2. Rule of Law Flashcards
Dicey’s theory
- The supremacy of regular law over arbitrary power
- Equality before the law
- No higher law than the rights of individuals as determined through the courts
Entick v Carrington
Search deemed unlawful since there was no basis in statute or precedent for the warrant that purported to authorise it
Kelly v Faulkner
NI CA refused to accept that British soldiers dealing with emergency should be exempt from normal legal requirements for execution of valid arrest
Malone v Met Police Commissioner
Court held it had no jurisdiction on the legality of police phone tapping. No law against this and executive could do anything that was not prohibited by law
Malone v UK
ECtHR rules UK’s practice of allowing interception of communications is in breach of Art 8
Gvt responds by passing Interception of Communications Act 1985
M v Home Office
Mandatory interim injunction against HS upheld - Crown’s immunity from JR doesn’t extend to officers of the Crown
Sunday Times v UK
(1) Law must be adequately accessible
(2) Norm cannot be regarded as ‘law’ unless formulated with sufficient degree of precision to enable citizen to regulate his conduct
War Damages Act 1965
Retrospective legislation passed in response to Burmah Oil v Lord Advocate
War Crimes Act 1991
Retrospective legislation
Shaw v DPP
S convicted of ‘conspiracy to corrupt public morals’ (even though no such statutory offence and conviction unprecedented)
Courts have ‘residual power to enforce the supreme and fundamental purpose of the law’
R v R
HL overturned previous common law rule allowing marital rape, convicting somebody for act that was not then an offence
R v C
Marital rape conviction for act that took place in 1970s
SW and CR v UK
ECtHR held that conviction for marital rape committed a time when this was not recognised of offence was not unlawful
Ex parte Fewings
Council’s ban on stag hunting on its land held to be an abuse of its discretionary power
Liversidge v Anderson
HS allowed discretionary power to detain person without trial so long as he honestly believed he had hostile intentions- no need to prove this belief was reasonable
Lord Atkin: accuses majority of being ‘more executive minded than the executive’
Ex parte Hosenball
CA unwilling to order HS to give reasons for deporting American journalist
Ex parte Cheblak
CA accepts HS’s determination that Cheblak’s presence in UK was not ‘conducive to public good’ and refused to order his release from detention pending deportation
A and others v SS for Home Dpt
Anti-Terrorism, Crime and Security Act 2001, s 23 allows detention of non-nationals suspected of being terrorists
HL: detention legal under Act, but not discrimination between nationals and non-nationals
Lord Hoffman (dissenting): goes further - Act goes against very fabric of UK constitution in allowing detention at all
Rahmatullah v SS for FCA
SC upheld issue of habeas corpus on UK government, requiring it to seek to procure the release of the claimant, who is being held by the US at Bagram airbase
R (Mohamed) v SS for FCA
FS ordered to allow disclosure of materials supporting applicant’s case he had been tortured at Guantanamo Bay as crucial for functioning of open system of justice and hence ROL
Justice and Security Act 2013 passed on the light of these cases
Ex parte Simms
Blanket ban by HS on journalists using information gained during interviews with prisoners held to be ultra vires even though it had basis in statutory authority
Jackson
Obiter comments: parliamentary sovereignty a judicial creation and could be revoked if courts held Parliament acting in way that was contrary to ROL
IRC v Rossminster
Denning: warrant invalid for want of particularity + search not in accordance with anything authorised by warrant
Criticises Taxes Management Act 1970 for being ‘drawn so widely that in some hands it might become an instrument of oppression’
Wilberforce overturns decision on basis of more formal view of rule of law
Corner House Research
Divisional Court held that decision by Serious Fraud Office to halt investigations into bribery allegations regarding arms contracts with Saudi gvt after thread by Saudi authorities is contrary to RoL
HL: reverses judgement - public interest in pursuing investigation outweighed by wider public interest in protecting national security
