the subject without . .
Cited – Independent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions PC 8-Jun-2004
PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: ‘In deciding whether . .
Cited – Thakur Persad Jaroo v Attorney-General of Trinidad and Tobago PC 4-Feb-2002
(Trinidad and Tobago) The appellant sought a declaration that his constitutional rights had been infringed. He had bought a car. When told it may be stolen, he took it to the police station, but after he heard nothing and it was not returned. He . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 28 May 2022; Ref: scu.218713

The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and Others: QBD 17 Dec 2002

The applicant sought an advisory order from the court to interpret the meaning of United Nations Security Council resolution no 1441 with regard to steps to be taken under the resolution in the event of the failure of Iraq to comply.
Held: A review was granted, but the court then declined to allow itself jurisdiction to interpret an international resolution of this sort, when necessarily the issues at stake were not ones of British law. A domestic court sought to assert itself as to the application of English law within the jurisdiction, but not outside it. An attempt to do so would be likely also to damage public interest in the field of international law. An order was made limiting the costs to andpound;25,000. The court considered the principle ‘whereby the court has no jurisdiction to declare the true interpretation of an international instrument which has not been incorporated into English domestic law and which it is unnecessary to interpret for the purposes of determining a person’s rights and duties under domestic law’.

Judges:

Lord Justice Simon Brown, Mr Justice Maurice Kay, Mr Justice Richards

Citations:

Times 27-Dec-2002, [2002] EWHC 2759 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom,The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for Defence (2) Admn 5-Dec-2002
The claimants intended to seek a judicial review requesting an interpretation of a resolution of the United Nations Security Council. They sought first, an order pre-emptively to limit their liability for costs.
Held: To make such a protective . .
See Also – Campaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .

Cited by:

Cited – A B and others v Leeds Teaching Hospitals NHS Trust QBD 9-May-2003
The claimants were involved in a group litigation with regard to the removal of organs without consent from deceased children. The defendant sought an order capping the costs which might be claimed.
Held: In GLO cases the desirability of . .
Cited – Jones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
See Also – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom,The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for Defence (2) Admn 5-Dec-2002
The claimants intended to seek a judicial review requesting an interpretation of a resolution of the United Nations Security Council. They sought first, an order pre-emptively to limit their liability for costs.
Held: To make such a protective . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, International, Constitutional, Jurisdiction, Costs

Updated: 28 May 2022; Ref: scu.178526

Augusto Pinochet Ugarte and In the Matter of an Application for Leave To Move for Judicial Review Regina v Evans (Metropolitan Stipendiary Magistrate): Admn 28 Oct 1998

A provisional warrant had been issued by a magistrate for the arrest of the former president of Chile when visting London. The arrest had been in response to an extradition request from a judge in Spain and related to allegations of criminal acts by the appellant during his time as head of state against spanish nationals living in Chile.
Held: ‘Extradition is the formal name given to a process whereby one sovereign state, ‘the requesting state’, asks another sovereign state, ‘the requested state’, to return to the requesting state someone present in the requested state, ‘the subject of the request’, in order that the subject of the request may be brought to trial on criminal charges in the requesting state. ‘ A former head of state had immunity from arrest and extradition in respect of allegations of misconduct whilst head of state. One country had no jurisdiction over the head of state of another. An international court only might have such power.

Judges:

Lord Bingham of Cornhill LCJ, Collins J, Richards J

Citations:

Times 03-Nov-1998, [1998] EWHC Admin 1013, [1998] EWHC Admin 1022, [1998] EWHC Admin 1021

Links:

Bailii, Bailii, Bailii

Statutes:

European Convention on Extradition Order 1990 (1990/1507) Art 12, Extradition Act 1989 1(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v West London Metropolitan Stipendiary Magistrate, ex parte Klahn QBD 1979
The issue of a summons by a magistrate is a judicial act: ‘The duty of a magistrate in considering an application for the issue of a summons is to exercise a judicial discretion in deciding whether or not to issue a summons. It would appear that he . .
Cited – Regina v Madan CCA 1961
The defendant, a clerk on the staff of the High Commissioner for India, was entitled to diplomatic immunity. He purported to waive his immunity when charged with attempting to obtain a sum of money by false pretences. He was convicted at the County . .
Cited – Al-Adsani v Government of Kuwait and Others (No 2) CA 29-Mar-1996
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he . .

Cited by:

Appealed from – Regina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
Lists of cited by and citing cases may be incomplete.

Extradition, Constitutional, Prisons

Updated: 27 May 2022; Ref: scu.139134

Regina v Secretary of State for Social Services, ex parte Camden London Borough Council: CA 1987

A directory referred to in a statutory instrument setting a level of benefits had not itself been passed by Parliament.
Held: There was no legal flaw in a statutory instrument which fixed the amount of benefits by reference to a directory separately published by the Secretary of State. The directory had not been laid before Parliament with the draft instrument but was already in existence and able to be referred to.
Slade LJ referred with approval to Macpherson J’s observations in the court below about the technique of reference to outside documents in a statutory instrument. The judge said that, provided the reference was to an existing document and there was no question of sub-delegation, there was no objection to this practice in the eyes of the Joint Committee on Statutory Instruments and that there had been an increasing tendency to resort to this technique. The court’s task was to look to see whether the reference offended against the provisions of the enabling statute and was in truth simply part of the regulations by which the Secretary of State purported to exercise his powers. If that inquiry is negative, then all is well. Any control of the extended use of references which are permissible in their own statutory context was a matter for Parliament and its practices.

Judges:

Slade, Parker and Mustill LJJ

Citations:

[1987] 1 WLR 819

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Lists of cited by and citing cases may be incomplete.

Benefits, Constitutional

Updated: 26 May 2022; Ref: scu.417812

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 which would amount to an unwarranted interference in the affairs of an independent member of the British Commonwealth. In proceedings for declarations brought against the Attorney General of England the court has no jurisdiction to make declarations as to the validity of the constitution of an independent sovereign state, in this case Sierra Leone.
Harman LJ: ‘These courts cannot, in my view, make a declaration impugning the validity of the constitution of a foreign or independent state, at any rate where that is the object of the action. This may be put as a matter of international comity, or upon the ground of effectiveness. No relief effective in this country or anywhere else is sought by the action. Any declaration which the court might make may be ignored with impunity by the independent country into whose affairs it pretends to pry, and I am of opinion that it would be not only improper, but contrary to law in those circumstances to make such a declaration as is here sought’.
Diplock LJ: ‘As a member of the family of nations, the Government of the United Kingdom (of which this court forms part of the judicial branch) observes the rules of comity, videlicet, the accepted rules of mutual conduct as between state and state which each state adopts in relation to other states to adopt in relation to itself. One of those rules is that it does not purport to exercise jurisdiction over the internal affairs of any other independent state, or to apply measures of coercion to it or to its property, except in accordance with the rules of public international law. One of the commonest applications of this rule by the judicial branch of the United Kingdom Government is the well-known doctrine of sovereign immunity. A foreign state cannot be impleaded in the English courts without its consent: see Duff Development Co. v. Kelantan Government. As was made clear in Rahimtoola v. Nizam of Hyderabad, the application of the doctrine of sovereign immunity does not depend upon the persons between whom the issue is joined, but upon the subject-matter of the issue. For the English court to pronounce upon the validity of a law of a foreign sovereign state within its own territory so that the validity of that law became the res of the res judicata in the suit, would be to assert jurisdiction over the internal affairs of that state. That would be a breach of the rules of comity’ and ‘The only subject-matter of this appeal is an issue as to the validity of a law of a foreign independent sovereign state, in fact, the basic law containing its constitution. The validity of this law does not come in question incidentally in proceedings in which the High Court has undoubted jurisdiction, as, for instance, the validity of a foreign law might come in question incidentally in an action upon a contract to be performed abroad. The validity of the foreign law is what this appeal is about; it is about nothing else. This is the subject-matter over which the English courts, in my view, have no jurisdiction.’ and
Diplock LJ continued: ‘Mr. Gardner [for the plaintiffs] urges, however, that there was a moment of time when the Order in Council purported to be in force before Sierra Leone became an independent sovereign state, while the Government of the United Kingdom was still the sovereign government of the colony of Sierra Leone. He submits that, during that period, the English court would have had jurisdiction to declare the Order in Council to be ultra vires, and that it does not lose that jurisdiction merely because Sierra Leone has subsequently become a foreign sovereign state.
I should in any event reject this argument. In applying the rules of comity, one looks to the substance of the issue, not to its form. The Order in Council was, on the face of it, intended to provide the constitution not of the colony of Sierra Leone, but of the new independent foreign state. The issue as to the validity of the Order in Council was thus, in substance, at the date of the writ, an issue as to the validity of the constitution of an independent sovereign state. But there is, I think, a technical answer also. As soon as Sierra Leone became independent, the Order in Council ceased to have any effect as an Order in Council, that is, as an exercise of the sovereign power of the United Kingdom Government represented by the Attorney-General of England. Whatever effect it then had was as part of the law of a foreign sovereign state, into the validity of which this court has no jurisdiction to enquire.’

Judges:

Diplock LJ, Harman LJ

Citations:

[1965] 1 Ch 745, [1965] 1 All ER 882

Statutes:

Sierra Leone Independence Act 1961, British Settlements Act 1887

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .

Cited by:

Cited – 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: . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
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 – 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 . .
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 . .
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 . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (Conjoined Appeals 4 and 5) CA 10-Nov-2000
If a foreign made law was in breach of clearly established international law, then an English court should not recognise it. To do otherwise would be contrary to public policy. An interference with goods pursuant to such a law was actionable in . .
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: 26 May 2022; Ref: scu.222627

Regina v Lord Chancellor ex parte John Witham: Admn 7 Mar 1997

If subordinate legislation cannot be construed in a way that makes it compatible with fundamental rights, it will be declared ultra vires. Rules which disallowed exemptions from court fees to a litigant in person on income support were invalid. They infringed the rule allowing access to justice. The common law had given special weight to the citizen’s right of access to the courts, a constitutional right. Access to justice at an affordable price was not just another government service.
Although the right of access to the courts has been described as a constitutional right, ‘the cases do not explain what that means.’ and ‘In the unwritten legal order of the British state, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate. General words will not suffice. And any such rights will be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it.’

Judges:

Laws J

Citations:

Times 14-Mar-1997, [1997] EWHC Admin 237, [1998] QB 575

Links:

Bailii

Statutes:

Supreme Court Act 1981 130

Cited by:

Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Watkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
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 – A, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Constitutional

Updated: 25 May 2022; Ref: scu.137182

Regina v Secretary of State for Social Security ex parte Sutherland: Admn 7 Nov 1996

The Secretary of State has no power to issue regulations which would withhold benefits pending an appeal against their refusal. Laws J said: ‘where the executive has been allowed by the legislature to make law, it must abide strictly by the terms of its delegated authority.’

Judges:

Laws J

Citations:

Times 02-Jan-1997, [1996] EWHC Admin 208

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Lists of cited by and citing cases may be incomplete.

Benefits, Constitutional

Updated: 25 May 2022; Ref: scu.136756

Preiss v General Dental Council: PC 17 Jul 2001

(Professional Conduct Committee of the GDC) The procedures of the General Dental Council were in breach of the right to a fair trial, insofar as the same person might both carry out the preliminary stages of an investigation, and later be involved in the hearing of the complaint itself. In this case the chairman had also made the decision to present the complaint. The board of the Privy Council had the power to hear appeals against findings of misconduct, as well as suspensions, and could substitute a an admonition for a suspension. The existence of this power was necessary in order to correct the weaknesses in the current disciplinary system, and the power included where necessary the power to deal with issues of fact as well as law and discretion. Serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence.

Judges:

Bingham of Cornhill L, Cooke of Thorndon L, Millett L

Citations:

Times 14-Aug-2001, Gazette 31-Aug-2001, [2001] 1 WLR 1926, [2001] UKPC 36, No 63 of 2000

Links:

Bailii, PC, PC, PC

Statutes:

European Convention on Human Rights Art 6.1

Jurisdiction:

Commonwealth

Cited by:

Cited – Gupta v The General Medical Council PC 18-Dec-2001
(The Health Committee of the GMC) A doctor had been found guilty of serious professional misconduct by the Professional Conduct Committee of the General Medical Council. She appealed on the basis that they had not given reasons for the factual basis . .
Cited – Dr Thomas Amadeus Keiran Norton v The General Medical Council PC 11-Feb-2002
The appellant doctor had practised in plastic and related surgery, particularly liposuction. The complaints against him related to a failure to supervise his staff, wrongful delegation, and lack of care. His name had been erased from the register, . .
Cited – Darby v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The solicitor appealed findings of misconduct. He had acted for a builder who complained about breaches of confidentiality and a failure to provide written information on costs.
Held: The appeal was by way of a rehearing (Preiss), but should . .
Applied – Regina (on the Application of Jennifer Campbell) v The General Medical Council CA 11-Mar-2005
The Council complained that when assessing disciplinary charges against the doctor, they had taken into account when looking at his guilt, his professional reputation.
Held: A doctor’s reputation was relevant only when considering any . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights, Constitutional, Health Professions

Updated: 25 May 2022; Ref: scu.136179

Safeway Stores Plc v Albert Tate: CA 18 Dec 2000

The respondent, a neighbour of the claimant, had fallen into dispute with the claimant, and issued a leaflet and signs alleging fraud. The claimants obtained an injunction, and in the absence of a substantive defence, judgement. He claimed that the judgement had deprived him of his right to a jury trial because the case involved an allegation of fraud.
Held: The rule was ultra vires section 1(3) of the Act. It was not for a judge to pre-empt a possibly perverse jury finding. The right is a fundamental, not a procedural right, and was outside the power of the Rules Committee. The right is guaranteed by statute, and cannot be taken away by a delegated legislation. The rule which allowed summary judgment to be entered in all cases was a denial of that right. However the rule, as amended, allowed an exception in cases of some compelling reason. The right to jury trial in defamation case was such a compelling reason. The Act provided exceptions to the otherwise absolute right to elect for jury trial, and the list of exceptions in the act was complete and exclusive. There was no power in delegated legislation to repeal such a fundamental right given by primary legislation.

Judges:

Lord Justice Otton, Lord Justice Mantell And Sir Ronald Waterhouse

Citations:

Times 26-Jan-2001, Gazette 22-Feb-2001, [2000] EWCA Civ 335

Links:

Bailii

Statutes:

Civil Procedure Rules Part 24.2(b), Defamation Act 1981, Supreme Court Act 1981 1(3) 69

Jurisdiction:

England and Wales

Citing:

Cited – Broome v Agar CA 1928
The court discussed the differing responsibilities of the judge and jury in defamation cases: ‘It is not, however, open to the judge to say that the words do bear a defamatory meaning, that is for the jury, but the jury must have evidence upon which . .
Cited – Goldsmith v Pressdram Ltd CA 1988
The court considered whether to order a defamation trial to be before a judge alone, or with a jury.
Held: The word ‘examination’ has a wide connotation, is not limited to the documents which contain the actual evidence in the case and . .

Cited by:

Cited – Alexander v Arts Council of Wales CA 9-Apr-2001
In a defamation action, where the judge considered that, taken at their highest, the allegations made by the claimant would be insufficient to establish the claim, he could grant summary judgment for the defence. If the judge considered that a . .
Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional, Civil Procedure Rules

Updated: 23 May 2022; Ref: scu.135636

Walker Trustees v Lord Advocate and Others: HL 1 Dec 1911

The Treaty of Union, article 20, enacts ‘That all heritable offices, superiorities, heritable jurisdictions, offices for life, and jurisdictions for life, be reserved to the owners thereof as rights of property, in the same manner as they are now enjoyed by the laws of Scotland notwithstanding this Treaty.’
The Usher of the White Rod at the time of the Union was entitled to receive certain fees from the recipients of honours conferred by the King as Sovereign of Scotland, and could recover these fees from a Scotsman in whatever part of the King’s dominions he, the grantee, might be in, and from an Englishman if he, the grantee, received the honour while in Scotland. From 1766 to 1904 the holders of the office claimed and received fees from the grantees of titles and dignities of the United Kingdom.
Held (rev. judgment of the Second Division) that although the effect might be to deprive the Usher of valuable emoluments, the terms of article 20 of the Treaty of Union were too unambiguous to be open to interpretation by any custom or practice which had grown up since, that by it the rights effeiring to the office of Usher were as before the Union, and consequently fees were only payable by a grantee of a Scottish honour or dignity, not by the grantees of honours or dignities of the United Kingdom.

Judges:

Lord Chancellor (Loreburn), Lord Atkinson, Lord Kinnear, and Lord Gorell

Citations:

[1911] UKHL 73, 49 SLR 73

Links:

Bailii

Statutes:

Treaty of Union

Jurisdiction:

Scotland

Constitutional

Updated: 23 May 2022; Ref: scu.619227

Adam v Commission: ECJ 4 Feb 1982

1. The consultation provided for by article 24 of the merger treaty, which in particular enables the parliament effectively to participate in the community’s legislative process, is an essential feature of the institutional balance which the treaties seek to achieve. Regular consultation with the parliament before the adoption of a regulation amending the staff regulations of officials constitutes therefore an essential procedural requirement, the disregard of which renders the regulation in question void.
That requirement may be regarded as having been met when the regulation finally adopted conforms to the proposal submitted to the parliament, so long as changes made are of method rather than of substance.
2. Since the economic and social committee and the court of auditors are not shown in the treaties as institutions of the three communities it follows that consultation with the economic and social committee and the court of auditors is not mandatory when a regulation amending the staff regulations of officials is adopted. Although, according to the second paragraph of article 1 of the staff regulations, the economic and social committee and the court of auditors are treated as community institutions for the purposes of the staff regulations that treatment, the object of which is to ensure that the staff regulations are applied to the officials and other servants of those two bodies and to identify the appointing authority for those employees, does not however extend to the application of the provisions of the treaties, such as article 24 of the merger treaty, relating to the adoption of community regulations.
3. Discrimination consists of treating in an identical manner situations which are different or treating in a different manner situations which are identical. The situation of a serving official differs considerably from that of a pensioner, so that there is no discrimination in a case where the community legislature accords to pensioners treatment which is not identical to that applied to serving officials.

Citations:

C-828/79, [1982] EUECJ C-828/79

Links:

Bailii

European, Constitutional

Updated: 21 May 2022; Ref: scu.132983

Koninklijke Scholten-Honig v Council and Commission: ECJ 5 Dec 1979

A finding that a legal situation resulting from a legislative measure by the Community involving choices of economic policy is illegal is insufficient by itself to involve the Community in liability under the second paragraph of article 215 of the EEC Treaty; in addition the measure must be vitiated by a sufficiently serious breach of a superior rule of law for the protection of the individual. In the context of community legislation in which one of the chief features is the exercise of a wide discretion essential in particular for the implementation of the common agricultural policy, the liability of the community can arise only exceptionally, that is to say, in cases in which the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers. Grave disregard is to be understood as meaning conduct verging on the arbitrary.
This concept is confirmed in particular by the fact that, even though an action for damages under article 178 and the second paragraph of article 215 of the Treaty constitutes an independent action, it must nevertheless be assessed having regard to the whole of the system of legal protection of individuals set up by the treaty. If an individual takes the view that he is injured by a community legislative measure which he regards as illegal he has the opportunity, when the implementation of the measure is entrusted to national authorities, to contest the validity of the measure, at the time of its implementation, before a national court in an action against the national authority. Such a court may, or even must, in pursuance of article 177 of the treaty, refer to the court of justice a question on the validity of the community measure in question. The existence of such an action is by itself of such a nature as to ensure the efficient protection of the individuals concerned.

Citations:

C-143/77, [1979] EUECJ C-143/77

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 21 May 2022; Ref: scu.132567

Cassella Farbwerke v Commission: ECJ 14 Jul 1972

ECJ 1. The delegation of authority to sign the notice of objections for which article 2 of Regulation no 99/63 of the Commission makes provision constitutes a measure relating to the internal organization of the departments of the community administration, in accordance with article 27 of the provisional rules of procedure adopted under article 16 of the Treaty of 8 April 1965 establishing a single council and a single commission.
2. The notice of objections is the measure stating the attitude of the commission concerning undertakings against which proceedings for infringements of the rules on competition have been commenced.
Accordingly facts occurring subsequent to the decision to commence proceedings may be taken into consideration in the notice of objections when those facts consist simply of a continuation of earlier actions, and this does not prejudice the rights of the defence.
3. The commission has the right and where appropriate the duty to institute fresh inquiries during the administrative procedure if it appears from the course of that procedure that additional investigations are necessary.
Such inquiries would render it necessary to send an additional statement of objections to the undertakings concerned only if the result of the investigations led the commission to take new facts into account against the undertakings or to alter materially the evidence for the contested infringements.
4. In order to protect the rights of the defence during the course of the administrative procedure, it is sufficient that undertakings should be informed of the essential elements of fact on which the objections are based.
This requirement is met even if the contested decisions contain amendments made pursuant to information furnished by the interested parties during the court of the procedure.
5. In applying the community rules on competition, the commission may use the results of investigations carried out by the national authorities.
6. The administration is under no duty, in stating the reasons for its measures, to adopt an attitude on all the arguments which the interested parties may raise in their defence; it is sufficient that it should set out clearly and coherently the facts and the legal considerations having decisive importance in the context of its measures.
7. In order to fulfil their function, limitation periods must be fixed in advance.
8. Although the provisions governing the commission’ s power to impose fines in cases where community rules have been infringed do not lay down any period of limitation, the fundamental requirement of legal certainty has the effect of preventing the commission from indefinitely delaying the exercise of its power to impose fines.
9. By its very nature, a concerted practice does not have all the elements of a contract but may inter alia arise out of coordination, which becomes apparent from the behaviour of the participants.
Although parallel behaviour may not by itself be identified with a concerted practice, it may however amount to strong evidence of such a practice if it leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings and the volume of the said market.
This is especially the case if the parallel conduct is such as to enable the persons concerned to attempt to stabilize prices at a level different from that to which competition would have led, and to consolidate established positions to the detriment of effective freedom of movement of the products in the common market and of the freedom of consumers to choose their suppliers.
10. The function of price competition is to keep prices down to the lowest possible level, and to encourage the movement of goods between the member states, thereby permitting the most efficient possible distribution of activities in the matter of productivity and the capacity of undertakings to adapt themselves to change.
Independent and non-uniform conduct by undertakings in the common market encourages the pursuit of one of the basic objectives of the treaty, namely the interpenetration of national markets and, as a result, direct access by consumers to the sources of production of the whole community.
11. Although every producer is free to change his prices, taking into account in so doing the present or foreseeable conduct of his competitors, nevertheless it is contrary to the rules on competition contained in the treaty for a producer to cooperate with his competitors, in any way whatsoever, in order to determine a coordinated course of action relating to a movement of prices and to ensure its success by prior elimination of all uncertainty as to each other’ s conduct regarding the essential elements of that action, such as the amount, subject-matter, date and place of such movements.

Citations:

C-55/69, [1972] EUECJ C-55/69

Links:

Bailii

Statutes:

Regulation No 99/63

Jurisdiction:

European

Constitutional

Updated: 21 May 2022; Ref: scu.132031

Mitchell v WT Grant Company: 13 May 1974

(Supreme Court of the USA) Stewart J said: ‘A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government. No misconception could do more lasting injury to this court and to the system of law which it is our abiding mission to serve.’

Judges:

White J

Citations:

416 US 600, 94 SCt. 1895, 40 Led 2d 406

Links:

LII

Jurisdiction:

United States

Cited by:

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 – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 20 May 2022; Ref: scu.622606

Planned Parenthood of Southeastern Pennsylvania v Casey: 29 Jun 1992

(Supreme Court of the USA) The Court discussed the grounds upon which it would depart from precedent and why it would not overrule its equally controversial decision on abortion in Roe v. Wade.
Held: ‘no judicial system could do society’s work if it eyed each issue afresh in every case that raised it . . . Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.’

Judges:

Justices O’Connor, Kennedy and Souter J.J

Citations:

(1992) 505 U.S. 833

Links:

LII

Jurisdiction:

United States

Cited by:

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 – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 20 May 2022; Ref: scu.622605

National Westminster Bank Plc v Spectrum Plus Ltd and Others; In re Spectrum Plus Ltd (in liquidation): CA 12 Jul 2004

The High Court or the Court of Appeal should not follow a decision of the Privy Council in place of a decision of the House of Lords, unless the circumstances are quite exceptional and the court is satisfied that in practice the result would be a foregone conclusion

Judges:

Lord Phillips of Worth Matravers MR, Jonathan Parker, Jacob LJJ

Citations:

[2004] EWCA Civ 670, [2004] 3 WLR 503, [2004] Ch 337

Links:

Bailii

Statutes:

Insolvency Act 1986 112

Jurisdiction:

England and Wales

Cited by:

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.

Constitutional, Insolvency

Updated: 20 May 2022; Ref: scu.622344

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 by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take into account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.’

Judges:

Lord Donaldson MR

Citations:

Guardian 31-Oct-1989, Court of Appeal (Civil Division) Transcript No 1017 of 1989

Jurisdiction:

England and Wales

Cited by:

Approved – 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 – 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 . .
Approved – Regina v Secretary of State for Social Security, Ex parte Britnell (Alan) HL 1991
The applicant claimed and was paid benefits. There was later determined to have been an overpayment. A sum was recovered by deductions, but then he was granted only supplementary allowance. No deductions could be made from that, but the respondent . .
Cited – 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 19 May 2022; Ref: scu.222834

Regina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions: HL 1972

The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency.
Held: There now exists no power in the courts to create new criminal offences. A new criminal offence could only be created by Act of Parliament. The House considered its ability to depart from its own previous decisions.
Lord Simon of Glaisdale set out the matters which should be included in the directions to the jury where a defendant faced charges of outraging public decency: ‘It should be emphasised that ‘outrage’, like ‘corrupt,’ is a very strong word. ‘Outraging public decency’ goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people. Moreover the offence is, in my view, concerned with recognised minimum standards of decency, which are likely to vary from time to time.’ It is sufficient for liability that, on an objective assessment, the conduct complained of should cause public offence. Aa jury should be directed that, ‘outraging public decency goes considerably beyond offending the susceptibilities of or even shocking reasonable people.’
Lord Reid said: ‘It was decided by this House in Shaw v Director of Public Prosecutions [1962] AC 220 that conspiracy to corrupt public morals is a crime known to the law of England. So if the appellants are to succeed on this count, either this House must reverse that decision or there must be sufficient grounds for distinguishing this case. The appellants’ main argument is that we should reconsider that decision; alternatively they submit that it can and should be distinguished.
I dissented in Shaw’s case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act . . . I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.’ and ‘if the appellants are to succeed on this count, either this House must reverse that decision or there must be sufficient grounds for distinguishing this case. The appellants’ main argument is that we should reconsider that decision; alternatively they submit that it can and should be distinguished. I dissented in Shaw’s case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act . . I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.’ and
‘there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense.’

Judges:

Lord Reid, Lord Simon of Glaisdale

Citations:

[1973] AC 435, [1972] 2 All ER 898, 56 Cr App R 633

Jurisdiction:

England and Wales

Citing:

Re-Considered – Shaw v Director of Public Prosecutions HL 4-May-1961
Offence of Conspiracy to corrupt public morals
The defendant appealed against his convictions for conspiracy to corrupt public morals, and for living from the earnings of prostitution. He said that first was not an offence known to common law. After it became unlawful for a prostitute to ply her . .
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 by:

Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Cited – Regina v Ching Choi CACD 7-May-1999
The defendant appealed his six convictions for outraging public decency. He had used a video camera and mirrors to record images of women using the toilet in a chinese supermarket. . .
Cited – Regina v Curran CACD 29-Oct-1998
The defendant sought leave to appeal his convictions for outraging public decency. He had been seen having sex on the bonnet of a car in a car park at Heathrow.
Held: the acts complained of could found a conviction for outraging public . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Regina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd Admn 10-Nov-1994
The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It . .
Cited – Green, Regina (on the Application of) v The City of Westminster Magistrates’ Court, Thoday, Thompson Admn 5-Dec-2007
The claimant appealed from the refusal by the magistrate to issue summonses for the prosecution for blashemous libel of the Director General of the BBC and the producers of a show entitled ‘Jerry Springer – The Opera.’
Held: The gist of the . .
Cited – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
Cited – Director of Public Prosecution v Withers HL 20-Nov-1974
The House was asked to consider whether there existed the crime of a conspiracy to commit a public mischief.
Held: There was no such crime, since it was so undefined as to be unfair to any defendant. Although at common law no clear distinction . .
Cited – The Director of Public Prosecutions v SK Admn 10-Feb-2016
The prosecutor appealed against dismissal of a charge of conspiracy to pervert the course of justice. The defendant had completed somebody else’s community service sentence. The prosecutor said that such an act did affect something ‘in the course of . .
Cited – Al Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 19 May 2022; Ref: scu.186954

Regina v Flintshire County Council, Ex Parte Armstrong-Braun: CA 20 Feb 2001

A local council introduced a standing order to the effect that an item could not be placed on an agenda without being seconded. In doing so it had failed entirely to consider the fundamental effect this would have on democracy. Independent members and others seeking to be critical could find themselves unable to put unpopular matters before the council. Councillors represent particular areas and that one of the ways in which they are intended to exercise their function is by raising matters in council. The standing order prevented them from doing that. Such a rule might be introduced with sufficient safeguards and after appropriate qualification, but that did not apply here and the rule was set aside.

Judges:

Sedley, Schiemann LJJ, Blackburne J

Citations:

Times 08-Mar-2001, [2001] BLGR 344, [2001] LGR 344, [2001] EWCA Civ 345, (2001) 3 LGLR 34

Links:

Bailii

Statutes:

Local Government Act 1972

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Flintshire County Council ex parte Armstrong-Braun Admn 27-Jul-1999
. .
See Also – Director of Public Prosecutions v Armstrong-Braun Admn 5-Oct-1998
A building site was subject to a requirement to move great crested newts before work could proceed. The defendant, a local councillor interfered to prevent a digger destroying the land until the newts had been moved. He appealed his conviction for . .

Cited by:

Cited – Richardson and Orme v North Yorkshire County Council CA 19-Dec-2003
The claimants appealed against an order dismissing their application for a judicial review of the respondent’s grant of planning permission. They contended that a councillor with an interest in the matter had wrongfully not been excluded from the . .
Lists of cited by and citing cases may be incomplete.

Local Government, Constitutional, Judicial Review

Updated: 19 May 2022; Ref: scu.88455

Thomas Reckley v Minister of Public Safety and Immigration and Others (Bahamas) (No 2): PC 6 Feb 1996

(The Bahamas) The actual exercise of the prerogative of mercy by a state falls outside the scope of the law. No further stay of execution granted.

Citations:

Times 06-Feb-1996, [1996] UKPC 1, [1996] 1 All ER 562

Links:

Bailii, PC, PC

Constitutional, Criminal Sentencing, Commonwealth

Updated: 19 May 2022; Ref: scu.85921

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 ordinary way only relate to offences which have already been committed ….However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed . This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity.’ The prosecution of a person who in exchange for his co-operation has received an undertaking, promise or representation that he would not be charged is capable of amounting to an abuse of process.
Lord Bridge: ‘However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed. This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity.’

Judges:

Lord Woolf

Citations:

Independent 19-Oct-1994, Times 11-Oct-1994, Gazette 09-Nov-1994, [1995] 1 AC 396

Citing:

See Also – Lennox Phillip and Others v Director of Public Prosecutions of Trinidad and Tobago and Another; Same vCommissioners of Prisons PC 19-Feb-1992
(Trinidad and Tobago) There had been an insurrection, and many people were taken prisoner by the insurrectionists. To secure their release, the President issued an amnesty to all the insurgents, including the applicant. After surrendering, the . .

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Commonwealth

Updated: 18 May 2022; Ref: scu.77948

Chief Justice of Trinidad and Tobago v The Law Association of Trinidad and Tobago: PC 16 Aug 2018

Trinidad and Tobago – The Law Association having a constitutional duty to conduct any enquiry necessary as regards the Chief Justice. It resolved to establish a committee to enquire whether such a complaint was required, allegations having been made. The appellant’s objection that it had no power to do so was rejected, and he now appealed.
‘A vital element in any modern democratic constitution is the independence of the judiciary from the other arms of government, the executive and the legislature. This is crucial to maintaining the rule of law: the judges must be free to interpret and apply the law, in accordance with their judicial oaths, not only in disputes between private persons but also in disputes between private persons and the state. The state, in the shape of the executive, is as much subject to the rule of law as are private persons. An important part of the judicial task in a constitutional democracy is not only to ensure that public authorities act within their powers but also to enforce the fundamental rights of individuals against the state. Judicial independence is secured in a number of ways, but principally by providing for security of tenure: in particular this requires that a judge may only be removed from office, or otherwise penalised, for inability or misbehaviour and not because the government does not like the decisions which he or she makes. It is also required that removal from office should be in accordance with a procedure which guarantees fairness and the independence of the decision-makers from government.’

Judges:

Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Sumption

Citations:

[2018] UKPC 23

Links:

Bailii, Bailii Summary

Jurisdiction:

England and Wales

Constitutional, Legal Professions

Updated: 18 May 2022; Ref: scu.621124

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 meaning of section 40(1) of the 1988 Act.

Citations:

1991 SC (HL) 1

Statutes:

Administration of Justice (Scotland) Act 1972 3, Court of Session Act 1988 40

Jurisdiction:

Scotland

Cited by:

Cited – 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 . .
Cited – 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 – 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: 18 May 2022; Ref: scu.526003

Case VI 2 H 8 9 Co 118 H Dally, 25, Pl 8 11 Co 59 A B Keyleway, 159, 204 Forcible Entry, Restitution Commissioners De Oyer And Terminer, Bank Le Roy: 1220

Commissioners of oyer and terminer have no power to exclude upon the statute of forcible entry : for the statute of 8 H 6, cap. 3, which provides an enquiry and restitutiori in this case, appropriates it to the justices of peace : but the judges of the King’s Bench are wittin the statute ; for the King sits there, and where the King sits est plenitudo potestatis. Proprietates verborum tuendae sunt.

Citations:

[1220] EngR 269, (1220-1623) Jenk 197, (1220) 145 ER 132 (B)

Links:

Commonlii

Land, Constitutional

Updated: 18 May 2022; Ref: scu.461181

Rex v Graham-Campbell, Ex parte Herbert: 1935

Mr A P Herbert had laid two informations at Bow Street Police Station for summonses against fifteen named Members of Parliament, who were members of the Kitchen Committee of the House of Commons and the manager of the Refreshment Department of the House, alleging the unlawful sale of alcohol without a licence contrary to the 1910 Act. The Chief Metropolitan Magistrate declined to exercise jurisdiction, holding that the Members of Parliament were not susceptible to the jurisdiction of the court because they were protected by the privileges of the House. Mr Herbert sought an order of mandamus. The Attorney General argued in reply:- ‘The House sits for long periods and arrangements have to be made for heating the House when the weather is cold and the provision of refreshment for the mind in the library and refreshment for the body in suitable places. The regulation of those matters is clearly within the area of the internal affairs of the House and connected with the affairs of House.’
Held: The request was rejected. Lord Hewart CJ accepted the AG’s argument and upheld the magistrate’s decision and the reasoning of the magistrate. Only as an afterthought did he express the view that the majority of the provisions of the 1910 Act were inapplicable to the House of Commons. Avory and Swift JJ agreed, albeit that Avory J devoted most of his judgment to the question of whether the Act on its true construction applied to the House of Commons.
Lord Hewart said: ‘the magistrate was entitled to say, on the materials before him, that in the matters complained of the House of Commons was acting collectively in a matter which fell within the area of the internal affairs of the House, and, that being so, any tribunal might well feel, on the authorities, an invincible reluctance to interfere.’

Judges:

Lord Hewart CJ, Avory, Swift JJ

Citations:

[1935] 1 KB 594

Statutes:

Licensing (Consolidation) Act 1910

Jurisdiction:

England and Wales

Cited by:

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.

Constitutional, Licensing

Updated: 18 May 2022; Ref: scu.427749

Stopforth v Goyer: 1978

(High Court of Ontario) A claim was made for defamation in remarks made by the defendant about the plaintiff to media representative who were present in parliament, just after he left the Ottawa chamber at the conclusion of the question period. The plaintiff had been a senior member of a team having conduct of the delivery of weapons systems to the government. The defendant had been the relevant minister. It was accepted that the defendant was taken to assume that his acceptedly defamatory words would be repulished by the media. The defendant claimed qualified privilege.
Held: The defence was not made out. There was no duty falling on him at the time to utter the words he did, and nor was there a reciprocal duty in the press to receive the statement.

Judges:

Lief J

Citations:

(1978) 87 DLR (3d) 373, (1978) 4 CCLT 265

Cited by:

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 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, Constitutional, Defamation, Media

Updated: 18 May 2022; Ref: scu.427747

– And The Lord Moone: 1658

For a supersedeas for a peer of the realm. Supersedeas.
My Lord Moone had a sute commenced against him in this Court, and tbereupon he moves by his councel upon an affidavit that he was a peer of the realm, and a Lord of the Parliament, and therefore ought not to be sued, and prayes for a supersedeas to stay the proceedings. Roll lustice, Plead your privilege, for upon an affidavit we will make no rule, or else acquaint the other party that he is a peer of the realm, and it is like he will forbear to proceed thereupon. But you ought not to troubl the Court with such notions as these.

Citations:

[1658] EngR 18, (1658) Sty 118, (1658) 82 ER 576 (B)

Links:

Commonlii

Litigation Practice, Constitutional

Updated: 18 May 2022; Ref: scu.410809

Wright and Advertiser Newspapers Limited v Lewis: 1990

(Supreme Court of South Australia) L, a member of the South Australia House of Assembly, alleged in the House that W had obtained an advantage from his close association with a former Government. W wrote to the newspaper, which published it, accusing L of abusing parliamentary privilege and of cheap political opportunism. L said the letter was libelous. W pleaded justification, qualified privilege and fair comment. L’s integrity in making statements in the House was determinative of the action: the letter was plainly defamatory and unless the defendants could challenge the truthfulness of what the plaintiff had said in Parliament, they had no defence.
Held: King CJ set out the result of allowing the action without such evidence: ‘It must be observed at the outset that if the view argued for by counsel for the Attorney-General and the plaintiff is correct, the result is remarkable. A Member of Parliament could sue for defamation in respect of criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation. Defamation in law is by definition an untrue imputation against the reputation of another. . . If the defendant were precluded from proving the truth of what is alleged, the Member of Parliament would be enabled to recover damages, if no other defence applied, for an imputation which was perfectly true. Moreover the defence of fair comment would often be unavailable, as in the present case, because it would not be permissible to prove the factual foundation for the expression of opinion. The defence of qualified privilege might be seriously inhibited because the defendant would be prevented from answering an allegation of express malice by proving the facts as known to him. If this is the true legal position, it is difficult to envisage how a court could apply the law of defamation in a rational way to an action by a Member of Parliament in respect of an imputation relating to his statements or conduct in the House, or could try such an action fairly or adjudicate upon it justly.
If on the other hand such an action is not justiciable, other difficulties and injustices arise.
. . A Member of Parliament would be deprived of the ordinary right of a citizen to obtain damages for defamation in such circumstances notwithstanding , the privilege being that of the Parliament not of the member, that he might be quite willing to have all the ordinary defences put forward and adjudicated upon by the court.’
The Court held limited parliamentary privilege does to exclude challenges to the truth or bona fides of statements made in Parliament where the maker of the statements himself initiates the proceedings. Such a limitation on normal parliamentary privilege would not inhibit the member from exercising his freedom of speech ‘because he would be aware that his actions and motives could not be examined in court unless he instituted the proceedings which rendered such examination necessary’.

Judges:

King CJ

Citations:

(1990) 53 SASR 416, [1990] Aust Torts Reports 81-026

Jurisdiction:

Australia

Cited by:

Not followed – 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Defamation

Updated: 18 May 2022; Ref: scu.409975

Galloway v The Mayor, Commonalty And Citizens of London: HL 29 Jun 1865

A bill filed by the Plaintiff to restrain the Defendant from taking certain property of his under their statutory powers had been dismissed and the order of dismissal enrolled. The Plaintiff presented a petition of appeal to the House of Lords, and now applied to the Court for an interim order to protec the property till the appeal could be heard. Held, that as the bill had been simply dismissed without any reservation, the Court had no jurisdiction to make the order asked.

Citations:

[1865] EngR 639, (1865) 3 De G J and S 59, (1865) 46 ER 560

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Galloway v The Mayor, Aldermen And Commons Of The City Of London 26-Apr-1864
In 1863, an Act was passed authorizing the Corporation of London to make a new street and buy certain lands (including the land of the Plaintiff) and sell such parts of them as were not required to form part of the sreet. Shortly before the passing . .
See Also – Galloway v The Corporation Of London 13-Feb-1865
In July 1862 the Corporation of London obtained Parliamentary powers for taking the Plaintiffs land for public purposes. But, prior thereto (June 1862) the Corporation had contracted to sell these lands to another company, not then empowered to . .
See Also – Galloway v The Mayor, Commonalty And Citizens Of The City Of London 2-May-1865
The Corporation of London in 1862 obtained an Act authorising them to make a new street and buy land for that purpose, with certain powers of reselling land not required for the street. About the same time a railway company obtained an Act . .

Cited by:

See Also – Galloway v Mayor and Commonalty of London HL 1866
Lord Cranworth LC said: ‘The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making to . .
Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Updated: 18 May 2022; Ref: scu.281551

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

The court was asked whether Australian estate duty could be levied on movables situated abroad.
Held: When testing the validity of a law passed by the government of a dominion, the question was ‘whether the law in question can be truly described as being for the peace, order and good government of the Dominion concerned.’ This law was extra territorial.

Judges:

Evatt J

Citations:

(1933) 49 CLR 220

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 18 May 2022; Ref: scu.277171

The Queen in Right of Alberta v Canadian Transport Commission: 1977

The Crown in right of Alberta may be equated with the Government of Alberta.

Citations:

(1977) 75 DLR (3d) 257

Cited by:

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: 17 May 2022; Ref: scu.231158

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 publishing in a newspaper the report of a speech delivered by him in that House, if it contain libellous matter, although the publication be a correct report of such speech, and be made in consequence of an incorrect publication having appeared in that and other newspapers.

Citations:

(1813) 1 M and S 273, (1813) 105 ER 102, [1813] EngR 254

Links:

Commonlii

Cited by:

Cited – 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 . .
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 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.

Constitutional

Updated: 16 May 2022; Ref: scu.199242

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 repeat what was said therein.

Citations:

(1794) 1 Esp 226, (1794) 170 ER 337

Cited by:

Cited – 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 . .
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.

Constitutional

Updated: 16 May 2022; Ref: scu.199241

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’

Citations:

(1885) 10 App Cas 675

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 16 May 2022; Ref: scu.188593

Maxwell v Murphy: 1957

Sir Owen Dixon CJ said: ‘The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.’ and ‘A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.’

Judges:

Sir Owen Dixon CJ

Citations:

(1957) 96 CLR 261

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 – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 16 May 2022; Ref: scu.184431

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 good government’, connoted ‘the widest law-making powers appropriate to a Sovereign’

Citations:

[1964] AC 900

Cited by:

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

Commonwealth, Constitutional

Updated: 16 May 2022; Ref: scu.184494

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 duty. In 1981 he began to suffer mesothelioma, a long-delayed result of his exposure, and he died in May 1982. Proceedings were issued in April 1984. It was agreed that any cause of action the deceased may have had was barred by section 21 of the 1939 Act one year after his employment had ceased, namely in April 1944. The issue was whether the 1963 Act or the 1975 Act revived the deceased’s cause of action.
Held: Any action time-barred before 4 June 1954 remained time-barred.
Lord Bridge thought it ‘beyond question that the Act of 1963 operated retrospectively, when the appropriate conditions were satisfied, to deprive a defendant of an accrued time bar in respect of a claim for damages for personal injuries in which the cause of action had accrued since 4 June 1954 and which had, therefore, been subject to the three year period of limitation introduced by the Act of 1954. This is the combined effect of the relevant provisions of sections 1, 6 and 15.’
Lord Bridge accepted that: ‘Consistently with the presumption that a statute affecting substantive rights is not to be construed as having retrospective operation unless it clearly appears to have been so intended, it seems to me entirely proper, in a case where some retrospective operation was clearly intended, equally to presume that the retrospective operation of the statute extends no further than is necessary to give effect either to its clear language or to its manifest purpose. Construing sections 2A to 2D of the Act of 1939 in the light of section 3 of the Act of 1975, I think that full effect is given both to the language and to the purposes of the legislation if it is held retrospectively applicable to all personal injury actions previously governed by the three year limitation period under the Act of 1954, whether as then enacted or as amended by the Act of 1963. Conversely, I can find nothing in the language or discernible purposes of the statute which leads clearly, let alone avoidably, to the conclusion that defendants previously entitled to rely on the accrued six year and one year time bars under the original Act of 1939 which the Act of 1963 left intact were intended to be deprived of those accrued rights by the Act of 1975.’

Judges:

Lord Bridge of Harwich, Lord Fraser of Tullybelton, Lord Brightman, Lord Ackner and Lord Oliver of Aylmerton

Citations:

[1988] AC 228, Gazette 25-Nov-1987, [1987] 3 All ER 694, [1987] 3 WLR 1009

Statutes:

Limitation Act 1939 2A(1)

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 . .
Criticised – Knipe v British Railways Board CA 1972
The plaintiff was injured in 1948, but it later became more serious, and in 1970, having obtained leave under the 1963 Act, he issued proceedings. The defendants argued that his claim was statute-barred under section 2(1). The defendant appealed. . .

Cited by:

Cited – 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 . .
Cited – McDonnell v Congregation of Christian Brothers Trustees (Formerly Irish Christian Brothers) and others HL 4-Dec-2003
In 2000, the claimant sought damages for sexual abuse from before 1951. The issue was as to whether the limitation law which applied was that as at the date of the incidents, or that which applied as at the date when he would be deemed uner the . .
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Limitation

Updated: 16 May 2022; Ref: scu.180539

Jackson v Stevenson: 1897

At common law, it is contrary to constitutional principle and illegal to search someone to establish whether there are grounds for an arrest

Citations:

(1897) 2 Adam 255

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts, Regina (on the application of) v Commissioner of Police of the Metropolis and another SC 17-Dec-2015
The Court considered the validity of suspicionless stop and search activities under s 60 of the 1994 Act, by police officers.
Held: The claimant’s appeal failed. The safeguards attending the use of the s 60 power, and in particular the . .
Lists of cited by and citing cases may be incomplete.

Police, Constitutional

Updated: 16 May 2022; Ref: scu.605177

Agricultural Sector (Wales) Bill (Attorney General for England and Wales, Reference): SC 9 Jul 2014

‘Her Majesty’s Attorney General for England and Wales has referred to this Court under section 112(1) of the Government of Wales Act 2006 the question of whether, on the proper construction of section 108 and Schedule 7 to the GWA 2006, the Agricultural Sector (Wales) Bill 2013 is within the legislative competence of the National Assembly of Wales’ The Welsh Government sought to retain a regime regulating agricultural wages in Wales via the Bill. The Wales Act, it said, gave it competence, but this was denied by the Attorney-General saying that the Bill regulated employment law and was outside the Government’s devolved competence.
Held: The Bill was within the competence of the Welsh Assembly.
As to section 104 of the 2006 Act: ‘As the section requires the purpose of the provision to be examined it is necessary to look not merely at what can be discerned from an objective consideration of the effect of its terms’.

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Reed, Lord Thomas

Citations:

[2014] UKSC 43, [2014] 1 WLR 262, [2014] 4 All ER 789, UKSC 2013/0188

Links:

Bailii, Bailii Summary, SC, SC Summary

Statutes:

Government of Wales Act 2006 108 112(1)

Jurisdiction:

Wales

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

Updated: 15 May 2022; Ref: scu.533878

President of the Republic of South Africa v South African Rugby Football Union: 4 Jun 1999

Constitutional Court of South Africa – The court considered an allegation of bias in the judge, it being said that they should have recused themselves: ‘The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training ad experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.’

Citations:

[1999] ZACC 9, [1999] 4 SA 147

Links:

SAFLii

Jurisdiction:

England and Wales

Cited by:

Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Human Rights, Constitutional

Updated: 15 May 2022; Ref: scu.526344

Bates v Lord Hailsham of St Marylebone: ChD 1972

A solicitor applied to the court ex parte to restrain a committee acting under delegated powers from making an order changing the basis of charging for conveyancing on the ground that the committee was obliged to allow more time for consultation and representations before it made orders.
Held: There is no right to be heard or consulted before the making of primary or delegated legislation unless such is provided for by statute.
Megarry J said: ‘Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless the considerations in relation to a general duty of fairness do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation and affected very substantially are never consulted in the process of enacting that legislation and yet they have no remedy. I do not know of any implied right to be consulted or to make objections or any principle whereby the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given.’

Judges:

Megarry J

Citations:

[1972] 1 WLR 1373, [1972] 3 All ER 1019

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association CA 1972
A number of taxi cab owners challenged a decision of the Council to increase the numbers of hackney cabs operating in the city. At a public meeting with the council prior to the decision, the chairman had given a public undertaking that the numbers . .

Cited by:

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

Constitutional, Legal Professions

Updated: 15 May 2022; Ref: scu.460359

Newcastle Breweries Ltd v The King: 1921

The court was asked to consider the validity of regulation 2B of the Realm Regulations made under section 1 of the 1914 Act.
Held: The presumption against a statute authorising the expropriation of a subject’s property without payment is even stronger in the context of delegated legislation. Absent a clear provision conferring power to make retrospective delegated legislation, the assumption of such a power offends the legality principle.
Salter J said: ‘I do not think that a regulation which takes away the subjects right to a judicial decision , or transfer the adjudication of his claim without his content, from a court of law to named arbitrators, could fairly be held to be a regulation fro securing the public safety and the defence of the realm, or a regulation designed to prevent the successful prosecution of the war being endangered within the meaning of these words in the defence of the realm consolidation Act, 1914’.

Judges:

Salter J

Citations:

[1920] KB 854

Statutes:

Defence of the Realm Consolidation Act 1914 1

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 15 May 2022; Ref: scu.450491

Alexander E Hall and Co v Mackenna: PC 1923

Viscount Haldane discussed the status of the Privy Council: ‘The Judicial Committee of the Privy Council is not an English body in any exclusive sense. It is no more an English body than it is an Indian body, or a Canadian body, or a South African body, or, for the future, an Irish Free State body . . I mention that for the purpose of bringing out the fact that the Judicial Committee of the Privy Council is not a body, strictly speaking, with any location. The Sovereign is everywhere throughout the Empire in the contemplation of the law.’

Judges:

Viscount Haldane

Citations:

[1923] IR 402

Cited by:

Cited – Seaga v Harper (No 2) PC 29-Jun-2009
No conditional fees without country approval
(Jamaica) Jamaican domestic law did not allow conditional fees or for the recovery of an after the event insurance premium for costs. When the case was appealed to the Board, his English solicitors represented him under a conditional fee agreement . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Ireland

Updated: 15 May 2022; Ref: scu.375967

National Assistance Board v Wilkinson: 1952

It is a fundamental principle of statutory construction that Parliament should not be taken as effecting a fundamental alteration in the general law, by (say) abolishing a long established defence, unless it made this expressly clear in the statutory wording.

Judges:

Devlin J

Citations:

[1952] 2 QB 648

Jurisdiction:

England and Wales

Cited by:

Cited – Metropolitan International Schools Ltd. (T/A Skillstrain And/Or Train2Game) v Designtechnica Corp (T/A Digital Trends) and Others QBD 16-Jul-2009
The claimant complained that the defendant had published on its internet forums comments by posters which were defamatory of it, and which were then made available by the second defendant search engine. The court was asked what responsibility a . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 15 May 2022; Ref: scu.349047

The Attorney General For The Crown Sir William Follett For Mr Le Strange Styleman Le Strange Sir Harris Nicolas For Sir Jacob Astley: 13 May 1841

A summons to Parliament, and a sitting under it, is evidence of a title to a peerage descending to the heirs of the body including females; so likewise is it evidence of a similar title, where there have been several summonses, both prior and subsequent to a sitting in parliament and a sitting in parliament, though no sitting under a summons, has been proved, proof being adduced that during the period of that sitting there were no writs of summons

Citations:

[1841] EngR 667, (1841) West 621, (1841) 9 ER 621

Links:

Commonlii

Jurisdiction:

England and Wales

Constitutional

Updated: 15 May 2022; Ref: scu.308845

The Rebeckah: 26 Feb 1799

Lord Stowell discussed the rationale behind the inversion in cases involving the Crown of the principle that a clause is to be construed against the proposer saying that: ‘the prerogatives and rights and emoluments of the Crown being conferred upon it for great purposes, and for the public use, it shall not be intended that such prerogatives, rights and emoluments are diminished by any grant, beyond what such grant by necessary and unavoidable construction shall take away.’
Sir William Scott said that ‘the prerogatives . . of the Crown being conferred upon it for great purposes, and for the public use, it shall not be intended that such prerogatives . . are diminished by any grant, beyond what such grant by necessary and unavoidable construction shall take away’

Judges:

Lord Stowell, Sir William Scott

Citations:

(1799) 1 Ch Rob 227, [1799] EngR 645, (1799) 1 C Rob 227, (1799) 165 ER 158

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 15 May 2022; Ref: scu.269742

Illinois Central Railroad Co v McKendree: 1906

(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that the same line was fixed as to intrastate shipments by legislation of the state through which it passed. Day J said: ‘It is urged by the government that it was not the intention of the Secretary to make provision for intrastate commerce, as the recital of the order shows an intention to adopt the state line, when the state by its legislature has passed the necessary laws to enforce the same completely and strictly. But the order in terms applies alike to interstate and intrastate commerce. . . . We do not say that the state line might not be adopted in a proper case, in the exercise of federal authority, if limited in its effect to interstate commerce coming from below the line, but that is not the present order, and we must deal with it as we find it. Nor have we the power to so limit the Secretary’s order as to make it apply only to interstate commerce, which it is urged is all that is here involved. For aught that appears upon the face of the order, the Secretary intended it to apply to all commerce, and whether he would have made such an order, if strictly limited to interstate commerce, we have no means of knowing. The order is in terms single, and indivisible.’

Judges:

Day J

Citations:

(1906) 203 US 514

Cited by:

Cited – The Employers’ Liability Cases 1908
(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was . .
Cited – Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co 1910
The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest . .
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 . .
Lists of cited by and citing cases may be incomplete.

International, Constitutional

Updated: 14 May 2022; Ref: scu.259758

The Employers’ Liability Cases: 1908

(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was controversial.
Held: (Majority) The statute was unconstitutional. White J said: ‘Of course, if it can be lawfully done, our duty is to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unambiguous, that it may be rewritten to accomplish that purpose. Equally clear is it, generally speaking, that where a statute contains provisions which are constitutional and ethers which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save the rule applies only where is is plain that Congress would have enacted the legislation with the unconsitutional provisions eliminated. All these principles are so clearly settled as not to be open to controversy. They were all, after a full review of the authorities, restated and reapplied in a recent case. Illinois Central Railroad v. McKendree, 203 U.S. 514, and authorities cited there.’

Judges:

White J

Citations:

(1908) 207 US 463

Citing:

Cited – Illinois Central Railroad Co v McKendree 1906
(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that . .

Cited by:

Cited – Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co 1910
The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest . .
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 . .
Lists of cited by and citing cases may be incomplete.

International, Constitutional

Updated: 14 May 2022; Ref: scu.259759

Mortensen v Peters: 1906

The Danish master of a Norwegian steam-trawler was prosecuted for using a particular method of fishing in the Moray Firth. He argued that, although the statute banning the method would have caught a British fisherman, it should be construed as impliedly excepting all foreigners fishing from foreign vessels outside the territorial jurisdiction of the British Crown.
Held: The defence failed. Lord Salvesen said that it could scarcely be supposed that the British Parliament should pass legislation placing British fishermen under a disability which did not extend to foreigners: ‘I think, it was a just observation of the Solicitor General that, if legislation of this nature had been proposed, and the words inserted which the Dean of Faculty maintained were implied, it would never have been submitted by a responsible minister or have received the approval of Parliament.’

Judges:

Lord Salvesen

Citations:

(1906) 8 F (J) 93

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.

Scotland, Constitutional, Agriculture

Updated: 14 May 2022; Ref: scu.240007

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 context, we consider that it falls foul of the approach that we adopted in Addison v Denholm Ship Management (UK) Ltd [1997] ICR 770 to the effect that it is going beyond the scope of the Directive and would therefore in that respect be ultra vires. The issue requires to be addressed by primary legislation.’

Judges:

Lord Johnson

Citations:

[2004] ICR 667

Jurisdiction:

Scotland

Citing:

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 by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Constitutional

Updated: 14 May 2022; Ref: scu.235765

Viscountess Rhondda’s Claim: HL 1922

(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the Parliamentary history of the legislation as the proposal and rejection of amendments. It is the sole right of the Committee to decide who was entitled to receive the Writ of Summons and Lord Lyndhurst said that if a person is entitled to a writ, but the Crown does not issue one, then his remedy is to petition the House.
Lord Birkenhead LC said: ‘The rule that the words of an instrument shall be taken most strictly against the party employing them – verba chartarum fortius accipiuntur contra proferentem – does not apply to the Crown such a grant is construed most strictly against the grantee and most beneficially for the Crown, so that nothing will pass to the grantee but by clear and express words.’ It was the duty of the Committee for Privileges to consider whether she was entitled to receive a Writ of Summons: ‘The writ is not to be issued capriciously or withheld capriciously at the pleasure of the Sovereign or of this House. It is to be issued, or withheld, according to the law relating to the matter, and if, under that law, it appears that there is a debt of justice to the petitioner in that matter, the writ will issue and, if not, it cannot issue.’
Lord Lyndhurst said: ‘If a Writ of Summons is improperly withheld, your Lordships can insist upon its being issued. You may address the Crown for that purpose if you think proper. If that address to the Crown is unavailing, there is a remedy that in a remarkable case has been resorted to and which was effectual to attain its object. The Peers in Parliament, in that case, refused to proceed to business until the Writ of Summons was issued and until the House was properly constituted, and the historian who records this fact says that the means adopted were so effectual that the King was induced to issue the Writ of Summons and that the abuse of which they complained never occurred again. That is a remedy when the Writ of Summons is withheld. On the other hand, when a party has obtruded himself upon the House in which he has no right to sit, the remedy is equally plain. It is your duty to direct your Officers to refuse to administer the oaths, or allow the party to take his seat.’

Judges:

Viscount Haldane, Lord Birkenhead LC

Citations:

[1922] 2 AC 339

Statutes:

Sex Disqualification (Removal) Act 1919

Jurisdiction:

England and Wales

Citing:

Cited – The Wensleydale Peerage HL 22-Feb-1856
Sir James Parke, a distinguished judge of the Court of the Exchequer, was created a Life Peer but the House of Lords refused to allow him to sit and vote in the House because, they decided, that as the law then stood, the creation of Life Peers was . .

Cited by:

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 – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Cited – Mereworth v Ministry of Justice ChD 23-May-2011
The claimant’s father had been granted the hereditary title of Baron of Mereworth. The claimant having inherited the title objected to the refusal to issue to him a writ of summons to sit in the House of Lords.
Held: The claim was struck out . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Discrimination

Updated: 13 May 2022; Ref: scu.231154

Powell v Apollo Candle Co Ltd: PC 1885

The Board declared firmly that the earlier decisions had put an end to the doctrine that a colonial legislature is a delegate of the Imperial legislature.

Citations:

(1885) 10 App Cas 282

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 13 May 2022; Ref: scu.231155

Orissa Cement Ltd v State of Orissa: 1991

(Supreme Court of India) The Supreme Court founded its jurisdiction to make rulings which had prospective effect only, on article 142 of the Indian Constitution. This article empowers the Supreme Court to ‘make such order as is necessary for doing complete justice in any cause or matter pending before it’. In exercise of this power it is a ‘well settled proposition that it is open to the Court to grant, mould or restrict relief in a manner most appropriate to the situation before it, in such a way as to advance the interests of justice’

Citations:

1991 Supp (1) SCC 430

Commonwealth, Constitutional

Updated: 13 May 2022; Ref: scu.228291

Reference re Language Rights under the Manitoba Act 1870: 1985

(Supreme Court of Canada) The court declined to give retroactive effect to its decision on the constitutional invalidity of all statutes and regulations of the Province of Manitoba not printed and published in both English and French. A declaration that the unilingual laws of Manitoba were of no effect would have created a legal vacuum with consequent legal chaos. Refusing to take a narrow and literal approach to constitutional interpretation, the court held it could have regard to unwritten postulates such as the principle of the rule of law. Faced with the task of recognising the unconstitutionality of Manitoba’s unilingual laws while avoiding a legal vacuum and ensuring the continuity of the rule of law, the court made a ruling which gave deemed temporary validity to all laws rendered invalid by reason of their unilingual defect.

Citations:

(1985) 19 DLR (4th) 1

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 13 May 2022; Ref: scu.228294

Robinson v The Queen: PC 1985

Where a defendant found himself unrepresented on the day of trial, an adjournment should be granted. The constitutional right to representation was not a guarantee of representation but a right for the defendant to arrange representation at his own or public expense. The trial had proceeded when the defendant, having failed to put his counsel in funds, appeared unrepresented: ‘… the important word used in section 20(6)(c) is ‘permitted’. He must not be prevented by the State in any of its manifestations, whether judicial or executive, from exercising the right accorded by the subsection. He must be permitted to exercise those rights.’

Citations:

[1985] AC 956, [1985] 2 All ER 594

Statutes:

Jamaica (Constitution) Order in Council 1962 SCh 2 s20(6)(c)

Cited by:

Cited – Gianchand Jahree v The State PC 28-Feb-2005
(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation . .
Applied – Dunkley and Robinson v The Queen PC 1-Nov-1994
(Jamaica) The appellant’s counsel had walked out of a murder trial after a dispute with the judge, leaving the appellant unrepresented for the remainder of the proceedings.
Held: A defendant in a capital murder case is to be allowed to find . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Delroy Ricketts v The Queen PC 15-Dec-1997
(Jamaica) Special leave was granted to the defendant to appeal his conviction for murder. Counsel had been late for his trial, and the jury empanelled. When counsel arrived he said the defendant had not understood the judge. A trial took place as to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice, Constitutional

Updated: 13 May 2022; Ref: scu.223459

Davis v Johnson: CA 1978

The court had to consider whether the Act protected cohabitees as well as wives. In doing so the court looked at whether it could look to parliamentary debates.
Held: Lord Denning MR said: ‘Some may say, and indeed have said, that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view . . It is obvious that there is nothing to prevent a judge looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position. The statements made in committee disposed completely of counsel for the respondent’s argument before us.’ but (Cumming-Bruce LJ) ‘I am not alarmed by the criticism that I am a purist who prefers to shut his eyes to the guiding light shining in the reports of parliamentary debates in Hansard.’

Judges:

Lord Denning MR, Cumming-Bruce LJ

Citations:

[1978] 1 All ER 841

Statutes:

Domestic Violence and Matrimonial Proceedings Act 1976

Jurisdiction:

England and Wales

Cited by:

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

Family, Constitutional

Updated: 13 May 2022; Ref: scu.200596

Mitchell v Director of Public Prosecutions of Grenada: PC 1986

(Grenada) The petitioner sought to appeal to the Board from Grenada. The powers conferred on the Board by the Acts of 1833 and 1844, and other later instruments, have superceded the old prerogative power formerly exercised by the King in Council. The 1967 Order was made under powers conferred by the Judicial Committee Act 1844 and the language of section 3 shows clearly that it is concerned not with the constitutional question of whether a right of appeal should exist but with the procedural question of how such an appeal should be exercised. Once the Constitution was amended to abolish the right of appeal, there was nothing upon which the 1967 Order could operate.

Citations:

[1986] AC 73, [1985] 3 WLR 72

Statutes:

Judicial Committee Act 1844 3, West Indies Associated States (appeals to the Privy Council) Order 1967 (SI 1967 No 224), Grenada Constitution Order 1973 (SI 1973 No 2155), Privy Council (Abolition of Appeals) Law 1979

Cited by:

Cited – The Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 13 May 2022; Ref: scu.199436

The United States of America v Gaynor: PC 1905

The Privy Council allowed an appeal from an order of a Judge, itself having given special leave to appeal.
Lord Halsbury LC said: ‘Their Lordships do not mean to suggest that the writ of habeas corpus is not applicable when there is a preliminary proceeding. Each case must depend upon its own merits. But where a prisoner is brought before a competent tribunal, and is charged with an extradition offence and remanded for the express purpose of affording the prosecution the opportunity of bringing forward the evidence by which that accusation is to be supported; if, in such a case, upon a writ of habeas corpus, a learned Judge treats the remand warrant as a nullity, and proceeds to adjudicate upon the case as though the whole evidence were before him, it would paralyze the administration of justice and render it impossible for the proceedings in extradition to be effective.’

Judges:

Lord Halsbury L.C

Citations:

[1905] AC 128

Cited by:

Cited – The Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Extradition

Updated: 13 May 2022; Ref: scu.199443

Lonrho Exports Ltd v Export Credit Guarantee Department: 1999

A court must follow the interpretation of the Crown and cannot venture its own interpretation of international treaties, nor could it seek to see whether the Crown had implemented its provisions in good faith as required

Judges:

Lightman J

Citations:

[1999] Ch 158

Jurisdiction:

England and Wales

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

Updated: 12 May 2022; Ref: scu.186649

Winfat Enterprise (Hong Kong) Co Ltd v Attorney-General of Hong Kong: PC 1985

The power to make laws for ‘peace, order and good government’ was widely recognised. Section 15 of New Territories Land Court Ordinance 1900 provided: ‘All land in the New Territories is hereby declared to be the property of the Crown . . ‘. It deemed the occupiers to be trespassers unless their occupation was authorised by the Crown. This replaced Chinese customary tenure, which was assignable and heritable. One of the issues in the case was whether that customary interest survived so that a developer whose land was being acquired for a price below its market value, could rely on it. It was held that the land vested in the Crown under that wide declaratory power.

Citations:

[1985] AC 733

Jurisdiction:

England and Wales

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

Updated: 12 May 2022; Ref: scu.186647