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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Constitutional - From: 1996 To: 1996

This page lists 17 cases, and was prepared on 20 May 2019.

 
Fernando v Sri Lanka Broadcasting Corporation (1996) 1 BHRC 104
1996

Fernando J
Media, Commonwealth, Constitutional
(Sri Lanka) Broadcasts were planned including discussion by experts and listeners. Mr Fernando had participated in these discussions. After criticisms of the government the service came to an end and the broadcasts included little listener participation. Art 14 of the Constitution gave every citizen the freedom of speech and expression including publication”. The Supreme Court of Sri Lanka rejected the contention that the right to freedom of information simpliciter is included in the right to freedom of speech and expression. The right to receive information was in Article 10 of the Constitution that “every person is entitled to freedom of thought” which was the corollary of freedom of speech. Held: The freedom of speech of the petitioner, qua participatory listener, was infringed, because the stoppage of the NFEP prevented his participation. He was in the same position as the contributor of a column in Visuvalingam and the plaintiff in Lamont.
1 Citers


 
Thomas Reckley v Minister of Public Safety and Immigration and Others (Bahamas) (No 2) Times, 06 February 1996; [1996] UKPC 1; [1996] 1 All ER 562
6 Feb 1996
PC

Constitutional, Criminal Sentencing, Commonwealth
(The Bahamas) The actual exercise of the prerogative of mercy by a state falls outside the scope of the law. No further stay of execution granted.
[ Bailii ] - [ PC ] - [ PC ]
 
Regina v Secretary of State for Social Security ex parte Sherwin (a Patient By Her Next Friend Sherwin) CO/1724/95; (1996) 32 BMLR 1
16 Feb 1996
Admn
Lord Justice Kennedy and Mr Justice Latham
Constitutional, Benefits
An official in the Benefits Agency, part of the Department of Health and Social Security, suspended an income support/severe disability premium payable to the appellant. The court was asked whether the decision of the Agency, made under the authority of its chief executive, was to be regarded, as a matter of law, as the decision of the Secretary of State. The court examined the Framework document setting out the position of the Agency in relation to the DHSS which "acts on behalf of and in accordance with any directions, where appropriate, of the Secretary of State". Ministers - the Framework provided - remain accountable to Parliament for the full range of their responsibilities. Held:
After a close examination of the inter-relationship between the Agency and the Department, Lord Justice Kennedy concluded: "In my judgment, in the context of this case, the creation of the Benefits Agency has had no effect whatsoever on the operation of the Carltona principle. In addition to the cases to which I have referred, Mr Drabble referred us to a number of academic writings which I have read with interest. At the end of the day I came back to what was said by Lord Griffiths in Oladehinde. The decision was taken by a person of suitable seniority in the Agency (which was itself within the DSS) and it was taken by a person for whom the Secretary of State accepts responsibility. Therefore the Carltona principle applies."
Latham J added: "There may be circumstances in which an agency is established in such a way that a minister could no longer, on any sensible analysis, be accountable to Parliament for its actions. The report of the Efficiency Unit was alive to that particular problem. In my judgment however the Benefits Agency has been established in a way which does not create any such difficulty. The use of the word 'delegate' was perhaps unfortunate but it has to be read in context. The intention was to ensure that the administration of benefits was located within a structure which, so far as possible, was a recognisable entity with lines of managerial responsibility intended to make it effective. That did not affect the constitutional position when, in accordance with the guidance which I have set out above, Mr Ash exercised the Secretary of State's power under Regulation 37. That power was exercised by Mr Ash as a civil servant within the Department of Social Security on the authority of the Secretary of State in circumstances where the Secretary of State was answerable to Parliament."
1 Citers



 
 Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4); ECJ 5-Mar-1996 - Times, 07 March 1996; [1996] 2 WLR 506; [1996] IRLR 267; (1996) 1 CMLR 889; C-46/93; [1996] QB 404; C-48/93; [1996] ECR 1-1029; [1996] EUECJ C-46/93; [1996] CEC 295; [1996] All ER (EC) 301; [1996] 1 CMLR 889

 
 Commission v Council - C-25/94; ECJ 19-Mar-1996 - [1996] EUECJ C-25/94
 
Al-Adsani v Government of Kuwait and Others (No 2) Times, 29 March 1996; (1996) 107 ILR 536
29 Mar 1996
CA
Stuart-Smith LJ, Ward LJ
International, Constitutional
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he had in consequence suffered psychological damage after returning to and while in England. The Government of Kuwait applied to set aside the service on it, and for a declaration that it had immunity under s.1(1) of the 1978 Act. Held: The State of Kuwait was entitled to state immunity from a claim for damages for torture. The Act was a comprehensive code. Although international law prohibited torture, no express or implied exception to immunity existed in cases of torture. The draftsman of the State Immunity Act must have been well aware of the numerous international conventions covering torture (although he could not, of course, have been aware of the convention against torture in 1984). If civil claims based on acts of torture were intended to be excluded from the immunity afforded by section 1(1) of the Act of 1978, because of the horrifying nature of such acts, or because they are condemned by international law, it is inconceivable that section 1(1) would not have said so.
Ward LJ: (As to the 1978 Act) "Unfortunately, the Act is as plain as plain can be. A foreign state enjoys no immunity for acts causing personal injury committed in the United Kingdom and if that is expressly provided for the conclusion is impossible to escape that state immunity is afforded in respect of acts of torture committed outside this jurisdiction."
Stuart-Smith LJ: "At common law a sovereign state could not be sued at all against its will in the courts of this country. The 1978 Act, by the exceptions therein set out, makes substantial inroads into this principle. It is inconceivable, it seems to me, that the draftsman, who must have been well aware of the various international agreements about torture, intended section 1 to be subject to an overriding qualification."
State Immunity Act 1978 1(1)
1 Cites

1 Citers



 
 Three Rivers District Council v Bank of England; QBD 22-Apr-1996 - Times, 22 April 1996; [1996] 3 All ER 558; [1996] 3 All ER 634

 
 Douglas and others v The Right Honourable Sir Lynden Oscar Pindling; PC 13-May-1996 - Gazette, 30 May 1996; [1996] UKPC 8; [1996] AC 890

 
 Ming Pao Newspapers Limited and others v The Attorney General of Hong Kong; PC 20-May-1996 - [1996] UKPC 12; [1996] AC 907

 
 Director of Public Prosecutions and others v Tokai and others; PC 12-Jun-1996 - [1996] AC 856; Appeal No 53 of 1995; [1996] UKPC 2; [1996] UKPC 19

 
 Farrington v The Queen; PC 17-Jun-1996 - Times, 16 July 1996; [1996] UKPC 20
 
An Taisce and WWF UK v Commission of the European Communities. C-325/94; [1996] EUECJ C-325/94P
11 Jul 1996
ECJ

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

 
 Williamson v Archbishop of Canterbury Archbishop of York Church Commissioners; CA 5-Sep-1996 - [1996] EWCA Civ 600
 
Efisol v Commission T-336/94; [1996] EUECJ T-336/94; [1997] 3 CMLR 298; [1996] ECR II-1343
16 Oct 1996
ECFI

Constitutional
ECJ 1 Non-contractual liability - Conditions - Illegality - Damage - Causal link
(EC Treaty, Art. 215, second para.)
2 Community law - Principles - Protection of legitimate expectations - Conditions
3 Acts of the institutions - Adoption foreseeable by a prudent and discriminating trader - Principle of the protection of legitimate expectations - Not applicable
4 Environment - Protection of the ozone layer - Regulation No 594/91 on substances that deplete the ozone layer - Authorization to import into the Community - Administrative procedure - Allocation of a quota - Issue of import licences
(Council Regulation No 594/91, Arts 3 and 4)
5 Community law - Principles - Protection of legitimate expectations - Withdrawal of a measure within a reasonable period - No legitimate expectation
6 Community law - Principles - Protection of legitimate expectations - Conduct on the part of a Community institution which is inconsistent with Community rules - No legitimate expectation
7 Procedure - Costs - Costs caused unreasonably or vexatiously
(Rules of Procedure of the Court of First Instance, Art. 87(3), second subpara.)
8 The incurring by the Community of non-contractual liability, within the meaning of the second paragraph of Article 215 of the Treaty, depends on fulfilment of a set of conditions as regards the unlawfulness of the conduct alleged against the Community institution, the fact of damage and the existence of a causal link between the conduct in question and the damage complained of.
9 The right to rely on legitimate expectations extends to any individual who is in a situation in which it is apparent that the Community administration, by giving him precise assurances, has led him to entertain justified expectations.
An individual cannot, by virtue of the allocation to him of an import quota, have a justified expectation that the import licences applied for will subsequently be issued to him, since such allocation is merely the first stage in securing an effective right to import.
10 If a prudent and discriminating trader could have foreseen the adoption of a Community measure likely to affect his interests, he cannot avail himself of any legitimate expectation if the measure is then adopted. Such will be the case where a trader has set in motion the transport by train of the consignments ordered without awaiting the decision of the Community institution on the application for import licences and without taking the precautions necessary to safeguard his interests in the event of the application for licences being rejected.
11 There are two stages in the administrative procedure laid down in Regulation No 594/91 for obtaining authorization to import into the Community substances that deplete the ozone layer: first, the allocation of a quota under Article 3 of that regulation and, second, the issue, pursuant to Article 4 thereof, of one or more import licences corresponding to the quota allocated. It follows that the right to import, accorded when a quota is allocated, takes effect only once an import licence has been issued. 12 There can be no finding that a legitimate expectation has arisen on the part of an individual where the measure liable to give rise to such expectation has been withdrawn by the administration within a reasonable period.
13 A legitimate expectation cannot arise from conduct on the part of a Community institution which is inconsistent with Community rules.
14 Where the conduct on the part of a defendant institution, which was inconsistent with the Community rules, has contributed to the creation of a dispute, an applicant cannot be criticized for having instituted proceedings before the Court for an assessment of that conduct, as well as of any damage which may have resulted from it. It is therefore necessary, in such circumstances, to apply the second subparagraph of Article 87(3) of the Rules of Procedure, according to which the Court may order a party, even if successful, to pay the costs of proceedings which, by its own conduct, it has caused the opposite party to incur.
[ Bailii ]
 
Regina v Secretary of State for Social Security ex parte Sutherland Times, 02 January 1997; [1996] EWHC Admin 208
7 Nov 1996
Admn
Laws J
Benefits, Constitutional
The Secretary of State has no power to issue regulations which would withhold benefits pending an appeal against their refusal. Laws J said: "where the executive has been allowed by the legislature to make law, it must abide strictly by the terms of its delegated authority."
1 Citers

[ Bailii ]
 
Regina v Secretary of State for Home Department ex parte Mohammed Fayed Times, 18 November 1996; [1996] EWCA Civ 946; [1998] 1 WLR 763; [1997] INLR 137; [1997] 1 All ER 228; [1997] COD 205
13 Nov 1996
CA
Woolf LJ MR
Immigration, Constitutional, Natural Justice, Judicial Review
The nature of the Secretary of State's objections and a chance to reply are to be given if the Secretary intends to deny an application for naturalisation. Administrative convenience cannot justify unfairness. The court deprecated 'fishing expeditons' by those seeking a judicial review.
Woolf LJ MR said: "on an application for judicial review there is usually no [disclosure] because [disclosure] should be unnecessary because it is the obligation of the [defendant] public body in its evidence to make fresh disclosure to the court of the decision-making process."
British Nationality Act 1981 44(2)
1 Citers

[ Bailii ]
 
Regina v Commissioners of Customs and Excise, ex Parte Kay and Co; Regina v Same, ex Parte Similar Times, 10 December 1996; [1996] STC 1500
10 Dec 1996
CA
Keene J
VAT, Constitutional
The commissioners had no power to impose time limits on retrospective refund claims.
Bill of Rights 1688 - Value Added Tax Act 1994 80
1 Cites

1 Citers


 
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