Ranger v The House of Lords Appointments Commission: QBD 20 Jan 2015

The claimant, a succesful businessman and benefitor of charity, had twice applied unsuccessfully to be appointed to the House of Lords. He now sought disclosure of two letters submitted by third parties apparently opposing his appointment. He was content that they be anonymised.
Held: The applications came under the exemption from disclosure in relation to ‘any honour or dignity’. This was exempted from disclosure under both the 1998 and the 2000 Acts (though limited in the second case). Moreover, in the particular respect under consideration the Directive has been implemented in a way that was compliant and proportionate.

Knowles J
[2015] EWHC 45 (QB)
Bailii
Data Protection Act 1998 7 37, Freedom of Information Act 2000 37, Data Protection Directive 95/46/EU
England and Wales

Information, Constitutional, European

Updated: 12 January 2022; Ref: scu.541574

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

The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the 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
England and Wales
Citing:
Cited – Grainger 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 . .
Cited – Byrne 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 . .
Cited – Horrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
Cited – Broxton 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 . .
Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – McLean 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 . .
Cited – Chase 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 . .
Cited – Jennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
Cited – Dow 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 . .
Cited – Church of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
Cited – Jeynes 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 . .
Cited – Fairclough 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 from – Makudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 12 January 2022; Ref: scu.470710

Sir Thomas Kennedy, Claiming The Title Honour, and Dignity of Earl of Cassils v Earl of Ruglen and March Also Claimant: HL 26 Jan 1762

Prerage – Succession to.-
When the dignity of the Earldom of Cassils was first created, (1509), written patents of nobility were not introduced, containing special limitations of the descent. The Cassils’ family estates, according to the investiture, bore at this time to be in favour of heirs general, or heirs of line. Afterwards, and in the year 1671, resignation was made into the hands of the Crown, and a new charter procured, bearing to be in favour of heirs male, whom failing, to heirs female of his body ‘cum armis et dignitate familiae de Cassils.’-Held, 1 st, Where no express limitation, or descent of the grant appears, the dignity is always presumed to descend to the heir male. 2 d, That the resignation and new charter 1671 did not comprise, or extend to the honours, but only to the estate.

[1762] UKHL 2 – Paton – 55, (1762) 2 Paton 55
Bailii
Scotland

Constitutional

Updated: 11 January 2022; Ref: scu.560598

Vidmar and Others v Commission: ECFI 26 Feb 2016

ECJ (Judgment) Non-contractual liability – Accession of Croatia to the Union – Repeal of national legislation providing for the establishment of the profession of public executing agency – Pre-accession to national law – Damage suffered by persons previously appointed as public officials – Failure by the Commission to adopt measures to comply with the commitments to accession – Adequate infringement of a rule of law conferring rights on individuals – Article 36 of the Act of Accession

ECLI:EU:T:2016:106, [2016] EUECJ T-507/14
Bailii
European

Constitutional

Updated: 10 January 2022; Ref: scu.560496

Sumelj And Others v Commission: ECFI 26 Feb 2016

ECJ (Judgment) Non-contractual liability – Accession of Croatia to the EU – Repeal before the accession of national legislation providing for the establishment of the public enforcement agent profession – Damage suffered by people who have previously been appointed public officers execution – Failure to adopt the measures Commission for compliance with the accession commitments – sufficiently serious breach of a rule of law conferring rights on individuals – Article 36 of the act of accession

T-546/13, [2016] EUECJ T-546/13, ECLI:EU:T:2016:107
Bailii
European

Constitutional

Updated: 10 January 2022; Ref: scu.560494

Inland Revenue v Hinchy: HL 18 Feb 1960

HL Income Tax – Incorrect return – Amount of penalty – Income Tax Act, 1952 (15 and 16 Geo. VI and 1 Eliz. II, c. 10), Section 25 (3).
A court’s search for parliamentary intention is not an enquiry as to what the executive sought to achieve in drafting the Bill, but is ascertained from the applications of canons of statutory construction to the words of the Act. The object of interpretation is to discover the intention of Parliament, the subjective intention of the Members of Parliament and others involved in the lawmaking process is irrelevant.

Lord Reid
[1960] UKHL TC – 38 – 625, [1960] AC 748
Bailii
Income Tax Act 195225(3)
England and Wales
Cited by:
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .

Lists of cited by and citing cases may be incomplete.

Income Tax, Constitutional

Updated: 10 January 2022; Ref: scu.559967

Drax Power Ltd and Another, Regina (on The Application of) v Hm Treasury and Others: Admn 10 Feb 2016

The claimant sought to challenge the removal of the exemption for renewable source electricity from the Climate Change Levy.
Held: Review was refused. The court rejected the Respondents’ submission that EU law has no application to the RSE Exemption at all and that therefore the claim must fail because at the national level legitimate expectations cannot be raised against a sovereign Parliament. The amendments to para. 19 of Schedule 6 to the FA 2000 are within the scope of EU law. The EU law principle of legal certainty, and its corollary the protection of legitimate expectations, require that the application of rules of law must be foreseeable by those subject to them, and that a breach of the EU law principle of foreseeability would also be a breach of domestic law on account of the European Communities Act 1972.
The Judge rejected the Claimants’ case that the legal test as to whether there had been a breach of the EU law principles of legal certainty and protection of legitimate expectations in the present case is reducible to the question whether a prudent and circumspect economic operator could have foreseen the possibility of a without notice withdrawal of the RSE Exemption in all the circumstances.
It was not possible to reconcile the various strands of ECJ jurisprudence and the Claimants could not succeed unless they established to his satisfaction that the Respondents promoted a legitimate expectation of there being no withdrawal of the RSE Exemption without a two year time limit (for which the Judge understood the Claimants to be contending), or equivalent fiscal benefit in lieu.
What was required was an express assurance by the Government that any withdrawal of the RSE Exemption would be coupled with the specific two year lead time, or that that might irresistibly be inferred from what Government had said and done such that the giving of such an assurance might be implied; in other words, the giving of something tantamount to an express assurance.
A prudent and circumspect operator should not have inferred that the RSE Exemption would not be removed without a two-year lead time. The Respondents had not created any legitimate expectation on the part of the Claimants to the effect that the RSE Exemption would not be withdrawn without providing a lead time of two-years, or equivalent value.

Jay J
[2016] EWHC 228 (Admin)
Bailii
European Communities Act 1972
England and Wales
Cited by:
Appeal from – Infinis Energy Holdings Ltd v HM Treasury and Another CA 21-Oct-2016
No breach of EU Legitimate Expectation
The appellant challenged rejection of its request for judicial review of a decision to remove financial support for its creation pf renewable energy.
Held: The appal failed. Althought eth claimant would indeed be severely affected, it had . .

Lists of cited by and citing cases may be incomplete.

Utilities, Constitutional, Customs and Excise

Updated: 10 January 2022; Ref: scu.559744

Macklin v Her Majesty’s Advocate (Scotland): SC 16 Dec 2015

Appeal against conviction (in 2003) after release of undisclosed material helpful to the defendant, including an eye witness decsription incompatible with the defendant.
Held: The court considered the developing issues as to compatibility questions and devolution appeals. The case having already been cnsidered fully by the High Court o Justice inEdinburgh, the present courts jurusdiction was limited to the question of whether that court had considered the appeal before it applyng the correct law and procedures. It had done so and therefore the appeal failed. It was outside the jurisdiction of the Supreme Court to visit the merits of the decision by way of re-assessing whether the conviction had been safe.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Sumption, Lord Reed, Lord Hughes, Lord Toulson, Lord Gill
[2015] UKSC 77, 2016 GWD 1-6, 2016 SLT 1, 2016 SCL 80, 2016 SCCR 119, UKSC 2014/0173
Bailii, Bailii Summary, SC, SC Summary
Firearms Act 1968 17, Scotland Act 2012
Scotland
Citing:
Appeal from – Paul Alexander Macklin v Her Majesty’sAdvocate HCJ 11-Sep-2013
The defendant appealed against his conviction, complaining that the prosecution had failed to disclose before trial, items of evidence pointing to others as possibly responsible. . .
Cited – Edwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – Mansell v United Kingdom ECHR 2003
The non-disclosure of material evidence in the trial proceedings was held to have been remedied by the Court of Appeal’s examination of the impact of the non-disclosure upon the safety of the conviction. . .
Cited – Holland v Her Majesty’s Advocate (Devolution) PC 11-May-2005
The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant . .
Cited – Sinclair v Her Majesty’s Advocate PC 11-May-2005
(Devolution) The defendant complained that the prosecutor had failed to disclose all the witness statements taken, which hid inconsistencies in their versions of events.
Held: The appeal was allowed. It was fundamental to a fair trial that the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Constitutional, Human Rights

Updated: 08 January 2022; Ref: scu.556977

McCawley v The King: PC 8 Mar 1920

The Board was asked whether a Queensland statute authorising the Governor in Council to appoint a judge of the Court of Industrial Arbitration to hold office for seven years, was in fatal conflict with a provision of the 1859 Order in Council and a section of the Constitution Act 1867.
Held: It was not, since the legislature of Queensland had power to enact the Queensland statute both under s.5 of the 1865 Act and under clause 22 of the Order in Council. Lord Birkenhead compared and contrasted controlled and uncontrolled constitutions: ‘ . . a constitution [is not] debarred from being reckoned as an uncontrolled constitution because it is not, like the British constitution, constituted by historic development, but finds its genesis in an originating document which may contain some conditions which cannot be altered except by the power which gave it birth. It is of the greatest importance to notice that where the constitution is uncontrolled the consequences of its freedom admit of no qualification whatever.’
A State Constitution can generally be amended as easily as any other Act. They occupy ‘precisely the same position as a Dog Act or any other Act, however humble its subject matter.’

Lord Birkenhead
[1920] AC 691, [1920] UKPC 22
Bailii
Colonial Laws Validity Act 1865 5
Australia
Cited by:
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 07 January 2022; Ref: scu.222715

Behrens v Bartram Mill Circus: QBD 1957

Devlin J said that the ratio decidendi consists of the reason or reasons for a decision which the judge who gives it wishes to have the full authority of precedent.

Devlin J
1957] 2 QB 1
England and Wales
Cited by:
Cited – Youngsam, 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. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Updated: 07 January 2022; Ref: scu.581638

Alexander Mill of Hatton, William Ross, and David Butter, Baillies of The Town of Montrose, for Themselves and Other Magistrates of The Said Town v Colonel Robert Reid and Others, Members of The Town Council of The Said Burgh: HL 23 Jan 1723

Member of parliament – In an action to reduce the election of certain magistrates of a royal burgh, on account of the imprisonment of certain of the electors by the provost, who was a member of parliament: the provost’s privilege of parliament could not be pleaded to stop the declarator against the other defenders, as not elected by a sufficient quorum:
And the provost’s privilege of parliament could not stop the pursuers from insisting upon the reason of reduction, that some of the electors were unwarrantably imprisoned by the provost.
Burgh Royal -It was relevant to annul the election of magistrates, that the provost had unwarrantably imprisoned some of the electors, during the time of the election, with an intention to prevent their giving their votes at that election.

[1723] UKHL Robertson – 452, (1723) Robertson 452
Bailii

Scotland, Elections, Constitutional, Magistrates

Updated: 05 January 2022; Ref: scu.553793

Triquet v Bath: 1764

An English secretary to a foreign minister is privileged from arrests, though formerly a trader, and now under very suspicious circumstances. For a servant of a minister of a foreign country to claim protection against prosecution, it is not necessary for him to show every incident of such service, it is enough for him to show actual bona fide service. Where such service is established on affidavit, ‘we must not, upon bare suspicion only, suppose it to have been merely colourable and collusive.’

Lord Mansfield
(1764) 3 Burr 1478, [1746] EngR 666, (1746-1779) 1 Black W 471, (1764) 96 ER 273
Commonlii
England and Wales
Cited by:
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .

Lists of cited by and citing cases may be incomplete.

Constitutional, International

Updated: 04 January 2022; Ref: scu.239958

Zarkovic And Others v Croatia (Dec): ECHR 9 Jun 2015

ECHR Article 37-1
Striking out applications
Acknowledgment of violation in a unilateral declaration: struck out
Facts – The applicants’ relative disappeared following military action by the Croatian authorities in 1995. No investigation was opened into the circumstances of his disappearance or death. The applicants brought a civil claim against the State seeking damages but this was dismissed by a municipal court which found that their relative’s death had to be considered war damage in the absence of proof that he had been killed by Croatian soldiers or police. The judgment was upheld by a county court which stated that the presence of Croatian army and police itself could not be accepted as proof that the applicants’ relative had been killed by them. The Supreme Court dismissed the applicants’ appeal and their subsequent constitutional complaint was declared inadmissible.
Law – Article 37: The applicants had alleged that the Croatian authorities had failed, in breach of Articles 2 and 14 of the Convention, to take appropriate and adequate steps to investigate the circumstances of their relative’s death. By a letter of 17 December 2014 the Croatian Government made a unilateral declaration acknowledging a violation of those provisions and offered to pay the applicants EUR 18,900 jointly to cover any non-pecuniary damage and costs and expenses. The applicants rejected the offer considering the sum too low and insisted on the examination of their other complaints.
The Court reiterated that it could strike out an application under Article 37 – 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wished the examination of the case to be continued. It noted that the Government had explicitly acknowledged violations of Articles 2 and 14 of the Convention and that the proposed sum was not unreasonable in comparison with the awards made by the Court in similar cases. The complaints raised were based on the Court’s clear and extensive case-law finding violations of Articles 2 and 14 of the Convention for inadequate investigations into the killings or ill-treatment of applicants or their relatives. As the Committee of Ministers remained competent to supervise the implementation of judgments, the Court was satisfied that it was not required to continue its examination of the inadequacies in the investigation into the killing of the applicants’ relative. Instead, it decided to strike this part of the application out of the list without prejudice to the Government’s continuing obligation to conduct an investigation in compliance with the requirements of the Convention.
Conclusion: struck out (unanimously).

Article 6 – 1: The applicants had been afforded the possibility of bringing judicial proceedings for compensation. The domestic courts had examined the applicants’ claim on the merits and found that they had failed to prove that the victim had actually been killed by Croatian soldiers. That conclusion of the national court was not arbitrary or manifestly unreasonable.

Conclusion: inadmissible (manifestly ill-founded).

75187/12 – Legal Summary, [2015] ECHR 754
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Constitutional, Coroners

Updated: 03 January 2022; Ref: scu.552053

Watson v Regina: PC 7 Jul 2004

(Jamaica) The defendant was convicted of two murders from the same incident. The Act provided for the death penalty if he was convicted of a second murder. He appealed the death sentence in the circumstances, and said also that it was unconstitutional, being inhuman treatment.
Held: The imposition of the mandatory death sentence on the appellant subjected him to an inhuman punishment. Since the the provision had been repealed and re-instated, it was not pre-existing law and was not saved by the new constitution: ‘So long as these laws remained untouched, they did not have to be scrutinised. But as soon as they were changed, adapted or modified in any respect, except in the circumstances referred to in paragraphs (a) and (b) of section 26(9), they had to comply with the requirements of Chapter III.’ The results might be different for different constitutions.

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Mr. Justice Edward Zacca
[2004] UKPC 34, Times 14-Jul-2004, [2005] 1 AC 472
Bailii, PC, PC
England and Wales
Citing:
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .
Cited – Regina v Hughes PC 11-Mar-2002
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading . .
Cited – Ong Ah Chuan v The Public Prosecutor PC 1980
(Singapore) It was asked whether the mandatory death sentence for trafficking in more than 15 grammes of heroin was unconstitutional. The appellant submitted that the mandatory nature of the sentence rendered it arbitrary, since it debarred the . .
Cited – Regina v Powell (Anthony) and Another; Regina v English HL 30-Oct-1997
When the court looked at the issue of foreseeability of murder in an allegation of joint enterprise, there was no requirement to show intent by the secondary party. The forseeability of the risk of the principal committing the offence from the point . .
Cited – Director of Public Prosecutions v Nasralla PC 1967
(Jamaica) The constitution provided that no person tried for a criminal offence and either convicted or acquitted should again be tried for that offence. It was asked whether this was to be treated as declaring the common law or as expressing the . .
Cited – Matthew vThe State PC 7-Jul-2004
(Trinidad and Tobago) The court questioned the constitutionality of the mandatory death penalty in Trinidad.
Held: The constitution of Trinidad, when implemented, forbade cruel and unusual punishment, but also preserved existing penalties. The . .
Cited – Boyce and Joseph v Regina PC 7-Jul-2004
(Barbados) The appellants challenged the constitutionality of the death penalty in Barbados.
Held: The new constitution banned treatment which was inhuman or degrading, but preserved existing penalties. The mandatory death sentence remained in . .

Cited by:
Cited – David Gordon v The Queen PC 15-Dec-2005
PC (Jamaica) The defendant appealed his conviction for capital murder whilst in the course of committing a sexual offence.
Held: There had been weaknesses in the direction on joint enterprise, but the . .
Cited – Evon Smith v The Queen PC 14-Nov-2005
PC (Jamaica) The Board was asked whether the offence was a capital murder. The murder was committed in the course of a burglary. The defendant had stood on a ladder and reached in through a window and attacked . .
Cited – Ebanks (Jurt) v The Queen PC 16-Feb-2006
(Jamaica) The defendant appealed against his conviction for murder saying that identification evidence had been wrongly admitted and also if that appeal failed against the sentence of death. Though the witness knew the defendant, an identification . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Sentencing, Constitutional

Updated: 03 January 2022; Ref: scu.198647

Davis and Others, Regina (on The Application of) v Secretary of State for The Home Department and Others: Admn 17 Jul 2015

The applicants said that section 1 of the 2014 Act was unlawful in that it went against decisions of the European Court.
Held: Section 1 was indeed inconsistent with European Union Law. Section 1, of the Act should be disapplied: (1) insofar as access to and use of communications data retained pursuant to a retention notice is permitted for purposes other than the prevention and detection of serious offences or the conduct of criminal prosecutions relating to such offences; and
(2) insofar as access to the data is not made dependent on a prior review by a court or an independent administrative body whose decision limits access to the use of the data to what is strictly necessary for the purpose of attaining the objective pursued.

Bean LJ, Collins J
[2015] WLR(D) 318, [2015] EWHC 2092 (Admin)
Bailii, WLRD
Charter of Fundamental Rights of the European Union 7 88, Directive 97/66/EC, Directive 2002/58/EC, Directive 2006/24/EC, Data Retention and Investigatory Powers Act 2014 1
Citing:
Cited – Digital Rights Ireland v The Minister for Communications, Marine and Natural Resources etc ECJ 8-Apr-2014
ECJ Grand Chamber – Electronic communications – Directive 2006/24/EC – Publicly available electronic communications services or public communications networks services – Retention of data generated or processed . .
Cited – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .

Cited by:
Appeal from – Secretary of State for The Home Department v Davis MP and Others CA 20-Nov-2015
The Secretary of State appealed against a ruling that section 1 of the 2014 Act was inconsistent wih European law.
Held: The following questions were referred to the CJEU:
(1) Did the CJEU in Digital Rights Ireland intend to lay down . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Police, Information, European, Human Rights

Updated: 02 January 2022; Ref: scu.550378

The Committee on The Administration of Justice (CAJ) and Another, Re Judicial Review: QBNI 30 Jun 2015

Application by the Committee on the Administration of Justice (CAJ) and Brian Gormally for judicial review of an alleged on-going failure of the Executive Committee of the Northern Ireland Assembly to discharge its statutory duty under section 28E of the Northern Ireland Act 1998.

[2015] NIQB 59
Bailii
Northern Ireland Act 1998 28E
Northern Ireland

Constitutional

Updated: 02 January 2022; Ref: scu.549862

Misick and Others v The Queen: PC 25 Jun 2015

Turks and Caicos – The appellants, a former Chief Minister and others, faced a trial on charges of corruption. They objected that the Justice set to hear the case had insufficient security of tenure to guarantee independence, and that the same judge had incorrectly directed the trial to be by himself alone and without a jury.
Held: The challenge failed. tTe Board had no doubt that any objective observer would see no danger of any lack of independence of the trial judge: ‘The following aspects of his position are not in doubt:
(i) the Constitutional guarantee of judicial independence in section 83(1) . . applies to him as it does to any other judge;
(ii) so too does section 84 guaranteeing his remuneration, allowances and terms of service: see para 17 above;
(iii) he has been appointed on the recommendation of the independent (and, as to the majority, judicial) JSC;
(iv) he is undoubtedly guaranteed security of tenure during his appointment, except in the case of cause shown to this Board under the provisions of section 85

Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Reed, Lord Hughes, Lord Toulson
[2015] UKPC 31, [2015] 2 Cr App R 23, [2015] WLR(D) 277, [2015] 1 WLR 3215
Bailii, Bailii Summary, WLRD
Commonwealth
Citing:
Cited – Valente v The Queen 19-Dec-1985
Canlii Supreme Court of Canada – Courts — Charter of Rights — Independent tribunal — Provincial Court judge declined jurisdiction on ground Provincial Court (Criminal Division) not an independent tribunal — . .
Cited – Findlay v United Kingdom ECHR 25-Feb-1997
‘in order to establish whether a tribunal can be considered as ‘independent’, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the . .
Cited – Starrs v Ruxton HCJ 11-Nov-1999
The court was asked ‘whether the Lord Advocate has acted in a way which was incompatible with the rights of the accused under art 6(1) of the Convention to fair trial by ‘an independent and impartial tribunal’ within the meaning of that article.’ . .
Cited – Kearney v Her Majesty’s Advocate PC 6-Feb-2006
(High Court of Justiciary Scotland) The Board considered the assessment of the independence of a judge.
Held: Lord Carswell said that independence has a separate significance, apart from ensuring impartiality between the parties to the cause, . .
Cited – Bolkiah and others v The State of Brunei Darussalam and Another (62) PC 8-Nov-2007
(Brunei Darussalam) The Board considered whether the chief Justice of Brunei could be considered to be properly independent.
Held: Lord Bingham rejected the contention for an objective perception of bias as fanciful, saying of the Chief . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Constitutional

Updated: 01 January 2022; Ref: scu.549463

AXA General Insurance Ltd and Others v Lord Advocate and Others: SCS 8 Jan 2010

The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise have amounted to personal injury. Pleural plaques are physical changes in the pleura, detectable radiologically as areas of fibrous tissue by x-rays and CT scans. They are caused by occupational exposure to asbestos and, in common with other asbestos-related conditions, they tend to develop after a long latency period of 20 years or more. In most cases they have no discernible effect on an individual’s day to day physical health or well-being. They are asymptomatic, causing no pain or discomfort. They produce no disability or impairment of function, nor are they externally disfiguring. But it was common ground in Rothwell that they do indicate that the quantity of asbestos fibres in the lung is significant.
Held: The challenge to the law failed, and the 2009 Act, which was intended to reverse the effect of Rothwell in Scotland, was not set aside. However new laws in Scotland were reviewable at common law also, and not only under the 1998 Act. The court reviewed the law as it had developed. The 1998 Act had to be viewed on the basis that it was enacted against the existing background of common law, and not to stand in its stead, and the existence of challenges at common law for irrationality did not threaten it. Nevertheless any challenge to such primary legislation for irrationality must show an extreme of either bad faith absurdity or improper motive. Such had not been shown here.

Lord Emslie
2010 GWD 7-118, 2010 SLT 179, [2010] ScotCS CSOH – 02, Times 19-Jan-2010
SCS, Bailii
Scotland Act 1998, Damages (Asbestos-related Conditions) (Scotland) Act 2009
Scotland
Citing:
Cited – Lochgelly Iron and Coal Co v McMullan HL 10-Jul-1933
Lord Wright coined the term ‘statutory negligence’. He affirmed the need for ‘damage’ as an essential element of actionable negligence, saying: ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission . .
Cited – Crofter 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 . .
Cited – Cartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
Cited – Johnston 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 . .
Cited – Brown v North British Steel Foundry Ltd OHCS 1968
The 1954 Act passed on 4 June 1954 but was not to affect any action or proceeding if the cause of action arose before that date. The Lord Ordinary found that the pursuer who sought damages for pneumoconiosis did not begin to suffer from until 1955. . .
Cited – Nicol v Scottish Power plc 1998
. .
Cited – Lambie v Toffolo Jackson Limited (In Liq) and Another OHCS 11-Nov-2003
. .
Cited – Gibson v McAndrew Wormald and Co Ltd 1998
Pleural plaques constituted an identifiable injury for which damages were recoverable. . .
Cited – Somerville 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; . .
Cited – Stran Greek Refineries and Stratis Andreadis v Greece ECHR 9-Dec-1994
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion, estoppel); Violation of Art. 6-1; Violation of P1-1; Pecuniary damage – financial award; Costs and expenses partial . .
Cited – Burden 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 . .
Cited – Sisojeva 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. . .
Cited – Swanson v Manson SCS 16-Jan-1907
Lord Ardwall said that: ‘No person is entitled to subject another to the trouble and expense of a litigation unless he has some real interest to enforce or protect.’ . .
Cited – Trustees of the Harbour of Dundee v D and J Nicol HL 10-Dec-1914
The pursuers challenged an initiative by the defenders which allegedly harmed their local steamer excursion business. The House was asked whether steamers acquired by a statutory body of harbour trustees who maintained a service of steamers for . .
Cited – Wright 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. . .
Cited – Vatan v Russia ECHR 7-Oct-2004
ECHR Judgment (Preliminary Objections) – Preliminary objection allowed (lack of victim status) – inadmissible.
‘The Court recalls that the term ‘victim’ used in Art. 34 denotes the person directly affected . .
Cited – Wilson 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 . .
Cited – Regina 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 . .
Cited – The Christian Federation of Jehovah’s Witnesses of France v France ECHR 6-Nov-2001
(Non-admissibility Decision) It was affirmed: ‘that Article 34 of the Convention requires that an individual applicant should claim to have been actually affected by the violation he alleges. That Article does not institute for individuals a kind of . .
Cited – The 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 . .
Cited – Whaley v Lord Watson SCS 16-Feb-2000
The Scottish Parliament and its members have a limited statutory immunity from suit. No interdict or other order could be made against a member of the Parliament if the effect would be to grant an order against the Parliament not otherwise . .
Cited – Rape 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 . .
Cited – In re Salmon: Priest v Uppleby 1889
A third party allegedly providing the defendant with an indemnity in respect of the plaintiff’s claim was only indirectly affected by the appeal of the plaintiff against the defendant. The third party would only be affected if the plaintiff . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – MacCormick 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 . .
Cited – Regina v Liverpool City Council Ex Parte Muldoon; Regina v Same Ex Parte Kelly HL 11-Jul-1996
The claimant sought to challenge a refusal of the Housing Authority to pay housing benefit. The Secretary of State had made the relevant Regulations determining eligibility for benefits. If the challenge were successful, the Secretary of State would . .

Cited by:
At Outer House – AXA 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 . .
At Outer House – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .

Lists of cited by and citing cases may be incomplete.

Scotland, Constitutional, Human Rights, Personal Injury

Updated: 31 December 2021; Ref: scu.392553

Misick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs: Admn 1 May 2009

The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption.
Held: The request failed as having no realistic prospects of success. The power under the 1962 Act was to make such provision as appeared expedient. ‘the Crown’s power to legislate for the good government of a territory (whether under the prerogative or a statute such as the present), although in principle subject to judicial review, is in practice not open to question in the courts other than in the most exceptional circumstances . .’ and this case was not sufficiently exceptional. ‘The Court will not enter into discussion of the merits of the particular measures. In the end, the challenge comes down to one of statutory construction or rationality, and on that basis it is bound in my view to fail.’

Carnwath LJ, Mitting J
[2009] EWHC 1039 (Admin)
Bailii
The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009, West Indies Act 1962, United Nations International Covenants 1966
England and Wales
Citing:
Cited – Calvin’s case 1606
Sir Edward Coke said: ‘If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action, or get anything within this realm.’ and ‘If a King comes to a kingdom by conquest, he may change and alter the laws . .
Applied – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Lykourezos v Greece ECHR 15-Jun-2006
‘once the wishes of the people have been freely and democratically expressed, no subsequent amendment to the organisation of the electoral system may call that choice into question, except in the presence of compelling grounds for the democratic . .
Cited – Campbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .
Cited – Liyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Makanjuola CACD 17-May-1995
Guidance was given on the directions to be given to the jury where a co-accused speaks for prosecution as a witness and in sexual assault cases. The full corroboration warning is not now needed; the Judge may use his own discretion, and may give a . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 31 December 2021; Ref: scu.346158

HM Treasury v Ahmed and Others: SC 27 Jan 2010

The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the executive without parliamentary scrutiny by the use of Orders in Council. Statutory provision for counter-terrorism was in place, but the choice of this procedure sidestepped its protections. The effect was to create a virtual prison for those affected. There was no right to challenge the listing in a court, and, without such a right, the order was excessive. A party could be listed solely on suspicion of involvement, and there is nothing in the listing or de-listing procedure that recognises the principles of natural justice or that provides for basic procedural fairness, but the effect was catastrophic. The UN order did not require acts to be taken against those suspect to reasonable suspicion, and the Order in Council went beyond compliance with the UN Order.
Orders in Council made under section 1 of the 1946 Act are not instruments upon which proceedings may be taken in either House. They are laid before Parliament for its information only, not for scrutiny of their merits or for debate. The effect of section 1 of the 1946 Act is that decisions as to the provisions that Orders made under it may or should contain lie entirely with the executive.

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance
[2010] UKSC 2, UKSC 2009/0016, [2010] UKHRR 204, [2010] 2 WLR 378, [2010] WLR (D) 12, [2010] 2 AC 534, [2010] 4 All ER 829, [2010] Lloyd’s Rep FC 217
Bailii, Times, SC, SC Summ, WLRD, Bailii Summary
Terrorism (United Nations Measures) Order 2006 (SI 2006/2657), Al-Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006/2952), United Nations Act 1946
England and Wales
Citing:
Cited – M, Regina (on the Application of) v Her Majestys Treasury HL 30-Apr-2008
The House referred to the ECJ a question about the implementation of UN resolutions imposing sanctions on Al-Qa’ida. . .
Appeal from – A and others v HM Treasury; G v HM Treasury CA 30-Oct-2008
The Treasury appealed against an order quashing its own 2006 Orders, giving effect to the obligations on the United Kingdom as a member of the United Nations to ensure that the assets of an individual designated by the UN were to be subject to . .
Cited – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
Cited – Stellato, Regina (on the Application of)v Secretary of State for the Home Department HL 28-Feb-2007
The prisoner had served part of his ten year sentence, been released on licence and then recalled. He complained that the new parole system under which he had then to apply was invalid, having been made Parliament by negative resolution.
Held: . .
Cited – Chester v Bateson 1920
A Regulation brought in under the 1914 Act prohibited the bringing of possession proceedings against a munitions worker without the consent of the Minister.
Held: The prohibition was unlawful. It was a grave invasion of the rights of the . .
Cited – Rex (at the prosecution of Arthur Zadig) v Halliday HL 1-May-1917
The applicant was German born but a naturalised Englishman who complained of having been interned by a regulation made under the 1914 Act. He said that the regulation was ultra vires.
Held: The appeal failed (Lord Shaw dissenting). The House . .
Cited – Pyx Granite Ltd v Ministry of Housing and Local Government HL 1959
There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court . .
Cited – Soering 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 . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-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 . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – 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 . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
Cited – Royal 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 . .
Cited – Behrami and Behrami v France; Saramati v France Germany and Norway ECHR 2-May-2007
The applicants complained of the action and inaction of members of an international security force (‘KFOR’) that had been deployed in Kosovo pursuant to Security Council Resolution 1244 (1999).
Held: The applications were inadmissible. The . .
Cited – Stellato, Regina (on the Application of)v Secretary of State for the Home Department HL 28-Feb-2007
The prisoner had served part of his ten year sentence, been released on licence and then recalled. He complained that the new parole system under which he had then to apply was invalid, having been made Parliament by negative resolution.
Held: . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – 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 . .
Cited – Regina 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 . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Saik, Regina v HL 3-May-2006
The defendant appealed aganst his conviction for conspiracy to engage in moneylaundering. At trial he pleaded guilty subject to a qualification that he had not known that the money was the proceeds of crime, though he may have suspected that it . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .

Cited by:
Cited – Forsyth, Regina v, Regina v Mabey SC 23-Feb-2011
The defendants were to face trial on charges of making funds available to Iraq in breach of the 2000 Order. They said that the 2000 Order was ultra vires and ineffective, not having been made ‘forthwith’ after the UN resolution it was based upon, . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
See Also – Youssef 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 . .
See Also – Youssef and Others v The Secretary of State for Foreign and Commonwealth Affairs Admn 14-Nov-2011
The claimant sought to challenge the continued inclusion of his name on a list of persons subject to restrictions for showing sympathy to al Qaida, asking at this hearing: ‘Whether the Secretary of State’s decision to propose the relevant Claimant . .
See Also – Youssef, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 23-Jul-2012
The claimant challenged having been listed as an associate of Al-Qaida, with the resulting freezing of assets and a travel ban.
Held: His request for judicial review failed.
Toulson LJ deprecated the ‘tendency on the part of lawyers . . . .
See Also – In 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 . .
See Also – HM Treasury v Ahmed and Others SC 4-Feb-2010
The Court had declared unlawful as ultra vires terrorism related orders made against the several claimants. The court now considered how restrictions imposed by banks should be dealt with.
Held: (Lord Hope dissenting as to the order required) . .

Lists of cited by and citing cases may be incomplete.

Banking, Crime, Constitutional

Leading Case

Updated: 31 December 2021; Ref: scu.395046

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 instance – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Appeal from – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – Stradling 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 . .
Cited – Regina v Central Valuation Officer and another ex parte Edison First Power Limited HL 10-Apr-2003
Powergen sold a property to Edison. Powergen had 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 . .
Cited – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – Edinburgh and Dalkeith Railway Company v Wauchope HL 22-Mar-1842
The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first they sought to collect a toll, but his proved unprofitable. The . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-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 . .
Cited – The Queen v Burah PC 5-Jun-1978
The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 and 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the . .
Cited – The Bribery Commissioner v Ranasinghe PC 5-May-1964
S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but . .
Cited – Taylor v Attorney General of Queensland 29-Jun-1917
(High Court of Australia) The 1908 Act provided that, when a bill passed by the Legislative Assembly in two successive sessions had in the same two sessions been rejected by the Legislative Council, it might be submitted by referendum to the . .
Cited – Clayton v Heffron 15-Dec-1960
(High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The . .
Cited – Minister of the Interior v Harris 1952
(South Africa) A provision entrenched the right of Cape Coloured voters to be on the same voters roll as white voters. The entrenchment was achieved by sections 63 and the proviso to section 152 of the South Africa Act providing that the voting . .
Cited – McCawley v The King PC 8-Mar-1920
The Board was asked whether a Queensland statute authorising the Governor in Council to appoint a judge of the Court of Industrial Arbitration to hold office for seven years, was in fatal conflict with a provision of the 1859 Order in Council and a . .
Cited – The Prince’s Case ChD 11-Jan-1606
Parliamentary Roll is Conclusive
A document on the Parliamentary Roll is conclusive as to its validity as an Act if it shows on its face that everything has been done which the common law of the United Kingdom has prescribed for the making of an Act of Parliament – that the Queen, . .
Cited – Regina 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 . .
Cited – Pringle, 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. . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Rex v Countess of Arundel 1617
As regards a Bill in Parliament, the pronouncement of the words enacting it ‘carry its death’s wound in itself.’ . .
Cited – Gibson 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 . .
Cited – 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 . .
Cited – Powell v Apollo Candle Co Ltd PC 1885
The Board declared firmly that the earlier decisions had put an end to the doctrine that a colonial legislature is a delegate of the Imperial legislature. . .
Cited – Madzimbamuto v Lardner-Burke PC 23-Jul-1968
(Southern Rhodesia) The Board considered a submission that legal effect should be given to a convention that the UK Parliament would not legislate without the consent of the government of Southern Rhodesia on matters within the competence of the . .
Cited – MacCormick 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 . .
Cited – Inland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd HL 1952
A court is not prevented from interpreting the common law by an Act of parliament being based upon a different view. . .
Cited – Viscountess Rhondda’s Claim HL 1922
(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the . .

Cited by:
Cited – Harding 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: . .
Cited – Forbes 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 . .
Cited – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
Cited – JTB, 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 . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – Miller, 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: 31 December 2021; Ref: scu.231107

In re S-C (Mental Patient: Habeas Corpus): CA 22 Nov 1995

The Court of Appeal issued habeas corpus because the applicant was committed to a mental institution pursuant to an application which was made by somebody who lacked the statutory authority to make it. The right of personal freedom is fundamental. In the mental health context, if someone is to be taken out of the community and detained in a hospital there must be clear evidence that the medical condition of a patient justifies such action. A social worker could not make an application for an admission if the nearest relative objected. The correct procedures had not been followed.
Sir Thomas Bingham MR said: ‘As we are all well aware, no adult citizen of the United Kingdom is liable to be confined in any institution against his will, save by authority of law. That is a fundamental constitutional principle, traceable back to chapter 29 of Magna Carta 1297 . . and before that to chapter 39 of Magna Carta 1215.’
and: ‘Powers . . exist to ensure that those who suffer from mental illness may, in appropriate circumstances, be involuntarily admitted to mental hospitals and detained. But, and it is a very important but, the circumstances in which the mentally ill may be detained are very carefully prescribed by statute. . . Thus we find in the statute a panoply of powers combined with detailed safeguards for the protection of the patient. . . One reminds oneself that the liberty of the subject is at stake in a case of this kind, and that liberty may be violated only to the extent permitted by law and not otherwise.’

Sir Thomas Bingham MR, Neill, Hirst LJJ
[1996] QB 599, QBCOF 95/1657/D, [1996] 2 WLR 146, (1996) 29 BMLR 138, [1996] 1 All ER 532, [1996] Fam Law 210, [1995] EWCA Civ 60, [1996] 2 FCR 692, [1996] 1 FLR 548
Bailii
Mental Health Act 1983, Magna Carta 1297 29, Magna Carta 1215 39
England and Wales
Cited by:
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Lumba (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 . .
Cited – TTM v London Borough of Hackney and Others CA 14-Jan-2011
The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .

Lists of cited by and citing cases may be incomplete.

Health, Constitutional, Torts – Other

Updated: 31 December 2021; Ref: scu.220474

Evans and Another, Regina (on The Application of) v Attorney General: SC 26 Mar 2015

The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been free to rely upon section 53 to issue a certificate avoiding the requirement to disclose the correspondence. He was not free to override the conclusion of the tribunal or the court on the sole ground that he disagreed with it. Such a view would override two constututional principles; that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.,
Regulation 18(6) was incompatible with the European Directive.
Otherwise R (Evans) v Attorney General (Campaign for Freedom of Information intervening)

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes
[2015] UKSC 21, [2015] 2 WLR 813, [2015] WLR(D) 151, [2015] 4 All ER 395, [2015] 1 AC 1787, [2015] 2 CMLR 43, [2015] FSR 26, [2015] Env LR 34, UKSC 2014/0137
Bailii, Bailii Summary, SC, SC Summary, WLRD
Freedom of Information Act 2000 53(2), Council Directive 2003/4/EC, Environmental Information Regulations 2004
England and Wales
Citing:
Appeal from – Evans v The Information Commissioner and Others CA 12-Mar-2014
Mr Evans had sought release under the 2000 Act of leers from the Prince of Wales to variou government ministers. The Upper Tribunal had allowed his appeal aganst refusal, but the Attorney had then issued a certificate that in his opinion, the . .
At UTAA – Evans v Information Commissioner UTAA 18-Sep-2012
The claimant journalist had requested copies of correspondence between Prince Charles and assorted public bodies.
Held: ‘The Upper Tribunal allows the appeals by Mr Evans. A further decision identifying information to be disclosed to Mr Evans, . .
At Admn – Evans, Regina (on The Application of) v HM Attorney General and Another Admn 9-Jul-2013
The claimant had requested disclosure of correspondence between Prince Charles and assorted government departments. It had been refused, the Attorney General issuing a certificate under section 53(2) after the Upper tribunal had allowed the . .
Cited – Rex v Cheltenham Commissioners QBD 1841
A statute provided that any decision of the Quarter Sessions as to the levying of certain rates was to be ‘final, binding, and conclusive to all intents and purposes whatsoever’, and that no order made in that connection ‘shall . . be removed or . .
Cited – Anisminic 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 . .
Cited – In re Racal Communications Ltd; In Re a Company HL 3-Jul-1980
Court of Appeal’s powers limited to those Given
The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over . .
Cited – M 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 – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-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 . .
Cited – Regina v Warwickshire County Council ex parte Powergen Plc CA 31-Jul-1997
The council as highway authority had objected to a development on the grounds of road safety. The application was subsequently approved by the Secretary of State, but the Council sought to maintain its safety objection.
Held: The highway . .
Cited – Regina v Secretary of State for Home Department ex parte Danaei CA 12-Nov-1997
An immigration adjudicator, after a hearing, had rejected the applicant’s asylum appeal, but accepted that he had left Iran because he had had an adulterous relationship;
Held: The Home Secretary was wrong to depart from the special . .
Cited – Birkett v The Department for The Environment, Food and Rural Affairs CA 21-Dec-2011
. .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .

Cited by:
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .

Lists of cited by and citing cases may be incomplete.

Information, European, Constitutional

Updated: 31 December 2021; Ref: scu.545694

A, K, M, Q and G v HM Treasury: Admn 24 Apr 2008

The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
Held: The Orders must be set aside. ‘It is I think obvious that this procedure does not begin to achieve fairness for the person who is listed. Governments may have their own reasons to want to ensure that he remains on the list and there is no procedure which enables him to know the case he has to meet so that he can make meaningful representations.’ The UN orders required allowance to be made for basic living expenses. Having chosen to I=use an Order in Council it was necessary that the Order should go no further than required by the UN resolution. The order was phrased to affect a wider range of people than those provided for by the UN resolution. Although judicial review provided a remedy to those subject to the orders, it was inadequate because no mechanism was provided for consideration of all the evidence on which te decision to list the applicants was based. The orders also created new criminal offences which again went beyond what was required under the resolution. The subjects could be required to obtaina certificate from the respondent before borrowing a friend’s car to collect groceries, and again to purchase an Oyster card.

Collins J
[2008] EWHC 869 (Admin), Times 05-May-2008
Bailii
Al-Qaida and Taliban (United Nations Measures) Order 2006, Terrorism ( United Nations Measures) Order 2006, United Nations Act 1946, Human Rights Act 1996, Regulation of Investigatory Powers Act 17 18
England and Wales
Citing:
Cited – Bishopsgate Investment Management Ltd (In Provisional Liquidation) v Maxwell and Another CA 13-May-1992
A company liquidator applied for an order under sections 235 and 236 of the Insolvency Act 1986 that a director should disclose information to that liquidator. The Director objected that to do so would infringe his privilege against . .
Cited – In Re Boaler CA 1915
The court was asked whether the 1896 Act which permitted a court to make an order that a person could not institute proceedings without the leave of the court, applied to the institution of criminal proceedings.
Held: It did not. Scrutton J . .
Cited – Rex (at the prosecution of Arthur Zadig) v Halliday HL 1-May-1917
The applicant was German born but a naturalised Englishman who complained of having been interned by a regulation made under the 1914 Act. He said that the regulation was ultra vires.
Held: The appeal failed (Lord Shaw dissenting). The House . .
Cited – Chester v Bateson 1920
A Regulation brought in under the 1914 Act prohibited the bringing of possession proceedings against a munitions worker without the consent of the Minister.
Held: The prohibition was unlawful. It was a grave invasion of the rights of the . .
Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
Cited – Regina v Lord Chancellor ex parte John Witham Admn 7-Mar-1997
If subordinate legislation cannot be construed in a way that makes it compatible with fundamental rights, it will be declared ultra vires. Rules which disallowed exemptions from court fees to a litigant in person on income support were invalid. They . .
Cited – Kadi v Council and Commission ECFI 21-Sep-2005
ECJ (Common Foreign and Security Policy) Common foreign and security policy – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-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 . .
Cited – Regina v Lord Chancellor ex parte Lightfoot Admn 31-Jul-1998
The applicant wanted to present a petition so as to obtain a declaration of bankruptcy from the court but, being in debt to the tune of nearly andpound;60,000, she could not afford the deposit required by the court of andpound;250.
Held: The . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – The 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 – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional, Human Rights

Updated: 31 December 2021; Ref: scu.267083

Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others: QBD 13 Nov 2016

Article 50 Notice Requires Parliament’s Authority

The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the notice had been given, it was irrevocable. Consultation with Parliament on such an important matter was required, and it was not something which could be done through the Crown prerogative: ‘Interpreting the ECA 1972 in the light of the constitutional background referred to above, we consider that it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law (and to create the category (ii) rights) in such a way that this could not be undone by exercise of Crown prerogative power. With the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend (rights in categories (i) and (iii)) and on whose continued existence the wider rights of British citizens in category (ii) also depend. The Crown therefore has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU.’

Lord Dyson MR, John Thomas LCJ, Sales LJ
[2016] EWHC 2768 (Admin), [2016] WLR(D) 564
Judiciary, Bailii, WLRD
Treaty on European Union 50, European Communities Act 1972, European Union Referendum Act 2015, Constitutional Reform and Governance Act 2010 20, Bill of Rights 1688 1, Act of Union 1707
England and Wales
Citing:
Cited – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Proclamations, Case of KBD 1-Nov-1610
The King, as the executive government, sought to govern by making proclamations. In particular the court rejected the proposition that ‘the King by his proclamation may prohibit new buildings in and about London’
Held: The monarch had no power . .
Cited – The Zamora PC 1916
Lord Parker said: ‘The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
Cited – Secretary of State in Council of India v Kamachee Boye Sahab PC 9-Jul-1859
‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg Admn 30-Jul-1993
The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by . .
Cited – Thoburn v Sunderland City Council etc Admn 18-Feb-2002
Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it . .
Cited – UBS Ag, London Branch and Another v Kommunale Wasserwerke Leipzig Gmbh ComC 15-Oct-2010
The defendant asked the court to decline jurisdiction.
Held: Gloster J stated: ‘In the present case the relevant requirement is to be found in CPR 7.5. That provides that a claim form which is to be served within the jurisdiction must be . .
Cited – HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
Cited – Walker v Baird and Another PC 4-Aug-1892
(Newfoundland) A treaty, which does not terminate a state of war, has no legal effect upon the rights and duties of the subjects of the Crown and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty, or . .
Cited – Anisminic 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 . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Fitzgerald v Muldoon 1976
A Labour government introduced a contributory superannuation scheme. Statute made contribution by employer and employee compulsory. The leader of the National opposition, Muldoon, promised to abolish the scheme immediately on becoming government. . .
Cited – Laker Airways v Department of Trade CA 15-Dec-1976
Policy guidance issued by the respondent was unlawful because it was contrary to the statutory objectives laid down for the Civil Aviation Authority by section 3 of the 1971 Act. The court discussed the status of guidance issued by the respondent: . .
Cited – McCord, Re Judicial Review QBNI 28-Oct-2016
The claimant made application for judicial review of the stated intention of the Government of the UK to issue an article 50 notice to leave the EU, by means of the use of the royal Prerogative. They said that any use of the royal prerogative had . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-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 . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Thomas Cook and James Charles Cook v Sir James Gordon Sprigg PC 1-Aug-1899
Municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law.
(Cape of Good . .

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

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 31 December 2021; Ref: scu.570776

Attorney General for New South Wales v Trethowan: PC 31 May 1932

Appeal against a decree made by the Supreme Court of New South Wales, dated the 23rd December, 1930, whereby it was declared that a Bill to abolish the Legislative Council, or to repeal or amend the provisions of section 7 A of the Constitution Act, 1902, could not be presented to His Excellency the Governor for the Royal Assent until approved by the electors in accordance with such section, and whereby several injunctions were granted to restrain the presenta tion of two Bills framed and designed to effect the above purposes until the same had respectively been approved by the electors in accordance with the said section.
‘Reading the section as a whole, it gives to the legislature of New South Wales certain powers, subject to this, that in respect of some laws they can only become effectual provided they have been passed in such manner and form as may from time to time be required by any Act still on the statute book.’

Lord Sankey LC, Blanesborough, Hanworth, Atkin, Russell of Killowen LL
[1932] UKPC 1, [1932] UKPC 39, [1932] AC 526, [1932] AC 275, (1930-1931) 44 CLR 394
Bailii
Australia

Constitutional

Updated: 30 December 2021; Ref: scu.546853

Willers v Gubay: ChD 15 May 2015

The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the approach of the Court of Appeal in Quartz Hill v Eyre. That decision has not been overruled and is binding on me. This facts of this case relate to an ordinary civil action and, as such, do not support the tort of malicious prosecution . .The claimant’s claim for damages for malicious prosecution should be struck out as disclosing no cause of action known to English law.’
The Judicial Committee of the Privy Council is not a court. Rather, its function is to advise Her Majesty on ‘appeals to Her Majesty in Council’ from any court in any colony (see section 1 of the Judicial Committee Act 1844). The Privy Council does not therefore appear in the hierarchy of courts in England and Wales save exceptionally, by way of example, in appeals from Ecclesiastical cases where its decisions will be binding on the courts in that hierarchy.
Tipples QC said that she could ‘only follow [a] decision of the Privy Council’ to the opposite effect ‘if, for all practical purposes, it is a foregone conclusion that the Supreme Court will follow the decision of the Privy Council’. As a first instance judge, she was, at least in principle, ‘bound by Gregory v Portsmouth and, in accordance with the doctrine of precedent, [could] not follow Crawford v Sagicor’,

Amanda Tipples QC
[2015] EWHC 1315 (Ch)
Bailii
England and Wales
Citing:
Applied – Gregory v Portsmouth City Council HL 10-Feb-2000
Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
Not Followed – Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
Cited – Huddersfield Police Authority v Watson 1947
A judge of the High Court should respect (but is not bound to follow) a decision of another judge of the High Court, but must follow decisions of the Court of Appeal and the House of Lords. . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Daraydan Holdings Limited, Cairn Estates Limited and Others v Solland International Limited and Others ChD 26-Mar-2004
The court was asked whether Lister and Co v Stubbs 45 ChD 1, a decision of the Court of Appeal, was binding on him or whether he could apply the Privy Council’s decision in Attorney General for Hong Kong v Reid
Held: On the facts of the case . .
Cited – National Westminster Bank Plc v Spectrum Plus Ltd and Others; In re Spectrum Plus Ltd (in liquidation) CA 12-Jul-2004
The High Court or the Court of Appeal should not follow a decision of the Privy Council in place of a decision of the House of Lords, unless the circumstances are quite exceptional and the court is satisfied that in practice the result would be a . .
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Cited – Abou Rahmah and others v Abacha and others CA 8-Nov-2006
The appellants were victims of a fraud conducted via the respondent bank by one of their clients. They appealed from a decision that the bank was not liable to the victims either in the equitable tort of knowing or dishonest assistance in a breach . .
Cited – Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and Others CA 29-Mar-2011
The appellant challenged a decision that it was not entitled to a proprietary interest in the proceeds of sale of some shares which had been acquired with the proceeds of a breach of trust. Specifically, the claims gave rise to (i) an issue as to . .

Cited by:
Appeal from – Willers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Appeal from – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Constitutional

Updated: 30 December 2021; Ref: scu.546846

Brantley and Others v Constituency Boundaries Commission and Others: PC 11 May 2015

Saint Christopher and Nevis – the parties disputed the implementation of constituency boundary changes in anticipation of a forthcoming election.
Held: The declaration having been made onlay after parliament had been dissolved, could only take affect in the election next following parliament having re-assembled.

Lord Mance
Lord Kerr, Lord Clarke, Lord Reed, Lord Hodge
[2015] UKPC 21, [2015] WLR(D) 209
Bailii, WLRD

Commonwealth, Elections, Constitutional

Updated: 30 December 2021; Ref: scu.546862

Unison, 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 consequence of the order had been very substantially to reduce the number of cases coming before the tribunal, and: ‘The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable . . the Fees Order effectively prevents access to justice, and is therefore unlawful.’
The idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable: ‘At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.’

Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Mance, Lord Kerr of Tonaghmore, Lord Wilson, Lord Reed, Lord Hughes JJSC
[2017] UKSC 51, [2017] IRLR 911, [2017] HRLR 11, [2017] 4 All ER 903, [2017] 3 WLR 409, [2017] WLR(D) 552, [2018] 1 CMLR 35, [2017] ICR 1037, [2017] 4 Costs LR 721, UKSC 2015/0233
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 20170327 am video, SC 20170327 pm Video, SC 20170328 am Video, SC 20170328 pm Video, WLRD
Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 3 4, Tribunals, Courts and Enforcement Act 2007, Charter of Fundamental Rights of the European Union 51
England and Wales
Citing:
At Admn – Unison, Regina (on The Application of) v Lord Chancellor Admn 29-Jul-2013
Renewed application for permission to bring a claim for judicial review of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. . .
At Admn (1) – Unison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union . .
Appeal From – Unison, Regina (on The Application of) v The Lord Chancellor CA 26-Aug-2015
Unison brought two challenges to rules brought in to impose fees for the bringing of cases in the Employment Tribunal.
Held: The appeals were dismissed. The imposition of a fee would not constitute an interference with the right of effective . .
Cited – Regina v Secretary of State for Social Security Ex Parte B and the Joint Council for the Welfare of Immigrants CA 27-Jun-1996
The Secretary of State had introduced regulations which excluded the statutory right to payment of ‘urgent case’ benefits for asylum seekers who had not claimed asylum immediately upon arrival, or whose claims for asylum had been rejected, and who . .
Cited – Impact v Minister for Agriculture and Food ECJ 15-Apr-2008
ECJ Grand Chamber – Fixed-term employment – Directive 1999/70/EC – Framework agreement on fixed-term work – Abuse through use of successive fixed – term employment contracts – Civil and public servants – . .
Cited – Star Storage (Judgment) ECJ 15-Sep-2016
Reference for a preliminary ruling – Directives 89/665/EEC and 92/13/EEC – Public procurement – Review procedures – National legislation making the admissibility of appeals against the acts of a contracting authority subject to giving a ‘good . .

Cited by:
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Employment, Human Rights, European

Updated: 30 December 2021; Ref: scu.591177

Coomber (Surveyor of Taxes) v Berkshire Justices: HL 3 Dec 1883

The central issue was whether a block of buildings comprising county assize courts and a police station were liable to income tax under Schedule A. If they had been erected as part of the function of government in the administration of justice, then notwithstanding the fact that they were built by the county and paid for out of the county rates, the Crown’s exemption from payment of taxes would apply.
Held: They were both exempt, the police being ultimately a crown responsibility
Lord Blackburn said: ‘I do not think it can be disputed that the administration of justice, both criminal and civil, and the preservation of order and prevention of crime by means of what is now called police, are among the most important functions of Government, nor that by the constitution of this country, these functions do, of common right, belong to the Crown.
In England a subject may have a franchise, giving him the right to administer justice in a particular locality in courts held by him; and he may also have a right to name the constables. In early times, such local franchises were of value for the revenue derived from the fees, and, no doubt, as increasing the local influence of the grantee. But it was always held that on a proceeding in quo warranto the Crown could call on the person in possession of such a franchise to shew his title, on the ground that they were among the matters quae mere spectant ad regem, and that unless he shewed a title by grant from the crown, or by prescription, the franchises were seized and he was ousted. (See Comyn’s Digest, Quo Warranto A, and the authorities there collected). In the present case there is no question raised as to any franchise in the hands of a subject.
From very early times, judges acting under the King’s Commission went down to administer justice in counties. The sheriff, the head officer of the county, but appointed by the Crown, was always called upon to attend them, and to provide lodging and accommodation for them. He did this at the cost of the county. I do not stop to inquire by what machinery the cost was in early times defrayed. It is now provided for by the statutes referred to, and comes out of the county rate.
The sheriff also was bound to raise the hue and cry, and call out the posse comitatus of the county whenever it was necessary for any police purposes; in so doing he was acting for the Crown, but the burthen fell on the inhabitants of the county. By modern legislation, the county police are arrayed at the expense of the county, defrayed by a police rate on the county, supplemented, in some cases, by grants from the imperial revenues.
Income Tax. Assize courts and police stations. Crown privilege. In fulfilment of the duty cast upon a county of providing courts and maintaining a police force, the justices cause certain buildings to be erected and used for the purposes of an assize court and police station. Held, that the purposes for which the buildings are owned and occupied are purposes required and created by the Government of the country, and that the buildings must be deemed to be for the use and service of the Crown, and, therefore, exempt from income tax.

Lord Blackburn
[1883] 9 AC 61, [1883] UKHL TC – 2 – 1, (1883) 9 App Cas 61
Bailii
England and Wales
Cited by:
Cited – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .

Lists of cited by and citing cases may be incomplete.

Police, Constitutional, Income Tax

Updated: 28 December 2021; Ref: scu.636770

McDonald v Her Majesty’s Advocate: PC 16 Oct 2008

(The High Court of Justiciary Scotland) The defendant sought to appeal against his convictions for murder and and assault. The HCJ in Scotland had refused to receive a devolution minute.
Held: The refusal was itself sufficient to give the Board of the Council jurisdiction to hear the appeal. That decision was one for the Board. On the merits the appeal was dismissed. The Judicial Committee accepted that if there had been a failure of disclosure at trial, the duty on appeal was to make available what should have been provided at trial as well as material relevant to existing grounds of appeal. However, it roundly rejected the contention that at the appellate stage there arose a duty on the prosecution to re-perform the entire disclosure exercise, so that the appellant could see whether anything might emerge which could be used to devise some additional ground of appeal.
Lord Rodger said: ‘Not only would such an obligation be unduly burdensome, but it would often be quite inappropriate at the appeal stage. By then, the real issues in contention between the parties will have been focused at the trial. In this new situation material which might have seemed to be of potential significance for the defence before the trial (for instance as weakening the identification evidence of a witness to a murder) may now be seen to have actually been irrelevant (because for instance the accused admitted that he killed the deceased but pleaded self-defence).’

Lord Hope of Craighead, Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Neuberger of Abbotsbury
[2008] UKPC 46, 2008 SCCR 954, 2008 GWD 35-527, 2008 SCL 1378, [2009] HRLR 3
Bailii, Times
Scotland Act 1998
Scotland
Cited by:
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – Allison v Her Majesty’s Advocate SC 10-Feb-2010
(Scotland) The defendant appealed against his conviction saying that the prosecution had introduced at trial a statement of a witness who had died before the trial, but they had failed to disclose that he had several convictions and outstanding . .
Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
Cited – Nunn, Regina (on The Application of) v Chief Constable of Suffolk Constabulary and Another SC 18-Jun-2014
Limits to Duty To Investigate
The claimant had been convicted of a murder. He continued to protest his innocence, and now sought judicial review of the respondent’s decision not to act upon his requests for further investigations which might prove his innocence.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice, Constitutional

Updated: 25 December 2021; Ref: scu.277529

Attorney-General v Tomline (No 3): ChD 1877

For more than 20 years the Crown had been in possession of land forming part of a manor in Suffolk owned in fee simple by Colonel Tomline, who then entered the land in order to dig out mineral material (coprolites-fossilised dinosaur dung). The Crown had entered the land upon the expiry of a licence granted to the Lieutenant-Governor of a nearby fort, Alexander Mair, for life if he so long continued governor, which he ceased to be in 1811. The Crown was in possession of the land for more than forty years and claimed possessory title, and te right to control extraction of coprolites. .
Held: The claim succeeded. Colonel Tomline, as lord of the manor, had an absolute power of veto over the digging up of the coprolites, and ‘The value of that veto appears to me to be the value of the coprolites less so much money as would induce a third person to get them, that is, the measure of damages would be the net returns from the sale of the coprolites less such a sum of money by way of profit as would induce a third person to undertake the enterprise. That I consider to be the proper measure of damage in this case.’

Fry J
(1877) 5 Ch D 750
England and Wales
Cited by:
Cited – Roberts v Crown Estate Commissioners CA 20-Feb-2008
The commissioners sought to claim title to a foreshore by adverse possession. The claimant asserted that he had acquired title in his capacity of Lord Marcher of Magor which had owned the bed of the estuary since the Norman Conquest, and that the . .
Appeal From – Attorney-General v Tomline (No 3) CA 1880
The Crown claimed land by adverse possession. It had continued in possession for many years after a licence had expired.
Held: The Crown had acquired a fee simple by adverse possession, and not simply a copyhold title. James LJ: ‘From the time . .
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation, Constitutional

Updated: 23 December 2021; Ref: scu.264651

Bugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy: QBD 1993

The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where the irregularity alleged was procedural, the bye-law remained effective until it was set aside in civil proceedings. Except in the ‘flagrant’ and ‘outrageous’ case a statutory order, such as a byelaw, remains effective until it is quashed. Byelaws which are on their face invalid or are patently unreasonable (termed ‘substantive’ invalidity) may be called in question by way of defence in criminal proceedings, whereas byelaws which are invalid because of some defect in the procedure by which they came to be made (termed ‘procedural’ invalidity) may not be called in question in such proceedings, so that a person might be convicted of an offence under them even if the byelaws were later quashed in other proceedings.

[1993] QB 473, [1993] 2 WLR 628
England and Wales
Citing:
Cited – Smith (Kathleen Rose) v East Elloe Rural District Council HL 26-Mar-1956
The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in . .
Cited – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
See Also – Percy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .

Cited by:
Overruled – Boddington 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 . .
Doubted – Regina v Wicks HL 21-May-1997
Criminal proceedings, forming part of the general scheme of enforcement of planning control contained in Part VII of the Act, had been taken.
Held: The validity of a planning enforcement notice must be challenged in civil proceedings, not . .
See Also – Percy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .

Lists of cited by and citing cases may be incomplete.

Crime, Local Government, Constitutional

Updated: 23 December 2021; Ref: scu.187073

Tito v Waddell (No 2); Tito v Attorney General: ChD 1977

Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a trustee has not sold to himself, in substance he has. Again one must regard the realities. If the question is asked: ‘Will a sale of trust property by the trustee to his wife be set aside?’, nobody can answer it without being told more; for the question is asked in a conceptual form, and manifestly there are wives and wives. In one case the trustee may have sold privately to his wife with whom he was living in perfect amity; in another the property may have been knocked down at auction to the trustee’s wife from whom he has been living separate and in enmity for a dozen years.’
The issue arose, in relation to ‘the 1931 transaction’, as to whether the acts of which the claimants complained were done on behalf of the Government of the Gilbert and Ellice Islands Colony (in which case no claim lay against the Crown, because excluded by the 1947 Act) or the Government of the United Kingdom (in which case, if a claim lay, it was not excluded). The court accepted that the colonial government was a subordinate government, all important decisions being referred to London, and the Crown, on the advice of the United Kingdom Government, having important powers that could be used to override acts of the colonial government. But the Vice-Chancellor concluded: ‘In my judgment the government of the United Kingdom was not the government of the Gilbert and Ellice Islands Colony at any material time. It had important advisory and supervisory functions, as well as paramount powers. It also contributed much to the governing of the colony, in general and to the 1931 transaction in particular, eg in settling the form of the 1931 lease; but it was not the government.’
As to damages: ‘Per contra, if the plaintiff has suffered little or no monetary loss in the reduction of value of his land, and he has no intention of applying any damages towards carrying out the work contracted for, or its equivalent, I cannot see why he should recover the cost of doing work which will never be done. It would be a mere pretence to say that this cost was a loss and so should be recoverable as damages.’

Megarry VC
[1977] Ch 106, [1977] 3 All ER 129, [1977] 3 WLR 972
Crown Proceedings Act 1947 40(2)(b)
England and Wales
Citing:
Applied – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Halsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .

Cited by:
Cited – Bath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia) ChD 31-Jul-2002
Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought . .
Cited – Rhone and Another v Stephens CA 17-Mar-1993
A house had been divided. The original owner covenanted to repair the roof over the part which had been sold off. A later purchaser of the that part sought to enforce the covenant against a subsequent owner of the main house. At first instance the . .
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Regina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
Cited – Radford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .

Lists of cited by and citing cases may be incomplete.

Land, Equity, Constitutional, Damages

Leading Case

Updated: 22 December 2021; Ref: scu.183016

A v B and Others: ECJ 11 Sep 2014

ECJ Judgment – Article 267 TFEU – National constitution – Interlocutory procedure for the mandatory review of constitutionality – Assessment as to whether a national law is consistent both with EU law and with national constitutional law – Jurisdiction and the enforcement of judgments in civil and commercial matters – Where the defendant has no known domicile or place of residence in the territory of a Member State – Prorogation of jurisdiction where the defendant enters an appearance – Court-appointed representative in absentia for the defendant

T. von Danwitz (Rapporteur), P
C-112/13, [2014] EUECJ C-112/13
Bailii
TFEU 267

European, Constitutional

Updated: 21 December 2021; Ref: scu.536547

Regina v Government of Holloway Prison, Ex parte Jennings: HL 1983

J sought habeas corpus to avoid her extradition to California on a charge of manslaughter arising from a motor accident. Her counsel argued that the unlawful killing of another by the reckless driving of a motor vehicle on a road was no longer manslaughter by the law of England, since the enactment of the Road Traffic of 1956 and 1977 Acts, saying reckless driving and motor manslaughter were synonymous, and since reckless driving was not an offence for which a person could be extradited under the treaty with the USA, the applicant could not be extradited on the charge of manslaughter.
Held: The argument was rejected, after a review of the legislative history, The common law offence of manslaughter remained intact. The ingredients of the statutory offence of reckless driving causing death were co-extensive with the ingredients of the common law offence of manslaughter.
Lord Roskill discussed the presumption against the implied repeal of a common law offence: ‘My Lords, counsel for the defendant also referred your Lordships to a number of cases in the last century and indeed before on the subject of the implied repeal of an earlier by a later statute, as, for example, Henderson v Sherborne (1837) 2 M and W 236, 150 ER 743 and Michell v Brown (1858) 28 LJMC 53. An even more striking example can be found in the earlier case of R v Davis (1783) 1 Leach 271, 168 ER 238, where a statute creating a capital offence was, perhaps not surprisingly, held to have been impliedly repealed by a later statute carrying a penalty of only andpound;20. My Lords, I do not doubt that the principles applicable to the implied repeal of an earlier by a later statute are well established. But today those old cases must be approached and applied with caution. Until comparatively late in the last century statutes were not drafted with the same skill as today.’ and
‘In a field so complex as the criminal law as it exists today, frequently changing society, a crucial change of this kind was, if counsel’s submission is right, left only to implication. The 1977 Act, on s. 50 of which counsel relied so strongly as giving rise to an implied repeal of the relevant part of the common law of manslaughter, itself contains an express repeal of the common law offence of conspiracy in clear and explicit language. I refer to s. 5 which provides that ‘the offence of conspiracy at common law is hereby abolished’. If Parliament had in the 1977 Act intended to abolish the relevant part of the common law offence of manslaughter I should have expected to find a similar provision somewhere in the legislation between 1956 and 1977. My Lords, there is none. On the contrary there are, as I have shown, plenty of indications of an intention that that common law offence should remain fully intact after 1956 and after 1977 as it had before the successive statutory offences had ever been created. The fact that Parliament made it possible in those years for prosecuting authorities to choose to prosecute for a lesser offence carrying a lesser penalty does not seem to me to militate against the correctness of the view I have formed. No doubt the prosecuting authorities today would only prosecute for manslaughter in the case of death caused by the reckless driving of a motor vehicle on a road in a very grave case.’

Lord Roskill
[1982] 3 All ER 104, [1983] RTR 1, (1982) 75 Cr App R 367, [1983] 1 AC 624, [1982] 3 WLR 450, (1982) 146 JP 396
England and Wales
Cited by:
Cited – Brown v The Queen (Jamaica) PC 13-Apr-2005
A police officer appealed against his conviction for manslaughter after being involved in a road traffic accident. Two were killed. The policemen complained as to the direction given on gross negligence manslaughter.
Held: Adomako could not . .
Cited – Wilkinson, Regina (on The Application of) v HM Coroner for The Greater Manchester South District Admn 11-Oct-2012
The court was asked whether evidence of the commission of the criminal offence of causing death by careless driving contrary to section 2B of the 1988 Act is capable of justifying a verdict of ‘unlawful killing’ at an inquest.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Constitutional

Updated: 20 December 2021; Ref: scu.226127

Grant v The Queen: PC 16 Jan 2006

(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim 13 times with hollow point bullets. He claimed self defence, and drove straight to the police station to report the incident and surrender himself. Though no gun was found on the body, it was known that passers by had removed at least spent bullets. The purpose of the section was to allow admission of statements which would otherwise been inadmissible as hearsay, and subject to the discretion of the judge, but it was said that this conflicted with the constitutional right to coss examine witnesses.
Held: The appeal succeeded on the basis that the trial had been unfair. The right to cross examine witnesses was important, but a departure from that principal might be justified. The jurisprudence of the European Court of Human Rights applied to Jamaica before it became independent. The courts system in Jamaica provided other protections also. It was clear that neither witness was thought either unreliable or not relevant. The evidence of one witness would have corroborated much of the defendant’s statement. ‘It was, however, the responsibility of prosecuting counsel and the trial judge to ensure that the proceedings were fair, and they failed to do so. This failure was compounded by an inadequate direction on Bryant’s evidence. The jury were given no encouragement to scrutinise it with particular care, and were not alerted to apparent discrepancies between it and the evidence of Constable Wynter (or, of course, the statement of Kinglock). ‘

Lord Bingham of Cornhill, Lord Hutton, Lord Rodger of Earlsferry, Baroness Hale of Richmond
[2006] UKPC 2, 30 of 2005, [2006] Crim LR 837,, [2007] 1 AC 1, 20 BHRC 243, [2006] 2 WLR 835
Bailii
England and Wales
Citing:
Cited – Mootoo v Attorney-General of Trinidad and Tobago PC 1979
(Trinidad and Tobago) Proponents of claims that properly passed parliamentary legislation was invalid face a heavy burden. . .
Cited – Teper v The Queen PC 1952
The defendant was charged with arson of his own shop. A woman had been heard to shout to a passing motorist ‘Your place burning and you going away from the fire’.
Held: the defendant’s alibi could not be contradicted by the evidence of a . .
Cited – Kostovski v The Netherlands ECHR 20-Nov-1989
No Anonymity for Witnessses in Criminal Trial
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled . .
Cited – PS v Germany ECHR 20-Dec-2001
The applicant had been convicted of sexual abuse of a child. The evidence against him consisted of a statement made by the child’s mother about what her daughter had told her, and evidence by a police officer who had questioned the daughter shortly . .
Cited – Doorson 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, . .
Cited – Saidi v France ECHR 20-Sep-1993
S had been convicted on the basis of the evidence of drug addicts and in the situation where there was no opportunity to confront the witness.
Held: ‘The court reiterates that the taking of evidence is governed primarily by the rules of . .
Cited – Ludi v Switzerland ECHR 15-Jun-1992
The claimant challenged his conviction of a drug trafficking offence. The evidence against him consisted mainly of a report by an anonymous undercover agent and transcripts of telephone intercepts of calls between the agent and the applicant. . .
Cited – Robinson v The Queen PC 1985
Where a defendant found himself unrepresented on the day of trial, an adjournment should be granted. The constitutional right to representation was not a guarantee of representation but a right for the defendant to arrange representation at his own . .
Cited – Gianchand Jahree v The State PC 28-Feb-2005
(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – Dunkley and Robinson v The Queen PC 1-Nov-1994
(Jamaica) The appellant’s counsel had walked out of a murder trial after a dispute with the judge, leaving the appellant unrepresented for the remainder of the proceedings.
Held: A defendant in a capital murder case is to be allowed to find . .
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Al-Khawaja v Regina CACD 3-Nov-2005
The defendant had been tried for indecent assaults. The complainant having died before the trial, the judge had ruled that her written statements were admissible. The defendant said he had not had a fair trial.
Held: The appeal failed. The . .
Cited – Sellick and Sellick, Regina v CACD 14-Mar-2005
The defendants appealed convictions for murder saying that the court had had read to it the statements of four witnesses who refused to attend for fear, having been intimidated. Other witnesses had been unco-operative and had been treated by the . .
Cited – Regina v D CACD 2002
Article 6(3)(d) of the European Convention does impose an absolute prohibition on the admission of hearsay evidence against criminal defendants. . .
Cited – Regina v KJ Martin CACD 20-Feb-2003
The defendant had been found unfit to plead on a charge of murder. Charges against the co-defendants were later reduced to inflicting grievous bodily harm, but when the defendant came to be dealt with, it was on the basis that the charge remained . .
Cited – Sheffield and Horsham v The United Kingdom ECHR 30-Jul-1998
It is within a nation’s margin of appreciation to refuse to re-register birth details of people who had undergone sex-changes. Similarly it was not a human rights infringement not to allow post operative trans-sexuals to marry. However the court was . .
Cited – Regina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
Cited – D (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
Cited – Regina v Arnold CACD 21-May-2004
The defendant appealed a conviction after the non attendance of a witness.
Held: The court was prepared to assume that the witness had not been kept away by fear, but ruled that the statement was admissible. However: ‘We cannot leave this case . .
Cited – Henriques v The Queen PC 1991
. .
Cited – Regina v Lockley CACD 1995
. .
Cited – Regina v Russell-Jones CACD 1995
The Crown cannot be required to adduce evidence which (or to tender for cross-examination a witness whose evidence) is not capable of belief: ‘. . . the prosecution ought normally to call or offer to call all the witnesses who give direct evidence . .
Cited – Regina v Oliva CCA 18-May-1965
The defendant appealed his conviction for wounding one Brian Rutledge with intent to do him grievous bodily harm. Both the victim, Mr Rutledge, and also a man named Hampden gave evidence at the committal proceedings and their names appeared on the . .
Cited – Rex v Harris 1927
A prosecutor has no obligation to call a witness whose evidence he does not consider to be material. . .

Cited by:
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Horncastle 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

Updated: 18 December 2021; Ref: scu.238309

Davis v Shaughnessy: PC 1932

The grant by the committee of special leave to appeal is discretionary.

Viscount Dunedin
[1932] AC 106
Cited by:
Cited – Lopes v Chettiar PC 1968
(Malaysia) The petitioner had an appeal as of right to the Judicial Committee from the Federal Court of Malaysia under section 74(1)(a)(ii). The Court refused leave to appeal holding that the appeal had no merits and was bound to fail and the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 18 December 2021; Ref: scu.184493

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:
Cited – Great 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.’ . .
Cited – 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 . .
Cited – Donoghue (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 . .
Cited – Banco 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 from – National 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 . .
Cited – Launchbury 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 . .
Overruled – Siebe 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 . .
Cited – Regina 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 . .
Cited – Miliangos 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 . .
Cited – Linkletter v Walker 1965
(US Supreme Court) In both criminal and civil cases ‘the accepted rule today is that in appropriate cases the Court may in the interests of justice make the rule prospective.’ . .
Cited – Golak 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 . .
Cited – Chevron Oil Co v Huson 1971
(US Supreme Court) The Supreme Court summarised three factors to be taken into account when considering whether a ruling should be applied non-retroactively: whether the decision established a new principle of law, whether retrospective operation . .
Cited – Defrenne 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 . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – India 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. . .
Cited – Re Edward and Edward 1987
(Saskatchewan Court of Appeal) The court rejected the idea of making rulings of prospective effect only. Prospective overruling would be a ‘dramatic deviation from the norm in both Canada and England’. Bayda CJS said ‘the most cogent reason for . .
Cited – Murphy 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 . .
Cited – Arthur 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 . .
Cited – Reference re Language Rights under the Manitoba Act 1870 1985
(Supreme Court of Canada) The court declined to give retroactive effect to its decision on the constitutional invalidity of all statutes and regulations of the Province of Manitoba not printed and published in both English and French. A declaration . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Regina (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 . .
Cited – Goodwin 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 . .
Cited – Kleinwort 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 . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Fitzpatrick 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 . .
Cited – Ha and Another v State of New South Wales and Others 17-Feb-1997
(High Court of Australia) The court unanimously considered that ‘it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law’. This would especially be so where ‘non-compliance with a properly . .
Cited – Tailby 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 . .
Cited – Carse 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 . .
Cited – In 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 . .
Cited – Agnew 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 . .
Cited – Westminster 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 . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Regina 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 . .
Cited – Rondel 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 . .
Cited – Malik 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 . .
Cited – Sharp 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 . .
Cited – Halesowen 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 . .
Cited – Hindcastle 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 . .
Cited – Lipkin 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 . .
Cited – In 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 . .
Cited – In 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 . .
Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
Cited – In 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 . .
Cited – In 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 . .
Cited – Evans 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 . .
Cited – In 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 . .
Cited – Illingworth 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 . .
Cited – In 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 . .
Cited – Re: 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 . .
Cited – William Gaskell Ltd v Highley 1994
. .
Approved – Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd 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 . .
Cited – In 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 . .
Cited – Re 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 . .
Cited – Welsh 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 Instance – National 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:
Cited – Lymington 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 . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .
Cited – Borwick 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 . .
Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .

Lists of cited by and citing cases may be incomplete.

Banking, Insolvency, Constitutional

Leading Case

Updated: 13 December 2021; Ref: scu.228273

Royster v Cavey: CA 1946

The plaintiff sought damages after being injured on her way to work. The Crown nominated the superintendent of a factory in which the plaintiff was injured as its occupier in order to allow the claim which would otherwise have failed for Crown privilege. The court below had refused to allow this fiction.
Held: The plaintiff’s appeal failed. Crucial admissions on which the case had been conducted at first instance should not be accepted, because they were contrary to fact.
Scott LJ said: ‘As a matter of fact . . the defendant so named had nothing whatever to do with the accident; he was not the occupier of the premises; he had not been guilty of any negligence, nor of any breach of statutory duty under the Act. Those allegations, that he did occupy that position and was so guilty, were accepted by the defence to the extent of not raising the question of his personal position.’
Buckhill LJ said: ‘The result is, in my view, that this court cannot pronounce judgment against a defendant when in truth and in fact he is not under any liability at all.’

Scott, Buckhill LJJ
[1946] 2 All ER 642, [1947] KB 204
England and Wales
Citing:
Followed – Adams v Naylor HL 1946
The House disapproved of the practice of appointing a nominee defendant in tort actions against whom damages could be awarded as opposed to a party with crown immunity. The House refused to entertain a claim against a nominated army officer arising . .

Cited by:
Cited – Davidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Constitutional, Personal Injury, Litigation Practice

Updated: 10 December 2021; Ref: scu.237563

James Brown v Alexander Mclaughan: 12 Dec 1870

[1870] EngR 57, (1870) 7 Moo PC NS 306, (1870) 17 ER 117
Commonlii
Australia

Constitutional

Updated: 06 December 2021; Ref: scu.280567

Egerton v Earl of Brownlow: HL 1853

The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
Held: Public policy ‘has been confounded with what may be called political policy; such as whether it is politically wise to have a sinking fund or a paper circulation, or the degree and nature of interference with foreign States; with all which, as applied to the present subject, it has nothing whatever to do.’ For these reasons, in our view, the defendants’ point on public policy is wholly unfounded.’ (Lord Truro)
Parke B: ‘Public policy is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses; it may, and does, in its ordinary sense, mean ‘political expedience,’ or that which is best for the common good of the community; and in that sense there may be every variety of opinion, according to education, habits, talents, and dispositions of each person, who is to decide whether an act is against public policy or not. It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors and of our existing courts, from the text writers of acknowledged authority, and upon principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion, for the advantage of the community. Some of these decisions may have no doubt been founded upon the prevailing and just opinions of the public good; for instance, the illegality of covenants in restraint of marriage or trade. They have become part of the established law, and we are therefore bound by them, but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise.’

Lord Truro, Parke B
[1853] 4 HLC 484, [1853] 4 HLC 1, [1853] EngR 885, (1853) 10 ER 359
Commonlii
England and Wales
Citing:
Appeal from – Egerton v Lord Brownlow 20-Aug-1851
John WilIiam Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the use of Lord Alford, his great-nephew, for ninety-nine years, if he should so long live ; remainder to trustees and their heirs doring the life . .

Cited by:
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Lound v Grimwade ChD 1886
The plaintiff tried to set aside a bond, saying that he had executed it under duress in the form of the threat of criminal proceedings.
Held: The bond had not been executed under pressure at law. However the consideration for it included a . .
Cited – Australia and New Zealand Banking Group Ltd v Compagnie Noga D’Importation Et D’Exportation Sa and Another ComC 21-Feb-2007
Non-payment of bills of exchange – construction of settlement agreement. It was said that the compromise agreement ws unenforceable as being against public policy in restraining one party.
Held: The restraint ‘does not affect the course of . .

Lists of cited by and citing cases may be incomplete.

Trusts, Constitutional

Updated: 05 December 2021; Ref: scu.235300

Regina v Central Valuation Officer and another ex parte Edison First Power Limited: HL 10 Apr 2003

Powergen sold a property to Edison. Powergen had 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 collected rates twice for the same property. It challenged the legality of the order under which the rates had first been collected form the vendor.
Held: There is a strong presumption against double rating. Sums of money appeared to have been collected twice. However the bases of the two collections were different. The one was under ordinary rating law, and the other by special statutory provision. The presumption against double taxation is rebuttable. The idea of payments in lieu of rates was introduced by the 1948 Act, and complex formulae were applied. The ESI Order was not ultra vires.
Lord Millett said: ‘The courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless. But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it …’

Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Millett, Lord Scott of Foscote
[2003] UKHL 20, [2003] 4 All ER 209, [2003] RA 325, [2003] 16 EGCS 101, [2003] 16 EG 101, [2003] 2 EGLR 133
House of Lords, Bailii
Local Government Finance Act 1988 41ff, Electricity Supply Industry (Rateable Values) Order 1994 (SI 1994/3282), Local Government Act 1948, Electricity Supply Industry (Rateable Values) Order 1989 (SI 1989 No. 2475)
England and Wales
Citing:
Appeal from – Edison First Power Ltd v The Secretary of State for Department of Environment Transport and the Regions CA 12-Jul-2001
. .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Stradling 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 . .
Cited – Smith and Son v Lambeth Assessment Committee 1882
The law presumes that only one person shall be liable to pay rates on a property at any one time. . .
Cited – Westminster City Council v Southern Railway Co HL 1936
Subject to special enactments, people are treated as occupiers of land, land being understood as including not only the surface of the earth but all strata above or below. The occupier, not the land, is rateable; but the occupier is rateable in . .
Cited – Brook v National Coal Board 1975
. .
Cited – Regina v Inland Revenue Commissioners, Ex parte Woolwich Equitable Building Society HL 25-Oct-1990
The society challenged the validity of transitional provisions in the 1986 regulations on the ground that they were ultra vires. The House considered the specific presumption against double taxation, and also a power in general terms to make . .
Cited – Kingston Union v Metropolitan Water Board HL 1926
The principle for valuation of properties for rating was to estimate ‘the rent at which the hereditaments might reasonably be expected to let from year to year’. But in applying that principle, so simple in appearance, to certain classes of . .
Cited – Milford Haven Conservancy Board v Inland Revenue Commissioners CA 1976
The Minister had power to make provision by order for determining rateable values ‘by such method as may be so specified’. The formula prescribed by the Minister for dock undertakings was based on 4% of their receipts, including receipts from some . .
At First Instance – Regina (ex parte Edison First Power Limited v Secretary of State for Environment, Transport, Same v Central Valuation Officer Admn 31-Mar-2000
. .
At CA – Edison First Power Ltd v Secretary of State for Environment, Transport and Regions CA 12-Jul-2001
. .

Cited by:
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – North Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010
Deleayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Cited – McCool, Regina v SC 2-May-2018
The appellants complained that the recovery order made against them in part under the transitional provisions were unlawful. They had claimed benefits as single people but were married to each other and for a house not occupied. The difficulty was . .
Dictum Approved – Gumbs v Attorney General Of Anguilla PC 7-Jul-2009
Anguilla – whether there is a public right of way, and, if there is, the extent of that way, over a parcel of land at Little Bay, Anguilla. . .

Lists of cited by and citing cases may be incomplete.

Rating, Constitutional

Updated: 05 December 2021; Ref: scu.180698

Bank of England v Vagliano Brothers: HL 5 Mar 1891

The court considered the interpretation of the 1882 Act, which was said to be a codifying Act.
Held: An Act is to be ascertained in the first instance from the natural meaning of its language and is not to be qualified by considerations deriving from the antecedent law.
Lord Watson said: ‘The decision of the Queen’s Bench in Robarts v. Tucker 16 QB 560 has, ever since its date, been accepted in mercantile practice as determining the obligations incumbent upon bankers who agree to retire acceptances on account of their customers. It casts upon them the whole duty of ascertaining the identity of the person to whom they make payment with the payee whose name is upon the bill. They may pay in good faith to the wrong person, in circumstances by which the acceptor himself or men of ordinary prudence might have been misled; but they cannot take credit for such a payment in any question with the acceptor. It has been said by one of the learned Judges that the rule is a harsh one, and it is possible that in some circumstances it may operate harshly; but it appears to me to be settled beyond dispute, and I see no reason for suggesting any doubt that it puts a reasonable construction upon the contract constituted by the agreement of the banker to pay his customers’ acceptances when they fall due. In the absence of any special stipulations it construes the arrangement so constituted as importing that, on the one hand, the customer is to furnish or repay to the banker the funds necessary to meet his obligations as acceptor; and that, on the other hand, the banker undertakes to apply the money provided by the customer, or advanced on his account, so as to extinguish the liability created by his acceptance. Accordingly, no payment made by the banker which leaves the liability of the acceptor undischarged can be debited to the latter.’
Lord Herschell said: ‘I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.’ and ‘If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even an obsolete proceeding such as a demurrer to evidence.’
Lord Halsbury LCJ said: ‘It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction, and I am wholly unable to adopt the view that, where a statute is expressly said to codify the law, you are at liberty to go outside the code so created, because before the existence of that code another law prevailed.’

Lord Herschell, Lord Halsbury LCJ, Lord Watson, Lord Bramwell
[1891] AC 107, (1891) 60 LJQB 145, (1891) 7 TLR 333, [1891] UKLawRpAC 6
Commonlii
Bills of Exchange Act 1882 7(3)
England and Wales
Citing:
Cited – Robarts And Others v Tucker 1-Feb-1851
. .

Cited by:
Cited – Regina v Fulling CACD 1987
It was alleged that evidence had been obtained by police oppression. She had at first refused to answer questions, but an officer talked to her during a break between interviews, telling her that her lover had been having an affair. The . .
Cited – O’Brien v Sim-Chem Ltd HL 2-Jan-1980
The Respondent had carried out a job evaluation exercise in co-operation with the trade unions. The plaintiff and comparators had been rated as equivalent in the course of this exercise but the employer had failed to implement the scheme because of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking, Constitutional

Updated: 04 December 2021; Ref: scu.464675

Golak 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 been made, and state laws enacted, on the basis of the court’s earlier two decisions.

(1967) 2 SCJ 762
England and Wales
Cited by:
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 December 2021; Ref: scu.228289

India 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.

(1990) 1 SCC 12
England and Wales
Cited by:
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 December 2021; Ref: scu.228290

Harb v HRH Prince Abdul Aziz: ChD 9 Jun 2014

The Defendant applies under CPR 11.1 for an order declaring that the court has no jurisdiction to try this claim against him on the grounds that the claim is barred by the defence of state immunity under the State Immunity Act 1978.

Rose J
[2014] EWHC 1807 (Ch), [2014] 1 WLR 4437, [2015] 1 All ER 77, [2014] WLR(D) 248
Bailii, WLRD
Civil Procedure Rules 11.1, State Immunity Act 1978
England and Wales

Constitutional, Litigation Practice

Updated: 04 December 2021; Ref: scu.526361

South Lanarkshire Council v McKenna: SCS 10 Oct 2012

Lord Clarke,
Lord Hardie,
Lord Bonomy
2013 SCLR 384, [2012] ScotCS CSIH – 78, 2013 SC 212, 2012 GWD 34-693, 2013 SLT 22
Bailii
Act of Sederunt (Proceedings for Determination of Devolution Issues) 1999, Housing (Scotland) Act 2001
Scotland

Constitutional, Housing

Updated: 04 December 2021; Ref: scu.464794

The Attorney General of Ontario and Others v The Attorney General of Canada and Others and The Attorney General of Quebec: PC 13 Jan 1947

Canada

[1947] UKPC 1, [1947] LJR 473, 176 LT 256, [1947] AC 127, 63 TLR 122, [1947] 1 All ER 137
Bailii
Canada

Constitutional

Updated: 04 December 2021; Ref: scu.447838

Newbold v The Commissioner of Police: PC 16 Apr 2014

Bahamas – The appellants are the subject of extradition requests by the United States of America on suspicion of having committed drug trafficking offences. Extradition proceedings were commenced against them by the United States and the Attorney General (‘the respondents’) as long ago as nine years. During such proceedings before Magistrate Mrs Carolita Bethell, the respondents sought to adduce evidence obtained by the interception by the Bahamian police of the appellants’ telephone conversations. The present appeal concerns the legitimacy and, now, constitutionality of their so doing.

Lord Mance, Lord Sumption, Lord Hughes, Lord Toulson, Lord Hodge
[2014] UKPC 12
Bailii
Commonwealth

Extradition, Police, Constitutional

Updated: 03 December 2021; Ref: scu.525607

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:
Cited – 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 . .
Cited – Lewisham Borough Council v Roberts CA 1949
The council sought to exercise its powers under the Act to take possession of part of the defendant’s property.
Held: Denning LJ said: ‘It is necessary to consider the nature of the power to requisition land. It is only a power to take . .
Cited – Regina 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 . .
Cited – Regina v Secretary of State for Social Security ex parte Sherwin (a Patient By Her Next Friend Sherwin) Admn 16-Feb-1996
An official in the Benefits Agency, part of the Department of Health and Social Security, suspended an income support/severe disability premium payable to the appellant. The court was asked whether the decision of the Agency, made under the . .

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

Lists of cited by and citing cases may be incomplete.

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

Lists of cited by and citing cases may be incomplete.

Scotland, 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:
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .

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:
Cited – Lawrence 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:
Cited – Small 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 approved – Youngsam, 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. . .
Cited – Pickett 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 Followed – Oliver 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:
Followed – Pickett 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:
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Appeal from – 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 . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Rex v Creevey Esq MP 1813
A statement made out of Parliament is not to be protected by its absolute privilege even if what is said simply repeats what was said inside the House.
A member of the House of Commons may be convicted upon an indictment for a libel in . .
Cited – Stopforth v Goyer 1978
(High Court of Ontario) A claim was made for defamation in remarks made by the defendant about the plaintiff to media representative who were present in parliament, just after he left the Ottawa chamber at the conclusion of the question period. The . .
Cited – Hutchinson v Proxmire 26-Jun-1979
(United States Supreme Court) The petitioner had been funded by the state to carry out research on aggression in certain animals, particularly monkeys. He complained of criticism of his work decsribing it as wasteful.
Held: Efforts to . .
Cited – Office 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 . .
Cited – Jennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
Cited – Byrne 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 . .
Cited – Seray-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:
Cited – Attorney General for Ontario v Attorney General for Canada PC 1924
A provincial legislature was said to have exceeded its powers and contravened the British North America Act.
Held: Any provision made by the constitution as to the security of status and tenure of the judiciary applies to all individual judges . .
Cited – Attorney General v Antigua Times Ltd PC 1975
The Board should not seek to determine questions not directly raised in the appeal before it. . .
Cited – Liyange v Regina PC 1966
The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, . .
Cited – Ladore v Bennett PC 1939
Parliament cannot sidestep a restriction in the constitution by a colourable device. . .
Cited – Deaton v Attorney General and Revenue Commissioners 1963
(Supreme Court of Ireland) The court looked at a law in which the choice of alternative penalties was left to the executive: ‘There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular . .
Cited – Attorney General for Alberta v Attorney General for Canada PC 1947
The Board considered the severability of statutory provisions viewed for constitutionality: ‘The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as . .
Cited – Attorney General of Australia v The Queen and the Boilermakers’ Society of Australia; Kirby v The Queen and Boilermakers’ Society of Australia PC 1957
When looking at a new court having a different name, the courts must ask the nature of the jurisdiction exercised, and test the method of appointment of judges for conformity with the constitution. It would be a travesty of the constitution if . .

Cited by:
Cited – Director of Public Prosecutions of Jamaica v Mollison (No 2) PC 22-Jan-2003
(Jamaica ) The appellant had been convicted of murder as a youth. He was sentenced to be detained during Her Majesty’s pleasure. The actual length of time to be served was decided by the Governor-General. The decision by the Governor was clearly a . .
Cited – Browne v The Queen PC 6-May-1999
(St Christopher and Nevis) The appellant had been convicted of murder whilst still a youth. He had accordingly been sentenced to be detained ‘during [the Governor-General’s] pleasure; and if so sentenced he shall be liable to be detained in such . .
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Cited – Regina 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 . .
Cited – Independent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .

Lists of cited by and citing cases may be incomplete.

Constitutional, 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:
Applied – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Cited – James, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Clift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .

Cited by:
Appeal from – Kaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
At Admin – 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 . .

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:
Cited – Regina (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 . .
Cited – Luc 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 . .
Cited – Her 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 . .
Cited – Regina 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 . .
Cited – Regina 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.
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Anderton 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 . .
Cited – Regina 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 . .
Cited – Miliangos 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 . .
Cited – Tai Hing Ltd v Liu Chong Hing Bank PC 1985
(Hong Kong) The relationship between banker and customer is principally a contractual one between debtor and creditor. As between the banker and his customer, the risk of loss through forgery of the customer’s signature falls on the banker unless . .
Cited – 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 . .
Cited – Mohammed, 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 . .
Cited – Overseas 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 . .
Cited – Van 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 . .
Cited – Davis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
Cited – Simpson 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:
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Cited – Willers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

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 . .
Cited – Rex 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 . .
Cited – Fayed 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 . .
Cited – Shearson 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 . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
See Also – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 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:
Cited – Regina 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 . .
Cited – Hubbard 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 . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Austin 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 CA – Duport Steels Ltd v Sirs CA 2-Jan-1980
. .
At EAT – Duport Steels Ltd v Sirs QBD 1980
. .

Cited by:
Cited – Regina (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 . .
Cited – In 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:
Distinguished – Sprigg v Sigcau PC 26-Feb-1897
(Cape of Good Hope) . .

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

Lists of cited by and citing cases may be incomplete.

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:
Distinguished – 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 14 November 2021; Ref: scu.417289

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:
Cited – Ropaigealach 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 . .
Cited – Inco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.230370

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:
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Soering 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 . .
Cited – East 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 . .
Cited – X 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.
Cited – Cyprus 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 . .
Cited – Loizidou 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’ . .
Cited – Drozd 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 – WM 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 . .
Cited – Bankovic 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 . .
Cited – Ocalan 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 . .
Cited – McElhinney 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:
Cited – Al-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 . .
Cited – Regina (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 . .
Cited – Al-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 . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Human Rights, Immigration, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.216534

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:
Cited – Pearce 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 . .
Cited – McFarlane 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 . .
Cited – Kelley 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 . .
Cited – Thwaite 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 . .
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Cited – Xydhias 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 . .
Cited – Soulsbury 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 . .
Cited – Jenkins 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 . .
Cited – Robinson 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 . .
Cited – Judge 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 . .
Cited – CS 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 . .
Cited – Roult 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 . .
Cited – Gohil 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 . .
Cited – Sharland 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:
Cited – Bowditch v Balchin 1855
Pollock CB said: ‘In a case in which the liberty of a subject is concerned we cannot go beyond the natural construction of the statute.’ . .
Cited – Barnard v Gorman HL 1941
The court considered awarding costs in a judicial review case: ‘There will be no order as to costs in this House, as the Crown has very properly agreed (since this is a case of general importance, and the respondent is a poor man) to pay the costs . .

Cited by:
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Corner 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 . .
Cited – Al-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 . .
Cited – Haw, 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 . .
Cited – Raissi 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 . .
Cited – SK, 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 . .
Cited – ID 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 . .
Cited – TF, 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 . .
Cited – Commissioner 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 . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Dissenting Judgment applied – Nakkuda 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 approved – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – Lumba (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 . .
Cited – Zabrovsky v The General Officer Commanding Palestine PC 4-Dec-1946
Mr Zabrovsky’s son, Arie Ben Eliezer, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine. He was then transported to a military detention camp in Eritrea. At the time, . .
Cited – AA, 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 from – Attorney-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 . .
Cited – Total 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 . .
Cited – O’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 . .
Cited – Regina 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 . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.248339

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:
Cited – Evans 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 . .
Applied – Regina 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 . .
Cited – National 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 . .
Cited – Air 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 – Sheffield 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, . .
Cited – Beggs 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 . .
Cited – Somerville 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; . .
Cited – McEldowney v Forde HL 18-Jun-1969
The House was asked whether the Magistrates had properly dismissed a charge of membership of an unlawful organisation, namely a Republican club. The Magistrates had found that an unlawful club would only be such if it supported the absorption of . .
Cited – Castle v Crown Prosecution Service Admn 24-Jan-2014
The defendant appealed from his conviction for having driven in excess of a variable speed limit on the motorway. He said that the Order under which the speed limit had been imposed was irregular. . .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
Cited – Adams, 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.
Cited – Adams, 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 . .
Cited – Doody 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 . .
Cited – Regina 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’, . .
Cited – McCafferty, 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

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 House – Wightman 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 House – Wightman 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 House – Wightman 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:
Cited – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Cited – James, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .
At Admin – 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 . .
At CA – Kaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Clift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .
Cited – Cassell 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. . .
Cited – Stafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Cited – Regina 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 . .
Cited – Regina 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, . .
Cited – Regina (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 . .
Cited – Weeks 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. . .
Cited – Thynne, 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 . .
Cited – Clift 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 . .
Cited – Sturnham, 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 . .
Cited – Martin 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 . .
Cited – Amuur 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 . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Secretary 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 . .
Cited – Saadi 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 . .
Cited – Chester, 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 . .
Cited – Rabone 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 . .
Cited – Manchester 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 . . .
Cited – Horncastle 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 . .
Cited – Kafkaris 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 . .
Cited – Saadi 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 . .
Cited – Hall 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 . .
Cited – Faulkner, 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 . .
Cited – Zagidulina 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 . .
Cited – Grosskopf 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:
Cited – Lee-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 . .
Cited – Docherty, 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 . .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Cited – Re 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 . .
Cited – Stott, 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 from – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – British Coal Corporation v The King PC 1935
The Board was asked as to the competency of a petition for special leave to appeal to the King in Council from a judgment of a court in Quebec in a criminal matter. The petitioners argued that notwithstanding the provisions of a Canadian statute . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.241372

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

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:
Cited – Starrs 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:
Cited – Singh 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 . .
Cited – Regina 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 . .
Cited – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Stretford 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 . .
Cited – Eastaway 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 . .
Cited – Barclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
Cited – Mitcham 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 . .
Cited – Medical 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 . .
Cited – McGowan (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 . .
Cited – Oshungbure 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

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:
Cited – Inco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Fothergill 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 . .
Cited – Secretary 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 . .
Cited – Public 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 . .
Cited – Broniowski 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 . .
Cited – The 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 . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – The 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 . .
Cited – Tuck and Sons v Priester 1887
A person should not be penalised except under a clear law: ‘If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more . .
Cited – Mannai 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 . .
Cited – Regina 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 . .
Cited – Kelly 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 . .
Cited – Regina v PD and EB CACD 8-Sep-2011
(Iraq Sanctions) The court was asked as to the manner in which Security Council Resolutions relating to the arms trade are implemented in the domestic law of the United Kingdom under the United Nations Act 1946.
Held: Laws LJ, rejecting an . .
Cited – Dowds 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 . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .

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 Tribunal – RC v Secretary of State for Work and Pensions UTAA 15-Apr-2009
. .
At First Instance – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Appeal from – Cart, 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 . .
Cited – Rex 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 . .
Cited – Anisminic 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 . .
Mentioned – Regina 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 . .
Cited – In 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 from – EBA 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 . .
Cited – Regina v Immigration Appeal Tribunal, ex parte Darsham Singh Sohal QBD 1981
. .
Cited – Regina 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 . .
Cited – Bone 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. . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Chessington 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 . .
Cited – Regina 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. . .
Cited – Cooke 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 . .
Cited – Sivasubramaniam 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.
Cited – FA (Iraq) and PD (India) v Secretary of State for the Home Department CA 28-Jun-2010
. .
Cited – Wiles 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, . .
Cited – Secretary 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. . .
Disapproved – Sinclair 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 Also – EBA 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 . .
Cited – Daejan 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 . .
Cited – Walsall 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 . .
Cited – 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 . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .

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:
Applied – Alterskye 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.’ . .
Cited – Attorney-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 . .
Cited – Coco 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 . .
Cited – Conway 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 . .
Cited – D 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 . .
Cited – Halcon 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 . .
Approved – Riddick 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 . .
Cited – Saltman 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 . .
Cited – Scott 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 . .
Cited – Williams 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 Also – Williams 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 . .
Cited – Science 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 . .
Cited – The 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:
Cited – Taylor 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 . .
Cited – Bowman 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 . .
Cited – HRH 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 . .
Cited – Mohammadzadeh 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 . .
Cited – McBride 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 . .
Cited – British 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 . .
Cited – 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 . .
Cited – Regina v O’Brien SC 2-Apr-2014
The court considered how to apply the rule that an extradition may only be for trial on matters committed before the extradition if they have been the basis of the request to a defendant’s commission of contempt of court after conviction. After . .
Cited – Tchenguiz 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:
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – 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 . .
Cited – Liyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .

Lists of cited by and citing cases may be incomplete.

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 from – Regina (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 . .
Adopted – Royal 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 . .
Cited – Grant 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 . .
Cited – Cabell 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 . .
Cited – Christopher 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 . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .

Cited by:
Cited – Quintavalle, 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 . .
Cited – Kirin-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 . .
Cited – Quintavalle 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 . .
Cited – Regina 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 . .
Cited – Kay 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 . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Gaunt 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 . .
Cited – British 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 . .
Cited – British 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 . .
Cited – Robertson 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 . .
Cited – Trail 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 . .
Cited – English Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
Cited – Transport 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 . .
Cited – Trail 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 . .
Cited – Littlewoods 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 . .
Cited – Barlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – Owens 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 instance – Alvi, 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. . .
Cited – Odelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
Confirmed – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Appeal from – Alvi, 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 . .
Cited – Regina v Home Secretary, ex parte Hosenball CA 1977
A United States’ citizen was subject to a deportation decision which was held not amenable to judicial review on the ground of national security. He appealed.
Held: Neither a failure to lay rules before Parliament within the allotted time, nor . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Smith 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 – Munir 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 . .
Cited – English 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 . .
Cited – Humphreys 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 . .
Cited – Joint 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 . .
Cited – Regina (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 . .
Cited – New 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 . .
Cited – Ahmed, 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:
Applied – Ferrer (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 . .
Cited – New 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 . .
Cited – Patel 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 . .
Cited – Hesham 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 . .
Cited – MM (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:
Cited – Stec 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 . .
Cited – Smith 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:
Cited – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Cited – Countryside 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 . .
Cited – Black, 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 . .
Cited – Young, 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 . .
Cited – Mathieson v Secretary of State for Work and Pensions SC 8-Jul-2015
The claimant a boy of three in receipt of disability living allowance (‘DLA’) challenged (through his parents) the withdrawal of that benefit whilst he was in hospital for a period of more than 12 weeks. He had since died.
Held: The appeal . .
Cited – Robinson, Regina (on The Application of) v HMP Whatton and Another Admn 4-Dec-2013
Two prisoners serving sentences of imprisonment for public protection sought judicial review of arrangements meaning that they had not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their . .
Cited – Kaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
Cited – 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 . .
See Also – Clift 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 . .
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Cited – Stott, 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:
Cited – Regina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
Cited – Regina 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 . .
Cited – Horncastle 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

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:
Cited – The Zamora PC 1916
Lord Parker said: ‘The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. . .

Cited by:
Cited – Regina 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 . .
Cited – Bloggs 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 . .
Cited – Boddington 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 . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Rowland 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 . .
Cited – Office 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 . .
Cited – Regina 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 . .
Cited – Jones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
Cited – Naidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago PC 12-Oct-2004
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
Cited – Ozbek 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 . .
Cited – Regina 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 . .
Cited – Gentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
Cited – Campaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
Cited – X, Regina (on the Application of) v Y School Admn 21-Feb-2007
The court was asked whether a school was entitled to refuse to allow a Muslim girl to wear the niqab full face veil at school. The reasons were ‘first educational factors resulting from a teacher being unable to see the face of the girl with a . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – BAPIO 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 . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Wheeler 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 . .
Cited – Albert 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 HL – Council 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. . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Cited – Walton 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 . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Braganza 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 . .
Cited – Regina (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 . .
Mentioned – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Cited – The Project Management Institute, Regina (on The Application of) v The Minister for The Cabinet Office and Others Admn 17-Jul-2014
Mitting J set out the background to Royal Charters: ‘This is, I believe, the first time that the grant or refusal of a Royal Charter has been the subject of litigation. I propose, therefore, to begin by a brief analysis of the history and nature of . .
Cited – English Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
Cited – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Cited – Youssef 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 . .
Cited – Lloyd 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.
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Cited – Gallaher 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

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:
Approved – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Jennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Applied – Regina 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 . .
Cited – Office 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 . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Chaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
Cited – 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 . .
Cited – Kimathi 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

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

Lists of cited by and citing cases may be incomplete.

Media, Administrative, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.241360

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

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.231156

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 Instance – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs Admn 22-Jul-2003
The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy . .
Appeal from – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for the Foreign and Commonwealth Affairs CA 29-Apr-2004
The claimant sought damages for having had its licence to catch Patagonian toothfish off South Georgia revoked, saying that it had infringed its property rights under the Convention.
Held: Though the Convention rights had been extended to . .
Cited – In re Bateman’s Trust 1873
The queen is the queen of New South Wales. . .
Cited – Regina v The Secretary of State for The Home Department, ex parte Bhurosah CA 1968
In Mauritius the Queen is the Queen of Mauritius and the issuing of passports by the Government of Mauritius, although a matter of foreign affairs and therefore under the control of the UK Government, was an act carried out in the name of the Queen . .
Cited – X 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 . .
Cited – The Queen in Right of Alberta v Canadian Transport Commission 1977
The Crown in right of Alberta may be equated with the Government of Alberta. . .
Cited – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
Cited – Gillow 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 . .
Cited – Regina v The Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta CA 1982
The court considered an application leave to request a judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her government in the UK.
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Cited – Bui 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. . .
Cited – X 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 . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Bui 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. . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Drozd 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:
Cited – Regina (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 . .
Cited – Ali 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 . .
Cited – Al-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 . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – McCaughey 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. . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .

Lists of cited by and citing cases may be incomplete.

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:
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Appeal from – Cherry, Joanna Cherry QC Mp and Others for Judicial Review SCS 4-Sep-2019
(Outer House) . .
Cited – Macleod v Lewis Justices of Peace SCS 20-Dec-1892
. .
Cited – Glasgow 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 . .
Cited – The 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 . .
Cited – Somerville 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; . .
Cited – Scottish 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 . .
Cited – The British Broadcasting Corporation for Access To Crown Productions In The Cases of Her Majesty’s Advocate v Hainey HCJ 12-Jan-2012
. .
Cited – 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 . .
Cited – 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 . .
Cited – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
Cited – Cape 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 . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
Cited – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Cited – Jackson 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 . .
Cited – Edwards 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 . .
Cited – The Cheng Poh Alias Char Mer v The Public Prosecutor of Malaysia PC 11-Dec-1978
(Malaysia) . .
Cited – Wightman, 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) . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Cited – Secretary 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 . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Cited – Belize 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 . .
Cited – The King v Wilde 1793
The Court ex officio ought to take notice of the beginning and end of prorogations and sessions of Parliament. . .
Cited – Her Majesty’s Advocate v Coulson HCJ 3-Jun-2015
. .
Cited – Adegbenro v Chief S L Akintola and Sir Adesoji Aderemi PC 27-May-1963
Nigeria – removal of premier of Western Region from office . .
Cited – Gibson v Lord Advocate SCS 7-Mar-1975
. .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Cited – Adams, 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 . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Cited – Belize 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 . .
Cited – McGeoch, Re Judicial Review SCS 15-Jan-2013
(Outer House, Court of Session) Challenge to refusal of legal aid. . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Lord 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 House – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .

Lists of cited by and citing cases may be incomplete.

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:
Cited – Regina 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: . .
Cited – Attorney-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:
Cited – Rutter, 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 . .
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – Imperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Cited – Her 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:
Cited – Regina 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:
Cited – Adelson 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 . .
Cited – In 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 . . . .
Cited – Al 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:
Cited – Re 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 . .
Cited – Corner 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

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:
Cited – Gary 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 . .
Cited – Khan 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 . .
Cited – McGibbon 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 . .
Cited – Lawrie 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 . .
Cited – Malone 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’. . .
Cited – Amann 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 . .
Cited – Rotaru 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 . .
Cited – Hoekstra and Others v Her Majesty’s Advocate High Court of Justiciary PC 26-Oct-2000
The Privy Council has no standing to act as a general court of appeal on Scottish law. The jurisdiction given to it by the Act, was limited as prescribed by the Act to what are called devolution issues, issues related to the acts of devolution. Not . .
Cited – PG 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 . .
Cited – Perry 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 . .
Cited – Gilchrist 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 . .
Cited – Bykov v Russia ECHR 10-Mar-2009
. .
Cited – Bykov v Russia ECHR 10-Mar-2009
. .

Cited by:
Cited – Catt 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 . .
Cited – ZXC 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:
Cited – Smedleys 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 . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – Regina 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 . .
Cited – Schloendorff 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 . .
Cited – Airedale 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 . .
Cited – In 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 . .
Cited – Rodriguez 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 . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – RJM, 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 . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Cassell 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. . .
Cited – Countryside 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 . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – X (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 . .
Cited – Regina 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 . .
Cited – Dunbar (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 . .
Cited – London Street Tramways v London County Council HL 25-Apr-1898
House Decisions binding on Itself
The House laid down principles for the doctrine of precedent. When faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was . .
Cited – Regina 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 from – Purdy, 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:
Cited – Maclaine 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 . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.

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 Instance – Barclay and Others, Regina (on the Application of) v The Seigneur of Sark and Another Admn 18-Jun-2008
The claimants said that the the laws restricting residence and voting rights and oher constitutional arrangements on the Isle of Sark were in breach of European law, and human rights law.
Held: The claims failed. The composition of Chief Pleas . .
Appeal From – Barclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
Cited – Mathieu 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 . .
Cited – Yumak And Sadak v Turkey ECHR 8-Jul-2008
. .
Cited – McGonnell v The United Kingdom ECHR 8-Feb-2000
The applicant owned land in the parish of St Martin’s in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a . .
Cited – Zdanoka 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 – Tanase And Chirtoaca v Moldova ECHR 18-Nov-2008
The applicants challenged a law which prevented them standing as candidates in elections. . .
Cited – Zdanoka 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:
Cited – Chester, 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 . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, 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:
Cited – MR, 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:
Cited – HM 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 . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Regina 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 . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Child 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 . .
Cited – Munir 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 . .
Cited – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .

Lists of cited by and citing cases may be incomplete.

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:
Cited – The Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .
Cited – The Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .
Cited – Regina (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 . .
Cited – Office 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 . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Brown, 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 . .
Cited – JB (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 . .
Cited – Brown (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:
Cited – Regina 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 . .
Cited – Regina 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. . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg Admn 30-Jul-1993
The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by . .
Cited – Regina v Her Majesty’s Treasury, Ex parte Smedley CA 19-Dec-1984
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before . .
Cited – Regina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .
Cited – Regina 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 . .
Cited – Hanks 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 . .
Cited – Regina v Inner London Education Authority, ex parte Westminster City Council 1986
A political purpose can taint an administrative decision with impropriety. . .
Cited – Regina 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:
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – Good 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