Tag: Commonwealth

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 to expel them without supporting legislative authority.

Judges:

Watson, Hobhouse, Herschell, MacNaghten, Morris, Hannen, Shand LL< Sir Richard Couch

Citations:

[1892] UKPC 47, [1892] AC 491

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

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

Commonwealth, Constitutional

Updated: 19 August 2022; Ref: scu.417688

Higgs v Leshel Maryas Investment Co and Another: PC 26 Nov 2009

(From the Court of Appeal of the Commonwealth of the Bahamas) The court was asked whether the appellant, Mr Kenneth Higgs, has obtained, whether for himself or on behalf of the estate of his late mother, Clotilda Higgs, of which estate he and a brother of his are the executors, a good possessory title to the land in New Providence Island later described to the exclusion of the other tenants-in-common of the land, and, in particular, the respondent.

Judges:

Lord Hope, Lord Scott, Lady Hale, Lord Brown, Lord Mance

Citations:

[2009] UKPC 47

Links:

Bailii

Commonwealth, Land

Updated: 07 August 2022; Ref: scu.381557

Lincoln Anthony Guerra v Cipriani Baptiste and others (No 2): PC 6 Nov 1995

(Trinidad and Tobago) The execution of a prisoner after a substantial delay of 5 years was a breach of his constitutional rights, constituting cruel and unusual punishment.

Citations:

Times 08-Nov-1995, Independent 15-Nov-1995, [1995] UKPC 3, Appeal No 11 of 1995, [1996] 1 AC 397

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – Pratt and Morgan v The Attorney General for Jamaica and Another PC 2-Nov-1993
(Jamaica) A five year delay in execution is excessive, and can itself amount to inhuman or degrading punishment. ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. . .
See Also – Lincoln Anthony Guerra and Another v Cipriani Baptiste and others PC 29-Jul-1994
(Trinidad and Tobago) A conservatory order could be made by the committee in order to prevent a prisoner being executed before his appeal could be heard by them. . .

Cited by:

Cited – Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others PC 16-Dec-1997
(The Bahamas) The extent of a delay before a trial is not relevant when considering whether a subsequent delay in carrying out an execution is cruel and inhuman punishment . .
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 – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing, Constitutional

Updated: 07 August 2022; Ref: scu.81077

Lincoln Anthony Guerra and Another v Cipriani Baptiste and others: PC 29 Jul 1994

(Trinidad and Tobago) A conservatory order could be made by the committee in order to prevent a prisoner being executed before his appeal could be heard by them.

Citations:

Independent 29-Sep-1994, Times 29-Jul-1994

Links:

PC

Jurisdiction:

England and Wales

Cited by:

See Also – Lincoln Anthony Guerra v Cipriani Baptiste and others (No 2) PC 6-Nov-1995
(Trinidad and Tobago) The execution of a prisoner after a substantial delay of 5 years was a breach of his constitutional rights, constituting cruel and unusual punishment. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 07 August 2022; Ref: scu.81074

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 injunction to preserve the situation pending a final ruling. That power derived from the power of any superior court to supervise its own procedures. The principles to be applied were the general ones applying those from American Cynamid, amended as necessary to accord with the context of public law. However, here the very substantial works were already under way, the claimants were understandably unable to undertake for any damages, and the balance of convenience lay against the applicants, and no order should be made.

Judges:

Lord Walker of Gestingthorpe Sir Martin Nourse Sir Andrew Leggatt

Citations:

[2003] UKPC 63, Times 25-Sep-2003, Gazette 16-Oct-2003, [2004] 2 P and CR 2, [2004] Env LR 16, [2003] 1 WLR 2839

Links:

Bailii, PC, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Thomas Reckley v The Minister of Public Safety and Immigration and others (Petition for a stay of execution) PC 13-Jun-1995
(The Bahamas) If a serious constitutional issue is fairly raised by an appeal as to the constitutionality of the death penalty, then the death penalty must be stayed. . .
Cited – Her Majesty’s Attorney General v Punch Limited and another HL 12-Dec-2002
A former MI5 agent, Mr Shayler, was to be prosecuted under the Official Secrets Act, and an injunction against publication was granted. The respondent published further works by Mr Shayler, and now appealed a finding that it had acted in contempt of . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .

Cited by:

See Also – 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 – 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 – 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.

Commonwealth, Litigation Practice, Environment

Updated: 28 July 2022; Ref: scu.185741

Green v Half Moon Bay Hotel (Antigua and Barbuda): PC 2 Jun 2009

The claimant appealed on the basis that the appeal court had not given reasons for its decision rejecting his appeal.
Held: There were real grounds to doubt elements of the applicant’s version of events, but in essence the appeal had been about whether any arguable issue of law arose. None had in fact been shown. The claimant had been able to understand why his appeal was rejected, and ‘where an appeal is possible only on a point of law quite brief reasons may be sufficient.’

Judges:

Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury

Citations:

[2009] UKPC 23

Links:

Bailii

Citing:

Applied – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 26 July 2022; Ref: scu.346617

Boodhoo, Jagram, (suing on behalf of themselves and the Sanatan Dharma Sudhar Sadha) v The Attorney General of Trinidad and Tobago: PC 1 Apr 2004

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.

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2004] UKPC 17, Times 09-Apr-2004, [2004] 1 WLR 1689

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – Goose v Wilson Sandford and Co and Mainon CA 13-Feb-1998
A judge was properly criticised for failing to write up a judgment when the witness’ evidence was still fresh in his mind. A two year delay required a re-trial.
Peter Gibson LJ explained the potential effect of delay on the formulation and . .
Mentioned – Sookermany v Director of Public Prosecutions 1-May-1996
The Court of Appeal of Trinidad and Tobago dismissed an appeal against refusal of constitutional relief claimed on the ground of undue delay:- ‘As there are admittedly measures available to a trial judge to negative the prejudicial effect on the . .
Cited – Director of Public Prosecutions and others v Tokai and others PC 12-Jun-1996
(Trinidad and Tobago) The appellant had been charged in 1981 with offences alleged to have been committed shortly before. The proceedings continued until his appeal for one was dismissed in 1988. The wounding charges were proceeded with only in . .
Cited – Maharaj v Attorney General of Trinidad and Tobago (No 2) PC 27-Feb-1978
(Trinidad and Tobago) The appellant barrister has been convicted of contempt. The Board had previously found the conviction improper because the basis of the complaint had not been made clear to him. The appellant now sought damages for his . .
Cited – Cobham v Frett PC 18-Dec-2000
(British Virgin Islands) Two issues arose. First, what was the consequence of inordinate delay between a judge hearing a case and giving his decision, and secondly, how was the law of adverse possession to be applied in cases of interrupted or . .

Cited by:

Cited – Campbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
Cited – Bond v Dunster Properties Ltd and Others CA 21-Apr-2011
The defendant appealed against the judge’s findings as to fact delivered some 22 months after the hearing.
Held: The appeal failed. Though such a delay must require the court carefully to investigate the judgment, it did not of itself . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 26 July 2022; Ref: scu.195698

Lewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another: PC 12 Sep 2000

(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, and the necessary disclosures to be made. Such a petition should be the last step in the process, and should not be complete until other international bodies had considered applications to them. In this case also the extent of delay was sufficient to constitute unusual and inhuman treatment. The constitutional guarantee of ‘due process of law’ and the right to ‘the protection of the law’ are equivalent.
Dissenting, Lord Hoffmann drew attention to the evils which would follow if the power to overrule previous decisions of the Privy Council were exercised too readily.

Citations:

Times 11-Oct-2000, [2000] UKPC 35, [2001] 2 AC 50, [2000] 3 WLR 1785

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – Kanda v Government of the Federation of Malaya PC 2-Apr-1962
A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the . .
Cited – Mitchell v WT Grant Company 13-May-1974
(Supreme Court of the USA) Stewart J said: ‘A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the . .
Cited – Planned Parenthood of Southeastern Pennsylvania v Casey 29-Jun-1992
(Supreme Court of the USA) The Court discussed the grounds upon which it would depart from precedent and why it would not overrule its equally controversial decision on abortion in Roe v. Wade.
Held: ‘no judicial system could do society’s work . .

Cited by:

Cited – Haroon Khan v The State PC 20-Nov-2003
PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been . .
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 – Her Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor) PC 28-Jun-2005
(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European . .
Cited – 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 . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
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.

Criminal Sentencing, Natural Justice, Commonwealth, Constitutional

Updated: 25 July 2022; Ref: scu.159423

National Insurance Corp v Winmark Ltd: PC 16 Mar 2009

(Saint Lucia) The Board considered the relative priorities of a fixed and floating charge over company assets and its obligations to pay national insurance contributions.

Judges:

Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance

Citations:

[2009] UKPC 8

Links:

Bailii

Jurisdiction:

Commonwealth

Commonwealth, Insolvency

Updated: 23 July 2022; Ref: scu.320880

Sammut and others v Manzi and others: PC 4 Dec 2008

(the Bahamas) The court was asked to construe a will.
Lord Phillips said: ‘The starting point when construing any will is to attempt to deduce the intention of the testator by giving the words of the will the meaning that they naturally bear, having regard to the contents of the will as a whole. Sometimes it is legitimate to have regard to extrinsic evidence in order to show that words used had a special meaning to the testator, but it has not been suggested that this is such a case.
Extrinsic evidence of the testator’s intention may also be admissible to resolve uncertainty or ambiguity . .
There were placed before their Lordships no less than 17 decided cases, some of which involved decisions on wording that bore some similarity with that used in the present case. Little assistance in construing a will is likely to be gained by consideration of how other judges have interpreted similar wording in other cases. Counsel rightly recognised that the starting point must be to look at the natural meaning of the wording of the will to be construed without reference to other decisions or to prima facie principles of construction.’

Judges:

Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell

Citations:

[2008] UKPC 58, [2009] 1 WLR 1834, [2009] 2 All ER 234

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Wills and Probate

Updated: 21 July 2022; Ref: scu.279093

United Shoe Machinery Company of Canada v Brunet: PC 23 Mar 1909

(Quebec) The defendant Company leased machinery under a condition that it should not be used in conjunction with machinery made by any other manufacturer.
Held: The condition was not in restraint of trade.

Citations:

[1909] AC 330, [1909] UKPC 10

Links:

Bailii

Cited by:

Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth

Updated: 12 July 2022; Ref: scu.259690

Ingraham and others v Glinton and Another: PC 24 Jul 2006

(the Bahamas ) The Board was asked whether the Supreme Court of the Bahamas has jurisdiction to strike out proceedings brought by way of an application under article 28 of the Constitution of the Bahamas alleging a contravention of the Constitution on the basis that it discloses no reasonable cause of action.

Judges:

Lord Rodger of Earlsferry, Lord Steyn, Lord Walker of Gestingthorpe, Lord Carswell
Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 40, [2007] 1 WLR 1

Links:

Bailii

Commonwealth, Constitutional

Updated: 07 July 2022; Ref: scu.243386

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’.
Held: It was wrong to suggest that the role of the Supreme Court on an application for habeas corpus in criminal proceedings (such as extradition) is to review the formal validity of an order for detention and not enquire into its substantial merits, but as the law applied at the time, there was no appeal for a prosecutor against the grant of habeas corpus.

Judges:

Lord Bingham of Cornhill, Lord Hutton, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell

Citations:

[2006] UKPC 38, [2007] 1 WLR 47

Links:

Bailii

Citing:

See Also – Cartwright and Knowles v The Superintendant of Her Majesty’s Prison and The Government of the United States of America PC 10-Feb-2004
PC (Bahamas) A warrant for extradition had been held to be void, and the prisoners released. It was argued that the US government had no right of appeal.
Held: Section 17(3) of the Court of Appeal Act was . .
Cited – 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 . .
See Also – Knowles and others v Superintendent of HM Prison Fox Hill and others PC 23-Mar-2005
(Bahamas) The claimants resisted requests for their extradition to the US on drugs charges. . .

Cited by:

Cited – Gibson v United States of America PC 23-Jul-2007
(The Bahamas) The US government sought the extradition of the appellant from the Bahamas on drugs charges. The warrants were found to be void, and the defendant released unconditionally, when the nmagistrate rejected evidence from an admitted . .
Cited – Raissi, Regina (on the Application of) v Secretary of State for the Home Department CA 14-Feb-2008
The claimant appealed against refusal of his request for judicial review of the defendant’s decision not to award him damages after his wrongful arrest and detention after he was wrongly suspected of involvement in terrorism. He had been discharged . .
Cited – Gomes v Trinidad and Tobago HL 29-Apr-2009
Each appellant challenged orders for their extradition, saying that the delay had been too prolonged, and that detention in Trinidad’s appalling jails would be an infringement of their human rights.
Held: The House had to consider its own . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Extradition

Updated: 07 July 2022; Ref: scu.243387