Links: Home | swarblaw - law discussions

swarb.co.uk - law index


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: 2004 To: 2004

This page lists 21 cases, and was prepared on 20 May 2019.

 
Perth and Kinross Council v Donaldson and Others [2004] ICR 667
2004

Lord Johnson
Employment, Constitutional
The court considered whether the TUPE regulations in going beyond what was required under the European Directive was invalid. Held: "If it is to be suggested that the 1981 Regulations have effectively allowed the Directive to operate in that context, we consider that it falls foul of the approach that we adopted in Addison v Denholm Ship Management (UK) Ltd [1997] ICR 770 to the effect that it is going beyond the scope of the Directive and would therefore in that respect be ultra vires. The issue requires to be addressed by primary legislation."
1 Cites

1 Citers


 
Scott v Regina [2004] 123 CRR (2d) 371
2004


Constitutional, Armed Forces
Participation in religious prayers were required of soldiers during routine parades at a Canadian Forces base. The soldiers were preceded by an order to remove headdress. The soldier had no religious convictions, had (after having previously raised with his superior his concerns about being made to participate in a prayer service in which he did not believe) refused to remove his headdress (but had evidently continued to stand on parade) and was being charged simply with that refusal. Held: The order conflicted with paragraph 2(a) of the Charter: "The order that was given . . was to show 'respect' for what was being done and not mere passive toleration. That is to say, it was designed to constrain him to make a public gesture of approval for a religious ceremony in which he did not believe. .
The fact that the practice of pronouncing prayers at parades and requiring some form of public assent thereto has been hallowed by a tradition of many years in the military as well as other circles cannot justify a breach of the appellant's Charter rights. We emphasize that what was required of the appellant was active participation in the religious ceremony with which he disagreed. The question of enforced passive participation by mere presence is an entirely different issue and one that we do not reach today."
1 Citers


 
George Worme Grenada Today Limited v The Commissioner of Police [2004] UKPC 8; Times, 05 February 2004; Gazette, 04 March 2004
29 Jan 2004
PC
Lord Bingham of Cornhill, Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe
Commonwealth, Human Rights, Constitutional
PC (Grenada) The defendant was editor of a newspaper which carried a story severely defamatory of the prime minister. He was convicted of criminal libel, and appealed. Held: The appeal was dismissed. The onus of proof remained, correctly, on the prosecution to prove that the libel was false. The prosecution also had to show that the publication was not for the public benefit. The protection of public reputation is important, and it was not conducive to the public good for the reputation of public figures to be debased falsely. The availability of a civil remedy did not show that a criminal remedy was unnecessary. There was a reasonable requirement for the offence, and the offence as set down did not go further than necessary.
Grenada Constitution Order 1973
1 Cites

[ Bailii ] - [ PC ]
 
Bishop of Roman Catholic Diocese of Port Louis and Others v Suttyhudeo Tengur and Others [2004] UKPC 9
3 Feb 2004
PC

Commonwealth, Constitutional, Education
PC (Mauritius) A father challenged the constitutionality of a system where 50% of places in Catholic run secondary schools were allocated to Catholic childen, and fifty per cent according to merit. He feared this would discriminate against his daughter as a Hindu. The Supreme Court upheld his claim, and the Colleges appealed. Held: The constitution acknowledged the rights to establish church based schools, but also guaranteed against discrimination for religion. The giving of preference to one group of applicants necessarily works to the disadvantage of any group of applicants to whom preference is not given, but differentiation without more is not enough to enable the father to succeed. The differentiation required justification, but no sufficient justification had been put forward. The appeal was dismissed.
1 Cites

[ PC ] - [ Bailii ] - [ PC ] - [ PC ]
 
Flynn, Meek, Nicol and McMurray v Her Majesty's Advocate Times, 18 March 2004; [2004] UKPC D1
18 Mar 2004
PC
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
Scotland, Criminal Sentencing, Human Rights, Constitutional
PC (High Court of Justiciary) The applicants had each been convicted of murder, and complained that the transitional provisions for determining how long should be served under the life sentences infringed their Human Rights, the Act being made outside the competence of the Scottish Parliament. Held: The 2001 Act incorporated the Human Rights Convention into Scottish law. It should not be taken to take away any existing right. Accordingly when deciding the punitive part of a punishment so as to prevent reference of his case to the Parole Board, the court must take account any date already set for such a hearing.
Prisoners and Criminal Proceedings (Scotland) Act 1993 2 - Convention Rights (Compliance) (Scotland) Act 2001
1 Cites

1 Citers

[ PC ] - [ Bailii ]
 
Daraydan Holdings Limited, Cairn Estates Limited and Others v Solland International Limited and Others [2004] EWHC 622 (Ch); [2005] Ch 119
26 Mar 2004
ChD
Lawrence Collins J
Contract, Constitutional
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 the judge was able to distinguish Lister and Co v Stubbs but said, if he had been unable to do so, he would have applied Attorney General for Hong Kong v Reid.
Lawrence Collins J said: "The House of Lords forcefully reaffirmed the rules of stare decisis in Davis v Johnson [1979] AC 264, but nothing was said about the decisions both in the Court of Appeal (eg Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518 and Worcester Works Finance Ltd v Cooden Engineering Co Ltd [1972] 1 QB 210) and at first instance which suggest that both a judge of first instance and the Court of Appeal are free to follow decisions of the Privy Council on common law principles which depart, after full argument, from earlier decisions of the Court of Appeal . . The system of precedent would be shown in a most unfavourable light if a litigant in such a case were forced by the doctrine of binding precedent to go to the House of Lords (perhaps through a leap-frog appeal under the Administration of Justice Act 1969, section 12) in order to have the decision of the Privy Council affirmed. That would be particularly so where the decision of the Privy Council is recent, where it was a decision on the English common law, where the Board consisted mainly of serving Law Lords, and where the decision had been made after full argument on the correctness of the earlier decision."
1 Cites

1 Citers

[ Bailii ]
 
Boodhoo, Jagram, (suing on behalf of themselves and the Sanatan Dharma Sudhar Sadha) v The Attorney General of Trinidad and Tobago [2004] UKPC 17; Times, 09 April 2004; [2004] 1 WLR 1689
1 Apr 2004
PC
Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
Commonwealth, Constitutional
PC (Trinidad and Tobago) The complainant said that his constitutional rights had been infringed by the court's delay. Proceedings had begun in 1987 for redress with regard to a land dispute. There was substantial delay in the appeal, and at one point a judge had died after hearing the application but before he had delivered his judgement. Neither party could afford the necessary rehearing, and nor were they offered financial assistance. Held: The constitution did not give a right to a hearing within any time frame. When the application was framed as a 'protection of the law' issue, the court should look first to the quality of the justice provided, and not its time frame. Different considerations applied for the failure to hand down a judgment as opposed to a failure to provide a hearing. A delay in producing a judgment deprived a party of his right to the protection of the law only where the judge ceased to be able to provide it, or the parties were unable to obtain the necessary benefit. A close definition of what delay was required for an infringement would not be fruitful. In this particular case a delay of 12 months was not unacceptable, and nor did the state deny protection by not providing financial assistance where a new trial became necessary.
1 Cites

1 Citers

[ Bailii ] - [ PC ]
 
Bhagwandeen v Attorney General of Trinidad and Tobago [2004] UKPC 21
17 May 2004
PC
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
Constitutional, Discrimination
Trinidad and Tobago - The Board was asked whether the Commissioner of Police (the Commissioner) had treated the appellant unequally and/or unfairly and had discriminated against him in refusing to recommend him for promotion from the rank of constable to that of corporal, contrary to section 4(b) and (d) of the Constitution.
[ Bailii ]
 
Independent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions [2005] 1 AC 190; [2004] 3 WLR 611; [2004] UKPC 26; [2005] 1 All ER 499
8 Jun 2004
PC
Lord Bingham of Cornhill, Lord Hoffmann, Lord Walker of Gestingthorpe, Lord Carswell, Lord Brown of Eaton-under-Heywood
Constitutional, Media, Contempt of Court
PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: "In deciding whether someone's section 4 (a) 'right not to be deprived [of their liberty] except by due process of law' has been violated, it is the legal system as a whole which must be looked at, not merely one part of it. The fundamental human right, as Lord Diplock said [in Maharaj v Attorney General of Trinidad and Tobago (No. 2) [1979] AC 385], is to 'a legal system ... that is fair'. Where, as in Mr Maharaj's case, there was no avenue of redress (save only an appeal by special leave direct to the Privy Council) from a manifestly unfair committal to prison, ... one can understand why the legal system should be characterised as unfair. Where, however, as in the present case, Mr Ali was able to secure his release on bail within 4 days of his committal – indeed, within only one day of his appeal to the Court of Appeal – their Lordships would hold the legal system as a whole to be a fair one."
Constitution of Trinidad and Tobago 14
1 Cites

1 Citers

[ PC ] - [ Bailii ] - [ PC ]

 
 Pabla Ky v Finland; ECHR 22-Jun-2004 - 47221/99; [2004] ECHR 279; [2006] 42 EHRR 34

 
 Syndicat Northcrest v Amselem; 30-Jun-2004 - (2004) 241 DLR (4th) 1; [2004] 2 SCR 551
 
Boyce and Joseph v Regina [2004] UKPC 32; Times, 17 July 2004
7 Jul 2004
PC
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
Commonwealth, Criminal Sentencing, Constitutional
(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 effect, even though the penalty might otherwise constitute inhuman or degrading treatment.
1 Cites

1 Citers

[ Bailii ]
 
Watson v Regina [2004] UKPC 34; Times, 14 July 2004; [2005] 1 AC 472
7 Jul 2004
PC
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
Commonwealth, Criminal Sentencing, Constitutional
(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.
1 Cites

1 Citers

[ Bailii ] - [ PC ] - [ PC ]
 
Matthew vThe State [2004] UKPC 33; Times, 14 July 2004; [2005] 1 AC 433
7 Jul 2004
PC
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
Commonwealth, Criminal Sentencing, Human Rights, Constitutional
(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 death penalty was a cruel treatment, but the preservation of existing punishments meant that the mandatory detah penalty for murder was not unconstitutional. The argument otherwise would deny the supremacy of the constitution.
1 Cites

1 Citers

[ Bailii ] - [ PC ]
 
National Westminster Bank Plc v Spectrum Plus Ltd and Others; In re Spectrum Plus Ltd (in liquidation) [2004] EWCA Civ 670; [2004] 3 WLR 503; [2004] Ch 337
12 Jul 2004
CA
Lord Phillips of Worth Matravers MR, Jonathan Parker, Jacob LJJ
Constitutional, Insolvency
The High Court or the Court of Appeal should not follow a decision of the Privy Council in place of a decision of the House of Lords, unless the circumstances are quite exceptional and the court is satisfied that in practice the result would be a foregone conclusion
Insolvency Act 1986 112
1 Citers

[ Bailii ]

 
 Jennings v Buchanan; PC 14-Jul-2004 - [2004] UKPC 36; Times, 19 July 2004; [2004] EMLR 22; [2005] 1 AC 115; [2005] 2 All ER 273
 
Chagos Islanders v Attorney-General and Another [2004] EWCA Civ 997; Times, 21 September 2004
22 Jul 2004
CA
Lord Justice Sedley The President Lord Justice Neuberger
Constitutional
The claimants sought leave to appeal against a finding that they had no cause of action for their expulsion from their islands. Held: "Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already established by the judgment in Bancoult. But to make it a state tort requires a legal system in which the Crown, in private law, can do wrong; and this, apart from the Human Rights Act, we do not have. " As to misfeasance, the claimant was unable to point to any officer who knew of the illegality of their actions. The claim under deceit failed because no official was identified as acting in this way, and any statement to a third party not acting as agent for the claimant could not give rise to a claim. Leave to appeal was refused.
1 Cites

1 Citers

[ Bailii ]
 
Naidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago [2004] 3 WLR 1430; [2005] 1 AC 538; [2004] UKPC 49
12 Oct 2004
PC
Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
Constitutional
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was not brought to court, and sought habeas corpus. An order was made for his deportation, of which he sought judicial review. Held: As to the complaint about the lack of opportunity to make representations on the non renewal of his work permit, it was said that he had taken unpaid work as a pastor. He had not been given opportunity to make representations on that. Appeal allowed in part.
Lady Hale said: "The decision-maker has to balance the reason for the expulsion against the impact upon other family members, including any alternative means of preserving family ties. The reason for deporting may be comparatively weak, while the impact on the rest of the family, either of being left behind or of being forced to leave their own country, may be severe. On the other hand, the reason for deporting may be very strong, or it may be entirely reasonable to expect the other family members to leave with the person deported."
1 Cites

[ Bailii ]
 
Attorney General's Reference (No 5 of 2002) [2004] UKHL 40; [2004] 4 All ER 901; [2005] 1 AC 167; [2004] 3 WLR 957
14 Oct 2004
HL
Lord Bingham Of Cornhill
Criminal Practice, Constitutional
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, three of his officers, were selling confidential information to criminals. He ordered their telephones to be tapped. The resulting evidence was used in their trial. The systems tapped involved different networks of telephone systems, some private and some public. Held: The basic object of section 17 appears to be to preserve the secrecy of the warrant system. There was nothing in the 2000 Act to suggest a parliamentary intention to render inadmissible as evidence in criminal proceedings any material which had previously been admissible. The Act did not operate to make such material inadmissible. It was permissible for the court to ask as to the source of such telephone intercept materials.
Lord Steyn said that in view of the absurdity that would otherwise result, the House must not give its literal interpretation to a statutory provision which, literally read, precluded the defence from asking questions to establish that there had been interception (consequently illegal) on part of a public telecommunications system, but allowed the prosecution to call evidence to the effect that the interceptions had taken place wholly within a police private telecommunications system (and were therefore legal). The linguistic difficulty was "decisively outweighed by a purposive interpretation of the statute".
Regulation of Investigatory Powers Act 2000 17(1)
1 Cites

1 Citers

[ House of Lords ] - [ Bailii ]
 
Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office [2004] EWCA Civ 1344; Times, 25 October 2004; [2005] 2 WLR 618; [2005] QB 643; [2004] HRLR 41; [2005] ACD 72; [2005] Imm AR 32; [2005] INLR 36
18 Oct 2004
CA
Lord Justice Chadwick Lord Phillips Mr Slynn Of Hadley Lord
Human Rights, Immigration, Constitutional
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.
European Convention on Human Rights 1 - Human Rights Act 1998
1 Cites

1 Citers

[ Bailii ]
 
Ramawat Dosoruth v The State of Mauritius The Director of Public Prosecutions [2004] UKPC 51
21 Oct 2004
PC
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood, Sir Andrew Leggatt
Crime, Constitutional
PC (Mauritius) The defendant challenged his conviction for having taken a bribe saying there had been an injustice, and seeking protection directly under the constitution. The evidence against him was that a transaction had been carried out at a bank on a certain day. Only after the trial was it realised that that day was a Saturday, and that it could not have happened. He had not been allowed to raise this point on appeal. Held: The court had been correct to take judicial note of a bank not being open on a Saturday afteroon. Whilst the court might be more ready to apply a broader test for admission of new evidence on an appeal, not all such evidence should be admitted. The powers of the appellate court in Mauritius were not limited to the provision of a re-hearing, but could include other actions as provided by the constitution. The petition was dismissed.
1 Cites

[ PC ] - [ Bailii ]
 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.