Honours And Dignities, Creation of Baronets, and Co: 1572

Citations:

[1572] EngR 194, (1572-1616) 12 Co Rep 81, (1572) 77 ER 1359 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Constitutional

Updated: 02 May 2022; Ref: scu.432160

Attorney-General v The Ironmongers’ Company Betton’s Charity: 14 Feb 1840

Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the remaining one-fourth towards necessitated decayed freemen of the company. There were no such British slaves to redeem, and a reference was made to the Master to approve of a scheme for the application of the fund thus unapplied, having regard to all the charitable bequests in the will. Held, that the application of the fund to the education of the British emancipated apprenticed negroes was iiot a cy-pres application ; secondly, that the gift to the freemen of the company was a charitable bequest ; and, thirdly, there being no direct objects to which the income could be applied, regard being had to the bequest touching British captives, that the application of the fund to the second and third purposes was as near as could be to the intention of the testator, having regard to all the charitable bequests in the will.
Lord Langdale MR said that: ‘ He did not recognise the relator as distinct from the Attorney-General. That the suit was the suit of the Attorney-General, though at the relation of another person upon whom he relied and who was answerable for costs; and that he could only recognise the counsel for the relator as the counsel for the Attorney-General, and could hear them only by his permission ; that the suit was so entirely under the control of the Attorney-General that he might desire the Court to
‘ dismiss the information, and that if he stated that he did not sanction any proceeding, it would be instantly stopped ‘.

Judges:

Lord Langdale MR

Citations:

[1840] EngR 425, (1840) 2 Beav 313, (1840) 48 ER 1201

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited by:

See Also – The Attorney-General v The Ironmongers’ Company 23-Jan-1841
Under a, reference to approve a scheme for the application of charity funds, the Master has no authority to allow, still less to invite, any person to intervene in the inquiry, who is not a party to the cause. If any such person is desirous of . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Lists of cited by and citing cases may be incomplete.

Charity, Constitutional

Updated: 02 May 2022; Ref: scu.309851

Lord Kerr, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Hughes

Citations:

[2017] UKPC 31

Links:

Bailii

Jurisdiction:

Commonwealth

Constitutional, Police

Updated: 01 April 2022; Ref: scu.598625

Idromacchine and Others v Commission: ECJ 3 Sep 2013

ECJ Appeal – Non-contractual liability of the European Union – Action for damages – Commission decision to initiate a formal investigation procedure – Prejudicial statements – Appeal in part manifestly inadmissible and in part manifestly unfounded
1. Appeals – Grounds – Mere repetition of the pleas and arguments put forward before the General Court – Manifest inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2) (see paras 31, 32, 47, 51, 52, 94)
2. Appeals – Grounds – Inadequate statement of reasons – Reliance by the General Court on implied reasoning – Lawfulness – Conditions (Art. 256 TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.) (see para. 43)
3. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d)) (see paras 62-64)
4. Appeals – Grounds – Mistaken assessment of the facts – Erroneous assessment of the existence of harm and of the ensuing compensation – Review exercised by the Court of Justice – Limits (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para,) (see paras 80, 83)

5. Appeals – Grounds – Specific criticism of a point of the General Court’s reasoning necessary (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 169(2)) (see para. 85)

Citations:

C-34/12, [2013] EUECJ C-34/12P, ECLI:EU:C:2013:552

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 30 March 2022; Ref: scu.595014

Germany v Commission – T-347/09: ECFI 12 Sep 2013

VAT, European, Constitutional

Updated: 28 January 2022; Ref: scu.368592

Barron and Others v Collins MEP: QBD 22 Dec 2016

The defendant MEP had had adjourned the claim against her for defamation, claiming that her actions has been as an MEP and therefore exempt from proceedings. The chair of the European Parliament Legal Affairs Committee had received and rejected her request for protection. She now said that she had not been properly advised when settling.
Held: After discussing each of them, the court jeld that: ‘the defendant falls a long way short of demonstrating that the public interest requires an investigation of the matters of defence that she has put forward.’ Her application was dismissed.

Warby J
[2016] EWHC 3350 (QB)
Bailii
Defamation Act 1996 2 3 4
England and Wales
Citing:
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – Warren v The Random House Group Ltd CA 16-Jul-2008
An offer of amends by the defendant had been accepted by the claimant. The defendant then sought to set aside the agreement and to resist the claim on its merits in reliance on a defence of justification. The parties disputed whether such an offer . .
See Also – Barron MP and Another v Vines QBD 29-Apr-2015
The court considered the damages to be awarded afer a libellous television broadcast on Sky TV. The claimants were MPs for Rotherham. There had been a large scale abuse of children, and they had been accused of not responding properly to it by the . .
See Also – Barron MP and Others v Collins MEP QBD 29-Apr-2015
Trial of preliminary issues in for defamation. The claimants, MPs for Rotherham areas, said that a speech by the defendant to the UKIP conference and repeated on TV contained assertions defamatory of them.
Held: The words complained of bore . .
Cited – Decker v Hopcraft QBD 30-Apr-2015
The claimant, a litigant in person, was absent from the hearing of a defamation action arising from a dispute between the parties in their capacities as committee members of the Crawley Boxing Club.
Held: The court gave its reasons for . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 27 January 2022; Ref: scu.572647

Remondis GmbH and Co KG v Region Hannover: ECJ 21 Dec 2016

ECJ Judgment – Reference for a preliminary ruling – Article 4(2) TEU – Respect for the national identity of the Member States inherent in their fundamental political and constitutional structures, including local and regional self-government – Internal organization of the Member States – Communities Territorial legislation – Legal instrument creating a new public-law entity and organizing the transfer of powers and responsibilities for the performance of public tasks – Public procurement – Directive 2004/18 / EC – Article 1 (2) (a) – Concept of ‘public contract

C-51/15, [2016] EUECJ C-51/15
Bailii
TEU 4(2), Directive 2004/18/EC 1(2)(a)
European

Constitutional

Updated: 27 January 2022; Ref: scu.572607

Madhewoo v The State of Mauritius and Another: PC 31 Oct 2016

(From the Supreme Court of Mauritius) The claimant had alleged that a new compulsory biometric identity card scheme contravened his human rights. It was provided that citizens must carry such cards and produce them to identify themselves upon request. In particular the court had found that the need to give fingerprints and for their retention requird justification.
Held: The Constitution is to be given a generous and purposive interpretation and in particular the provisions that enshrine fundamental rights should receive a generous and not literalist interpretation.

Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hodge
[2016] UKPC 30
Bailii
Commonwealth

Commonwealth, Constitutional

Updated: 24 January 2022; Ref: scu.570730

Marra v De Gregorio C-201/07 (Privileges And Immunities): ECJ 21 Oct 2008

ECJ Grand Chamber – Reference for a preliminary ruling European Parliament Leaflet issued by a Member of the European Parliament containing insulting remarks – Claim for non-pecuniary damages – Immunity of Members of the European Parliament
The question of immunity gave rise to three questions: ‘ . . first, whether, where the national court which has to rule on an action for damages brought against a Member of the European Parliament in respect of opinions expressed by him has received no information regarding a request from that member to the Parliament seeking defence of his immunity, that court may itself rule on whether the immunity provided for in Article 9 of the Protocol applies with regard to the factors in the particular case; second, whether, where the national court is informed of the fact that that member has made such a request to Parliament, that court must await the decision of the Parliament before continuing with the proceedings against that member; and, third, whether, where the national court finds that that immunity does apply, it must request the waiver of that immunity for the purposes of continuing with the legal proceedings.’ To which the answers were Yes, Yes and No

V. Skouris, P
[2008] EUECJ C-201/07
Bailii
Citing:
Opinion – Marra v De Gregorio C-201/07 ECJ 26-Jun-2008
ECJ Opinion – Privileges And Immunities – Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) . .
See Also – Marra v De Gregorio C-200/07 ECJ 21-Oct-2008
ECJ Reference for a preliminary ruling European- Parliament – Leaflet issued by a Member of the European Parliament containing insulting remarks Claim for non-pecuniary damages Immunity of Members of the European . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Updated: 16 January 2022; Ref: scu.564503

Marra v De Gregorio C-200/07: ECJ 21 Oct 2008

ECJ Reference for a preliminary ruling European- Parliament – Leaflet issued by a Member of the European Parliament containing insulting remarks Claim for non-pecuniary damages Immunity of Members of the European Parliament

[2008] EUECJ C-200/07
Bailii
Citing:
Opinion – Marra v De Gregorio C-200/07 (Privileges and Immunities) ECJ 26-Jun-2008
ECJ Opinion – Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) . .

Cited by:
See Also – Marra v De Gregorio C-201/07 (Privileges And Immunities) ECJ 21-Oct-2008
ECJ Grand Chamber – Reference for a preliminary ruling European Parliament Leaflet issued by a Member of the European Parliament containing insulting remarks – Claim for non-pecuniary damages – Immunity of . .
Cited – Barron and Others v Collins QBD 16-May-2016
The defendant MEP sought an order staying the defamation action brought against her by four MPs from the Rotherham area. She said that as an MEP she had a procedural immunity. She had informed the European Commission that she sought the protection . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Updated: 16 January 2022; Ref: scu.564504

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

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

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

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

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

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

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

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

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

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

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.

Necessity for Reference to ECJ

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

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

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

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.262729

Feather v The Queen: 1865

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

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

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

Cited by:
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 . .
Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.267402

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing

Leading Case

Updated: 09 November 2021; Ref: scu.402004

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

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

Lord Finlay LC, Lord Shaw of Dunfermline
[1917] UKHL 1, [1917] AC 260
Bailii
Defence of the Realm Consolidation Act 1914, Defence of the Realm (Consolidation) Regulations 14B
England and Wales
Cited by:
Cited – 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.
Approved – 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 – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.265983

Attorney-General of Ceylon v de Livera: PC 1963

A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a gratification to the member ‘for his doing an act in his capacity as such member’, but the conviction by the magistrate was overturned by the Supreme Court of Ceylon.
Held: The attorney-general’s appeal was allowed. The Board considered the meaning of the phrase ‘proceedings in parliament’.
Viscount Radcliffe said: ‘their Lordships are now in a position to address themselves to the facts of this appeal. They approach them on the basis . . that in considering whether the inducement offered by the . . respondent to . . the member was offered to induce him to act in his capacity as such member, the inquiry is not confined to ascertaining whether he was to do something specifically assigned as a member’s function in the Constitution Order or something which was actually a proceeding on the floor of or in the precincts of the House. They recognise that there are many things which a member may be invited to do because he is a member and enjoys as such a status and prestige which supply the motive of the invitation but in doing which he would not be acting in his capacity as a member. But, with this recognition made, they are of the opinion that the circumstances of any particular case may show that in the light of prevailing practices or conventions observed by members of the House some act for which an inducement has been offered is sufficiently closely bound up with and analogous to a proceeding in the House as to be properly described as done by a member in his capacity as such’. And
‘What has come under inquiry on several occasions is the extent of the privilege of a member of the House and the complementary question, what is a ‘proceeding in Parliament’? This is not the same question as that now before the Board, and there is no doubt that the proper meaning of the words ‘proceedings in Parliament’ is influenced by the context in which they appear in article 9 of the Bill of Rights (1 Wm and M, Sess,. 2, c.2); but the answer given to that somewhat more limited question depends upon a very similar consideration, in what circumstances and in what situations is a member of the House exercising his ‘real’ or ‘essential’ function as a member? For, given the proper anxiety of the House to confine its own or its members’ privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely within a member’s true function.’

Viscount Radcliffe
[1963] AC 103
Bill of Rights 1869
Commonwealth
Cited by:
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 – 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 – Regina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
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 – Chaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.199234

Regina v Commissioner of Police for The Metropolis, ex parte Rottman: HL 16 May 2002

The defendant had been arrested under an extradition warrant issued under the Act. The police had searched his premises, and found further evidence which was used to support the application for extradition. He challenged the collection and admission of the evidence which was outside the scope of the 1984 Act.
Held: The 1984 Act did not replace entirely the common law powers of the police in collecting evidence. Common law had allowed a police officer exercising an arrest warrant also to search the premises in which he was found. The 1984 Act itself did not create powers capable of being used in this way. The sections were confined to domestic offences. The common law powers remained for international offences.
Hutton L said: ‘It is a well established principle that a rule of the common law is not extinguished by a statute unless the statute makes this clear by express provision or by clear implication.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton and Lord Rodger of Earlsferry
Times 21-May-2002, [2002] UKHL 20, [2002] 2 AC 692, [2002] ACD 69, [2002] 2 WLR 1315, [2002] 2 All ER 865, [2002] HRLR 32, 12 BHRC 329
House of Lords, Bailii
Extradition Act 1989 8, Police and Criminal Evidence Act 1984 18 19
England and Wales
Citing:
Cited – Ghani v Jones CA 1970
The court was asked as to the powers of the police to retain objects taken and impounded.
Held: The privacy and possessions of an individual were not to be invaded except for the most compelling reasons.
Lord Denning MR said: ‘Balancing . .
Cited – Regina v Governor of Pentonville Prison, Ex Parte Osman QBD 30-Mar-1988
The applicant had been committed to prison pending extradition proceedings brought by Hong Kong alleging substantial fraud. He challenged the committal on the grounds that since the allegations involved transmission of funds over international . .
Appeal from – Regina (Michael Rottman) v Commissioner of Police for Metropolis and Secretary of State for Home Department Admn 24-Jul-2001
There is no residual common law power of entry for police to enter into premises to execute a search without first obtaining a warrant, beyond that contained in the Act. The Act was intended to provide a complete statement of the powers of entry for . .
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:
Applied – Regina (Hewitson) v Chief Constable of Dorset Police and another QBD 18-Dec-2003
The claimant had been arrested under an extradition warrant. He complained that the police took the opportunity to search his girflriend’s nearby flat. The police responded that the search was conducted under a common law power of search attached to . .
Cited – Durant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .
Appealed to – Regina (Michael Rottman) v Commissioner of Police for Metropolis and Secretary of State for Home Department Admn 24-Jul-2001
There is no residual common law power of entry for police to enter into premises to execute a search without first obtaining a warrant, beyond that contained in the Act. The Act was intended to provide a complete statement of the powers of entry for . .
Cited – Greene v Associated Newspapers Ltd CA 5-Nov-2004
The claimant appealed against refusal of an order restraining publication by the respondent of an article about her. She said that it was based upon an email falsely attributed to her.
Held: ‘in an action for defamation a court will not impose . .
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.

Police, Extradition, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.170324

Commodore Royal Bahamas Defence Force and Others v Laramore: PC 8 May 2017

Soldier’s right not to attend religious service

(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to freedom of conscience when he was obliged, on pain of disciplinary action, to remain present and doff his cap during Christian prayers at ceremonial parades and at morning and evening colours. This was a sufficiently active participation to hinder the claimant in the enjoyment of his conscientious beliefs. Nor had any justification been shown for it: ‘The Board has no doubt that Mr Laramore was ‘hindered in the enjoyment of his freedom of conscience’ in the present case. His conscience told him that he should not be taking part in the prayers which were part of regular colours parades. He made this point after he had converted to the Muslim religion in 1993, and he pursued it after the 2006 Memorandum reversed the dispensation introduced in 1993. The effect of the 2006 Memorandum was that he was no longer able to enjoy or give effect to his freedom of conscience by falling out during prayers.’
Nor was the interference justified in the circumstances.

Lord Mance, Lord Kerr, Lord Sumption, Lord Reed. Lord Hughes
[2017] UKPC 13, [2017] 1 WLR 2752, [2017] WLR(D) 334
Bailii, WLRD
Commonwealth
Citing:
Cited – The Honourable Dr. Paul Borg Oliver and Another v The Honourable Dr. Anton Buttigieg PC 19-Apr-1966
The Archbishop of Malta had declared it a mortal sin to print, write, sell, buy, distribute or read a left-wing weekly newspaper, the Voice of Malta. The Maltese Medical and Health Department had followed this up by prohibiting all its 2,660 . .
Cited – Banton v Alcoa Minerals of Jamaica Inc 1971
. .
Cited – Hope v New Guyana Ltd 1979
. .
Cited – Attorney-General v Momodou Jobe PC 26-Mar-1984
(Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction . .
Cited – Regina v Big M Drug Mart 1985
Supreme Court of Canada – A company was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act. It challenged the legislation. The freedom affected was that of persons prevented by the Act from working on a . .
Approved – Scott v Regina 2004
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 . .

Cited by:
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Constitutional, Human Rights

Updated: 02 November 2021; Ref: scu.582134

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 which prohibited such appeals, this class of appeal was external to Canada, so that the Canadian legislature had no power to make provision affecting it.
Held: The Canadian legislature had power to prohibit appeals to the King in Council in criminal matters and that the petition before it was therefore incompetent.
It was to the King that any subject who had failed to get justice in the King’s Court brought his petition for redress, a petition brought to the King in Parliament or to the King in his Chancery.
Viscount Sankey LC set out the historical background of the Judicial Committee of the Privy Council. Its origins lay in the procedure whereby a party aggrieved by a decision of the Courts of the Channel Islands (and, later, by a decision of the Courts of the Plantations and Colonies) might petition the King in Council to exercise in his favour the sovereign’s royal prerogative as the fountain of justice. In a domestic context such petitions were brought to the King in Parliament (being the origin of the judicial functions of the House of Lords which are soon to be abolished) or to the King in Chancery (from which flowed the jurisdiction of the Court of Chancery).
The procedure for petitioning the King in Council had become loosely described as an appeal by the time the Judicial Committee Act 1833 was enacted. That Act created the Judicial Committee of the Privy Council as a statutory body. It provided that ‘all appeals or complaints in the nature of appeals whatever’ which had previously been brought before His Majesty in Council would now be referred by His Majesty to the Judicial Committee. Although the powers of the committee were limited to making a report or recommendations to His Majesty in Council, Viscount Sankey said that according to constitutional convention it was unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee ‘who are thus in truth an appellate court of law’.
Viscount Sankey LC said: ‘Parliament could, as a matter of abstract law, repeal or disregard section 4 of the Statute. But that is theory and has no relation to realities.’ and ‘It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute.’

Viscount Sankey LC
[1935] AC 500, [1935] All ER Rep 139, [1935] UKPC 33
Bailii
Statute of Westminster 1931 4
Canada
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 – 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 – David Grant v Director of Correctional Services and Another; The Director of Public Prosecutions PC 14-Jun-2004
(Jamaica) The defendant had pleaded guilty to drugs offences in the US, and had fled to Jamaica. He appealed against a refusal of Habeas Corpus having been arrested and held for extradition. The Board considered its jurisdiction to hear such an . .
Cited – Seaga v Harper (No 2) PC 29-Jun-2009
No conditional fees without country approval
(Jamaica) Jamaican domestic law did not allow conditional fees or for the recovery of an after the event insurance premium for costs. When the case was appealed to the Board, his English solicitors represented him under a conditional fee agreement . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.199435

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 negligence or other disentitling conduct of the customer precludes the customer’s claim. No wider duty should be imposed on the customer beyond a duty not to act in a way that facilitates forgery and to make the bank aware of any known forgeries occurred: ‘The business of banking is the business not of the customer but of the bank. They offer a service, which is to honour their customer’s cheques when drawn upon an account in credit or within an agreed overdraft limit. If they pay out upon cheques which are not his, they are acting outside their mandate and cannot plead his authority in justification of their debit to his account. This is a risk of the service which it is their business to offer.’
The Board considered the need for the Board to follow earlier decisions of the House of Lords: ‘It was suggested, though only faintly, that even if English courts are bound to follow the decision in Macmillan’s case the Judicial Committee is not so constrained. This is a misapprehension. Once it is accepted, as in this case it is, that the applicable law is English, their Lordships of the Judicial Committee will follow a House of Lords’ decision which covers the point in issue. The Judicial Committee is not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity. Though the Judicial Committee enjoys a greater freedom from the binding effect of precedent than does the House of Lords, it is in no position on a question of English law to invoke the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 of July 1966 pursuant to which the House has assumed the power to depart in certain circumstances from a previous decision of the House. And their Lordships note, in passing, the Statement’s warning against the danger from a House of Lords’ decision in a case where, by reason of custom, statute, or for other reasons peculiar to the jurisdiction where the matter in dispute arose, the Judicial Committee is required to determine whether English law should or should not apply. Only if it be decided or accepted (as in this case) that English law is the law to be applied will the Judicial Committee consider itself bound to follow a House of Lords’ decision.’

Lord Scarman
[1985] 2 All ER 947, [1985] 2 Lloyds Rep 313, [1985] 3 WLR 317, [1986] AC 80, [1985] UKPC 22
Bailii
England and Wales
Citing:
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .

Cited by:
Cited – Yorkshire Bank plc v Lloyds Bank plc CA 12-May-1999
A customer of the plaintiff, sent a cheque to the defendant, with an application for shares. The cheque was stolen whilst in the defendant’s custody, but the plaintiff at first debited the account, then re-credited the balance. The claim failed . .
Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
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 – Donington Park Leisure Ltd v Wheatcroft and Son Ltd ChD 7-Apr-2006
Leave to apply was pursued under the provisions of a Tomlin order. The parties had disputed the extent to which parts of the order should be exhibited to the court.
Held: The Tomlin order should be amended to add terms necessary to give effect . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
See Also – Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd PC 5-Feb-1986
(Hong Kong) The Boad considered the costs payable for counsel on an appeal to the Board from Hong Kong . .
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.

Constitutional, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.238119

Da Costa En Schaake Nv, Jacob Meijer Nv, Hoechst-Holland Nv v Netherlands Inland Revenue Administration: ECJ 27 Mar 1963

ECJ (Preliminary Ruling ) 1. The obligation imposed by the third paragraph of article 177 of the EEC Treaty upon national courts or tribunals of last instance may be deprived of its purpose by reason of the authority of an interpretation already given by the court under article 177 in those cases in which the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case.
2. When giving a ruling within the framework of article 177, the court limits itself to deducing the meaning of community rules from the wording and the spirit of the treaty, it being left to the national court to apply in the particular case the rules which are thus interpreted.
3. Article 177 always allows a national court or tribunal, if it considers it appropriate, to refer questions of interpretation to the court again even if they have already formed the subject of a preliminary ruling in a similar case.

R-30/62, [1963] EUECJ R-30/62, (1963) 2 CMLR 224
Bailii
EEC Treaty 177
European
Cited by:
Cited – HP Bulmer Ltd and Another v J Bollinger Sa and others CA 22-May-1974
Necessity for Reference to ECJ
Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.214017

Regina v Secretary of State for the Home Department Ex parte Anderson: HL 25 Nov 2002

The appellant had been convicted of double murder. The judge imposed a mandatory life sentence with a minimum recommended term. The Home Secretary had later increased the minimum term under the 1997 Act. The appellant challenged that increase.
Held: The increase in the minimum term to be served was an increase in the sentence. A mandatory life sentence was not to be distinguished for this purpose from a discretionary life sentence. The tariff-fixing procedure is not a statutory creature, and had to be looked at in substance not in form. Such an act carried out by the executive was an unacceptable blurring of the separation of powers. An act of sentencing could only be done by a court. In addition, the arrangement was in breach of the appellant’s right to have his sentence determined by a court, and a declaration of incompatibility of the section was made. A whole life tariff need not be inconsistent with a defendant’s human rights when properly imposed.
As to the relationship of the House of the ECHR, the House of Lords ‘will not without good reason depart from the principles laid down in a carefully considered judgment of the Grand Chamber.’

Bingham of Cornhill, Nicholls of Birkenhead, Steyn, Hutton, Hobhouse of Woodborough, Scott of Foscote, Rodger of Earlsferry, LL
Times 26-Nov-2002, Gazette 23-Jan-2003, [2002] UKHL 46, [2002] 3 WLR 180, [2003] 1 AC 837, [2003] HRLR 7, (2003) 13 BHRC 450, [2003] UKHRR 112, [2003] 1 Cr App R 32, [2002] 4 All ER 1089
House of Lords, Bailii
Murder (Abolition of Death Penalty) Act 1965 1(1), European Convention on Human Rights Art 6(1), Crime (Sentences) Act 1997 29
England and Wales
Citing:
Applied – 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 – Benjamin and Wilson v The United Kingdom ECHR 26-Sep-2002
The applicant challenged the system in the UK of deciding on his release from a secure mental hospital. He had been a discretionary life prisoner, but then later his detention was continued because of his mental condition. Though an independent . .
Appeal from – Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .

Cited by:
Cited – Regina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
Appeal to – Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .
Cited – Regina on the Application of Clift v Secretary of State for the Home Department Admn 13-Jun-2003
The claimant had been sentenced to 18 years imprisonment. He challenged the differing treatment for parole purposes of those sentenced to more than 15 years, as infringing his human rights, insofar as the decision was retained by the Home Secretary. . .
Cited – McFetrich, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Jun-2003
The defendant had been convicted of murder in Scotland. He requested a transfer to an English prison. The trial judge recommended a tariff of eight years which was eventually set at 12 years by the respondent. That figure also exceeded the maximum . .
Cited – Regina (on the application of R) v Secretary of State for the Home Department QBD 12-Dec-2003
The decision to designate a prisoner with mental difficulties as a ‘technical lifer’ was not a sentencing exercise requiring a right for the issue to be heard before a court, and it remained a decision for the respondent. . .
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 – Regina v Sullivan; Regina v Gibbs; Regina v Elener; Regina v Elener CACD 8-Jul-2004
The appellants, each convicted of murder, challenged the minimum periods of detention ordered to be served.
Held: As to the starting point for sentencing, judges should have regard to the published practice directions, and not the letter from . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
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 . .
Mentioned – Smith, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The applicant had, as a child been subject to detention during Her Majesty’s pleasure, the sentence being imposed before 30 November 2000. She argued that that sentence should be subject to periodic review despite the term had been fixed by the Lord . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Barker, Regina v CACD 24-Oct-2008
The defendant appealed against the minimum term imposed on her under the 2003 Act. She argued that the court should have made allowance for the fact that she had made exceptional progress since arriving in prison.
Held: Caines established that . .
Cited – Bamber, Regina v CACD 14-May-2009
The defendant had been convicted in 1986 of the murder of five members of his adoptive family. The judge had initially recommended a minimum term of 25 years. A later judge had suggested a whole life term. The convictions had been upheld in 2002. . .
Cited – Vinter And Others v The United Kingdom ECHR 9-Jul-2013
(Grand Chamber) The three appellants had each been convicted of exceptionally serious murders, and been sentenced to mandatory life sentences, but with provision that they could not be eligible for early release, making them whole life terms. They . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Criminal Sentencing

Leading Case

Updated: 01 November 2021; Ref: scu.178249

Horvath v Secretary of State for Environment, Food and Rural Affairs: ECJ 16 Jul 2009

ECJ Common agricultural policy Direct support schemes Regulation (EC) No 1782/ 2003 Article 5 and Annex IV Minimum requirements for good agricultural and environmental condition Maintenance of rights of way Implementation by a Member State Transfer of powers to regional authorities of a Member State Discrimination contrary to Community law
The Court considered a Memorandum of Understanding between the UK government and the Scottish Government assigning to the devolved administration responsibility for the implementation of Community law concerning the common agricultural policy. The relevant EC Regulation empowered Member States to set minimum standards of compliance at national or regional level. Mr Horvath complained that regulations requiring the maintenance by landowners of public rights of way over agricultural land infringed the Community law principle of equality because equivalent obligations had not been imposed by the devolved administration in Scotland. The Advocate-General, in her Opinion, had advised that differences in the way that Community obligations were implemented by different devolved administrations could not be regarded as discriminatory because they ‘cannot be attributed to the conduct of the same public authority’
Held: The Grand Chamber reached the same conclusion, but on a broader basis, namely that such differences were inherent in the distribution of responsibility for implementing Community law among distinct territorial units of government within a Member State. They were therefore no more discriminatory than differences in the way that EU law was implemented by different Member States:
‘As a preliminary point, it should be pointed out that, in conferring on Member States the responsibility of defining minimum GAEC requirements, the Community legislature gives them the possibility of taking into account the regional differences which exist on their territory.
It should be recalled that, when provisions of the Treaty or of regulations confer power or impose obligations upon the States for the purposes of the implementation of Community law, the question of how the exercise of such powers and the fulfilment of such obligations may be entrusted by Member States to specific national bodies is solely a matter for the constitutional system of each State (Joined Cases 51/71 to 54/71 International Fruit Co and Others [1971] ECR 1107, para 4).
Thus, it is settled case-law that each Member State is free to allocate powers internally and to implement Community acts which are not directly applicable by means of measures adopted by regional or local authorities, provided that that allocation of powers enables the Community legal measures in question to be implemented correctly (Case C-156/91 Hansa Fleisch Ernst Mundt [1992] ECR I-5567, para 23).
The Court has, in addition, held that, where a regulation empowers a Member State to take implementing measures, the detailed rules for the exercise of that power are governed by the public law of the Member State in question (see (Case 230/78) Eridania-Zuccherifici nazionali and Societa italiana per l’industria degli zuccheri [1979] ECR 2749, para 34, and Case C-313/99 Mulligan and Others [2002] ECR I-5719, para 48).
. . It must nevertheless be examined whether, in those circumstances, the mere fact that the rules establishing GAEC laid down by the regional authorities of the same Member State differ constitutes discrimination contrary to Community law.
. . Where, as in the main proceedings, it is the devolved administrations of a Member State which have the power to define the GAEC minimum requirements within the meaning of article 5 of and Annex IV to Regulation No 1782/2003, divergences between the measures provided for by the various administrations cannot, alone, constitute discrimination. Those measures must, as is clear from para 50 of this judgment, be compatible with the obligations on the Member State in question which stem from that regulation.
In the light of the foregoing, the answer to the second question is that, where the constitutional system of a Member State provides that devolved administrations are to have legislative competence, the mere adoption by those administrations of different GAEC standards under article 5 of and Annex IV to Regulation No 1782/2003 does not constitute discrimination contrary to Community law.’

V. Skouris, P
ECLI:EU:C:2009:458, [2009] 30 EG 66, [2009] ECR I-6355, [2009] EUECJ C-428/07
Bailii
egulation (EC) No 1782/ 2003
Citing:
Opinion – Horvath v Secretary of State for Environment, Food and Rural Affairs ECJ 3-Feb-2009
ECJ (Opinion) Reference for a preliminary ruling from the High Court of Justice of England and Wales (United Kingdom).
‘where the constitutional system of a member state provides that devolved . .

Lists of cited by and citing cases may be incomplete.

European, Agriculture, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.563286

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 attempted coup in order to criminalise the defendants’ acts: ‘They were clearly aimed at particular known individuals who had been named in a White Paper and were in prison awaiting their fate. The fact that the learned judges declined to convict some of the prisoners is not to the point. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law, is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that after these had been dealt with by the judges, the law should revert to its normal state.’ Hel: These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences. They were compelled to sentence each offender on conviction to not less than ten years’ imprisonment, and compelled to order confiscation of his possessions, even though his part in the conspiracy might have been trivial.
‘If such Acts as these were valid the judicial power could he wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.’

Morris of Brth-y-Gest, MacDermott, Guest, Pearson LL
[1965] UKPC 1, [1966] 2 WLR 682, [1967] 1 AC 259, [1966] 1 All ER 650
Bailii
Ceylon Independence Act 1947
Citing:
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 – Dona Maria Abeyesekera Hamini and Others v Daniel Tillekeratne PC 26-Feb-1897
Ceylon – The Board considered the validity of a retrospective Order in Council. . .
Cited – Ibralebbe Alias Rasa Wattan Another v The Queen PC 6-Nov-1963
Ceylon – the joint effect of the Order in Council of 1946 and the Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State. . .
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 by:
Cited – 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. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.247445

Dring v Cape Distribution Ltd and Another: QBD 5 Dec 2017

Disclosure of Documents filed at Court

Constitution – Access To Courts – Open Justice – court files – court records – public scrutiny of courts – asbestos – mesothelioma – TDN13 – Technical Data Notice 13 – Cape – asbestolux – disclosure – document management systems – CPR 5.4C(2) – settlement – dispute resolution – health and safety
Principles and status of the documents in this case
The right of access to court is inherent in the rule of law.
Openness of justice fosters the scrutiny of the courts by the public, protects the integrity of the court process and assists the development of the law and legal knowledge. It thereby supports the practical effectiveness of the right of access to court.
The courts do not merely provide a public service to the ‘users’ who appear before them. Previous cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless.
Access to a court, being not merely the provision of a service to ‘users’ entails that the parties submitting to the jurisdiction do not have full sovereignty to determine simply by private agreement between themselves the extent to which the public may be made aware of any aspect of the proceedings before the court.
There is an inherent and foreseeable possibility that material deployed in court by the parties, or filed upon the records of the court as part of its process, will form part of the corpus of material which may be deployed in other cases, used for the purposes of legal advice, being academically or journalistically discussed, or considered by Parliament.
The rules and common law jurisdiction to order access to documents by the public
CPR rule 5.4C is the primary means by which the court’s common law power to allow access to documents to the public from the court record is administered but the common law is the master and not the servant of the rules. The rules provide a qualified and controlled system of openness regulated by the court rules in a judicial manner.
Where documents are filed on the record of the court then they fall within the scope of CPR 5.4C(2).
Served documents not on the records of the court do not fall within rule 5.4C but may be disclosed under the court’s common law power.
Applicable test
Documents filed on the record of the court and which are read or treated as read in court are subject to a default position in favour of the principle of open justice if the applicant has a legitimate interest.
Where the applicant has a legitimate interest then the court must still carry out a balancing exercise in relation to any harm to other parties legitimate interests when deciding whether to allow access.
Documents on the records of the court which are not read or treated as read are subject to a more stringent test namely that there must be strong grounds for thinking that access is necessary in the interests of justice.
The principle of open justice is engaged notwithstanding that a case settles before judgment. It applies to documents in such a case which have been read to or by the court, treated as so read, or which ‘have featured in’ the proceedings.
Status of the documents
Bundles which have been filed are part of the records of the court. ‘Bundle D’ in this case does not amount to a bundle filed at court. The paper bundles do fall to be treated as filed.
The paper documents other than the bundles were retained in court at the end of trial and held together with the court files, and became documents filed on the records of the court, alternatively the documents other than those in the bundles fall within the court’s general discretion as to access. They were deployed in court and placed before the judge including after he retired to consider his decision. They were subject to what Lord Justice Toulson referred to as the ‘default position’ that access should be given on the open justice principle.
The residue of bundle D not already contained in the paper bundles is material which falls outside the scope of the default principle of openness.
There is a power to order disclosure of bundle D under the common law jurisdiction of the court, but I do not exercise those powers here.
Legitimate interest and intended use
A legitimate interest can include academic interest, use by a pressure group or use in some journalistic form and indeed any number of other uses which are ulterior (in the proper sense of that word) without being illegitimate.
Mr Dring acts for a group which provides help and support to asbestos victims. It some respects it is also a pressure group and is involved in lobbying and in promoting asbestos knowledge and safety. Those are legitimate activities and provide legitimate interest.
The intended use is to enable him and the forum of which he is an officer, to:
make the material publicly available,
by making it available to promote academic consideration as to the science and history of asbestos and asbestolux exposure and production,
improve the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.
understand the industrial history of Cape and its development of knowledge of asbestos safety
clarify the extent to which Cape is or is not responsible for product safety issues arising from the handling of asbestolux boards
to assist court claims and the provision of advice to asbestos disease sufferers.
Those are legitimate aims.
Specificity of application and balancing exercise<>The degree of specificity which is possible in an application under rule 5.4C must necessarily be limited in practical terms by the fact that without seeing the documents in the first place the best that can be expected so as to assist the court is that general categories of documents be identified unless there is a particular identified document which known about and is sought.
The classes sought in the statement provided with the application were:
(i) All witness statements
(ii) Experts’ reports
(iii) Transcripts of evidence
(iv) All documents disclosed by Cape and other parties.
I am satisfied that (in no order of priority) the content of those documents:
i. would be likely to be of academic and scientific interest as part of public and social discourse as to the history of asbestos safety, regulation and knowledge as it developed during the 20th century,
ii. would be likely to be considered by advisers advising parties to asbestos litigation as to the merits of their cases whenever issues arise which touch upon Technical Data Notice 13 and connected Regulations,
iii. is likely to be relevant the product safety of asbestos insofar as understood within the major manufacturers and connected companies as compared with general public at various points in the 20th century, and
iv. is likely to be relevant to the extent to which employer defendants could have been expected to appreciate the risks of asbestos.
Partial access to the documents could lead to ‘cherry picking’ in terms of the publishing of negative material especially if access was only given to material which paints asbestos, and perhaps Cape in a bad light. There is a risk, but a much reduced risk, of cherry picking if access is given less selectively and more rather than less widely.
A requirement for special circumstances is desirable in the case of disclosure documents served but not deployed at trial, in this instance bundle D, to ensure that non-parties are not placed in a better position than parties in relation to unused but served disclosure material. I do not consider that grounds have been made out for disclosure in relation to bundle D.
I was not presented with substantial evidence or argument from Cape as to harm to it would suffer from disclosure, at the level of particular documents or classes of document within the paper files.
I do not regard the post hoc concerns now raised by Cape about the privacy of persons named in the documents in connection with asbestos related disease as a ground for refusing public disclosure of these documents as a credible or weighty one in this instance.
Conclusions
The balance is in favour of disclosure of:
i. the witness statements including exhibit
ii. expert report
iii. transcripts,
iv. disclosed documents relied on by the parties at trial ie those in the paper bundles only,
v. written submissions and skeleton
vi. Statements of case to include requests for further information and answers if contained in the bundles relied on at trial.
In formal terms I am therefore allowing the application in relation to document classes (i) to (iii) listed in the statement of Ms Bains dated 6 April 2017 but only partially allowing disclosure of documents in category (iv). I am also allowing disclosure of certain other documents as is apparent from the list just set out.
I am excluding from disclosure the contents of bundle D for reasons already given. I am also excluding copies of the disclosure statements of the parties because that would tend to undermine (by giving disclosure by indirect means) the decision I have made that bundle D is not disclosed.
The Applicant may return to court to seek a decision as to access in respect of any documents in bundle D which it appears upon consideration were omitted from the paper bundles, yet were in fact relied on at court (this ought to be apparent from the documents for which access has been given as above). Bundle D shall remain impounded in court.
The documents subject to disclosure to Mr Dring shall therefore be made available by the court to the Applicant’s solicitor as an officer of the court for copying or scanning upon the giving of an undertaking that documents not within the scope of this order, if contained in the files, will not be copied.
I direct that the court file and impounded bundle D shall not be destroyed in the usual course of administration of the court without an order of the court.

Victoria McCloud M
[2017] EWHC 3154 (QB)
Bailii
England and Wales

Litigation Practice, Constitutional

Updated: 01 November 2021; Ref: scu.602135

Beech v Freeson: QBD 1972

The defendant, a Member of Parliament, wrote a letter to the Law Society with a copy to the Lord Chancellor, saying that he had been specifically requested by a constituent to refer the plaintiffs’ solicitors’ firm to the Law Society for investigation. He set out the constituent’s complaints and stated that, contrary to his usual practice he had complied with the request because he had received complaints from other constituents in the past concerning the plaintiffs’ firm. He defended the defamation action, claiming qualified privilege.
Held: Qualified privilege may arise in the making of complaints about public officials or persons with public duties to the relevant authorities.
Geoffrey Lane J said: ‘Finally, have the plaintiffs proved that the defendant was actuated by express malice? Malice includes any spite or ill-will directed from the defendant at the plaintiffs. It also includes any indirect motive. That is to say, any intention on the part of the defendant to use the occasion, not merely for the purpose for which it is a subject of qualified privilege, but for some extraneous purpose of his own not connected with privilege’
. . And ‘it seems contrary to principle that the existence of qualified privilege should depend on the mistaken belief of the defendant’.

Lane J
[1972] 1 QB 14
England and Wales
Citing:
Cited – Nevill v Fine Arts and General Insurance Co Ltd CA 1895
Lopes LJ said: ‘The effect of the occasion being privileged is to render it incumbent upon the plaintiff to prove malice, that is, to shew some indirect motive not connected with the privilege, so as to take the statement made by the defendant out . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional, Legal Professions

Leading Case

Updated: 01 November 2021; Ref: scu.539180

Meerabux v The Attorney General of Belize: PC 23 Mar 2005

(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been decided in private.
Held: It was not suggested that the chairman had any pecuniary interest. A judge of the Supreme court had to be qualified as a barrister, and therefore be a member of the Bar Council in order to sit. Those framing the constitution must have anticipated this apparent conflict, and a chairman should therefore not be automatically disqualified. Not every proceeding must be held in public. The BAC was not a judicial body. The rules of the BAC were designed to ensure fairness, and they were not impugned by the proceedings, nor their privacy.

Lord Hoffmann, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Carswell
[2005] UKPC 12, Times 20-Apr-2005, [2005] 2 WLR 1307, [2005] 2 AC 513
Bailii, PC
Belize Constitution 98(4)
Commonwealth
Citing:
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 – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Regina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Leeson v Council of Medical Education and Registration 1889
Mere membership of an association by which proceedings are brought does not disqualify a judge from hearing the case, but active involvement in the institution of the particular proceedings does. Here, mere membership of the Medical Defence Union . .
Cited – Allinson v General Council of Medical Education and Registration 1894
The mere ex officio membership of the committee of the Medical Defence Union was held to be insufficient to disqualify the member from sitting on the disciplinary panel. . .
Cited – Pellegrin v France ECHR 8-Dec-1999
The court modified the approach taken in earlier decisions, that there are excluded from the scope of article 6(1) disputes raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Stewart v Secretary of State for Scotland (Scotland) HL 22-Jan-1998
The dismissal of a Scottish Sheriff ‘for inability’ is not limited in meaning to either mental or physical infirmity, but can also include simple incompetence. The fact that the inquiry into the sherriff’s unfitness was conducted in private was not . .
Cited – Stewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .

Cited by:
Cited – Gillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
Cited – Regina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – Kaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Constitutional, Natural Justice

Updated: 01 November 2021; Ref: scu.223880

Goldsmith v Pressdram Ltd: CA 1988

The court considered whether to order a defamation trial to be before a judge alone, or with a jury.
Held: The word ‘examination’ has a wide connotation, is not limited to the documents which contain the actual evidence in the case and includes, for example, documents which are likely to be introduced in cross-examination.
Slade LJ said: ‘Correspondingly, I infer that the legislature, in using the particular word ‘conveniently’ in the context of the sub-section, was directing its attention to the efficient administration of justice, rather more than the probable difficulty or otherwise of issues involved There may be many cases where numerous documents will be required to be looked at, but no substantial practical difficulties are likely to arise in their examination being made with a jury. On the other hand, cases may, I concede, arise where relatively few documents will require examination, but nevertheless long and minute examination of them is likely to be required, and, because of their particular nature, a satisfactory examination of them by a jury will present formidable practical difficulties’.
Kerr LJ said: ‘Conveniently’ means, as I see it, without substantial difficulty in comparison with carrying out the same process with a Judge alone. On the issues raised in this case the investigatory process of arriving at the ultimate answer would be a difficult task for any judge despite constant reference to documents, and far more difficult, and therefore inconvenient as a forensic process, when it has to be done in a way that is capable of being followed and understood by 12 jurors’.
Nourse LJ pointed out that the right to trial of a defamation action by a jury is an important constitutional right: ‘whether someone’s reputation has or has not been falsely discredited ought to be tried by other ordinary men and women and, as Lord Camden said, it is the jury who are the people of England.’

Slade LJ, Kerr LJ, Nourse LJ
[1988] 1 WLR 64
Supreme Court Act 1961 69
England and Wales
Cited by:
Cited – Safeway Stores Plc v Albert Tate CA 18-Dec-2000
The respondent, a neighbour of the claimant, had fallen into dispute with the claimant, and issued a leaflet and signs alleging fraud. The claimants obtained an injunction, and in the absence of a substantive defence, judgement. He claimed that the . .
Cited – Right Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
Cited – Field v Local Sunday Newspapers Limited 10-Dec-2001
The court considered whether to order jury trial of a defamation action.
Held: The triggers of ‘prolonged examination’ and ‘inconvenience’ are not two separate requirements and must be considered together, although it is convenient to take . .
Cited – Collins Stewart Ltd and Another v The Financial Times Ltd QBD 20-Oct-2004
The claimants sought damages for defamation. The claimed that the article had caused very substantial losses (andpound;230 million) to them by affecting their market capitalisation value. The defendant sought to strike out that part of the claim. . .
Cited – Fiddes v Channel Four Television Corporation and Others CA 29-Jun-2010
The claimants in a defamation case made an interlocutory appeal against an order for trial by judge alone. The parties had agreed for trial by jury, but the defendants made a late application for trial by judge alone.
Held: The claimant’s . .
Cited – Beta Construction Ltd v Channel Four Television Co Ltd CA 1990
When considering the number of documents to be considered when deciding whether a defamation case should proceed before a judge or judge and jury, the court was entitled to look also at any specialised technical content of the documents and also . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.182778

C (A Minor) v Director of Public Prosecutions: HL 17 Mar 1995

The House considered whether the long established rule of the criminal law presuming that a child did not have a guilty mind should be set aside.
Held: Doli incapax, the presumption of a child’s lack of mens rea, is still effective and good law, but a child is not capable at law without the requisite knowledge. Judicial review was sought of the Director’s decision not to prosecute, but it was not suggested that the court’s jurisdiction to grant relief was ousted by section 29(3). Lord Lowry said that the presumption as too firmly embedded in the law of England to be removed by the judiciary: ‘Of course, no one could possibly contend (nor did Mr. Henriques try to do so) that this proposal represents what has always been the common law; it would be a change or a ‘development.’ It is quite clear that, as the law stands, the Crown must, as part of the prosecution’s case, show that a child defendant is doli capax before that child can have a case to meet. To call the proposed innovation a merely procedural change greatly understates, in my view, its radical nature, which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution. The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax which must now be rebutted before a child defendant can be called for his defence and the existence of which will in practice often prevent a charge from even being brought. This reflection must be enough to discourage any thought of ‘judicial legislation’ on the lines proposed.’
Only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator.
Lord Jauncey discussed the position in Scotland: ‘No such presumption operates in Scotland where normal criminal responsibility attaches to a child over 8 and I do not understand that injustice is considered to have resulted from this situation.’
Lord Lowry said: ‘Mr Henriques QC, presenting the respondent’s case, frankly conceded that the Divisional Court was bound by authority to recognise and apply the presumption, but he submitted that the presumption was illogical in conception and bizarre in its effect. His written case submissions based on the current educational standards of children and on the ever earlier onset of their physical and psychological maturity, as witness by the recent statutory abolition of the irrebuttable common law presumption that boys under 14 are incapable of offences involving sexual intercourse on their own part (Sexual Offences Act 1993). The written case also listed examples of legislative and judicial changes of attitude towards young children called as witnesses. Against this background counsel submitted, not that the presumption should be swept away but (echoing the 1954 proposal of Professor Glanville Williams) that in recognition of its frailties your lordships should by judicial intervention effect a change by laying it down that the prosecution’s initial burden of showing a prima facie case against a child should be the same as if the accused were an adult but that the child should then be able by evidence to raise as a defence the issue that he was doli incapax; it would then be for the prosecution to prove to the criminal standard that the child was doli capax. That your Lordships in a judicial capacity could make this change which counsel categorised as merely procedural, was an express and necessary part of his argument.

Of course no one could possibly contend (nor did Mr Henriques try to do so) that this proposal represents what has always been the common law; it would be a change or ‘development’. It is quite clear that as the law stands, the Crown must, as part of the prosecution’s case show that a child defendant is doli capax before that child can have a case to meet. To call the proposed innovation a merely procedural change greatly understates, in my view, its radical nature, which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution. The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax which must now be rebutted before a child defendant can be called for his defence and the existence of which will in practice often prevent a charge from even being brought. This reflection must be enough to discourage any thoughts of ‘judicial legislation’ on the lines proposed. ‘

and ‘One solution which has been suggested is to abolish the presumption with or without an increase in the minimum age of criminal responsibility. This, as Mr Robertson pointed out, could expose children to the full criminal process at an earlier age than most countries of Western Europe.’

Lord Lowry, Lord Jauncey
Times 17-Mar-1995, Independent 21-Mar-1995, (1995) Cr App R 136, [1995] UKHL 15, [1996] AC 1, [1995] RTR 261, [1995] 2 All ER 43, [1995] 2 WLR 383, (1995) 159 JP 269, [1995] 1 FLR 933, [1995] Fam Law 400, [1995] Crim LR 801
Bailii
Supreme Courts Act 1981 29(3), Prosecution of Offenders Act 1985 10
England and Wales
Citing:
Appeal from – C (A Minor) v Director of Public Prosecutions QBD 30-Mar-1994
The 12 year old defendant held the handlebars of a motorcycle allowing a second boy to try to remove the chain and padlock securing it. He appealed against his conviction.
Held: The presumption of doli incapax for a 10-14 year old child is no . .

Cited by:
Cited – Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners Admn 18-Oct-2001
The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act . .
Cited – Lewin v Crown Prosecution Service Admn 24-May-2002
The applicant sought review of the decision of the respondent not to initiate a prosecution in respect of a death in Spain. The deceased had been left drunk and unconscious in a car in the sun. There was a variance of opinion as to the exact cause . .
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 – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Regina v Director of Public Prosecutions ex parte Treadaway Admn 31-Jul-1997
The applicant had been convicted of a robbery and served a long prison sentence. After release he was awarded damages against some of the policie officers for assault. The DPP decided not to proceed against the officers by way of criminal . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
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 . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Children, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.78793

Buttes Gas and Oil Co v Hammer (No 3): HL 1981

In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved in the dispute. The authorities concerning acts of state were reviewed for the purpose of a submission by the defendants that the action raised issues which were non-justiciable in English courts and should therefore be stayed. The motives of governments are not justiciable and courts should refrain from adjudicating upon them. The House considered an action by an officer of the Crown taken outside this country against foreigners otherwise than under colour of legal right.
Held: The principle of non-justiciability was applicable. ‘The important inter-state issues and/or issues of international law which would face the court . . have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. . [There are no judicial or manageable standards by which to judge [the] issues or to adopt another phrase . . the court would be in a judicial no-man’s land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were ‘unlawful’ under international law. I would just add . . that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment.’ and ‘ There is ‘a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states . . one for judicial restraint or abstention . . not one of discretion, but . . inherent in the very nature of the judicial process.’
On the plaintiff’s application to strike out the counterclaim, Lord Wilberforce concluded: ‘It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are – to follow the Fifth Circuit Court of Appeals – no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man’s land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were ‘unlawful’ under international law. I would just add, in answer to one of the respondents’ arguments, that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment.’

Lord Wilberforce
[1982] AC 888, [1981] 3 All ER 616, [1981] 3 WLR 787
England and Wales
Citing:
Approved – Duke of Brunswick v The King of Hanover HL 31-Jul-1948
The Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates.
Held: ‘A foreign Sovereign, coming into this country cannot be made . .
Appeal from – Buttes Gas and Oil Co v Hammer (No 3) CA 1981
The mere reference to a document in the pleadings was not an automatic waiver of any legal professional privilege. . .
Cited – Underhill v Hernandez 29-Nov-1897
(US Supreme Court) Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill . .

Cited by:
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – Regina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
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 – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
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 – 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 – 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 – Korea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Cited – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
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 – 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.

Defamation, International, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.179879

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 Parliamentary privilege.
Held: A Defendant may not use libel proceedings to impugn proceedings in Parliament in his defence though the proceedings might accordingly be stayed. ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’ This provision is part of the wider principle that the courts and Parliament are both astute to recognise their constitutional roles.
Lord Browne-Wilkinson said: ‘In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what was said or done within the walls of Parliament in performance of its legislative function and protection of its established privileges.’
The ‘case illustrate[s] how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail. But the other two public interests cannot be ignored and their Lordships will revert to them in considering the question of a stay of proceedings.
For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House . .’

Lord Browne-Wilkinson, Lord keith, Lord Goff, Lord Mustill, Lord Nolan
Times 13-Jul-1994, Gazette 26-Oct-1994, [1995] 1 AC 321, [1994] 3 NZLR 1, [1994] 3 WLR 970
Bailii
Bill of Rights 1689 9
England and Wales
Citing:
Cited – Comalco Ltd v Australian Broadcasting Corporation 1983
(Supreme Court of the Australian Capital Territory) Hansard was admissible to show what had been said in the Queensland Parliament as a matter of fact, without the need for the consent of Parliament. Blackburn CJ added: ‘I think that the way in . .
Cited – Sir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .
Cited – Stockdale v Hansard 1839
Bailii It is no defence in law to an action for publishing a libel, that defamatory matter is part of a order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the . .
Cited – John Joseph Stockdale v James Hansard, Luke Graves Hansard, Luke James Hansard, And Luke Henry Hansard 1839
It is no defence in law to an action for publishing a libel that the defamatory matter is part of a document which was, by order of the House of Comnions, laid before the House, and thereupon became part of the proceedings of the House, and which . .
Cited – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – Rex v Eliot, Hollis and Valentine 1629
Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in . .
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 . .
Not followed – Wright and Advertiser Newspapers Limited v Lewis 1990
(Supreme Court of South Australia) L, a member of the South Australia House of Assembly, alleged in the House that W had obtained an advantage from his close association with a former Government. W wrote to the newspaper, which published it, . .
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 – 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 – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – Adam v Ward HL 1917
The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
Cited – News Media Ownership v Finlay 1970
(New Zealand Court of Appeal ) The plaintiff, a Member of Parliament, brought libel proceedings against a newspaper in respect of an article appearing in the newspaper which alleged that the plaintiff had been acting improperly and for purposes of . .

Cited by:
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 – The Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Harmon CFEM Facades (UK) Limited v The Corporate Officer of The House of Commons TCC 28-Oct-1999
The claimant said that the respondent had awarded a contract for works at the House of Commons disregarding its obligations under European law as regards open tendering. . .
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 . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
Cited – Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
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 – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Cited – Regina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
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 – Chaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
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 – 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 . .
Distinguished on the facts – Blake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.85015

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 draft Detailed Development Plan for the island was under consideration and, at the public inquiry, the applicant made representations to the effect that construction of a residential building on his land should be permitted. The inspector rejected that contention and supported the proposal in the draft development plan for the land to be zoned as an area reserved for agricultural purposes and in which development was generally prohibited. In 1990 the States of Deliberation, presided over by the Deputy Bailiff, Mr Graham Dorey, debated and adopted the development plan. Three years later the applicant made a formal application for a change of use for his land. The relevant planning committee rejected the application and the applicant appealed to the Royal Court, comprising the Bailiff, Sir Graham Dorey, and seven Jurats. The applicant’s representative accepted that the written statement in the development plan provided for no development other than Developed Glasshouse, but he submitted that there were none the less reasons to permit a change of use in the particular case. The Royal Court dismissed the appeal. Where a member of a legislature with some direct responsibility for the passing of legislation was also acting as a member of the judiciary with responsibility for enforcing the laws passed, this inevitably gave an impression of bias and lack of impartiality. Here the Deputy Bailiff of Guernsey was also President of the states of direction. Consideration must be given to the method and security of judicial appointments, guarantees against outside pressures, and whether there was a proper presentation of independence: ‘ the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, ‘

Times 22-Feb-2000, 28488/95, (2000) 30 EHRR 289, [2000] ECHR 62
Bailii
European Convention on Human Rights Art 6.1
Human Rights
Citing:
Cited – Findlay v The United Kingdom ECHR 25-Feb-1997
The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had . .

Cited by:
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 . .
Distinguished – Pabla Ky v Finland ECHR 22-Jun-2004
A member of the Finnish Parliament who also sat as an expert member of the Court of Appeal was said to lack independence as a judge.
Held: The complaint was rejected. Also there was no no objective justification for the applicant’s fear as 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 – 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 . .
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 – 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.
Constitutional, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.165817

Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4): Admn 4 Feb 2009

In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of his case in the US. The remaining issue was as to whether the earlier judgment should now be made available without redactions.
Held: An allegation of cruel, inhuman or degrading treatment was to be treated on the same basis as torture in the circumstances of the present case, and a claim to conceal evidence of cruel, inhuman or degrading treatment or torture under the guise of public interest immunity could not be countenanced as it was incompatible with international law and values. ‘It is the upholding of the rule of law . . that is a factor of the greatest public interest in this case, given the allegations against officials of the United States Government and the role of officials of the Government of the United Kingdom in facilitating what is alleged.’ The requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice. Nevertheless the US had threatened that disclosure would undermine the intelligence relationship with the UK. The alternatives were not adequate. The court could not go behind the Foreign Secretary’s assertion that disclosure would undermine the ability of the state to protect its citizens. The details would not be disclosed. If they are to be disclosed it must be by the US government.
The court identified four questions for redaction:- a) Is there a public interest in bringing the redacted paragraph into the public domain? b) Will disclosure bring about a real risk of serious harm to an important public interest, and if so, which interest? c) Can the real risk of serious harm to national security be protected by other methods or more limited disclosure? d) If the alternatives are insufficient, where does the balance of the public interest lie?

Thomas LJ, Lloyd Jones J
[2009] EWHC 152 (Admin)
Bailii
England and Wales
Citing:
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 29-Aug-2008
The claimant sought release of documents so that he could defend himself in a tribunal in the US. He said the documents would support his assertion that he had been subject to extraordinary rendition and had ‘disappeared’ for two years. Redactions . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs, Admn 22-Oct-2008
The claimant was held by the US. He claimed he had been tortured by them, and sought release of dicuments which allow him to present his case. The respondent sought to prevent disclosure using Public Interest Immunity (PII) certificates.
Held: . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
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 . .
Cited – ex parte Guardian Newspapers Ltd CACD 30-Sep-1998
The defendants purported to serve a notice under Rule 24A(1) of the Crown Court Rules 1982 of an intention to apply for a hearing in camera of their application that the trial be stopped as an abuse of process.
Held: Where an application was . .
Cited – C v Crown Prosecution Service Admn 8-Feb-2008
The court considered the practice of hearing submissions from the media in relation to reporting restrictions.
Held: Thomas LJ rejected the submission that, in conducting the Re S balancing exercise the Court should have regard to the public . .
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 – 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 . .
Cited – Regina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
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 – 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 – Regina v Keane CACD 15-Mar-1994
Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific . .
Cited – Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
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 – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – McCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .
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 – Castells v Spain ECHR 23-Apr-1992
The conviction of the applicant for publishing in a weekly magazine an article which insulted the government with the penalty of disqualification from public office, violated the applicants freedom of expression within the meaning of Article 10. ‘ . .
Cited – Observer and Guardian v The United Kingdom ECHR 26-Nov-1991
The newspapers challenged orders preventing their publication of extracts of the ‘Spycatcher’ book.
Held: The dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. This is . .
Cited – Pretto And Others v Italy ECHR 8-Dec-1983
The court considered the value of court proceedings being public: ‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; . .
Cited – Campbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
Cited – Hector v Attorney General of Antigua PC 1990
Lord Bridge of Harwich said that: ‘In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to . .
Cited – Regina v Felixstowe Justices ex parte Leigh CA 1987
The court considered the importance of the role played by the media in attending and reporting court proceedings. Watkins LJ said: ‘The role of the journalist and his importance for the public interest in the administration of justice has been . .
Cited – Assenov and Others v Bulgaria ECHR 28-Oct-1998
An allegation of violence by a police officer did require a thorough, impartial and careful investigation by a suitable and independent state authority: ‘The court considers that in these circumstances, where an individual raises an arguable claim . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
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 by:
Cited – Al-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence (PII) Admn 10-Jul-2009
The claimants alleged murder and ill-treatment by the British Armed forces in Iraq. The defendant had failed repeatedly to comply with disclosure orders and an indemnity costs award had been made against him. The defendant had in particular . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (60 Admn 19-Nov-2009
The respondent had over time refused to allow publication of parts of a document disclosed to him by US security services. The court had previously delivered redacted judgments, and now asked whether and to what extent the redacted parts should be . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
See Also – Binyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .

Lists of cited by and citing cases may be incomplete.

Administrative, Human Rights, Constitutional, Media

Updated: 01 November 2021; Ref: scu.282626

The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The court of appeal had refused leave to appeal against an interlocutory order.
Held: The section clearly anticipated a range of matters in the Court of Appeal from which appeal would not lie, and ought to be construed to disallow frivolous appeals. A provision requiring the leave of a court to appeal will by necessary intendment exclude an appeal against the grant or refusal of leave, notwithstanding the general language of a statutory right of appeal against decisions of that court.
Lord Halsbury LC accepted that the words ‘order or judgment’ in section 3 were capable of including a decision to refuse leave. The question was whether such a construction could be reconciled with the terms and purpose of Ord LVIII r 15. At p 211, he said: ‘But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal – that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal, My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction.’

Lord Halsbury LC
[1891] AC 210, [1891] UKHL 4
Bailii
Appellate Jurisdiction Act 1876 3
England and Wales
Cited by:
Cited – Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another HL 23-May-2002
The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be . .
Applied – In re Housing of the Working Classes Act 1890, Ex parte Stevenson CA 1892
A party had applied to a judge for what in effect amounted to leave to appeal and had been refused.
Held: Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature . .
Explained – Kemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Cited – Dhillon v Secretary of State for the Home Department CACD 1988
The court considered the jurisdiction of the Court of Appeal to hear certain appeals, saying that ‘Lane v. Esdaile is of general application and provides that where leave to bring proceedings is required it is not possible to appeal against a . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Turkoglu CA 1987
The applicant had been granted bail by a High Court judge when he was given leave to apply for judicial review of the decision refusing him leave to enter the United Kingdom. His application for judicial review was subsequently dismissed and the . .
Cited – Rickards v Rickards CA 20-Jun-1989
What Lane v. Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision. The Court of Appeal could . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
Cited – In re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
Cited – 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 – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
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 – Huggett v Secretary of State for the Environment Etc; Wendy Fair Markets Ltd v Same; Bello v Etc CA 1-Mar-1995
There is no power for Court of Appeal itself to give leave to appeal after High Court’s refusal of leave on an enforcement notice. The court rejected the applicant’s submission that a High Court judge’s decision refusing permission to appeal under . .
Cited – Sarfraz v Disclosure and Barring Service CA 22-May-2015
The claimant appealed against the refusal of the defendant to remove his name from the list of those barred from working with children. He had been a GP. Though not priosecuted for any criminal offence the Professional Conduct Committee had found . .
Cited – Campbell v The Queen PC 3-Nov-2010
(Court of Appeal of Jamaica) The defendant had been convicted of murder and his applications for leave to appeal against conviction were refused. He applied to the Privy Council for special leave to appeal from a decision of the Court of Appeal of . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.182907

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 were withheld on the ground of Crown privilege. The House considered that claim as to civil actions of documents and information in the hands of the police.
Held: The courts will give great weight to preserving the confidentiality of tax documents in the hands of the Revenue.
Lord Reid said: ‘The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities.’ However: ‘I would therefore propose that the House ought now to decide that courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject a Minister’s view: full weight must be given to it in every case, and if the Minister’s reasons are of a character which judicial experience is not competent to weigh, then the Minister’s view must prevail. But experience has shown that reasons given for withholding whole classes of documents are often not of that character. For example a court is perfectly well able to assess the likelihood that, if the writer of a certain class of document knew that there was a chance that his report might be produced in legal proceedings, he would make a less full and candid report than he would otherwise have done. I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism.’
As to the different positions of the law in Scotland and England, Lord Reid said: ‘But here we are dealing purely with public policy – with the proper relation between the powers of the executive and the powers of the courts – and I can see no rational justification for the law on this matter being different in the two countries.’

Lord Reid Lord Morris of Borth-y-Gest, Lord Hodson, Lord Pearce, Lord Upjohn
[1968] AC 910, [1968] 2 WLR 998, [1968] 1 All ER 874, [1968] UKHL 2
Bailii
England and Wales
Citing:
Cited – Duncan v Cammell, Laird and Company Limited (Discovery) HL 27-Apr-1942
Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to disclose any details of the boat’s . .
Cited – Mackalley’s case 1611
If an officer or magistrate is killed when executing a process or preserving the peace, the offence is murder and remains so even if there is some defect in the process being executed, or the arrest was being made at night.
Constables were . .
Cited – Fisher v Oldham Corporation KBD 1930
On Officer was subject to a claim for false imprisonment on an unlawful arrest, and it was asserted that the Watch Committee of the local authority were vicariously liable. The plaintiff pointed to his Oath of Office: ‘I . . . . . . . . . of . . . . . .

Cited by:
Cited – Lonrho Plc v Fayed and Others (No 4 ) CA 27-Oct-1993
Public interest immunity does not attach to documents in the hands of a taxpayer and his advisers. They are not in any event discloseable. (Bingham) ‘a claim made by the revenue to withhold documents relating to a taxpayer’s tax affairs from . .
Cited – 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 . .
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 . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – 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 – 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 – 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 . .
Cited – Arias and Others v Commissioner for the Metropolitan Police and Another CA 1-Aug-1984
A police officer searched premises under a warrant seizing documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence . .
Cited – Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
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 – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .

Lists of cited by and citing cases may be incomplete.

Taxes Management, Constitutional, Police, Litigation Practice

Leading Case

Updated: 31 October 2021; Ref: scu.184570

Regina v Sheer Metalcraft Ltd: 1954

The defendant company was charged with purchasing sheet metals at prices in excess of those permitted by Order. The defendant complained that the Order had been printed without the Schedules, but the Secretary of State had not given the necessary certificate to exempt the Schedule.
Held: The Statutory Instrument took effect after being made by the Minister and laid before Parliament. The omission of the certificate was a matter of procedure and did not invalidate the Order. However the burden of evidence was on the Crown to establish that at the time of the alleged contravention reasonable steps had been taken to bring the Order to those affected by it.

[1954] QB 586, [1954] 1 All ER 542, [1954] 1 QB 586, [1954] 2 WLR 777, (1954) 118 JP 190, (1954) 98 Sol Jo 253
Iron and Steel Process Order 1951, Statutory Instruments Act 1946
England and Wales

Crime, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.539329

Flaminio Costa v ENEL (Procedure): ECJ 15 Jul 1964

‘The transfer by the states from their domestic legal system to the Community legal system of their rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail . .’
ECJ 1. In the context of requests for preliminary rulings, the court has no jurisdiction either to apply the treaty to a specific case or to decide upon the validity of a provision of domestic law in relation to the treaty, as it would be possible for it to do under article 169. Nevertheless, the court has power to extract from a question imperfectly formulated by the national court those questions which alone pertain to the interpretation of the treaty.
2. Article 177 is based upon a clear separation of functions between national courts and the court of justice and cannot empower the latter either to investigate the facts of the case or to criticize the grounds and purpose of the request for interpretation.
3. By contrast with ordinary international treaties, the eec treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply.
By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the community, the member states have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves.
The integration into the laws of each member state of provisions which derive from the community and more generally the terms and the spirit of the treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The law stemming from the treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.
The transfer by the states from their domestic legal system to the community legal system of the rights and obligations arising under the treaty carries with it a permanent limitation of their sovereign rights.
4. The commission has the duty of seeing that the member states respect those obligations which have been imposed upon them by the treaty and which bind them as states without creating individual rights, but this obligation on the part of the commission does not give individuals the right to allege, in community law or under article 177, either failure by the state concerned to fulfil any of its obligations or breach of duty on the part of the commission.
5. Article 102 of the eec treaty contains no provisions which are capable of creating individual rights which national courts must protect.
6. Article 93 of the eec treaty contains no provisions which are capable of creating individual rights which national courts must protect.
7. A member state’s obligation under the eec treaty, which is neither subject to any conditions nor, as regards its execution or effect, to the adoption of any measure either by the states or by the commission, is legally complete and consequently capable of producing direct effects on the relations between member states and individuals. Such an obligation becomes an integral part of the legal system of the member states, and thus forms part of their own law, and directly concerns their nationals in whose favour it has created individual rights which national courts must protect.
8. Article 53 of the eec treaty constitutes a community rule capable of creating individual rights which national courts must protect.
9. Article 53 of the eec treaty is satisfied so long as no new measure subjects the establishment of nationals of other member states to more severe rules than those prescribed for nationals of the country of establishment, whatever the legal system governing the undertakings.
10. Article 37 ( 2 ) of the eec treaty constitutes in all its provisions a rule of community law capable of creating individual rights which national courts must protect.
11. The provisions of article 37 ( 2 ) of the eec treaty have as their object the prohibition of any new measure contrary to the principles of article 37 ( 1 ), that is any measure having as its object or effect a new discrimination between nationals of member states regarding the conditions in which goods are procured and marketed, by means of monopolies or bodies wich must, first, have as their object transactions regarding a commercial product capable of being the subject of competition and trade between member states, and secondly must play an effective part in such trade.
It is a matter for the court dealing with the main action to assess in each case whether the economic activity under review relates to such a product which, by virtue of its nature and the technical or international conditions to which it is subject, is capable of playing such a part in imports or exports between nationals of the member states.
LMA The case involved a conflict between a number of Treaty provisions, and an Italian statute nationalising the electricity company of which Signor Costa was a shareholder. But here the Italian law was later in time. On being brought before the Milan tribunal for refusing to pay his bill (about andpound;110p.) Signor Costa argued that the company was in breach of EC Law. The company argued ‘lex posterior’ the Italian Act nationalising the electricity company was later in time than the Italian Ratification Act, the act incorporating EC law therefore it took priority. The Italian Court referred this question of priorities to the ECJ. The principle of supremacy of EC law was clearly affirmed by the ECJ. The Court went on to say ‘The transfer, by MS, from their national orders in favour of the Community order of rights and obligations arising from the Treaty, carries a clear limitation of their sovereign right upon which a subsequent unilateral law, incompatible with the aims of the Community cannot prevail’

C-6/64, (1964) CMLR 425, [1964] ECR 585, R-6/64, [1964] EUECJ R-6/64, [1964] EUECJ C-6/64
Bailii, Bailii
European
Citing:
Order – Costa v ENEL (Order) ECJ 3-Jun-1964
. .

Cited by:
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
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: 31 October 2021; Ref: scu.214025

Patriciello (Privileges And Immunities): ECJ 9 Jun 2011

ECJ Member of the European Parliament – Article 8 of the Protocol on the Privileges and Immunities – Scope of the concept of’opinion expressed in the exercise of parliamentary duties’ – Criminal proceedings for the crime of false accusation – Immunity material – a behavior MEP outside the precincts of Parliament – link organic.
While Article 8 is intended to apply to statements made by MEPs within the very precincts of the European Parliament, it is not impossible that a statement made by an MEP outside the precincts may amount to an opinion expressed in the performance of their duties within Art 8 because this depends on the character and content of the opinion rather than the place where it was made. However there must be a ‘direct and obvious connection between the opinion expressed and the parliamentary duties and a statement made outside the precincts of the Parliament: ‘does not constitute an opinion expressed in the performance of his parliamentary duties covered by the immunity afforded by that provision unless that statement amounts to a subjective appraisal having a direct, obvious connection with the performance of those duties . .’
[2012] 1 CMLR 11, C-163/10, [2011] EUECJ C-163/10
Bailii
European
Cited by:
Cited – Barron and Others v Collins QBD 16-May-2016
The defendant MEP sought an order staying the defamation action brought against her by four MPs from the Rotherham area. She said that as an MEP she had a procedural immunity. She had informed the European Commission that she sought the protection . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.440760

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 vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained, had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages.
Held: The Secretary of State was not required to give such an undertaking. Lord Reid said that normally a claimant ‘cannot be compelled to give an undertaking but if he will not give it he will not get the injunction.’
The fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified.
Lord Diplock said: ‘The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages.’ and ‘The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant’s benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction.’
. . ‘In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects).’
Lord Diplock, Lord Reid, Lord Wilberforce
[1975] AC 295, [1974] 2 All ER 1128, [1974] 3 WLR 104
Monopolies and Restrictive Practices (Inquiry Control) Act 1948 11(2), Monopolies and Mergers Act 1965
England and Wales
Cited by:
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 – 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 . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
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 – 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 – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
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 (or, indeed, anyone else) 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.187068

Rex v Eliot, Holles and Valentine: 1629

Parliamentary privilege did not protect the maker against seditious comments made in the Chamber of the House.
(1629) 3 St Tr 293
England and Wales
Cited by:
See Also – Rex v Eliot, Hollis and Valentine 1629
Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.427744

Rex v Eliot, Hollis and Valentine: 1629

Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in the chair by force. All pleaded to the jurisdiction. The plea nihil dicit meant that conviction would be inevitable, but if they defended themselves at all, their contention that Parliament was the only body with jurisdiction over these matters would be totally undermined. Eliot’s self-acknowledged dilemma was that if he did not submit he would incur the censure of the Court, but if he did, his act would be considered ‘a prejudice to posterity’ and ‘a danger to Parliament’. So he would be silent, just because his duty was to Parliament.
Held: Members had no privilege to speak seditiously or behave in a disorderly manner.
(1629) 3 St Tr 294
England and Wales
Citing:
See Also – Rex v Eliot, Holles and Valentine 1629
Parliamentary privilege did not protect the maker against seditious comments made in the Chamber of the House. . .

Cited by:
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 – Chaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
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. . .
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.
Updated: 20 October 2021; Ref: scu.409974

Warren v The State: PC 30 Jul 2018

(Pitcairn Islands)
[2018] UKPC 20
Bailii
England and Wales

Updated: 18 October 2021; Ref: scu.621123

Harding v Attorney General of Anguilla: PC 30 Jul 2018

(Anguilla) Mrs Harding claims that she was removed from office before the expiry of her final term in breach of the Constitution of Anguilla, and that she had a legitimate expectation of reappointment which was violated by the failure to reappoint her.
Lord Reed, Lord Kerr, Lord Sumption, Lord Hodge, Lord Briggs
[2018] UKPC 22
Bailii
England and Wales

Updated: 18 October 2021; Ref: scu.621121

Onesearch Direct Holdings Ltd (T/A Onesearch Direct) v City of York Council: Admn 19 Mar 2010

The court considered the conditions under which the respondent authority replied to all enquiries as to properties within its area. The replies were given by a standardised all inclusive information sheet derived from a central database. The authority would not allow either access to the raw data, nor provide piecemeal responses. The claimant argued that the statutory background implied a duty to allow access to the raw data.
Held: While a court can interpret a statute merely authorising an authority to take an action as imposing a duty where a failure to act would frustrate the purpose of the Act, it was not as clear that a similar interpretation could be imposed to support a different statute. The background information to the 2004 Act clearly anticipated authorities allowing access to the raw data, preferring initially a voluntary approach. That preference undermined an interpretation imposing an obligation, and there was in fact no obligation imposed on the council to allow access to the raw data.
Hickinbottom J
[2010] EWHC 590 (Admin)
Bailii
Local Government Act 1972, Local Government Act 2000 2, Local Authorities (Charges for Land Searches) Regulations 1994 (SI 1994 No 1885) 2
England and Wales
Citing:
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – The Sussex Peerage Case 1844
Statements against penal interest are outside the common law exception of statements against interest. The oral confession of a deceased person was considered.
The court considered principles of statutory interpretation: ‘Acts should be . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 September 2021; Ref: scu.403378

The Queen v Walter Watson Hughes And Edward Stirling: PC 22 Dec 1865

Leases granted by the Governor of South Australia under powers conferred on him by the Colonial Act, 21st Vict. No. 5, sec. 13, for regulating the sale and other disposal of waste lands belonging to the Crown, sealed with the public seal of the Province, but not enrolled or recorded in any court, are not in themselves Records; and, though bad on the face of them, being for a larger quantity of land than allowed by that Act, cannot be annulled or quashed by a writ of Scire facias
[1865] EngR 794, (1865) 3 Moo PC NS 439, (1865) 16 ER 166, [1866] UKPC 3, LR 1 PC 81
Commonlii, Bailii
Australia

Updated: 15 July 2021; Ref: scu.281706

John Wilkes, Esq v The King: HL 1768

Mr Wilkes had been accused of making a seditious libel against the King. He had peaded not guilty, but then absconded after his conviction, but before his sentence.
[1768] EngR 2, (1768) Wilm 322, (1768) 97 ER 123
Commonlii
England and Wales
Citing:
See Also – Wilkes v Wood CCP 6-Dec-1763
Entry by Force was Unconstitutional
The plaintiff challenged a warrant of commitment to the Tower of London addressed to John Wilkes by name. The plaintiff sought damages after his property was entered by force on behalf of the Secretary of State.
Held: The case was decided on a . .

Cited by:
See Also – Rex v John Wilkes, Esq 7-Feb-1770
The law must be applied even if the heavens fell
An information for a misdemeanor may be amended the day before trial by a single Judge at chambers on hearing both sides and without the consent of the defendant.
On setting aside John Wilkes’ outlawry for publishing The North Briton, Lord . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.374591

Taylor v Attorney General of Queensland; 29 Jun 1917

References: (1917) 23 CLR 457, [1917] HCA 31
Links: Austlii
Coram: Barton J, Isaacs, Gavan Duffy, Rich and Powers JJ
Ratio: (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 electors, and, if affirmed by them, should be presented to the Governor for His Majesty’s assent. Upon receiving such assent, the Bill was to become an Act of Parliament in the same manner as if passed by both Houses of Parliament, and notwithstanding any law to the contrary.
Held: This was a valid and effective Act of Parliament by virtue of the power conferred upon the Legislature of Queensland by S.5 of the Colonial Laws Validity Act of 1865. It was further held that there was power to abolish the Legislative Council of Queensland by an Act passed by the Legislative Assembly and affirmed by the electors in accordance with the provisions of the 1908 Act. Barton J ‘The Constitution Act of 1867 provided for all laws passed under it to be enacted ‘by Her Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly in Parliament assembled’, and that the constitution did not recognise the making of laws by any other authority: ‘It is also true that in general the legislation of a body created by and acting under a written charter or constitution is valid only so far as it conforms to the authority conferred by that instrument of government, and that therefore attempted legislation, merely at variance with the charter or constitution, cannot be held an effective law on the ground that the authority conferred by that instrument includes a power to alter or repeal any part of it, if the legislation questioned has to be preceded by a good exercise of such power; that is, if the charter or constitution has not antecedently been so altered within the authority given by that document itself. . . Normally, therefore, in the absence of such a provision as s.5 of the Imperial Act, I should have been prepared to hold that the [1908 Act], which, though it professed to be an amendment of the Constitution Act of 1867, was merely, in view of its provisions, an Act at variance with the constitution, not preceded by a valid extension of the constitutional power, was therefore itself, as it stood, invalid. But in the present case the Imperial provision seems to me to take away the application of the principle I have stated to legislation of the kind which it authorises.’
Statutes: Queensland Parliamentary Bills Referendum Act of 1908
This case is cited by:

Cited – Regina on the Application of Jackson and others v HM Attorney General CA (Bailii, [2005] EWCA Civ 126, Times 17-Feb-05)
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 v Attorney General HL (House of Lords, [2005] UKHL 56, Times 14-Oct-05, Bailii, [2006] 1 AC 262, [2005] 2 WLR 87, [2005] 4 All ER 1253)
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 . .

(This list may be incomplete)

Last Update: 04-Aug-16
Ref: 222718

Hutchinson v Proxmire; 26 Jun 1979

References: [1979] USSC 139, [1979] 443 US 111
Links: Worldlii
Ratio: (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 influence executive agencies are not privileged acts. Not every public employee is a public official.
This case is cited by:

Cited – Chaytor and Others, Regina v SC (Bailii, [2010] UKSC 52, Bailli Summary, [2010] WLR (D) 311, WLRD, UKSC 2010/0195, SC Summary, SC, [2011] 1 Cr App R 22, [2010] 3 WLR 1707, [2011] 1 All ER 805)
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
Cited – Makudi v Baron Triesman of Tottenham CA (Bailii, [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, WLRD)
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 . .

(This list may be incomplete)

Last Update: 31-Jul-16
Ref: 427748

Bradlaugh v Gossett; 9 Feb 1884

References: (1884) 12 QBD 271, 32 WR 552, 53 LJQB 209, 50 LT 620, [1884] EWHC 1 (QB)
Links: Bailii
Coram: Lord Coleridge, Stephen J
Ratio:Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the House of Commons and the Court had no power to interfere.
Lord Coleridge said: ‘There is another proposition equally true, equally well established, which seems to me decisive of the case before us. What is said or done within the walls of Parliament cannot be inquired into a Court of law. On this point all the judges in the two great cases which exhaust the learning on the subject – Burdott v Abbott (1811) 14 East 1 and Stockdale v Hansard (1839) 9 Ad & E 1 – are agreed, and are emphatic. The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.’
Stephen J said: ‘I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable’ and ‘The only force which comes in question in this case is such force as any private man might employ to prevent a trespass on his own land. I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice. One of the leading authorities on the privilege of Parliament contains matter on the point and shows how careful Parliament has been to avoid even the appearance of countenancing such a doctrine.’
This case cites:

Cited – Sir Francis Burdett, Bart v The Right Hon Charles Abbot KBD ((1811) 14 East 1, Commonlii, [1811] EngR 83, (1811) 104 ER 501)
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .
Cited – John Joseph Stockdale v James Hansard, Luke Graves Hansard, Luke James Hansard, And Luke Henry Hansard (, Commonlii, [1839] EngR 139, (1839) 9 Ad & E 1, (1839) 112 ER 1112)
It is no defence in law to an action for publishing a libel that the defamatory matter is part of a document which was, by order of the House of Comnions, laid before the House, and thereupon became part of the proceedings of the House, and which . .

(This list may be incomplete)
This case is cited by:

Cited – Jennings v Buchanan PC (Bailii, [2004] UKPC 36, Times 19-Jul-04, PC, PC, [2004] EMLR 22, [2005] 1 AC 115, [2005] 2 All ER 273)
(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 – Prebble v Television New Zealand Ltd PC (Times 13-Jul-94, Gazette 26-Oct-94, [1995] 1 AC 321, [1994] 3 NZLR 1, Bailii, [1994] 3 WLR 970)
(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 – Prebble v Television New Zealand Ltd PC (Times 13-Jul-94, Gazette 26-Oct-94, [1995] 1 AC 321, [1994] 3 NZLR 1, Bailii, [1994] 3 WLR 970)
(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 – Regina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC ([2010] EW Misc 9 (EWCC), Bailii, Judiciary)
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
Cited – Chaytor and Others, Regina v CACD (Bailii, [2010] EWCA Crim 1910, [2010] WLR (D) 214, WLRD)
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 – Chaytor and Others, Regina v SC (Bailii, [2010] UKSC 52, Bailli Summary, [2010] WLR (D) 311, WLRD, UKSC 2010/0195, SC Summary, SC, [2011] 1 Cr App R 22, [2010] 3 WLR 1707, [2011] 1 All ER 805)
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
Cited – Mereworth v Ministry of Justice ChD (Bailii, [2011] EWHC 1589 (Ch))
The claimant’s father had been granted the hereditary title of Baron of Mereworth. The claimant having inherited th etitle objected to the refusal to issue to him a writ of summons to sit in the House of Lords.
Held: The claim was struck out . .

(This list may be incomplete)

Last Update: 25-Jul-16
Ref: 199237

The Grand Junction Canal Company v Dimes; 1 May 1849

References: [1849] EngR 576, (1849) 12 Beav 63, (1849) 50 ER 984
Links: Commonlii
Ratio:In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in the company, and a motion was made to discharge the order of the Lord Chancellor on the ground of his interest in the matter rendering it void.
Held: The Master of the Rolls was of opinion that the motion ought to be refused with costs.
When the Lord Chancellor is a party to a suit, the bill is addressed to the King, and the cause is heard by the Master of the Rolls; but the decree is formally and technically completed, made final, and enrolled as the decree of the King. But where a public company, in which the Lord Chancellor has shares, are suitors, the bill cannot properly be addressed to the Queen in Chancery.
It is a general rule that no one ought to be a judge in his own cause, and no Judge ought, by himself or his deputy, to hear and determine a cause, or make an order, or do any judicial act, in a cause in which he has a personal interest ; but even in a case of disputed interest, a Judge is not incapacitated from making an order, if, by refusing to do so, justice would be denied.
There is not, and cannot, in any case, be an incapacity to make any orderor do any act in a matter within the proper, peculiar and exclusive jurisdiction of a Judge’s office, if such order or act be necessary to prevent a failure of justice. Whatever a Judge’s interest may be, if justice cannot be had, without an act or order of his, he cannot lawfully refuse to do the act, or make the order required. In cases where questions of this kind arise, the Judge must have a certain degree of diseretion, and, having the capacity, his duty does not extend further than the necessity of the case requires ; if there are other Judges having co-ordinate jurisdiction, he may and ought to refuse to act ; but if he, like the Lord Chancellor, should be the sole Judge having jurisdiction in the case it is otherwise.
The signing of a decree of a subordinate Judge by the Lord Chancellor is a judicial act.
This case cites:

Appeal from – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .

(This list may be incomplete)
This case is cited by:

See Also – The Grand Junction Canal Company -v- Dimes ([1850] EngR 243, Commonlii, (1850) 2 H & Tw 92, (1850) 47 ER 1610, [1849] EngR 682, Commonlii, (1849) 17 Sim 38, (1849) 60 ER 1041)
The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain . .
See Also – The Grand Junction Canal Company -v- Dimes CA ([1850] EngR 242, Commonlii, (1850) 2 Mac & G 285, (1850) 42 ER 110)
The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
See Also – Dimes -v- Lord Cottenham ([1850] EngR 499 (A), Commonlii, (1850) 5 Exch 311)
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
See Also – In Re Dimes ([1850] EngR 769, Commonlii, (1850) 3 Mac & G 4, (1850) 42 ER 162)
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .
See Also – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
See Also – Dimes -v- The Proprietors Of The Grand Junction Canal and Others ([1852] EngR 793, Commonlii, (1852) 3 HLC 794, (1852) 10 ER 315)
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .

(This list may be incomplete)

Last Update: 17-Jun-16
Ref: 298881

Regina v Oakes; 28 Feb 1986

References: [1986] 1 SCR 103, 1986 CanLII 46 (SCC), 53 OR (2d) 719, 24 CCC (3d) 321, 50 CR (3d) 1, 65 NR 87, [1986] CarswellOnt 95, EYB 1986-67556, [1986] SCJ No 7 (QL), 14 OAC 335, 16 WCB 73, [1986] ACS no 7, 19 CRR 308
Links: Canlii
Coram: Dickson C.J. and Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
Ratio:Supreme Court of Canada – Constitutional law — Charter of Rights — Presumption of innocence (s. 11(d)) — Reverse onus clause — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not reverse onus in violation of s. 11(d) of the Charter — Whether or not reverse onus a reasonable limit to s. 11(d) and justified in a free and democratic society — Canadian Charter of Rights and Freedoms, ss. 1, 11(d) — Narcotic Control Act, R.S.C. 1970, c. N-1, ss. 3(1), (2), 4(1), (2), (3), 8.
Criminal law — Presumption of innocence — Reverse onus — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not constitutional guarantee of presumption of innocence (s. 11(d) of the Charter) violated.
This case is cited by:

Cited – De Freitas -v- The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC (Bailii, [1998] UKPC 30, [1999] 1 AC 69, Appeal No 42 of 1997, [1998] 3 WLR 675, 4 BHRC 563)
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Akerman-Livingstone -v- Aster Communities Ltd SC (Bailii, [2015] UKSC 15, Bailii Summary, [2015] 3 All ER 725, [2015] 1 AC 1399, [2015] BLGR 765, [2015] WLR(D) 121, [2015] 2 WLR 721, [2015] HLR 20, UKSC 2014/0202, SC, SC Summary, WLRD)
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .

(This list may be incomplete)

Last Update: 10-Jun-16
Ref: 564962