Category: Constitutional

Rex v Minister of Town and Country Planning, Ex parte Montague Burton Ltd: CA 1951

Section 37 of the 1889 Act provided that where an Act was not to come into operation immediately, and it conferred power to make regulations or other instruments for the purposes of the Act, that power could be exercised at any time after the passing of the Act, ‘so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof’. The term ‘commencement’ was defined by section 36 as meaning ‘the time at which the Act comes into operation’.
Held: The power conferred by section 37 was not confined to bringing the Act ‘into operation’ in the sense of bringing it into legal force, but extended to taking measures which would enable the Act to operate in practice. Section 37 gave power to take the necessary steps to set up the machinery for bringing the Act into operation as well as for doing such an act as appointing a day for the Act to come into operation.

Judges:

Tucker, Asquith, Jenkins LJJ

Citations:

[1951] 1 KB 1

Statutes:

Interpretation Act 1889 37

Jurisdiction:

England and Wales

Cited by:

Cited – RM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Updated: 20 December 2022; Ref: scu.470870

Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another: Admn 2 May 2008

The applicant sought leave to bring judicial review of the prime minister’s decsion not to hold a referendum on the ratification of the treaty of Lisbon.
Held: The claimant had arguable points under the 2000 Act and otherwise, and permission was granted for the review to be heard.

Judges:

Owen J

Citations:

[2008] EWHC 936 (Admin)

Links:

Bailii

Statutes:

Political Parties, Elections and Referendums Act 2000 101

Jurisdiction:

England and Wales

Citing:

Cited – Attorney General of Hong Kong v Ng Yuen Shiu PC 21-Feb-1983
An illegal entrant into Hong Kong claimed that he was entitled by a legitimate expectation to a hearing before a deportation order might be made against him, there having been an announcement that persons in the respondent’s position would be . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – McWhirter and Gouriet, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 5-Mar-2003
Application for leave to appeal against refusal of judicial review of decision to allow ratification of the Treaty of Nice.
Held: Refused. The application concerned matters which were not justiciable. Laws LJ accepted the submission of the . .
Cited – Regina on the Application of Southall and Another v Secretary of State for Foreign and Commonwealth Affairs CA 14-Jul-2003
The claimant sought a declaration that the Treaty of Nice should not be ratified unless and until the consent of the people had been sought in a referendum. Silber J had refused permission to apply for judicial review.
Held: The appeal was . .
Cited – Regina v Her Majesty’s Treasury, Ex parte Smedley CA 19-Dec-1984
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before . .
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 – Regina v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd 1989
The taxpayer complained of a change in Inland Revenue practice which, it said, went against a legitimate expectation created by the scheme.
Held: Judge J said: ‘There is a detailed procedure for resolving disputes between the Inland Revenue . .
Cited – Regina v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd CA 1990
Legitimate Expectation once created not withdrawn
The claimant said that a change of practice by the Revenue was contrary to a legitimate expectation.
Held: The Inland Revenue could not withdraw from a representation if it would cause: substantial unfairness to the applicant; if the . .

Cited by:

See Also – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 25-Jun-2008
The claimant sought to challenge the decision by respondent not to offer a referendum before acceding to the Treaty of Lisbon. The claimant’s case was that the Government’s promise to hold a referendum in relation to the European Union . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, European, Constitutional

Updated: 20 December 2022; Ref: scu.267416

Sharma and others v The Attorney General of Trinidad and Tobago: PC 20 Jun 2007

(Trinidad and Tobago) The issue in this appeal is whether the appellants are entitled to remuneration as members of the House of Representatives on a delay in the House sitting after an election.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2007] UKPC 41, [2007] 1 WLR 780

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
Cited – JJ Management Consulting Llp and Others v Revenue and Customs CA 22-Jun-2020
HMRC has power to conduct informal investigation
The taxpayer, resident here, but with substantial oversea business interests, challenged the conduct of an informal investigation of his businesses under the 2005 Act, saying that HMRC, as a creature of statute, are only permitted to do that which . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 09 December 2022; Ref: scu.253514

Magdalena Steam Navigation Company v Martin: 1859

The defendant asserted that he was entitled to diplomatic privilege to protect him from an action here. He was public minister of a foreign state. He had been received by the Court and given formal accreditation. He had no real property in Britain.
Held: Since he had done nothing to disentitled himself from such protection, he remained entitled in a civil action ‘although such action may arise out of commercial transactions by him here, and although neither his person nor his goods be touched by the suit.’

Citations:

[1859] 34 LTOS 30, [1859] 5 Jur NS 1260, [1859] 7 WR 598, [1859] 121 ER 36, (1859) 2 E and E 94, [1859] 28 LJQB 310

Jurisdiction:

England and Wales

Cited by:

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

Constitutional

Updated: 09 December 2022; Ref: scu.239965

Abbott v Minister for Lands: PC 30 Mar 1895

(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the community or any class of them into an accrued or vested right to which the presumption applies, the particular beneficiary of the right must have done something to avail himself of it before the law is changed. Since the purpose of legislation is to alter the existing legal situation, there is no presumption that it will not alter rights which individuals have, but have not exercised.

Judges:

Lord Herschell LC

Citations:

[1895] AC 425, [1895] UKPC 17

Links:

Bailii

Jurisdiction:

Australia

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 – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Secretary of State for Energy and Climate Change v Friends of The Earth and Others CA 25-Jan-2012
The Secretary had issued a consultation on the payments for solar energy feed-in-tarriffs, with a view to the new rate being brought in in April 2012. As the consultation ended, he proposed to reduce rates from December 2011. He now appealed against . .
Cited – Hand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Land

Updated: 09 December 2022; Ref: scu.184438

Badry v The Director of Public Prosecutions: PC 15 Nov 1982

(Mauritius) The applicant appealed three counts of contempt of court, arising from speeches made by him in the political debate. He had been a minister, but was subject to investigation for fraud. To found a appeal he had to show some blatant or significant disregard or breach of legal process, or injustice. The board do not sit as a criminal appeal court.
Held: It was not possible to take any interpretation of some of the words used which did not amount to an attack on the integrity of the judicial system, but other charges were not such an attack.
The Board considered the position and status of a non-statutory inquiry.

Judges:

The Lord Chancellor (Lord Hailsham of St. Marylebone), Lord Scarman, Lord Roskill, Lord Brandon of Oakbrook, Lord Templeman

Citations:

[1982] UKPC 1, [1983] 2 AC 297, (Appeals Nos 4, 5 and 6 of 1981)

Links:

Bailii, PC, PC

Jurisdiction:

England and Wales

Citing:

Cited – Ambard v Attorney-General for Trinidad and Tobago PC 1936
It is competent for Her Majesty in Council to entertain appeals against orders of courts of record overseas imposing penalties for contempt of court. . .

Cited by:

Confirmed – S Buxoo and Another v The Queen (Mauritius) PC 19-May-1988
(Mauritius) Mauritius had passed an Act extending rights of Appeal. The Board considered and confirmed that it does not sit as a court of criminal appeal. In order to interfere, there must be something so irregular or so outrageous as to shake the . .
Cited – Regina v Metcalf, Denton, Foster 26-May-2021
Public Inquiry is not In the Course of Justice
(Crown Court at Manchester) A retired solicitor and two retired police officers faced trial charged with doing acts tending and intended to pervert the course of public justice. They were said to have proposed alterations to statements of police . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Contempt of Court

Updated: 09 December 2022; Ref: scu.159148

Regina v Secretary of State for the Home Department, ex parte Quinn: QBD 26 May 1999

A prisoner charged with a prison mutiny was moved to a prison, where one of the officers now worked. He feared reprisals, and that his trial would be unfair. The right to a fair trial is constitutional, but no real danger was shown here.

Citations:

Gazette 26-May-1999

Jurisdiction:

England and Wales

Constitutional, Prisons

Updated: 09 December 2022; Ref: scu.87937

Carlton Hotel Co v Lord Advocate: 1921

Lord Dundas: ‘This is a summary petition under section 91 of the Court of Session Act, 1868, for an order for specific performance of an alleged statutory duty. The remedy thus sought is peculiar and drastic. It has not, I believe, been frequently resorted to; I am aware of only one reported instance. Those who invoke this remedy must, I think, be careful to aver a clear statutory duty which those on whom its performance is incumbent have refused, or unduly delayed, to perform; and to state in precise terms the order which, by their prayer, is sought from the Court.’ and ‘Section 91 was, in my judgment, never intended to provide a medium for the expiscation of intricate and doubtful duties, but rather for the summary enforcement of clearly existing ones, the due performance of which is neglected.’

Judges:

Lord Dundas

Citations:

1921 SC 237

Statutes:

Court of Session Act 1868 91

Jurisdiction:

England and Wales

Cited by:

Cited – Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
Lists of cited by and citing cases may be incomplete.

Scotland, Constitutional

Updated: 07 December 2022; Ref: scu.237559

Regina v Home Department ex parte Herbage: 1987

An injunction could be pronounced against ministers of the Crown acting in their official capacity.

Judges:

Hodgson J

Citations:

[1987] QB 872

Jurisdiction:

England and Wales

Cited by:

Cited – Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 07 December 2022; Ref: scu.237562

Taylor v Best: 1854

The defendant was a counsellor of a foreign legation, and was subject to the directions of the minister plenipotentiary. In the absence of the minister, he acted up as charge d’affaires. He sought the protection of the 1708 Act.
Held: A person acting in such a position was entitled to the protection as if he were an ambassador. However, once he vountarily appeared in a suit and therefore submitted to the court’s jurisdiction, he was not entitled to rely upon that protection, having waived it by his submission. He would not lose his privilege by trading here, but his servants might.

Citations:

(1854) 14 CB 487, [1854] 8 State Tr NS 317, [1854] 23 LJCP 89, [1854] 22 LTOS 287, [1854] 18 Jur 402, [1854] 2 WR 259, [1854] 2 CLR 1717, [1854] 139 ER 201

Statutes:

Diplomatic Privileges Act 1708

Jurisdiction:

England and Wales

Cited by:

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

Constitutional

Updated: 07 December 2022; Ref: scu.239964

Rex v Countess of Arundel: 1617

As regards a Bill in Parliament, the pronouncement of the words enacting it ‘carry its death’s wound in itself.’

Citations:

(1617) Hobart 109

Jurisdiction:

England and Wales

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: 07 December 2022; Ref: scu.231153

Cormack v Cope: 5 Aug 1974

(High Court of Australia) There was an alleged constitutional irregularity in the law-making process.
Held: Ordinarily the court’s interference to ensure due observance of the constitution in connection with the making of laws is effected by a post-enactment declaration that what purports to be an Act is void. This is a sufficient means of ensuring that the processes of law-making which the constitution requires are properly followed. But in point of jurisdiction the court is not limited to that method of ensuring the observance of the constitutional processes of law-making. In an appropriate case the court is able, and indeed in a proper case bound, to interfere. Exceptionally, there might be intervention in the parliamentary process. Menzies J. and Stephen J. Menzies J. stated that it was no part of the authority of the court to restrain Parliament from making unconstitutional laws, but left open the case where the adoption of a particular law-making procedure would defeat the constitutional power of the court to deal effectively with legislation when enacted. Stephen J based the limitation of court intervention on jurisdictional and not discretionary grounds, but he envisaged there may be exceptions.

Judges:

Barwick CJ, McTiernan, Menzies, Gibbs, Stephen and Mason JJ

Citations:

(1974) 131 CL R 432

Links:

Austlii

Jurisdiction:

Australia

Cited by:

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

Constitutional

Updated: 07 December 2022; Ref: scu.187514

Auld v Murray: 1864

Judges:

Boothby J

Citations:

(1864) SAPP 53 LC

Jurisdiction:

England and Wales

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.

Constitutional

Updated: 06 December 2022; Ref: scu.277176

Union Steamship Company of Australia Pty Ltd v King: 26 Oct 1988

Austlii (High Court of Australia) Constitutional Law (Cth) – Inconsistency between Commonwealth and State laws – Compensation of seamen – Laws expressly contemplating coexistence of laws – Whether Commonwealth law covers field – The Constitution (63 and 64 Vict c. 12), s.109 – Seamen’s Compensation Act 1911 (Cth), ss.5(2)(e), 10A – Australia Act 1986 (Cth), s.2(1) – Workers’ Compensation Act 1926 (NSW), ss.7,46.
Constitutional Law – State Parliament – Powers – To make laws for peace, order and good government – Connexion of operation of law with State – Remote or general connexion sufficient – Workers’ compensation claimed by crew member of State-registered ship – Whether eligible to claim only under Commonwealth legislation – Registration of ship sufficient connexion with State – Extraterritorial operation.
Workers’ Compensation (N.S.W.) – Entitlement – Territorial limits of jurisdiction – Compensation under State law unavailable under Commonwealth law – Claim under State law – Whether maintainable – Crew member of State-registered ship.

Judges:

Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ

Citations:

(1988) 166 CLR 1, [1988] HCA 55

Links:

Austlii

Jurisdiction:

Australia

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.

Constitutional

Updated: 06 December 2022; Ref: scu.277170

Chester v Bateson: 1920

A Regulation brought in under the 1914 Act prohibited the bringing of possession proceedings against a munitions worker without the consent of the Minister.
Held: The prohibition was unlawful. It was a grave invasion of the rights of the subjects and this could not be achieved by a departmental order. Avory J said: ‘In my opinion there is not to be found in the statute anything to authorize or justify a regulation having that result; and nothing less than express words in the statute taking away the right of the King’s subjects of access to the Courts of justice would authorize or justify it.’

Judges:

Darling J, Avory J

Citations:

[1920] 1 KB 829

Statutes:

Defence of the Realm Consolidation Act 1914

Jurisdiction:

England and Wales

Citing:

Approved – Rex (at the prosecution of Arthur Zadig) v Halliday HL 1-May-1917
The applicant was German born but a naturalised Englishman who complained of having been interned by a regulation made under the 1914 Act. He said that the regulation was ultra vires.
Held: The appeal failed (Lord Shaw dissenting). The House . .
Cited – In Re Boaler CA 1915
The court was asked whether the 1896 Act which permitted a court to make an order that a person could not institute proceedings without the leave of the court, applied to the institution of criminal proceedings.
Held: It did not. Scrutton J . .

Cited by:

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.
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 December 2022; Ref: scu.267160

In re Bateman’s Trust: 1873

The queen is the queen of New South Wales.

Citations:

(1873) 15 Eq 355

Jurisdiction:

England and Wales

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.

Constitutional

Updated: 06 December 2022; Ref: scu.231157

Chevron Oil Co v Huson: 1971

(US Supreme Court) The Supreme Court summarised three factors to be taken into account when considering whether a ruling should be applied non-retroactively: whether the decision established a new principle of law, whether retrospective operation would advance or retard the operation of the new rule, and whether the decision could produce substantial inequitable results if applied retrospectively.

Citations:

(1971) 404 US 97

Jurisdiction:

United States

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.

International, Constitutional

Updated: 06 December 2022; Ref: scu.228288

Rex v Charles Gavan Duffy: 1848

The defendant was editor of the Irish newspaper ‘The Nation’. He was accused of treason.
Held: The judge summed up the offence of treason under the Act as follows: ‘if any person shall entertain the intention of deposing Her Majesty from her sovereignty in this country, or the intention of levying war against Her Majesty for the purpose of coercing her to change her measures and counsels and shall in either case manifest such an intention by any printing or writing, he shall be guilty of felony . . an attempt to depose the sovereign does not impart any intention to injure the Queen or even to treat her with any personal disrespect. Neither is a formal intention to deprive her of her titles, position and dignity necessary. The offence has been perpetrated if the prisoner has entertained and expressed the intention of constituting or setting up in this Kingdom any body of persons who were to exercise the functions of the Government and virtually to supersede the Queen’s authority – still more so if the prisoner has entertained and expressed an intention of severing this country from the British crown and establishing either a republic or any other form of Government.’

Judges:

Ball J

Citations:

(1848) St Tr (NS) 915

Statutes:

Treason Felony Act 1848 3

Jurisdiction:

England and Wales

Cited by:

Cited – Rusbridger and Another v Attorney General CA 20-Mar-2002
The paper wanted to publish an article about the monarchy but was concerened that it might lead to it being prosecuted under the 1848 Act. The complainant sought declarations as to the incompatibility of the 1848 Act with the 1998 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 06 December 2022; Ref: scu.184027

In re Lord Bishop of Natal: 1865

Citations:

(1865) 3 Moore (NS) 114

Jurisdiction:

England and Wales

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.

Constitutional

Updated: 05 December 2022; Ref: scu.277175

Attorney-General for Ontario v Attorney-General for Canada: PC 1947

Abolition of civil appeals from Canada. The Board, in referring to the Canadian Constitution said of the 1867 Act that: ‘To such an organic statute, the Canadian Constitution the flexible interpretation must be given that changing circumstances require.’

Judges:

Viscount Jowitt

Citations:

[1947] AC 127

Statutes:

Statute of Westminster 1931 2 83, British North America Act 1867 91

Jurisdiction:

Canada

Cited by:

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: 05 December 2022; Ref: scu.242115

Attorney General for Alberta v Attorney General for Canada: PC 1947

The Board considered the severability of statutory provisions viewed for constitutionality: ‘The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.’

Judges:

Viscount Simon

Citations:

[1947] AC 503, [1947] LJR 1392

Jurisdiction:

Canada

Cited by:

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

Constitutional

Updated: 05 December 2022; Ref: scu.211407

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 MR said: ‘the vice to which Article 9 is directed (so far as the courts are concerned) is the inhibition of freedom of speech and debate in Parliament that might flow from any condemnation by the Queen’s Courts, being themselves an arm of government, of anything there said.’

Judges:

Lord Woolf MR, Hirst, Laws LJJ

Citations:

Times 30-Mar-1999, Gazette 12-May-1999, [1999] EWCA Civ 1111, [1999] 1 WLR 1569, [1999] EMLR 501

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

See Also – 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. . .

Cited by:

Cited – Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
Appeal from – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Defamation, Human Rights

Updated: 05 December 2022; Ref: scu.146026

Evans, Regina (on The Application of) v HM Attorney General and Another: Admn 9 Jul 2013

The claimant had requested disclosure of correspondence between Prince Charles and assorted government departments. It had been refused, the Attorney General issuing a certificate under section 53(2) after the Upper tribunal had allowed the claimant’s appeal from an initial refusal, stating that he had, on reasonable grounds, formed the opinion that the Departments had been entitled to refuse disclosure of the letters, and set out his reasoning.
Held: The claim for judicial review failed. Section 53 of the Act was an unusual provision giving an executive override or veto of what (in the case of tribunal and court conclusions) would have been a judicial decision. However the language of the section required there to be reasonable grounds for the certifcate, stated cogently and judged objectively. That statutory test should not be glossed with any Wednesbury style test, and nor was the court to substitute its own assessment for that of the minister. ‘Reasonable grounds’ in section 53(2) simply meant grounds which, when viewed on their own, were ‘cogent’, and there was no reason to constrain the expression to exclude the accountable person from forming his own view simply because it differed from that of a court or tribunal.

Judges:

Lord Judge LCJ, Davis LJ, Globe J

Citations:

[2013] EWHC 1960 (Admin), [2013] 3 WLR 1631, [2013] WLR(D) 313, [2014] 1 CMLR 8, [2014] 1 All ER 23

Links:

Bailii, WLRD

Statutes:

Freedom of Information Act 2000 53, Environmental Information Regulations 2004 (SI 2004/3391)

Jurisdiction:

England and Wales

Citing:

See Also – Evans v Information Commissioner UTAA 18-Sep-2012
The claimant journalist had requested copies of correspondence between Prince Charles and assorted public bodies.
Held: ‘The Upper Tribunal allows the appeals by Mr Evans. A further decision identifying information to be disclosed to Mr Evans, . .

Cited by:

Appeal from – Evans, Regina (on The Application of) v HM Attorney General and Another CA 12-Mar-2014
The claimant journalist had requested disclosure under the 2000 Act of correspondence between the Prince of Wales and government departments. The Upper Tribunal had found that matters where the prince had acted as advocate were disclosable. . .
Appeal from – Evans v The Information Commissioner and Others CA 12-Mar-2014
Mr Evans had sought release under the 2000 Act of leers from the Prince of Wales to variou government ministers. The Upper Tribunal had allowed his appeal aganst refusal, but the Attorney had then issued a certificate that in his opinion, the . .
At Admn – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Lists of cited by and citing cases may be incomplete.

Information, Constitutional, Administrative

Updated: 04 December 2022; Ref: scu.512206

News Media Ownership v Finlay: 1970

(New Zealand Court of Appeal ) The plaintiff, a Member of Parliament, brought libel proceedings against a newspaper in respect of an article appearing in the newspaper which alleged that the plaintiff had been acting improperly and for purposes of personal profit in making statements in the House. North P said: ‘Mr McKay was right when he submitted that while violence of language is not in itself enough to take away privilege even though it may provide evidence of malice, yet privilege is lost if the reply becomes a counter attack raising allegations against the plaintiff which are unrelated or insufficiently related to the attack he made on the defendant. In other words he cannot claim the protection of privilege if he decides to bring fresh accusations against his adversary.’ and, as to a contention that the words complained of were not defamatory:
‘In my opinion, there is no substance in this contention, for surely it is plain enough that it is harmful to the trading reputation of a newspaper company to allege that it conducts its business without regard for the public interest, its principal concern being merely with the making of profits.’

Judges:

North P

Citations:

[1970] NZLR 1089

Jurisdiction:

England and Wales

Cited by:

Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth, Media, Defamation

Updated: 04 December 2022; Ref: scu.409976

Weare v Adamson: 1583

An information was laid in the name of the Queen. The defendant requested a non-suit saying that she had not appeared at court.
Held: The objection failed. The Queen was deemed ‘always present’ in court.

Citations:

[1583] Sav 56, (1583) 123 ER 1010

Jurisdiction:

England and Wales

Litigation Practice, Constitutional

Updated: 04 December 2022; Ref: scu.273043

Case of the Duchy of Lancaster: 1561

Queen Elizabeth I wished to know whether a lease granted by Edward VI of some land within the Duchy while under the age of 21 (‘during his nonage’) was voidable.
Held: It was not voidable. The king’s natural body was inseparable from his body politic (a corporation sole), which was never under age. Seisin can only pass to the Crown as a matter of record. Furthermore, seisin could not therefore pass to the Crown either by livery of seisin or by the disseisin of a subject’s land by a Crown servant.

Citations:

(1561) 1 Plow 213

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Crown Estate Commissioners CA 20-Feb-2008
The commissioners sought to claim title to a foreshore by adverse possession. The claimant asserted that he had acquired title in his capacity of Lord Marcher of Magor which had owned the bed of the estuary since the Norman Conquest, and that the . .
Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Updated: 04 December 2022; Ref: scu.264648

Friend v Duke of Richmond: 1667

Two subjects brought action for ejectment. The defendant took the point that the claimant could not sue in ejectment. It was necessary to allege entry by a tenant. There could not be an entry, as the Crown had already obtained a judgment based on an information of intrusion and a person could not enter against the Crown. The plaintiff responded that he was not bound by the judgment, as he was not a party to that action and so he could allege an entry.
Held: The objection was overruled. Sir Matthew Hale observed obiter that ‘And though the judgment in intrusion includes an amoveas manum, yet it extends only to such as may lawfully be amoved. And if the sheriff do otherwise, he is a disseisor; as if in a judgment against A., in a real action, he should oust B., who neither claims under A., nor is tenant to the action. And the King cannot gain anything by wrong; so that he cannot be a disseisor, but they that enter.’

Judges:

Hale CB

Citations:

(1667) Hardres 461

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Crown Estate Commissioners CA 20-Feb-2008
The commissioners sought to claim title to a foreshore by adverse possession. The claimant asserted that he had acquired title in his capacity of Lord Marcher of Magor which had owned the bed of the estuary since the Norman Conquest, and that the . .
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Land

Updated: 04 December 2022; Ref: scu.264649

Ha and Another v State of New South Wales and Others: 17 Feb 1997

(High Court of Australia) The court unanimously considered that ‘it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law’. This would especially be so where ‘non-compliance with a properly impugned statute exposes a person to criminal prosecution’. ‘This Court has no power to overrule cases prospectively. A hallmark of the judicial process has long been the making of binding decisions of rights and obligations arising from the operation of the law upon past events or conduct. The adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non-judicial power. Prospective overruling is thus inconsistent with judicial power on the simple ground that the new regime that would be ushered in when the overruling took effect would alter existing rights and obligations. If an earlier case is erroneous and it is necessary to overrule it, it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law.’

Citations:

(1997) 189 CLR 465, [1997] HCATrans 82

Links:

Austlii

Jurisdiction:

Australia

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: 01 December 2022; Ref: scu.228295

Linkletter v Walker: 1965

(US Supreme Court) In both criminal and civil cases ‘the accepted rule today is that in appropriate cases the Court may in the interests of justice make the rule prospective.’

Citations:

(1965) 381 US 618

Jurisdiction:

United States

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.

International, Constitutional

Updated: 01 December 2022; Ref: scu.228287

Attorney General v Danhai Williams and others: PC 12 May 1997

(Jamaica) Customs investigating officers on attended the appellant’s premises in the course of an investigation of fraudulent importation. The officers were met by a hostile crowd, and the claimant did not attend for interview as invited. A search warrant was obtained and executed. The claimants said the warrant was unconstitutional and unlawful and sought return of documents taken. They said that the court had acted on the basis that the justice issuing the warrant could rely on the officer being satisfied of the matters alleged without making his own judgement.
Held: An officer making an application owed a duty of openness. His disclosures to the magistrate were in confidence, though there were matters which a justice need not be made aware of.
‘Their Lordships do not underestimate the difficulty and delicacy of the task which is put upon Justices and other judicial officers to whom application is made for search warrants. The applicant is generally a police or other law enforcement officer who knows far more than the Justice about the investigation. The application is made ex parte; there is naturally a predisposition upon the part of the Justice to be helpful to the officer who is present and assures him that a search is necessary. The officer may be known to the Justice, who may have learnt to trust his judgment and veracity. Their Lordships do not suggest that this is something which should be ignored. On the other hand, the citizen whose rights the Justice is constitutionally required to protect is absent and seldom depicted in the most favourable light. Nevertheless, if the constitutional safeguards are to have any meaning, it is essential for the Justice conscientiously to ask himself whether on the information given to him upon oath (in the case of section 203, either orally or in writing) he is satisfied that the officer’s suspicion is based upon reasonable cause.’
‘Although the courts may sometimes feel frustrated by their inability to go behind the curtain of the recital that the justice was duly satisfied and to examine the substance of whether reasonable grounds for suspicion existed (a frustration articulated by Lord Scarman in R v Inland Revenue Comrs, Ex p Rossminster Ltd [1980] AC 952, 1022) their Lordships think that it would be wrong to try to compensate by creating formal requirements for the validity of a warrant which the statute itself does not impose. In so doing, there is a risk of having the worst of both worlds: the intention of the legislature to promote the investigation of crime may be frustrated on technical and arbitrary grounds, while the courts, in cases in which the outward formalities have been observed, remain incapable of protecting the substance of the individual right conferred by the Constitution.’

Judges:

Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde, Lord Hutton

Citations:

[1997] UKPC 22, [1997] 3 WLR 389, [1998] AC 351

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

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 – 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 by:

Cited – Gibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Magistrates

Updated: 01 December 2022; Ref: scu.159232

MEC for Education: KwazuluNatal and Others v Pillay: 5 Oct 2007

(Constitutional Court of South Africa) A rule which prevented a Tamil-Hindu girl from wearing a nose stud which was central to her cultural and religious identity was discriminatory on religious and cultural grounds. The court rejected an argument similar to the one put forward in this case that the refusal to offer the girl an exemption to the uniform code was justified to promote uniformity and acceptable conventional among students.
Langer CJ said that the comparator group which was treated better than the claimant was those pupils: ‘whose sincere religious cultural beliefs or practices, or religious beliefs or practices are not compromised by the [Uniform] Code, as compared to those whose beliefs or practices are compromised’.

Judges:

Langer CJ

Citations:

[2007] ZACC 21

Links:

Saflii

Jurisdiction:

England and Wales

Cited by:

Cited – Watkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Discrimination

Updated: 30 November 2022; Ref: scu.271242

United States of America v Cobb: 5 Apr 2001

Canlii (Supreme Court of Canada) Constitutional law — Charter of Rights — Fundamental justice – Remedies — Extradition — Whether considerations relating to fundamental justice engaged at committal stage of extradition process — Whether extradition judge ought to have waited for ministerial decision on surrender before granting stay — Canadian Charter of Rights and Freedoms, ss. 7, 24 — Extradition Act, R.S.C. 1985, c. E-23, s. 9(3).
The USA had indicted a large number of defendants, including the two Canadian appellants, on mail fraud charges. Many had submitted voluntarily to the Court in Pennsylvania and on sentencing one of them the trial judge had said ‘I want you to believe me that as to those people who don’t come in and cooperate and if we get them extradited and they are found guilty, as far as I am concerned they are going to get the absolute maximum jail sentence that the law permits me to give.’
About a week before the Canadian extradition hearing the American prosecuting attorney was interviewed on Canadian television and said: ‘I have told some of these individuals, ‘look, you can come down and you can put this behind you by serving your time in prison and making restitution to the victims, or you can wind up serving a great deal longer sentence under much more stringent conditions’ and describe those conditions to them.’
Asked by the interviewer ‘How would you describe those conditions?’, the attorney replied: ‘You are going to be the boyfriend of a very bad man if you wait out your extradition’. That was understood by the Court to mean that they would be subject to homosexual rape. Asked then: ‘And does that have much of an impact on these people?’, the attorney answered: ‘Well, out of the 89 people we have indicted so far, approximately 55 of them have said, ‘We give up”.
Held: The appela was alloed, and te extradition process was stayed.
Arbour J said: ‘By placing undue pressure on Canadian citizens to forego due legal process in Canada, the foreign state has disentitled itself from pursuing its recourse before the courts and attempting to show why extradition should legally proceed. The intimidation bore directly upon the very proceedings before the extradition judge . . [The judge] was also correct in concluding as he did that this was one of the clearest of cases where to proceed further with the extradition hearing would violate ‘those fundamental principles of justice which underlie the community’s sense of fair play and decency’ (Keyowski [1988] 1 SCR 657, 658-659), since the requesting state in the proceedings, represented by the Attorney General of Canada, had not repudiated the statements of some of its officials that an unconscionable price would be paid by the appellants for having insisted on exercising their rights under Canadian law.’

As to the argument based on the appellants not in fact having been dissuaded from exercising their procedural rights: ‘I find no merit in this argument. It may very well be that the threats of the severe and illegal consequences that may follow their resistance to extradition may have made the appellants more, not less, determined to resist their surrender. Frankly, this would have been quite understandable. The abuse of process here consists in the attempt to interfere with the due process of the court. The success or failure of that interference is immaterial.’

Judges:

McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ

Citations:

[2001] 1 SCR 587, (2001) 197 DLR (4th) 46, (2001) 152 CCC (3d) 270, (2001) 41 CR (5th) 81, (2001) 81 CRR (2d) 226, (2001) 145 OAC 3

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – McKinnon v The United States of America and Anotherr HL 30-Jul-2008
The appellant sought to avoid extradition to the US. He had hacked into 97 US government computers. He argued that the punishment he might expect in the US was completely disproportionate to the offence, and that he had been misled into entering . .
Lists of cited by and citing cases may be incomplete.

Extradition, Constitutional

Updated: 30 November 2022; Ref: scu.272792

Rangarajan v Jagjivan Ram: 30 Mar 1989

(Supreme Court of India) Democracy is a government by the people via open discussion. The democratic form of government itself demands of its citizens an active and intelligent participation in the affairs of the community. The public discussion with people’s participation is a basic feature and a rational price of democracy which distinguishes it from all other forms of government.

Judges:

J Shetty

Citations:

[1990] LRC (Const) 412

Links:

Ll of India

Jurisdiction:

England and Wales

Cited by:

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

Constitutional

Updated: 30 November 2022; Ref: scu.182065

Benjamin, Vanderpool and Gumbs v The Minister of Information and Broadcasting and The Attorney General for Anguilla: PC 14 Feb 2001

PC (Anguilla) A first non-religious radio station had been formed, but came to include much criticism of the government. One programme was suspended by the government. The programme makers complained that this interfered with their constitutioinal and human rights to freedom of thought, freedom of expression and freedom from discrimination.
Held: The motive in closing the programme was relevant in deciding whether there was a contravention of section 11. It wanted to stop criticism of the state lottery. Mr Benjamin had no primary right to broadcast. But he did have a right not to have his access to the medium denied on politically discriminatory grounds. There had been a contravention of his rights to freedom of speech and expression protected by section 11 of the Constitution.

Judges:

Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Nolan, Lord Cooke of Thorndon, Lord Clyde

Citations:

[2001] 1 WLR 1040, [2001] UKPC 8

Links:

Bailii, PC, PC

Statutes:

Constitution of Anguilla 1 8 10 11 13

Jurisdiction:

England and Wales

Citing:

Cited – The Attorney General v Payne 1982
. .
Cited – Regina v Greater London Council ex Parte Blackburn 1976
The making of an order of prohibition was postponed to allow the defendant Council to take certain action. . .
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 – Lingens v Austria ECHR 8-Jul-1986
Freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, . .
Cited – Oberschlick v Austria ECHR 23-May-1991
A journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of . .
Cited – Informationsverein Lentia Etal v Austria ECHR 1-Dec-1993
A prohibition on the setting up and operating of a broadcasting station is capable of being violation.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Not necessary to examine Art. . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – Rangarajan v Jagjivan Ram 30-Mar-1989
(Supreme Court of India) Democracy is a government by the people via open discussion. The democratic form of government itself demands of its citizens an active and intelligent participation in the affairs of the community. The public discussion . .
Cited – Fernando v Sri Lanka Broadcasting Corporation 1996
(Sri Lanka) Broadcasts were planned including discussion by experts and listeners. Mr Fernando had participated in these discussions. After criticisms of the government the service came to an end and the broadcasts included little listener . .
Cited – Cable and Wireless (Dominica) Limited v Marpin Telecoms and Broadcasting Company Limited PC 30-Oct-2000
(Dominica) The importance of telecommunications in today’s society meant that it would be an infringement of the right of freedom of expression guaranteed under the constitution to grant a monopoly right to provide such services within a nation. . .
Cited – Olivier v Buttigieg PC 1967
(Malta) Following the condemnation by the Archbishop of Malta of a weekly newspaper the ‘Voice of Malta’, the entry into hospitals and branches of his department of newspapers condemned by the church authorities was ‘strictly forbidden’.
Held: . .

Cited by:

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

Media, Constitutional, Human Rights

Updated: 30 November 2022; Ref: scu.163276

Ministry of Agriculture, Fisheries and Food v Jenkins: CA 1963

The Crown was not bound by the Town and Country Planning Act 1947 to get planning permission for the afforestation of its land, though its tenants are so bound.
Lord Denning MR said: ‘Looking at the whole of the Town and Country Planning Act, 1947, I am satisfied that the Crown does not need to get planning permission in respect of its own interest in Crown lands. The reason it is exempt is, not by virtue of any provision in the Act itself, but by reason of the general principle that the Crown is not bound by an Act unless it is expressly or impliedly included.’

Judges:

Lord Denning MR, Danckwerts LJ

Citations:

[1963] 2 QB 317

Jurisdiction:

England and Wales

Cited by:

Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Planning

Updated: 27 November 2022; Ref: scu.651109

Attorney General v Hancock: 1940

The Crown could enforce a debt for unpaid income tax without the leave of the court, not being bound by the provisions of the Courts (Emergency Powers) Act 1939, which prohibited enforcement without leave.

Citations:

[1940] 1 KB 427

Jurisdiction:

England and Wales

Cited by:

Cited – Lord Advocate v Dumbarton District Council HL 1989
The House was asked whether the Ministry of Defence was entitled to cone off a section of the A814 road without the permission of the roads authority under the Roads (Scotland) Act 1984 or the local planning authority under the Town and Country . .
Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Constitutional

Updated: 27 November 2022; Ref: scu.651108

Cooper v Hawkins: 1904

Vehicles driven by Crown servants on Crown business were not subject to the speed limits laid down by the local authority under the Locomotives Act 1865.

Citations:

[1904] 2 KB 164

Jurisdiction:

England and Wales

Citing:

Noted – Gorton Local Board v Prison Comrs (Note) 1887
The Prison Commissioners were not bound by local by-laws made under the Public Health Act 1875, requiring the local authority to certify that newly built houses were fit for human habitation. . .

Cited by:

Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Constitutional

Updated: 27 November 2022; Ref: scu.651107

Lord Advocate v Dumbarton District Council: HL 1989

The House was asked whether the Ministry of Defence was entitled to cone off a section of the A814 road without the permission of the roads authority under the Roads (Scotland) Act 1984 or the local planning authority under the Town and Country Planning (Scotland) Act 1972.
Held: Before the Acts of Union, Scots law did not have the same presumption as English law that a statute was not binding on the Crown unless explicitly so made, and there were Scottish cases suggesting that the rule was rather different there. Lord Keith said that there were no rational grounds for adopting a different approach to the construction of statutes in Scotland and in England and that the modern English approach should prevail.

Judges:

Lord Keith of Kinkel

Citations:

[1990] 2 AC 580, [1990] 1 All ER 1, [1989] 3 WLR 1346

Jurisdiction:

Scotland

Citing:

Cited – Attorney General v Hancock 1940
The Crown could enforce a debt for unpaid income tax without the leave of the court, not being bound by the provisions of the Courts (Emergency Powers) Act 1939, which prohibited enforcement without leave. . .
Cited – The Province of Bombay v The Municipal Corporation of The City of Bombay and Another PC 10-Oct-1946
(Bombay) The Board considered whether the Crown was bound by section 222(1) and section 265 of the City of Bombay Municipal Act 1888, which in effect gave the Municipality power to carry water mains for the purposes of water supply through, across . .
Cited – Madras Electric Supply Corp Ltd v Boarland House of Lords HL 11-Mar-1955
Income Tax, Schedule D – Balancing charge – Succession by Crown – Whether cessation provisions apply – Income Tax Act, 1918 (8 and 9 Geo. V, c. 40), Schedule D, Cases I and II, Rule 11 ; Finance Act, 1926 (16 and 17 Geo. V, c. 22), Section 32.
Cited – The British Broadcasting Corporation v Johns (HM Inspector of Taxes) CA 5-Mar-1964
The BBC claimed to be exempt from income tax. It claimed crown immunity as an emanation of the crown. The court had to decide whether the BBC was subject to judicial review.
Held: It is not a statutory creature; it does not exercise statutory . .

Cited by:

Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .
Lists of cited by and citing cases may be incomplete.

Land, Road Traffic, Constitutional

Updated: 27 November 2022; Ref: scu.651105

Madras Electric Supply Corp Ltd v Boarland House of Lords: HL 11 Mar 1955

Income Tax, Schedule D – Balancing charge – Succession by Crown – Whether cessation provisions apply – Income Tax Act, 1918 (8 and 9 Geo. V, c. 40), Schedule D, Cases I and II, Rule 11 ; Finance Act, 1926 (16 and 17 Geo. V, c. 22), Section 32.
The Respondent Company carried on an electricity undertaking in Madras under several licences which all provided that on 29th August, 1947, the local authority or local government should have the option to purchase the undertaking. This option was exercised by the Madras Government who took possession of the undertaking on that date and thereafter carried it on.
A balancing charge was made on the Company for the year 1947-48 on the footing that on 29th August, 1947, the Madras Government succeeded to the trade within the meaning of Rule 11 (2) of Cases I and II of Schedule D; that accordingly the basis period for the assessment on the Company for that year was the period beginning 5th April, 1947, and ending 29th August, 1947; and that the sale of the Company’s undertaking occurred in that basis period. On appeal to the Special Commissioners, the Company contended that the person succeeding to its trade was the Crown; that Rule 11 (2) of Cases I and II of Schedule D had no application where the successor to the trade was the Crown or was not chargeable to Income Tax; and that the Company’s basis period for the year of assessment 1947-48 was therefore the preceding year, the year to 3Is/ December, 1946, and not the period in which the sale occurred. The Commissioners allowed the appeal, holding that the trade was carried on after 29th August, 1947, by the Crown and that the Crown was not a ‘person ‘for the purposes of Rule 11 (2).
Held, that ‘person ‘in Rule 11 (2) includes the Crown.
The House was asked whether the Crown was a ‘person’ for a particular purpose. While holding that the Crown was such a person, their Lordships reiterated the classic doctrine, Lord MacDermott and Lord Reid locating this as a rule of statutory construction rather than an aspect of the royal prerogative.

Judges:

Lord MacDermott and Lord Reid

Citations:

[1955] UKHL TC – 35 – 612, (1955) 34 ATC 53, [1955] 2 WLR 632, [1955] 1 All ER 753, 8 R and IT 189, 35 TC 612, [1955] TR 57, [1955] AC 667

Links:

Bailii

Statutes:

Income Tax Act 1918

Jurisdiction:

England and Wales

Cited by:

Cited – Lord Advocate v Dumbarton District Council HL 1989
The House was asked whether the Ministry of Defence was entitled to cone off a section of the A814 road without the permission of the roads authority under the Roads (Scotland) Act 1984 or the local planning authority under the Town and Country . .
Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Constitutional

Updated: 27 November 2022; Ref: scu.601882

Sunshine Porcelain Potteries Proprietary Limited v Nash: PC 17 Jul 1961

(From the High Court of Australia) There is a presumption that a statute was intended to operate prospectively and not retrospectively.
Lord Reid said: ‘Generally, there is a strong presumption that a legislature does not intend to impose a new liability in respect of something that has already happened, because generally it would not be reasonable for a legislature to do that . . But this presumption may be overcome not only by express words in the Act but also by circumstances sufficiently strong to displace it.’

Judges:

Viscount Simonds, Lord Reid, Lord Radcliffe, Lord Tucker, Lord Hodson

Citations:

[1961] UKPC 34, [1961] AC 927, [1961] 3 WLR 727, [1961] 3 All ER 203

Links:

Bailii

Jurisdiction:

Australia

Cited by:

Cited – Barlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 27 November 2022; Ref: scu.445327

The Province of Bombay v The Municipal Corporation of The City of Bombay and Another: PC 10 Oct 1946

(Bombay) The Board considered whether the Crown was bound by section 222(1) and section 265 of the City of Bombay Municipal Act 1888, which in effect gave the Municipality power to carry water mains for the purposes of water supply through, across or under any street and ‘into, through or under any land whatsoever within the city.’
Held: The Privy Council allowed the appeal against the decision of the High Court of Bombay that the Crown was bound by the legislation in question.
‘The general principle to be applied in considering whether or not the Crown is bound by general words in a statute is not in doubt. The maxim of the law in early times was that no statute bound the Crown unless the Crown was expressly named therein, ‘Roy n’est lie par ascun statute si il ne soit expressement nosme.’ But the rule so laid down is subject to at least one exception. The Crown may be bound, as has often been said, ‘by necessary implication’. If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions.’
Lord Du Parcq rejected the contention on behalf of the Respondent that, whenever a statute is enacted ‘for the public good’, the Crown, although not expressly named, must be held to be bound by its provisions and that, as the Act in question was manifestly intended to secure the public welfare, it must bind the Crown. Every statute must be supposed to be ‘for the public good’, at least in intention, and even when it is apparent that one object of the legislature is to promote the welfare and convenience of a large body of the King’s subjects by giving extensive powers to a local authority, it cannot be said that the Crown is necessarily bound by the enactment.
‘Their Lordships prefer to say that the apparent purpose of the statute is one element, and may be an important element to be considered when an intention to bind the Crown is alleged. If it can be confirmed that, at the time when the statute was passed and received the Royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound. Their Lordships will add that when the Court is asked to draw this inference, it must always be remembered that, if it be the intention of the legislature that the Crown shall be bound, nothing is easier than to say so in plain words.’

Judges:

Lord Du Parcq

Citations:

[1946] UKPC 41, [1947] LJR 380, [1947] AC 58, 62 TLR 643

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Black, Regina (on The Application of) v Secretary of State for Justice Admn 5-Mar-2015
The serving prisoner said that new general restrictions on smoking in public buildings applied also in prisons. were a breach of his human rights. The only spaces where prisoners were allowed now to smoke were their cells, and he would share cells . .
Cited – Secretary of State for Justice v Black CA 8-Mar-2016
The Secretary of State appealed against a declaration that the provisions prohibiting smoking in pubic places applied in prisons.
Held: The appeal succeeded. . .
Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .
Cited – Lord Advocate v Dumbarton District Council HL 1989
The House was asked whether the Ministry of Defence was entitled to cone off a section of the A814 road without the permission of the roads authority under the Roads (Scotland) Act 1984 or the local planning authority under the Town and Country . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 27 November 2022; Ref: scu.447971

Canada (Minister of Justice) v Khadr: 23 May 2008

Constitutional law – Charter of Rights – Application – Fundamental justice – Duty to disclose – Canadian officials interviewing detainee in Guantanamo Bay and sharing contents of interviews with U.S. authorities – Whether principles of international law and comity of nations precluded application of Charter – Whether process in place at Guantanamo Bay at that time violated Canada’s binding obligations under international law – If so, whether detainee entitled to disclosure of records of interviews and of information given to U.S. authorities as a direct consequence of conducting interviews – Canadian Charter of Rights and Freedoms, s. 7.
Evidence – Fresh evidence – Admissibility – Fresh evidence admissible to clarify record – No unfairness to other parties in admitting evidence.

Judges:

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

Citations:

2008 SCC 28, [2008] 2 SCR 125

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Evidence

Updated: 27 November 2022; Ref: scu.272826

Khadr v Canada (Attorney General): 25 Jun 2008

The court ordered disclosure by the Canadaian authorities of the transcripts of interviews released to the government relating to the time when the claimant had been held in Guantanamo Bay by the USA.

Judges:

Mosley J

Citations:

2008 FC 807

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Evidence

Updated: 27 November 2022; Ref: scu.272827

Stockdale v Hansard And Others: 7 Feb 1837

The order of the House of Commons for the publication and sale by certain booksellers of Reports laid before the House, does not exempt the booksellers from answering in an action of libel any individual injured by defamatory matters in such Reports so sold by them.

Citations:

[1837] EngR 487, (1837) 2 M and Rob 9, (1837) 174 ER 196 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

see Also – Stockdale v Hansard And Others 7-Feb-1837
The House of Commons, in the years 1836 and 1836, made resolutions that parliamentary papers and reports, printed for the use of the house, should be publicly sold by their printer ; and afterwards a report from the Inspectors of Prisons was ordered . .
appeal from – Stockdale v Hansard 1839
Bailii It is no defence in law to an action for publishing a libel, that defamatory matter is part of a order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the . .
Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 26 November 2022; Ref: scu.313604

Inco Europe Ltd and Others v First Choice Distribution (A Firm) and Others: CA 10 Sep 1998

The Court of Appeal has jurisdiction to hear an appeal against a judge’s grant or refusal of an order staying court proceedings where arbitration was sought by one party under an agreement.

Judges:

Hobhouse LJ

Citations:

Times 22-Oct-1998, Gazette 28-Oct-1998, [1998] EWCA Civ 1460, [1999] 1 WLR 270, [1999] CLC 165

Links:

Bailii

Statutes:

Arbitration Act 1996 9

Jurisdiction:

England and Wales

Cited by:

Appeal from – Inco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Constitutional

Updated: 25 November 2022; Ref: scu.82311

Jay v Topham: 1684

The defendant was serjeant at arms to the House of Commons. Acting under orders from the House, for an alleged contempt of it, he arrested the plaintiff and others. The plaintiff now sued for false imprisonment.
Held: The court overruled the demurrer as to the jurisdiction of the court over an officer of the House.

Judges:

Sir Francis Pemberton CJ and Sir Thomas Jones

Citations:

(1684) 12 How St Tr 822, 1689 Com Journ x 22, (1689) 14 East 102, (1689) 104 ER 540

Jurisdiction:

England and Wales

Cited by:

Cited – Chaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 25 November 2022; Ref: scu.421331

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 under the 1974 Act.
Held: The claim was time barred. The respondent’s right to rely upon entitlement to plead the twelve-month time bar constituted an accrued right, and the Act was not to be construed retrospectively depriving it of its defence unless such a construction was unavoidable, which it was not.
Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. Whether a statute is to be construed in a retrospective sense, and if so to what extent, depends on the intention of the legislature as expressed in the wording of the statute, having regard to the normal canons of construction and to the relevant provisions of any interpretation statute.
Lord Brightman said: ‘Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past.’ As to whether a right to rely upon a statutory limitation provision of that type was a vested right he answered ‘yes’, citing Maxwell v Murphy. The respondent had acquired an ‘accrued right’ on the failure by the appellants to commence an action within the specified period. The proper approach to the construction of the 1948 Ordinance was to see whether the statute, if applied retrospectively, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an Act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable.’
He concluded: ‘In the opinion of their Lordships an accrued entitlement on the part of a person to plead the lapse of a limitation period as an answer to the future institution of proceedings is just as much a ‘right’ as any other statutory or contractual provision against a future suit.’

Judges:

Lord Brightman, Lord Fraser of Tulleybelton, Lord Scarman, Kord Kwry, Lord Bridge of Harwich

Citations:

[1983] 1 AC 553, [1982] 3 All ER 833, [1982] 3 WLR 1026

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

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 – Regina v Register of Trade Marks ex parte Interturbine Germany Gmbh Admn 22-Feb-1999
An action was begun opposing a trade mark. It was conducted under the old rules, which did not allow for an order for discovery. After the new rules came into effect, discovery was sought, but the registrar said the old rules would continue to apply . .
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 – 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 . .
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 – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
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 – 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. . .
Cited – Lawrence v Financial Services Commission PC 14-Dec-2009
lawrence_fscPC2009
(Jamaica) The appellant challenged a fixed penalty notice issued in respect of a financial services allegation, saying that it had been made without him having been allowed opportunity to be heard by an impartial tribunal.
Held: Actions under . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Limitation

Updated: 25 November 2022; Ref: scu.180540

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 disputable question of interpretation of the Constitution and not one which has merely been contrived for the purpose of obtaining leave to appeal to the Board as of right.

Judges:

Lord Diplock

Citations:

[1981] 1 WLR 1468

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 by:

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

Constitutional

Updated: 25 November 2022; Ref: scu.181859

Christian Education South Africa v Minister of Education: 18 Aug 2000

(Constitutional Court of South Africa) The court considered a ban on corporal punishment in schools in a religious context: ‘Though there might be special problems attendant on undertaking the limitations analysis in respect of religious practices, the standard to be applied is the nuanced and contextual one required by s36 and not the rigid one of strict scrutiny.’ and ‘The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.’

Judges:

Sachs J

Citations:

(2000) 9 BHRC 53

Links:

Worldlii

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights

Updated: 24 November 2022; Ref: scu.223032

Deaton v Attorney General and Revenue Commissioners: 1963

(Supreme Court of Ireland) The court looked at a law in which the choice of alternative penalties was left to the executive: ‘There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the Courts . . The selection of punishment is an integral part of the administration of justice, and, as such, cannot be committed to the hands of the executive . . ‘

Citations:

[1963] IR 170

Jurisdiction:

England and Wales

Cited by:

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

Constitutional, Commonwealth

Updated: 24 November 2022; Ref: scu.211410

Electrotec Services Limited v Issa Nicholas (Grenada) Limited: PC 27 Oct 1997

(Grenada) The Court of Appeal of Grenada in granting leave to appeal to the Judicial Committee had imposed a condition requiring security of andpound;500. The respondent then applied to the Judicial Committee for an order under its inherent jurisdiction that the appellant pay into court the sum of andpound;130,000 as security for costs,
Held: the Committee refused to make such an order. Rule 2 of the 1982 Rules which provides that an appeal shall be either with the leave of the court appealed from or with special leave granted by Her Majesty in Council. ‘It follows that notwithstanding that the case may be one in which an appeal lies as of right, the leave of the Court of Appeal must be obtained. Such leave is not, however, a matter of discretion for that court.’ and ‘It would therefore appear that the function of the Court of Appeal upon an application for leave is to satisfy itself that the case is one in which, under the Constitution of Grenada, a right of appeal exists and, if so satisfied, to consider the exercise of the power to impose conditions conferred by article 5. Leave is granted ‘in the first instance’ subject to compliance with those conditions and final leave is granted when the conditions have been complied with.’

Judges:

Lord Hoffmann

Citations:

[1997] UKPC 50, [1998] 1 WLR 202

Links:

Bailii

Statutes:

West Indies Associated States (Appeals to Privy Council) (Grenada) Order 1967 (SI 1967/224) 5, Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 (SI 1982/1676) 2

Jurisdiction:

England and Wales

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 – 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 . .
See Also – Electrotec Services Limited v Issa Nicholas (Grenada) Limited (2) PC 16-Feb-1998
(Grenada) . .
Lists of cited by and citing cases may be incomplete.

Costs, Constitutional

Updated: 24 November 2022; Ref: scu.184490

The Scotch Whisky Association and Others, Re Judicial Review: SCS 26 Sep 2012

Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine industry and trade respectively (‘the petitioners’). The petitioners’ application is for judicial review of the Alcohol (Minimum Pricing) (Scotland) Act 2012 (‘the 2012 Act’) and related decisions. The petitioners’ challenge to the 2012 Act includes assertions (i) that it was outwith the legislative competence of the Scottish Parliament, and (ii) that there was no evidential basis for the belief that the 2012 Act by imposing a minimum price would reduce the harmful consumption of alcohol or improve the public health of the general population.

Citations:

[2012] ScotCS CSOH – 156

Links:

Bailii

Statutes:

Alcohol (Minimum Pricing) (Scotland) Act 2012

Jurisdiction:

Scotland

Cited by:

See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See Also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
See Also – Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland ECJ 23-Dec-2015
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative . .
See also – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Lists of cited by and citing cases may be incomplete.

Constitutional, European

Updated: 23 November 2022; Ref: scu.464697

Roberts v Crown Estate Commissioners: CA 20 Feb 2008

The commissioners sought to claim title to a foreshore by adverse possession. The claimant asserted that he had acquired title in his capacity of Lord Marcher of Magor which had owned the bed of the estuary since the Norman Conquest, and that the Crown could not acquire title by adverse possession, by a wrong against a subject. The Crown argued that section 37 applied the law equally to actions by or against the Crown.
Held: The claim failed. ‘Quite apart from the express provision putting the Crown on the same footing as its subjects in matters of limitation, the general purpose and policy of setting time limits on actions for the recovery of land by the paper title owner (the protection of long continued possession of land in the public interest of certainty and stability, and the protection of defendants against the injustice of stale claims, which become more difficult to rebut with the loss of evidence in the passage of time) apply to land in the possession of the Crown as much as they apply in the case of land in the possession of another subject. ‘ and ‘if contrary to my opinion, there ever was a constitutional principle or rule limiting the right of the Crown to acquire title to land by adverse possession, it ceased to exist by reason of the combined effect of the 1947 Act and the 1939 Act. As against another subject, a subject can obtain adverse possession of land having a root in an unlawful entry into possession. The same law that applies between subjects applies as between the Crown and its subjects. ‘

Citations:

[2008] EWCA Civ 98, [2008] 2 P and CR 1, [2008] 8 EG 157, [2008] Ch 439, [2008] 2 WLR 1111, [2008] 1 EGLR 129, [2008] 1 WLR 1111, [2008] NPC 21

Links:

Bailii

Statutes:

Limitation Act 1980 37(1), Crown Proceedings Act 1947 2(1)(a), Magna Carta 29

Jurisdiction:

England and Wales

Citing:

Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Case of the Duchy of Lancaster 1561
Queen Elizabeth I wished to know whether a lease granted by Edward VI of some land within the Duchy while under the age of 21 (‘during his nonage’) was voidable.
Held: It was not voidable. The king’s natural body was inseparable from his body . .
Cited – Attorney-General v Tomline (No 3) ChD 1877
For more than 20 years the Crown had been in possession of land forming part of a manor in Suffolk owned in fee simple by Colonel Tomline, who then entered the land in order to dig out mineral material (coprolites-fossilised dinosaur dung). The . .
Cited – McDonnell v McKinty 1847
Discontinuance of possession of land can occur where the paper title owner having abandoned possession, actual possession is taken by another person in whose favour or for whose protection the Limitation Act could operate. . .
Cited – Friend v Duke of Richmond 1667
Two subjects brought action for ejectment. The defendant took the point that the claimant could not sue in ejectment. It was necessary to allege entry by a tenant. There could not be an entry, as the Crown had already obtained a judgment based on an . .
Cited – Goodman v Mayor of Saltash HL 1882
A gift was made of a right to fish to the freemen of the Borough of Saltash.
Held: The gift was as valid as a charitable gift as would be a gift to the inhabitants of the locality in general. When long and continuous enjoyment is established, . .
Lists of cited by and citing cases may be incomplete.

Land, Constitutional, Limitation

Updated: 23 November 2022; Ref: scu.264635

ANS and Another v ML: SCS 21 Jun 2011

In adoption proceedings, ML refused her consent to the proposed adoption. She argued that the provision in the 1997 Act (allowing a court to dispense with her consent) was beynd the competence of the Scottish Parliament, and infringed her right to family life.

Judges:

Lord President, Lady Paton, Lord Kingarth

Citations:

[2011] ScotCS CSIH – 38, 2012 SC 8, 2011 GWD 21-482, 2011 SLT 1204, [2011] CSIH 38, 2011 Fam LR 106, 2012 SCLR 172

Links:

Bailii

Statutes:

Adoption (Scotland) Act 2007, Scotland Act 1998 29(2)(d), European Convention on Human Rights 8

Jurisdiction:

Scotland

Cited by:

Appeal from – ANS and Another v ML SC 11-Jul-2012
The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
Lists of cited by and citing cases may be incomplete.

Adoption, Human Rights, Constitutional

Updated: 19 November 2022; Ref: scu.441319

Regina v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann: 1992

A local rabbi sought judicial review of the declaration of the Chief Rabbi, following an investigation into allegations of adultery with members of his congregation, that he was religiously and morally unfit to occupy his position.
Held: Simon Brown J said: ‘Mr Beloff invites my attention to certain passages in the judgments of the Court of Appeal both in Law’s case and in the Datafin Case [1987] Q.B. 815. I need not recite them. Their effect is clear enough. To say of decisions of a given body that they are public law decisions with public law consequences means something more than that they are decisions which may be of great interest or concern to the public or, indeed, which may have consequences for the public. To attract the court’s supervisory jurisdiction there must be not merely a public but potentially a governmental interest in the decision-making power in question. And, indeed, generally speaking the exercise of the power in question involves not merely the voluntary regulations of some important area of public life but also what Mr Beloff calls a ‘twin track system of control.’ In other words, where non-governmental bodies have hitherto been held reviewable, they have generally been operating as an integral part of a regulatory system which, although it is itself non-statutory, is nevertheless supported by statutory powers and penalties clearly indicative of government concern.’
. . And ‘As Mr Beloff points out, the court would never be prepared to rule on questions of Jewish law. Mr Carus, recognising this prospective difficulty, says that in advancing his challenge here, the applicant would be prepared to rely solely upon the common law concept of natural justice. But it would not always be easy to separate out procedural complaints from consideration of substantive principles of Jewish law which may underlie them . . That consideration apart, this court is hardly in a position to regulate what is essentially a religious function – the determination whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office. The Court must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state. One cannot, therefore, escape the conclusion that if judicial review lies here, then one way or another this secular court must inevitably be drawn into adjudicating upon matters intimate to a religious community’.
The state has not surrendered or delegated any of its functions or powers to the Church. None of the functions that the Church of England performs would have to be performed in its place by the state if the Church were to abdicate its responsibility. The relationship which the state has with the Church of England is one of recognition, not of the devolution to it of any of the powers or functions of government. ‘the court would never be prepared to rule on questions of Jewish law’ In relation to the determination of whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office, the court ‘must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state’

Judges:

Simon Brown J

Citations:

[1992] 1 WLR 1036

Jurisdiction:

England and Wales

Cited by:

Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
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 – Regina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali CA 12-May-1993
The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected . .
Cited – Blake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .
Cited – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Constitutional, Judicial Review

Updated: 18 November 2022; Ref: scu.184046

Howker v Secretary of State for Work and Pensions and Another: CA 8 Nov 2002

The applicant challenged the validity of regulations made by the respondent.
Held: The procedure under the Act envisaged that new regulations would be commented upon by the Social Security Advisory Committee. The Committee could allow a regulation to go through without comment, provided it received appropriate confirmation from the first respondent that the effect of the regulations was neutral or similar. In this case, the regulation was so certified, but incorrectly so, and had not been examined by the committee. The regulation was therefore ultra vires and invalid.

Judges:

Peter Gibson, Mance, Hale LJJ

Citations:

Times 19-Nov-2002, Gazette 16-Jan-2003, [2002] EWCA Civ 1623

Links:

Bailii

Statutes:

Social Security Administration Act 1992 172 173, Social Security (Incapacity for Work and General Amendments) Regulations 1996 (1996 No 484) 27

Jurisdiction:

England and Wales

Benefits, Constitutional

Updated: 18 November 2022; Ref: scu.178198

European Commission v Systran Sa: ECJ 18 Apr 2013

ECJ Appeals – Articles 225(1) EC, 235 EC and 288, second paragraph, EC – Action in non-contractual liability against the European Community – Assessment of the non-contractual character of the dispute – Jurisdiction of the Community Courts

Citations:

C-103/11, [2013] EUECJ C-103/11

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 17 November 2022; Ref: scu.472721

Bowditch v Balchin: 1855

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

Judges:

Pollock CB

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Constitutional

Updated: 17 November 2022; Ref: scu.241342

Campbell v Hall: 1774

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

Judges:

Mansfield LCJ

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
Cited – 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 – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Liyange v Regina PC 1966
The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, . .
Cited – Misick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 1-May-2009
The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption. . .
Cited – Liyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 17 November 2022; Ref: scu.242139

Sargeant, Regina (on The Application of) v First Minister of Wales and Another: Admn 27 Mar 2019

The claimant sought to challenge the announcement by the First Minister of an independent inquiry into his dismissal of a member of his cabinet, the claimant’s husband, who then went on to commit suicide. The claimant said that the First Minster had in fact sought to set the operational protocol for the inquiry.
Held: The claim was allowed. The publicity surrounding the launch created a legitimate expectation that the inquiry would be independent of the First Minister. The Permanent Secretary had been given an unpublished remit which conflicted with the publicly declared terms for the inquiry.

Judges:

Haddon-Cave LJ, Swift J

Citations:

[2019] EWHC 739 (Admin), [2019] WLR(D) 187, [2019] 4 WLR 64

Links:

Bailii, Bailii Summary, WLRD

Statutes:

Government of Wales Act 2006

Jurisdiction:

Wales

Constitutional, Judicial Review

Updated: 13 November 2022; Ref: scu.635266

Evans v Information Commissioner: UTAA 18 Sep 2012

The claimant journalist had requested copies of correspondence between Prince Charles and assorted public bodies.
Held: ‘The Upper Tribunal allows the appeals by Mr Evans. A further decision identifying information to be disclosed to Mr Evans, along with the terms of substituted decision notices, will be issued pursuant to the tribunal’s directions dated 17 September 2012’. The information to be disclosed related to those matters where the Prince could be considered to be acting as an advocate.

Judges:

Walker J, Angel UTJ

Citations:

[2012] UKUT 313 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Evans, Regina (on The Application of) v HM Attorney General and Another Admn 9-Jul-2013
The claimant had requested disclosure of correspondence between Prince Charles and assorted government departments. It had been refused, the Attorney General issuing a certificate under section 53(2) after the Upper tribunal had allowed the . .
At UTAA – Evans, Regina (on The Application of) v HM Attorney General and Another CA 12-Mar-2014
The claimant journalist had requested disclosure under the 2000 Act of correspondence between the Prince of Wales and government departments. The Upper Tribunal had found that matters where the prince had acted as advocate were disclosable. . .
See Also – Evans v The Information Commissioner and Others CA 12-Mar-2014
Mr Evans had sought release under the 2000 Act of leers from the Prince of Wales to variou government ministers. The Upper Tribunal had allowed his appeal aganst refusal, but the Attorney had then issued a certificate that in his opinion, the . .
At UTAA – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Lists of cited by and citing cases may be incomplete.

Information, Constitutional

Updated: 12 November 2022; Ref: scu.466770

Regina v Parliamentary Commissioner for Standards Ex Parte Al-Fayed: CA 5 Nov 1997

The Parliamentary Commissioner for Standards had published a report relating to a complaint by the applicant against a Member of Parliament.
Held: The applicant sought permission to challenge this by judicial review. The applicant’s appeal failed. No judicial review was possible of the workings of the Parliamentary Commissioner for Standards despite the absence of any Appeal from his findings. To allow a judicial review would be to impugn the House of Commons. Lord Woolf MR said: ‘Activities of government are the basic fare of judicial review. Activities of Parliament are not the basic fare of judicial review. Indeed activities of Parliament are accepted in general by Mr. Pannick to be not subject to judicial review. If I may put it this way, if what was being sought here was judicial review of the Standing Committee responsible for supervising the activities of the Parliamentary Commissioner for Standards, Mr. Pannick would accept that judicial review was not available.’ and ‘The focus of the Parliamentary Commissioner for Standards is on the propriety of the workings and the activities of those engaged within Parliament. He is one of the means by which the select committee set up by the House carries out its functions, which are accepted to be part of the proceedings of the House. This being the role of the Parliamentary Commissioner for Standards, it would be inappropriate for this court to use its supervisory powers to control what the Parliamentary Commissioner for Standards does in relation to an investigation of this sort. The responsibility for supervising the Parliamentary Commissioner for Standards is placed by Parliament, through its standing orders, on the Committee of Standards and Privileges of the House, and it is for that body to perform that role and not the courts.’

Judges:

Lord Woolf MR

Citations:

Gazette 05-Nov-1997, [1997] EWCA Civ 2488, [1998] 1 WLR 669, [1998] 1 All ER 93

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – Chaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
Cited – Chaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Constitutional

Updated: 10 November 2022; Ref: scu.87524

Regina v Pan; Regina v Sawyer: 29 Jun 2001

Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Fundamental justice – Whether common law rule of jury secrecy and Criminal Code prohibition on disclosure of information about ‘proceedings of the jury’ consistent with principles of fundamental justice – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Juries – Rule of jury secrecy – Common law rule of jury secrecy providing that evidence concerning jury deliberations is inadmissible on appeal to impeach jury’s verdict – Whether common law rule of jury secrecy constitutional – Canadian Charter of Rights and Freedoms, s. 7.
Criminal law – Juries – Disclosure of jury proceedings – Criminal Code prohibiting disclosure of information about ‘proceedings of the jury’ except where disclosure is in context of obstruction of justice proceedings involving a juror – Whether provision constitutional – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Abuse of process – Fundamental justice – Double jeopardy – Whether mistrial improperly declared at end of accused’s second trial – Whether proceedings against accused should have been stayed at outset of third trial – Whether holding of third trial violated principle against double jeopardy – Canadian Charter of Rights and Freedoms, ss. 7, 11(h).
Criminal law – Charge to jury – Reasonable doubt – Accused convicted of first degree murder – Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.
Constitutional law – Charter of Rights – Fundamental justice – Whether common law rule of jury secrecy and Criminal Code prohibition on disclosure of information about ‘proceedings of the jury’ consistent with principles of fundamental justice – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Juries – Rule of jury secrecy – Common law rule of jury secrecy providing that evidence concerning jury deliberations is inadmissible on appeal to impeach jury’s verdict – Whether common law rule of jury secrecy constitutional – Canadian Charter of Rights and Freedoms, s. 7.
Criminal law – Juries – Disclosure of jury proceedings – Criminal Code prohibiting disclosure of information about ‘proceedings of the jury’ except where disclosure is in context of obstruction of justice proceedings involving a juror – Whether provision constitutional – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Abuse of process – Fundamental justice – Double jeopardy – Whether mistrial improperly declared at end of accused’s second trial – Whether proceedings against accused should have been stayed at outset of third trial – Whether holding of third trial violated principle against double jeopardy – Canadian Charter of Rights and Freedoms, ss. 7, 11(h).
Criminal law – Charge to jury – Reasonable doubt – Accused convicted of first degree murder – Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.

Judges:

McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ

Citations:

(2001) 147 OAC 1, (2001) 85 CRR (2d) 1, (2001) 43 CR (5th) 203, (2001) 155 CCC (3d) 97, (2001) 200 DLR (4th) 577, [2001] 2 SCR 344

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – HM Attorney General v Seckerson and Times Newspapers Ltd Admn 13-May-2009
The first defendant had been foreman of a jury in a criminal trial. He was accused of disclosing details of the jury’s votes and their considerations with concerns about the expert witnesses to the second defendant. The parties disputed the extent . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Criminal Practice

Updated: 09 November 2022; Ref: scu.343073

Counsel General for Wales, Regina (on The Application of) v Secretary of State for Business Energy and Industrial Strategy: Admn 19 Apr 2021

Application for permission to apply for judicial review brought by the Counsel General for Wales in connection with the interpretation of provisions of the United Kingdom Internal Markets Act 2020 and their effect on legislation of the Senedd enacted in accordance with the provisions of the Government of Wales Act 2006 as amended.

Judges:

Lord Justice Lewis

Citations:

[2021] EWHC 950 (Admin)

Links:

Bailii

Statutes:

Internal Markets Act 2020, Government of Wales Act 2006

Jurisdiction:

England and Wales

Wales, Constitutional

Updated: 05 November 2022; Ref: scu.661931

Case XLIX 5 and 6 E6: 1220

An Act of Parliament not printed, ordains, that the quarter-sessions to be held for the county of Anglesey, shall he held at Beaumarrice in that county, and not elsewhere ; indictments of felony were found at Newburgh in the said county against several persons at a quarter-sessions held there after the said act; the justices of peace proceeded to take the said indictment although the said act was shewed to them, exemplified under the great seal, before the indictments were found : resolved for law, by all the judges, that these indictnents were void; by reason of the said negative words : and this offence being complained of in the Star-chamber, every one of those justices of peace was fined 5l. Note the moderation of that age in settirig fines in that court. The 25 H. 8, cap. 21, has negative words, that dispensations for benefices shall be granted by the Archibishop of Canterbury, and not otherwise : yet the King’s power is not excluded ; for, by those negative words, it is only intended to exclude all papal dispensations.
Affirmative words in a statute do not take away the common law. The justices of peace may hold their quarter-sessions where they think fit in the county, if they are not restrained as above.

Citations:

6 E 6 1 Cr 275 3 Mar Dyer, [1220] EngR 550, (1220-1623) Jenk 212, (1220) 145 ER 144 (C)

Links:

Commonlii

Jurisdiction:

England and Wales

Magistrates, Constitutional

Updated: 04 November 2022; Ref: scu.461462

Daymond v South West Water Authority: HL 1976

A statutory instrument required a rating authority to collect a charge referable to sewerage services ‘from every person who is liable to pay the general rate in respect of a hereditament’. A householder whose property was not connected to a sewer brought an action for a declaration that the charging provision did not apply to him.
Held: (majority of three to two) The provision was ultra vires as worded because, although it did not refer to them in terms, it purported to charge even those people whose houses were not connected to the sewers. However the courts could save the legislation as a whole by notionally amending it to exclude the unconnected householders.
‘the meaning of the provision is to be gathered from the statute as a whole’.

Citations:

[1976] AC 609, [1976] 1 All ER 39, [1975] 3 WLR 865

Statutes:

Water Act 1973 30, The Water Authorities (Collection of Charges) Order 1974

Jurisdiction:

England and Wales

Cited by:

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

Constitutional, Rating

Updated: 03 November 2022; Ref: scu.222838

Gibraltar v Council: ECJ 29 Jun 1993

(Judgment) European Community jurisdiction on Gibraltar Airport dispute must await UK-Spain agreement.
ECJ Article 2(2) of Directive 89/463 concerning the authorization of scheduled inter-regional air services for the transport of passengers, mail and cargo between Member States, which suspends the application of that directive to Gibraltar airport until the cooperation arrangements for that airport agreed between the Governments of the Kingdom of Spain and the United Kingdom come into operation, cannot be regarded as constituting a decision within the meaning of the second paragraph of Article 173 of the Treaty, so that an action for its annulment brought by a natural or legal person is inadmissible.
Where an instrument contains limitations or derogations which are temporary or territorial in nature, they form an integral part of the provisions as a whole within which they are found and, in the absence of any misuse of powers, are of the same general nature as those provisions. The suspension by the said article of the application of the directive, which is itself of general application, affects equally all air carriers wishing to operate a direct inter-regional air service between another Community airport and Gibraltar airport and, more generally, all those using the latter airport. Furthermore, apart from the fact that Gibraltar airport is not the only airport to have been temporarily excluded from the scheme of the directive, the said suspension merely reflects the consequences of the existence of an objective obstacle, arising from differences between two Member States, to the immediate application of the directive to Gibraltar airport.

Citations:

Times 09-Jul-1993, C-298/89, [1993] EUECJ C-298/89, [1993] ECR I-3605

Links:

Bailii

Jurisdiction:

European

Constitutional, Transport

Updated: 03 November 2022; Ref: scu.160346

Regina v Secretary of State for Home Department ex parte Fayed: CA 13 Nov 1996

The nature of the Secretary of State’s objections and a chance to reply are to be given if the Secretary intends to deny an application for naturalisation. Administrative convenience cannot justify unfairness. The court deprecated ‘fishing expeditons’ by those seeking a judicial review.
Woolf LJ MR said: ‘on an application for judicial review there is usually no [disclosure] because [disclosure] should be unnecessary because it is the obligation of the [defendant] public body in its evidence to make fresh disclosure to the court of the decision-making process.’

Judges:

Woolf LJ MR

Citations:

Times 18-Nov-1996, [1996] EWCA Civ 946, [1998] 1 WLR 763, [1997] INLR 137, [1997] 1 All ER 228, [1997] COD 205

Links:

Bailii

Statutes:

British Nationality Act 1981 44(2)

Jurisdiction:

England and Wales

Cited by:

Cited – The Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .
Cited – 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 – Al-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
Cited – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional, Natural Justice, Judicial Review

Updated: 03 November 2022; Ref: scu.140813

Burmah Oil Company (Burma Trading) Limited v Lord Advocate: HL 21 Apr 1964

The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the Japanese occupied Rangoon. The question was, whether compensation was payable for this destruction.
Held: The Government were exercising a prerogative power which required them to pay compensation. However, their Lordships distinguished this situation from one where property was damaged or destroyed during the course of battle: (Lord Reid) ‘In my judgment, those authorities and others quoted in their opinions afford ample justification for the decision of the First Division with regard to the general rule, and no contrary Scots authority has been cited. This case therefore turns, in my view, on the extent of the exception of what has been called battle damage. Such damage must include both accidental and deliberate damage done in the course of fighting operations. It cannot matter whether the damage was unintentional or done by our artillery or aircraft to dislodge the enemy or by the enemy to dislodge our troops. And the same must apply to destruction of a building or a bridge before the enemy actually capture it. Moreover, it would be absurd if the right to compensation for such a building or bridge depended on how near the enemy were when it was destroyed. But I would think that Vattel is right in contrasting acts done deliberately (librement et par precaution) with damage caused by inevitable necessity (par une necessite inevitable). His examples show that he means something dictated by the disposition of the opposing forces. It may become necessary during the war to have new airfields or training grounds and the necessity may be inevitable, but that kind of thing would not come within the exception as stated by any of the commentators, inevitably necessary because there is really no choice: for example, there may be only one factory in the country or one site available for a particular purpose.’
The House discussed the use of the Royal prerogative: ‘The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times?’ and (per lord Reid) ‘[T]he residual prerogative is now confined to such matters as summoning and dissolving Parliament, declaring war and peace, regulating the armed forces in some respects, governing certain colonial territories, making treaties (though as such they cannot affect the rights of subjects), and conferring honours. The one drastic internal power of an administrative kind is the power to intern enemy aliens in time of war.’
The House considered the right to self help in an emergency. Lord Upjohn said ‘No doubt in earlier times the individual had some . . rights of self-help or destruction in immediate emergency, whether caused by enemy action or by fire, and the legal answer was that he could not in such circumstances be sued for trespass on or destruction of his neighbour’s property. Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour’s house to prevent the fire spreading to his own; he would be told that he ought to have dialled 999 and summoned the local fire brigade.’
Lord Reid said ‘it would be very strange if the law prevented or discouraged necessary preparations until a time when it would probably be too late for them to be effective’.
Lord Pearce said: ‘the prerogative power in the emergency of war must be one power, whether the peril is merely threatening or has reched the ultimate stage of crisis. Bulwarks are as necessary for the public safety when they are constructed in good time against a foreseen invasion as when they are hastily improvised after the enemy has landed. The Crown must have power to act before the ultimate crisis arises’.

Judges:

Lord Upjohn, Lord Reid, Lord Pearce

Citations:

[1965] AC 75, [1965] AC 75, [1965] 2 All ER 348, 1964 SC (HL) 117, [1964] UKHL 6, [1964] 2 WLR 1231, 1964 SLT 218

Links:

Bailii

Statutes:

War Damage Act 1965

Jurisdiction:

Scotland

Citing:

Appeal from – Burmah Oil Company Limited (Burma Trading) v Lord Advocate IHCS 1963
The 1965 Act was to be construed restrictively, lest ‘what was intended as a reasonable protection for a public authority would become an engine of oppression.’ . .

Cited by:

Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .
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 . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Constitutional

Updated: 27 October 2022; Ref: scu.241353

Attorney General’s Reference (No 5 of 2002): HL 14 Oct 2004

The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, three of his officers, were selling confidential information to criminals. He ordered their telephones to be tapped. The resulting evidence was used in their trial. The systems tapped involved different networks of telephone systems, some private and some public.
Held: The basic object of section 17 appears to be to preserve the secrecy of the warrant system. There was nothing in the 2000 Act to suggest a parliamentary intention to render inadmissible as evidence in criminal proceedings any material which had previously been admissible. The Act did not operate to make such material inadmissible. It was permissible for the court to ask as to the source of such telephone intercept materials.
Lord Steyn said that in view of the absurdity that would otherwise result, the House must not give its literal interpretation to a statutory provision which, literally read, precluded the defence from asking questions to establish that there had been interception (consequently illegal) on part of a public telecommunications system, but allowed the prosecution to call evidence to the effect that the interceptions had taken place wholly within a police private telecommunications system (and were therefore legal). The linguistic difficulty was ‘decisively outweighed by a purposive interpretation of the statute’.

Judges:

Lord Bingham Of Cornhill

Citations:

[2004] UKHL 40, [2004] 4 All ER 901, [2005] 1 AC 167, [2004] 3 WLR 957

Links:

House of Lords, Bailii

Statutes:

Regulation of Investigatory Powers Act 2000 17(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Preston, Preston, Clarke Etc HL 5-Nov-1993
Telephone tapping evidence consisting of tapping records are to be destroyed after their use for the purpose obtained, but a prosecution was not within that purpose. The underlying purpose of the 1985 Act is to protect information as to the . .
Appeal from – W, Regina v (Attorney General’s reference no 5 of 2002) CACD 12-Jun-2003
Three serving police officers provided confidential information to a known criminal. The Chief Constable authorised interception of telephones at a police station, a private network. The court accepted that section 17 prevented the defence asserting . .
Cited – Regina v P and others HL 19-Dec-2000
Where communications had been intercepted in a foreign country, and the manner of such interceptions had been lawful in that country, the evidence produced was admissible in evidence in a trial in England. An admission of such evidence was not an . .
Cited – Morgans v Director of Public Prosecutions HL 18-Feb-2000
Without a warrant, the police had arranged for a call logger to retain details of the calls made, including the number called, time and duration. The dialing itself was a communication, which established a connection, through which further . .
Cited – Regina v Sargent HL 25-Oct-2001
When a telephone engineer used his position to make unauthorised telephone intercepts, and produced apparent evidence of criminal activity, he was, under the Act, a person engaged in providing a public communications system, and the recordings were . .
Cited – Regina v Ahmed and Others CACD 29-Mar-1994
The tapping of telephone calls within a police station switchboard was outside the scope of the Act, since the calls were not intercepted whilst the communications were being carried on a public telecommunications system. . .
Cited – Halford v The United Kingdom ECHR 25-Jun-1997
halford_ukECHR1997
The interception of the telephone calls of an employee in a private exchange was a breach of her right of privacy. She had a reasonable expectation of privacy. The police force’s surveillances of the applicant’s telephone (to obtain information . .
Cited – Regina v Effik; Regina v Mitchell HL 22-Jul-1994
The material obtained by intercepting signals passing between a base unit and the handset of a cordless telephone was admissible because no communication was being made by means of a public system when the calls were intercepted by the police. A . .
Cited – Regina v Goodman CACD 4-Mar-2002
. .
Cited – Regina v Allan CACD 6-Apr-2001
. .
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Institute of Patent Agents v Lockwood 1894
The court could apply a rectifying construction to conflicting provisions an Act where necessary.
Lord Herschell LC said: ‘You have to try and reconcile [the provisions] as best you may. If you cannot, you have to determine which is the . .

Cited by:

Appealed to – W, Regina v (Attorney General’s reference no 5 of 2002) CACD 12-Jun-2003
Three serving police officers provided confidential information to a known criminal. The Chief Constable authorised interception of telephones at a police station, a private network. The court accepted that section 17 prevented the defence asserting . .
Cited – Regina v Austin and others CACD 16-May-2008
The defendants sought leave to appeal against convictions for conspiracy to supply drugs. The prosecutor relied on surveillance evidence showing meetings and telephone calls between the defendants; evidence from recording devices in defendants’ . .
Cited – Knaggs v The United Kingdom ECHR 14-Jan-2009
The claimants had been prosecuted following authorised intrusive surveillance. They challenged the laws which prevented them from asking questions about interception, and therefore from defending themselves. The defendants said that the police had . .
Cited – Noone, Regina (on The Application of) v Governor of HMP Drake Hall and Another SC 30-Jun-2010
The prisoner had been sentenced to consecutive terms of imprisonment, one for less, and one for more than 12 months. She disputed the date on which she should be released to home detention under curfew under the Guidance issued by the Secretary of . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Constitutional

Updated: 27 October 2022; Ref: scu.216431

Regina v Gruenke: 1991

(Canadian Supreme Court) The issue was whether the communications between the Defendant, who was accused of murder, and her pastor were protected by common law privilege or under the Canadian Bill of Rights.
Held: The Court not apply a strict approach to what was a confession, but looked at all the relevant circumstances and apply what is known in Canada as the Wigmore criteria: ‘1. The communications must originate in a confidence that they will not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community ought to be sedulously fostered.
4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.’

Citations:

[1991] 3 RCS 263

Jurisdiction:

Canada

Cited by:

Cited – Lancashire County Council v E and F FD 4-Feb-2020
The court heard an application to set aside a witness summons, raising an important issue about the circumstances in which disclosure can be resisted on grounds of a religious duty of confidentiality, in the context of allegations of child sexual . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Practice

Updated: 25 October 2022; Ref: scu.648630

De Boucherville v The State of Mauritius: PC 9 Jul 2008

(Mauritius) The board was asked to consider the constitutionality of the term of imprisonment being served by the prisoner.
Held: The Board accepted that mandatory life sentences are by their nature distinct from mandatory death sentences, but concluded that a sentence whereby a convicted murdered forfeited his liberty for the rest of his days until (if ever) the Home Secretary concluded that the public interest would be better served by his release, would amount to a violation of Articles 3 and 5.

Judges:

Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Cars well, Lord Brown of Eaton-under-Heywood, Lord Mance

Citations:

[2008] UKPC 37

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Approved – Wellington, Regina (on the Application of) v Secretary of State for the Home Department Admn 18-May-2007
In extradition proceedings the accused has no right to disclosure of evidence to the same extent and of the same kind which would be available in domestic proceedings.
Laws LJ said that a prison sentence without chance for parole might . .
See Also – De Boucherville v The State of Mauritius PC 18-Apr-1984
The defendant appealed against his conviction for murder. . .

Cited by:

Cited – The Government of Ghana v Gambrah and Another Admn 16-May-2014
Ghana appealed from refusal of extradition of the respondent to face a charge of murder. The only sentence for murder in Ghana was death, but the government had undertaken not to impose that sentence. The district judge accepted the undertaking, but . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing

Updated: 24 October 2022; Ref: scu.270798

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 treatment, and infringed his human rights under the constitution.
Held: The crime of murder embraced a range of offences of widely varying degrees of criminal culpability. Developments in international law recognising the importance of human rights, and the development of independent legal systems against the background of constitutions guaranteeing fundamental rights. This required legislation to be interpreted. Before independence Belize had been subject to the Convention, and it could not be thought that rights had diminished. The preclusion of any judicial consideration of the degree of culpability was in inhuman treatment, and murder by shooting should be treated as a Class B murder, and the courts given discretion. ‘The court has no licence to read its own predilections and moral values into the constitution’.

Judges:

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

Citations:

Times 21-Mar-2002, [2002] 2 AC 235, [2002] UKPC 11, [2002] 2 WLR 1034, 12 BHRC 219, [2002] 2 Cr App R 16

Links:

PC, Bailii

Statutes:

Constitution of Belize Art 7, Criminal Code of Belize Art 102

Jurisdiction:

Commonwealth

Citing:

Cited – Hinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
Cited – Rajendra Prasad v State of Uttar Pradesh 1979
The court noted the substantial differences in culpability in different murders. . .
Cited – Matadeen and others v M G C Pointu and others (Mauritius) PC 18-Feb-1998
It is a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. Lord Hoffmann said: ‘of course persons . .
Cited – Yassin v Attorney-General of Guyana (unreported), 30-Aug-1996
(Court of Appeal of Guyana) ‘Add to this the notorious fact that in Guyana for some years as a matter of executive policy the death penalty is only implemented in some, not all, cases of persons convicted of murder, and the ‘sifting out’ of those . .
Cited – Bachan Singh v State of Punjab 1980
(Supreme Court – India) ‘(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. . .
Cited – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
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 – 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 – Ong Ah Chuan v The Public Prosecutor PC 1980
(Singapore) It was asked whether the mandatory death sentence for trafficking in more than 15 grammes of heroin was unconstitutional. The appellant submitted that the mandatory nature of the sentence rendered it arbitrary, since it debarred the . .
Cited – Lincoln Anthony Guerra v Cipriani Baptiste and others (No 2) PC 6-Nov-1995
(Trinidad and Tobago) The execution of a prisoner after a substantial delay of 5 years was a breach of his constitutional rights, constituting cruel and unusual punishment. . .

Cited by:

Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .
Applied – Regina v Hughes PC 11-Mar-2002
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading . .
Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Cited – Balkissoon Roodal v The State PC 20-Nov-2003
(Trinidad and Tobago) The appellant challenged the automatic death sentence imposed upon him for murder.
Held: There were conflicting constitutional provisions. Following Fisher, in the context of issues of capital sentences a wider view was . .
Cited – Watson v Regina PC 7-Jul-2004
(Jamaica) The defendant was convicted of two murders from the same incident. The Act provided for the death penalty if he was convicted of a second murder. He appealed the death sentence in the circumstances, and said also that it was . .
Cited – Matthew vThe State PC 7-Jul-2004
(Trinidad and Tobago) The court questioned the constitutionality of the mandatory death penalty in Trinidad.
Held: The constitution of Trinidad, when implemented, forbade cruel and unusual punishment, but also preserved existing penalties. The . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
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 . .
Cited – The Government of Ghana v Gambrah and Another Admn 16-May-2014
Ghana appealed from refusal of extradition of the respondent to face a charge of murder. The only sentence for murder in Ghana was death, but the government had undertaken not to impose that sentence. The district judge accepted the undertaking, but . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional, Criminal Sentencing

Updated: 24 October 2022; Ref: scu.167753

OB v The Director of The Serious Fraud Office: CACD 2 May 2012

The court considered an application by the defendant for leave to appeal to the Supreme Court, noting that section 13 of the 1960 Act did not provide for such a right after the 2006 Act.
Held: The words could not themselves be construed to preserve the existence of an appeal, but the criteria set out in Inco Europe had been met, and this was a clear case of an error in draftsmanship. The appeal could proceed.

Judges:

Gross LJ, Openshaw J, Milford QC

Citations:

[2012] EWCA Crim 901, [2012] 2 Cr App R 29, [2012] 1 WLR 3188, [2012] 3 All ER 1017, [2012] 4 Costs LR 678, [2012] WLR(D) 133

Links:

Bailii, WLRD

Statutes:

Administration of Justice Act 1960 13, Armed Forces Act 2006 378

Jurisdiction:

England and Wales

Citing:

Applied – Inco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
See Also – OB v The Director of The Serious Fraud Office CACD 1-Feb-2012
The court was asked whether a breach of an order under section 41 of the 2002 Act was a civil or a criminal contempt of court. The defendant had fled to the US to avoid complying with restraint orders on being investigated for financial fraud. He . .

Cited by:

See Also – Regina v O’Brien SC 2-Apr-2014
The court considered how to apply the rule that an extradition may only be for trial on matters committed before the extradition if they have been the basis of the request to a defendant’s commission of contempt of court after conviction. After . .
Cited – Ramet, Re Application for The Committal To Prison FD 22-Jan-2014
Whilst the judge was delivering her judgment in a child custody dispute the father physically attacked the mother across the well of the court, and a court clerk who came to assist her. He now faced contempt proceedings after being sentenced to . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Contempt of Court

Updated: 23 October 2022; Ref: scu.457705

DN (Rwanda) v The Secretary of State for The Home Department: CA 22 Feb 2018

The court considered its freedom to depart from an earlier decision of the Court of Appeal

Judges:

Arden, Longmore, Lewison LJJ

Citations:

[2018] EWCA Civ 273, [2018] 3 WLR 490, [2018] 3 All ER 772, [2019] QB 71, [2018] WLR(D) 114

Links:

Bailii, WLRD

Statutes:

Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004

Jurisdiction:

England and Wales

Cited by:

Appeal from – DN (Rwanda), Regina (on The Application of) v Secretary of State for The Home Department SC 26-Feb-2020
Challenge to imprisonment pending deportation of successful asylum applicant on release from prison after conviction of an offence specified under the 2004 Order as a particularly serious crime.
Held: The appeal succeeded. ‘The giving of . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional

Updated: 21 October 2022; Ref: scu.605308

Foreign and Commonwealth Office v Warsama and Another: CA 11 Feb 2020

The Court was asked ‘whether the report of an inquiry ordered to be published by the House of Commons following a Motion for an Unopposed Return is protected by Parliamentary privilege. The second issue is whether the proceedings commenced by Mr Warsama and Ms Gannon (to whom we refer as the appellants) can survive a finding that the report in which they were criticised is protected by Parliamentary privilege or should be struck out. The third issue is whether the panel which conducted the inquiry is a ‘public authority’ for the purposes of section 6(3) of the Human Rights Act 1998 (‘the HRA’).’

Judges:

The Lord Burnett of Maldon, Lord Justice Coulson and Lady Justice Rose

Citations:

[2020] EWCA Civ 142

Links:

Bailii

Jurisdiction:

England and Wales

Constitutional, Human Rights, Administrative

Updated: 19 October 2022; Ref: scu.648154

Browne v The Queen: PC 6 May 1999

(St Christopher and Nevis) The appellant had been convicted of murder whilst still a youth. He had accordingly been sentenced to be detained ‘during [the Governor-General’s] pleasure; and if so sentenced he shall be liable to be detained in such place and under such conditions as the Administrator in Council may direct and, while so detained, be deemed to be in legal custody.’
Held: It was inconsistent with the doctrine of the separation of powers, that a person sentenced to be detained during the Governor General’s pleasure, should have the length of sentence decided by the Governor, who is part of the executive not the judiciary. The term ‘during pleasure’ is to be ‘not a once and for all assessment that is made at the time that the defendant is first before the court after his conviction.’ The unconstitutionality could be repaired by ensuring that the decision was made by a court.

Judges:

Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Clyde, Lord Hobhouse of Woodborough, Sir Patrick Russell

Citations:

Times 11-May-1999, [1999] UKPC 21, [2000] 1 AC 45

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Hinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
Cited – Regina v Secretary of State For The Home Department, Ex Parte Venables, Regina v Secretary of State For The Home Department, Ex Parte Thompson HL 12-Jun-1997
A sentence of detention during her majesty’s pleasure when imposed on a youth was not the same as a sentence of life imprisonment, and the Home Secretary was wrong to treat it on the same basis and to make allowance for expressions of public . .
Cited – Vasquez v The Queen; O’Neil v The Queen PC 26-Oct-1994
(Belize) The burden of proof on provocation in a murder case remained with the prosecution despite the constitution. The Belize Criminal Code imposed no more than an evidential burden on the accused: ‘In their Lordships’ view section 116(a) of the . .
Cited – Hussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .

Cited by:

Cited – Regina on the Application of Smith v The Secretary of State for the Home Department Admn 3-Apr-2003
The case asked what duty the respondent had, in respect of youths sentenced to be detained during Her Majesty’s Pleasure before 30th November 2000, to review their continued detention at regular intervals. A statement said that once a tarriff had . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth, Criminal Sentencing

Updated: 14 October 2022; Ref: scu.159353

Yalland and Others v Secretary of State for Exiting The European Union (630): Admn 3 Feb 2017

Renewed applications for permission to apply for judicial review of the decision taken to leave the EU: ‘The thrust of the claim is that the UK Government has allegedly already decided that an automatic consequence of the United Kingdom leaving the European Union is that the EEA Agreement would cease to apply to the United Kingdom and that notification of withdrawal from the EEA Agreement under Article 127 is not required. They contend that that alleged decision is wrong as it is based on a misunderstanding of the effect of the EEA Agreement.
The second set of claims involves claims by four individuals who seek to challenge what they describe as:
‘The Defendant’s attempt to withdraw from the European Union on the assumption that the United Kingdom will no longer be in the EEA without prior approval from HM Treasury and an act of Parliament providing authorisation.’
Held: ‘We refuse permission in these claims for the reason that the claims are premature. We do not consider it necessary to comment on each of the reasons given by the judge and we express no view on the correctness of each of those reasons.’

Citations:

[2017] EWHC 630 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Yalland and Others v Secretary of State for Exiting The European Union (629) Admn 3-Feb-2017
Application for anonymity order – challenge to constitutionality of proposed steps in leaving the EU.
Held: Granted for those applying for it.
The common law rights of the public and press to know about court proceedings are also . .
Lists of cited by and citing cases may be incomplete.

Constitutional, European

Updated: 12 October 2022; Ref: scu.628715

In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G: HL 18 Jun 2008

The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater commitment to traditional family structures did not however justify the difference. The rules were unlawful discrimination.
Lord Hoffmann said: ‘the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status. For the reasons I have given earlier, I would declare that notwithstanding article 14 of the Order, the appellants are entitled to apply to adopt the child.’
He went on to point out that ‘Convention rights’, as defined in section 1 of the 1998 Act, were ‘domestic and not international rights’, and that the duty of domestic courts under section 2 of that Act was to ‘take into account’, rather than to regard themselves as bound by, decisions of the Strasbourg court, but that there were normally ‘good reasons why we should follow the interpretation adopted in Strasbourg’. However, different ‘considerations apply in cases in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says the question is within the margin of appreciation’. In such cases, ‘it is for the court in the United Kingdom to interpret [the relevant article or articles of the Convention] and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United .Kingdom’. He expanded on this by adding that ‘[t]he margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers’.
Baroness Hale said that ‘lack of marital status is as much a ‘status’ for the purpose of article 14 as is the status of marriage itself.’
and ‘it is clear that the doctrine of the ‘margin of appreciation’ as applied in Strasbourg has no application in domestic law. The Strasbourg court will allow a certain freedom of action to member states, which may mean that the same case will be answered differently in different states (or even in different legal systems within the same state). This is particularly so when dealing with questions of justification, whether for interference in one of the qualified rights, or for a difference in treatment under article 14. National authorities are better able than Strasbourg to assess what restrictions are necessary in the democratic societies they serve. So to that extent the judgment must be one for the national authorities.’
Lord Hope said that even in an area of social and economic policy, falls within the constitutional responsibility of the courts: ‘Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests.’
Orse – In re G (Adoption: Unmarried Couple)

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance

Citations:

[2008] UKHL 38, Times 23-Jun-2008, [2008] UKHRR 1181, [2008] Fam Law 977, [2008] 2 FCR 366, [2009] 1 AC 173, [2008] NI 310, [2008] 24 BHRC 650, [2008] 2 FLR 1084, [2008] HRLR 37, [2008] 3 WLR 76

Links:

Bailii, HL

Statutes:

Adoption (Northern Ireland) Order 1987 (SI 1987/2203(NI 22)) 13, Human Rights Act 1998 1(1), European Convention on Human Rights 14

Jurisdiction:

Northern Ireland

Citing:

Cited – Von Lorang v Administrator of Austrian Property 1927
Viscount Haldane said: ‘[T]he marriage gives the husband and wife a new legal position from which flow both rights and obligations with regard to the rest of the public. The status so acquired may vary according to the laws of different . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – PM v The United Kingdom ECHR 19-Jul-2005
A father complained that tax deductions which were granted to married fathers but not to unmarried fathers were discriminatory. He had paid maintenance for his daughter, but was not allowed to set the payments off against his income tax in the way . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Frette v France ECHR 26-Feb-2002
A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article . .
Cited – Du Toit and Vos v Minister for Welfare and Population Development 10-Sep-2002
(South African Constitutional Court) Prospective adoptive parents were a same-sex couple who challenged laws preventing them from adopting. The court said: ‘In their current form the impugned provisions exclude from their ambit potential joint . .
Cited – EB v France ECHR 14-Mar-2007
A homosexual woman complained that she had not been allowed to adopt a child. Her application was rejected by the French administrative court on grounds based substantially upon her sexual orientation.
Held: The provision was an unlawful . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
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 – T, Petitioner IHCS 1997
The House discussed the duties of a court in adoption cases: ‘There can be no more fundamental principle in adoption cases than that it is the duty of the court to safeguard and promote the interests of the child. Issues relating to the sexual . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Burden and Burden v The United Kingdom ECHR 12-Dec-2006
Sisters,Together always not Discriminated Against
(Grand Chamber) The claimants were sisters who had lived together all their lives and owned property jointly. They complained that the Inheritance Tax regime treated them worse than it would a married couple, and was discriminatory.
Held: . .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Karner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Cited by:

Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Cited – Johns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Cited – Mathieson v Secretary of State for Work and Pensions SC 8-Jul-2015
The claimant a boy of three in receipt of disability living allowance (‘DLA’) challenged (through his parents) the withdrawal of that benefit whilst he was in hospital for a period of more than 12 weeks. He had since died.
Held: The appeal . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Cited – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Cited – Brewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Cited – RR v Secretary of State for Work and Pensions SC 13-Nov-2019
Housing benefit regulations had been found unlawful and were amended. The Court now considered what payments should have been made before the amendments came into effect.
Held: The appeal was allowed, and RR’s housing benefit entitlement is to . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Adoption, Human Rights, Constitutional

Leading Case

Updated: 11 October 2022; Ref: scu.269988

Kaiyam, Regina (on The Application of) v The Secretary of State for Justice: CA 9 Dec 2013

The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s failure to provide rehabilitation courses meant that they could not earn release. The lower court had rejected their claims being bound by decisions of the House of Lords notwithstanding that those decisions had been overruled by the ECHR.
Held: The lower court had been correct to decide that it could not itself overrule a decision of the House, the instant court had no greater right beyond expressing its views, and leave was given for the matter to go to the Supreme Court.

Judges:

Lord Dyson MR, Underhill, Macur LJJ

Citations:

[2014] 1 WLR 1208, [2013] WLR(D) 480, [2013] EWCA Civ 1587

Links:

WLRD, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Cited – James, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .
Appeal from – Robinson, Regina (on The Application of) v HMP Whatton and Another Admn 4-Dec-2013
Two prisoners serving sentences of imprisonment for public protection sought judicial review of arrangements meaning that they had not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their . .
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 – Clift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .

Cited by:

At CA – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Lists of cited by and citing cases may be incomplete.

Prisons, Constitutional, Human Rights

Updated: 07 October 2022; Ref: scu.518785

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

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

Judges:

Lord Cottenham LC,

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Constitutional

Updated: 07 October 2022; Ref: scu.297589

RM, Re Judicial Review: SCS 21 Mar 2012

The applicant was detained in a mental hospital. After losing a challenge to being moved to a higher security section he found that he was unable to appeal because the Scottish Parliament had not passed Regulations proving the structure for an appeal as was anticipated by the 2003 Act.
Held: His appeal was rejecetd.

Citations:

[2012] ScotCS CSOH – 53

Links:

Bailii

Statutes:

Mental Health (Care and Treatment) (Scotland) Act 2003

Citing:

At Outer House – RM v The Scottish Ministers SCS 27-Aug-2008
The petitioner, a detained mental patient challenged the validity of orders made by the Mental Health Tribunal established under the 2003 Act. He said that, the respondents having not passed regulations providing complete processes for the . .

Cited by:

Appeal from – RM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Constitutional, Prisons

Updated: 06 October 2022; Ref: scu.452229

Smith and Miller and Mcmorrine and Robbie the Pict v Procurator Fiscal, Dingwall: HCJ 16 Dec 1999

The appellants challenged convictions under regulations imposing toll charges. They challenged the validity of the charges.
Held: The first challenge was that the people collecting the charges had not been properly appointed, being private contractors. The regulations had been complied with. Second the orders themselves were said not to have been published as required, having been incorrectly classified as local instruments. They were properly classified as local and did not have to be printed by the Queen’s printer and made available for sale.

Judges:

Lord Sutherland and Lord Marnoch and Lord Cowie

Citations:

[1999] ScotHC 251

Links:

Bailii

Statutes:

New Roads and Street Works Act 1991 38, Assignation Statement (Prescribed Information)(Scotland) Regulations 1991 (S.I. 1991/2152), Assignation Statement (Prescribed Information)(Scotland) Regulations 1991, Statutory Instruments Act 1946, Statutory Instruments Regulations 1947 (S.I. 1948/1)

Jurisdiction:

Scotland

Constitutional

Updated: 05 October 2022; Ref: scu.170753

Chenard and Company and Others v Joachim Arissol (Seychelles): PC 30 Nov 1948

(Seychelles) ‘A power to make ordinances for the peace, order and good government of a colony . . has been held ‘to authorize the utmost discretion of enactment for the attainment of the objects pointed to,’ and a court will not inquire whether any particular enactment of this character does in fact promote the peace, order or good government of the colony.’

Judges:

Lord Reid

Citations:

[1949] AC 127, [1948] UKPC 88

Links:

Bailii

Commonwealth, Constitutional

Updated: 25 September 2022; Ref: scu.447831

The Attorney General of Canada v Hallet and Carey Limited and Another: PC 20 May 1952

Canada – By section 2(l)(c) of the National Emergency Transitional Powers Act 1945 the governor in Council was authorised to do such things and to make such orders and regulations as he might, by reason of the continued emergency arising out of the war against Germany and Japan, deem necessary or advisable for the purpose of, inter alia, ‘Maintaining, controlling and regulating supplies and services, prices, transportation, use and occupation of property, rentals, employment, salaries and wages to ensure economic stability and an orderly transition to conditions of peace’. Under the powers conferred by that Act the Governor in Council passed an Order in Council which provided that oats and barley in commercial positions in Canada, with certain exceptions, should be vested in the Canadian Wheat Board. The Order was successfully challenged in Manitoba and in the Supreme Court of Canada but was upheld by the Privy Council on the ground that although the Act of 1945 made no specific reference to appropriation yet the wide language of section 2(1) ending with the words ‘as he may . . deem necessary or advisable’ gave the amplest possible discretion in the choice of methods. The expression ‘as he may deem necessary’ or like words are often found in statutes in which a discretionary power is given to a minister or other authority.

Judges:

Viscount Simon, Lord Normand, Lord Radcliffe, Lord Asquith of Bishopstone, Lord Cohen

Citations:

[1952] UKPC 13, [1952] AC 427, [1952] 1 TLR 1408

Links:

Bailii

Statutes:

National Emergency Transitional Powers Act 1945

Cited by:

Cited – McEldowney v Forde HL 18-Jun-1969
The House was asked whether the Magistrates had properly dismissed a charge of membership of an unlawful organisation, namely a Republican club. The Magistrates had found that an unlawful club would only be such if it supported the absorption of . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 22 September 2022; Ref: scu.445957

Ibralebbe Alias Rasa Wattan Another v The Queen: PC 6 Nov 1963

Ceylon – the joint effect of the Order in Council of 1946 and the Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State.

Citations:

[1964] All ER 900, [1963] UKPC 34

Links:

Bailii

Statutes:

Ceylon Independence Act 1947

Cited by:

Cited – Liyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 20 September 2022; Ref: scu.445274

The Honourable Dr. Paul Borg Oliver and Another v The Honourable Dr. Anton Buttigieg: PC 19 Apr 1966

The Archbishop of Malta had declared it a mortal sin to print, write, sell, buy, distribute or read a left-wing weekly newspaper, the Voice of Malta. The Maltese Medical and Health Department had followed this up by prohibiting all its 2,660 employees from taking the Voice of Malta into its hospitals and other buildings. The Maltese Constitution provided that: ’13. (1) All persons in Malta shall have full liberty of conscience and enjoy the free exercise of their respective modes of religious worship. . .
14. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference . . ‘
The Board was asked whether the editor of the Voice of Malta had been hindered in the enjoyment of his freedom of expression.
Held: He had: ‘Though the [editor] was not prevented from imparting ideas and information the inevitable consequence of what was done was that he was ‘hindered’ and that there was ‘interference’ with his freedom.’
The Board rejected a submission that the measure of any resulting hindrance was slight and could be ignored as de minimis, for two reasons: first, ‘the hindrance cannot, on the facts of the case, be classed as minimal’ and: ‘In the second place, their Lordships consider that where ‘fundamental rights and freedoms of the individual’ are being considered a court should be cautious before accepting the view that some particular disregard of them is of minimal account.’

Citations:

[1966] UKPC 6, [1967] AC 115

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

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

Constitutional

Updated: 20 September 2022; Ref: scu.445091

Regina v PD and EB: CACD 8 Sep 2011

(Iraq Sanctions) The court was asked as to the manner in which Security Council Resolutions relating to the arms trade are implemented in the domestic law of the United Kingdom under the United Nations Act 1946.
Held: Laws LJ, rejecting an argument that an Inco Europe amending interpretation in relation to a provision creating a substantive criminal offence should be adopted in that case, nevertheless stated ‘we cannot rule out the application of the principles in the Inco Europe case in relation to a substantive criminal offence’

Judges:

Thomas LJ, Ryder, Calvert-Smith JJ

Citations:

[2011] EWCA Crim 2082, [2012] 1 All ER 1108

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Lists of cited by and citing cases may be incomplete.

Crime, International, Constitutional

Updated: 20 September 2022; Ref: scu.444843