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SQE - FLK1 > 02. Constitutional Law > Flashcards

02. Constitutional Law Flashcards

1
Q

What three overarching considerations must be applied when considering an application for judicial review?

A
  1. Procedure (apply to Administrative Court)
  2. Scope of JR only applies to public bodies and secondary/delegated legislation; not primary legislation
  3. Subject matter must be public, not privat elaw
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2
Q

3 procedural requirements for JR?

A
  1. Administrative Court (within KB Div of High Court)
  2. Serve claim form for JR on defendant
  3. Permission for JR must be obtained from High Court
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3
Q

3 tests for standing?

A
  1. Sufficient interest/locus standi
  2. Person aggrieved (applies only to S.288 Town and Country Planning Act 1990): must have a subsisting interest in the affected land
  3. Victim test (applies only under HRA 1998): claimant is or would be victim of unlawful act by public body
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4
Q

3 timing-related prerequisites for general JR? What happens if you do not comply?

A
  1. Exhaustion of remedies (e.g. statutory appeals or tribunal appeals)
  2. Promptly
  3. Not later than 3 months after the date of the judgment, order or conviction

If not complaint, must apply for extension of time together with application for leave for JR

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5
Q

Time limit for JR of planning or procurement decisions?

A

6 weeks from the date the claim arose for planning decision and 30 days from actual or constructive knowledge, for procurement

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6
Q

What is the test for amenability to JR?

A

The decision under review must be taken or made by a public body, i.e.
1. Established by statute
2. Otherwise exercising a public function

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7
Q

What are the two purposes of the doctrine of non-justiciability?

A
  1. Mark out certain exercises of public power as non-reviewable on any ground
  2. Mark out certain grounds of review as unavailable when reviewing the exercise of a particular public power
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8
Q

What are 3 non-justiciable public powers?

A
  1. Prerogative of mercy
  2. Grant of honours by the monarch
  3. Public policy directions (e.g. funding of local authorities)
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9
Q

What is the exclusivity rule. One clarification?

A

A claimant relying on public law rights must proceed by way of JR. However, a defendant can rely on an issue of public law as a defence in ordinary civil proceedings.

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10
Q

6 high-level examples of illegality?

A
  1. Exceeding a conferred power
  2. Unlawful sub-delegation
  3. Error of law or fact
  4. Failure to consider relevant factors or considering irrelevant factors
  5. Fettering of discretion (internal policies must be subject to exceptions and permit authorities to consider each case on its own merits)
  6. Improper purposes
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11
Q

How is the test of improper purposes applied?

A
  1. Subjective intention or motive of the decisionmaker
  2. If the decision has more than one purpose, the primary purpose or material influence test is applied
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12
Q

Two tests of irrationality? Why is this considered to be an intrusive form of JR?

A
  1. Wednesbury unreasonableness
  2. Proportionality of the exercise of power to the objective being pursued

Looks to the merits of the decision rather than its procedural or legal basis

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13
Q

What are the two types of statutory procedural requirements when considering JR on the ground of procedural impropriety?

A
  1. Mandatory - any violation will invalidate the decision
  2. Directory - requires only substantial compliance and claimant must show some prejudice
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14
Q

4 important procedural requirements for public decisions (JR)?

A
  1. Do not show actual or apparent BIAS
  2. Fair HEARING (including oral hearing or reasons, if an LE exists)
  3. Give REASONS ONLY if implied by common law (usually if there is an important interest or trigger factor) or imposed by statute
  4. Undertake any CONSULTATION properly
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15
Q

4 requirements for legitimate expectations

A
  1. Express, unambiguous and unqualified representation
  2. Claimant has an interest in an eventual benefit it expected to attain or retain
  3. Decision-maker had the legal power to make the representation
  4. Claimant reasonably relied on it to his detriment
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16
Q

Difficulty in relying on public body’s past practice when claiming LE for JR?

A

Must show that deviation from policy amounted to an abuse of power

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17
Q

Two options open to court under HRA?

A

S.3 confers de facto permission to JR Acts of Parliament without striking down

S.4 allows courts to issue rulings that legislation is incompatible with ECHR

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18
Q

What is certiorari? Two different consequences?

A

A quashing order that nullifies a public body’s decision. Court may (1) send case back to decision-maker with a direction to remake the decision or (2) substitute original decision for its own

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19
Q

When are damages available in JR?

A

Very limited; only if there is: (1) a private law cause of action or (2) a claim under the HRA

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20
Q

What is special about remedies in JR?

A

All remedies are in the court’s discretion, even if it finds wrongful conduct

21
Q

What does S.84 of the Criminal Justice and Courts Act 2015 say about JR?

A

Causation test: the court cannot grant relief or make an award on an application for JR if the court thinks it is SUBSTANTIALLY LIKELY the outcome for the applicant would not have been SUBSTANTIALLY DIFFERENT if the conduct complainted of had not occurred

22
Q

What is the pre-action protocol for JR?

A

Produce a LETTER BEFORE ACTION identifying: (1) decision being challenged and (2) the basic reasons for challenge (illegality, procedural impropriety, etc.)

23
Q

What is the main significance of the HRA with respect to public order law?

A

Enables defences to non-violent criminal offences connected with political protest, through the concept of proportionality

24
Q

What is a breach of the peace? Three quirks? What kinds of property can it occur on?

A

Either harm is done or likely to be done : (i) to a person; (ii) in his presence to his property; or (iii) a person is in fear of being so harmed through a disturbance; whether on public or private property.

  1. Not a criminal offence and cannot give rise to any conviction
  2. Proceedings are civil
  3. However, claims are brought by the prosecution and must be proved beyond reasonable doubt
25
Q

What general and specific powers are available at common law to maintain peace?

A

Police or any member of the public may:

  1. General: Any action to stop or prevent a breach of the peace, including using reasonable force, where there are reasonable grounds for believing a breach is taking place or is imminent
  2. Arrest: only if (i) a breach of the peace is committed in the presence of the arrestor; (ii) the arrestor reasonably believes that such a breach will be committed in the immediate future; or (iii) a breach has already been committed and it is reasonably believed that a renewal of the breach is threatened
26
Q

What are the six preconditions to execute an arrest for breaching the peace?

A
  1. Clearest circumstances and a sufficient real, present and imminent threat to the peace
  2. Threat must emanate from the person to be arrested
  3. Conduct clearly interferes with the rights of others
  4. Natural consequence of the conduct must be violence from a third party
  5. Violence used must not be wholly unreasonable
  6. Conduct of the person to be arrested must be unreasonable
27
Q

What is the consequence if the anticipated breach of the peace is not sufficiently imminent?

A

No preventative action, even if short of arrest, can be taken

28
Q

Three considerations for the arrestor when executing an arrest for breach of the peace?

A
  1. Violence used must not be unreasonable
  2. Only lawful for such period as is necessary to prevent a breach recurring (power ends once breach has finished)
  3. Must be proportionate (no less drastic means of preventing it)
29
Q

Which three ECHR rights are relevant when considering the power of arrest for breach of the peace?

A
  1. Article 5 (liberty and security)
  2. Article 10 (freedom of expression)
  3. Article 11 (right to freedom of assembly and association)
30
Q

What is the offence created by Section 89(2) of the Police Act 1996? Consequence?

A

Resisting or wilfully obstructing a constable in the execution of his duty

No charge involved, but individual must be brought before a magistrate (who has binding over powers)

31
Q

What is a “binding over order”? What is the consequence of refusing to be bound over?

A

An order requiring the individual to promise to pay a specified sum if the order terms are breached, with the recognizance giving rise to a civil debt on breach of the order

  1. Imprisonment possible for a refusal to be bound over
  2. No power to order detention of someone under 18 years old if they refuse to be bound over
32
Q

What is the consequence of breaching a binding over order? One qualification?

A

Court can order the person to pay the amount of the recognizance if a breach is proven by the prosecution on the civil standard (BoP)

33
Q

Substantive criterion for binding over order?

A

Court must be satisfied that a breach of the piece: (i) involving violence or an immnent threat of violence has occurred; or (ii) there is a real risk of violence in the future

34
Q

(2 elements) What is the definition of a public procession?

A
  1. A body of persons moving along a route (“procession”; common law)
  2. In a public place (S. 11 POA 1986)
35
Q

What is the notice requirement for processions? Any exceptions?
When does this requirement apply?

A

Must give six clear days written notice prior to the date of the procession, to a police station in which the procession is proposed

Exception is if it is not reasonable practicable to give any advance notice.

Applies where procession has one of three purposes:
1. To demonstrate support for or opposition to the views of any person or body of persons
2. Publicise a cause or campaign
3. Mark or commemorate an event

36
Q

What are the five points that must be specified in a notice for a public procession?

A
  1. Date
  2. Time
  3. Proposed route
  4. Name of organizers
  5. Address of organizers
37
Q

Service requirements for a public procession notice?

A

Usually by post via recorded delivery service if six clear days notice is given

If less than six clear days (because not reasonably practicable), delivered by hand

38
Q

Two offences and two defences associated with organizing a public procession?

A

Offences:
1. Failure to give sufficient notice; and
2. diverging from the date, time or route specified in the notice\

Defences:
1. organizer did not: (i) know if; (ii) suspect; or (iii) have reason to suspect the failure to satisfy the notice requirement or the difference of the date, time or route
2. Difference arose from: (i) circumstances beyond their control; or (ii) something done with the agreement or at the direction of a police officer

39
Q

When may a Senior Police Officer impose conditions on a public procession?
Any formal requirements?

A
  1. Procession may result in (i) serious public disorder; (ii) serious damage to property; (iii) serious disruption to the life of the community OR
  2. Purpose of organizers is to intimidate others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do

SPO must be a Chief Constable or Commissioner or, if the processsion has begun, the most senior in rank of the police officers present at the scene. May impose conditions verbally.

40
Q

What discretion does the SPO have in imposing conditions on public processions?

A

Such conditions are appear to him necessary to prevent disorder, damage, disruption or intimidation, on pain of summary offence

41
Q

How can police ban public processions?

A
  1. Chief Police Officer
  2. Up to 3 months in advance
  3. Apply to local authority for a banning order
42
Q

Define a public assembly under S.11 of the POA 1986.

A
  1. Assembly of two or more persons
  2. In a public place
  3. Wholly or partly open to the air
43
Q

What is the notice requirement for public assembly?

A

No notice requirement

44
Q

What are the requirements for imposing conditions on public assemblies?

A

Reasonable belief that assembly will result in (i) serious public disorder; (ii) serious damage to property; or (iii) serious disruption to the life of the community

45
Q

What types of conditions may be imposed on public assemblies?

Two other requirements for these conditions?

A
  1. Number of people who may take part
  2. Location of assembly
  3. Maximum duration

Must: (i) identify time and place at which event will occur before imposing conditions; and (ii) be proportionate to the reasonable aims for which they have been imposed

46
Q

How can police ban a public assembly?

A

No such power

47
Q

What 3 offences may be committed if a public assembly occurs on privately-owned land?

A
  1. Aggravated trespass (trespassing while a lawful activity is taking place on that land or nearby land, and the offender does anything intending to intimidate, obstruct or disrupt that acitivity)
  2. ASBA–aggravated trespass in buildings and open air
  3. Trespassory assembly–20 or more people hold assembly on land, in the open air, without or in excess of the permission of the occupier
48
Q

4 requirements for an order prohibiting trespassory assemblies?

A
  1. Application by CPO to the local authority
  2. CPO reasonably believes there is a risk that trespassory assemblies will: (i) seriously disrupt the life of the community; or (ii) damage important buildings or monuments in a particular area
  3. Imposed for no more than 4 days
  4. Stretches no wider than a 5-mile radius

SQE - FLK1 (21 decks)

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