Castle v Crown Prosecution Service: Admn 24 Jan 2014

The defendant appealed from his conviction for having driven in excess of a variable speed limit on the motorway. He said that the Order under which the speed limit had been imposed was irregular.

Pitchford LJ, Cranston
[2014] RTR 19, [2014] WLR(D) 33, (2014) 178 JP 285, [2014] EWHC 587 (Admin), [2014] 1 WLR 4279
Bailii, WLRD
Road Traffic Regulation Act 1984 14, M62 Motorway (Junction 25 to Junction 30) (Temporary Restriction and Prohibition of Traffic) Order 2011, Road Traffic (Temporary Restrictions) Procedure Regulations 1992 3
England and Wales
Citing:
CitedCarltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .
CitedLewisham Borough Council v Roberts CA 1949
The council sought to exercise its powers under the Act to take possession of part of the defendant’s property.
Held: Denning LJ said: ‘It is necessary to consider the nature of the power to requisition land. It is only a power to take . .
CitedRegina v Secretary of State for the Home Department ex parte Oladehinde HL 18-Oct-1990
A decision at Senior Executive Officer level was accepted as appropriate in a deportation case. There was an express form of delegation, and acts of the immigration officers required to be regarded as the acts of the Home Secretary.
Lord . .
CitedRegina v Secretary of State for Social Security ex parte Sherwin (a Patient By Her Next Friend Sherwin) Admn 16-Feb-1996
An official in the Benefits Agency, part of the Department of Health and Social Security, suspended an income support/severe disability premium payable to the appellant. The court was asked whether the decision of the Agency, made under the . .

Cited by:
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Constitutional

Updated: 01 December 2021; Ref: scu.522554

Petition of Andrew Scott and Scott Davidson for Judicial Review of A Decision To Continue Their Detention In Inhumane Prison Conditions: SCS 26 Oct 2001

Each applicant sought an interim order against the Scottish Minister with respect to their treatment in prison. It had been found that the conditions in Barlinnie Prison were inhumane. The Crown responded that the court had no jurisdiction to make such an order.
Held: McDonald is binding on the court. An interim order could not be made.

Lord Johnston
[2001] ScotCS 242
ScotC, Bailii
European Convention on Human Rights 3, Court of Session Act 1988 45
Citing:
CitedMcDonald v Secretary of State for Scotland IHCS 2-Feb-1994
The pursuer, a prisoner, complained that he had been subject to repeated searches which he claimed were illegal. He sought damages and an injunction.
Held: The action which the pursuer had raised was an ordinary action in the sheriff court was . .
CitedBritish Medical Association v Greater Glasgow Health Board HL 1989
The House considered the availability of orders against the Crown in Scotland. It is inconceivable that Parliament should have intended to fetter the right of the subject to obtain a prohibitory order more strictly in Scotland than in England. The . .
CitedM v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .

Cited by:
CitedReclaiming 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, Prisons, Constitutional, Human Rights

Updated: 01 December 2021; Ref: scu.168899

Adegbenro v Chief S L Akintola and Sir Adesoji Aderemi: PC 27 May 1963

Nigeria – removal of premier of Western Region from office

[1963] UKPC 15, [1963] AC 614
Bailii
England and Wales
Cited by:
CitedCherry, 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 November 2021; Ref: scu.445253

Brunner v Greenslade: ChD 1971

Megarry J discussed the ratio decidendi of and approving dicta in Lawrence.
‘The substance of the views of Simonds J was that where there is a head scheme, any sub-purchasers are bound inter se by the covenants of that head scheme even though they have entered into no covenants with the sub-vendor or with each other. What binds the sub-purchasers inter se is not any covenant of their own making (for there is none) but an equity independent of any contractual obligation entered into by them, and arising from the circumstances of the existence of the head scheme, the process of division into sub-lots and the disposal of those lots. If on the disposal the common intention was that the local law created by the head scheme should apply within the sub-area, then apply it would. It would be remarkable if the restrictions of the head scheme were to be reciprocally enforceable between the owners of a sub-lot and of a plot elsewhere on the estate, however distant, and yet be unenforceable as between neighbouring owners of sub-lots. I have ventured a somewhat free summary of the conclusions reached by Simonds J., but I think that it contains the kernel of his reasoning.
…Perhaps I may go back to first principles and try to summarise the matter in my own way. The most straightforward case is where A owns the entire estate and, having laid it out, himself sells individual lots to individual purchasers who enter into the covenants of the scheme. As soon as he sells a lot to the first purchaser, B, the scheme crystallises. Not only is B bound in respect of his lot to A, for the benefit of the remainder of the estate, but also A is bound, in respect of the remainder of the estate, to B, for the benefit of B’s plot. It may be noted that while B is bound by the express covenants that he entered into, A may well have entered into no express covenants with B; and yet the concept of a scheme of development requires that A shall be treated as having impliedly bound himself by the provisions of the scheme. If A then sells another plot to C, C is taking part of the land that has already been subjected to the scheme in favour of B, and the covenants that he enters into are treated as being made for the benefit not only of A’s remaining land but also of B’s plot. If A continues to sell off one lot to each purchaser, and all the purchasers are different, in this way the whole concept of the enforceability of the covenants under a scheme of development, as between all within the area of the scheme, is readily explicable in terms of covenant, express or implied.’

Megarry J
[1971] Ch 993
England and Wales
Citing:
CitedLawrence v South Country Freeholds Ltd ChD 1939
Simonds J held that on the facts before him no general scheme of development existed. It was accordingly not necessary to determine what rights as between the sub-purchasers there might have been if the main scheme had been held to exist. However, . .

Cited by:
CitedSmall v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Dicta approvedYoungsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .
CitedPickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Updated: 30 November 2021; Ref: scu.242394

Skelton v Collins: 7 Mar 1966

(High Court of Australia) Damages – Personal Injuries – Loss of earning capacity – Loss of expectation of life – Loss of amenities during reduced life span – Pain and suffering – Plaintiff rendered permanently unconscious by injuries – Basis of assessment.
Precedent – Decisions of House of Lords – Applicability – High Court – Other Australian courts.
Windeyer J said: ‘The next rule that, as I see the matter, flows from the principle of compensation is that anything having a money value which the plaintiff has lost should be made good in money. This applies to that element in damages for personal injuries which is commonly called ‘loss of earnings ‘. The destruction or diminution of a man’s capacity to earn money can be made good in money. It can be measured by having regard to the money that he might have been able to earn had the capacity not been destroyed or diminished. . what is to be compensated for is the destruction or diminution of something having a monetary equivalent . . I cannot see that damages that flow from the destruction or diminution of his capacity (to earn money) are any the less when the period during which the capacity might have been exercised is curtailed because the tort cut short his expected span of life. We should not, I think, follow the English decisions in which in assessing the loss of earnings the ‘lost years’ are not taken into account.’

Kitto, Taylor, Menzies, Windeyer and Owen JJ
(1966) 115 CLR 94, [1966] HCA 14
Austlii
Australia
Citing:
Not FollowedOliver v Ashman CA 1961
The rule that loss of earnings, in the years lost to an injured plaintiff whose life expectancy had been shortened, were not recoverable, was still good law.
Pearce LJ summarised the authorities: ‘The Law Reform Miscellaneous Provisions Act . .

Cited by:
FollowedPickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Constitutional

Updated: 30 November 2021; Ref: scu.199760

Makudi v Baron Triesman of Tottenham: CA 26 Feb 2014

Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s executive. That evidence was protected by parliamentary priviege, but the claimant said that the defendant was responsible for later references to that evidence in the course of a review by the English Football Association. The claimant now appealed against an order striking out his claim.
Held: The appeal failed. Article 9 prohibited an examination in this action of the respondent’s assertions: ‘the issue of Article 9 protection . . cannot be concluded in favour of the speaker merely by a finding of fact . . that Article 9 would be violated by enquiry into the speaker’s state of mind outside Parliament on the ground that that would also constitute enquiry into his state of mind when he spoke within Parliament. Such a state of affairs might readily be proved in a case like Lord Abingdon, Creevey or Buchanan, as Lord Bingham suggested . . But in such cases, as Lord Bingham made plain, an identity of motive or purpose as between the speaker’s utterances within and outside Parliament will not justify Article 9 protection. It will be roundly held that the claim (against the speaker) is ‘directed solely to the extra-parliamentary republication’ . . and it is only the speaker’s state of mind on that later occasion that matters.’ and . . ‘Article 9 will not bite merely because there is a public interest, which he ought reasonably to serve, in the speaker’s repeating or referring to what he had earlier said in Parliament. The later, extra-Parliamentary occasion might be quite remote from the earlier utterance. The public interest in his repeating what he had said might be different from the whys and wherefores of the Parliamentary occasion. When speaking in Parliament, he might have no reason to apprehend that he might be required (or think himself obliged) in the public interest to repeat on a later occasion what he had said. In short the integrity of the legislature’s democratic process may not need the protection of Article 9 at all.’

Laws, Tomlinson, Rafferty LJJ
[2014] EWCA Civ 179, [2014] EMLR 17, [2014] 3 All ER 36, [2014] 1 QB 839, [2014] WLR(D) 98, [2014] QB 839, [2014] 2 WLR 1228
Bailii, WLRD
Bill of Rights 1689 9
England and Wales
Citing:
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Appeal fromMakudi v Baron Triesman of Tottenham In London Borough of Haringey QBD 1-Feb-2013
makudi_triesmanQBD2013
The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the . .
CitedPrebble 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 . .
CitedRex v Creevey Esq MP 1813
A statement made out of Parliament is not to be protected by its absolute privilege even if what is said simply repeats what was said inside the House.
A member of the House of Commons may be convicted upon an indictment for a libel in . .
CitedStopforth v Goyer 1978
(High Court of Ontario) A claim was made for defamation in remarks made by the defendant about the plaintiff to media representative who were present in parliament, just after he left the Ottawa chamber at the conclusion of the question period. The . .
CitedHutchinson v Proxmire 26-Jun-1979
(United States Supreme Court) The petitioner had been funded by the state to carry out research on aggression in certain animals, particularly monkeys. He complained of criticism of his work decsribing it as wasteful.
Held: Efforts to . .
CitedOffice of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedByrne v Deane CA 1937
A notice had been displayed on a golf club notice board. The court considered whether this constituted publication for defamation purposes.
Held: Greene LJ said: ‘Now on the substantial question of publication, publication, of course, is a . .
CitedSeray-Wurie v The Charity Commission of England and Wales QBD 23-Apr-2008
The defendant sought an order to strike out the claimant’s allegations of defamation and other torts. The defendants claimed qualified privilege in that the statements complained of were contained in a report prepared by it in fulfilment of its . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 30 November 2021; Ref: scu.521627

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 only by a panel appointed by the Governor-General. The appellants each appealed convictions by the courts complaining that Magistrates had had assigned to them cases properly only triable by High Court judges, that the system infringed the duty to provide an open system of trial, and that the review panels included non-judiciary exercising judicial duties, infringing the doctrine of separation of powers.
Held: Though the courts themselves were validly constituted, certain powers which under the Constitution were reserved to High Court judges had been wrongly assigned to magistrates. The provisions allowing hearings in camera were valid, since there was sufficient reason in the need for public safety to support them. The review panel effectively set terms of imprisonment, a function which was assigned under the Constitution to the judiciary. The creation of the panel was an attempt by the executive to exercise the duties of the judiciary, and was unconstitutional. Diplock L: ‘In the field of punishment for criminal offences, the application of the basic principle of separation of legislative, executive and judicial powers that is implicit in a constitution on the Westminster model makes it necessary to consider how the power to determine the length and the character of a sentence which imposes restrictions on the personal liberty of the offender is distributed under these three heads of power. … In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence – as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments … What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.’ Elements of the statute providing for mandatory life sentences to be imposed by lower courts were void, but the provisions were severable, and the remainder were valid for superior courts. In each case the convictions stood, but the cases were remitted to the Court of Appeal of Jamaica for re-sentence. ‘[constitutions] differ fundamentally in their nature from ordinary legislation . . . They embody what is in substance an agreement reached between representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised.’ The Constitution established a regime which provided, in respect of the higher Jamaican judiciary ‘that their independence from political pressure by Parliament or by the executive in the exercise of their judicial functions shall be assured by granting to them such degree of security of tenure in their office as is justified by the importance of the jurisdiction that they exercise.’ This independence was assured by the provisions enacting that ‘They can only be removed from office upon the advice of the Judicial Committee of Her Majesty’s Privy Council in the United Kingdom given on a reference made upon the recommendation of a tribunal of inquiry consisting of persons who hold or have held high judicial office in some part of the Commonwealth.’

Diplock L, Dilhorne Viscount (Dissenting), Simon of Glaisdale L, Edmund-Davies, Fraser of Tullybelton L (dissenting)
[1976] 1 All ER 1976, [1976] 2 WLR 366, (1975) 119 SJ 864, [1976] Crim LR 124, [1977] AC 195
(Jamaica) Gun Courts Act 1974
England and Wales
Citing:
CitedAttorney General for Ontario v Attorney General for Canada PC 1924
A provincial legislature was said to have exceeded its powers and contravened the British North America Act.
Held: Any provision made by the constitution as to the security of status and tenure of the judiciary applies to all individual judges . .
CitedAttorney General v Antigua Times Ltd PC 1975
The Board should not seek to determine questions not directly raised in the appeal before it. . .
CitedLiyange v Regina PC 1966
The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, . .
CitedLadore v Bennett PC 1939
Parliament cannot sidestep a restriction in the constitution by a colourable device. . .
CitedDeaton 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 . .
CitedAttorney 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 . .
CitedAttorney General of Australia v The Queen and the Boilermakers’ Society of Australia; Kirby v The Queen and Boilermakers’ Society of Australia PC 1957
When looking at a new court having a different name, the courts must ask the nature of the jurisdiction exercised, and test the method of appointment of judges for conformity with the constitution. It would be a travesty of the constitution if . .

Cited by:
CitedDirector of Public Prosecutions of Jamaica v Mollison (No 2) PC 22-Jan-2003
(Jamaica ) The appellant had been convicted of murder as a youth. He was sentenced to be detained during Her Majesty’s pleasure. The actual length of time to be served was decided by the Governor-General. The decision by the Governor was clearly a . .
CitedBrowne 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 . .
CitedReyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
CitedIndependent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Updated: 28 November 2021; Ref: scu.211405

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 complaints centre on delays they experienced in gaining access to a prison course they were assessed as needing to complete.
Held: The claims failed. The court applied the result of the decision in James at the House of Lords despite it having been overruled in the ECHR.

Richards LJ, Irwin J
[2013] EWHC 3777 (Admin)
Bailii
England and Wales
Citing:
AppliedSecretary 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 . .
CitedJames, 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 . .
CitedKay 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 . .
CitedClift, 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:
Appeal fromKaiyam, 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 . .
At AdminHaney 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 . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Constitutional

Updated: 26 November 2021; Ref: scu.518721

James, Regina v; Regina v Karimi: CACD 25 Jan 2006

The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Held: ‘The rule that this court must always follow a decision of the House of Lords and, indeed, one of its own decisions rather than a decision of the Privy Council is one that was established at a time when no tribunal other than the House of Lords itself could rule that a previous decision of the House of Lords was no longer good law. Once one postulates that there are circumstances in which a decision of the Judicial Committee of the Privy Council can take precedence over a decision of the House of Lords, it seems to us that this court must be bound in those circumstances to prefer the decision of the Privy Council to the prior decision of the House of Lords. That, so it seems to us, is the position that has been reached in the case of these appeals. ‘ The decision in Holley was convincing, and preferred. The appeals were dismissed.

Lord Phillips CJ, Sir Igor Judge P QBD, Poole, Bean, Dobbs JJ
[2006] EWCA Crim 14, Times 14-Feb-2006, [2006] 2 WLR 887, [2006] QB 588
Bailii
Homicide Act 1957 3
England and Wales
Citing:
CitedRegina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .
CitedLuc Thiet Thuan v The Queen PC 2-Apr-1996
(Hong Kong) On a trial for murder the defendant relied on the defences of diminished responsibility and provocation. Medical evidence showed the defendant suffered from brain damage and was prone to respond to minor provocation by losing his . .
CitedHer Majestys Attorney General for Jersey v Holley PC 15-Jun-2005
(Jersey) The defendant appealed his conviction for murder, claiming a misdirection on the law of provocation. A chronic alcoholic, he had admitted killing his girlfriend with an axe. Nine law lords convened to seek to reconcile conflicting decisions . .
CitedRegina v Smith (Morgan James) HL 27-Jul-2000
The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
CitedRegina v Morhall HL 21-Jul-1995
The defendant was a glue sniffer. He had been taunted, and eventually attacked one of those villifying him. The judge excluded from the jury that the characteristics he suffered as a glue sniffer which might affect his response to provocation.
CitedRegina v Parker CACD 25-Feb-1997
The defendant appealed his conviction for murder, saying that his defence of provocation should have been left for the jury.
Held: Not following Luc, it was open to admit relevant evidence on the defendant’s capacity for self-control. Having . .
CitedRegina v Campbell CACD 25-Oct-1996
The defendant appealed against his conviction for murder. At trial he had pleaded provocation, but not that he suffered abnormality of mind. Subsequent evidence of his state of mind led to this referral. The court now received fresh evidence to . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
CitedAnderton v Ryan HL 9-May-1985
The defendant was found in possession of a video recorder. She refused to name the source, but admitted that she believed it to be stolen. After it became clear that there was no evidence that it was in fact stolen, she was convicted of attempting . .
CitedRegina v Shivpuri HL 15-May-1986
The defendant had been accused of attempting to import controlled drugs, but the substances actually found were not in fact a controlled drug, though he had believed and intended them to be. He appealed saying that he should not be conviced of an . .
CitedMiliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
CitedTai Hing Ltd v Liu Chong Hing Bank PC 1985
(Hong Kong) The relationship between banker and customer is principally a contractual one between debtor and creditor. As between the banker and his customer, the risk of loss through forgery of the customer’s signature falls on the banker unless . .
Citedde Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
CitedMohammed, Regina v CACD 13-Jul-2005
The court granted permission to appeal against a conviction for murder on grounds that related to the judge’s summing up in respect of provocation: ‘Although Holley is a decision of the Privy Council and Morgan Smith a decision of the House of . .
CitedOverseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .
CitedVan Dongen and Another, Regina v CACD 5-Jul-2005
The defendant brothers appealed convictions for murder. They had pleaded self defence. The injuries on the deceased suggested a substantial number of wounds were inflicted when he was in a curled up defensive post.
Held: The provocation . .
CitedDavis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
CitedSimpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .

Cited by:
CitedBolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
CitedWillers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
CitedWillers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 20 November 2021; Ref: scu.237909

Bancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs: SC 8 Feb 2018

Diplomatic Protection Lost to Public Domain

The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked diplomatic material which they said would show that the decision to request the Order arose from an improper motive.
Held: Though parts of a diplomatic mission archive were inviolable, this document may have been obtained in fact from the US State Department or similar and was no longer part of that archive. It was admissible.

Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Sumption, Lord Reed
[2018] UKSC 3, UKSC 2015/0022, [2018] 1 WLR 973, [2018] 2 All ER 945, [2018] Env LR 24, [2018] WLR(D) 79
Bailii, SC, SC Summary, SC Summary Video, SC 28 Jun 2017 AM Video, SC 28 Jun 2017 pm Video, SC 29 Jun 2017 pm Video, SC 29 Jun 2017 am Video, WLRD, Bailii Summary
Diplomatic Privileges Act 1964 2(1), Vienna Convention on Diplomatic Relations 1961 24 27(2)
England and Wales
Citing:
At First Instance (Admn)Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
Appeal from (CA)Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
CitedRex v Rose 1946
(Quebec Court of King’s Bench, Appeal Side) Rose was convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents . .
CitedFayed v Al-Tajir CA 1987
The de facto head of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. Diplomatic immunity had been waived, but the question remained whether the . .
CitedShearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2) HL 1988
Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC ‘shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the . .
CitedAttorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
See AlsoChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 20 November 2021; Ref: scu.604213

Beatty v Gillbanks: QBD 13 Jun 1882

The appellants assembled with others for a lawful purpose, and with no intention of carrying it out unlawfully, but with the knowledge that their assembly would be opposed, and with good reason to suppose that a breach of the peace would be committed by those who opposed it.
Held: Persons who are lawfully and peaceably assembled could not be convicted of the offence that they did ‘unlawfully and tumultuously assemble with divers other persons . . to the disturbance of the public peace, and against the peace of our sovereign Lady the Queen.’ They did nothing unlawful and the evidence showed that the disturbances were caused by other people antagonistic to the appellants. ‘What has happened here is that an unlawful organisation has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act.’ Per contra the Court said ‘If this disturbance of the peace was the natural consequence of acts of the appellants they would be liable, and the justices would have been right in binding them over.’

[1882] 9 QBD 308, [1882] UKLawRpKQB 104, (1881-1882) 9 QBD 308, (1882) 15 Cox CC 138
Commonlii
England and Wales
Cited by:
CitedRegina v Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited HL 2-Apr-1998
Chief Constable has a Wide Discretion on Resources
Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under . .
CitedHubbard v Pitt CA 1976
Protesters handed out leaflets and carried posters outside the plaintiff’s estate agency. He claimed in trespass over the public footpath outside his premises. The defendants appealed the grant of an interlocutory injunction to prevent their . .
CitedLaporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
CitedAustin and Another v Commissioner of Police of the Metropolis CA 15-Oct-2007
The claimants appealed dismissal of their claims for false imprisonment and unlawful detention by the respondent in his policing of a demonstration. They had been held within a police cordon in the streets for several hours to prevent the spread of . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Leading Case

Updated: 14 November 2021; Ref: scu.192009

Duport Steels Ltd v Sirs: HL 3 Jan 1980

Judiciary must Interpret, not Remedy the Law

The House emphasised the need for courts to be even handed in interpreting statutes dealing with industrial relations. Where the words of the statute are plain and unambiguous, the Court ought to give effect to that plain meaning.
Lord Diplock said: ‘My Lords, at a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is Parliament’s opinion on these matters that is paramount . .’
A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may in actual operation turn out to have injurious consequences that Parliament did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them . . But if this be the case it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts . . It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest . . The legitimate questions for a judge in his role as interpreter of the enacted law are: ‘How has Parliament, by the words that it has used in the statute to express its intentions, defined the category of acts that are entitled to the immunity? Do the acts done in this particular case fall within that description?”
Lord Scarman said: ‘If Parliament says one thing but means another, it is not, under the historic principles of the common law, for the courts to correct it . . We are to be governed not by Parliament’s intentions but by Parliament’s enactments’ and ‘in the field of statute law the judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes, and un-makes, the law: the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires’
Lord Edmund-Davies said: ‘we must apply them as they stand, however unreasonable or unjust the consequences, and however strongly we may suspect that this was not the real intention of Parliament’.

Lord Diplock, Lord Scarman, Edmund-Davies, Keith of Kinkel and Fraser of Tullybelton LL
[1980] 1 WLR 142, [1980] 1 All ER 529, [1980] ICR 161, [1980] IRLR 116
England and Wales
Citing:
At CADuport Steels Ltd v Sirs CA 2-Jan-1980
. .
At EATDuport Steels Ltd v Sirs QBD 1980
. .

Cited by:
CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
CitedIn re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .

Lists of cited by and citing cases may be incomplete.

Employment, Constitutional

Leading Case

Updated: 14 November 2021; Ref: scu.200598

Rex v Earl of Crewe, Ex parte Sekgome: CA 2 May 1910

By an Order in Council, dated May 9,1891, made ‘in exercise of the powers by the Foreign Jurisdiction Act, 1890, or otherwise in Her Majesty vested,’ the High Commissioner for South Africa was authorized to exercise in the Bechuanaland Protectorate the powers of Her Majesty, and to do all such things ‘as are lawful,’ and to provide by proclamation for the administration of justice and generally for the peace, order, and good government of all persons within the Protectorate, including the prohibition and punishment of all acts tending to disturb the public peace.
One Sekgome, who claimed to be the chief of ‘a native tribe in the Protectorate’, was detained in custody at a place within the Protectorate by virtue of a proclamation authorizing his detention, and expressed to have been made by the High Commissioner, under the powers conferred on him by the Order in Council, on the ground that the detention of Sekgome was necessary for the preservation of peace within the Protectorate.
On an application by Sekgome for a writ of habeas corpus to the Secretary of State for the Colonies:
Held (affirming an order of the Divisional Court dismissing the application), that the Protectorate was a foreign country in which His
Majesty had jurisdiction within the meaning of the Foreign Jurisdiction
Act, 1890; that the proclamation was validly made under the powers conferred by the Order in Council; and that the detention of Sekgome was, therefore, lawful.
Held, also, by Vaughan Williams and Kennedy L.JJ., that the Protectorate was not a ‘foreign dominion of the Crown ‘ within s. 1 of
the Habeas Corpus Act, 1862.
Quaere, whether, in any event, the Secretary of State for the Colonies was a person having the custody of Sekgome to whom a writ of habeas corpus could be issued.
The Bechuanaland Protectorate in South Africa was ‘under His Majesty’s dominion’ in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion. A protectorate is a foreign country whose governance is an act of state.
A writ of habeas corpus would run to such a territory, and ‘may be addressed to any person who has such control over the imprisonment that he could order the release of the prisoner’.

Vaughan Williams, Farwell LJJ
[1910] 2 KB 576, [1910] UKLawRpKQB 78
Commonlii
England and Wales
Citing:
DistinguishedSprigg v Sigcau PC 26-Feb-1897
(Cape of Good Hope) . .

Cited by:
CitedSecretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Litigation Practice

Leading Case

Updated: 14 November 2021; Ref: scu.470681

Sprigg v Sigcau: PC 26 Feb 1897

(Cape of Good Hope)

[1897] UKPC 5, [1897] AC 238
Bailii
England and Wales
Cited by:
DistinguishedRex v Earl of Crewe, Ex parte Sekgome CA 2-May-1910
By an Order in Council, dated May 9,1891, made ‘in exercise of the powers by the Foreign Jurisdiction Act, 1890, or otherwise in Her Majesty vested,’ the High Commissioner for South Africa was authorized to exercise in the Bechuanaland Protectorate . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 14 November 2021; Ref: scu.417289

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 Commons to bring into law an Act which had not been approved by the House of Lords. The Speaker of the House of Commons had certified that the Hunting Act had been passed in accordance with those procedures.
Held: Acts brought in by virtue of the 1911 Act were not a species of subordinate legislation, and therefore the 1949 Act which extended those powers was itself fully effective, and so in turn was the 2004 Act. The AG argued that the 1911 Act could be used to pass any Act, however the House was ‘not prepared to give such a ruling as would sanction in advance the use of the 1911 Act for all purposes, for example to abolish the House of Lords, (rather than, say, alter its constitution or method of selection) or to prolong the life of Parliament, two of the extreme ends to which theoretically this procedure could be put . . the strict logic of the respondent’s position suggests that the express bar on the House of Commons alone extending the life of Parliament could be overcome by a two-stage use of the 1911 Act procedure, [but] the Attorney General acknowledged in argument that the contrary view might have to be preferred. Let us hope that these issues will never be put to the test. But if they are, they will certainly deserve fuller argument than time has allowed on the present appeal.’
Lord Steyn said: ‘The word ‘Parliament’ involves both static and dynamic concepts. The static concept refers to the constituent elements which make up Parliament: the House of Commons, the House of Lords, and the Monarch. The dynamic concept involves the constituent elements functioning together as a law making body. The inquiry is: has Parliament spoken? The law and custom of Parliament regulates what the constituent elements must do to legislate: all three must signify consent to the measure. But, apart from the traditional method of law making, Parliament acting as ordinarily constituted may functionally redistribute legislative power in different ways. For example, Parliament could for specific purposes provide for a two-thirds majority in the House of Commons and the House of Lords. This would involve a redefinition of Parliament for a specific purpose. Such redefinition could not be disregarded.’
Lord Hope: ‘Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.’

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2005] UKHL 56, Times 14-Oct-2005, [2006] 1 AC 262, [2005] 2 WLR 87, [2005] 4 All ER 1253, [2006] AC 262
House of Lords, Bailii
Parliament Act 1911, Parliament Act 1949, Hunting Act 2004
England and Wales
Citing:
At First instanceJackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Appeal fromRegina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
CitedStradling v Morgan 1560
There is a wide common sense principle of the construction of statutes by which courts will imply qualifications into the literal meaning of wide and general words in order to prevent them from having some unreasonable consequence which it is . .
CitedRegina v Central Valuation Officer and another ex parte Edison First Power Limited HL 10-Apr-2003
Powergen sold a property to Edison. Powergen paid rates under a separate statutory rating regime, and paid an additional thirteen million pounds under an apportionment. Edison later complained that in being rated itself, the authorities had . .
CitedPickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
CitedEdinburgh and Dalkeith Railway Company v Wauchope HL 22-Mar-1842
The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first they sought to collect a toll, but his proved unprofitable. The . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 21-May-1997
The Home Secretary may not later extend the tariff for a lifer after it had been set by an earlier Home Secretary merely to satisfy needs of retribution and deterrence. ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedThe Queen v Burah PC 5-Jun-1978
The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 and 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the . .
CitedThe Bribery Commissioner v Ranasinghe PC 5-May-1964
S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but . .
CitedTaylor v Attorney General of Queensland 29-Jun-1917
(High Court of Australia) The 1908 Act provided that, when a bill passed by the Legislative Assembly in two successive sessions had in the same two sessions been rejected by the Legislative Council, it might be submitted by referendum to the . .
CitedClayton v Heffron 15-Dec-1960
(High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The . .
CitedMinister of the Interior v Harris 1952
(South Africa) A provision entrenched the right of Cape Coloured voters to be on the same voters roll as white voters. The entrenchment was achieved by sections 63 and the proviso to section 152 of the South Africa Act providing that the voting . .
CitedMcCawley v The King PC 8-Mar-1920
The Board was asked whether a Queensland statute authorising the Governor in Council to appoint a judge of the Court of Industrial Arbitration to hold office for seven years, was in fatal conflict with a provision of the 1859 Order in Council and a . .
CitedThe Prince’s Case ChD 11-Jan-1606
Parliamentary Roll is Conclusive
A document on the Parliamentary Roll is conclusive as to its validity as an Act if it shows on its face that everything has been done which the common law of the United Kingdom has prescribed for the making of an Act of Parliament – that the Queen, . .
CitedRegina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
CitedPringle, Petitioner 1991
A case was brought to challenge legislation which introduced the community charge in Scotland before it was introduced in England.
Held: The First Division of the Court of Session reserved its position on the effect of the Treaty of Union. . .
CitedRegina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
CitedRex 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.’ . .
CitedGibson v Lord Advocate 1975
Lord Keith reserved his opinion on whether provisions in the Acts of Union of 1707 and legislation purporting to abolish the Church of Scotland were justiciable: ‘The making of decisions upon what must essentially be a political matter is no part of . .
CitedWest Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
CitedPowell v Apollo Candle Co Ltd PC 1885
The Board declared firmly that the earlier decisions had put an end to the doctrine that a colonial legislature is a delegate of the Imperial legislature. . .
CitedMadzimbamuto v Lardner-Burke PC 23-Jul-1968
(Southern Rhodesia) The Board considered a submission that legal effect should be given to a convention that the UK Parliament would not legislate without the consent of the government of Southern Rhodesia on matters within the competence of the . .
CitedMacCormick v Lord Advocate SCS 30-Jul-1953
LP Cooper reserved his opinion on the question whether the provisions in article XIX of the Treaty of Union which purport to preserve the Court of Session and the laws relating to private right which are administered in Scotland are fundamental law . .
CitedInland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd HL 1952
A court is not prevented from interpreting the common law by an Act of parliament being based upon a different view. . .
CitedViscountess Rhondda’s Claim HL 1922
(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the . .

Cited by:
CitedHarding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
CitedForbes v Secretary of State for the Home Department CA 11-Jul-2006
The defendant had been placed on the sex offenders’ register on conviction for fraudulent evasion of prohibitions on importing goods, by importing indecent photographs of children. He had maintained that he had not known of the exact nature of the . .
CitedCorner 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 . .
CitedJTB, Regina v HL 29-Apr-2009
The defendant appealed against his convictions for sexual assaults. He was aged twelve at the time of the offences, but had been prevented from arguing that he had not known that what he was doing was wrong. The House was asked whether the effect of . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedEvans 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 . .
CitedMiller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
CitedMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 12 November 2021; Ref: scu.231107

Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office: CA 18 Oct 2004

The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in Australia.
Held: Any threat to their safety was not sufficient to justify not returning them to the Australian authorities. The 1998 Act required the UK to recognise the human rights of anyone within their jurisdiction. The Court referred to the essentially territorial nature of jurisdiction under Art 1 and the scope of the exception relating to diplomatic and consular activities. The court assumed, without concluding that while in the consulate the applicants were sufficiently within the authority of the consular staff to be subject to the jurisdiction of the United Kingdom for the purposes of Article 1. The 1998 Act was equally capable of applying to the actions of the diplomatic and consular officials in Melbourne.

Lord Justice Chadwick Lord Phillips Mr Slynn Of Hadley Lord
[2004] EWCA Civ 1344, Times 25-Oct-2004, [2005] 2 WLR 618, [2005] QB 643, [2004] HRLR 41, [2005] ACD 72, [2005] Imm AR 32, [2005] INLR 36
Bailii
European Convention on Human Rights 1, Human Rights Act 1998
England and Wales
Citing:
CitedRegina 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 . .
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedEast African Asians v United Kingdom ECHR 1973
(Commission) A group of Asian men, United Kingdom citizens, complained that, among other things, their Article 8 rights to respect for family life were infringed when they were refused permission to enter the United Kingdom to join their wives. The . .
CitedX v Federal Republic of Germany ECHR 25-Sep-1965
The applicant, a German national, claimed against the German consular and embassy officials in Morocco, alleging that they procured the Moroccan authorities to deport him from the country. The circumstances alleged by the applicant were bizarre.
CitedCyprus v Turkey ECHR 10-May-2001
Hudoc (Grand Chamber) Missing persons: No violation of Art. 2, Art. 4; Violation of Arts. 2 and 5 with regard to lack of effective investigation; No violation of Art. 5 with regard to alleged detention; Not . .
CitedLoizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
CitedWM v Denmark ECHR 14-Oct-1992
(Commission) The applicant lived in the German Democratic Republic (‘DDR’). He wished to move to the Federal Republic of Germany, but the DDR authorities refused him permission. At 1115 on 9 September 1988, together with 17 other DDR citizens, he . .
CitedBankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
CitedOcalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .
CitedMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .

Cited by:
CitedAl-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
CitedRegina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
CitedAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Human Rights, Immigration, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.216534

Western Bank Ltd v Schindler: CA 1977

The mortgagee sought possession in circumstances in which the mortgagor had allowed a life policy, taken as collateral security, to lapse, but where there had been no default under the mortgage itself. The question arose whether the court could exercise the powers conferred by section 36(2) of the Act in a case where no sums being due under the mortgage and there being no default.
Held: The Court found it possible to construe section 36 of the Act of 1970 in such a way as to avoid what the court perceived would be an obvious lacuna if the words were given a literal meaning. The section in its terms was enacted in order to deal with problem which had arisen following Caunt; and which had been the subject of examination and recommendation by the Payne Committee. However an insertion by a judge must not be too big, or too much at variance with the language used by the legislature.
Lord Justice Buckley: ‘If sub-s (1) [of section 36] is read literally, the conditional clause introduced by the words ‘if it appears to the court’ (which I shall refer to as ‘the conditional clause’) appears to restrict the operation of the section to cases in which some sum is due or some default has taken place and remains unremedied when the application comes before the court. This, however, seems to me to lead to a ridiculous result.’ The words of the section being unfair and irrational, the court ‘must therefore investigate whether the section is capable of some other construction’ and ‘Section 36 is an enabling section which empowers the court to inhibit the mortgagee’s right to take possession. It confers a discretionary power on the court to achieve this result. It is, in my judgment, impossible to spell out of it a positive abrogation of an important property right, and, moreover, an abrogation of it only in particular circumstances.’
Lord Justice Scarman saw three ways forward: ‘The first is to treat the section as having a ‘casus omissus’ which only Parliament can fill. The second . . . is to treat the section as excluding the common law right to possession from mortgages of dwelling houses. The third is to treat the section as giving the court a power to delay making an order in all cases where, upon whatever ground, a mortgagee is seeking possession of a mortgaged dwelling house.’ and ‘Judicial legislation is not an option open to an English judge. Our courts are not required, as are, for instance, the Swiss courts (see the Swiss Civil Code, arts 1 and 2), to declare and insert into legislation rules which the judge would have put there had he been the legislator. But our courts do have the duty of giving effect to the intention of Parliament, if it be possible, even though the process require a strained construction of the language used or the insertion of some words in order to do so; see Luke v Inland Revenue Commissioners [1963] AC 557, per Lord Reid at p.577. The line between judicial legislation, which our law does not permit, and judicial interpretation in a way best designed to give effect to the intention of Parliament is not an easy one to draw. Suffice it to say that before our courts can imply words into an Act the statutory intention must be plain and the insertion not too big, or too much at variance with the language in fact used by the legislature. The courts will strain against having to take the first of the three courses I mentioned; that is to say, leaving unfulfilled the ‘casus omissus’. In the case of this section, is there an acceptable reading which would enable us to give effect to Parliament’s intention within the principle which I think governs the problem?
It would be going too far, in my judgment, to adopt the second course. It would, indeed, be judicial legislation to read a section conferring discretionary powers on the court as abrogating a common law right. I am not prepared to go that far in an attempt to make sense. If one had to go that far, then it would be for the legislature, not the courts, to take the step.’
Lord Justice Goff: Section 36 could not be held, by a side wind, to have abrogated the mortgagee’s proprietary right to take possession: ‘This would not, I think, be applying the principle of liberal construction to avoid absurdity stated in Luke v Inland Revenue Commissioners [1963] AC 577, but disregarding the statute or overriding it, which as Ungoed-Thomas J. pointed out in In re Maryon-Wilson’s Will Trusts [1968] Ch 268, 282, and in my judgment rightly pointed out, is what the court is not allowed to do.’ There were only two courses open to the court: to construe the section as conferring a discretion in all cases; or to construe the section literally and face whatever anomalies or absurdities that produced. He preferred the latter; on the ground that he could not see how any sensible effect could be given to the powers in subsection (2) if there was nothing to be done by the mortgagor which an adjournment, stay, suspension or postponement would enable to be done within a time which the court was required to decide was a reasonable time.

Lord Justice Scarman, Lord Justice Buckley, Lord Justice Goff
[1977] Ch 1
Administration of Justice Act 1970 36
England and Wales
Cited by:
CitedRopaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
CitedInco 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 . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.230370

de Lasala v de Lasala: PC 4 Apr 1979

No Revisiting of Capital Claim after Compromise

(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the consent of the parties but from the making of the order by the court. Lord Diplock said: ‘The [Hong Kong] Ordinance and corresponding English legislation recognised two separate ways in which financial provision may lawfully be made for parties to a marriage which has been dissolved. One is by a maintenance agreement entered into between the parties without the intervention of the court; the other is by one party obtaining a court order against the other for periodical payments or for once-and-for-all financial provision. In the event of default, a maintenance agreement is enforceable by action. A court order is enforceable by judgment summons.’ and
‘financial arrangement that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order.’ and ‘Where a party to an action who seeks to challenge, on the ground that it was obtained by fraud or mistake, a judgment or order that finally disposes of the issues raised between the parties, the only ways of doing it that are open to him are by appeal from the judgment or order to a higher court or by bringing a fresh action to set it aside.’
Lord Diplock considered the relationship between rulings of the Board of the Privy Council and of the judicial committee of the House of Lords: ‘a decision of the House of Lords on a matter which in Hong Kong is governed by the common law by virtue of the Application of English Law Ordinance is not ipso facto binding upon a Hong Kong court although its persuasive authority must be very great, since the Judicial Committee of the Privy Council, whose decisions on appeals from Hong Kong are binding on all Hong Kong courts, shares with the Appellate Committee of the House of Lords a common membership. This Board is unlikely to diverge from a decision which its members have reached in their alternative capacity, unless the decision is in a field of law in which the circumstances of the colony or its inhabitants make it inappropriate that the common law in that field should have developed on the same lines in Hong Kong as in England.
Different considerations, in their Lordships’ view, apply to decisions of the House of Lords on the interpretation of recent legislation that is common to Hong Kong and England. Here there is no question of divergent development of the law. The legislation in Hong Kong has chosen to develop that branch of the law on the same lines as it has been developed in England, and, for that purpose, to adopt the same legislation as is in force in England and falls to be interpreted according to English canons of construction. What their Lordships have already said about the common membership of the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords applies a fortiori to decisions of the House of Lords on interpretation of recent English statutes that have been adopted as the law of Hong Kong. Since the House of Lords as such is not a constituent part of the judicial system of Hong Kong it may be that in juristic theory it would be more correct to say that the authority of its decision on any question of law, even the interpretation of recent common legislation can be persuasive only; but looked at realistically its decision on such a question will have the same practical effect as if they were strictly binding, and courts in Hong Kong would be well advised to treat them as being so.’

Lord Diplock, Lord Fraser of Tullybelton, Lord Russell of Killowen
[1980] AC 546, [1979] UKPC 10, [1979] 2 All ER 1146, [1980] FSR 443, [1979] 3 WLR 390
Bailii
England and Wales
Cited by:
CitedPearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
CitedMcFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
CitedKelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
CitedThwaite v Thwaite CA 1981
The failure of one party to complete a conveyance as part of the ancillary relief order rendered the order executory, and therefore subject to the court’s jurisdiction to amend it. The court discussed the principle in de Lasala and saying that the . .
CitedJames, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
CitedXydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
CitedSoulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
CitedJenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
CitedRobinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .
CitedJudge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
CitedCS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
CitedRoult v North West Strategic Health Authority CA 20-May-2009
The parties had settled a personal injury claim, on the basis as expected that the claimant would be provided with accommodation by the local authority. It later turned out that accommodation would not be provided, and he returned to court to . .
CitedGohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
CitedSharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .

Lists of cited by and citing cases may be incomplete.

Family, Constitutional, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.186015

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 legislation must be interpreted to give effect to Parliament’s intention, even if that meant adding to the words to give that effect. Although Parliament had made the power subject to a reasonable belief they accepted the Home Secretary’s statement that he held such a belief; in otherwise that he believed he had reasonable cause. This was a matter of national security., and it was not appropriate for a court to deal with matters of national security, especially as they were not privy to classified information that only the executive had.
Lord Atkin dissented as whether the defendant should or should not be obliged to give further and better particulars of a paragraph in his pleaded defence asserting that he had reasonable cause to believe that the claimant was a person of hostile associations. One of the pillars of liberty in English law is the principle that ‘every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act. The only exception is in respect of imprisonment ordered by a judge, who from the nature of his office cannot be sued, and the validity of whose judicial decisions cannot in such proceedings as the present be questioned.’
He discussed the function of judges when faced with claims involving the liberty of a subject: ‘Their function is to give the words [of the Act] their natural meaning, but not perhaps in wartime leaning towards liberty, but following the dictum of Pollock CB in Bowditch v Balchin [1855] Exch R at page 378, cited with approval by my noble and learned friend, Lord Wright, in Barnard v Gorman [1941] AC 378 at page 393: ‘In a case in which the liberty of a subject is concerned we cannot go beyond the natural construction of the statute.’. In this country, amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the pillars of freedom and one of the principles of liberty for which, on recent authority, we are now fighting that judges are no respecters of persons and stand between the liberty of the subject and any attempted encroachments on his liberty by the executive alert to see that any coercive action is justified by law.’
Given the public importance of the case: ‘I think the majority of their Lordships… are rather of opinion that it is not a case in which costs should be asked for’. As to the mode of interpretation which tooks words to mean whatever the author meant Lord Atkin condemned it as: ‘when I use a word Humpty Dumpty said in rather a scornful tone, it means just what I choose it to mean – neither more nor less.’

Viscount Maugham, Macmillan, Wright, Romer LL, Lord Atkin (dissenting)
[1942] AC 206, [1941] UKHL 1, [1941] 3 All ER 338
Bailii
Defence (General) Regulations 1939, Emergency Powers (Defence) Act 1939 1
England and Wales
Citing:
CitedBowditch 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.’ . .
CitedBarnard v Gorman HL 1941
The court considered awarding costs in a judicial review case: ‘There will be no order as to costs in this House, as the Crown has very properly agreed (since this is a case of general importance, and the respondent is a poor man) to pay the costs . .

Cited by:
CitedRegina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
CitedRegina v Secretary of State for the Home Department Ex Parte Abdi, Same v Same, Ex Parte Gawe HL 15-Feb-1996
Two Somali nationals were refused asylum and sought to challenge a decision rejecting their claim that to be sent to Spain would be contrary to the United Kingdom’s obligations under the Geneva Convention of 1951.
Held: Adjudicators are . .
CitedCorner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
CitedAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
CitedHaw, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 8-May-2006
The applicant had demonstrated continuously against the war in Iraq from the pavement outside the House of Commons. The respondent sought an order for his removal under the law preventing demonstrations near Parliament without consent which was . .
CitedRaissi and Another v The Commissioner of Police of the Metropolis QBD 30-Nov-2007
The claimants had been arrested under the 2000 Act, held for differing lengths of time and released without charge. They sought damages for false imprisonment.
Held: The officers had acted on their understanding that senior offcers had more . .
CitedSK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
CitedID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
CitedTF, Regina (on the Application of) v Secretary of State for Justice CA 18-Dec-2008
The claimant had been near to completing a sentence for serious violence. He now challenged the way in which, as his sentenced approached completion, the defendant had sought an order transferring him to a secure mental hospital. He was served with . .
CitedCommissioner of Police of the Metropolis v Raissi CA 12-Nov-2008
The Commissioner appealed against an award of damages for false imprisonment. The claimant had been arrested shortly after a terrorist attack. The judge had held that they had no reasonable belief of his involvement. The Commissioner did not now . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Dissenting Judgment appliedNakkuda Ali v M F De S Jayaratne PC 1951
(Ceylon) The section provided that ‘where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer’ the Controller could exercise power to cancel the dealer’s licence given to him by the . .
Dissenting judgment approvedRegina 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 . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedZabrovsky v The General Officer Commanding Palestine PC 4-Dec-1946
Mr Zabrovsky’s son, Arie Ben Eliezer, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine. He was then transported to a military detention camp in Eritrea. At the time, . .
CitedAA, Regina (on The Application of) v Secretary of State for The Home Department SC 10-Jul-2013
The issue on this appeal is the effect of section 55 on the legality of the appellant’s detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Torts – Other, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.197896

Attorney-General v Wilts United Dairies Ltd: CA 1921

The Food Controller had been given power under the Defence of the Realm Acts to regulate milk sales. In granting the dairy a licence to buy milk in Cornwall, Devon, Dorset and Somerset, the Food Controller required the Dairy to pay 2d. per imperial gallon of milk purchased from those counties. The Attorney-General sued for the recovery of the monies which were not paid. The Dairy’s objection was that the method adopted by the Food Controller was in its nature a tax which could only be levied or imposed by Parliament.
Held: Scrutton LJ said: ‘It is conceivable that Parliament, which may pass legislation requiring the subject to pay money to the Crown, may also delegate its powers of imposing such payments to the Executive. But in my view the clearest words should be required before the courts hold such an unusual delegation has taken place.’ After citing Gosling v Veley: ‘A great deal of time was occupied in arguing whether the requirement of this payment was a ‘tax’. I prefer to use the words of the Bill of Rights which forbids ‘levying money for the use of the Crown without grant of Parliament,’ and the requirement of this 2d. appears to me clearly to come within these words. It is true that the fear in 1689 was that the King by his prerogative would claim money; but excessive claims by the Executive Government without grant of Parliament are, at the present time, quite as dangerous, and require as careful considerations and restriction from the Court of Justice.’
Atkin LJ: ‘Though the attention of our ancestors was directed especially to abuses of the prerogative, there can be no doubt that this statute declares the law that no money shall be levied for or to the use of the Crown except by grant of Parliament. We know how strictly Parliament has maintained this right – and, in particular, how jealously the House of Commons has asserted its predominance in the power of raising money.
In these circumstances, if an officer of the executive seeks to justify a charge upon the subject made for the use of the Crown (which includes all the purposes of the public revenue), he must show, in clear terms, that Parliament has authorized the particular charge.’ and ‘It makes no difference that the obligation to pay the money is expressed in the form of an agreement. It was illegal for the Food Controller to require such an agreement as a condition of any licence. It was illegal for him to enter into such an agreement. The agreement itself is not enforceable against the other contracting party; and if he had paid under it he could, having paid under protest, recover back the sums paid, as money had and received to his use.’

Scrutton LJ, Atkin LJ
(1921) 37 TLR 884
Bill of Rights 1688 4
England and Wales
Cited by:
Appeal fromAttorney-General v Wilts United Dairies Ltd HL 1922
The House heard an appeal by the Attorney-General against a finding that an imposition of duty on milk sales was unlawful.
Held: The appeal failed. The levy was unlawful. Lord Buckmaster said: ‘Neither of those two enactments enabled the Food . .
CitedTotal Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
CitedO’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
CitedRegina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
CitedTotal Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.248339

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 prorogation was void being for impermissible reasons. The English Court had decided that the issue was non-judiciable. The Court now heard appeals in both cases.
Held: The appeal was rejected in Cherry and succeeded in Miller. The prorogation was set aside as void and unlawful.
The prerogative power of prorogation had the effect of suspending the ability of parliament to hold a government to account. That particular effect required that the exercise of the power itself be subject to review by the courts: ‘a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.’
‘It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.’
‘the Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play. That is so for two reasons. The first is that the effect of prorogation is to prevent the operation of ministerial accountability to Parliament during the period when Parliament stands prorogued. Indeed, if Parliament were to be prorogued with immediate effect, there would be no possibility of the Prime Minister’s being held accountable by Parliament until after a new session of Parliament had commenced, by which time the Government’s purpose in having Parliament prorogued might have been accomplished. In such circumstances, the most that Parliament could do would amount to closing the stable door after the horse had bolted. The second reason is that the courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts.’
‘if the issue before the court is justiciable, deciding it will not offend against the separation of powers . . the court will be performing its proper function under our constitution. Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers.’

Lady Hale, President, Lord Reed, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin, Lord Sales
UKSC 2019/0193, UKSC 2019/0192
Bailii Summary, Bailii, SC, SC Summary, SC 20190917am Video, SC 20190917pm Video, SC 20190918am Video, SC 20190918pm Video, SC 20190919am Video, SC 20190919pm Video
Fixed-term Parliaments Act 2011, Bill of Rights of 1688 9
England and Wales
Citing:
At Outer HouseCherry, Joanna Cherry QC Mp and Others for Judicial Review SCS 4-Sep-2019
(Outer House) . .
1st Div Inner HouseCherry, 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 . .
Appeal fromMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
CitedProclamations, Case of KBD 1-Nov-1610
The King, as the executive government, sought to govern by making proclamations. In particular the court rejected the proposition that ‘the King by his proclamation may prohibit new buildings in and about London’
Held: The monarch had no power . .
CitedEntick 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 . .
CitedRegina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
CitedRegina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedAttorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
CitedBurmah 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 . .
CitedCouncil of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
CitedRegina v Secretary of State for the Environment, ex parte Nottinghamshire County Council HL 12-Dec-1985
The House heard a judicial review of the Secretary of State’s assessment of the proper level of expenditure by a local authority.
Held: A ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political . .
CitedUnison, Regina (on The Application of) v Lord Chancellor SC 26-Jul-2017
The union appellant challenged the validity of the imposition of fees on those seeking to lay complaints in the Employment Tribunal system.
Held: The appeal succeeded. The fees were discriminatory and restricted access to justice.
The . .
CitedRahmatullah (No 2) v Ministry of Defence and Another SC 17-Jan-2017
‘another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and . .
CitedRegina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
CitedBobb and Another v Manning PC 25-Apr-2006
(From Court of Appeal, Trinidad and Tobago) The appellants, electors in one of the state’s electoral districts, applied for leave to apply for judicial review, seeking remedies to resolve the ongoing constitutional crisis. Their complaint was that . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Judicial Review

Updated: 11 November 2021; Ref: scu.641418

Carltona Ltd v Commissioners of Works: CA 1943

Ministers May Act through Civil Servants

The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an official within the Ministry of Works and Planning. They argued that as a holder of a delegated power, the Minister could not himself delegate its use (‘delegatus non potest delegare’).
Held: The court recognised the inappropriateness of the argument and answered it by holding that in law, as the Northcote-Trevelyan reforms had firmly established in practice, that civil servants acted not on behalf of but in the name of their ministers. The action of the official was not a delegated act; it was the act of the Minister.
A minister could speak through the alter ego of a civil servant in an affidavit. Civil servants are servants of the Crown, not of the ministers who are answerable to Parliament for the departments in which they serve.
Where a power or function is conferred on a Minister, in circumstances where, given administrative necessity, Parliament cannot have intended the Minister to exercise the power or function personally, an implied power of delegation (or agency) may be inferred.
Lord Greene MR said: ‘In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them.’
. . And: ‘It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction.’

Lord Greene MR
[1943] 2 All ER 560
Defence (General) Regulations 1939
England and Wales
Cited by:
CitedEvans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
AppliedRegina v Secretary of State for the Home Department ex parte Oladehinde HL 18-Oct-1990
A decision at Senior Executive Officer level was accepted as appropriate in a deportation case. There was an express form of delegation, and acts of the immigration officers required to be regarded as the acts of the Home Secretary.
Lord . .
CitedNational Association of Health Stores and Another, Regina (on the Application of) v Department of Health CA 22-Feb-2005
Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
CitedAir 2000 v Secretary of State for Transport (No 2) OHCS 1990
Advice from the Civil Aviation Authority which by statute the Secretary of State was required to consider had been seen not by him but by an interdepartmental working party which advised him.
Held: Citing Carltona for the uncontroversial . .
CitedSheffield City Council v Ali Admn 7-Jul-2005
The taxi driver had been acquitted for making a false statement to support his application. The magistrates had found that the form he had been requested to use had not been approved properly by the authority. It was accepted that the information, . .
CitedBeggs v Scottish Ministers HL 7-Feb-2007
The claimant, a serving prisoner, had sought to sue the prison authorities for the conditions in which he was kept. He complained that his correspondence with his lawyers had been unlwafully opened by the prison. Repeatedly, undertakings were given . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedMcEldowney 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 . .
CitedCastle v Crown Prosecution Service Admn 24-Jan-2014
The defendant appealed from his conviction for having driven in excess of a variable speed limit on the motorway. He said that the Order under which the speed limit had been imposed was irregular. . .
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
CitedAdams, Regina v CANI 14-Feb-2018
Appeal against convictions on 20 March 1975 and 18 April 1975 on counts of attempting to escape from detention contrary to paragraph 38(a) of Schedule 1 of the Northern Ireland (Emergency Provisions) Act 1973 (‘the 1973 Act’) and common law.
CitedAdams, Regina v (Northern Ireland) SC 13-May-2020
Secretary of State alone to consider confinement
The appellant had been detained under an Interim Custody Order (ICO) during internment during the troubles in Ireland, and then convicted of attempting to escape and escaping. He now appealed from that conviction saying that the order under which he . .
CitedDoody v Secretary of State for the Home Department CACD 1992
The Court considered the procedure for fixing the period for which prisoners sentenced to mandatory life imprisonment should serve for retribution and deterrence before their sentences could be reviewed. Held Staughton LJ considered the issue of . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedMcCafferty, Re Writ of Habeas Corpus CANI 16-Dec-2009
The applicant was a prisoner who had been released on licence while serving a sentence for possession of an explosive substance. His licence was revoked, and he was arrested a month after his release. The revocation of the licence was authorised by . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Administrative, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.199259

A and others v Secretary of State for the Home Department (No 2): HL 8 Dec 2005

The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the decisions had probably been obtained by torture committed by foreign powers, and should not have been admitted. The respondent said that in the absence of evidence that torture had been used, the evidence should be admitted.
Held: The appeal succeeded. Evidence obtained by means of torture should not be admitted. Protection against the use of torture is a fundamental right. The common law has not for many years admitted such evidence. The Home Secretary’s attempted distinction between evidence derived from torture by friendly foreign states and by the UK was unsustainable. The Torture Convention barred the use of such information wherever gathered.
The executive made different kinds of decisions to those made by the courts, and might act on a wider range of material, but courts could not countenance use of such evidence. The Home Secretary’s suggestion that the courts might act on evidence not proved to be obtained in this way was also unsustainable. The normal rules of evidence could not be applied. A suspect was not in a position to raise proof of the provenance of evidence he was not allowed to know of. The Torture Convention set a standard, which the courts must apply, that of testing whether such provenance had been established, by whatever means was available to it: ‘a conventional approach to the burden of proof is appropriate in a proceeding where the appellant may not know the name or identity of the author of an adverse statement relied on against him, may not see the statement or know what the statement says, may not be able to discuss the adverse evidence with the special advocate appointed (without responsibility) to represent his interests, and may have no means of knowing what witness he should call to rebut assertions of which he is unaware. It would, on the other hand, render section 25 appeals all but unmanageable if a generalised and unsubstantiated allegation of torture were in all cases to impose a duty on the Secretary of State to prove the absence of torture. It is necessary, in this very unusual forensic setting, to devise a procedure which affords some protection to an appellant without imposing on either party a burden which he cannot ordinarily discharge. ‘
Lord Brown of Eaton-Under-Heywood: ‘SIAC could never properly uphold a section 23 detention order where the sole or decisive evidence supporting it is a statement established to have been coerced by the use of torture. To hold otherwise would be, as several of your Lordships have observed, to bring British justice into disrepute. And this is so notwithstanding that the appellant was properly certified and detained by the Secretary of State in the interests of national security, notwithstanding that the legislation (now, of course, repealed) allowed the appellant’s continuing detention solely on the ground of suspicion and belief, notwithstanding that the incriminating coerced statement was made not by the appellant himself but by some third party, and notwithstanding that it was made abroad and without the complicity of any British official. ‘
Lord Bingham said: ‘There is reason to regard it as a duty of states, save perhaps in limited and exceptional circumstances, as where immediately necessary to protect a person from unlawful violence or property from destruction, to reject the fruits of torture inflicted in breach of international law. As McNally JA put it in S v Nkomo 1989 (3) ZLR 117, 131: ‘It does not seem to me that one can condemn torture while making use of the mute confession resulting from torture, because the effect is to encourage torture.”

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2005] 3 WLR 1249, [2006] 2 AC 221, [2005] UKHL 71, Times 09-Dec-2005, [2006] 1 All ER 575, 19 BHRC 441, [2006] UKHRR 225, [2006] HRLR 6
Bailii, House of Lords
Anti-Terrorism, Crime and Security Act 2001 21 23 25, European Convention on Human Rights 5(1)(f)
England and Wales
Citing:
See AlsoA v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
CitedPearse v Pearse 2-Jan-1846
Legal privilege was claimed for communications related to transactions concerning the client’s lands and unconnected with any existing or anticipated litigation.
Held: The work done was all part of one transaction of the nature in which . .
CitedIbrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
CitedCustoms and Excise Commissioners v Harz and Power; Regina v Harz and Power HL 1967
The rule that a confessional statement is not admissible if it was induced by a fear of prejudice or a hope of advantage exercised or held out by a person in authority applies equally where the inducement does not relate to the actual or . .
CitedHui Chi-ming v The Queen PC 5-Aug-1991
(Hong Kong) The defendant was charged with aiding and abetting a murder. A, carrying a length of water pipe and accompanied by the defendant and four other youths, seized a man and A hit him with the pipe, causing injuries from which he died. No . .
CitedA, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
CitedNadeem Akhtar Saifi v Governor of Brixton Prison and Union of India Admn 21-Dec-2000
The applicant for habeas corpus resisted extradition to India on the ground, among others, that the prosecution relied on a statement obtained by torture and since retracted.
Held: the court accepted the magistrate’s judgment that fairness did . .
CitedRex v Warickshall 1783
Evidence that stolen goods were found under the bed of the accused was admitted notwithstanding that the discovery was made in consequence of her inadmissible confession. Evidence obtained by oppression should be admitted to court. Involuntary . .
CitedRegina v William Baldry 1852
A police constable, who apprehended a man on a charge of murder, having told him the nature of the charge aganist him, said ‘he need not say any thing to criminate himself – what he did say would he taken down, and used as evidence against him.’ The . .
CitedRegina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
CitedLam Chi-ming v The Queen PC 1991
The inadmissibility of a confession not proved to be voluntary is perhaps the most fundamental rule of the English criminal law.
Lord Griffiths summarised the justification for the rule excluding evidence obtained improperly. Accepting that ‘a . .
CitedDirector of Public Prosecutions v Ping Lin PC 1976
The Board was asked whether a statement by the defendant was shown to be voluntary.
Held: A trial Judge faced by the problem should approach the task in a common sense way and should ask himself whether the prosecution had proved that the . .
CitedWong Kam-Ming v The Queen PC 20-Dec-1978
The voir dire system allows a defendant to give his evidence on the limited issues surrounding the circumstances under which his statement was made as to the admissibility of the confession, without infringing his right to elect not to give evidence . .
CitedRegina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
CitedRegina v Latif; Regina v Shahzad HL 23-Jan-1996
The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
CitedRegina v Mullen CACD 4-Feb-1999
British authorities, in disregard of available extradition procedures, initiated and procured the unlawful deportation of the appellant from Zimbabwe to England. The appellant was charged and tried for conspiracy to cause explosions likely to . .
CitedSchenk v Switzerland ECHR 12-Jul-1988
The applicant had faced charges of hiring someone to kill his wife. He complained about the use of a recording of his telephone conversation with the man he hired recorded unlawfully by that man.
Held: The ECHR does not address issues about . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedRegina v Looseley (orse Loosely); Attorney General’s Reference No 3 of 2000 HL 25-Oct-2001
Police Entrapment is no defence to Criminal Act
The defendant complained of his conviction for supplying controlled drugs, saying that the undercover police officer had requested him to make the supply.
Held: It was an abuse of process for the police to go so far as to incite a crime.
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedGarcia Alva v Germany ECHR 13-Feb-2001
The complainant had been arrested on suspicion of drug trafficking and was detained on remand. When he brought an application for review of his detention his lawyers were not given access to a number of documents in the file, including the . .
CitedKhan v The United Kingdom ECHR 12-May-2000
Evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. The police had installed covert listening devices on private property without the knowledge or consent of the owner. UK national law did . .
CitedFerrantelli and Santangelo v Italy ECHR 7-Aug-1996
The matter of admissibility of evidence is primarily one for the national courts: ‘It [the Court] recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess . .
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedTeixeira De Castro v Portugal ECHR 9-Jun-1998
Mr De Castro had been the target of an unwarranted, unauthorised, unsupervised police operation in which undercover officers incited him to supply drugs. He challenged a conviction for trafficking in heroin, based mainly on statements of two police . .
CitedAydin v Turkey ECHR 25-Sep-1997
ECHR Judgment (Merits and just satisfaction) Preliminary objection rejected (estoppel); Violation of Art. 3; Violation of Art. 13; Not necessary to examine Art. 6-1; No violation of Art. 25-1; Not necessary to . .
CitedJH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
CitedHarutyunyan v Armenia ECHR 5-Jul-2005
Held: ‘As to the complaint about the coercion and the subsequent use in court of the applicant’s confession statement, the Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that . .
CitedMamatkulov and Askarov v Turkey ECHR 4-Feb-2005
(Grand Chamber) The applicants had resisted extradition to Uzbekistan from Turkey to stand trial on very serious charges, saying that if returned they would be tortured. There was material to show that that was not a fanciful fear. On application . .
CitedRegina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
CitedRegina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
CitedRamda, Regina (on the Application of) v Secretary of State for the Home Department Admn 27-Jun-2002
The Government of France sought the extradition of Ramda wanted by them for trial in connection with a series of terrorist bombings in France. The applicant resisted extradition to France on the ground that the evidence which would be relied on . .
CitedMontgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
CitedIn Re Levin; Regina v Governor of Brixton Prison, Ex parte Levin HL 10-Apr-1997
The applicant had been detained pending extradition to the United States on charges of fraud. He said the evidence would not have been sufficient to justify his committal for trial.
Held: The Francis case did not establish that the 1984 Act . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
CitedV v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
CitedSelmouni v France ECHR 28-Jul-1999
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 3; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – . .
CitedProsecutor v Furundzija 1-Apr-1999
(International Criminal Tribunal for the Former Yugoslavia) The court described the main features of the law against torture: ‘There exists today universal revulsion against torture: as a USA Court put it in Filartiga v. Pena-Irala, ‘the torturer . .
CitedRegina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
CitedMakanjuola v Commissioner of Police for the Metropolis 1990
A plain clothed off duty police officer gained entry to premises by production of his warrant card. He enquired as to the immigration status of the two residents. He told them they were in breach of the immigration regulations, and demanded sexual . .
CitedRegina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
CitedLegal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ 9-Jul-2004
The court explained the consequences of the breach of international law which it found: ‘Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize . .
CitedKuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRegina v Leathem 1861
The court overruled an objection to production of a letter which had been discovered in consequence of an inadmissible statement made by the accused: ‘It matters not how you get it; if you steal it even, it would be admissible.’ . .
CitedRegina v Birmingham Overseers 1861
Cockburn CJ: ‘People were formerly frightened out of their wits about admitting evidence, lest juries should go wrong. In modern times we admit the evidence, and discuss its weight.’ . .
CitedKuruma v The Queen PC 8-Dec-1954
(Court of Appeal for Eastern Africa) The defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him.
Held: Lord . .
CitedRex v Lord Rusby 1800
The common law, in being formed from time to time by the wisdom of man it grew and increased from time to time with the wisdom of mankind. . .
CitedHurtado v California 1884
Common Law Not Written in Stone
(US Supreme Court) Matthews J spoke of the need for the common law to move forward: ‘as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply . .
CitedPrager v Blatspiel, Stamp and Heacock Ltd 1924
McCardie J spoke of the demand of an expanding society for an expanding common law. An agent must act bona fide in the interests of his principal. . .
CitedRegina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
CitedMcclean, Re an Application for Judicial Review 14 CANI 23-Apr-2004
The appellant was serving a prison term for murder. He was being considered for release under the Good Friday agreement, but on home leave he was again involved in further serious violence. He was recalled and his entitlement to early release was . .
CitedThe Secretary of State for the Home Department v M CA 18-Mar-2004
The applicant had been detained under the appellant’s certificate that he was a suspected terrorist.
Held: The fact that there were suspicions surrounding the detainee did not mean that those suspicions were necessarily reasonable suspicions . .

Cited by:
CitedJones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
CitedAhmad and Aswat v United States of America Admn 30-Nov-2006
The defendants appealed orders for their extradition. They were suspected of terrorist offences, and feared that instead of facing a trial, they would be placed before a military commission.
Held: The appeals failed. The court had diplomatic . .
CitedRegina v Barot CACD 16-May-2007
The defendant had been convicted of a conspiracy to commit terrorist acts, though no violence had been undertaken. He appealed a life sentence with a minimum term of forty years.
Held: The minimum term should be reduced to thirty years. The . .
CitedMohamed, 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 . .
CitedZagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
CitedEquality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedYoussef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
CitedShagang Shipping Company Ltd v HNA Group Company Ltd SC 5-Aug-2020
Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.235838

Wightman, MSP and Others, Reclaiming Motion By v The Advocate General: SCS 20 Mar 2018

Art 50 withdrawal possibility review to proceed

Petition seeking judicial review of the United Kingdom Government’s ‘position’ on the revocability of a notice of intention to withdraw from the European Union in terms of Article 50.2 of the Treaty on European Union.

[2018] ScotCS CSIH – 18
Bailii
Scotland
Cited by:
At Outer HouseWightman MSP and Others for Judicial Review v The Secretary of State for Exiting The European Union SCS 8-Jun-2018
The Petitioners sought a declaration that the Article 50 notice given by the UK government could be withdrawn by the UK without the consent of the EU.
Held: The matter was referred to the CJEU for a preliminary answer to the question: ‘Where, . .
At Outer HouseWightman and Others v Secretary of State for Exiting the European Union ECJ 4-Dec-2018
Opinion – Unilateral withdrawal of Art 50 Notice
Opinion – Right of withdrawal from the European Union – Notification of the intention to withdraw – Withdrawal of the United Kingdom (Brexit)
Question referred for a preliminary ruling – Admissibility – Article 50 TEU – Right of withdrawal from . .
At Outer HouseWightman and Others v Secretary of State for Exiting the European Union ECJ 10-Dec-2018
Art 50 Notice withrawable unilaterally
Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – Conditions
The . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional, Judicial Review

Updated: 11 November 2021; Ref: scu.609354

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 been bound by decisions of the House of Lords despite those decisions being ruled incorrect by the ECHR.
Held: The Court allowed Haney and Massey’s article 5 appeal, awarding Haney damages, but dismissed Haney’s article 14 appeal and Kaiyam’s article 5 appeal; and dismissed the article 5 appeal of Robinson by a majority of 4-1 (Lord Mance dissenting).
The Court was not bound by the ECHR in James -v- UK as regards a failure to allow progress toward release being an infringement. Article 5 imposed a duty on the SS to provide arrangements to facilitate prisoners’ rehabilitation and release, but a breach would sound only in damages without undermining the lawfulness of the detention.
Lord Mance, dissenting in the case of Robinson, said that article 5 required that Robinson be given a reasonable degree of access to the extended sexual offender’s treatment programme.
Otherwise: Regina (Kaiyam) v Secretary of State for Justice

Lord Neuberger, President, Lord Mance, Lord Hughes, Lord Toulson, Lord Hodge
[2014] UKSC 66, UKSC 2014/0036, [2015] 2 WLR 76, [2015] 2 All ER 822, [2015] 1 AC 1344, 38 BHRC 313
Bailii, SC, SC Summary, SC Video, Bailii Summary
Crime (Sentences) Act 1997 28(5) 28(6), Legal Aid, Sentencing and Punishment of Offenders Act 2012 122
England and Wales
Citing:
CitedSecretary 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 . .
CitedJames, 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 . .
At AdminRobinson, 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 . .
At CAKaiyam, 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 . .
CitedKay 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 . .
CitedClift, 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 . .
CitedCassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
CitedStafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
CitedRegina v Hodgson CACD 1967
The court stated that the exceptional circumstances required to justify imposition of a life sentence for an offence other than murder are present if three conditions. First, the offence or offences are in themselves serious enough to require a very . .
CitedRegina v Chapman CACD 22-Jul-1999
A discretionary life sentence intended to protect the public could now only be imposed after establishing compliance with the Act in that the sentence was so serious as to deserve a very long sentence, and for an unforeseeable time into the future, . .
CitedRegina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
CitedWeeks v The United Kingdom ECHR 5-Oct-1988
The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. . .
CitedThynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
CitedClift v The United Kingdom ECHR 13-Jul-2010
Mr Clift had been sentenced in England to a term of imprisonment of 18 years for crimes including attempted murder. The Parole Board recommended his release on licence once he had served half of his sentence. The Secretary of State rejected its . .
CitedSturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2) SC 3-Jul-2013
From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision . .
CitedMartin Corey, Re for Judicial Review SC 4-Dec-2013
The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence . .
CitedAmuur v France ECHR 25-Jun-1996
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Violation of Art. 5-1; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – domestic . .
CitedRegina 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 . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
CitedSaadi v United Kingdom ECHR 29-Jan-2008
(Grand Chamber) The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast-track processing. The decision was made pursuant to a policy under which all asylum claimants . .
CitedChester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
CitedRabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
CitedManchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
CitedHorncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
CitedKafkaris v Cyprus ECHR 12-Feb-2008
(Grand Chamber) The claimant said that his rights had been infringed by the mandatory imposition of a life sentence after conviction for murder. Only the President could order the release of such a prisoner, either by exercising the power of mercy . .
CitedSaadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
CitedHall v United Kingdom ECHR 12-Nov-2013
The claimant had been imprisoned for sexual offences. Whilst in prison as an IPP prisoner, and after completion of his tariff, he completed courses required to assist his treatment and demonstrate his improvement, there was an undue delay in his . .
CitedFaulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
CitedZagidulina v Russia ECHR 2-May-2013
The Court limited itself to article 5(1)(e), when it stated that: ‘the notion of ‘lawfulness’ in the context of article 5(1)(e) of the Convention might have a broader meaning than in national legislation. Lawfulness of detention necessarily presumes . .
CitedGrosskopf v Germany ECHR 21-Oct-2010
The Court considered whether a sufficient causal connection existed between the applicant’s original conviction and his continuing preventive detention.
Held: The Court expressed concern about the apparent absence of any special measures, . .

Cited by:
CitedLee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .
CitedDocherty, Regina v SC 14-Dec-2016
After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after . .
CitedBrown 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 . .
CitedRe Al M (Children) CA 28-Feb-2020
Publication of Children judgment – wide publicity
F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their . .
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.539821

Manuel and Others v HM Attorney General: CA 30 Jul 1982

The plaintiffs as representatives of the Indian Tribes of Canada sought declarations that the 1982 Act which provided for the independence of Canada was invalid. They appealed the strike out of their claims, saying that they had not been consulted as required, and that the Act would prejudice their interests. It was said that a convention had arisen for constitutional changes to follow consultation with the native peoples.
Held: The 1982 Act had been passed at the request of the Canadian Parliament, and it was not for an English court to seek to look behind the declaration in the Act that a request had been received. The Act made no reference to requests from the separate Dominions: ‘This court would run counter to all principles of statutory interpretation if it were to purport to vary or supplement the terms of this stated condition precedent by reference to some supposed convention, which, although referred to in the preamble, is not incorporated in the body of the Statute of Westminster.’ and ‘if and so far as the conditions of s 4 of the Statute of Westminster had to be complied with in relation to the Canada Act 1982., they were duly complied with by the declaration contained in the preamble to that Act.’

Cumming-Bruce, Eveleigh And Slade LJJ
[1982] 3 All ER 822, [1982] EWCA Civ 4, [1983] Ch 77
Bailii
Canada Act 1982, Statute of Westminster 1931, British North America Act 1867 3
England and Wales
Citing:
Appeal fromManuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
CitedPickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
CitedBritish Coal Corporation v The King PC 1935
The Board was asked as to the competency of a petition for special leave to appeal to the King in Council from a judgment of a court in Quebec in a criminal matter. The petitioners argued that notwithstanding the provisions of a Canadian statute . .
CitedThe Bribery Commissioner v Ranasinghe PC 5-May-1964
S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.241372

Millar v Dickson: PC 24 Jul 2001

The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that they did not meet this requirement.
Held: A trial before a temporary Sheriff was not a hearing before an independent tribunal, and was invalid unless there was some explicit waiver by the defendant of his rights in this respect. The Lord Advocate had become a member of the Scottish Executive, and was bound to act in accordance with the Human Rights legislation. It was not permissible to distinguish these case from earlier ones on the basis that they had only taken exception to the lack of independence of the tribunal at a late stage. There was no reason to think that the doubts about the standing of temporary sheriffs was widely understood. No accusation of actual bias had been made against temporary sheriffs, but their status was now accepted to be incompatible with the independence required of a tribunal. The concepts of impartiality and independence are closely linked.
Lord Steyn said: ‘it is a basic premise of the Convention system that only an entirely neutral, impartial, and independent judiciary can carry out the primary task of securing and enforcing Convention rights.’
Lord Bingham said: ‘The conduct of trials at all stages by an independent and impartial tribunal is in my view recognised by the Convention and the authorities, subject to waiver where that is permissible, as a necessary although not a sufficient safeguard of the citizen’s right to a fair trial. It is a safeguard which should not, least of all in the criminal field, be weakened or diluted, whatever the administrative consequences.’ and
‘In most litigious situations the expression ‘waiver’ is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. That the waiver must be voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where the applicant’s failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint (para 54, p 465). In Pfeifer and Plankl v Austria (1992) 14 EHRR 692 there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked . . In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection. It is apparent from passages already cited from cases decided by the European Court of Human Rights that a waiver, to be effective, must be unequivocal, which I take to mean clear and unqualified . .’

Bingham of Cornhill, Nicholls of Birkenhead, Clyde, Scott of Foscoe
Times 27-Jul-2001, [2002] 1 WLR 1615, DRA Nos 5, 6, 7, and 8 of 2000, [2001] UKHRR 999, 2001 SLT 988, 2002 SC (PC) 30, [2002] 3 All ER 1041, [2001] HRLR 59, [2001] UKPC D4, 2001 SCCR 741, 2001 GWD 26-1015
PC, PC, PC, Bailii
Scotland Act 1998 44(1)(c), Human Rights Act 1998 1
Scotland
Citing:
CitedStarrs and Chalmers and Bill of Advocattion for Procurator Fiscal, Linlithgow v Procurator Fiscal, Linlithgow and Hugh Latta Starrs and James Wilson Chalmers; Starrs v Ruxton, Ruxton v Starrs ScHC 11-Nov-1999
The system in Scotland whereby lesser judges were appointed by the executive, for a year at a time, and could be discharged without explanation or challenge, meant that they could be seen not to be independent, and the system was a breach of the . .

Cited by:
CitedSingh v The Secretary of State for the Home Department for Judicial Review OHCS 24-Dec-2003
The applicant complained that the adjudicator who had heard his asylum appeal in 1997 had not been sufficiently independent.
Held: The tribunal lacked what had come to be called ‘structural independence’ The common law test for impartiality . .
CitedRegina v Dundon CMAC 18-Mar-2004
The defendant had been convicted under a system of trial later confirmed not to be compliant with the need for a fair trial.
Held: The judge advocate in this trial had been a serving officer. Unless the positive obligation to show an . .
CitedDavidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
CitedStretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
CitedEastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
CitedBarclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
CitedMitcham v The Queen PC 16-Mar-2009
(Saint Christopher and Nevis) The applicant appealed against his sentence of death following his conviction for murder. He had been granted a stay of execution pending the appeal to the board and had since been given leave to appeal against . .
CitedMedical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
CitedMcGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
CitedOshungbure and Another, Regina v CACD 10-Mar-2005
The defendant appealed against a confiscation order, saying that the judge having previously expressed strong contrary views of the defendant, should have recused himself from the application, because of the appearance of bias. The judge had . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional, Criminal Practice

Leading Case

Updated: 11 November 2021; Ref: scu.136166

Cox v Hakes: HL 5 Aug 1890

No Appeal from Order granting Habeas Corpus

Where a person has been discharged from custody by an order of the High Court under a habeas corpus the Court of Appeal has no jurisdiction to entertain an appeal.
So held by Lord Halsbury L.C. and Lords Watson, Bramwell, Herschell, and Macnaghten, Lords Morris and Field dissenting.
A clerk having been sued in an Ecclesiastical Court for offences against the ritual of the Church and pronounced guilty of contempt and contumacy, a writ de contumace capiendo was issued, and he was arrested and imprisoned. A rule nisi for a habeas corpus having been granted the Queen’s Bench Division made the rule absolute and the clerk was discharged from custody. The Court of Appeal having reversed the order making the rule absolute :-
Held: The appeal to the Court of Appeal was not ‘in a criminal cause or matter’ within s. 47 of the Judicature Act 1873; but that no appeal lay to the Court of Appeal under s. 19 from an order discharging a prisoner under a habeas corpus.
The decision of the Court of Appeal (20 Q. B. D. 1) reversed, and the
decision of the Queen’s Bench Division (19 Q. B. D. 307) restored on the
above ground.
The ‘basic principle’ that courts should not impute to the legislature an intention to interfere with fundamental rights leads to a rebuttable presumption that Parliament did not intend, retrospectively, to change rights and obligations.
Lord Herschell considered the construction of legislation: ‘It is not easy to exaggerate the magnitude of this change; nevertheless it must be admitted that if language of the legislature, interpreted according to the recognised canons of construction, involve this result, your Lordships must frankly yield to it, even if you should be satisfied that it was not in the contemplation of the legislature.’
Lord Field said: ‘Restitutio in integrum is the right of every successful appellant’. An appellant who has satisfied a judgment for the payment of money is entitled, upon the judgment being reversed on appeal, to repayment of the money he or she has paid, with interest.
Lord Halsbury said: ‘For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody. If release was refused, a person detained might make a fresh application to every judge or every Court in turn, and each Court or Judge was bound to consider the question independently and not to be influenced by the previous decisions refusing discharge. If discharge followed, the legality of that discharge could never be brought in question. No writ of error or demurrer was allowed.’

Lord Field, Lord Halsbury, Lord Herschell
(1890) 15 AC 506, (1890) 60 LJQB 89, (1890) 15 App Cas 506
Commonlii
England and Wales
Cited by:
CitedThe 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 . .
CitedSamuel Knowles, Junior v United States of America and Another PC 24-Jul-2006
(The Bahamas) The respondent sought the extradition of the appellant to face drugs charges. The appellant said that if extradited, he would not receive a fair trial, having been declared publicly by the US President to be a drugs ‘kingpin’.
Litigation Practice, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.199438

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 2002 Order. That Order was now said to be ineffective.
Held: The appeal failed. On its true construction, the relevant text in the Commencement Order was to be read as including by clear implication additional wording to indicate that the 2002 Act amendments also apply in relation to immigration control zones.
Sales J said: ‘in construing a legislative instrument such as the Commencement Order, just as in construing a legislative instrument in the form of an Act of Parliament, it is a basic constitutional principle that the citizen or person subject to the relevant law should have the means of access to any material which is said to provide an aid to construction of that instrument. It is only material which is in the public domain and of clear potential relevance to the issue of interpretation of a legislative instrument which can be treated as having any bearing on the proper construction of that instrument.’ and ‘For the purposes of the principle in Inco Europe, it is only if the legislative instrument has a clear, objectively assessed meaning, having regard to all the circumstances and all indicators of the legislator’s intention available to the person subject to the law (assisted as necessary by his legal advisers), and that meaning is contrary to the literal meaning of the text of the instrument, that it will be appropriate for the Court to give a rectifying interpretation to the instrument. ‘

Sales J
[2014] EWHC 2872 (QB), [2014] WLR(D) 401
Bailii, WLRD
Immigration and Asylum Act 1999, Nationality, Immigration and Asylum Act 2002 (Commencement No. 1) Order 2002, Nationality, Immigration and Asylum Act 2002
England and Wales
Citing:
CitedInco 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 . .
CitedBlack-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
CitedFothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
CitedSecretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
CitedPublic and Commercial Services Union, Regina (on The Application of) v Minister for The Civil Service Admn 10-May-2010
The Union challenged by way of judicial review proposed changes to the Civil Service Compensation Scheme, saying that it removed accrued rights.
Held: The benefits under the scheme were fully legal entitlements and were protected. They were an . .
CitedBroniowski v Poland ECHR 22-Jun-2004
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion of domestic remedies) ; Violation of P1-1 ; Just satisfaction reserved ; Costs and expenses partial award – Convention . .
CitedThe Pollen Estate Trustee Company Ltd and Another v HM Revenue and Customs CA 26-Jun-2013
The court was asked ‘If a charity acquires property in furtherance of its charitable purposes, or as an investment, it is entitled to relief against liability to pay stamp duty land tax (SDLT) on the purchase price.’
Held: The modern approach . .
CitedRegina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
CitedThe Confederation of Passenger Transport UK v The Humber Bridge Board and the Secretary of State for Transport Local Government and the Regions CA 25-Jun-2003
Regulations specifying the tolls for the Humber Bridge did not mention a charge for large buses.
Held: The same rules had to be applied in construing statutory instruments as applied in construing statutes. The explanatory note issued with the . .
CitedTuck and Sons v Priester 1887
A person should not be penalised except under a clear law: ‘If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more . .
CitedMannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
CitedRegina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
CitedKelly and others Regina (on the Applications of) v Secretary of State for Justice CA 12-Mar-2008
Each appellant had been sentenced to five years imprisonment, but then released on conditional licence after the expiry of three quartes of the sentence. They now challenged whether the extension of the licence period until sentence expiry was . .
CitedRegina 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 . .
CitedDowds v Regina CACzD 22-Feb-2012
The defendant appealed against his conviction for murder, saying that he should have been allowed to rely on a plea of diminished responsibility given the changes to section 2 of the 1957 Act introduced in 2009. He said that his alcoholism should . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .

Lists of cited by and citing cases may be incomplete.

Immigration, Transport, Constitutional

Updated: 11 November 2021; Ref: scu.536541

Cart v The Upper Tribunal: SC 21 Jun 2011

Limitations to Judicial Reviw of Upper Tribunal

Three claimants sought to challenge decisions of various Upper Tribunals by way of judicial review. In each case the request for judicial review had been first refused on the basis that having been explicitly designated as higher courts, the proper scope of judicial review was limited or excluded.
Held: The appeals failed, though the Court gave different reasons. The Upper Tribunal should be subject to judicial review only where a litigant would be allowed a second tier appeal, ie, where an important question of principle or practice falls to be answered.
Lady Hale said: ‘the adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual. ‘
Lady Hale said: ‘the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law – that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise.’

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Clarke,Lord Dyson
[2011] UKSC 28, UKSC 2010/0176, [2011] PTSR 1053, [2011] 3 WLR 107, [2011] STI 1943, [2012] 1 AC 663, [2011] 4 All ER 127, [2011] AACR 38, [2011] MHLR 196, [2012] 1 FLR 997, [2011] Imm AR 704, [2011] STC 1659, [2012] Fam Law 398
Bailii, Bailii Summary, SC, SC Summary
Tribunals, Courts and Enforcement Act 2007 3
England and Wales
Citing:
At Upper TribunalRC v Secretary of State for Work and Pensions UTAA 15-Apr-2009
. .
At First InstanceCart 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 . .
Appeal fromCart, Regina (on The Application of) v The Upper Tribunal and Others CA 23-Jul-2010
The claimant had sought and been refused judicial review of a decision of the SIAC Upper Tribunal. The Upper Tribunals were designated as courts of superior record, and the court at first instance had said that SIACs specialist procedures and . .
CitedRex v Northumberland Compensation Appeal Tribunal, ex Parte Shaw CA 19-Dec-1951
A tribunal had wrongly calculated his ‘service’ when assessing the applicant’s compensation for loss of office as clerk to the Hospital Board. There was no right of appeal against its decisions. The Attorney General had argued that certiorari would . .
CitedAnisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
MentionedRegina v National Insurance Commissioner, Ex parte Secretary of State for Social Services; In re Packer CA 1981
Mrs Packer, a lady of eighty-three, claimed an attendance allowance under the Act of 1975 in respect of the cooking of her meals which she could not do herself. The Commissioner thought that eating was a bodily function and that cooking was so . .
CitedIn re Woodling; Woodling v Secretary of State for Social Services HL 1984
The question of law was whether cooking meals was ‘attention in connection with bodily functions’ for the purpose of attendance allowance.
Held: Though courts are willing to give ‘bodily functions’ a fairly wide meaning, it did not include the . .
Appeal fromEBA v The Advocate General for Scotland SCS 10-Sep-2010
(Inner House) The petitioner wished to appeal against refusal of disability living allowance. Her appeal to the first tier tribunal was rejected, and her request to the Upper Tribunal for leave to appeal was refused. When, she then sought leave to . .
CitedRegina v Immigration Appeal Tribunal, ex parte Darsham Singh Sohal QBD 1981
. .
CitedRegina v Immigration Appeal Tribunal, Ex parte Bakhtaur Singh HL 1986
The claimant’s appeal against the decision of the Secretary of State to deport him failed before the adjudicator. The Immigration Appeal Tribunal refused leave to appeal to that Tribunal. He sought judicial review of that refusal. The issue was . .
CitedBone v Mental Health Review Tribunal 1985
Review was sought of a decision of the Mental Health Tribunal.
Held: In the specific case of Mental Health Review Tribunals, reasons for decisions must be proper, adequate and intelligible, and dealing with the substantial points raised. . .
CitedRegina v Immigration Appeal Tribunal, Ex parte Bakhtaur Singh HL 1986
The claimant’s appeal against the decision of the Secretary of State to deport him failed before the adjudicator. The Immigration Appeal Tribunal refused leave to appeal to that Tribunal. He sought judicial review of that refusal. The issue was . .
CitedRegina on the Application of M v Immigration Appeal Tribunal; Regina (G) v Immigration Appeal Tribunal CA 16-Dec-2004
The appellants sought judicial review of the refusal of asylum. They sought leave to appeal to the Immigration Appeal Tribunal, but that had been refused. They then sought a statutory review by a judge of the Administrative division. That review . .
CitedChessington World of Adventures Ltd v Reed EAT 27-Jun-1997
News Group Newspapers Ltd had been joined as a party, in order that it could argue the obvious public interest relating to the importance, which has long been accepted in the courts, of the interest, not just of the press but of the public . .
CitedRegina v Regional Office of the Employment Tribunals (London North), Ex p Sojorin (unreported) CA 21-Feb-2000
The Employment Appeal Tribunal is immune from judicial review. . .
CitedCooke v Secretary of State for Social Security CA 25-Apr-2001
Although production of a new medical report, or of a new medical opinion, could evidence a relevant change of circumstances, to support the claim that the threshold had been reached so as to allow a review of a decision to grant benefits, it did not . .
CitedSivasubramaniam v Wandsworth County Court, Management of Guildford College of Further and Higher Education and Another CA 28-Nov-2002
Having had various claims made in county courts rejected, the applicant was then refused leave to appeal. He sought judicial review of the refusal to give leave to appeal, and now appealed the refusal of leave to apply for a judicial review.
CitedFA (Iraq) and PD (India) v Secretary of State for the Home Department CA 28-Jun-2010
. .
CitedWiles v Social Security Commissioner and Another CA 16-Mar-2010
The court considered one of the last applications for permission to seek judicial review of a Social Security Commissioner’s determination before the transfer of the Commissioner’s jurisdiction to the Upper Tribunal. Mr Eadie, for the Commissioner, . .
CitedSecretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
DisapprovedSinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .

Cited by:
See AlsoEBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
CitedDaejan Investments Ltd v Benson and Others SC 6-Mar-2013
Daejan owned the freehold of a block of apartments, managing it through an agency. The tenants were members of a resident’s association. The landlord wished to carry out works, but failed to complete the consultation requirements. The court was . .
CitedWalsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedMichalak 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 . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Judicial Review

Leading Case

Updated: 11 November 2021; Ref: scu.441294

Home Office v Hariette Harman: HL 11 Feb 1982

The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule was imposed because ‘Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done.’
The House recognised the distinctin between ‘civil contempt’, ie conduct which is not in itself a crime but which is punishable by the court in order to ensure that its orders are observed, and ‘criminal contempt’.
Lord Diplock (dissenting) said: ‘Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’
Lord Keith of Kinkel said: ‘The implied obligation not to make improper use of discovered documents is, however, independent of any obligation existing under the general law relating to confidentiality. It affords a particular protection accorded in the interests of the proper administration of justice. It is owed not to the owner of the documents but to the court, and the function of the court in seeing that the obligation is observed is directed to the maintenance of those interests, and not to the enforcement of the law relating to confidentiality.’
Lord Scarman (dissenting) said: ‘We turn now to another proposition advanced on behalf of the respondent. Counsel formulated the implied undertaking as follows: not without leave of the court or the other party to use the other party’s documents as disclosed on discovery for any purpose other than the immediate purposes of the action for which they have been disclosed. We feel some difficulty about the words we have italicised. If the undertaking is to the court (as it is common ground it is) the other party cannot arrogate the power to release (and yet it is conceded that such other party may waive what would be a ‘civil’ contempt). On the other hand, how can the court fairly relieve from the undertaking if the party making discovery did so in reliance that the document would only be used for the purpose of litigation?’
He went on to discuss the importance of open justice: ‘Reasonable expedition is, of course, a duty of the judge. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.
Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.’

Lord Diplock, Lord Simon of Glaisdale, Lord Keith of Kinkel, Lord Scarman and Lord Roskill
[1983] 1 AC 280, [1982] 2 WLR 338, [1982] 1 All ER 532, (1982) 126 SJ 136
England and Wales
Citing:
AppliedAlterskye v Scott 1948
The obligation of confidentiality for documents disclosed during litigation discovery includes a duty being: ‘the implied undertaking, under which a party obtaining discovery is, not to use documents for any collateral or ulterior purpose.’ . .
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedCoco v A N Clark (Engineers) Ltd ChD 1968
Requirememts to prove breach of confidence
A claim was made for breach of confidence in respect of technical information whose value was commercial.
Held: Megarry J set out three elements which will normally be required if, apart from contract, a case of breach of confidence is to . .
CitedConway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
CitedD v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
CitedHalcon International Inc v Shell Transport and Trading Co CA 1979
A document could continue to have confidentiality after being read out in court. The documents referred to in the judgment had not been read in court. ‘The general provision of English law with regard to the use of documents which have been made . .
ApprovedRiddick v Thames Board Mills Ltd CA 1977
An action was brought by a disgruntled former employee. He had been summarily dismissed and had been escorted from the premises of his employers. In the first action he claimed damages for wrongful arrest and false imprisonment based on the latter . .
CitedSaltman Engineering Co v Campbell Engineering Co Ltd CA 1948
The plaintiffs instructed the defendant to make tools for the manufacture of leather punches in accordance with drawings which the plaintiffs provided to the defendant for this purpose. The defendant used the drawings to make tools, and the tools to . .
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedWilliams v Home Office (No 2) 2-Jan-1981
The plaintiff prisoner had been transferred from ordinary prison to a special control unit which had been established at the prison as a means of containing and controlling prisoners who were considered to be troublemakers and inducing them to . .
See AlsoWilliams v Home Office (No 2) 1981
Tudor-Evans J said: ‘In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the . .
CitedScience Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
CitedThe Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .

Cited by:
CitedTaylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
CitedBowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
CitedHRH the Prince of Wales v Associated Newspapers Ltd ChD 13-Jan-2006
The claimant had for many years kept private journals, whose contents were circulated within a small circle of friends. He now sought to claim confidentiality and copyright in them when the defendant sought to publish them.
Held: There was an . .
CitedMohammadzadeh v Joseph and others ChD 15-Feb-2006
The parties disputed whether the defendants owned the benefit of a restrictive covenant.
Held: The covenant did touch and concern the land, and the land with the benefit of covenant. The conditions under Federated Homes were met. The covenants . .
CitedMcBride v The Body Shop International Plc QBD 10-Jul-2007
The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
CitedBritish Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others CA 6-Jun-2008
The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also . .
CitedGuardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
CitedRegina 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 . .
CitedTchenguiz v Director of The Serious Fraud Office and Others CA 31-Oct-2014
The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Constitutional, Contempt of Court

Leading Case

Updated: 11 November 2021; Ref: scu.211380

The Bribery Commissioner v Ranasinghe: PC 5 May 1964

S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but provided that no Bill for amendment or repeal should be presented for the Royal Assent unless it was endorsed with a certificate of the Speaker, which was to be conclusive for all purposes that the Bill had been passed by a two-thirds majority of the members of the House of Representatives. The appellant was convicted of a bribery offence before a tribunal created by a provision of the Bribery Amendment Act 1958, which conflicted with a provision of the Constitution. The 1958 Act was not endorsed with the requisite Speaker’s certificate and was not shown to have been passed by a two-thirds majority.
Held: The orders made against the appellant were null and void. The persons composing the tribunal had been appointed under an invalid statute.
Lord Pearce said: ‘When a sovereign Parliament has purported to enact a bill and it has received the Royal Assent, is it a valid Act in the course of whose passing there was a procedural defect, or is it an invalid Act which Parliament had no power to pass in that manner?’ The passages he quoted from McCawley’s case: ‘showed clearly that the Board in McCawley’s case took the view, which commends itself to the Board in the present case, that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is ‘uncontrolled,’ as the board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with; and the alteration or amendment may include the change or abolition of these very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process.’ and ‘No question of sovereignty arises. A parliament does not cease to be sovereign whenever its component members fail to produce among them a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is only a bare majority if the Constitution requires something more. The minority are entitled under the Constitution of Ceylon to have no amendment of it which is not passed by a two-thirds majority. The limitation thus imposed on some lesser majority of members does not limit the sovereign power of Parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority.’
Lord Pearce rejected the proposition that: ‘a legislature, once established, has some inherent power, derived from the mere fact of its establishment, to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process.’

Lord Pearce, Viscount Radcliffe, Lord Evershed, Lord Morris of Borth-y-Gest, Lord Hodson
[1964] 2 WLR 1301, [1965] AC 172, [1964] 2 All ER 785, [1964] UKPC 1, [1964] UKPC 20
Bailii, Bailii
eylon (Constitution) Order in Council 1946
Commonwealth
Cited by:
CitedRegina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
CitedJackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
CitedManuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
CitedManuel and Others v HM Attorney General CA 30-Jul-1982
The plaintiffs as representatives of the Indian Tribes of Canada sought declarations that the 1982 Act which provided for the independence of Canada was invalid. They appealed the strike out of their claims, saying that they had not been consulted . .
CitedLiyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Leading Case

Updated: 11 November 2021; Ref: scu.222716

Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance): HL 13 Mar 2003

Court to seek and Apply Parliamentary Intention

The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to give effect to the intentions of Parliament, and statutes were to be read accordingly. The words which suggested it only applied to those which had human life given by fertilisation were words of description and not words of exclusive definition.
The words ‘where fertilisation is complete’ were intended not to qualify which embryos were protected, but the time at which they were protected. This was an Act passed for the protection of live human embryos created outside the human body. The essential thrust of section 1(1)(a) was directed to such embryos, not to the manner of their creation. The process was within the scope of the Act, and could accordingly be licensed under it. There was a ‘clear purpose in the legislation’ which could ‘only be fulfilled if the extension [was] made’.
Lord Bingham said: ‘The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulties. Such an approach not only encourages immense preliminary complexity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutia of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish or effect some improvement to the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provision should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment . . There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking . . The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language . . a revealing example is found in Grant v Southwestern and County Properties Limited [1975] Ch 185, where Walton J had to decide whether a tape recording falls within the expression ‘document’ in the Rules of the Supreme Court. Pointing out, at p190, that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that a tape recording was a document.’
Lord Steyn noted that Acts were generally to be construed as ‘always speaking’ unless they were in an exceptional category dealing with a particular problem. Otherwise the court was free to apply the meaning of the statute to the present day conditions.

Bingham of Cornhill, Steyn, Hoffmann, Millett, Scott of Foscoe, LL
[2003] UKHL 13, Times 14-Mar-2003, [2003] 2 WLR 692, [2003] 2 AC 687, (2003) 71 BMLR 209, [2003] 1 FCR 577, [2003] 2 All ER 113
House of Lords, Bailii
Human Fertilisation and Embryology Act 1990 1(1)
England and Wales
Citing:
Appeal fromRegina (Quintavalle) v Secretary of State for Health CA 18-Jan-2002
A cloned cell, a cell produced by cell nuclear replacement came within the definition of embryo under the Act. The Act required that fertilisation was complete.
Held: The act could be applied in a purposive way. The legislative policy was that . .
AdoptedRoyal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
CitedGrant v Southwestern and County Properties Ltd ChD 1974
The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording . .
CitedCabell v Markham 1945
In discussing the purposive approach to the interpretation of statutes, the judge held: ‘Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of . .
CitedChristopher Hill Ltd v Ashington Piggeries Ltd HL 1972
Mink farmers had asked a compounder of animal foods to make up mink food to a supplied formula.
Held: There was reliance as to the suitability of the ingredients only.
Lord Diplock said: ‘Unless the Sale of Goods Act 1893 is to be allowed . .
CitedRegina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .

Cited by:
CitedQuintavalle, Regina (on the Application of) v Human Fertilisation and Embryology Authority CA 16-May-2003
A licence was sought so that a couple could have a child who would be tissue typed to establish his suitability to provide an umbilical cord after his birth to help treat his future brother. A licence had been granted subject to conditions, and the . .
CitedKirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
CitedQuintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .
CitedRegina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
CitedKay v Commissioner of the Police of the Metropolis HL 26-Nov-2008
The claimant had been involved in a monthly cycle ride through central London which had continued for many years. The ride took place without any central organisation and without any route being pre-planned. They objected to being required to apply . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedGaunt v OFCOM and Liberty QBD 13-Jul-2010
The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being . .
CitedBritish Pregnancy Advisory Service v Secretary of State for Health Admn 14-Feb-2011
The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical . .
CitedBritish Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another Admn 20-Apr-2011
The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They . .
CitedRobertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .
CitedTrail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council and Others CA 20-May-2013
The Fellowship had applied for orders upgrading public rights of way. The council rejected the applications saying that the digital mapping software used to repare the maps submitted were not compliant with the requirements of the legislation. They . .
CitedEnglish Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
CitedTransport for London v Uber London Ltd Admn 16-Oct-2015
TFL sought a declaration as to the legality of the Uber taxi system. Otherwise unlicensed drivers took fares with fees calculated by means of a smartphone app. The Licensed Taxi drivers said that the app operated as a meter and therefore required . .
CitedTrail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
CitedLittlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
CitedBarlow 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. . .
CitedHuman 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 . .
CitedOwens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Administrative, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.179803

Alvi, Regina (on The Application of) v Secretary of State for The Home Department: SC 18 Jul 2012

The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of Appeal upheld his claim saying that the use of a list not laid before Parliament to decide such an issue was impermissible. The Secretary of State appealed.
Held: The appeal failed. The eventual document settling the clamant’s fundamental rights was the ‘List of Skilled Occupations’ published on the appellant’s web-site and elsewhere. However, it had not been laid before Parliament. The essential question was whether this was sufficient to meet the requirement imposed by the 1971 Act. The list itself and the statements of policy it contained were not were laid before Parliament. It was no longer proper for the Appellant to suggest reliance upon common law under the Royal prerogative. The rules are not subordinate legislation, nor to be seen as statements by the Secretary as to how she proposes to control immigration. The scope of her duty is now defined by the statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, is not to be modified or qualified in any way by reference to the common law.
The appropriate test between documents which needed or did not need to be laid, is found by centering on the word ‘rule’: it should be possible to identify from an examination of the material, taken in context, whether or not it has the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met. The Codes referred to also contain material which is not just guidance, but detailed information which will determine whether or not the applicant will qualify. The statement as to the rate of pay in particular was properly part of the Rules. Though the requirement to lay such voluminous materials befoe Parliament may be onerous, perhaps rules might be developed to take advantage of modern technology.
Lord Hope said: ‘The content of the rules is prescribed by sections 1(4) and 3(2) of the 1971 Act in a way that leaves matters other than those to which they refer to her discretion. The scope of the duty that then follows depends on the meaning that is to be given to the provisions of the statute. What section 3(2) requires is that there must be laid before Parliament statements of the rules, and of any changes to the rules, as to the practice to be followed in the administration of the Act for regulating the control of entry into and stay in the United Kingdom of persons who require leave to enter. The Secretary of State’s duty is expressed in the broadest terms. A contrast may be drawn between the rules and the instructions (not inconsistent with the rules) which the Secretary may give to immigration officers under paragraph 1(3) of Schedule 2 to the 1971 Act. As Sedley LJ said in ZH (Bangladesh) v Secretary of State for the Home Department [2009] Imm AR 450, para 32, the instructions do not have, and cannot be treated as if they possessed, the force of law. The Act does not require those instructions or documents which give guidance of various kinds to caseworkers, of which there are very many, to be laid before Parliament. But the rules must be. So everything which is in the nature of a rule as to the practice to be followed in the administration of the Act is subject to this requirement.’
Lord Dyson said: ‘a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision ‘as to the period for which leave is to be given and the conditions to be attached in different circumstances’ (there can be no doubt about the latter since it is expressly provided for in section 3(2)). I would exclude from the definition any procedural requirements which do not have to be satisfied as a condition of the grant of leave to enter or remain. But it seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined.’

Lord Hope (Deputy President), Lord Walker, Lord Clarke, Lord Dyson, Lord Wilson
[2012] UKSC 33, UKSC 2011/0182, [2012] 1 WLR 2208, [2012] WLR(D) 211, [2012] 4 All ER 1041, [2012] INLR 504, [2012] Imm AR 998
Bailii, Bailii Summary, SC, SC Summary, WLRD
Immigration Act 1971 1(2) 3(2), Immigration Rules
England and Wales
Citing:
At first instanceAlvi, Regina (on The Application of) v Secretary of State for The Home Department Admn 25-Oct-2010
The claimant, a 32 year old Pakistani national, had been refused leave to remain as a Tier 2 (General) Migrant worker. He had worked as a physiotherapy assistant, and said that this should have entitled him to 50 points under the assessment system. . .
CitedOdelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
ConfirmedSecretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Appeal fromAlvi, Regina (on The Application of) v Secretary of State for The Home Department CA 9-Jun-2011
The claimant appealed against the refusal of the Secretary of State to grant him leave to remain to a non-EEA economic migrant. The claimant had entered as a student and stayed working as a physiotherapy assistant. He said that on the change of . .
CitedRegina v Home Secretary, ex parte Hosenball CA 1977
A United States’ citizen was subject to a deportation decision which was held not amenable to judicial review on the ground of national security. He appealed.
Held: Neither a failure to lay rules before Parliament within the allotted time, nor . .
CitedHuang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
CitedSmith v Secretary of State for Work and Pensions and Another HL 12-Jul-2006
The House considered whether under the 1992 Regulations a self-employed parent could use for his child support calculation his net earnings as declared to the Revenue, which would allow deduction of capital and other allowances properly claimed . .
CitedMunir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
CitedEnglish UK Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 9-Jul-2010
Foskett J interpreted Pankina: ‘The Court of Appeal held that the revised criterion could not be put in place by virtue of a process of issuing guidance. The ratio of the decision appears to me to be that a provision that reflects a substantive . .
CitedHumphreys v Revenue and Customs SC 16-May-2012
Separated parents shared the care of their child. The father complained that all the Child Tax Credit was given to the mother.
Held: The appeal failed. Although the rule does happen to be indirectly discriminatory against fathers, the . .
CitedJoint Council for The Welfare of Immigrants, Regina (on The Application of) v Secretary of State for The Home Department Admn 17-Dec-2010
The claimants challenged the imposition by the defendant of interim limits on (1) the number of applicants for entry clearance who may be issued with visas under Tier 1 (General) of the Points based system (PBS); and (2) the number of certificates . .
CitedRegina (Purzia) v Secretary of State for the Home Department Admn 2011
The court considered what matters had to be incorporated directly within the Immigration Rules, and what might be properly contained in documents referred to by the Rules.
Held: There is a spectrum that operates on the extent to which the . .
CitedNew London College Ltd, Regina (on the application of) v Secretary of State for the Home Department CA 2-Feb-2012
The court was asked whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non-EEA students lacked the necessary legislative authority . .
CitedAhmed, Regina (on The Application of) v Secretary of State for The Home Department Admn 2-Nov-2011
The governing principle laid down by Pankina as understood and applied in subsequent cases was that a substantive or material change to the content of the Immigration Rules must be made by way of amending rules which must be laid before Parliament, . .

Cited by:
AppliedFerrer (Limited Appeal Grounds; Alvi) Philippines UTIAC 1-Aug-2012
UTIAC (1) In deciding an application for permission to appeal the Upper Tribunal against the decision of the First-tier Tribunal, Immigration and Asylum Chamber, a judge of that Chamber should consider carefully . .
CitedNew London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
CitedPatel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .
CitedHesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
CitedMM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .

Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.462944

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 early release had been vested in the respondent and not in the courts.
Held: It could no longer be said that there was any proper place for a political role in such decisions. The involvement of the respondent for foreign nationals only was discriminatory and unjustifiable.
Lord Bingham said: ‘In M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91, [2006] 4 All ER 929, the House had recent occasion to review the Strasbourg jurisprudence on the applicability of art 14, and attempted to distil the essence of the relevant principles. Although different members of the House used different language, and the outcome vividly illustrated the difficulty which may arise in applying the principles to a concrete case, none of these opinions was criticised as inaccurate or incomplete, and I do not think any purpose will be served by repeating those opinions or citing passages from them. Plainly, expressions such as ‘ambit’, ‘scope’ and ‘linked’ used in the Strasbourg cases are not precise and exact in their meaning. They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M, at para 14, for a value judgment. The court is required to consider, in respect of the Convention right relied on, what value that substantive right exists to protect.’
The House concluded: ‘i) There was agreement that the words ‘or other status’ in article 14 (in French ‘toute autre situation’) are far from precise, but that they are not intended to cover differential treatment on any ground whatever, because in that case, the list of grounds which precede them would be otiose (paras 27, 43, and 56).
ii) Reliance was placed on the passage quoted above from para 56 of Kjeldsen, and the search was for something in the nature of a ‘personal characteristic by which persons or groups of persons are distinguishable from each other’ (paras 27, 28, 42, and 56 for example).
iii) It was accepted that, as the specific grounds of discrimination listed in article 14 show, protection is extended not only to characteristics over which a person has no control, such as race or birth, but also to acquired characteristics, such as religion or political opinion (paras 28 and 45).
iv) Lord Bingham and Lord Hope both advanced the proposition that, to qualify, the personal characteristic in question must exist independently of the treatment of which complaint is made. Lord Bingham said, at para 28, that he did ‘not think that a personal characteristic can be defined by the differential treatment of which a person complains’, without giving any explanation, or authority, for this view. He did not appear to consider that Mr Clift would fall foul of this, as he was not complaining of the sentence passed on him, but of being denied a definitive Parole Board recommendation. Lord Hope agreed, at para 47, that ‘[i]t must be accepted, as Lord Bingham points out, that a personal characteristic cannot be defined by the differential treatment of which a person complains.’ Although he similarly did not spell out the foundation for his view, it may lie in his observation, at para 45, that each of the specific grounds shared a feature in common, namely that ‘they exist independently of the treatment of which complaint is made’ and ‘[i]n that sense, they are personal to the complainant.’ The remainder of para 47 is not entirely easy to understand, but might indicate that Lord Hope shared Lord Bingham’s opinion that this was not an area of difficulty for Mr Clift. It reads:
‘It is plain too that the category of long-term prisoner into which Mr Clift’s case falls would not have been recognised as a separate category had it not been for the Order which treats prisoners in his group differently from others in the enjoyment of their fundamental right to liberty. But he had already been sentenced, and he had already acquired the status which that sentence gave him before the Order was made that denied prisoners in his group the right to release on the recommendation of the Parole Board. The question which his case raises is whether the distinguishing feature or characteristic which enables persons or a group of persons to be singled out for separate treatment must have been identified as a personal characteristic before it is used for this purpose by the discriminator.’
v) There was an examination of the ambit of article 14 as demonstrated by decisions of the ECtHR and the domestic courts in various factual contexts. Baroness Hale included a particularly detailed list of authorities at para 58, which led her to make the observation that in the ‘vast majority of Strasbourg cases where violations of article 14 have been found, the real basis for the distinction was clearly one of the proscribed grounds or something very close’. Examples were given of cases in which the grounds for the discrimination were not within article 14 (see, for example, paras 27, 45, 59-61), including prisoners who were treated differently because of the legislature’s view of the gravity of their offences ( Gerger v Turkey 8 July 1999, [1999] ECHR 46, para 69, and see also Budak v Turkey (Application No 57345/00) (unreported), [2006] ECHR 1214). And there was discussion of R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196 where the House of Lords held that article 14 did not cover differential treatment on the basis that a person had previously been investigated by the police and provided fingerprints; the possession of fingerprints and DNA samples by the police in that situation was simply a matter of historical fact, not attributable to the personal characteristics of those who had provided them.’

Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2006] UKHL 54, Times 21-Dec-2006, [2007] 1 AC 484, [2007] 2 WLR 24, [2007] 2 All ER 1, 21 BHRC 704, [2007] HRLR 12, [2007] UKHRR 348
Bailii, HL
European Convention on Human Rights 5 14, Criminal Justice Act 2003
England and Wales
Citing:
CitedStec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
CitedSmith v Secretary of State for Work and Pensions and Another HL 12-Jul-2006
The House considered whether under the 1992 Regulations a self-employed parent could use for his child support calculation his net earnings as declared to the Revenue, which would allow deduction of capital and other allowances properly claimed . .

Cited by:
CitedAL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
CitedCountryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
CitedBlack, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
See Also (HL)Clift v The United Kingdom ECHR 30-Apr-2009
Mr Clift was serving a sentence of 18 years’ imprisonment for very serious crimes, including attempted murder, and complained that the early release provisions in respect of his sentence gave rise to a violation of article 14. The House of Lords . .
CitedYoung, Regina (on The Application of) v Governor of Her Majesty’s Prison Highdown and Another Admn 6-Apr-2011
The claimant complained that he had not been considered for early release on Home Detention Curfew because the policy refused to allow those convicted of knife crimes to be so considered, and: ‘the failure to include other offences in the list of . .
CitedMathieson 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 . .
CitedRobinson, 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 . .
CitedKaiyam, 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 . .
CitedHaney 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 . .
See AlsoClift v The United Kingdom ECHR 13-Jul-2010
Mr Clift had been sentenced in England to a term of imprisonment of 18 years for crimes including attempted murder. The Parole Board recommended his release on licence once he had served half of his sentence. The Secretary of State rejected its . .
CitedSteinfeld 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 . .
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.

Prisons, Constitutional, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.247397

Myers v Director of Public Prosecutions: HL 1965

Limits to Admission of Hearsay Evidence

It was not for the House to alter the admissibility of hearsay evidence on a case by case basis.
Lord Reid said: ‘I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of other parts of the existing law of hearsay susceptible of similar treatment, and we shall probably have a series of appeals in cases where the existing technical limitations produce an unjust result. If we are to give a wide interpretation to our judicial functions questions of policy cannot be wholly excluded, and it seems to me to be against public policy to produce uncertainty. The only satisfactory solution is by legislation following on a wide survey of the whole field, and I think that such a survey is overdue. A policy of make do and mend is no longer adequate. The most powerful argument of those who support the strict doctrine of precedent is that if it is relaxed judges will be tempted to encroach on the proper field of the legislature, and this case to my mind offers a strong temptation to that which ought to be resisted.’

Lord Reid
[1965] AC 1001, [1964] 2 All ER 881, [1964] 3 WLR 145
England and Wales
Cited by:
CitedRegina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
CitedRegina v Blastland HL 1985
The majority decision of the House in Myers v DPP ‘established the principle, never since challenged, that it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule.’ and ‘Hearsay evidence is not excluded because it . .
CitedHorncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.222547

Church of Scientology of California v Johnson-Smith: QBD 1971

The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The question arose at trial whether such reliance infringed Article 9.
Held: It did. The plaintiff could not ask the court to infer malice from statements made in Parliament, and it was not open to either party to go, directly or indirectly, into any question of the motive or intention of the defendant in anything said in Parliament.
Brown J considered a submission by the Attorney-General, saying: ‘But the Attorney-General limited what he said about the probable attitude of Parliament to the use of Hansard by agreement by saying that Hansard could be read only for a limited purpose. He said it could be read simply as evidence of fact, what was in fact said in the House, on a particular day by a particular person. But, he said, the use of Hansard must stop there and that counsel was not entitled to comment upon what had been said in Hansard or to ask the jury to draw any inferences from it . . But the general principle is quite clear I think, and that is that these extracts from Hansard which have already been read must not be used in any way which might involve questioning, in a wide sense, what was said in the House of Commons as recorded in Hansard.’

Brown J
[1972] 1 All ER 378, [1971] 3 WLR 434, [1972] 1 QB 522
Bill of Rights 1869 9
England and Wales
Cited by:
ApprovedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedHamilton 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 . .
AppliedRegina v Secretary of State for Trade, Ex parte Anderson Strathclyde Plc QBD 1983
A proposed takeover had been referred to the Monopolies and Mergers Commission under the 1973 Act. A majority of the Commission recommended against the takeover. The Deputy (acting instead of the Secretary who had an interest) overruled the . .
CitedOffice of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
CitedPrebble 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 . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
CitedMakudi v Baron Triesman of Tottenham In London Borough of Haringey QBD 1-Feb-2013
makudi_triesmanQBD2013
The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the . .
CitedKimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.182423

Council of Civil Service Unions v Minister for the Civil Service: HL 22 Nov 1984

Exercise of Prerogative Power is Reviewable

The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature may be, subject to constraints of national security and the like, as susceptible to review as that of a statutory power. The controlling factor in determining whether the exercise of a power by a body is subject to judicial review is not in its source but its subject matter. Challenges to the lawfulness of subordinate legislation or administrative decisions and acts may take under the headings of illegality, procedural impropriety and irrationality.
Though it was unfair for the government to decide to deprive a civil servant of his right to belong to a trade union without first consulting the civil servant or his union but for the overriding interests of national security which justified the government’s decision.
Lord Diplock said: ‘A legitimate expectation may arise from an express promise ‘given on behalf of a public authority’, and ‘some benefit or advantage which . . [the applicant] had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment.’ and ‘To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision – maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been committed to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.’
and ‘Many of the most important prerogative powers concerned with the control of the armed forces and with foreign policy and with matters which are unsuitable for discussion or review in the Law Court . . Such decisions will generally involve the application of Government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the Executive discretion is to be wisely exercised, need to be weighed against one another – a balancing exercise which judges by their upbringing and experience are ill-qualified to perform.’
Lord Diplock summarised the grounds of judicial review: ‘By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ . . It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’
Lord Fraser said: ‘The question is one of evidence. The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the Government and not for the courts; the Government alone has access to the information, and in any event the judicial process is unsuitable for reaching decisions on national security. But if the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the Government is under an obligation to produce evidence that the decision was in fact based on grounds of national security.’
Lord Roskill described of a number of prerogative powers which he thought could not be subject to review by the courts: ‘Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process.’

Lord Scarman, Lord Diplock, Lord Fraser of Tullybelton
[1985] 1 AC 374, [1985] ICR 14, [1984] 3 All ER 935, [1983] UKHL 6, [1984] 3 WLR 1174, [1985] IRLR 28, [1984] UKHL 9, [1985] AC 374
Bailii, Bailii
England and Wales
Citing:
CitedThe Zamora PC 1916
Lord Parker said: ‘The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. . .

Cited by:
CitedRegina v British Broadcasting Corporation, ex parte Referendum Party; Regina v Independent Television Commission, ex parte Referendum Party Admn 24-Apr-1997
The Referendum Party challenged the allocation to it of less time for election broadcasts. Under the existing agreements, having fielded over 50 candidates, they were allocated only five minutes.
Held: Neither the inclusion of past electoral . .
CitedBloggs 61, Regina (on the Application of) v Secretary of State for the Home Department CA 18-Jun-2003
The applicant sought review of a decision to remove him from a witness protection scheme within the prison. He claimed that having been promised protection, he had a legitimate expectation of protection, having been told he would receive protection . .
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
CitedRegina 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 . .
CitedRegina v Southwark Crown Court ex parte Watts CA 1991
A street market license was properly refused renewal, where the stall was not operated in person by the licensee for a period of four weeks. The Act required his personal supervision of the stall. Such a requirement was not in breach of the . .
CitedRegina on Application of Dinev and Others v Westminster City Council Admn 24-Oct-2000
Street artists had operated in Leicester Square for many years without either licenses or being prosecuted. The respondent introduced a scheme to regulate them, and the applicants sought to challenge it by way of judicial review, alleging a failure . .
CitedRowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
CitedOffice of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
CitedRegina v Braintree District Council ex parte Halls Admn 2-Jul-1999
Where a local authority had sold a property to a tenant, and the tenant later came back to request the release from one of the covenants given on the sale, the council was free to charge an appropriate sum for that release. It was not a covenant . .
CitedJones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
CitedNaidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago PC 12-Oct-2004
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte Manelfi Admn 25-Oct-1996
The applicant sought judicial review of the defendant’s refusal to employ him to work at GCHQ, which had a policy not to employ anyone with non-British parents save exceptionally. The claimant said this was racially discriminatory.
Held: The . .
CitedRegina v Director of GCHQ ex parte Hodges QBD 20-Jul-1988
The Court accepted evidence that the positive vetting procedure operated at GCHQ was required in the interests of national security.
Held: The withdrawal of the applicant’s positive vetting clearance was not justiciable. As to the Civil . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
CitedOzbek v Ispwich Borough Council CA 4-May-2006
The claimant applied to be housed as a homeless person. The authority sought to refer him to a different authority under s198. As an asylum seeker, he had been given assistance both in Portsmouth and Southampton before coming to Ipswich. He said . .
CitedRegina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
CitedGentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
CitedCampaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
CitedX, Regina (on the Application of) v Y School Admn 21-Feb-2007
The court was asked whether a school was entitled to refuse to allow a Muslim girl to wear the niqab full face veil at school. The reasons were ‘first educational factors resulting from a teacher being unable to see the face of the girl with a . .
CitedGentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
CitedBAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another HL 30-Apr-2008
The House considered whether the Secretary of State for Health acted lawfully in issuing guidance as to the employment of foreign doctors to employing bodies within the National Health Service in April 2006.
Held: The secretary of state’s . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
CitedWheeler v Leicester City Council; In re Wheeler and others HL 25-Jul-1985
The Council opposed sporting links with South Africa. The local rugby club failed to denounce apartheid and did not seek to dissuade three of its players touring with the national side. The Court of Appeal had refused judicial review of the . .
CitedAlbert Court Residents Association and Others, Regina (on The Application of) v Corporation of The Hall of Arts and Sciences Admn 2-Mar-2010
Residents near the Albert Hall objected to the alteration of its licence so as to allow boxing and wrestling activities, and the extension of its opening hours. They said that the advertisements for the alterations failed to receive the prominence . .
At HLCouncil of Civil Service Unions v The United Kingdom ECHR 20-Jan-1987
(Commission) The applicants complained that as staff at GCHQ, they had been debarred from being members of trades unions. . .
CitedKelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
CitedWalton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
CitedLord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
CitedBraganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
CitedRegina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
MentionedSandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
CitedThe Project Management Institute, Regina (on The Application of) v The Minister for The Cabinet Office and Others Admn 17-Jul-2014
Mitting J set out the background to Royal Charters: ‘This is, I believe, the first time that the grant or refusal of a Royal Charter has been the subject of litigation. I propose, therefore, to begin by a brief analysis of the history and nature of . .
CitedEnglish Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
CitedRegina 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 . .
CitedSG 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 . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
CitedYoussef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
CitedMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
CitedCherry, 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 . .
CitedMiller, 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 . .
CitedGallaher Group Ltd and Others, Regina (on The Application of) v The Competition and Markets Authority SC 16-May-2018
No Administrative Duty of Equal Treatment
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. The respondent had entered negotiations with several parties . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Administrative, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.181978

A v British Broadcasting Corporation (Scotland): SC 8 May 2014

Anonymised Party to Proceedings

The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported exercise) of a common law power. The court also gave directions under section 11 of the Contempt of Court Act 1981 prohibiting the publication of his name or other identifying details and directing that no picture of him should be published or broadcast.
Held: The BBC’s appeal failed. Society looks to the courts to act as guardians of the law, and open justice remains a constitutional necessity. There are however exceptions, and the class of such exceptions is not closed, and anonymity can be appropriate in certain situations.
Section 11 supports the use of the court’s power to allow a name or other matter to be withheld in court proceedings, by conferring a statutory power to give ancillary directions prohibiting publication of the relevant information. It is not limited to protecting the public interest in the administration of justice, or to cases where members of the public are present in court.
‘A is now residing in the country where, as the tribunal concluded, he is at risk of serious violence if his identity becomes known in connection with these proceedings. His application for judicial review of the tribunal’s decision to authorise his deportation has not yet been heard. In these circumstances, it is appropriate both in the interests of justice, and in order to protect A’s safety, that his identity should continue to be withheld in connection with these proceedings, and that the order should therefore remain in place.’
Lord Reed stated: ‘It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny’, but it is for the courts, exercising their inherent jurisdiction, to decide on the ambit and application of this principle.

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge
[2015] 1 AC 588, 2014 SC (UKSC) 151, 2014 SCLR 593, [2014] UKSC 25, [2014] 2 All ER 1037, 2014 GWD 15-266, [2014] WLR(D) 196, [2014] 2 WLR 1243, [2014] EMLR 25, 2014 SLT 613, UKSC 2013/0159
Bailii, WLRD, Bailii Summary, SC Summary, SC
Contempt of Court Act 1981 11
Scotland
Citing:
Leave to appeal to Court of SessionA, Re Permission To Appeal Under Section 103(B) of the Nationality, Immigration and Asylum Act 2002 SCS 18-Nov-2008
Application for permission to appeal against a determination of the Asylum and Immigration Tribunal . .
At Court of SessionA v The Secretary of State for The Home Department SCS 17-May-2013
The reclaimer seeks recall of an interlocutor of Lord Boyd of Duncansby dated 7 November 2012 by which he allowed an amendment of the petition to anonymise the petitioner (the anonymity order) and gave directions in terms of section 11 of the . .
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedEBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
CitedCart v The Upper Tribunal SC 21-Jun-2011
Limitations to Judicial Reviw of Upper Tribunal
Three claimants sought to challenge decisions of various Upper Tribunals by way of judicial review. In each case the request for judicial review had been first refused on the basis that having been explicitly designated as higher courts, the proper . .
CitedGuardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
CitedRichardson v Wilson SCS 1879
Lord President Inglis discussed the principle that the reporting of court cases had to be open: ‘The principle on which this rule is founded seems to be that, as courts of justice are open to the public, anything that takes place before a judge or . .
CitedSloan v B SCS 12-Jun-1991
Lord President Hope, delivering the opinion of the court, explained that it is by an application of the same principle that it has long been recognised that proceedings in open court may be reported in the press and by other methods of broadcasting . .
CitedIn Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
CitedRegina v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney-General CA 1974
In a blackmail case, the court ordered non publication of the names of the complainants. Thinking they were not bound, the defendants published the names.
Held: The publishers and Mr Michael Foot were held to be in contempt of court in . .
CitedScottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 8-Mar-2011
The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the . .
CitedCanadian Newspapers Co v Canada 1988
The court made order protecting from publication the identities of parties complaining of sexual assaults. . .
CitedDoorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
CitedZ v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
CitedV v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
CitedB v The United Kingdom; P v The United Kingdom ECHR 24-Apr-2001
The procedures in English law which provided for privacy for proceedings involving children did not in general infringe the human right to family life, nor the right to a public hearing. Where relatives more distant than immediate parties were . .
CitedRegina v Mentuck 15-Nov-2001
Canlii Supreme Court of Canada – Courts – Supreme Court of Canada – Jurisdiction – Publication bans – Criminal proceedings – Trial judge granting one-year ban as to identity of undercover police officers and . .
CitedHer Majesty’s Advocate v Mola HCJ 7-Feb-2007
The court made a section 11 order to prevent the publication of the identity of a woman who was due to be the principal witness at the trial of a person charged with having recklessly infected her with HIV. There was evidence before the court that . .
CitedIn re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
CitedKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedThe Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
CitedWorm v Austria ECHR 29-Aug-1997
ECHR Preliminary objection rejected (six month period); No violation of Art. 10 – ‘The phrase ‘authority of the judiciary’ includes, in particular, the notion that the courts are, and are accepted by the public . .
CitedBBC Scotland, McDonald, Rodgers and Donald v United Kingdom ECHR 23-Oct-1997
The court accepted the compatibility with article 10 of restrictions on the publication of material which may prejudice the outcome of court proceedings . .
CitedCream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
CitedIn re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
CitedMackay and BBC Scotland v United Kingdom ECHR 7-Dec-2010
. .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
At Outer HouseA v British Broadcasting Corporation and others SCS 11-Feb-2009
. .

Cited by:
CitedMX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
CitedPNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
CitedRegina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
CitedCherry, 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 . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.524662

Madzimbamuto v Lardner-Burke: PC 23 Jul 1968

(Southern Rhodesia) The Board considered a submission that legal effect should be given to a convention that the UK Parliament would not legislate without the consent of the government of Southern Rhodesia on matters within the competence of the Legislative Assembly.
Held: It was a very important convention but it had no legal effect in limiting the legal power of Parliament.
Lord Reid set out the accepted principle governing the powers of Parliament: ‘It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.’ and
‘ it has never been doubted that, when a colony is acquired or annexed, following on conquest or settlement, the Sovereignty of the United Kingdom Parliament extends to that colony, and its powers over that colony are the same as its powers in the United Kingdom.’

Lord Reid
[1969] 1 AC 645, [1968] 3 All ER 561, [1968] UKPC 2, [1968] UKPC 18
Bailii, Bailii
Commonwealth
Cited by:
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
CitedManuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
CitedBarclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.231156

Attorney-General v Jonathan Cape Ltd: 1976

The Attorney-General sought restraint on the publication of certain materials in the diary of Richard Crossman, a former cabinet minister, submitting that the protection from disclosure of Cabinet papers was based on collective responsibility.
Held: The court refused the injunction.
There is a specific interest in maintaining the confidentiality of ministerial communications arising from the convention of collective responsibility of Ministers of the Crown, which is that once a policy decision has been reached by the Government it has to be supported by all ministers whether they approve of it or not unless they resign: that convention and the free discussion between ministers may be prejudiced by ‘premature disclosure’ of the views of individual ministers. Lord Widgery CJ said that: ‘the court must have power to deal with publication which threatens national security.’
As regards confidence in publicly owned material: ‘There must, however, be a limit in time after which the confidential character of the information, and the duty of the court to restrain publication will lapse’ and ‘It may, of course, be intensely difficult in a particular case, to say at what point the material loses its confidential character, on the ground that publication will no longer undermine the doctrine of cabinet responsibility.’
Lord Widgery LCJ said: ‘The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.’

Lord Widgery LCJ
[1976] 1 QB 752, [1976] 3 All E R 484
England and Wales
Cited by:
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.

Media, Administrative, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.241360

AXA General Insurance Ltd and Others v Lord Advocate and Others: SC 12 Oct 2011

Standing to Claim under A1P1 ECHR

The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable harm for the purposes of an action of damages for personal injury.
Held: The insurers’ appeals failed. The Court upheld the power of the Scottish Parliament to reverse the decision in Rothwell.
Legislation has to be construed bearing in mind the societal values which Parliament can be taken to have intended it to embody.
To establish a standing to claim under Article 1 of the Convention, the claimant had first to show that it was within the Convention, a victim. This was to be ascertained by three questions: (1) whether the insurer claimants were ‘victims’ under Article 34, (2) if so, was the interference with their ‘possessions’ in pursuit of a legitimate aim and (3) if again so, whether the means were reasonably proportionate to the aim sought to be realised. The insurers were indeed victims, and the sums for which they would be liable were indeed possessions. The Act was in pursuit of a legitimate aim, and the real issue was as to proportionality. Given the margin of appreciation afforded it could not be said to be unreasonable.
While the Scottish Parliament was subject to the jurisdiction of the Courts, the common law grounds of review did not apply, but the Scottish Parliament powers of legislation were subject to the statutory limits in section 29(2)(d) of the 1998 Act, which required Scottish legislation to be compatible with Convention rights.
Lord Hope said: ‘The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate. While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate. This suggests that the judges should intervene, if at all, only in the most exceptional circumstances.’
and ‘The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence.’
Lord Reed said: ‘the Scottish Parliament is not a sovereign parliament in the sense that Westminster can be described as sovereign: its powers were conferred by an Act of Parliament, and those powers, being defined, are limited. It is the function of the courts to interpret and apply those limits, and the Scottish Parliament is therefore subject to the jurisdiction of the courts.’ and
‘Judicial review under the common law is based upon an understanding of the respective constitutional responsibilities of public authorities and the courts. The constitutional function of the courts in the field of public law is to ensure, so far as they can, that public authorities respect the rule of law. The courts therefore have the responsibility of ensuring that the public authority in question does not misuse its powers or exceed their limits. The extent of the courts’ responsibility in relation to a particular exercise of power by a public authority necessarily depends upon the particular circumstances, including the nature of the public authority in question, the type of power being exercised, the process by which it is exercised, and the extent to which the powers of the authority have limits or purposes which the courts can identify and adjudicate upon.’

Lord Hope, Deputy President, Lord Brown, Lord Mance, Lord Kerr, Lord Clarke, Lord Dyson, Lord Reed
UKSC 2011/0108, [2011] UKSC 46, 2011 SLT 1061, [2012] 1 AC 868, (2011) 122 BMLR 149, [2011] 3 WLR 871, [2012] HRLR 3, [2011] UKHRR 1221
SC, SC Summary, Bailii, Bailii Summary
Damages (Asbestos-related Conditions) (Scotland) Act 2009, European Convention on Human Rights 1, Scotland Act 1998 29(2)(d), Employers’ Liability (Compulsory Insurance) Act 1969, Third Parties (Rights against Insurers) Act 1930, Third Parties (Rights against Insurers) Act 2010
Scotland
Citing:
At Outer HouseAxa General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
axaReSCS201
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 . .
At Inner HouseAXA General Insurance Ltd and Others v The Scottish Ministers and Others SCS 12-Apr-2011
(First Division) The insurance companies sought judicial review of the 2009 Act which lay them open, as employers liability insurers, to substantial historic claims for asymptotic neural plaque injuries.
Held: The companies’ appeal failed. The . .
CitedJohnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
CitedWright v Stoddard International Plc and Another (No 2) SCS 23-Oct-2007
(Supplementary Opinion) Lord Uist applied the decision in Rothwell, although on the facts he would not have awarded damages anyway. . .
CitedChurch v Ministry of Defence QBD 23-Feb-1984
The 62 year old claimant sought damages after working in in the defendant’s dockyard and being exposed to asbestos. Pleural plaques were apparent on X-ray and the pleura would constrict the lung and induce breathlessness; and the asbestos must have . .
CitedPatterson v Ministry of Defence QBD 29-Jul-1986
The plaintiff had been exposed to asbestos when working for the defendant. X-rays revealed development of pleural plaques, but these would remain asymptomatic.
Held: Material damage sufficient to set time running was the same as damage . .
CitedNicol v Scottish Power plc 1998
. .
CitedGibson v McAndrew Wormald and Co Ltd 1998
Pleural plaques constituted an identifiable injury for which damages were recoverable. . .
CitedSporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
CitedThe National and Provincial Building Society, The Leeds Permanent Building Society And The Yorkshire Building Society v The United Kingdom ECHR 23-Oct-1997
There was no breach of human rights by the retrospective removal of a right to reclaim overpaid tax. Such a decision was within the general power of a government to impose and collect tax. Not every difference in treatment will amount to a violation . .
CitedDraon v France ECHR 6-Oct-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of P1-1; No separate issue under Art.14 in conjunction with P1-1; No separate issue under Art. 6-1; No violation of Art. 13; No violation of Art. 8; Costs . .
CitedBack v Finland ECHR 20-Jul-2004
The claimant was the owner of a substantial debt owed by another individual. However the value of his debt was reduced to a very small level when the debtor entered a statutory scheme for compromise of debts.
Held: It must be open to a . .
CitedKopecky v Slovakia ECHR 28-Sep-2004
(Grand Chamber) The court said of the practice of the Convention institutions under A1 P1: ‘An applicant can allege a violation of article 1 of Protocol 1 only in so far as the impugned decisions related to his ‘possessions’ within the meaning of . .
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
CitedMarckx 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. . .
CitedWillis v The United Kingdom ECHR 11-Jun-2002
Discrimination in the payment of ‘widows payment’ and widowed mother’s allowance infringed the rights conferred by article 14 read with article 1 of Protocol 1 but no finding was made about the widow’s pension. The risk of the applicant being . .
CitedYoung, James and Webster v The United Kingdom ECHR 13-Aug-1981
Employees claimed religious objections to being obliged to members of a Trades Union.
Held: It is the obligation of states which have ratified the Convention to secure to everyone within their jurisdiction the rights and freedoms which it . .
CitedPressos Compania Naviera S A And Others v Belgium ECHR 20-Nov-1995
When determining whether a claimant has possessions or property within the meaning of Article I the court may have regard to national law and will generally do so unless the national law is incompatible with the object and purpose of Article 1. Any . .
CitedMaurice v France ECHR 2005
. .
CitedEdinburgh District Council v Secretary of State for Scotland SCS 1985
Inner House . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedJames 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 . .
CitedBroniowski v Poland ECHR 22-Jun-2004
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion of domestic remedies) ; Violation of P1-1 ; Just satisfaction reserved ; Costs and expenses partial award – Convention . .
CitedRegina v Secretary of State for the Environment, ex parte Nottinghamshire County Council HL 12-Dec-1985
The House heard a judicial review of the Secretary of State’s assessment of the proper level of expenditure by a local authority.
Held: A ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political . .
CitedSecretary of State for the Home Department v Asif Javed and Zuifiqar Ali and Abid Ali CA 17-May-2001
A designation of Pakistan as a safe place for the return of a failed asylum applicant was unlawful because there was plain evidence that persecution of women who left the marital home, whether voluntarily or by compulsion, was widespread. . .
CitedRegina 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 . .
CitedRegina v Secretary of State ex parte Hammersmith and Fulham London Borough Council HL 4-Oct-1990
16 local authorities joined together to challenge the bringing in of the community charge, and of rules giving central government a greater say over management of local finance by local authorities.
Held: Acts which are essentially political . .
CitedWest v Secretary of State for Scotland SCS 23-Apr-1992
The petitioner complained that on being moved from his employment at one prison to another, he had been told that his moving expenses would be paid, but that they were not. The respondent said that the terms of his employment were that he was to be . .
CitedWest v Secretary of State for Scotland SCS 1992
The court asked what was to be considered to be truly an application to the supervisory jurisdiction of the court.
Held: Lord President (Hope): ‘The public or private nature of the inferior body or tribunal is not decisive, nor is it necessary . .
CitedForbes v Underwood 1886
The supervisory jurisdiction of the Court of Session was used to compel an arbiter to proceed with an arbitration agreed under a private contract. . .
CitedD and J Nicol v Dundee Harbour Trustees HL 10-Dec-1914
Whether a corporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used.
Lord Dunedin declared: ‘By the . .
CitedMcDonald v Burns SCS 29-Mar-1940
. .
CitedSt Johnstone Football Club v Scottish Football Association Ltd 1965
The Supervisory jurisdiction of the Court of Session was available to check whether the proceedings leading to a disciplinary decision of the Scottish Football Association, a private association, had been conducted in accordance with natural . .
CitedX v United Kingdom ECHR 5-Nov-1981
(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the . .
CitedRegina v Secretary of State for the Home Department, Ex parte Bindel 2001
A women’s group objected to the visit to the United Kingdom of Mike Tyson, a convicted rapist, so that he could earn money here by appearing in the boxing ring.
Held: Justice for Women did not have arguable grounds for interfering with the . .
CitedRape Crisis Centre v Secretary of State for the Home Department 2000
The petitioner sought judicial review of a decision to allow the boxer Mike Tyson to visit the UK.
Held: The Immigration Rules conferred no express or implied rights on third parties such as the petitioners. A review was refused.
Lord . .
CitedBarker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
CitedFairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
CitedZielinski v France ECHR 28-Oct-1999
Hudoc The applicants challenged a retrospective change in employment law under article 6(1).
Held: The court stated that while in principle the legislature is not precluded in civil matters from adopting . .
CitedCampbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
CitedMellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
CitedLithgow And Others v The United Kingdom ECHR 8-Jul-1986
The applicants complained that on the nationalisation of their interests under the 1977 Act, the compensation awarded had been inadequate and did not reflect their true value.
Held: Convention jurisprudence permits a proportionate restriction . .
CitedSienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
CitedVijayanathan and Pusparajah v France ECHR 27-Aug-1992
Where a person is not at risk of a violation of a Convention right unless and until a particular decision is taken, for example as to deportation, the person cannot claim to be a victim unless and until such a decision is in fact made.
. .
CitedOpen Door and Dublin Well Woman v Ireland ECHR 29-Oct-1992
Hudoc Judgment (Merits and just satisfaction) Lack of jurisdiction (Art. 8); Preliminary objection rejected (victim); Preliminary objection rejected (six month period); Preliminary objection rejected . .
CitedGorraiz Lizarraga et Autres v Espagne ECHR 27-Apr-2004
(French Text) An excessively formalistic interpretation of the concept of a ‘victim’ would make protection of the rights guaranteed by the Convention ineffectual and illusory. . .
CitedBurden and Burden v The United Kingdom ECHR 29-Apr-2008
(Grand Chamber) The claimants were sisters who had lived together all their lives. They complained of discrimination in their treatment under the Inheritance Tax system as opposed to the treatment of a same sex couple living in a sexual . .
CitedWasa Liv Omsesidigt v Sweden ECHR 14-Dec-1988
Commission . .
CitedAgrotexim and Others v Greece ECHR 24-Oct-1995
Hudoc Not necessary to examine preliminary objection (ratione temporis); Preliminary objection allowed (victim); Lack of jurisdiction (complaint inadmissible, new complaint)
The applicant companies held . .
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
CitedIatridis v Greece ECHR 25-Mar-1999
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Preliminary objection rejected (six month period); Violation of P1-1; Violation of Art. 13; Not necessary to examine . .
CitedWhaley v Lord Watson SCS 16-Feb-2000
The Scottish Parliament and its members have a limited statutory immunity from suit. No interdict or other order could be made against a member of the Parliament if the effect would be to grant an order against the Parliament not otherwise . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRossi v Magistrates of Edinburgh HL 1904
Conditions in an ice-cream vendors’ licence which restricted their right to open their shops when they liked and sell what they pleased were held to be ultra vires of the licensing authority. The court applied the rule that while the legislature may . .
CitedBrown v Hamilton District Council HL 25-Nov-1982
The pursuer sought a declaration that he was a homeless person and therefore entitled to assistance.
Held: Lord Fraser of Tullybelton said that it was for consideration whether there might not be advantages in developing special procedure in . .
CitedRegina v Secretary of State for the Home Department ex parte Anufrijeva HL 26-Jun-2003
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several . .
CitedStevenson v Midlothian District Council HL 1983
The pursuer was an undischarged bankrupt. The Lord Ordinary ordered him to find caution, although he was in receipt of legal aid. He said that he had had regard to the nature of the action and the pleadings, as well as to the fact that he was an . .
CitedWilson v Independent Broadcasting Authority OHCS 1979
In the lead up to the Scottish referendum on Devolution, the Authority required the broadcasters to carry party political broadcasts for each of the four main parties. Three parties favoured voting yes in the referendum, and the authority was . .
CitedScottish Old People’s Welfare Council, Petitioners SCS 1987
The organisation (‘Age Concern Scotland’) challenged guidance issued by the chief adjudication officer regarding social security payments for severe weather conditions. Lord Clyde concluded that any member of the public, or an association such as . .
CitedSutherland District Council v Secretary of State for Scotland SCS 23-Dec-1987
Lord Clyde discussed the rule restricting the class of people who might bring judicial review: ‘Paragraph (14) envisages that interested parties may be permitted to enter the process more freely than in the case of an ordinary action and so enable . .
CitedCasey v Edinburgh Airport Ltd SCS 23-Feb-1989
There was a challenge to decisions taken by the airport authority, under a bye-law, to refuse permits to the applicant taxi operators. During the hearing, the applicants sought to challenge the validity of the bye-law itself.
Held: Lord . .
CitedEBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
CitedAir 2000 v Secretary of State for Transport (No 2) OHCS 1990
Advice from the Civil Aviation Authority which by statute the Secretary of State was required to consider had been seen not by him but by an interdepartmental working party which advised him.
Held: Citing Carltona for the uncontroversial . .

Cited by:
CitedANS 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.
CitedImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
CitedWalton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
CitedLocal Government Byelaws (Wales) Bill 2012 – Reference By The Attorney General for England and Wales SC 21-Nov-2012
Under the 1998 and 2006 Acts, the Welsh Assembly was empowered to pass legislation subject to confirmation by the English Parliament Secretary of State. The Local Government Byelaws (Wales) Bill 2012 was passed by the Assembly and purported to . .
CitedChester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
CitedRecovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
CitedNicklinson 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 . .
CitedEvans 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 . .
CitedCoventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .
CitedCherry, 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 . .
CitedMott, Regina (on The Application of) v The Environment Agency and Another Admn 13-Feb-2015
The claimant challenged new conditions imposed on licences to operate his salmon fishery in the Severn Estuary, which operated to defeat his tenancy of the fishery.
Held: The request for review succeeded. The decisions to impose the catch . .
CitedMott, Regina (on The Application of) v Environment Agency and Another CA 17-Jun-2016
The applicant challenged restrictions on salmon fishing imposed by the respondent. At first instance they were held to be irrational, and the Agency appealed.
Held: The Regulations were not irrational and that element of the appeal succeeded, . .
CitedMott, Regina (on The Application of) v Environment Agency SC 14-Feb-2018
The Court considered the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency restricting certain forms of salmon-fishing in the Severn Estuary. The claimant operated a licensed putcher . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Human Rights, Constitutional, Judicial Review

Leading Case

Updated: 11 November 2021; Ref: scu.445395

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 been infringed in order to claim damages.
Held: The appeal succeeded, and the claim for damages failed. ‘South Georgia is a territory for whose international relations the United Kingdom is responsible. In respect of South Georgia the United Kingdom has made a declaration in respect of the Convention. It has not made a similar declaration in respect of the first Protocol.’ The Human Rights Act confirmed the obligations of the UK to those under its jurisdiction, it did not extend those responsibilities to others. If no claim can be made in Strasbourg, it follows that there cannot have been an infringement of a Convention right giving rise to a claim under section 6 of the Human Rights Act 1998.

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond
Times 17-Oct-2005, [2005] 3 WLR 837, [2005] UKHL 57, [2005] HRLR 41, [2006] UKHRR 535, [2006] 1 AC 529, [2006] 3 All ER 111, [2006] Eu LR 424
House of Lords, Bailii
European Convention on Human Rights 81, South Georgia and South Sandwich Islands Order 1985 (SI 1985/449), British Overseas Territories Act 2002
England and Wales
Citing:
At First InstanceQuark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs Admn 22-Jul-2003
The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy . .
Appeal fromQuark Fishing Ltd, Regina (on the Application Of) v Secretary of State for the Foreign and Commonwealth Affairs CA 29-Apr-2004
The claimant sought damages for having had its licence to catch Patagonian toothfish off South Georgia revoked, saying that it had infringed its property rights under the Convention.
Held: Though the Convention rights had been extended to . .
CitedIn re Bateman’s Trust 1873
The queen is the queen of New South Wales. . .
CitedRegina v The Secretary of State for The Home Department, ex parte Bhurosah CA 1968
In Mauritius the Queen is the Queen of Mauritius and the issuing of passports by the Government of Mauritius, although a matter of foreign affairs and therefore under the control of the UK Government, was an act carried out in the name of the Queen . .
CitedX v Belgium ECHR 1961
The Commission considered claims by long standing residents of the Belgian Congo who suffered as a result of upheavals on independence. One claim was based upon exclusion, albeit of Belgian nationals, from participation in the elections held in . .
CitedThe Queen in Right of Alberta v Canadian Transport Commission 1977
The Crown in right of Alberta may be equated with the Government of Alberta. . .
CitedRegina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
CitedGillow v The United Kingdom ECHR 24-Nov-1986
The housing authority in Guernsey refused to allow the applicants to occupy the house they owned there.
Held: The house in question was the applicants’ home because, although they had been absent from Guernsey for many years, they had not . .
CitedRegina v The Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta CA 1982
The court considered an application leave to request a judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her government in the UK.
CitedTito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
CitedBui van Thanh v United Kingdom ECHR 12-Mar-1990
The applicant, one of the ‘Vietnamese Boat People’, complained of the acts of government official in Hong Kong.
Held: The UK government had not extended the Convention to Hong Kong and the application failed. . .
CitedX v Belgium ECHR 1961
The Commission considered claims by long standing residents of the Belgian Congo who suffered as a result of upheavals on independence. One claim was based upon exclusion, albeit of Belgian nationals, from participation in the elections held in . .
CitedIn 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 . .
CitedBui van Thanh v United Kingdom ECHR 12-Mar-1990
The applicant, one of the ‘Vietnamese Boat People’, complained of the acts of government official in Hong Kong.
Held: The UK government had not extended the Convention to Hong Kong and the application failed. . .
CitedParochial 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 . .
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .

Cited by:
CitedRegina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
CitedAli v Head Teacher and Governors of Lord Grey School HL 22-Mar-2006
The claimant had been accused with others of arson to school property. He was suspended for the maximum forty five day period. The school then invited the family to discuss arrangements to return to the school, but the family did not attend. After . .
CitedAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedMcCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
CitedBarclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Agriculture, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.231108

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 that the reason for the prorogation was unlawful.
‘It was the role of the courts to protect Parliament. It would be odd if the court disqualified itself just because political judgement is involved. Merely because a question is in the political sphere does not mean that it is not justiciable. The real issue was how the courts should carry out their review, in other words what is the appropriate standard and intensity of review. The structure of analysis that the intervener invites the court to apply is a familiar one. It involves the court assessing the impact of the decision under review on a recognised legal interest, here the constitutional principle of responsible government; in applying scrutiny to the justification advanced by the UK Government; and in addressing whether the interference is rationally connected to the justification; and whether that impact is proportionate to the justification advanced. These are all questions which are apt for judicial determination. The constitutional right of Parliament to sit is so important that it requires enforcement in the court. ‘
‘The contention is that the reasons which have been proffered by the PM in public (to prepare for a new legislative programme and to cover the period of the party conferences) are not the true ones. The real reason, it is said, is to stymie Parliamentary scrutiny of Government action. Since such scrutiny is a central pillar of the good governance principle which is enshrined in the constitution, the decision cannot be seen as a matter of high policy or politics. It is one which attempts to undermine that pillar. As such, if demonstrated to be true, it would be unlawful. This is not because of the terms of the Claim of Right 1689 or of any speciality of Scots constitutional law, it follows from the application of the common law, informed by applying ‘the principles of democracy and the rule of law’ . . The terms of the Claim of Right are not breached simply because Parliament does not sit for a month or so. Parliament has, throughout the year, been allowed to sit.’
‘The Executive’s exercise of the power of prorogation of Parliament is accordingly not unlimited or unfettered. Exercise of the power is lawful only if it is consistent with constitutional principle. The power can only be exercised for a proper purpose. Even if it is exercised for a proper purpose, it is subject to review on the ordinary principles of legality, rationality and procedural propriety. In the present case the Prime Minister has declined to give a proper and complete account of the Executive’s true reasons for exercising the prerogative to prorogue Parliament for the period specified in the Order. This refusal by the Prime Minister to explain the decision-making and reasoning underlying the exercise of the power at the present time mean that the court should draw inferences of fact against the respondent.’
Lord Brodie: ‘It is my opinion that the petitioners are entitled to be sceptical of the proposition that the reason for making the Order was simply in order to prepare a new legislative agenda for announcement in a Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference. My reasons for inferring that are as follows. The Prime Minister has made it very clear that his principal policy objective is to achieve a withdrawal of the United Kingdom from the European Union on 31 October 2019 irrespective of the consequences of such a withdrawal and therefore irrespective of the making of a withdrawal agreement with the European Union with a view to ameliorating some of the adverse effects of withdrawal (that there will be adverse effects would seem to be accepted by the Prime Minister, given his expressed wish to negotiate an agreement). If withdrawal by 31 October 2019 means a no deal Brexit then the Prime Minister is prepared to accept that. He would prefer to be ‘dead in a ditch’ to not achieving that objective. However, the Prime Minister does not command a majority in Parliament for this policy objective if it comes at the price of no deal. A sitting Parliament, carrying out its constitutional functions including the passing of legislation, therefore presents the potential to interfere with the Prime Minister’s policy objective. As it happens, this was to be demonstrated during the two days of the hearing of the reclaiming motion, but it had been anticipated for some time before that. What was also anticipated, not just by the petitioners but in public statements by at least one member of the present cabinet, that a means of preventing such interference would be to prorogue Parliament (and the speaker said he was willing to procure that). It is now known that a prorogation of some five weeks between 9 September and 14 October was being planned at least as early as 15 August. That planning would seem to have been conducted in conditions of some secrecy. That Parliament was to be prorogued was only announced after the Order was made, on 28 August. That was so, as your Lordship in the chair observes, despite the fact that the petitioners’ application with its averments of apprehension of a prorogation had been initiated on 31 July without any subsequent acknowledgement in the respondent’s pleadings that the apprehension was well founded. As your Lordship observes, it would appear to have been thought appropriate to keep the respondent’s legal advisers in the dark about what was planned. Of significance is the length of the prorogation.’
‘Prorogation is an act of the executive acting through the Crown. Parliament has no power to revoke it. This should be contrasted with Parliament’s going into recess. That is a decision of Parliament itself, and a recess can be revoked by Parliament at any time. Recesses take place regularly, for example, during the summer and over the party conference season in the autumn. The power to reconvene Parliament at any time provides important flexibility. This is absent from prorogation. This explains in part why prorogation is in practice normally only used for very short periods, generally to begin a new Parliamentary session.’
and
‘it is apparent that the United Kingdom’s withdrawal from the EU and its future relationship with the EU are the subject of vigorous debate and controversy. The controversy goes beyond the terms of any withdrawal agreement or the lack of it. It extends to the arrangements that will be put in place in the United Kingdom either to implement a future withdrawal agreement or to address the consequences of withdrawal on a ‘no-deal’ basis. These are themselves complex matters, and preparations for a ‘no-deal’ withdrawal are widely reported as involving a great deal of work by the civil service. At such a time Parliament’s second essential constitutional function, the scrutiny of the executive, is of paramount importance.’
‘Prorogation has the effect of bringing Parliamentary scrutiny to an end, and thus in the event of challenge any reason for proroguing must be supplied to the court. If no reason is given, in the present circumstances I am of opinion that the decision to prorogue Parliament for five weeks out of the seven remaining before the United Kingdom is scheduled to leave the European Union leads inevitably to the conclusion that the reason for prorogation was to prevent Parliamentary scrutiny of the government. I find it impossible to see that it could serve any other rational purpose. The respondent’s pleadings say almost nothing about the reason for the prorogation, and the court was not provided with any other formal statement of the reasons.’
and
‘The critical complaint about the prorogation is not the fact that it occurred; short prorogation is regularly used to start new Parliamentary sessions. The complaint rather relates to the length of the period during which Parliament is to be prorogued, without any power to resume sitting during that period.’

Lord President, Lord Brodie, Lord Drummond Young
[2019] ScotCS CSIH – 49
Bailii
European Union (Notification of Withdrawal) Act 2017 1, Prorogation Act 1867 1, European Union (Withdrawal) (No 2) Act 2019, Northern Ireland (ExecutiveFormation etc) Act 2019, Claim of Right Act 1689, Act of Settlement 1700
Scotland
Citing:
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Appeal fromCherry, Joanna Cherry QC Mp and Others for Judicial Review SCS 4-Sep-2019
(Outer House) . .
CitedMacleod v Lewis Justices of Peace SCS 20-Dec-1892
. .
CitedGlasgow Corporation v Central Land Board HL 12-Dec-1955
The House asked how far the public interest is allowed to outweigh the interest of the individual so that, though the appellants’ challenge of the respondents’ actings can only be satisfactorily disposed of after it is known what the respondents in . .
CitedThe Admiralty v Blair’s Trustee SCS 10-Dec-1915
Bankruptcy – Sequestration – Crown – Claims – Preference – Damages for Breach of Contract Payable to Admiralty – Prerogative Right of Crown to Preferential Ranking
In a sequestration the Lords Commissioners of the Admiralty claimed a . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedScottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 8-Mar-2011
The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the . .
CitedThe British Broadcasting Corporation for Access To Crown Productions In The Cases of Her Majesty’s Advocate v Hainey HCJ 12-Jan-2012
. .
CitedGuardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedThe 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 . .
CitedCape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) SC 29-Jul-2019
The court was asked as to the making public of papers filed by the parties during litigation.
Held: The appeal failed, and the cross-appeal succeeded. the Court of Appeal had jurisdiction under CPR r 5.4C(2) to make the order which it had . .
CitedAttorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
CitedBurmah 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 . .
CitedJackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
CitedEdwards v Cruickshank 1840
Lord President Hope described the jurisdiction of supreme courts: ‘With regard to our jurisdiction, and the jurisdiction of the supreme courts in every civilized country with which I am acquainted, I have no doubt. They have power to compel every . .
CitedThe Cheng Poh Alias Char Mer v The Public Prosecutor of Malaysia PC 11-Dec-1978
(Malaysia) . .
CitedWightman, Reclaiming Motion By Andy Wightman MSP and Others v Secretary of State for Exiting The European Union SCS 21-Sep-2018
(First Division, Inner House) . .
CitedCouncil of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
CitedPham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedMoohan 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 . .
CitedSecretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited CA 30-Oct-2002
Order confirmed. ‘while for my part I have found nothing to demonstrate bad faith on the part of the Secretary of State, the history of this case has demonstrated to my mind that the approach taken to the public decisions that had to be made fell . .
CitedBarclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
CitedBelize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment Belize Electric Company Limited PC 29-Jan-2004
PC (Belize) Lord Walker said: ‘It is now clear that proceedings for judicial review should not be conducted in the same manner as hard fought commercial litigation. A Respondent authority owes a duty to the court . .
CitedThe King v Wilde 1793
The Court ex officio ought to take notice of the beginning and end of prorogations and sessions of Parliament. . .
CitedHer Majesty’s Advocate v Coulson HCJ 3-Jun-2015
. .
CitedAdegbenro v Chief S L Akintola and Sir Adesoji Aderemi PC 27-May-1963
Nigeria – removal of premier of Western Region from office . .
CitedGibson v Lord Advocate SCS 7-Mar-1975
. .
CitedSandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
CitedAdams, MP v Guardian Newspapers Limited SCS 7-May-2003
Whether statements attributed were defamatory – accusation of leaking email, but email said not to be confidential . .
CitedShergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
CitedBelize Alliance of Conservation Non-Governmental Organisations v Department of the Environment and Another (No 2) PC 13-Aug-2003
(Belize) The applicants sought an interim order preventing continuation of the building of a dam, saying that the environmental damage had not been properly aanticipated.
Held: The Board of the Council did have power to grant an interim . .
CitedMcGeoch, Re Judicial Review SCS 15-Jan-2013
(Outer House, Court of Session) Challenge to refusal of legal aid. . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedLord Gray’s Motion HL 12-Nov-1999
(Committee for Privileges) The proposed House of Lords Bill which would have the effect of removing the right of Scottish hereditary Lords to sit in the House of Lords was not a breach of the Treaty of Union between England and Scotland. Such Lords . .

Cited by:
1st Div Inner HouseMiller, 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.

Constitutional

Updated: 11 November 2021; Ref: scu.641198

Spiers v Ruddy: PC 12 Dec 2007

Limits to Powers in Devolution Cases

Mr Spiers had complained as to the competency of two temporary sheriffs called to hear case against him, saying that the temporary nature of their appointments did not allow them to constitute an independent tribunal. He now complained that the subsequent delay in hearing his cases had prevented a fair trial.
Held: Lord Bingham of Cornhill referred to the need for reticence, given the Board’s restricted role in deciding devolution issues. It is not for the Board to comment on the test that is applied in fresh evidence appeals which do not raise a devolution issue. Its task is to identify the test where the complaint is of non-disclosure in violation of the article 6(1) right to a fair trial.

Lord Bingham of Cornhill
[2007] UKPC D2, [2008] HRLR 14, 2007 GWD 40-700, 2008 SLT 39, [2008] 2 WLR 608, [2008] 1 AC 873, 2008 SCCR 131
Bailii
Scotland Act 1998, European Convention on Human Rights 6(1)
Scotland
Citing:
CitedRegina v HM Advocate and The Advocate General for Scotland PC 28-Nov-2002
(The High Court of Justiciary) The prosecution had accepted that the matter had been the subject of unreasonable delay, but wished to continue. The defendant sought a plea in bar, on the basis that continuing would infringe his rights.
Held: . .
CitedAttorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .

Cited by:
CitedRutter, Regina (on the Application of) v The General Teaching Council for England Admn 1-Feb-2008
The applicant challenged a decision of disciplinary committee to go ahead with an allegation of misconduct after considerable delay by council and failure to abide by its own rules. After not receiving a notice of proceedings the applicant had . .
CitedMcInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
CitedImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
CitedHer Majesty’s Advocate v CAM ScSf 21-Nov-2012
The appellant challenged his conviction saying that there had been too long a delay in his trial. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.262253

Air Canada v Secretary of State for Trade: HL 1983

The court considered the test to be applied before a document could be ordered to be discovered.
Held: (Majority) Discovery is an exception to the adversarial character of the legal process. It assists both the parties and the court to discover the truth. By so doing, it not only helps towards a just determination; it also saves costs. A party who discovers timeously a document fatal to his case is assisted as effectively, although less to his liking, as one who discovers the winning card; for he can save himself and others the heavy costs of litigation.
The House was divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the first view.
The purpose of discovery is to assist the parties as well as the Court in determining the truth and by doing so, not only help to discover the truth and make a just determination of the case, but also save costs.
Where a prima facie case of public interest immunity is made out, a party who wishes to invite the court to inspect material before determining whether it should after all be deployed must show that it is likely to give substantial support to his or her case. However, public interest immunity is not a privilege, which may be waived by the Crown or by any party.
Lord Wilberforce described the duty of the court to litigants: ‘In a contest purely between one litigant and another, such as the present, the task of the court is to do, and be seen to be doing, justice between the parties – a duty reflected by the word ‘fairly’ in the rule. There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done.’
When considering the ordering of discovery for which immunity is claimed, there must be something beyond speculation, some concrete ground for belief which takes the case beyond a mere fishing expedition.
Lord Fraser of Tullybelton discussed the circumstances in which a judge should inspect documents in order to decide whether or not a public interest immunity is made out, and said: ‘The test is intended to be fairly strict. It ought to be so in any case where a valid claim for public interest immunity has been made. Public interest immunity is not a privilege which may be waived by the Crown or by any other party.’
Lord Scarman said that the Crown, when it puts forward a public interest immunity objection, ‘is not claiming a privilege but discharging a duty’.
It is not for the Crown but for the Court to determine whether the document should be produced, and ‘In my judgment documents are necessary for fairly disposing of a cause or for the due administration of justice if they give substantial assistance to the court in determining the facts on which the decision in the cause will depend.’

Lord Wilberforce, Lord Scarman, Lord Fraser of Tullybelton
[1983] 2 AC 394, [1983] 1 All ER 161, [1983] 2 WLR 494
England and Wales
Citing:
CitedRegina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary HL 1972
The House considered a claim for public interest immunity.
Held: Lord Simon of Glaisdale said: ‘the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that . .

Cited by:
CitedAdelson and Another v Associated Newspapers QBD 19-Feb-2008
Complaint was made that an article was defamatory of the owner of Manchester United. The defendant now argued that the game was not worth the candle. The costs vastly exceeded any possible recovery, and it had openly offered vindication, and that . .
CitedIn re an Inquiry Under The Company Securities (Insider Dealing) Act 1985 HL 1988
The term ‘necessary’ will take its colour from its context; in ordinary usage it may mean, at one end of the scale, ‘indispensable’ and at the other ‘useful’ or ‘expedient’.
Lord Griffiths said: ‘What then is meant by the words ‘necessary . . . .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Evidence

Leading Case

Updated: 11 November 2021; Ref: scu.278225

Steele Ford and Newton v Crown Prosecution Service (No.2): HL 1993

The House considered the court’s jurisdiction to award costs out of central funds.
Held: In this case there was no such power, but: ‘still more important, in the present context, is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure.’ The section gave a court no implied power to make an order out of central funds in civil litigation to compensate a litigant for wasted costs: ‘I will not multiply examples, but I hope I have said enough to explain why I cannot attribute to the legislature any general willingness to provide the kind of publicly funded safety net which the judiciary would like to see in respect of costs necessarily and properly incurred by a litigant and not otherwise recoverable . . Some general legislative provision authorising public funding of otherwise irrecoverable costs, either in all proceedings or in all appellate proceedings, would no doubt be an admirable step in the right direction which the judiciary would heartily applaud. But this does not, in my opinion, justify the courts in attempting to achieve some similar result by the piecemeal implication of terms giving a power to order payment of costs out of central funds in particular statutes, which can only lead to anomalies. . . The courts must always resist the temptation to engage, under the guise of statutory interpretation, in what is really judicial legislation, but this is particularly important in a sensitive constitutional area, such as that with which we are here concerned, where we should be scrupulous to avoid trespassing on parliamentary ground. I would hold that jurisdiction to order payment of costs out of central funds cannot be held to have been conferred by implication on the courts by any of the statutory provisions which I have examined. Indeed, I find it difficult to visualise any statutory context in which such a jurisdiction could be conferred by anything less than clear express terms.’

Lord Bridge
[1994] 1 AC 22, [1993] 2 All ER 769, [1993] 2 WLR 934
Supreme Court Act 1981 51
England and Wales
Cited by:
CitedRe Law Society of Northern Ireland QBNI 9-Sep-2004
The Law Society of Northern Ireland sought an order to quash a letter from the new NI Legal Service Commission declining to implement the remuneration rates set by the Society. There had been no review of charging rates by the commission for some . .
CitedCorner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Constitutional, Costs

Leading Case

Updated: 10 November 2021; Ref: scu.214220

Makudi v Baron Triesman of Tottenham In London Borough of Haringey: QBD 1 Feb 2013

makudi_triesmanQBD2013

The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the claims were based on privileged evidence given to a parliamentary committee, and associated publications, and the remainder had so restricted a distribution as to make the action an abuse.
Held: The action should be struck out. The occasions of the four publications complained of were all plainly occasions of qualified privilege, and there was no case in malice that could be left to a jury. It was not possible to separate out the defendant’s state of mind when making the publications complained of and his evidence to Parliament.

Tugendhat J
[2013] EWHC 142 (QB)
Bailii
Bill of Rights 1689 9
Citing:
CitedGrainger v Hill CEC 1838
Misuse of Power for ulterior object
D1 and D2 lent C 80 pounds repayable in 1837, secured by a mortgage on C’s vessel. C was to be free to continue to use the vessel in the interim but the law forbade its use if he were to cease to hold its register. In 1836 the Ds became concerned . .
CitedByrne v Deane CA 1937
A notice had been displayed on a golf club notice board. The court considered whether this constituted publication for defamation purposes.
Held: Greene LJ said: ‘Now on the substantial question of publication, publication, of course, is a . .
CitedHorrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
CitedBroxton v McClelland and Another CA 27-Nov-1996
The judge may disclose to the jury the purpose of a non-party’s involvement as a backer of a party if it is relevant to the case.
Simon Brown LJ said as to an allegation that the claim was an abuse of process: ‘The cases appear to suggest two . .
CitedHamilton 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 . .
CitedMcLean and Another v Buchanan, Procurator Fiscal and Another PC 24-May-2001
(Appeal from High Court of Justiciary (Scotland)) It was not an infringement of a defendant’s right to a fair trial where the costs of defending the case brought against him would be substantial, but where his solicitors would be paid only a small . .
CitedChase v Newsgroup Newspapers Ltd CA 3-Dec-2002
The defendant appealed against a striking out of part of its defence to the claim of defamation, pleading justification.
Held: The Human Rights Convention had not itself changed the conditions for a plea of justification based upon reasonable . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedDow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
CitedChurch of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
CitedJeynes v News Magazines Ltd and Another CA 31-Jan-2008
Whether Statement defamatory at common law
The claimant appealed against a striking out of her claim for defamation on finding that the words did not have the defamatory meaning complained of, namely that she was transgendered or transsexual.
Held: The appeal failed.
Sir Anthony . .
CitedFairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .

Cited by:
Appeal fromMakudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 10 November 2021; Ref: scu.470710

Kinloch v Her Majesty’s Advocate: SC 19 Dec 2012

The appellant said that the police officers had acted unlawfully when collecting the evidence used against him, in that the information used to support the request for permission to undertake clandestine surveillance had been insufficiently detailed, and that the police had acted in breach of his article 8 rights in obtaining evidence by surveillance since they had failed to obtain authorisation for the surveillance under the Regulation of Investigatory Powers (Scotland) Act 2000.
Held: The appeal was dismissed. Strictly, the appeal which challenged the action of police officers did not raise a devolution issue, since such were limited to actions of members of the Scottish government.
Even so, there had been no interference with the appellant’s article 6 or 8 rights. The fact that evidence is irregularly obtained because there is no authorisation under the 2000 Act does not of itself make that evidence inadmissible at common law. Nor does the fact that the evidence is obtained in breach of article 8 necessarily mean that it would be incompatible with article 6 for that evidence to be led at the trial. It could not reasonably be suggested that a police officer who came upon a person who has committed a crime in a public place and simply noted down his observations in his notebook was interfering with the person’s article 8 right. In this case, notes of the Appellant’s movements in public over several hours were covertly made by the police in a planned operation.
Lord Hope DPSC said: ‘There is nothing in the present case to suggest that the appellant could reasonably have had any [reasonable] expectation of privacy. He engaged in these activities in places where he was open to public view by neighbours, by persons in the street or by anyone else who happened to be watching what was going on . . The criminal nature of what he was doing, if that is what it was found to be, was not an aspect of his private life that he was entitled to keep private . . ‘

Lord Hope, Deputy President, Lady Hale, Lord Mance, Lord Kerr, Lord Reed
[2012] UKSC 62, 2013 GWD 1-18, [2012] WLR(D) 385, [2012] 2 WLR 141, UKSC 2011/0251
Bailii, Bailii Summary, SC, SC Summary
Proceeds of Crime Act 2002, Regulation of Investigatory Powers (Scotland) Act 2000, European Convention on Human Rights 8, Scotland Act 1998
Scotland
Citing:
CitedGary Follen v Her Majesty’s Advocate PC 8-Mar-2001
PC High Court of Justiciary (Scotland) The defendant said that a trial under the section infringed his right to a fair trial, because of a ten month delay by the prosecutor. On arrest he had been recalled to . .
CitedKhan v The United Kingdom ECHR 12-May-2000
Evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. The police had installed covert listening devices on private property without the knowledge or consent of the owner. UK national law did . .
CitedMcGibbon and Corstorphine v Her Majesty’s Advocate HCJ 19-Feb-2004
It was conceded that there had been a breach of article 8 in the obtaining of covert video and audio recordings of the appellants’ incriminating conversations.
Held: If there was a breach by the police of article 8, it did not follow that the . .
CitedLawrie v Muir HCJ 23-Nov-1949
The prosecution case was said to have been based on evidence acquired during an unlawful search of the defendant’s premises.
Held: An irregularity in the method by which evidence has been obtained does not necessarily make that evidence . .
CitedMalone v The United Kingdom ECHR 2-Aug-1984
The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in ‘accordance with law’. . .
CitedAmann v Switzerland ECHR 16-Feb-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to interception of telephone call; Violation of Art. 8 with regard to creation and storing of information card; Preliminary objection . .
CitedRotaru v Romania ECHR 4-May-2000
Grand Chamber – The applicant, a lawyer, complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for . .
CitedHoekstra and Others v Her Majesty’s Advocate High Court of Justiciary PC 26-Oct-2000
The Privy Council has no standing to act as a general court of appeal on Scottish law. The jurisdiction given to it by the Act, was limited as prescribed by the Act to what are called devolution issues, issues related to the acts of devolution. Not . .
CitedPG and JH v The United Kingdom ECHR 25-Sep-2001
The use of covert listening devices within a police station was an infringement of the right to privacy, since there was no system of law regulating such practices. That need not affect the right to a fair trial. The prosecution had a duty to . .
CitedPerry v The United Kingdom ECHR 17-Jul-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – financial award
The claimant had been arrested, then released to attend an identification parade. Several attempts . .
CitedGilchrist and Another v Her Majesty’s Advocate HCJ 24-Aug-2004
The defendants were to stand trial for drugs offences, but raised a devoltion issue as to the use of police surveillance products gathered under the 2000 Act. They said that the authorisation to carry out the surveillance had been granted on . .
CitedBykov v Russia ECHR 10-Mar-2009
. .
CitedBykov v Russia ECHR 10-Mar-2009
. .

Cited by:
CitedCatt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
CitedZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Constitutional, Human Rights, Police

Leading Case

Updated: 10 November 2021; Ref: scu.467184

Purdy, Regina (on the Application of) v Director of Public Prosecutions and others: CA 19 Feb 2009

The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under the 1961 Act.
Held: The court considered the Code for Crown prosecutors, and other Guidance offered by the respondent. The claimant’s article 8 rights were engaged.
The decisions of the House of Lords and ECHR in the Pretty case were inconsistent, and the court considered whether the House’s decision in Pretty remained binding. This had been settled in Kay v Lambeth LBC. The Court of Appeal should leave the House to reassess its decision save in very exceptional cases. This was not such a case. Nor did the Countryside Alliance case amount to a re-assessment of Pretty by the House.
The offence was clearly stated, and the requirement for consent to a prosecution did not make it less so: ‘The absence of a crime-specific policy relating to assisted suicide does not make the operation and effect of section 2(1) of the 1961 Act unlawful nor mean that it is not in accordance with law for the purposes of Article 8(2). Like this Court the DPP cannot dispense with or suspend the operation of section 2(1) of the 1961 Act, and he cannot promulgate a case-specific policy in the kind of certain terms sought by Ms Purdy which would, in effect, recognise exceptional defences to this offence which Parliament has not chosen to enact.’
Lord Judge CJ said: ‘their Lordships intended to give the Court of Appeal very limited freedom, only in the most exceptional circumstances, to override what would otherwise be the binding precedent of the decision of the House. They clearly required more than the bare fact of the same parties being involved in order to bring the case within the very narrow confines of the very exceptional case, one of an extreme character, or of wholly exceptional circumstances, with the emphasis added by us to phrases from their Lordships’ speeches. We are not seeking to be released from these strictures. The structure of judicial precedent, designed over the years, has served us well. The decisions of the European Court do not bind us. The decisions of the House of Lords do. By-passing or finding an alternative route around the decisions of the House of Lords, on the basis of the jurisprudence of the European Court would, in the ultimate analysis, be productive of considerable uncertainty. Therefore if the strictures are too tight, it is their Lordships who, if they think it appropriate, must release the knot. As it is, and in any event, we cannot bring this case within the required degree of exceptionality.’

Lord Judge CJ, Ward LJ, Lloyd LJ
Times 24-Feb-2009, [2009] EWCA Civ 92, [2009] 1 Cr App R 32, (2009) 159 NLJ 309, [2009] WLR (D) 62, (2009) 106 BMLR 170, [2009] UKHRR 1005
Bailii, WLRD
Suicide Act 1961 1 2(4), European Convention on Human Rights 8
England and Wales
Citing:
CitedSmedleys Limited v Breed HL 1974
The defendant company had sold a can of peas. A caterpillar was found in it.
Held: Despite having shown that they had taken all reasonable care, the defendant was guilty of selling food not to the standard required. The defence under the Act . .
CitedPretty 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 . .
CitedRegina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
CitedRegina v Hough CACD 1984
The court considered the purpose of section 2 of the 1961 Act. Lord Lane CJ observed: ‘It is clear . . that Parliament had in mind the potential scope for disaster and malpractice in circumstances where elderly, infirm and easily suggestible people . .
CitedSchloendorff v Society of New York Hospital 1913
(USA) The libertarian principle of self-determination allows that ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without the patient’s consent . .
CitedAiredale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
CitedIn re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
CitedRodriguez v Attorney General of Canada 30-Sep-1993
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Life, liberty and security of the person – Fundamental justice – Terminally ill patient seeking assistance to commit suicide – Whether . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
CitedRJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
CitedKay 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 . .
CitedCassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
CitedCountryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
CitedGhaidan 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 . .
CitedX (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
CitedRegina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
CitedDunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
CitedLondon Street Tramways v London County Council HL 25-Apr-1898
House Decisions binding on Itself
The House laid down principles for the doctrine of precedent. When faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was . .
CitedRegina v Boyd, Hastie, Spear (Courts Martial Appeal Court), Regina v Saunby, Clarkson, English, Williams, Dodds, and others HL 18-Jul-2002
Corts Martial System Complant with Human Rights
The applicants were each convicted by courts martial of offences under civil law. They claimed that the courts martial were not independent tribunals because of the position of the president of the court, and that it was wrong to try a serviceman by . .

Cited by:
Appeal fromPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .

Lists of cited by and citing cases may be incomplete.

Crime, Human Rights, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.295117

Blackburn v Attorney-General: CA 10 May 1971

The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful act.
Held: The power to enter into Treaties was itself a power of the Crown acting on advice from ministers. It was not open to challenge that power in the courts. No Parliament was able finally to bind its successors, and the Treaty of Rome, though once signed was irrevocable, could in fact be reversed by a later Parliament. As it stood the question was hypothetical.
Lord Denning MR (dissenting) said that the 1931 Act took away the power of Parliament to legislate for the Dominions: ‘Can anyone imagine that Parliament could or would reverse that statute? Take the Acts which have granted independence to the dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away.’

Lord Denning MR
[1971] 2 All ER 1380, [1971] 1 WLR 1037, [1971] EWCA Civ 7, [1971] CMLR 784
Bailii
Statute of Westminster 1931
England and Wales
Cited by:
CitedMaclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
CitedManuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.222916

Barclay and Others, Regina (on The Application of) v Secretary of State for Justice and Others: SC 1 Dec 2009

The claimants said that restrictions within the constitution of Sark on who could sit in the Chief Pleas were incompatible with their human rights. The claimants variously owned property on Sark but had restricted rights to vote and stand.
Held: The rights given by the constitution to the unelected members of the Sark, did not infringe the claimants’ rights. There was a margin of appreciation under article 3 of protocol one, and given the historical systems on Sark, the appointments fell within that range of discretion. Even a wholly unelected chamber of parliament, such as the House of Lords was not incompatible.
Lord Collins summarised the significance of A3P1: ‘First, article 3 of the First Protocol enshrines a characteristic principle of an effective democracy . .
Second, although article 3 is phrased in terms of the obligation of the contracting states to hold elections which ensure the free expression of the opinion of the people rather than in terms of individual rights, article 3 guarantees individual rights, including the right to vote and the right to stand for election . .
Third, there is room for ‘implied limitations’ on the rights enshrined in article 3, and contracting states must be given a wide margin of appreciation in this sphere: MathieuMohin v Belgium (1988) 10 EHRR 1, para 52; Yumak v Turkey (2009) 48 EHRR 14, para 109(ii).
Fourth, the content of the obligation under article 3 varies in accordance with the historical and political factors specific to each state; . .
Fifth, article 3 is not (by contrast with some other Convention rights, such as those enumerated in articles 8 to 11) subject to a specific list of legitimate limitations, and the contracting states are therefore free to rely in general in justifying a limitation on aims which are proved to be compatible with the principle of the rule of law and the general objectives of the Convention: Yumak, para 109 (iii); Tanase v Moldova (Application No 7/08) (unreported) given 18 November 2008, para 105.
Sixth, limitations on the exercise of the right to vote or stand for election must be imposed in pursuit of a legitimate aim, must not be arbitrary or disproportionate, and must not interfere with the free expression of the opinion of the people in the choice of the legislature: Yumak, para 109(iii) to (iv).
Seventh, such limitations must not curtail the rights under article 3 to such an extent as to impair their very essence, and deprive them of their effectiveness. They must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature and the laws which it promulgates: MathieuMohin, para 52; Yumak, para 109(iv).’

Lord Hope, Deputy President, Lord Scott, Lord Brown, Lord Neuberger, Lord Collins
[2009] UKSC 9, [2009] 3 WLR 1270, [2010] 1 AC 464, [2010] HRLR 10, [2010] UKHRR 86, UKSC 2009/0119
Bailii, Times, Bailii Summary, SC Summary, SC, UKSCBLOG
European Convention on Human Rights P1a3
England and Wales
Citing:
at First InstanceBarclay and Others, Regina (on the Application of) v The Seigneur of Sark and Another Admn 18-Jun-2008
The claimants said that the the laws restricting residence and voting rights and oher constitutional arrangements on the Isle of Sark were in breach of European law, and human rights law.
Held: The claims failed. The composition of Chief Pleas . .
Appeal FromBarclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
CitedMathieu Mohin and Clerfayt v Belgium ECHR 2-Mar-1987
(Plenary Court) The court described and approved the way in which an ‘institutional’ right to vote had developed into ‘subjective rights of participation – the ‘right to vote’ and the ‘right to stand for election’.’ It described the ambit of Article . .
CitedYumak And Sadak v Turkey ECHR 8-Jul-2008
. .
CitedMcGonnell v The United Kingdom ECHR 8-Feb-2000
The applicant owned land in the parish of St Martin’s in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a . .
CitedZdanoka v Latvia ECHR 16-Mar-2006
(Grand Chamber) The applicant alleged that her disqualification from standing for election to the Latvian Parliament and to municipal elections infringed her rights as guaranteed by Article 3 of Protocol No. 1 to the Convention, and Articles 10 and . .
CitedTanase And Chirtoaca v Moldova ECHR 18-Nov-2008
The applicants challenged a law which prevented them standing as candidates in elections. . .
CitedZdanoka v Latvia ECHR 16-Mar-2006
(Grand Chamber) The applicant alleged that her disqualification from standing for election to the Latvian Parliament and to municipal elections infringed her rights as guaranteed by Article 3 of Protocol No. 1 to the Convention, and Articles 10 and . .

Cited by:
CitedChester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
CitedBarclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.381641

XH and AI, Regina (on The Application of) v The Secretary of State for The Home Department: CA 2 Feb 2017

The court heard appeals concerning the cancellation of the passports of the appellants, XH and AI, on the grounds that the Secretary of State suspects that they plan to travel to be involved in terrorism-related activity. The Secretary of State was concerned to prevent them from travelling to Syria to fight with terrorist organisations there.
Held: The appeals failed: ‘it is clear that there remains vested in the executive the prerogative power to cancel a passport as described in the WMS’.

Sir Terence Etherton MR, Lloyd Jones and Sales LJJ
[2017] EWCA Civ 41, [2017] WLR(D) 76
Bailii, WLRD
England and Wales
Cited by:
CitedMR, Regina (on The Application of) v The Secretary of State for The Home Department Admn 10-Mar-2017
The claimant challenged the use of the Royal Prerogative to withdraw his passport. He had as a youth been involved with a terrorist organisation, but said that he now regretted that and was no longer so involved. He had sought to set up a business, . .

Lists of cited by and citing cases may be incomplete.

Administrative, Constitutional

Updated: 10 November 2021; Ref: scu.573871

Attorney General v De Keyser’s Royal Hotel Ltd: HL 10 May 1920

A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an established general principle, of high constitutional importance, that there is no common law power to take or confiscate property without compensation. The powers of the Judicial Committee of the Privy Council are now governed by the Acts of 1833 and 1844 which must be recognised as superseding the royal prerogative. In the exercise of the War Prerogative the Crown’s power to requisition property had been limited by Defence Act 1842 so as to require compensation to be paid to the subject.
Lord Parmoor said: ‘The growth of constitutional liberties has largely consisted in the reduction of the discretionary power of the executive, and in the extension of Parliamentary protection in favour of the subject, under a series of statutory enactments. The result is that, whereas at one time the Royal Prerogative gave legal sanction to a large majority of the executive functions of the Government, it is now restricted within comparatively narrow limits. The Royal Prerogative has of necessity been gradually curtailed, as a settled rule of law has taken the place of an uncertain and arbitrary administrative discretion.’
. . And ‘The constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject.’
Lord Dunedin discussed when the prerogative is overtaken by statute: ‘it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls is unanswerable. He says: ‘What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?”
. . And ‘In as much as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed.’

Lord Dunedin, Lord Parmoor, Lord Atkinson
[1920] AC 508, [1920] UKHL 1, [1920] All ER 80, (1920) 36 TLR 600, (1920) 122 LT 691, [1920] UKHL 757
Bailii, Bailii
Defence Act 1842
England and Wales
Cited by:
CitedHM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
CitedHooper 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 . .
CitedRegina v Secretary of State for Home Department Ex Parte Fire Brigades Union and Others CA 10-Nov-1994
The Home Secretary’s non-statutory scheme for the compensation for criminal injuries was unlawful pending implementation of the Act. It amounted to an abuse of power. He had power to delay implementing the new Act, with no duty to bring it into . .
CitedRegina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
CitedChild Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
CitedMunir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
CitedRegina 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 . .
CitedMiller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
CitedCherry, 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 . .
CitedMiller, 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.

Constitutional, Damages

Leading Case

Updated: 10 November 2021; Ref: scu.180896

Secretary of State for the Home Department v Asif Javed and Zuifiqar Ali and Abid Ali: CA 17 May 2001

A designation of Pakistan as a safe place for the return of a failed asylum applicant was unlawful because there was plain evidence that persecution of women who left the marital home, whether voluntarily or by compulsion, was widespread. Accordingly an order applying to both men and women was not justified and had to be struck down.
Courts may consider whether delegated legislation is in accordance with statutory authority, or whether it is otherwise unlawful, irrespective of the views to that effect expressed by Ministers or others in Parliament.
Lord Phillips MR said: ‘Legislation is the function of Parliament, and an Act of Parliament is immune from scrutiny by the courts, unless challenged on the ground of conflict with European law. Subordinate legislation derives its legality from the primary legislation under which it is made. Primary legislation that requires subordinate legislation to be approved by each House of Parliament does not thereby transfer from the courts to the two Houses of Parliament, the role of determining the legality of the subordinate legislation.’ and
‘Whether there was in general a serious risk of persecution was a question which might give rise to a genuine difference of opinion on the part of two rational observers of the same evidence. A judicial review of the Secretary of State’s conclusion needed to have regard to that considerable margin of appreciation. There was no question here of conducting a rigorous examination that required the Secretary of State to justify his conclusion. If the applicants were to succeed in showing that the designation of Pakistan was illegal, they had to demonstrate that the evidence clearly established that there was a serious risk of persecution in Pakistan and that this was a state of affairs that was a general feature in that country. For a risk to be serious it would have to affect a significant number of the populace.’

Lord Phillips MR, Peter Gibson, Latham LJJ
Times 24-May-2001, Gazette 21-Jun-2001, [2001] Imm AR 529, [2002] QB 129, [2001] INLR 645, [2001] 3 WLR 323, [2001] EWCA Civ 789
Bailii
Asylum (Designated Countries of Destination and Designated Safe Countries) Order 1996 No 2671
England and Wales
Cited by:
CitedThe 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 . .
CitedThe 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 . .
CitedRegina (Husan) v Secretary of State for the Home Department QBD 24-Feb-2005
The applicant sought asylum from Bangladesh. His application was refused, and the respondent issued a certificate to say that his claim was hopeless. He sought judicial review.
Held: There was so much evidence that Bangladesh suffered . .
CitedOffice of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
CitedBrown, Regina (on The Application of) v Secretary of State for Home Department Admn 28-May-2012
The claimant, a citizen of Jamaica, came to the UK in 2010 on a visitor’s visa with leave to remain for one month. He then applied for asylum on the ground that he is a Jamaican homosexual and feared persecution if returned to Jamaica. He was . .
CitedJB (Jamaica), Regina (on The Application of) v Secretary of State for The Home Department CA 12-Jun-2013
The claimant was to be removed and returned to Jamaica, but claimed that as a homosexual he would be persecuted. He now challenged the inclusion of Jamaica within the last of safe countries.
Held: (Moore-Bick LJ dissenting) The appeal . .
CitedBrown (Jamaica), Regina (on The Applications of) v Secretary of State for The Home Department SC 4-Mar-2015
B, an homosexual immigrant for Jamaica, resisted his return, saying that he would be prosecuted. The Secretary of State now appealed against a finding that his inclusion of Jamaica within the statutory list of safe countries for return was not . .

Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional, Judicial Review

Leading Case

Updated: 10 November 2021; Ref: scu.147552

Regina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd: Admn 10 Nov 1994

The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It was said by the defendant’s advisers to be an abuse of the aid system. The defendant said the plaintiff had no sufficient interest to mount a challenge. The plaintiff said that as a charity itself distributing aid, the diversion of such huge sums affected its own actions, and this amounted to a proper interest.
Held: The declaration was granted.
The issue of standing went as to jurisdiction, but there was nothing in the case law to deny the applicants such standing. Standing should be treated as a preliminary issue, taken in the legal and factual context of the whole case. As to that: ‘where, as here, the contemplated development is, on the evidence, so economically unsound that there is no economic argument in favour of the case, it is not, in my judgment, possible to draw any material distinction between questions of propriety and regularity on the one hand and questions of economy and efficiency of public expenditure on the other.’

Rose LJ, Scott Baker J
[1995] 1 WLR 386, [1994] EWHC Admin 1, [1995] 1 All ER 611, [1995] COD 211
Bailii
Overseas Development and Co operation Act 1980, Supreme Court Act 1981 31(3)
England and Wales
Citing:
CitedRegina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
CitedRegina v HM Inspector of Pollution and Ministry of Agriculture, Fisheries and Food, Ex Parte Greenpeace Ltd CA 30-Sep-1993
A campaigning organisation was challenging an official decision which, if stayed, would have adverse financial implications for a commercial company (British Nuclear Fuels PLC) which was not a party to the proceedings. Brooke J had refused a stay. . .
CitedRegina v Secretary of State for Social Services, Ex parte Child Poverty Action Group CA 1989
The applicants sought judicial review of the failures by the respondent in processing claims for benefits. They asked that there should be a declaration that the respondent had a duty to refer a claim to an adjudication officer as soon as it was . .
CitedRegina v Monopolies and Mergers Commission, ex parte Argyll Group plc CA 14-Mar-1986
Weighing Interest of Seeker of Judicial Review
The court recast in simpler language the provision in section 75 empowering the Secretary of State to make a merger reference to the Commission: ‘where it appears to him that it is or may be the fact that arrangements are in progress or in . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg Admn 30-Jul-1993
The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by . .
CitedRegina 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 . .
CitedRegina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .
CitedRegina v Secretary of State for the Environment ex parte Islington London Borough Council CA 19-Jul-1991
The court considered the proper range within which challenges to affidavit evidence given in judicial reviw proceedings should be kept. Dillon LJ said: ‘The . . argument is stated to have been that an applicant is not entitled to go behind an . .
CitedHanks and Others v Minister of Housing and Local Government 1963
A factor in a decision might be so insignificant that the failure to take it into account could not have materially affected the decision. There might be cases where the factor wrongly omitted was ‘insignificant’ and thus would not justify . .
CitedRegina v Inner London Education Authority, ex parte Westminster City Council 1986
A political purpose can taint an administrative decision with impropriety. . .
CitedRegina v Governor of Brixton Prison, ex parte Soblen CA 1963
Lord Denning MR discussed a decision to deport the applicant. The validity of the Minister’s act: ‘depends on the purpose with which the act is done.: ‘If it was done for an authorised purpose, it was lawful. If it was done professedly for an . .

Cited by:
CitedTweed 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 . .
CitedGood Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.245695

Regina v Criminal Injuries Compensation Board Ex parte Lain: QBD 1967

The Crown Prerogative origin of the power to make ex gratia payments does not exclude the scheme under which the payments are made from judicial review. Decisions of the Board may therefore be subject to judicial review.
Lord Parker CJ explained the limits of certiorari: ‘They have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned . . We have, as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely within the jurisdiction of this court . .’
Diplock LJ said: ‘If new tribunals are established by acts of government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunal to the supervisory control of the High Court is based. What are these characteristics? It is plain on the authorities that the tribunal need not be one whose determinations give rise directly to any legally enforceable right or liability. Its determination may be subject to certiorari notwithstanding that it is merely one step in the process which may have the result of altering the legal rights or liabilities of a person to whom it relates . .’

Lord Parker CJ, Diplock LJ, Ashworth J
[1967] 2 QB 864, [1967] 2 All ER 770, [1967] 3 WLR 348
England and Wales
Cited by:
CitedIn re McFarland HL 29-Apr-2004
The claimant was convicted, imprisoned, and then his conviction was overturned. He sought compensation. He had pleaded guilty after being told by counsel to expect an adverse direction from the magistrate, following a meeting in private between . .
CitedSecretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
CitedRegina 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 . .

Lists of cited by and citing cases may be incomplete.

Administrative, Judicial Review, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.196540

Shaw v Director of Public Prosecutions: HL 4 May 1961

Offence of Conspiracy to corrupt public morals

The defendant appealed against his convictions for conspiracy to corrupt public morals, and for living from the earnings of prostitution. He said that first was not an offence known to common law. After it became unlawful for a prostitute to ply her trade on the streets, the defendant had published a ‘Ladies Directory’ with contact details for prostitutes in London.
Held: Conspiracy to corrupt public morals is a crime known to the law of England. (Lord Reid dissenting).
Viscount Simonds discussed the offence under the 1956 Act: ‘a person who is paid for goods or services out of the earnings of prostitution does not necessarily commit an offence under the Act, yet a person does not necessarily escape from its provisions by receiving payment for the goods or services that he supplies to a prostitute. The argument that such a person lives on his own earnings, not on hers, is inconclusive. To give effect to it would be to exclude from the operation of the Act the very persons, the tout, the bully or protector, whom it was designed to catch . . a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes.’
The courts had: ‘a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare. Such occasions will be rare, for Parliament has not been slow to legislate when attention has been sufficiently aroused. But gaps remain and will always remain since no one can foresee every way in which the wickedness of man may disrupt the order of society.’
Lord Reid dissenting said that it was not open to the courts to create a new offence.

Viscount Simonds, Lord Reid, Lord Tucker, Lord Morris of Borth-y-Gest, Lord Hodson
[1962] AC 220, [1961] UKHL 1, [1961] 2 All ER 446, (1961) 45 Cr App R 113
Bailii
Sexual Offences Act 1956 30, Obscene Publications Act 1959 2
England and Wales
Citing:
CitedPearce v Brooks 1866
The contract was one for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract . .
CitedCalvert v Mayes CCA 1954
The defendant said that he was not living in part from the earnings of prostitutes. He let out properties used by the tenants for the sale of sexual services to American Servicemen, and also took payments direct from those servicemen.
Held: . .
CitedRegina v Silver CCC 1955
Judge Maude ruled that it was not an offence for landlords and their agents to let flats to prostitutes at what were described as exorbitant rents and by the learned Judge as ‘prostitute rents’ knowing that they would be used for the purpose
of . .

Cited by:
Re-ConsideredRegina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 10 November 2021; Ref: scu.186955

Guardian News and Media Ltd v AB and CD: CACD 12 Jun 2014

The newspapers objected to the proposed conduct of a terrorist trial entirely in secret.
Held: ‘This case is exceptional. We are persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution. We are also of the clear view that in this case it is unreal to contemplate a split trial – with the core of the trial being split into open and in camera hearings. In our judgment, as a matter of necessity, the core of the trial must be heard in camera. ‘
An order was made for the defendants to be identified and for the certain short parts of the hearings to be public. Otherwise the order for the trial to be held in camera were sustaiined.

Gross LJ, Simon, Burnett JJ
[2014] EWCA Crim (B1)
Bailii
England and Wales

Crime, Human Rights, Constitutional, Media

Updated: 10 November 2021; Ref: scu.526513

Imperial Tobacco Ltd v The Lord Advocate As Representing The Scottish Ministers: SCS 2 Feb 2012

The company sought a reclaiming motion after dismissal of their request for judicial review of the 2010 Act of the Scottish Parliament.
Held: The appeal against the Lord Ordinary’s interlocutor was refused.
Lord Reed said that the nature of the Sewell Convention was essentially political, not legal: ‘The Scotland Act is not a constitution, but an Act of Parliament. There are material differences. The context of the devolution of legislative and executive power within the United Kingdom is evidently different from that of establishing a constitution for an independent state such as Jamaica or Barbados, or a British overseas territory such as Bermuda. In form, the Scotland Act does not resemble the fundamental rights provisions of a constitution: its provisions are dense and detailed. The Scotland Act can also be amended more easily than a constitution: a factor which is relevant, since the difficulty of amending a constitution is often a reason for concluding that it was intended to be given a flexible interpretation. Although the UK Government’s stated policy on legislation concerning devolved matters (currently embodied in the Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, Cm 7864, 2010, para 14), known colloquially as the Sewel Convention, may impose a political restriction upon Parliament’s ability to amend the Scotland Act unilaterally, there have nevertheless been many amendments made to the Act. They include amendments to Schedules 4 and 5, which can be effected under section 30 by Order in Council. ‘

Lord President, Lord Reed, Lord Brodie
[2012] ScotCS CSIH – 9, 2012 SLT 749, 2012 SC 297, 2012 SCLR 251, 2012 GWD 11-200
Bailii
Tobacco and Primary Medical Services (Scotland) Act 2010 1(1) 9, Scotland Act 1998 29(1)
Scotland
Cited by:
Appeal fromImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.450608

Gouriet v Union of Post Office Workers: HL 26 Jul 1977

The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute did not mean that the courts had, in effect, limitless powers to grant interlocutory injunctions whenever they thought it convenient to do so. As to the exceptional nature of the power to invoke the assistance of the civil courts in aid of the criminal law, there must be something more than infringement before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area.
Lord Diplock said: ‘Authorities about the jurisdiction of the courts to grant declaratory relief are legion. The power to grant a declaration is discretionary; it is a useful power and over the course of the last hundred years it has become more and more extensively used . . Nothing that I have to say is intended to discourage the exercise of judicial discretion in favour of making declarations of right in cases where the jurisdiction to do so exists. But that there are limits to the jurisdiction is inherent in the nature of the relief: a declaration of rights. The only kind of rights with which courts of justice are concerned are legal rights; and a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event . . But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not of anyone else.’
As to the right to bring private prosecutions, they are ‘a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law.’
Lord Wilberforce noted that the right to bring a private prosecution was ‘a valuable constitutional safeguard against inertia or partiality on the part of authority.’ and ‘That it is the exclusive right of the Attorney-General to represent the public interest – even where individuals might be interested in a larger view of the matter – is not technical, not procedural, not fictional. It is constitutional.’

Lord Wilberforce, Lord Diplock
[1978] AC 435, [1977] UKHL 5, [1977] 3 All ER 70
Bailii
Supreme Court of Judicature (Consolidation) Act 1925, Post Office Act 1953 58(1) 68, Telegraph Act 1863 45
England and Wales
Citing:
CitedAttorney General of The Dutchy, At The Relation of Mr Vermuden v Sir John Heath nd Others 9-Jul-1690
The Attorney General of the Dutchy Court exhibits an information in behalf of one part-owner of coal-mines, against the other ; outlawry in the relator is a good plea.
In a relator action, the King’s name is only made use of by the form of the . .
CitedShore v Wilson 1842
Parke B said: ‘In the first place, there is no doubt that not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a . .
CitedEx Parte Newton 19-Apr-1855
The Attorney General having refused his fiat for a writ of error to a defendant convicted of a misdemeanour Held, that in a proper case, the fiat was due ex debito justitia; but that the Attorney General was to determine, on his owri responsibility, . .
CitedLondon County Council v Attorney General 1901
Lord MacNaghten said: ‘Income tax, if I may be pardoned for saying so, is a tax on income. It is not meant to be a tax on anything else.’
Lord Macnaghten said of a relator action: ‘The initiation of the litigation, and the determination of the . .
CitedTriefus and Co Ltd v Post Office CA 1957
The plaintiff sought damages after the defendant lost two mail packets.
Held: Acceptance of a postal packet by the Post Office for transmission to the addressee gives rise to no contractual rights. The court analysed the history of legislation . .
CitedAttorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .
CitedAttorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .

Cited by:
CitedAttorney-General v Able and Others QBD 28-Apr-1983
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing . .
CitedLegal and General Assurance Society Ltd v CCA Stationery Ltd ChD 12-Dec-2003
The claimant had managed a pension scheme for the respondent company. It now challenged a finding of maladministration of the scheme, with respect to the methods of calculation of discounts applicable to those leaving the scheme.
Held: Since . .
CitedStoke-On-Trent City Council v B and Q (Retail) Ltd HL 1984
The defendants had been trading on Sundays in breach of s.47 of the Shops Act 1950, which, by s.71(1) imposed on every local authority the duty to enforce within their district the provisions of that Act. Parliament has given local authorities a . .
CitedIn Re Z (Local Authority: Duty) FD 3-Dec-2004
Mrs Z suffered a terminal disease, and sought to travel to Switzerland supported and assisted by her husband, so that she could terminate her life. She appealed an injunction obtained by the authority to prevent her leaving.
Held: The . .
CitedBermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
ConsideredMeadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc and Another CA 1989
A claim was made for declaratory relief.
Held: The Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. The court considered . .
CitedCabvision Ltd v Feetum and others CA 20-Dec-2005
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
CitedIn Re S (Hospital Patient: Court’s Jurisdiction) CA 6-Mar-1995
The carer of S sought a declaration that S’s wife and son were not entitled to remove him to Norway.
Held: The court may try an issue as to the patient’s care as between rival claimants as carers. It should not tightly restrict list of carers . .
CitedOxfordshire 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 . .
CitedJones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
CitedBrown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
CitedEwing, Regina (on the Application of) v Davis Admn 2-Jul-2007
The court considered whether the District Judge had been correct to refuse to issue summonses for private prosecutions where there was a suggestion that only a private dispute at stake.
Held: It ‘never was any requirement that a private . .
CitedOffice of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
CitedBirmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
CitedFeetum v Levy CA 2006
Jonathan Parker LJ discussed the granting of declarations: ‘things have indeed moved on since the Meadows case was decided; and the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet’s . .
CitedRolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
CitedRolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
CitedScopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
CitedRollins, Regina v SC 28-Jul-2010
The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The . .
CitedGujra, Regina (on The Application of) v Crown Prosecution Service SC 14-Nov-2012
The appellant had twice begun private prosecutions only to have them taken over by the CPS and discontinued. He complained that a change in their policy on such interventions interfered with his statutory and constitutional right to bring such a . .

Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.181965

Rex v Bunting: 1885

Conspiracy to Bribe is Common Law Offence

(Supreme Court of Ontario) A conspiracy to bring about a change in the Government of Ontario by bribing members of the Legislative Assembly to vote against the Government was an indictable offence at common law committed at the time of the conspiracy itself and within the jurisdiction of the ordinary courts.

(1885) 7 OR 524
Canada
Cited by:
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Leading Case

Updated: 10 November 2021; Ref: scu.427745

Leonesio v Ministero Della Agricoltura E Foreste: ECJ 17 May 1972

leonisioECJ197205

ECJ Measures Adopted By An Institution – 1. A community regulation has direct effect and is, as such, capable of creating individual rights which national courts must protect.
Pecuniary rights against the state, conferred by such a regulation, arise when the conditions set out in the regulation are complied with and it is not possible at a national level to render the exercise of them subject to implementing provisions other than those which might be required by the regulation itself.
2. So as to apply with equal force with regard to nationals of all the member states, community regulations become part of the legal system applicable within the national territory, which must permit the direct effect provided for in article 189 to operate in such a way that reliance thereon by individuals may not be frustrated by domestic provisions or practices.
Budgetary provisions of a member state cannot therefore hinder the direct applicability of the community provision and consequently of the exercise of individual rights created by such a provision.
3. Once all the conditions laid down in regulations nos 1975/69 and 2195/69 were fulfilled, those regulations conferred on farmers a right, which national courts must protect, to payment of the slaughtering subsidy by the member state to which they belonged; such rights could be exercised in each case at the end of the period of two months following the establishment of the proof of slaughter as provided in article 10 of regulation no 2195/69. As from that time, the abovementioned regulations give the farmer the right to require payment of the subsidy without that member state’ s being able to rely on arguments based on any legislative provisions or administrative practices to withhold such payment.

[1972] ECR 287, R-93/71, [1972] EUECJ R-93/71
Bailii

European, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.214165

Prohibitions Del Roy; The Case De Modo Decimandi,: CCP 1572

Reservation of Legal Issues to those Trained

The King, James I had sat as a judge to make a decision in a court case.
Held: Edward Coke CJ overturned the decision, holding that such decisions must be made only by those with legal training and in accordance with and subject to the rule of law. Cases were ‘not to be decided by natural reason but by artificial reason and judgement of law, which law is an art which requires long long and experience.’

Edward Coke CJ
[1572] EngR 303, (1572-1616) 12 Co Rep 63, (1572) 77 ER 1342, [1572] EngR 389, (1572-1616) 13 Co Rep 37, (1572) 77 ER 1448
Commonlii, Commonlii
England and Wales

Legal Professions, Constitutional, Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.432269

Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court: CA 3 Apr 2012

The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil Procedure Rules, wider principles still applied. The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied. In the absence of good reason otherwise, documents used but not read out should be made available. The reasons put forward were insufficient to displace the presumption in favour. The applicant had good and proper reasons for wanting them.
It was ‘quite wrong to infer from the exclusion’ by section 32 of court documents from the FOIA that ‘Parliament intended to preclude the court from permitting a non-party to have access to such documents if the court considered such access to be appropriate under the open justice principle.’
Lord Justice Toulson said: ‘In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle. Where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong. However, there may be countervailing reasons. In company with the US Court of Appeals second circuit and the Constitutional Court of South Africa I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds for opposition need to be in order to outweigh the merits of the application. The Court has to carry out a proportionality exercise which will be fact specific. Central to the Court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose, and conversely any risk of harm which access to the documents may cause to the legitimate interests of others.’

Lord Neuberger MR, Hooper, Toulson LJJ
[2012] 3 All ER 551, [2012] 3 WLR 1343, [2012] EWCA Civ 420, [2012] WLR(D) 110, [2012] CP Rep 30, [2012] EMLR 22, [2013] QB 618
Bailii, WLRD
Criminal Procedure Rules 2011 5.7 5.8, Freedom of Information Act 2000 32
England and Wales
Citing:
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedRegina v Waterfield QBD 1975
The defendant was convicted of importing pornographic films and magazines. One ground of appeal was that the proceedings were a nullity because the press and public had been excluded from the court room during the showing of the films.
Held: . .
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedBroadcasting Corporation of New Zealand v Attorney General 1982
(Court of Appeal of New Zealand) Woodhouse P said: ‘the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the . .
CitedHome Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
CitedRegina v Crook 1991
A journalist appealed against orders excluding the press and public while the judge considered where the jury should sit, and again as to the behaviour of a jury member.
Held: There may be circumstances where it was appropriate to distinguish . .
CitedLeander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
CitedHowell and Others, Regina v CACD 28-Feb-2003
The defendants appealed against convictions for conspiracy to pervert the course of justice. They had been police officers.
An application was made for the disclosure of the skeleton arguments read by the court, Judge LJ said: ‘Subject to . .
CitedGaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
CitedAtkinson and Crook and The Independent v United Kingdom ECHR 3-Dec-1990
(European Commission of Human Rights) The Commission answered a question as to admissibility, namely whether the sentencing of a convicted criminal defendant in private infringed article 10. The complainants were two freelance journalists.
CitedTarsasag A Szabadsagjogokert v Hungary ECHR 14-Apr-2009
The court upheld a complaint by the Hungarian Civil Liberties Union that, contrary to article 10, it had been refused access to details of a complaint in connection with drugs policy on the basis that details of the complaint could not be released, . .
CitedGrupo Interpres Sa v Spain ECHR 7-Apr-1997
(Commission) The applicant sold information about people’s assets to third parties. He complained that the refusal of the Spanish courts to allow him access to the courts’ archives in order to obtain such information violated his rights under . .
CitedMatky v Czech Republic ECHR 10-Jul-2006
(French Text) Members of an environmental group sought access to the original project documents lodged with a government department. They wanted to compare the plans with revised plans which were currently the subject of an environmental assessment. . .
See AlsoGuardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .

Cited by:
CitedPressdram Ltd v Whyte ChD 30-May-2012
The respondent had been involved in company director disqualification proceedings some 12 years earlier. The claimant, publisher of Private Eye sought disclosure of the associated court papers.
Held: The applicant had provided appropriate . .
See AlsoGuardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
CitedH v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedHicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis SC 15-Feb-2017
The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that . .
CitedCherry, 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 . .
CitedBelhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Media, Litigation Practice, Magistrates, Extradition, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.452439

G and C Kreglinger v The New Patagonian Meat and Cold Storage Company: HL 20 Nov 1913

Mortgagor’s collateral dvantage is not a clog

The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The company paid off the loan, but the appellants claimed that they were entitled to continue to exercise their right of first refusal.
Held: The right of first refusal not part of the mortgage transaction; but was a collateral contract entered into as a condition of the company obtaining the loan. The appellants could therefore entitled to enforce it. Whilst courts are loathe to interfere with freedom of contract, they will intervene where evidence showed that terms imposed by a mortgagee are unconscientious. To do so, the courts will consider both the form and substance of the transaction.
Lord Parker of Waddington discussed the survival of the rule against a clog on an equity of redemption, saying that it was not objectionable for a mortgage to confer a collateral advantage upon a mortgagee: ‘The last of the usury laws was repealed in 1854, and thenceforward there was, in my opinion, no intelligent reason why mortgages to secure loans should be on any different footing from other mortgages. In particular, there was no reason why the old rule against a mortgagee being able to stipulate for a collateral advantage should be maintained in any form or with any modification. Borrowers of money were fully protected from oppression by the pains always taken by the Court of Chancery to see that the bargain between borrower and lender was not unconscionable. Unfortunately, at the time when the last of the usury laws was repealed, the origin of the rule appears to have been more or less forgotten, and the cases decided since such repeal exhibit an extraordinary diversity of judicial opinion on the subject. It is little wonder that, with the existence in the authorities of so many contradictory theories, persons desiring to repudiate a fair and reasonable bargain have attempted to obtain the assistance of the Court in that behalf. My Lords, to one who, like myself, has always admired the way in which the Court of Chancery succeeded in supplementing our common law system in accordance with the exigencies of a growing civilization, it is satisfactory to find, as I have found on analysing the cases in question, that no such attempt has yet been successful. In every case in which a stipulation by a mortgagee for a collateral advantage has, since the repeal of the usury laws, been held invalid, the stipulation has been open to objection, either (1) because it was unconscionable, or (2) because it was in the nature of a penal clause clogging the equity arising on failure to exercise a contractual right to redeem, or (3) because it was in the nature of a condition repugnant as well to the contractual as to the equitable right.’ and
‘The nature of the equitable right [to redeem] is so well known that, upon a mortgage in the usual form to secure a money payment on a certain day, it must be taken to be a term of the real bargain between the parties that the property shall remain redeemable in equity after failure to exercise the contractual right. Any fetter or clog imposed by the instrument of mortgage on this equitable right may properly be regarded as a repugnant condition and as such invalid. There are, however, repugnant conditions which cannot be regarded as mere penalties intended to deter the exercise of the equitable right which arises when the time for the exercise of the contractual right has gone by, but which are repugnant to the contractual right itself. A condition to the effect that if the contractual right is not exercised by the time specified the mortgagee shall have the option of purchasing the mortgaged property may properly be regarded as a penal clause. It is repugnant only to the equity and not to the contractual right itself. But a condition that the mortgagee is to have such an option for a period which begins before the time for the exercise of the equitable right has arrived, or which reserves to the mortgagee any interest in the property after the exercise of the contractual right, is inconsistent not only with the equity but with the contractual right itself, and might, I think, be held invalid for repugnancy even in a Court of Law.’
As to the doctrine of precedent: ‘To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. When a previous case has not laid down any principle, but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblances in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance.’ The evolving nature of the equitable jurisdiction is ‘to mould the rules which they apply in accordance with the exigencies at the time’.
Lord Parker explained the decision in Bradley v Carritt: ‘The real question, in my opinion, was whether it [the clause in question] was inconsistent with or repugnant to the contractual right of the mortgagee [quaere, mortgagor] to have his property restored unfettered if he paid the money secured with interest as provided in the agreement, and the consequential equitable right to have the property so restored if he paid his money with interest and costs at any time. On this point there was room for a difference of opinion . . There is really no difficulty in the decision itself. It is merely to the effect that the case was within the principles of Noakes v Rice. Lords Macnaghten, Davey, and Robertson all thought that if the stipulations in question were binding after redemption the mortgagor would not get back his property intact; in other words, that the stipulation was repugnant both to the contractual right and the equity.’
Lord Mersey agreeing, said that the equitable doctrine prohibiting the imposition of a clog on the mortgagor’s right to redeem is ‘like an unruly dog, which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be’.
Viscount Haldane, Lord Chancellor, said: ‘the other and wider principle remains unshaken, that it is the essence of a mortgage that in the eye of a Court of Equity it should be a mere security for money, and that no bargain can be validly made which will prevent the mortgagor from redeeming on payment of what is due, including principal, interest and costs. He may stipulate that he will not pay off his debt, and so redeem the mortgage, for a fixed period. But whenever the right to redeem arises out of the doctrine of equity, he is precluded from fettering it. This principle has become an integral part of our system of jurisprudence and must be faithfully adhered to.’
The issue for decision was: ‘What was the true character of the transaction? Did the appellants make a bargain such that the right to redeem was cut down, or did they simply stipulate for a collateral undertaking, outside and clear of the mortgage, which would give them an exclusive option of purchase of the sheepskins of the respondents. The question is in my opinion not whether the two contracts were made at the same moment and evidenced by the same instrument, but whether they were in substance a single and undivided contract or two distinct contracts.’ The agreement for a right to purchase the respondent’s sheepskins was a collateral bargain ‘the entering into which was a preliminary and separable condition of the loan’.

Viscount Haldane, Lord Parker
[1914] AC 25, [1913] UKHL 1
Bailii
England and Wales
Citing:
CitedNoakes and Co Ltd v Rice HL 17-Dec-1901
Rule Against Clog on equity of Redemption
A mortgage of a leasehold public house contained a covenant with the mortgagee, a brewery, that the mortgagor and his successors in title would not, during the continuance of the leasehold term and whether or not any money should be owing on the . .
ExplainedBradley v Carritt HL 11-May-1903
Shares in a tea company had been mortgaged to secure a loan from a broker on terms that the mortgagor would seek to ensure that the mortgagee should thereafter have sale of the company’s teas. The mortgage contained a covenant that, if the company . .

Cited by:
CitedRegina v Naviede CACD 21-Mar-1997
The defendant appealed from his conviction for dishonesty. He said that he should have allowed hi to represent himself as to certain aspect of his case, but to have legal representation for others.
Held: The judge was right to reject such a . .
AppliedCityland and Property (Holdings) Ltd v Dabrah 1968
The mortgage secured a debt of pounds 2,900 owing by the mortgagor to the mortgagee. The mortgagor covenanted to pay the mortgagee pounds 4,553 by monthly instalments over a six year period. The return to the mortgagee was in the form of a premium . .
CitedBrighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
CitedWarnborough Ltd v Garmite Ltd CA 5-Nov-2003
Warnborough (W) sold real property to Garmite (G), leaving the purchase price outstanding but secured by a mortgage in favour of W. G also granted W an option to repurchase the property. The issue was whether the option to repurchase was ‘a clog on . .
CitedWarnborough Ltd v Garmite Ltd ChD 12-Jan-2006
The claimant sought specific performance under a contract for sale of two leasehold properties. The defendant claimed inter alia that the agreement worked as a clog on the equity of the properties. . .
CitedJones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Contract, Equity

Leading Case

Updated: 09 November 2021; Ref: scu.189952

Pepper (Inspector of Taxes) v Hart: HL 26 Nov 1992

Reference to Parliamentary Papers behind Statute

The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the cost to the employer, or the cost of a school place. Debates in Parliament had discussed this issue, and the parties sought to refer to the debate.
Held: It was not an impeachment of Parliament or an infringement of the Bill of Rights to examine Hansard to resolve issues provided the legislation was ambiguous, obscure or suffered an absurdity, and the material referred to comprised statements by a minister or other promoter of the Bill or supporting material, and the statements referred to were themselves clear. Having so referred to Hansard in this case, the taxable cost was the additional marginal cost of providing the service, the profit the school would normally have made.
Lord Browne-Wilkinson commented on the object of article 9: ‘Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected Members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech) . . In my judgment, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed.’
And: ‘I find it impossible to attach the breadth of meaning to the word ‘question’ which the Attorney-General urges. It must be remembered that article 9 prohibits questioning not only ‘in any court’ but also in any ‘place out of Parliament.’ If the Attorney-General’s submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute ‘questioning’ since all Members of Parliament must speak and act taking into account what political commentators and other will say.’
Given that I do not have to determine for the purposes of my ruling precisely what is meant by ‘place out of Parliament’, I cannot, especially in the light of the Court of Appeal’s statement in Hamilton, construe Lord Browne-Wilkinson’s words as the Claimants suggest. I note also that they were said when rejecting the Attorney General’s submission on a wide meaning of the word ‘question’ and that there appears to have been no argument in Pepper v Hart as to the meaning of ‘place out of Parliament’.

Lord Bridge of Harwich, Lord Emslie, Lord Griffiths, Lord Oliver of Aylmerton and Lord Browne-Wilkinson Lord Mackay of Clashfern L.C., Lord Keith of Kinkel, Lord Griffiths, Lord Ackner
[1992] 3 WLR 1032, [1993] AC 593, [1993] 1 All ER 42, [1992] UKHL 3, [1993] IRLR 33, [1993] RVR 127, [1992] STC 898, [1993] ICR 291
lip, Bailii
Finance Act 1976 23 61 63, Bill of Rights 1688 9
England and Wales
Citing:
AppliedPickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
AppliedRegina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
ConsideredDavis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
ConsideredHadmor Productions Ltd v Hamilton HL 1982
The Court of Appeal was not in general entitled to reverse the decision of the Administrative Court in the grant of discretionary interlocutory relief: ‘it is I think appropriate to remind your Lordships of the limited function of an appellate court . .
OverruledRegina v Secretary of State for Trade, Ex parte Anderson Strathclyde Plc QBD 1983
A proposed takeover had been referred to the Monopolies and Mergers Commission under the 1973 Act. A majority of the Commission recommended against the takeover. The Deputy (acting instead of the Secretary who had an interest) overruled the . .
CitedAsh v Abdy 1678
Lord Nottingham took judicial notice of his own experience when introducing a Bill in the House of Lords. . .
CitedAssam Railways and Trading Co Ltd v Commissioners of Inland Revenue HL 1935
Parties questioned the admissibility before the House of recommendations of a Royal Commission on Income Tax which had preceded an Act and which counsel for the appellants sought to cite as part of the context of intention of Parliament in relation . .
CitedBeswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
ApprovedChurch of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
Appeal fromPepper (Inspector of Taxes) v Hart CA 1991
. .

Cited by:
ConstrainedRegina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
CitedAHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B QBD 26-Feb-2003
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents . .
CitedRegina v Warwickshire County Council, ex parte Johnson HL 10-Feb-1993
The manager of a shop was not necessarily liable for a misleading price indication in the shop. There had been a national price reduction advertisement. A customer came into the shop to try to buy a television under the scheme. The store manager . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedRegina on the Application of G v Westminster City Council QBD 30-Jan-2004
The child sought review of the respondent’s decision not to provide education other than at one school. He had been suspended, but his father refused to allow him to return complaining of the effects of bullying.
Held: The condition of being . .
CitedRegina (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: . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedRegina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
UnwiseRobinson v Secretary of State for Northern Ireland and Others HL 25-Jul-2002
The Northern Ireland Parliament had elected its first minister and deputy more than six weeks after the election, but the Act required the election to be within that time. It was argued that as a creature of statute, the Parliament could not act . .
CitedJackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
CitedIn re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
CitedCountryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
CitedRopaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
CitedThe Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
AppliedHarding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
CitedWright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
CitedBradley 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 . .
CitedL, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 1-Mar-2007
The court considered the proper content of an enhanced criminal record certificate. The claimant said that it should contain only matter relating to actual or potential criminal activity.
Held: As to the meaning of section 115: ‘if Parliament . .
AppliedNational Grid Gas Plc, Regina (on the Application of) v The Environment Agency HL 27-Jun-2007
The Agency sought to impose liability on the appellant to remediate land which had been polluted by the appellant’s predecessor, the East Midlands Gas Board, claiming it to be a responsible as successor.
Held: The appeal succeeded: ‘the . .
CitedHaw and Another v City of Westminster Magistrates’ Court Admn 12-Dec-2007
The defendants appealed convictions for contempt of court, on the basis of having wilfully interrupted the court. The respondent said that no appeal lay.
Held: The statute was ambiguous, and ‘there can be no good reason why a person convicted . .
MentionedOffice of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
CitedKing v The Serious Fraud Office CACD 18-Mar-2008
Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders . .
CitedG, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
CitedAdorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
CitedBUPA Care Homes v Cann; Spillett v Tesco Stores EAT 31-Jan-2006
EAT Practice and Procedure – 2002 Act and Pre-Action Requirements; and Amendment
Whether section 32(4) EA 2002 – original time limit – restricts time for bringing a DDA claim to the primary 3 months period, . .
CitedJTB, Regina v HL 29-Apr-2009
The defendant appealed against his convictions for sexual assaults. He was aged twelve at the time of the offences, but had been prevented from arguing that he had not known that what he was doing was wrong. The House was asked whether the effect of . .
CitedRegina v Deegan CACD 4-Feb-1998
The defendant appealed his conviction for possession of a bladed article in a public place. It was a pocket knife which locked open, but its blade could be retracted on using the mechanism, and did not exceed three inches.
Held: The Court . .
CitedClark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedCatholic Care (Diocese of Leeds) v Charity Commission for England and Wales and Another ChD 17-Mar-2010
The charity appealed against refusal of permission to amend its charitable objects as set out in the memorandum of association. The charity was successful as an adoption agency particularly in placing children who would otherwise have had difficulty . .
CitedPrebble 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 . .
CitedRegina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
CitedFarstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
CitedBloomsbury 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 . .
CitedScottish Widows Plc v Revenue and Customs SC 6-Jul-2011
The taxpayer insurance company had transferred sums from accounts designated as Capital Reserves. The Revenue said that these were properly part of the profit and loss accounts for the respective tax years, and chargeable receipts.
Held: The . .
CitedCart 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 . .
CitedAssange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
CitedGow v Grant SC 24-May-2012
The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did . .
CitedCusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
ConsideredThet v Director of Public Prosecutionsz Admn 19-Oct-2006
The defendant appealed by case stated against his conviction by the magistrates for entering the UK without a passport. He had relied on a false passport povided to him by an agent, and had returned it to the facilitator. He was therefore unable to . .
ConsideredTabnak, Regina v CACD 19-Feb-2007
The defendant appealed against his conviction under section 35 of the 2004 Act, having pleaded guilty after an adverse ruling as to the law. After being refused asylum and several failed appeals he had refused to give assistance in providing the . .
CitedBogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
CitedWhitston (Asbestos Victims Support Groups Forum UK), Regina (on The Application of) v Secretary of State for Justice Admn 2-Oct-2014
The claimants challenged the selection by the defendant of victims of meselothemia as a group were excluded from entitlement to the recovery of success fees and insurance premiums paid by successful claimants from unsuccessful defendants.
CitedBucnys v Ministry of Justice SC 20-Nov-2013
The Court considered requests made by European Arrest Warrants for the surrender under Part 1 of the Extradition Act 2003 of three persons wanted to serve sentences imposed upon their conviction in other member states of the European Union. The . .
CitedChesterton Global Ltd (t/a Chestertons) and Another v Nurmohamed (Victimisation Discrimination: Whistleblowing) EAT 8-Apr-2015
chesteron_nurmohamedEAT201504
EAT VICTIMISATION DISCRIMINATION
Whistleblowing
Protected disclosure
This appeal concerns the meaning of the words ‘in the public interest’ inserted into section 43B(1) of the Employment Rights . .
CitedMakudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
CitedKimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .
CitedIceland Foods Ltd v Berry (Valuation Officer) SC 7-Mar-2018
Air System plant excluded from Rating value
The court was asked whether the services provided by a specialised air handling system, used in connection with refrigerated merchandise in the appellant’s retail store, are ‘manufacturing operations or trade processes’ for rating purposes.
CitedAl-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
CitedCherry, 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 . .
CitedForge Care Homes Ltd and Others, Regina (on The Application of) v Cardiff and Vale University Health Board and Others SC 2-Aug-2017
The court was asked who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Income Tax

Leading Case

Updated: 09 November 2021; Ref: scu.175101

Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales): SC 9 Feb 2015

The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence of the Welsh Assembly, in that it did not relate to any of the subjects listed in paragraph 9 of Part 1 of Schedule 7 to the 2006 Act. Though the Bill was not retrospective in the fullest sense, it would significantly restructure both the consequences of actual or possible negligence or breach of statutory duty committed long ago by compensators, and the terms of and liabilities attaching under insurance policies also underwritten years ago to cover any such negligence or breach of duty. The key question was whether GOWA provides legislative competence for the imposition of liabilities on compensators and insurers.
‘The provision of health services and the organisation and funding of the Welsh Health Service clearly cannot permit the Welsh Assembly to raise monies generally, by relying on the fact that any monies raised from any source increase the funds available for all its spending, including spending on the Health Service. The question is whether the position is different if the monies raised can be said to be specifically intended or hypothecated to provide funds for use in the Health Service. But, if that were sufficient, it would be difficult to see any real limit to the persons on whom or basis on which such charges might be imposed, provided only that the charges were levied on that express basis. The reality is also that, unless the charges are for research, treatment or other services which would not otherwise be undertaken or provided by the National Health Service, even a hypothecated charge is in substance no different from a general charge boosting the Welsh Government’s resources.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Hodge, Lord Thomas
[2015] UKSC 3, [2015] 2 WLR 481, (2015) 143 BMLR 1, [2015] 2 All ER 899, [2015] WLR(D) 67, [2015] HRLR 9, [2015] 1 AC 1016, UKSC 2014/0043, [2015] Lloyd’s Rep IR 474
Bailii, WLRD, Bailii Summary, SC, SC Summary
National Health Service (Wales) Act 2006, Government of Wales Act 2006 108(4)
Wales
Citing:
CitedMartin v Her Majesty’s Advocate SC 3-Mar-2010
The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish . .
CitedEmployers’ Liability Insurance ‘Trigger’ Litigation: BAI (Run Off) Ltd v Durham and Others SC 28-Mar-2012
The court considered the liability of insurers of companies now wound up for mesothelioma injuries suffered by former employees of those companies, and in particular whether the 1930 Act could be used to impose liability. The insurers now appealed . .
CitedImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
CitedAgricultural Sector (Wales) Bill (Attorney General for England and Wales, Reference) SC 9-Jul-2014
‘Her Majesty’s Attorney General for England and Wales has referred to this Court under section 112(1) of the Government of Wales Act 2006 the question of whether, on the proper construction of section 108 and Schedule 7 to the GWA 2006, the . .
CitedHandyside v The United Kingdom ECHR 7-Dec-1976
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 . .
CitedMarckx 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. . .
CitedJohnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
CitedBurden and Burden v The United Kingdom ECHR 29-Apr-2008
(Grand Chamber) The claimants were sisters who had lived together all their lives. They complained of discrimination in their treatment under the Inheritance Tax system as opposed to the treatment of a same sex couple living in a sexual . .
CitedHuitson, Regina (on The Application of) v Revenue and Customs CA 25-Jul-2011
The claimant challenged the lawfulness of HMRC’s enforcement of retrospective amendments to legislation in violation of his human rights. The claimant says that, before the legislation was amended with retrospective effect, he was entitled to relief . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedNicklinson 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 . .
CitedJames 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 . .
CitedAGOSI v The United Kingdom ECHR 24-Oct-1986
Krugerrand coins were seized by the Commissioners and the claimant was unsuccessful in obtaining their restoration under what is now section 152(b) of the 1979 Act. It was argued that the request for restoration of the coins amounted to a . .
CitedGasus Dosier-Und Fodertechnik Gmbh v The Netherlands ECHR 23-Feb-1995
Even where an interference in property rights involved the complete loss of a person’s economic interest in an asset for the benefit of the State, an absence of compensation might still be compatible with Article 1. ‘The Court recalls that the . .
CitedPressos Compania Naviera S A And Others v Belgium ECHR 20-Nov-1995
When determining whether a claimant has possessions or property within the meaning of Article I the court may have regard to national law and will generally do so unless the national law is incompatible with the object and purpose of Article 1. Any . .
CitedBack v Finland ECHR 20-Jul-2004
The claimant was the owner of a substantial debt owed by another individual. However the value of his debt was reduced to a very small level when the debtor entered a statutory scheme for compromise of debts.
Held: It must be open to a . .
CitedGrainger and Others v The United Kingdom ECHR 10-Jul-2012
. .
CitedPaulet v The United Kingdom ECHR 13-May-2014
ECHR Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Narrow scope of review for order confiscating wages from employment obtained using a false passport: violation
Facts – . .

Cited by:
CitedMathieson 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 . .
CitedA and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
CitedScotch 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

Leading Case

Updated: 09 November 2021; Ref: scu.542336

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 parliamentary privilege, and could therefore be prosecuted iin the normal criminal courts.
Held: The appeals failed as to the principle of the question, but any court hearing the case would have to consider whether any item of evidence was used in breach.
Parliamentary privilege is the principle ‘that members of Parliament should be entitled as a matter of incontrovertible right to speak their minds with total freedom. Subject only to self imposed parliamentary ordinance, this is nothing more and nothing less than an absolute, uncircumscribed, and indeed cherished, entitlement.’ In particular ‘the privilege of individual members is concerned with what may be described as their involvement in the legislative process.’ Approved Constitutional reports had recommended that whilst parliamentary privilege remained essential, it should be kept restricted.
‘Submitting a claim for expenses has nothing to do with ‘the need to ensure the member’s entitlement to speak freely without fear’; nor does it involve the exercise of his or her ‘real’ or ‘essential’ functions or his or her ‘core activities’. It is true that a member may need to spend money and recover expenses or allowances in order to perform these functions, but that does not render the incurring and claiming of expenses or allowances a core or essential activity of Parliament: indeed the incurring and claiming of expenses would be, as we have already suggested, classic ancillary activities. If it were otherwise, a member travelling to and from Parliament might be thought to be immune from prosecution for dangerous driving, or evading payment for his rail ticket. In truth, it is impossible to see how subjecting dishonest claims for expenses to criminal investigation would offend against the rationale for parliamentary privilege, or obstruct any member of the House from performing his or her duties.’

Lord Judge LCJ, Neuberger MR LJ,
[2010] EWCA Crim 1910, [2010] WLR (D) 214, [2010] 2 Cr App Rep 34
Bailii
Bill of Rights 1688 9
England and Wales
Citing:
CitedRex v Eliot, Hollis and Valentine 1629
Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in . .
CitedJay 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 . .
Appeal fromRegina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
CitedPrebble 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 . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedSir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .
CitedWellesley v The Duke Of Beaufort; Mr Long Wellesley’s Case 28-Jul-1831
A member of Parliament asserted parliamentary immunity from the consequences of having abducted his child. Lord Brougham LC said: ‘how incumbent it is upon the courts of law to defend their high and sacred duty of guarding the lives, the liberties, . .
CitedStockdale 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 . .
CitedFederation of Tour Operators and Others, Regina (on the Application of) v HM Revenue and Customs and others Admn 4-Sep-2007
The claimants complained that the sudden doubling of Airport Passenger Duty was unlawful since it had not been possible to recover this from customers, and was in breach of the Convention.
Held: The claim failed. The cost to the applicants as . .
CitedToussaint v Attorney General of Saint Vincent and the Grenadines PC 16-Jul-2007
(Saint Vincent and the Grenadines) The claimant complained of the compulsory purchase of his land. He alleged that the compulsory purchase was discriminatory or illegitimate expropriation: an allegation of impropriety. He sought to base this on . .
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedAttorney-General of Ceylon v de Livera PC 1963
A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a . .
CitedPickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedChurch of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
CitedSharma v Brown-Antoine, Deputy Director of Public Prosecutions and others PC 30-Nov-2006
(Trinidad and Tobago) Complaint was made as to a decision to begin professional discliplinary proceedings against a senior member of the judiciary.
Held: Although a decision to prosecute was in principle susceptible to judicial review on the . .
CitedHamilton 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 . .
CitedRegina v Greenaway CC 25-Jun-1992
(Central Criminal Court) The defendant Member of Parliament had faced charges of accepting bribes in return for advancing the interests of a commercial company.
Held: The charges were dismissed on the request of the prosecution after a . .
CitedRegina 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 . .
CitedMcGuinness, Re Application for Judicial Review QBNI 3-Oct-1997
The claimant was an MP from Northern Ireland. As an MP he had been required to swear allegiance to the Crown, but he had refused to do so for his belief in an independent Ireland. He challenged the decision of the Speaker of the House to refuse him . .

Cited by:
Appeal fromChaytor 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 . .
CitedKimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 09 November 2021; Ref: scu.421214

Gillies v Procurator Fiscal, Elgin: HCJ 1 Oct 2008

The police went to the defendant’s flat to find her boyfriend. She refused them access, but when they saw him, the police officers called out that he was under arrest under the 1995 Act, and forced their way past the door and the defendant. The defendant appealed her conviction under the 1967 Act.
Held: The court was asked whether a police officer is entitled, without a warrant, to enter private property against the wishes of the householder in order to detain a person under section 14. It was now accepted that the boyfriend had not yet been arrested. The Act contained a power to use reasonable force to effect an arrest, but no power of entry had been given. The officers had no warrant, and therefore no authority to enter the house. The conviction was quashed.

Lord Wheatley, Lord Reed, Lord Carloway
[2008] ScotHC HCJAC – 55, 2008 GWD 31-476, 2008 SCCR 887, 2008 SCL 1316, 2008 SLT 978, 2009 JC 25, [2008] HCJAC 55
Bailii
Criminal Procedure (Scotland) Act 1995 14, Police (Scotland) Act 1967 41(1)(a)
Scotland
Citing:
CitedBrawls v Walkingshaw HCJ 1994
The court interpreted what was meant by ‘detained’ within the section: ‘The essential element of detention, within the proper meaning of that word, is the intervention of some outside agency to ensure that the person remains where he has been put. . .
CitedEntick 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 . .
CitedGreat Central Railway Co v Bates CA 1921
A police officer has no right to enter land merely because most reasonable householders ‘would not as a rule object if the matter was done bona fide and no nuisance was caused’ . .
CitedCampbell v Vannet 1997
Police officers who had just seen a serious crime (of supplying or offering to supply heroin) being committed from within premises were held to be entitled to force entry to the premises with a view to apprehending the person who was suspected of . .
CitedTurnbull v Scott 1990
Police officers had gone to the appellant’s house to arrest him under section 2 of the 1980 Act. They obtained no response after knocking at the front door, although at one point the appellant appeared at an upper window. Finding the back door ajar, . .
CitedEccles v Bourque 11-Oct-1974
Canlii (Supreme Court of Canada) An action was brought by the appellant against the respondents, three constables on the Vancouver Police Force, for damages for trespass alleged to have been committed when the . .
CitedKuru v State of New South Wales 12-Jun-2008
Austlii (High Court of Australia) Torts – Trespass to land – Power of police to enter private premises – Police officers went to suburban flat after receiving report of male and female arguing – Police treated . .
CitedMorris v Beardmore HL 1981
Parliament does not intend to authorise tortious conduct except by express provision. It is not for the courts to alter the balance between individual rights and the powers of public officials. The right of privacy is fundamental.
Lord Scarman . .
CitedLaporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
CitedHalliday v Nevill 6-Dec-1984
(High Court of Australia) Criminal Law – Arrest – Police officer pursuing disqualified driver into driveway of private dwelling – Arrest in driveway – Occupier’s permission not required – Whether implied licence to enter driveway – Lawfulness of . .
CitedHandyside v The United Kingdom ECHR 7-Dec-1976
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 . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 09 November 2021; Ref: scu.276517

Hurtado v California: 1884

Common Law Not Written in Stone

(US Supreme Court) Matthews J spoke of the need for the common law to move forward: ‘as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.’

Matthews J
(1884) 110 US 516
United States
Cited by:
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, International

Leading Case

Updated: 09 November 2021; Ref: scu.235926

Inland Revenue Commissioners v Joiner: HL 26 Nov 1975

HL Surtax – Tax advantage – Transaction in securities – Company recon- struction – Surplus assets o f old company distributed in voluntary liquidation – Agreement for liquidation providing for agreed methods o f valuation and distribution – Whether (a) whole scheme o f reconstruction, (b) liquidation agreement, (c) distribution in liquidation a transaction in securities – Whether tax advantage a consequence o f any transaction but the liquidation – Income and Corporation Taxes Act 1970 (c. 10), ss. 460 and 46
The phrase ‘a transaction in securities’ does not include the liquidation of a company. Taxpayers entered into a shareholders’ agreement which varied the rights attached to their shares in important respects before putting the company into liquidation. The variations were all necessary steps in order to achieve the taxpayers’ objective, which was to receive the undistributed profits of the company as surplus assets in the liquidation (and therefore free of surtax) while keeping the business itself in existence. The Court of Appeal had held that the liquidation by itself was a transaction in securities. The Revenue did not contend that a straightforward liquidation without any variation of the rights attached to the shares was a transaction in securities, and the House did not hold that it did. All members of the Committee rested their decision on the ground given by Goulding J at first instance, that the variation of rights constituted a transaction in securities and that accordingly the tax advantage was obtained in consequence of the combined effect of a transaction in securities and the liquidation of a company.
It is a legitimate purpose of legislation by Parliament to clarify the law by making it clear in which of two alternative meanings the ambiguous language of an earlier statute was to be understood, but that it would only be if the language of a provision in an existing statute was ambiguous that it would be legitimate to infer that a purpose of the subsequent statute was to remove doubts as to what the law had always been.
Lord Diplock discussed the nature of a consolidating Act: ‘The purpose of a consolidation Act is to remove this difficulty by bringing together in a single statute all the existing statute law dealing with the same subject-matter which forms the general context in which the particular provisions of the Act fall to be construed, so that it will no longer be necessary to seek that context in a whole series of amended and re-amended provisions appearing piecemeal in earlier statutes.
This is the only purpose of a consolidation Act; this is the only ‘mischief’ it is designed to cure. It is true that a consolidation Act is not intended to alter the law as it existed immediately before the Act was passed, but to treat this absence of intention as justifying recourse to the previous legislation repealed by the consolidation Act in order to ascribe to any of the provisions of that Act a meaning different from that which it would naturally bear when read only in the context of the other provisions of the consolidation Act itself, would be to defeat the whole purpose of this type of legislation-to allow the absence of a tail to wag the dog.’

Lord Wilberforce, Viscount Dilhorne, Lord Diplock
[1975] 1 WLR 1701, [1975] UKHL TC – 50 – 449, 50 TC 449, [1975] STC 657, [1975] TR 257, [1975] 3 All ER 1050, [1975] TR 77
Bailii
Finance Act 1960 28
England and Wales
Cited by:
CitedInland Revenue Commissioners v Laird Group plc CA 30-Apr-2002
The taxpayer had sources of foreign income. Arrangements were made to take the benefit through the payment of interim dividends, which it intended to use to set off against liability for advance corporation tax. The Commissioner contended that these . .
CitedInland Revenue Commissioners v Sema Group Pension Scheme Trustees CA 19-Dec-2002
The taxpayers appealed a notice under section 703(3) to counteract the tax advantage received by them from a share buy-back scheme. The scheme was an approved pension scheme, under which the quoted company agreed to buy back its own shares.
CitedHer Majesty’s Commissioners of Inland Revenue v Laird Group plc HL 16-Oct-2003
Was the payment of a dividend in respect of shares ‘a transaction in securities’ or ‘a transaction relating to securities’ within the meaning of section 703.
Held: ‘As a matter of ordinary language, the creation, issue, sale, purchase, . .
CitedCantrell v Wycombe District Council CA 29-Jul-2008
The appellant had bought a house at auction. It had previously been sold by a local authority subject to a covenant by the buyer allowing the authority to nominate tenants. The covenant was said to be binding on successors in title, and was . .
CitedScottish Widows Plc v Revenue and Customs SC 6-Jul-2011
The taxpayer insurance company had transferred sums from accounts designated as Capital Reserves. The Revenue said that these were properly part of the profit and loss accounts for the respective tax years, and chargeable receipts.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Income Tax, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.180845

Barrett and others v Morgan: HL 27 Jan 2000

The landlord served a notice to quit on the head tenant under an understanding that the head tenant would not serve a counter notice. The effect was to determine the head and sub-tenancy. It acted as a notice to quit, and despite the consensual nature of the deal, it was not in law a surrender. Sub-tenants had no protection in such situations. The lacuna was recognised, but parliament had done nothing to provide any such protection. ‘I reject the proposition that the service of a notice to quit by either party by pre-arrangement with the other is ‘a consensual transaction which is tantamount to a surrender’ since unlike a surrender it does not need the consent of the recipient to be effective. The proposition that such a transaction is incapable of determining a sub-tenancy is not tenable and does not gain by the substitution of the pejorative word ‘collusive’ for the word ‘consensual’. ‘

Lord Slynn of Hadley Lord Woolf Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Millett
Times 28-Jan-2000, Gazette 10-Feb-2000, [2000] 2 WLR 285, [2000] UKHL 1, [2000] 2 AC 264, [2000] 1 All ER 481
House of Lords, Bailii
Agricultural Holdings Act 1986
England and Wales
Citing:
ApprovedPennell v Payne CA 1995
The operation of the break clause in a lease will (in the absence of provision to the contrary) have the effect of terminating not just the lease but also the underlease, and any inferior sub-tenancies. . .
Appeal fromBarrett and Others v Morgan CA 30-Jun-1998
An artificial surrender of a head lease with the sole intention of defeating a sub tenancy was not effective and the subtenant became head tenant in their stead. The collusion defeated the ruse. ‘It is unilateral notices to quit that destroy . .
CitedWebb v Russell 1789
The extinguishment of a tenancy by surrender extinguishes also the reversion to any sub-tenancy, so that the remedy for the rent and the covenants attached to the reversion cease with the reversion to which they were annexed. The sub-tenant held the . .
CitedBaron Sherwood v Moody 1952
A head landlord can even by his own unilateral act in serving notice to quit on the head tenant bring a sub-tenancy to an end if the head tenant fails to serve a counter-notice under the Agricultural Holdings Acts. . .
CitedNewlon Housing Trust v Alsulaimen and Another HL 29-Jul-1998
A tenancy which had been terminated by a notice given by one of the joint tenants had expired. It did not come to an end by any deed, and so was not capable of being set aside by a family court in the course of divorce proceedings. The possession . .
CitedRye v Rye HL 1962
Two brothers were in partneship in unequal shares, but acquired a property for use by the business which they held in equal shares. They agreed a parol yearly tenancy between themselves as owners and as partners. After one died his son took over his . .
CitedDoe d Beadon v Pyke 1816
it was argued that a surrender of a lease would annihilate all interests derived under the lease.
Held: The argument failed. It was ‘clear law, that though a surrender operates between the parties as an extinguishment of the interest which is . .
CitedMellor v Watkins 1874
Allen held a yearly tenancy of premises subject to a yearly sub-tenancy of part. The sub-tenancy was afterwards acquired by the defendant. Allen surrendered his tenancy to the freeholder who re-let the premises to the plaintiff. Neither the tenancy . .
CitedPhipos v G and B Callegari 1910
(Obiter) The service of an upwards notice to quit on a head landlord by a head tenant had the same effect on a sub-tenancy as a surrender. . .
OverruledSparkes v Smart 1990
A notice to quit was served by the head landlord in collusion with the head tenant. . .

Cited by:
Appealed toBarrett and Others v Morgan CA 30-Jun-1998
An artificial surrender of a head lease with the sole intention of defeating a sub tenancy was not effective and the subtenant became head tenant in their stead. The collusion defeated the ruse. ‘It is unilateral notices to quit that destroy . .
CitedPW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD 8-Aug-2003
The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
CitedBellcourt Estates Ltd v Adesina CA 18-Feb-2005
The landlord sought to recover arrears of rent. The tenant said that she had surrendered the lease of the properties. The judge had held that she ceased to occupy the premises from November 2000, after which the landlord did not send a demand for . .
CitedBellcourt Estates Ltd v Adesina CA 18-Feb-2005
The landlord sought to recover arrears of rent. The tenant said that she had surrendered the lease of the properties. The judge had held that she ceased to occupy the premises from November 2000, after which the landlord did not send a demand for . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agriculture, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.159035

Wang Yam, Regina (on The Application of) v Central Criminal Court and Another: SC 16 Dec 2015

The appellant was to apply to the ECHR challenge the fairness of his trial because it was held partially in camera. The UK resisted this application. The appellant sought to be permitted in his response to disclose and refer to contents of the evidence given in camera. The Supreme Court was now asked whether the English courts had any discretionary power in any circumstances to refuse to permit the appellant to do this at this stage of the proceedings before the ECHR,
Held: The appeal failed. What was to be disclosed was first an issue for he ECHR which might make a request: ‘the inter-play between articles 34 and 38. The European Court of Human Rights has a central role in deciding what material should be disclosed to it: see especially the passages italicised in the quotations from the judgments in Janowiec and Al Nashiri set out in paras 29 and 32 above. A suggestion of breach of article 34 is a matter for the European Court of Human Rights to consider under article 38. It by no means follows that the court will always order disclosure, even of secret material which the alleged victim has never seen, and still less of in camera material which the alleged victim has seen and addressed. On the contrary, the European Court of Human Rights recognises the sensitivity of national security considerations, and the particular competence – one might add responsibility – of national authorities in handling material affecting national security or the safety of witnesses or others. Thus, in deciding whether to order that material withheld by governmental authorities from an alleged victim should be disclosed to it, the European Court of Human Rights will consider the independence and thoroughness of the domestic procedure for reviewing the authorities’ decision. It will consider in that light whether any and if so what further disclosure should be made. It will by no means necessarily conclude that any further disclosure was required.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed, Lord Toulson
[2015] UKSC 76, [2016] HRLR 3, [2015] WLR(D) 526, [2016] 2 WLR 19, [2016] 1 Cr App R 17, [2016] AC 771, UKSC 2015/0044
Bailii, Bailii Summary, WLRD, SC, SC Summary
European Convention on Human Rights 34 38
England and Wales
Citing:
See AlsoYam, Regina v CACD 28-Jan-2008
An order had been made for the trial of the defendant on a charge of murder to be held excluding both press and public. The Order had been made in the interests of national security and for the protection of the identity of a witness or other . .
Appeal fromYam, Regina (on The Application of) v Central Criminal Court and Another Admn 31-Oct-2014
The claimant had been convicted of murder after evidence was given in camera. He sought to apply to the ECHR challenging the fairness of the trial, arguing that he needed and shoudl be free to use the material given in camera.
Held: The . .
CitedSisojeva And Others v Latvia ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 8; No violation of Art. 34; Non-pecuniary damage – financial award; Costs and expenses – claim rejected. . .
CitedYam, Regina v CACD 28-Jan-2008
An order had been made for the trial of the defendant on a charge of murder to be held excluding both press and public. The Order had been made in the interests of national security and for the protection of the identity of a witness or other . .
CitedYam v Regina CACD 5-Oct-2010
The defendant appealed against his conviction for murder saying that since part of the trial had been in camera the result was unsafe.
Held: The appeal failed. The Court addressed submissions advanced on his behalf indicating how substantially . .
CitedAl Nashiri v Poland (Chamber Judgment) ECHR 24-Jul-2014
. .
CitedFaraz v Regina CACD 21-Dec-2012
The defendant appealed from his convictions for possession and dissemination of terrorist related publications, saying that the judge should not have admitted evidence of the possession by named terrorist offenders of material similar or identical . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
CitedJanowiec And Others v Russia ECHR 21-Oct-2013
ECHR Grand Chamber – Article 3
Inhuman treatment
Positive obligations
Alleged failure adequately to account for fate of Polish prisoners executed by Soviet secret police at Katyn in 1940: no . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional, Criminal Evidence

Leading Case

Updated: 09 November 2021; Ref: scu.556981

HP Bulmer Ltd and Another v J Bollinger Sa and others: CA 22 May 1974

Necessity for Reference to ECJ

Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. But if decided the other way, it would mean that the trial would have to go its full length. It would not in those circumstances be ‘necessary’ for a preliminary ruling to be sought. When the facts are investigated, it might turn out to have been quite unnecessary. For this reason, Lord Denning concluded that as a rule it is only after the facts are ascertained that a determination can be made that a reference is necessary.
Denning described the effect of the EC Treaty: ‘The first and fundamental point is that the Treaty concerns only those matters which have a European element, that is to say, matters which affect people or property in the nine countries of the Common Market besides ourselves. The Treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.’
. . And: ‘ In the task of interpreting the Treaty, the English Judges are no longer the final authority. They no longer carry the law in their breasts. They are no longer in a position to give rulings which are of binding force. The supreme tribunal for interpreting the Treaty is the European Court of Justice, at Luxembourg. Our Parliament has so decreed.’
Stephenson LJ discussed article 177 saying: ‘(i) The rulings which the European Court has jurisdiction to give under Article 177(1) are not strictly ‘preliminary’. They do not have to be given ‘in limine’ before the Court of the Member State crosses the threshold and begins to hear a dispute, but they can be given at any time before the Court finishes hearing the dispute by giving judgment. The ruling is in that sense ‘prejudicial’, not necessarily preliminary, though it may be.
(ii) Article 177(2) confers a power, whereas Article 177(3) imposes an obligation. A lower Court of a Member State ‘may’ request a ruling, a final Court ‘shall’. The contrast in the language is as clear as in the section of the English statute which this Court construed in Re Baker (1890) 44 Ch. Div. 262, and has the same effect: the lower Court is trusted with a discretion, the final Court is not. All attempts to blur the distinction between the power of the one and the duty of the other when a question is raised under Article 177(1) break down on the different wording of Article 177(2) and (3). Section 2(1) of the European Communities Act 1972 distinguishes powers from obligations, and so by this wording does Article 177, by whatever canon of construction it is interpreted. The European Court has always recognised that distinction; e.g. in Da Costa en Schaake N.V. and Others v. Nederlande Belasting -administratie (1963) 2 C.M.L.R. 224, 237; and has recently emphasised it and described the power given to the national Courts by Article 177(2) as conferring on them ‘the widest discretion’, which no domestic Court of Appeal can fetter: Firma Rheinmuhlen Dusseldorf v. Enfuhr und Vorratsstelle fur Getreide und Futtermittal, case 166/73 shortly reported in The Times Newspaper of 16th February 1974; to which my Lord has already referred,
(iii) The only questions which the Courts of a Member State can, or in some cases must, refer to the European Court are questions of law within Article 177(1) on which decisions are necessary to enable them to give judgment. If they consider that they can give judgment in the dispute in which the question is raised without deciding the question, they need not and indeed must not trouble the European Court by requesting a ruling or bringing the matter before it. Section 3(1) of the 1972 Act recognises that questions within Article 177(1) are questions of law and may be for determination by our Courts without referring them to the European Court. That is how the Courts of Member States have rightly proceeded, including English Judges, Mr. Justice Whitford among them: Lerose Ltd. v. Hawick Jersey International Ltd. (1972) 12 C.M.L.R. 83.’

Lord Denning MR, Stamp, Stephenson LJJ
[1974] EWCA Civ 14, [1974] 2 All ER 1226, [1974] 3 WLR 202, [1974] Ch 401
Bailii
Regulation 816/76 30, Regulation 817/70 12, European Community Act 1972 2(1) 83, Treaty of Rome 177
England and Wales
Citing:
CitedVine Products Ltd v Mackenzie and Co Ltd (the Sherry Case) ChD 1969
Assorted sherry producers and shippers to write to producers and importers of ‘British Sherry’ asking them to stop using the word ‘sherry’ other than in relation to wines emanating from the Jerez district of Spain. Those producers and importers to . .
CitedBollinger v Costa Brava Wine Co Ltd 1960
Intruders into the market brought into England a wine somewhat similar to Champagne. It had been produced in the Costa Brava district of Spain. They marketed it under the name ‘Spanish Champagne’. The French growers and shippers brought an action to . .
CitedJohn Walker and Sons Ltd v Henry Ost and Co Ltd ChD 1970
The plaintiff whisky distiller claimed in passing-off against the defendant who supplied bottles and labels to a distiller in Ecuador.
Held: An injunction was granted. Having cited from Singer v Loog, the court added: ‘I would be slow to . .
CitedDa Costa En Schaake Nv, Jacob Meijer Nv, Hoechst-Holland Nv v Netherlands Inland Revenue Administration ECJ 27-Mar-1963
ECJ (Preliminary Ruling ) 1. The obligation imposed by the third paragraph of article 177 of the EEC Treaty upon national courts or tribunals of last instance may be deprived of its purpose by reason of the . .
CitedVan Gend En Loos v Administratie Der Belastingen ECJ 5-Feb-1963
LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any . .
CitedHessische Knappschaft v Maison Singer And Sons ECJ 9-Dec-1965
Procedure – 1. Since the right to determine the questions to be brought before the court devolves upon the court or tribunal of the member state alone, the parties may not change their tenor or have them declared to be without purpose.
2. The . .
CitedFratelli Grassi Fu Davide v Italian Finance Administration. (Questions Referred To The Court For A Preliminary Ruling) ECJ 15-Jun-1972
ECJ According to article 177 of the Treaty it is for the national court and not the parties to the main action to bring a matter before the court of justice.
Since the power to formulate the questions to be . .

Cited by:
CitedCommissioners of Customs and Excise v Aps Samex 1983
It is generally right for the court to find the facts before referring questions of law to the European Court of Justice.
Bingham J restated the four requirement sfor a reference set out in Bulmer, saying: ‘(1) Will the point be substantially . .
CitedFisher and Others v Revenue and Customs FTTTx 14-Aug-2014
FTTTx Income Tax – Anti-avoidance – transfer of assets abroad code – s739 ICTA 1988 – appellants were shareholders in UK bookmaker which transferred its telebetting business to Gibraltar – purpose of avoiding . .
AppliedCoast Telecom Ltd v Revenue and Customs FTTTx 11-Apr-2012
Procedure – application for stay pending determination of references to CJEU – whether First-tier Tribunal bound by Mobilx – yes – whether determination of references would materially assist determination of appeal – no – whether expedient to order . .
CitedThe Number (UK) Ltd and Another v Office of Communications CAT 24-Nov-2008
. .
CitedVehicle and Operator Services Agency v Jones (Nell) Admn 5-Oct-2005
The Agency appealed against dismissal of its allegation that the defendant had wrongfully withdrawn his tachograph record. He had lifted the top of the tachograph which had the effect if disengaging the marker without actually removing the record . .
CitedFage UK Ltd and Another v Chobani UK Ltd and Another CA 28-Jan-2014
Lewison LJ said: ‘Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.262729

Feather v The Queen: 1865

Mr Feather had invented way of protecting ships against shot and obtained an exclusive patent. The Crown then had a ship constructed in a way that infringed the patent. As patentee Mr Feather asked for recompense; by petition of right he asked for pounds 10,000 as compensation for the damage he had suffered. Much of the case was concerned with whether an exclusive patent granted by the Crown barred free use by the Crown of the method revealed by the patent.
Held: It did not. As to whether a petition of right could be used against the Crown in respect of the alleged wrong, the court (obiter) held that Tobin was correct.
Cockburn CJ said: ‘Now, apart altogether from the question of procedure, a petition of right in respect of a wrong, in the legal sense of the term, shews no right to legal redress against the Sovereign. For the maxim that the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done to a subject by the authority of the Sovereign. For, from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong. For to authorize a wrong to be done is to do a wrong; inasmuch as the wrongful act, when done, becomes, in law, the act of him who directed or authorized it to be done. It follows that a petition of right which complains of a tortious act by the Crown, or by a public servant by the authority of the Crown, discloses no matter of complaint which can entitle the petitioner to redress. As in the eye of the law no such wrong can be done, so, in law, no right to redress can arise; and the petition, therefore, which rests on such a foundation falls at once to the ground. Let it not, however, be supposed that a subject sustaining a legal wrong at the hands of the minister of the Crown is without a remedy. As the Sovereign cannot authorize wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown.’ and

‘It is established on the best authority that, in construing grants from the Crown, a different rule of construction prevails from that by which grants from one subject to another are to be construed. In a grant from one subject to another, every intendment is to be made against the grantor, in favour of the grantee, in order to give full effect to the grant; but in grants from the Crown an opposite rule prevails. Nothing passes except that which is expressed, or which is matter of necessity and unavoidable intendment in order to give effect to the plain and undoubted intention of the grant. And in no species of grant does this rule of construction more especially obtain than in grants which emanate from and operate in derogation of, the prerogative of the Crown.’

Cockburn CJ
(1865) 6 B and S 257
England and Wales
Citing:
CitedTobin v The Queen 1864
The Commander of a Queen’s ship, employed in the suppression of the slave trade on the coast of Africa, seized a schooner belonging to the suppliant, which he suspected of being engaged in slave traffic. It being inconvenient to take the ship to . .

Cited by:
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
CitedCrown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.267402

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 appeal was allowed. The debenture, although expressed to grant the bank a fixed charge over Spectrum’s book debts, in law granted only a floating charge. The Siebe Gorman case was incorrect and could not stand. A seven man House considered whether it was appropriate to overrule an established case, upon which so many commercial decisions and arrangements were founded. It was, but it was not proper to overrule the case only prospectively.
Lord Nicholls of Birkenhead said: ‘The essence of the principled argument against prospective overruling is that in this country prospective overruling is outside the constitutional limits of the judicial function. It would amount to the judicial usurpation of the legislative function. Power to make rulings having only prospective effect, it is said, is not inherent in the judicial role. A ruling having only prospective effect cannot be characterised as merely a less extensive form of overruling than overruling with both retrospective and prospective effect. Prospective overruling robs a ruling of its essential authenticity as a judicial act. Courts exist to decide the legal consequences of past events. A court decision which takes the form of a ‘pure’ prospective overruling does not decide the dispute between the parties according to what the court declares is the present state of the law. ‘ However ‘If, altogether exceptionally, the House as the country’s supreme court were to follow this course I would not regard it as trespassing outside the functions properly to be discharged by the judiciary under this country’s constitution. Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times. ‘Never say never’ is a wise judicial precept, in the interest of all citizens of the country.’
He discussed the possibility of judge made law: ‘Judges have a legitimate law-making function. It is a function they have long exercised. In common law countries much of the basic law is still the common law. The common law is judge-made law. For centuries, judges have been charged with the responsibility of keeping this law abreast of current social conditions and expectations.’

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2005] 3 WLR 58, [2005] 2 AC 680, [2005] 4 All ER 209, [2005] All ER (D) 368, [2005] 2 Lloyds Rep 275, [2005] 2 BCLC 269, [2005] BCC 694, [2005] UKHL 41, Times 31-Jul-2005
Bailii, House of Lords
England and Wales
Citing:
CitedGreat Northern Railway Co v Sunburst Oil and Refining Co 1932
(US Supreme Court) The Constitution neither prohibits nor requires prospective overruling. The Federal Court, Cardoza J said, ‘has no voice upon the subject.’ . .
CitedWest Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
CitedDonoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
CitedBanco Popolare di Cremona v Agenzia Entrate Uffficio Cremona ECJ 17-Mar-2005
A ruling of the European Court of Justice might be subject to a temporal limitation that the ruling should not take effect until a future date, namely, when the State had had a reasonable opportunity to introduce new legislation. . .
Appeal fromNational Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
CitedLaunchbury v Morgans HL 9-May-1972
The owner of a car appealed against a ruling that she was responsible for injury suffered by the three respondents who had been passengers in the car when it crashed. The owner had not been with them. The care was driven by her husband with her . .
OverruledSiebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .
CitedRegina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
CitedMiliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
CitedLinkletter 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.’ . .
CitedGolak Nath v State of Punjab 1967
(Supreme Court of India) The court considered whether it had jurisdiction to make a rulinging which was prospective only.
Held: The court reversed two earlier decisions of its own in circumstances where meanwhile constitutional amendments had . .
CitedChevron 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 . .
CitedDefrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
CitedMarckx 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. . .
CitedIndia Cement Ltd v State of Tamil Nadu 1990
(Supreme Court of India) The court found that it had jurisdiction to make rulings of retrospective effect only. Non-retroactive effect may be given to a ruling which decides an issue for the first time. . .
CitedRe Edward and Edward 1987
(Saskatchewan Court of Appeal) The court rejected the idea of making rulings of prospective effect only. Prospective overruling would be a ‘dramatic deviation from the norm in both Canada and England’. Bayda CJS said ‘the most cogent reason for . .
CitedMurphy v Attorney General 1982
(Supreme Court of Ireland) The Supreme Court held that certain taxation provisions were unconstitutional and void. The court rejected an argument that it was for the courts to say whether these statutory provisions should be held to be invalid . .
CitedArthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
CitedReference re Language Rights under the Manitoba Act 1870 1985
(Supreme Court of Canada) The court declined to give retroactive effect to its decision on the constitutional invalidity of all statutes and regulations of the Province of Manitoba not printed and published in both English and French. A declaration . .
CitedRegina v Governor HM Prison Brockhill, ex parte Michelle Carol Evans (No 2) CA 19-Jun-1998
The plaintiff was serving a sentence of imprisonment. Her detention was correctly calculated in accordance with the law as understood. That method was later disapproved when the Divisional Court laid down (everyone has assumed correctly) a different . .
CitedRegina v Governor of Her Majesty’s Prison Brockhill ex parte Evans (No 2) HL 27-Jul-2000
The release date for a prisoner was calculated correctly according to guidance issued by the Home Office, but case law required the guidance to be altered, and the prisoner had been detained too long. The tort of false imprisonment is one of strict . .
CitedRegina (Bidar) v Ealing London Borough Council and Another ECJ 15-Mar-2005
Europa (Grand Chamber of the Court of Justice of the European Union) Citizenship of the Union – Articles 12 EC and 18 EC – Assistance for students in the form of subsidised loans – Provision limiting the grant of . .
CitedGoodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedFitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
CitedHa 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 . .
CitedTailby v Official Receiver HL 1888
A creditor can create, for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence.
Lord Macnaghten said: ‘It was admitted by the learned counsel for the respondent, that a trader . .
CitedCarse v Coppen IHCS 8-Dec-1950
The court considered the inability to create a floating charge over a company’s assets in Scots law. It was conceded that a company registered in Scotland could not create a valid and effectual floating charge over its assets in Scotland, but it was . .
CitedIn Re Keenan Bros Ltd 1986
(Supreme Court of the Republic of Ireland) A debenture conferred a fixed charge on book debts. It specifically provided that withdrawals from the account to which the proceeds of the book debts had to be credited might only be made with the prior . .
CitedAgnew and Kevin James Bearsley v The Commissioner of Inland Revenue, and Official Assignee for the Estate In Bankruptcy of Bruce William Birtwhistle and Mark Leslie Birtwhistle PC 5-Jun-2001
(New Zealand) A charge had been given by a company over its book debts. The charge was expressed to create a fixed charge over debts uncollected when a receiver was appointed, so that on collection they became payable to the bank. Until the receiver . .
CitedWestminster Bank Ltd v Hilton HL 1926
As against the money of the customer’s in the banker’s hands the relationship between banker and customer is that of principal and agent.
Lord Atkinson said: ‘It is well established that the normal relation between a banker and his customer . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
CitedRegina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
CitedRondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
CitedMalik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
CitedSharp v Thomson HL 1997
A floating charge was given over the whole of a company’s property which might from time to time be ‘comprised in our property and undertaking’. The charge terms echoed the section which allows a company to create a charge ‘over all or any part of . .
CitedHalesowen Presswork and Assemblies Ltd v Westminster Bank Ltd CA 1971
The relationship of banker and customer was a single relationship the situation was not one of lien. Buckley LJ said: ‘Nor is it a set-off situation, which postulates mutual but independent obligations between the two parties. It is an accounting . .
CitedHindcastle Ltd v Barbara Attenborough Associates Ltd and Others HL 22-Feb-1996
The guarantor of an original tenant under the lease remains liable after the disclaimer the lease on insolvency. The disclaimer operates to determine the lease altogether with the result that the landlord’s reversion is accelerated. ‘In order to . .
CitedLipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .
CitedIn Re New Bullas Trading Ltd CA 12-Jan-1994
A company debenture, which purported to create a fixed charge on book debts, and a second floating charge over the proceeds when paid, was valid and effective to create a fixed charge. The chargee was not a bank, and therefore no facility could be . .
CitedIn re A Company (No 005009 of 1987); Ex parte Copp 1989
Knox J declined to look at evidence about an agreed overdraft limit, regarding it as a ‘collateral arrangement’. He said: ‘this is a type of transaction in respect of which judicial precedent is a particularly valuable guide to the commercial . .
CitedSalomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
CitedIn re Panama New Zealand and Australian Royal Mail Co 1870
The company had charged its ‘undertaking and all sums of money arising therefrom’.
Held: ‘undertaking’ meant ‘all the property of the company, not only which existed at the date of the debenture, but which might afterwards become the property . .
CitedIn re Colonial Trusts Corporation CA 13-Dec-1880
A company formed for the purchase and management of land, and which was empowered by articles to borrow money for the purposes of the company provided that the amount borrowed should not at any time exceed the amount of the unpaid subscribed . .
CitedEvans v Rival Granite Quarries Ltd CA 1910
The court discussed the nature of a floating charge, Buckley LJ describing it as: ‘A floating security is not a future security; it is a present security, which presently affects all the assets of the company expressed to be included in it. On the . .
CitedIn re Yorkshire Woolcombers Association Ltd CA 2-Jan-1903
Nature of Company’s Debenture Charge
The court considered the nature of a debenture charge. Romer LJ said: ‘I certainly do not intend to attempt to give an exact definition of the term ‘floating charge’, nor am I prepared to say that there will not be a floating charge within the . .
CitedIllingworth v Houldsworth HL 1904
A clause in a floating charge allowing a company to continue to trade in the assets charged: ‘contemplates not only that it should carry with it the book debts which were then existing, but it contemplates also the possibility of those book debts . .
CitedIn Re Portbase Clothing Ltd; Mould v Taylor 1993
The company had given two debentures, one fixed and one floating. Their priority was fixed by a deed of priority. On insolvency the liquidator sought direction as to the application of the assets.
Held: The deed made the bank’s floating charge . .
CitedRe: A Company (No. 005009 of 1987), ex parte Copp ChD 1988
MC Bacon Ltd had borrowed money from a bank. The loan was unsecured. The company got into financial difficulty. The bank commissioned a report on the company’s financial affairs; and insisted on the grant of a debenture to secure the company’s . .
CitedWilliam Gaskell Ltd v Highley 1994
. .
ApprovedSupercool Refrigeration and Air Conditioning v Hoverd Industries Ltd ChD 1994
(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:’ a requirement to pay the proceeds of the book debts . .
CitedIn re Florence Land and Public Works Co 1878
The court considered a floating charge: ‘The question we have to decide must be decided, like all other questions of the kind, having regard to the surrounding circumstances under which the instrument was executed, and especially the respective . .
CitedRe Holidair Ltd 1994
(Supreme Court of Ireland) The court considered whether a debenture created a floating charge over its book debts: ‘I am satisfied, accordingly, that the correct construction of the clause is that the trustee had a discretion to determine into what . .
CitedWelsh Development Agency v Export Finance Co Ltd CA 1992
The court was asked whether a transaction relating to goods between an exporter and the defendant, as a financier, associated with sales by the exporter to third-party purchasers, amounted to a true sale by the exporter to the defendant or was . .
At First InstanceNational Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .

Cited by:
CitedLymington Marina Ltd v MacNamara and others CA 2-Mar-2007
A share in a marina had been inherited by one brother whose application to grant successive sub-lcences of it to the other two was rejected by the marina, who said that this was not permitted. The marina appealed a finding that it had to make its . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedWillers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .
CitedBorwick Development Solutions Ltd v Clear Water Fisheries Ltd CA 1-May-2020
Only Limited Ownership of pond fish
BDS owned land with closed fishing ponds. They sold the land to the respondents, but then claimed that the fish, of substantial value, were not included in the contract. The court as asked whether the captive fish were animals ferae naturae or . .
CitedBlack, 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.

Banking, Insolvency, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.228273

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 jurisdiction to try them because of parliamentary privilege.
Held: The appeals were dismissed. Neither Article 9 nor the exclusive jurisdiction of the House of Commons poses any bar to the jurisdiction of the Crown Court to try the Appellants.
Article 9 is concerned primarily to ensure the freedom of speech and debate within the Houses of Parliament and its committees. To have the benefit of privilege an activity must be such that its absence would impact adversely on the Houses’ core or essential businesses. The claiming of expenses did not fall within that category.
As to the exclusive jurisdiction argument this had now been substantially abandoned by Parliament both as to administrative matters such as these and even as to criminal acts within the Houses.
Lord Phillips considered the concept of ‘exclusive cognisance’, saying: ‘This phrase describes areas where the courts have ruled that any issues should be left to be resolved by Parliament rather than determined judicially. Exclusive cognisance refers not simply to Parliament, but to the exclusive right of each House to manage its own affairs without interference from the other or from outside Parliament. The boundaries of exclusive cognisance result from accord between the two Houses and the courts as to what falls within the exclusive province of the former. Unlike the absolute privilege imposed by article 9, exclusive cognisance can be waived or relinquished by Parliament.’

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Collins, Lord Kerr, Lord Clarke
[2010] UKSC 52, [2010] WLR (D) 311, UKSC 2010/0195, [2011] 1 Cr App R 22, [2010] 3 WLR 1707, [2011] 1 All ER 805, [2011] 1 AC 684
Bailii, Bailli Summary, WLRD, SC Summary, SC
Theft Act 1968 17(1)(b), Bill of Rights 1689 9
England and Wales
Citing:
At Crown CourtRegina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
CitedRex v Eliot, Hollis and Valentine 1629
Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in . .
CitedRex v Lord Abingdon 1794
A Member of Parliament chose to have his earlier speech in the House re-published ‘under his authority and sanction . . and at his expense’.
Held: Statements made outside Parliament are not protected by absolute privilege even if they simply . .
CitedRex v Creevey Esq MP 1813
A statement made out of Parliament is not to be protected by its absolute privilege even if what is said simply repeats what was said inside the House.
A member of the House of Commons may be convicted upon an indictment for a libel in . .
CitedStockdale 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 . .
CitedWason v Walter; ex parte Wason QBD 1868
Defamation proceedings were begun in respect of newspaper reports of debates in Parliament.
Held: By analogy with reports of judicial proceedings, that fair and accurate reports of parliamentary proceedings were privileged. It was of paramount . .
CitedRex v Bunting 1885
Conspiracy to Bribe is Common Law Offence
(Supreme Court of Ontario) A conspiracy to bring about a change in the Government of Ontario by bribing members of the Legislative Assembly to vote against the Government was an indictable offence at common law committed at the time of the . .
CitedCuristan v Times Newspapers Ltd CA 30-Apr-2008
The court considered the availability of qualified privilege for reporting of statements made in parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the . .
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedAttorney-General of Ceylon v de Livera PC 1963
A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a . .
CitedStopforth v Goyer 1978
(High Court of Ontario) A claim was made for defamation in remarks made by the defendant about the plaintiff to media representative who were present in parliament, just after he left the Ottawa chamber at the conclusion of the question period. The . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedP V Narashimo Rao v State 17-Apr-1998
(Supreme Court of India) Members of Parliament were protected by privilege from prosecution for bribery in respect of voting in parliamentary proceedings. . .
CitedPrebble 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 . .
CitedHutchinson v Proxmire 26-Jun-1979
(United States Supreme Court) The petitioner had been funded by the state to carry out research on aggression in certain animals, particularly monkeys. He complained of criticism of his work decsribing it as wasteful.
Held: Efforts to . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedWellesley v Duke of Beaufort 1827
A member of Parliament claimed parliamentary immunity from the consequences of having abducted his child.
Held: The court discussed the origins of the court’s inherent jurisdiction over children and the infirm. Lord Eldon LC said: it belongs . .
CitedWellesley v The Duke Of Beaufort; Mr Long Wellesley’s Case 28-Jul-1831
A member of Parliament asserted parliamentary immunity from the consequences of having abducted his child. Lord Brougham LC said: ‘how incumbent it is upon the courts of law to defend their high and sacred duty of guarding the lives, the liberties, . .
CitedEdward Kielley v William Carson, John Kent, And Others PC 23-May-1842
The House of Assembly of the Island of Newfoundland does not possess, as a legal incident, the power of arrest, with a view of adjudication on a contempt committed out of the House; but only such powers as are reasonably necessary for the proper . .
CitedRegina 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 . .
CitedRex v Graham-Campbell, Ex parte Herbert 1935
Mr A P Herbert had laid two informations at Bow Street Police Station for summonses against fifteen named Members of Parliament, who were members of the Kitchen Committee of the House of Commons and the manager of the Refreshment Department of the . .
CitedDemicoli v Malta ECHR 27-Aug-1991
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (six month period); Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
CitedMcGuinness, Re Application for Judicial Review QBNI 3-Oct-1997
The claimant was an MP from Northern Ireland. As an MP he had been required to swear allegiance to the Crown, but he had refused to do so for his belief in an independent Ireland. He challenged the decision of the Speaker of the House to refuse him . .
Appeal fromChaytor 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 by:
CitedMereworth v Ministry of Justice ChD 23-May-2011
The claimant’s father had been granted the hereditary title of Baron of Mereworth. The claimant having inherited the title objected to the refusal to issue to him a writ of summons to sit in the House of Lords.
Held: The claim was struck out . .
CitedKimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Leading Case

Updated: 09 November 2021; Ref: scu.426896

Martin v Her Majesty’s Advocate: SC 3 Mar 2010

The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish Parliament and the challenge failed. The section set out to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff was defined by the penalties which he can impose and his powers are quintessentially matter of Scots criminal law. As a rule of Scots criminal law, it did not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998. It was a change in procedure.
Lord Walker said that the expression ‘relates to’ in section 29(2)(b) and (3) was ‘familiar in this sort of context, indicating more than a loose or consequential connection, and the language of section 29(3), referring to a provision’s purpose and effect, reinforces that.’

Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
[2010] UKSC 10, UKSC 2009/0127, 2010 SCL 476, 2010 SLT 412, 2010 SC (UKSC) 40
Bailii, Times, SC, SC Summ, Bailii Summary
Scotland Act 1998 29(2)(b), Criminal Proceedings etc (Reform)(Scotland) Act 2007 45
Scotland
Citing:
CitedLogan and Another v Procurator Fiscal HCJ 2-Jul-2008
The appellant challenged sentences for driving whilst disqualified. The defendant questioned the extent of the legislative competence of the Scottish Parliament under judicial scrutiny on grounds other than compliance with Convention rights. . .

Cited by:
CitedJude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
CitedImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
CitedLocal Government Byelaws (Wales) Bill 2012 – Reference By The Attorney General for England and Wales SC 21-Nov-2012
Under the 1998 and 2006 Acts, the Welsh Assembly was empowered to pass legislation subject to confirmation by the English Parliament Secretary of State. The Local Government Byelaws (Wales) Bill 2012 was passed by the Assembly and purported to . .
CitedRecovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
CitedThe Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing

Leading Case

Updated: 09 November 2021; Ref: scu.402004

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 the company, and a motion was made to discharge the order of the Lord Chancellor on the ground of his interest in the matter rendering it void.
Held: The Master of the Rolls was of opinion that the motion ought to be refused with costs.
When the Lord Chancellor is a party to a suit, the bill is addressed to the King, and the cause is heard by the Master of the Rolls; but the decree is formally and technically completed, made final, and enrolled as the decree of the King. But where a public company, in which the Lord Chancellor has shares, are suitors, the bill cannot properly be addressed to the Queen in Chancery.
It is a general rule that no one ought to be a judge in his own cause, and no Judge ought, by himself or his deputy, to hear and determine a cause, or make an order, or do any judicial act, in a cause in which he has a personal interest ; but even in a case of disputed interest, a Judge is not incapacitated from making an order, if, by refusing to do so, justice would be denied.
There is not, and cannot, in any case, be an incapacity to make any orderor do any act in a matter within the proper, peculiar and exclusive jurisdiction of a Judge’s office, if such order or act be necessary to prevent a failure of justice. Whatever a Judge’s interest may be, if justice cannot be had, without an act or order of his, he cannot lawfully refuse to do the act, or make the order required. In cases where questions of this kind arise, the Judge must have a certain degree of diseretion, and, having the capacity, his duty does not extend further than the necessity of the case requires ; if there are other Judges having co-ordinate jurisdiction, he may and ought to refuse to act ; but if he, like the Lord Chancellor, should be the sole Judge having jurisdiction in the case it is otherwise.
The signing of a decree of a subordinate Judge by the Lord Chancellor is a judicial act.

[1849] EngR 576, (1849) 12 Beav 63, (1849) 50 ER 984
Commonlii
Citing:
Appeal fromDimes 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 . .

Cited by:
See AlsoThe Grand Junction Canal Company v Dimes 2-Jun-1849
The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain . .
See AlsoThe Grand Junction Canal Company v Dimes CA 4-Feb-1850
The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
See AlsoDimes v Lord Cottenham 2-May-1850
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
See AlsoIn Re Dimes 26-Jul-1850
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .
See AlsoDimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
See AlsoDimes v The Proprietors Of The Grand Junction Canal and Others 29-Jun-1852
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.298881

Corporate Officer of the House of Commons v The Information Commissioner and others: Admn 16 May 2008

Applicants had sought disclosure of information supplied by members of Parliament in support of expenses claims. The Office appealed against an order from the Commissioner to produce that information, saying that the actions of Parliament are not subject to judicial control or review.
Held: The appeal was dismissed. The tribunal had made no error of law. There could be no reasonable expectation by the MPs that their expense claims would not be divulged. The order for the disclosure of addresses save where there were any particular security issues was also lawful.
‘Necessary’ within schedule 2 of paragraph (6) of the 1998 Act reflected the meaning attributed to it by the European Court of Human Rights when justifying an interference with a recognised right, namely, that there should be a pressing social need, and that the interference was both proportionate as to means and fairly balanced as to ends.

Latham LJ P, Blake J
[2008] EWHC 1084 (Admin), Times 22-May-2008, [2009] 3 All ER 403
Bailii
Freedom of Information Act 2000 1 40, Data Protection Act 1998
England and Wales
Citing:
CitedThe Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Appeal fromHouse of Commons v Information Commissioner IT 9-Aug-2007
The Corporate Officer sought to appeal against orders for the disclosure of the travel expenses of a certain member of parliament. . .
Appeal fromHouse of Commons v Information Commissioner and Norman Baker MP IT 16-Jan-2007
The corporate office of the House challenged orders from the Information Commissioner for the disclosure of the expenses of members of parliament. . .

Cited by:
CitedDepartment of Health, Regina (on The Application of) v Information Commissioner Admn 20-Apr-2011
The department appealed against an order requiring it to disclose statistical information about late abortions. The department argued that the numbers involved were such that the individual patients involved mighty be identified, and that therefore . .
CitedOates v Information Commissioner FTTGRC 20-Dec-2013
Whether information held s.1 FOIA – Personal data s.1(1) DPA Personal data s.40 FOIA . .
CitedSouth Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .

Lists of cited by and citing cases may be incomplete.

Information, Constitutional, Human Rights

Leading Case

Updated: 09 November 2021; Ref: scu.267717

Williams v Fawcett: CA 1985

The court was asked as to the requirement of a notice to show cause why a person should not be committed to prison for contempt of court.
Held: The court refused to follow its earlier decisions as to committal procedures where they were the result of a manifest slip or error. Lord Donaldson MR explained the doctrine of stare decisis: ‘If we are bound by these decisions, and we are unless they can be treated as having been reached per incuriam, they represent a very considerable change in the law for which, so far as I can see, there is absolutely no warrant. The change to which I refer is, of course, a requirement that these notices shall be signed by the proper officer. The rule of stare decisis is of the very greatest importance, particularly in an appellate court, such as this, which sits in six or seven divisions simultaneously. But for this rule, the law would not only bifurcate, it would branch off in six or seven different directions.
That of course has been stressed over and over again. It was emphasised in the classic case of Young v Bristol Aeroplane Co Ltd. [1944] K.B. 718 and in Morelle Ltd. v Wakeling [1955] 2 Q.B. 379, which considered Young’s case. But in each of those cases, as I will demonstrate briefly the court retained the power in an exceptional case to depart from its previous decisions. ‘

Lord Donaldson MR
[1986] QB 604, [1985] 1 All ER 787
England and Wales
Cited by:
AppliedRickards v Rickards CA 1990
The Court of Appeal considered the circumstances in which it could depart from its own earlier decisions under the residual principle. The court refused to follow a previous decision of the same court because, although the relevant House of Lords . .
CitedDesnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
CitedTotal Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
CitedBaxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.242935

Chandler (TN) v Director of Public Prosecutions: HL 12 Jul 1962

The defendants appealed from conviction for offences under the 1911 Act. They were supporters of an organisation seeking to prevent nuclear war, and entered an Air Force base attempting to obtain information they would later publish. They pursued a campaign of non-violent civil disobedience. The judge had refused to allow cross examination and evidence concerning the appellants’ beliefs. The Attorney General submitted that since the appellants’ purpose had been to immobilise an airfield, which was a prohibited place, the judge should direct the jury to return a verdict of guilty and that any other verdict would be perverse.
Held: Lord Devlin spoke of the extent to which courts may enquire into the proper exercise of discretionary powers conferred by statute.
Lord Devlin said: ‘It is said that the jury could return only one answer to the question in this case. I must confess that I find it difficult to see how a sensible jury could have acquitted. . But I do not reach such a conclusion as a matter of law and I cannot accept that the judge is entitled to direct the jury how to answer a question of fact, however obvious he may believe the answer to be and although he may be satisfied that any other answer would be perverse. The Attorney-General submitted that, while it is a question of fact for the jury whether the entry was for a purpose prejudicial, once it was proved that the purpose was to interfere with a prohibited place and to prevent its operating, then a judge should be entitled to direct a jury to return a verdict of guilty. With great respect I think that to be an unconstitutional doctrine. It is the conscience of the jury and not the power of the judge that provides the constitutional safeguard against perverse acquittal . . A judge may, of course, give his opinion to the jury on a question of fact and express it as strongly as the circumstances permit, so long as he gives it as advice and not as direction. The trial judge indicated a fairly strong opinion in the present case, particularly at the end of his summing-up, when he hinted to the jury that there was only one verdict that they could in conscience return. But this was not improper, for even in relation to the limited facts which he left for their consideration, he told them clearly several times that the question was for them to answer.’
The side notes in Acts of Parliament are not debated during the progress of a Bill through Parliament, and cannot be amended. Greater caution must accordingly be used before reliance upon them.
Lord Devlin said : ‘There is no rule of common law that whenever questions of national security are being considered by any court for any purposes, it is what the Crown thinks to be necessary or expedient that counts, and not what is necessary or expedient in fact.’

Lord Reid, Viscount Radcliffe, Lord Devlin
[1964] AC 763, [1962] UKHL 2
Bailii
Official Secrets Act 1911
England and Wales
Cited by:
CitedMarchiori v The Environment Agency CA 25-Jan-2002
The applicant appealed a refusal to order judicial review of the grant of licences for the discharge of radio-active waste from Ministry of Defence installations. The respondent treated the de-commissioning of nuclear warheads and the maintenance of . .
CitedRegina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
CitedWang, Regina v HL 10-Feb-2005
The appellant was waiting for a train when his bag was stolen. After a search, the thief tried to deter the appellant from calling the police by suggesting that the bag contained items the appellant should not be carrying. From the bag the appellant . .
CitedLord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.183275

References (Bills) By The Attorney General and The Advocate General for Scotland – United Nations Convention On The Rights of The Child and European Charter of Local Self-Government: SC 6 Oct 2021

Scots Bills were Outwith Parliament’s Competence

The AG questioned the constitutionaliity of Bills designed to give effect to two treaties to which the UK is a signatory, and passed by the Scottish Parliament as to the care of children.
Held: The laws had effect also outside Scotland purporting to pre-empt the power of the UK parliament to make provisions in the areas affected, and were outwith the powers of the Scottish Parliament insofar as it would modify section 28(7) of the 1998 contrary to section 29(2)(c).

Lord Reed, President, Lord Hodge, , Deputy President, Lord Lloyd-Jones, Lord Sales, Lord Stephens
[2021] UKSC 42, UKSC 2021/0080
Bailii, Bailii Press Summary, Bailii Issues and Facts
Scotland Act 1998 29(2) 33(1)
Scotland
Citing:
AppliedThe UK Withdrawal From The European Union (Legal Continuity) (Scotland) SC 13-Dec-2018
The Scottish Parliament passed legislation in anticipation of the UK leaving the EU. The Attorney General referred to the supreme court the question of whether some clauses were outwith the power of the Parliament. The Presiding Officer said that . .
CitedSalomon v Customs and Excise Commissioners CA 1966
Diplock LJ said: ‘The Convention is one of those public acts of state of Her Majesty’s Government of which Her Majesty’s judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves . .
CitedJH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
CitedThe UK Withdrawal From The European Union (Legal Continuity) (Scotland) SC 13-Dec-2018
The Scottish Parliament passed legislation in anticipation of the UK leaving the EU. The Attorney General referred to the supreme court the question of whether some clauses were outwith the power of the Parliament. The Presiding Officer said that . .
CitedGhaidan 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 . .
CitedPickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
CitedA v The Scottish Ministers PC 15-Oct-2001
(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate . .
CitedLocal Government Byelaws (Wales) Bill 2012 – Reference By The Attorney General for England and Wales SC 21-Nov-2012
Under the 1998 and 2006 Acts, the Welsh Assembly was empowered to pass legislation subject to confirmation by the English Parliament Secretary of State. The Local Government Byelaws (Wales) Bill 2012 was passed by the Assembly and purported to . .
CitedHenderson v HM Advocate HCJ 7-Sep-2010
A general provision creating a new order for lifelong restriction was read as not extending to certain convictions under the Firearms Act 1968, since the sentences applicable to such convictions fell outside the legislative competence of the . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 09 November 2021; Ref: scu.668366

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 been made (ineffectively) to assist the dispossessed islanders, but an order was created under prerogatve powers which prevented their return save with consent. They now challenged the lawfulness of the constitution order.
Held: An Order in Council legislating for a colony (Diego Garcia in the Chagos Islands) was amenable to judicial review. The orders were not unlawful, since they fell within the range of lawful Orders in Council.
The actions of the respondent were properly open to severe criticism. The Queen in Council may legislate for a colony in the interests of the United Kingdom: ‘No doubt she is also required to take into account the interests of the colony (in the absence of any previous case of judicial review of prerogative colonial legislation, there is of course no authority on the point) but there seems to me no doubt that in the event of a conflict of interest, she is entitled, on the advice of Her United Kingdom ministers, to prefer the interests of the United Kingdom.’ In reality the claim was a way of attempting to improve the financial provision allocated to them. There was no expectation created by the Foreign Secretary’s
Lord Hoffmann said that though much of the argument had been about matters of constitutionality, in practice this was an application for judicial review. The order was made in accordance with interest of defence of the realm, and of relations with the United States: ‘Judicial review should be undertaken with a light touch and the Order set aside only if it appeared to be wholly irrational.’
Whatever injustice led to the present situation, the reality was that the islanders could not return without a support they will not get: ‘The Chagossians have, not unreasonably, shown no inclination to return to live Crusoe-like in poor and barren conditions of life. The action is, like Bancoult (1), a step in a campaign to achieve a funded resettlement.’
There had here been no clear and unambiguous promise upon which a claim could be based, and the claim failed.
‘since the 17th century the prerogative has not empowered the Crown to change English common or statute law’.
Lords Carswell and Mance agreed.
Lord Bingham said that the law distinguished between ‘belonger’s whose right to live somehwere was not subject to immigration control, and others. The Chagos islanders belonged on their islands, and a law which prevented them doing so was unlawful. The scope of prerogative power under which the order had been made could no longer be extended. Its use must be checked by seeing whether it has been used before. If it had not, then it dd not exist. If valid as a use, rule 9 of the Order was irrational. There was no good reason for making it. Lord Mance agreed with Lord Bingham.
Lord Rodger said that the effect of the 1865 Act was clear, and it was that ‘no colonial law was to be void or inoperative on the ground of repugnancy to the law of England, unless it was repugnant to the provisions of some Act of Parliament which was made applicable to the colony by express words or necessary intendment.’ This included orders in council. The order was valid, and the appeal allowed.

Lord Hoffmann, Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance
[2008] UKHL 61, (2008) 158 NLJ 1530, [2008] 3 WLR 955, [2008] 4 All ER 1055, [2009] 1 AC 453
Bailii, Times, HL
British Indian Ocean Territory (Constitution) Order 2004, Magna Carta 29, Colonial Laws Validity Act 1865 2 3, British Indian Ocean Territory (Immigration) Order 2004
England and Wales
Citing:
Appeal fromSecretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
At first instanceBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
At first instanceRegina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
CitedCampbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .
CitedThe Queen v Burah PC 5-Jun-1978
The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 and 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the . .
CitedRegina 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 . .
CitedRiel v The Queen PC 1885
A power given to a Parliament to ‘make laws for the peace, order and good government’ is ‘apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to’ . .
CitedTrustees Executors and Agency Co Ltd v Federal Commissioner of Taxation 1933
The court was asked whether Australian estate duty could be levied on movables situated abroad.
Held: When testing the validity of a law passed by the government of a dominion, the question was ‘whether the law in question can be truly . .
CitedRegina v London Borough of Newham and Manik Bibi and Ataya Al-Nashed CA 26-Apr-2001
CS The housing authority had mistakenly thought that it was obliged to re-house the applicants under the Act with secure accommodation, and promised them accordingly.
Held: That promise had created a . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedIbralebbe v The Queen PC 1964
(St. Christopher and Nevis) A power to make laws for ‘peace, order and good government’ was used to confer legislative power on the Parliament of independent Ceylon, to connote ‘in British constitutional language, the widest law-making powers . .
CitedUnion 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 . .
CitedDirector of Public Prosecutions v Bhagwan HL 1972
Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration . .
CitedThe 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 . .
CitedRegina 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 . .
CitedRegina 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 . .
CitedRegina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
CitedCouncil of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
CitedRegina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
CitedEntick 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 . .
CitedFabrigas v Mostyn 1773
Minorca was a ceded colony of the British Crown. The Governor, General Mostyn, apparently fearing that Fabrigas would stir up danger for the garrison, committed him to the worst prison on the island, with no bed and only bread and water, and with no . .
AffirmedRegina 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 . .
CitedAttorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
CitedBurmah 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 . .
CitedIn re Lord Bishop of Natal 1865
. .
CitedLiyange v Regina PC 1966
The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, . .
CitedPhillips v Eyre CEC 1870
The court considered the rule of double actionability. The court laid down the test for whether a tort committed abroad was actionable in this jurisdiction: ‘As a general rule, in order to found a suit in England for a wrong alleged to have been . .
CitedAuld v Murray 1864
. .
CitedM v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .
CitedEdwards v Cruickshank 1840
Lord President Hope described the jurisdiction of supreme courts: ‘With regard to our jurisdiction, and the jurisdiction of the supreme courts in every civilized country with which I am acquainted, I have no doubt. They have power to compel every . .
CitedBuilding Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations 1986
(New South Wales Court of Appeal) The court upheld the validity of a law which directed a particular outcome of a judicial act. The words included the formula ‘prescribe and confine the scope of the legislative field open to the New South Wales . .
See AlsoRegina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .

Cited by:
CitedParris v Williams CA 23-Oct-2008
The parties had been business partners, but the business failed, and Mr Williams was made bankrupt. Mr Parris was offered a chance to purchase two apartments, and did so in his own name. Mr Williams asserted an interest, saying that it had been a . .
CitedLondon Borough of Hillingdon and Others, Regina (on the Application of) v The Lord Chancellor and others Admn 6-Nov-2008
The claimant challenged the substantial increase in court fees in public law children cases in the Fees Orders. The respondent said that the orders were intended to reflect the true costs of such proceedings and that funding had been provided to . .
AppliedMisick, 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. . .
CitedSecretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
CitedLukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
See AlsoBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 25-Jul-2012
The claimant sought in advance permission to cross examine two civil servants at a forthcoming judicial review. Documents had been leaked and widely published suggesting that the decision now to be challenged had been taken for improper purposes. . .
See AlsoBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 21-Nov-2012
Reasons for decision allowing re-amendment of claim and requiring production of documents by a non-party. . .
See AlsoBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
See AlsoBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
CitedBadger Trust, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs Admn 29-Aug-2014
The respondent had carried out the first round of a badger cull, subject to supervision and reporting by an independent expert panel. Promoises were made, the claimant said, that the panel’s role would be maintained for any subsequent round. The . .
CitedBarclay, and Another, Regina (on The Application of) v Secretary of State for Justice and Lord Chancellor and Others Admn 9-May-2013
The applicants had successfully challenged some provisions in the constitution of Sark, and amending legislation had been brought in, but they now complained of the new provisions.
Held: Where a challenge was intended to the advice given by UK . .
CitedBarclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
ReconsideredBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
CitedMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
CitedBashir and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 30-Jul-2018
(Interim Judgment) The respondent asylum seekers had been rescued in the Mediterranean and taken to an RAF base in Akrotiri on Cyprus, a sovereign base area. The court was now asked whether they were entitled, or should be permitted, to be resettled . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Judicial Review

Leading Case

Updated: 09 November 2021; Ref: scu.277126

Total Network Sl v Revenue and Customs: HL 12 Mar 2008

The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations contained the entire regime.
Held: Criminal conduct at common law or by statute can constitute unlawful means in an unlawful means conspiracy. The protection of the Bill of Rights is available to everyone. Fraudsters and cheats are as much entitled to be protected against the levying of taxes without the authority of Parliament as anyone else. The function of an action of damages is to provide a remedy for interests that are recognised by the law as entitled to protection
‘The statute makes no provision for the recovery of VAT from someone who is not a taxable person within the meaning of section 3. There is, it may be said, a gap in the statute. But this does not mean that the Commissioners have suffered a loss for which they can sue in damages. All that can be said is that payment was made to Alldech which ought not to have been made. It is an amount that can be recovered as a debt due to the Crown from Alldech. It does not change its character as a debt due to the Crown because, when it is sought to be recovered from someone else, it is described as damages. ‘
Lord Scott said: ‘there is, in my opinion, nothing whatever in the Bill of Rights point. It is true that Total are not taxable under the statutory VAT scheme in respect of any of the pleaded transactions, but the claim against Total is not a claim for tax. It is a claim for damages, for loss, caused by the fraudulent conspiracy.’

Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury
[2008] UKHL 19, [2008] BPIR 699, [2008] 2 WLR 711, [2008] STI 938, [2008] 1 AC 1174, [2008] STC 644, [2008] BVC 340, [2008] BTC 5216
Bailii, HL
Value Added Tax Act 1994 1(1) 7, Bill of Rights 1688 4
England and Wales
Citing:
CitedTotal Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
CitedGosling v Veley 1850
Wilde CJ said: ‘The rule of law that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate, or toll, except under clear and distinct legal authority, established by those who . .
CitedAttorney-General v Wilts United Dairies Ltd CA 1921
The Food Controller had been given power under the Defence of the Realm Acts to regulate milk sales. In granting the dairy a licence to buy milk in Cornwall, Devon, Dorset and Somerset, the Food Controller required the Dairy to pay 2d. per imperial . .
CitedAttorney-General v Wilts United Dairies Ltd HL 1922
The House heard an appeal by the Attorney-General against a finding that an imposition of duty on milk sales was unlawful.
Held: The appeal failed. The levy was unlawful. Lord Buckmaster said: ‘Neither of those two enactments enabled the Food . .
CitedInland Revenue Commissioners v Hambrook 1956
The Revenue claimed for loss resulting from its being deprived of the services of a taxing officer due to a vehicle accident.
Held: The action was dismissed. An action for that kind of loss did not lie where its relationship was with an . .
CitedAutologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
CitedLonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .
CitedLonrho Ltd v Shell Petroleum Co Ltd (No 2) CA 6-Mar-1981
Lonrho had supplied oil to Southern Rhodesia. It gave up this profitable business when the UK imposed sanctions on that country. It claimed that Shell had conspired unlawfully to break the sanctions, thereby prolonging the illegal regime in Southern . .
CitedMarrinan v Vibart CA 1962
The court considered an action in the form an attempt to circumvent the immunity of a witness at civil law by alleging a conspiracy.
Held: The claim was rejected. The court considered the basis of the immunity from action given to witnesses. . .
CitedCrofter Hand Woven Harris Tweed Company Limited v Veitch HL 15-Dec-1941
The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
Held: A trade embargo was not tortious because the predominant purpose . .
CitedCrofter Hand Woven Harris Tweed Co Ltd v Veitch SCS 1940
Lord Justice Clerk Aitchison said: ‘When the end of a combination is not a crime or a tort in the accepted sense, and the means are not in the accepted sense criminal or tortious – cases which give rise to no difficulty – the question always is – . .
CitedAllen v Flood HL 14-Dec-1898
Tort of Malicicious Inducement not Committed
Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on . .
CitedSorrell v Smith HL 1925
Torts of Conspiracy by Unlawful Means
The plaintiff had struck the first blow in a commercial battle between the parties, and the defendant then defended himself, whereupon the plaintiff sued him.
Lord Cave quoted the French saying: ‘cet animal est tres mechant; quand on . .
CitedHargreaves v Bretherton 1959
The Plaintiff pleaded that the First Defendant police officer had falsely and maliciously and without justification or excuse committed perjury at the Plaintiff’s trial on charges of criminal offences and that as a result the Plaintiff had been . .
CitedQuinn v Leathem HL 5-Aug-1901
Unlawful Means Conspiracy has two forms
Quinn was treasurer of a Belfast butchers’ association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
CitedSnook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
CitedOptigen Ltd, Fulcrum Electronics Ltd, Bond House Systems Ltd v Commissioners of Customs and Excise ECJ 12-Jan-2006
ECJ Sixth VAT Directive – Article 2(1), Article 4(1) and (2) and Article 5(1) – Deduction of input tax – Economic activity – Taxable person acting as such – Supply of goods – Transaction forming part of a chain . .
CitedMogul Steamship Company Limited v McGregor Gow and Co QBD 10-Aug-1885
Ship owners formed themselves into an association to protect their trading interests which then caused damage to rival ship owners. The plaintiffs complained about being kept out of the conference of shipowners trading between China and London.
CitedYukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2) QBD 23-Sep-1997
Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce . .
CitedMbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
CitedRegina v Clarence CCCR 20-Nov-1888
The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed his convictions for assault and causing grievous bodily harm.
Held: ‘The question in this . .
CitedCutler v Wandsworth Stadium Ltd HL 1949
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently . .
CitedRookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
CitedDaily Mirror Newspapers Ltd v Gardner CA 1968
The Federation of Retail Newsagents decided to boycott the Daily Mirror for a week to persuade its publishers to pay higher margins, and advised them accordingly. The publishers sought an injunction saying the Federation was procuring a breach of . .
DoubtedMichaels and Michaels v Taylor Woodrow Developments Ltd, etc ChD 19-Apr-2000
The respondents sought to strike out the claim for conspiracy and failure to comply with the Act. The respondent was landlord of premises occupied by the claimants. They had served a notice under the Act of their intention to sell.
Held: The . .
CitedSurzur Overseas Ltd v Koros and others CA 25-Feb-1999
A defendant to a worldwide Mareva injunction had failed to give full disclosure of all his assets in an affidavit filed with the court. False evidence as to sale of the assets in question was later manufactured and placed before the court. The . .
CitedInland Revenue Commissioners v Goldblatt 1972
In a winding up case, the Commissioners can if necessary proceed against a receiver for misfeasance. . .
CitedEx parte Island Records CA 1978
An injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act. . .
CitedRCA Corporation v Pollard CA 1982
The illegal activities of bootleggers who had made unauthorised recordings of concerts, diminished the profitability of contracts granting to the plaintiffs the exclusive right to exploit recordings by Elvis Presley.
Held: The defendant’s . .
CitedW T Ramsay Ltd v Inland Revenue Commissioners HL 12-Mar-1981
The taxpayers used schemes to create allowable losses, and now appealed assessment to tax. The schemes involved a series of transactions none of which were a sham, but which had the effect of cancelling each other out.
Held: If the true nature . .
CitedOren, Tiny Love Limited v Red Box Toy Factory Limited, Red Box Toy (UK) Limited, Index Limited, Martin Yaffe International Limited, Argos Distributors Limited PatC 1-Feb-1999
One plaintiff was the exclusive licensee of a registered design. The defendant sold articles alleged to infringe the design right. The registered owner had a statutory right to sue for infringement. But the question was whether the licensee could . .
CitedRegina v Mavji CACD 1987
The court considered the offence of cheating the public revenue.
Held: Cheating might include any form of fraudulent conduct which resulted in diverting money from the revenue and depriving the revenue of money to which it was entitled. . .
CitedMetall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 1990
There was a complicated commercial dispute involving allegations of conspiracy. A claim by the plaintiffs for inducing or procuring a breach of contract would have been statute-barred in New York.
Held: Slade LJ said: ‘The judge’s approach to . .
CitedRex v Bainbridge 1782
. .
CitedRegina v Hudson 1956
To avoid the payment of tax by positive false representations constitutes a fraud on the Crown and a fraud on the public. It is a common law offence and is indictable as such. . .
CitedWoolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
CitedDeutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
CitedCommissioners of Customs and Excise, Attorney General v Federation of Technological Industries and Others ECJ 11-May-2006
ECJ (Taxation) C-197/03 Sixth VAT Directive – Articles 21(3) and 22(8) – National measures to combat fraud – Joint and several liability for the payment of VAT – Provision of security for VAT payable by another . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
CitedMarcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
CitedJohnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
CitedShiloh Spinners Ltd v Harding HL 13-Dec-1972
A right of re-entry had been reserved in the lease on the assignment (and not on the initial grant) of a term of years in order to reinforce covenants (to support, fence and repair) which were taken for the benefit of other retained land of the . .
CitedMacNiven (Inspector of Taxes) v Westmoreland Investments Ltd HL 15-Feb-2001
The fact that a payment of interest was made only to create a tax advantage did not prevent its being properly claimed. Interest was paid for the purposes of setting it against tax, when the debt was discharged. A company with substantial losses had . .

Cited by:
CitedChild Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
CitedDigicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others ChD 15-Apr-2010
The claimants alleged breaches of legislation by members of the group of companies named as defendants giving rise to claims in conspiracy to injure by unlawful means. In effect they had been denied the opportunity to make interconnections with . .
CitedMobilx Ltd and Others v HM Revenue and Customs; Blue Sphere Global Ltd v Same and similar CA 12-May-2010
Each company sought repayment of input VAT. HMRC refused, saying that the transactions were the end-product of a fraud on it, and that even if the taxpayer did not know that a fraud was involved, it should have been aware that one was and acted . .
CitedThe Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
AppliedThe Racing Partnership Ltd and Others v Done Brothers (Cash Betting) Ltd and Others ChD 8-May-2019
Actions concerning the alleged infringement of the claimants’ rights in respect of data relating to horseracing. The claimant had provided horse race betting odds (Betting shows) to race course owners. A rival company had provided similar data to . .
CitedThe Racing Partnership Ltd and Others v Sports Information Services Ltd CA 9-Oct-2020
The court looked at the limitations: (1) the legal protection of sports data and other information which is not subject to traditional intellectual property rights; (2) the scope of an action under the equitable doctrine of breach of confidence or . .
CitedJSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .

Lists of cited by and citing cases may be incomplete.

VAT, Torts – Other, Customs and Excise, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.266167

Regina v Secretary of State for the Home Department ex parte Fire Brigades Union: HL 5 Apr 1995

Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The claimants, whose members would have recourse to the scheme, sought an order that the Act should be implemented, or the non-statutory scheme declared unlawful.
Held: There was no power in the courts to compel the minister to bring the Act into effect, but his alternate scheme was unlawful. While the Secretary of State is under no legally enforceable duty to bring the main provisions of the Act into force, he must consider when it is appropriate for him to do so and does not enjoy an absolute and unfettered discretion not to do so.
The doctrine of legitimate expectation cannot reasonably be extended to the public at large as opposed to particular individuals or bodies who are directly affected by the executive action under consideration.
A ministers’ intentions are not law, and the courts cannot proceed on the assumption that they will necessarily become law. That is a matter for Parliament to decide in due course.
Lord Lloyd said that the ordinary function of the court was to grant discretionary relief if a minister exceeded the powers conferred on him by Parliament and: ‘In granting such relief the court is not acting in opposition to the legislature, or treading on Parliamentary toes. On the contrary: it is ensuring that the powers conferred by Parliament are exercised within the limits, and for the purposes, which Parliament intended. I am unable to see the difference in this connection between a power to bring legislation into force and any other power.’
Lord Browne-said: ‘In my judgment it would be most undesirable that, in such circumstances, the court should intervene in the legislative process by requiring an Act of Parliament to be brought into effect. That would be for the courts to tread dangerously close to the area over which Parliament enjoys exclusive jurisdiction, namely the making of legislation.’ and ‘There is a second consequence of the power in section 171(1) being conferred for the purpose of bringing the sections into force. As I have said, in my view the Secretary of State is entitled to decide not to bring the sections into force if events subsequently occur which render it undesirable to do so. But if the power is conferred on the Secretary of State with a view to bringing sections into force, in my judgment the Secretary of State cannot himself procure events to take place and rely on the occurrence of those events as the ground for not bringing the statutory scheme into force. In claiming that the introduction of the new tariff scheme renders it undesirable now to bring the statutory scheme into force, the Secretary of State is, in effect, claiming that the purpose of the statutory power has been frustrated by his own act in choosing to introduce a scheme inconsistent with the statutory scheme approved by Parliament.’
Lord Browne-Wilkinson set out the ‘inconsistency principle’, saying: ‘It would be most surprising if, in the present day, prerogative powers could be validly exercised by the Executive so as to frustrate the will of Parliament expressed in the statute and, to an extent to pre-empt the decision of Parliament whether or not to continue with the statutory scheme even though the old scheme has been abandoned. It is not for the Executive to state as it did in the White Paper that the provisions in the Act of 1988 ‘will accordingly be repealed when a suitable legislative opportunity occurs’. It is for Parliament not the Executive to repeal legislation. The constitutional history of this country is a history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature of the sovereign body. The prerogative powers of the court remain in existence to the extent that Parliament has not expressly or by implication extinguished them.’

Lord Mustill, Lord Lloyd, Lord Browne-Wilkinson
[1995] UKHL 3, [1995] 2 AC 513, [1995] 2 All ER 244, [1995] 2 WLR 464
Bailii
Criminal Justice Act 1988 171(1)
England and Wales
Citing:
At First InstanceRegina v Secretary of State for Home Department Ex Parte Fire Brigades Union and Others QBD 24-May-1994
The Home Secretary was under no duty to bring the new statutory CICB scheme into force on any particular date. He was free to continue to use his own. The court refused to order a judicial review. . .
Appeal fromRegina v Secretary of State for Home Department Ex Parte Fire Brigades Union and Others CA 10-Nov-1994
The Home Secretary’s non-statutory scheme for the compensation for criminal injuries was unlawful pending implementation of the Act. It amounted to an abuse of power. He had power to delay implementing the new Act, with no duty to bring it into . .
CitedAttorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .

Cited by:
CitedBAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another HL 30-Apr-2008
The House considered whether the Secretary of State for Health acted lawfully in issuing guidance as to the employment of foreign doctors to employing bodies within the National Health Service in April 2006.
Held: The secretary of state’s . .
CitedRegina v Secretary of State for Wales Ex Parte Emery CA 9-Jul-1997
The applicant had sought to have included in the definitive map, a local footpath, and now challenged refusal to include it.
Held: A public right of way may be created by dedication or it may be deemed after actual use by the public over . .
CitedRM 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 . .
CitedMiller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
CitedMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
CitedMiller, 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.

Personal Injury, Constitutional, Judicial Review

Leading Case

Updated: 09 November 2021; Ref: scu.241351

West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation: HL 1970

The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be. The date of entry into land under a compulsory purchase is what fixes the date for the assessment of compensation. No question regarding interest arose because ‘the claimants had been allowed to remain in possession on the terms that they claimed no interest on the compensation and paid no rent.’ The House considered the possibility of prospective rulings, rulings which would take effect only as to the future.
Lord Morris of Borth-y-Gest said: ‘The word ‘compensation’ would be a mockery if what was paid was something that did not compensate.’
Lord Reid said: ‘We cannot say that the law was one thing yesterday but is to be something different tomorrow. If we decide that [the existing rule] is wrong we must decide that it always has been wrong, and that would mean that in many completed transactions owners have received too little compensation. But that often happens when an existing decision is reversed.’
and ‘These provisions do show that Parliament (or the draftsman) must have thought that the law was that compensation was assessable on the basis of value as at the date of notice to treat. But the mere fact that an enactment shows that Parliament must have thought that the law was one thing does not preclude the courts from deciding that the law was in fact something different. This has been stated in a number of cases including Inland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd [1952] AC 401. No doubt the position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be. But, in my view, all that can be said here is that these enactments would have a narrower scope if the law was found to be that compensation must be assessed at a date later than that of the notice to treat.’

Reid L, Lord Donovan, Lord Morris of Borth-Y-Gest, Lord Upjohn, Lord Wilbeforce
[1970] AC 874, [1969] 3 All ER 172
Compulsory Purchase Act 1965 11(1)
England and Wales
Citing:
CitedInland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd HL 1952
A court is not prevented from interpreting the common law by an Act of parliament being based upon a different view. . .

Cited by:
CitedJohnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
CitedBP Oil UK Ltd v Kent County Council CA 13-Jun-2003
BP sought compensation after its land had been acquired compulsorily. The council said its claim was time barred. BP appealed from the Lands Tribunal, saying an agreement with the Authority had kept its claim alive.
Held: The fact of entry did . .
CitedHalstead v Council of City of Manchester CA 23-Oct-1997
Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the . .
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
CitedH, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Land, Damages

Leading Case

Updated: 09 November 2021; Ref: scu.182109

Regina v Secretary of State for the Home Department ex parte Cheblak: CA 1991

Because of the importance placed on the swift and efficient determination of lawfulness of the restraint, habeas corpus applications are given priority in the organisation of the business of the court.
In order to be permitted to present a judicial review application the applicant must raise an arguable case on each of the grounds on which he seeks to challenge the impugned decision.
Lord Donaldson MR explained the difference between habeas corpus and judicial review: ‘Although, as I have said, the 2 forms of relief which the applicant seeks are interrelated on the facts of his case, they are essentially different. A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue.’
. . And: ‘the exercise of the jurisdiction of the courts in cases involving national security is necessarily restricted, not by any unwillingness to act in protection of the rights of individuals or any lack of independence of the executive, but by the nature or the subject matter. National security is the exclusive responsibility of the executive.’

Lord Donaldson MR
[1991] 1 WLR 890
England and Wales
Cited by:
CitedTF, Regina (on the Application of) v Secretary of State for Justice CA 18-Dec-2008
The claimant had been near to completing a sentence for serious violence. He now challenged the way in which, as his sentenced approached completion, the defendant had sought an order transferring him to a secure mental hospital. He was served with . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.279144

Sir Francis Burdett, Bart v The Right Hon Charles Abbot: KBD 1811

Speaker’s Powers to Arrest House Members

To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking him to the Tower of London, and imprisoning him there; it is a legal justification and bar to plead that a Parliament was held, which was sitting during the period of the trespasses complained of; that the plaintiff was a member of the House of Commons; and that the House having resolved ‘that a certain letter, and e. in Cobbett’s Weekly Register, was a libellous and scandalous paper, reflecting on the just rights and privileges of the House, and that the plaintiff, who had admitted that the said letter, and co. was printed by his authority, had been thereby guilty of a breach of the privileges of that House ;’ and having ordered that for his said offence he should be committed to the Tower, and that the Speaker should issue his warrant accordingly ; the defendant, as Speaker, in execution of the said order, issued his warrant to the serjeant at arms, to whom the execution of such warrant belonged, to arrest the plaintiff and commit him to the custody of the lieutenant of the Tower; and issued another warrant to the lieutenant of the Tower to receive and detain the plaintiff in custody during the pleasure of the House ; by virtue of which first warrant the serjeant at arms went to the messuage of the plaintiff, where he then was, to execute it ; and because the outer door was fastened, and he could not enter, after audible notification of his purpose, and demand made of admission, he, by the assistance of the said soldiers, broke and entered the plaintiff’s messuage, and arrested and conveyed him to the Tower, where he was received and detained in custody under the other warrant, by the lieutenant of the Tower.

(1811) 14 East 1, [1811] EngR 83, (1811) 104 ER 501
Commonlii
England and Wales
Cited by:
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
Appeal fromBurdett, Bart v The Right Honourable Charles Abbot CA 22-Apr-1812
. .
At Kings BenchBurdett (Bart) v Abbot (Speaker, House of Commons); And Burdett (Bart) Colman (Sergeant At Arms) PC 2-Jul-1817
To an action of trespass against the Speaker of the House of Commons forcibly and with the assistance of armed soldiers, breaking into the messuage of the Plainttiff (the outer door being shut and fastened), and arresting him there, and taking him . .
CitedPrebble 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 . .
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Torts – Other

Leading Case

Updated: 09 November 2021; Ref: scu.199235

Kadi v Council and Commission (Common Foreign and Security Policy): ECJ 16 Jan 2008

ECJ Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – United Nations Security Council Resolutions adopted under Chapter VII of the Charter of the United Nations Implementation in the Community Common Position 2002/402/CFSP Regulation (EC) No 881/2002 ‘ – Measures against persons and entities included in a list drawn up by a body of the United Nations Freezing of funds and economic resources – Committee of the Security Council created by paragraph 6 of Resolution 1267 (1999) of the Security Council (Sanctions Committee) Inclusion of those persons and entities in Annex I to Regulation (EC) No 881/2002 Actions for annulment Competence of the Community Joint legal basis of Articles 60 EC, 301 EC and 308 EC – Fundamental rights Right to respect for property, right to be heard and right to effective judicial review.
The Court considered the relationship between a European sanctions measure and the obligations imposed on member states under the United Nations Charter and general international law to give effect to UN Security Council asset freezing orders under Chapter VII of the UN Charter.
Held: ‘What is more, such immunity from jurisdiction for a Community measure like the contested regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.
Admittedly, the court has previously recognised that article 234 of the EC Treaty (now, after amendment, article 307EC) could, if the conditions for application have been satisfied, allow derogations even from primary law, for example from article 113 of the EC Treaty on the common commercial policy: see, to that effect, the Centro-Com case [1997] QB 683, paras 56-61).
It is true also that article 297EC implicitly permits obstacles to the operation of the common market when they are caused by measures taken by a member state to carry out the international obligations it has accepted for the purpose of maintaining international peace and security.
Those provisions cannot, however, be understood to authorise any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in article 6(1) EU as a foundation of the Union.
Article 307EC may in no circumstances per