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Admin Flashcards

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1
Q

What is the ECHR?

A

All judgements of the ECHR are binding on the UK

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2
Q

How can cases be brought to the ECHR?

A

State applications

Individual petitions

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3
Q

What is derogation?

A

A state may derogate from part of the convention in a time of war or other public emergency

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4
Q

What Articles does derogation not apply to?

A

Article 2 - right to life
Article 3 - torture
Article 4 - slavery
Article 7 - retrospective criminal offences

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5
Q

What is an absolute right?

A

Can never be interfered with in any circumstances whatsoever. The state must uphold them at all times

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6
Q

What is a limited right?

A

Can only be limited in clearly defined and finite situations

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7
Q

What is a qualified right?

A

Requires balance between the rights of the individual and the wider public interest.

Can be interfered with to protect an important general interest or rights of others

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8
Q

What is a declaration of incompatibility?

A

The high court can declare the UK legislation incompatible with convention rights

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9
Q

What is the strength of a declaration of incompatibility?

A

It does not force the government to change the law

However it provides political pressure on them to do so

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10
Q

What is a remedial order?

A

This amends or repeals the offending legislation

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11
Q

What comes under section 6?

A

The ECHR makes a convention right standard for PUBLIC AUTHORITIES

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12
Q

How can a convention rights be used against a private individual?

A

Bring a tort claim and the courts, as a public authority, must make a decision with consideration for convention rights

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13
Q

What comes under s7?

A

This states that a claimant can only bring proceedings if they are a victim of the breach

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14
Q

What is Article 2?

A

A right to life

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15
Q

What is stated in Article 2?

A
  1. Prohibits the state froim taking life

2. Places a positive duty on the state to protect life

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16
Q

What are the derogations from Article 2?

A

The force is no more than absolutely necessary

  1. Self-defence
  2. Effect lawful arrest
  3. Lawfully quell an insurrection or riot
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17
Q

What was established in the case of Armani da Silva v UK?

A

There is an obligation on the state to investigate when an individual has been killed as a result of force

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18
Q

What is an effective investigation (6)?

A
  1. Independent investigator
  2. Adequate
  3. Nature and degree of scrutiny is stringent
  4. Accessible to family
  5. Sufficient element of public scrutiny
  6. Carried out promptly
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19
Q

Is there a right to life for embryos?

A

Embryos have no qualified life under Article 2

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20
Q

Is there a right to life for assisted suicide?

A

No, it is illegal

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21
Q

What happened in Pretty v UK?

A

Diane Pretty fought with the courts for her right to die

It was held that a person acting out of compassion to help a terminally ill patient with a ‘clear settled and informed wish to die, is unlikely to be prosecuted’

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22
Q

What happened in R(Nicklinson) v Ministry of Justice?

A

Tony Nicklinson applied that it was a breach of Article 8. Failed but split

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23
Q

What is Article 3?

A

Freedom from torture, inhuman or degrading treatment or punishment

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24
Q

What is the definition of inhuman treatment? (case law)

A

Ireland v UK

Inhuman treatment = likely to cause actual bodily injury or intense physical and mental suffering

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25
Q

What was the decision on corporal punishment?

A

Tyrer v UK

  • Not torture on inhuman treatment
  • But degrading punishment
  • Corporal punishment was outlawed at schools
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26
Q

What was the decision on child chastisement?

A

A v UK
Child beaten with garden cane by step father
- Injuries were enough to engage Article 3
- Law changed in this area

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27
Q

What was the decision on asylum seekers?

A

As had made application late, they were denied food or shelter.

Held that this was a violation of Article 3

Therefore now even if late, may receive accom etc

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28
Q

What happened in Soering v United Kingdom?

A
  • Extradited to USA for death penalty

- this was held to be against article 3 right

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29
Q

What happened in Chahal v UK?

A

Deported back to Punjabi with reason to believe would have violence

Article 3 was in breach

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30
Q

What is Article 4?

A

The prohibition of slavery and forced labour

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31
Q

What is not forced labour?

A
  1. Work done ordinarily by prisoners as part of their sentence
  2. Compulsory military service in European countries that still have this
  3. Work required in an emergency
  4. Any work or service that that forms part of normal civic obligations
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32
Q

What is the definition of slavery?

A

The status or condition over whom any or all of the powers attaching to the right of ownership are exercised

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33
Q

What is servitude?

A

Someone in a position of servitude is not owned by another and so is not a slave

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34
Q

What happened in Van de Mussele v Belgium?

A

Trainee lawyers, as part of their qualification process, were to carry out free legal work
- This was held not to be a breach of Article 4 as it was valuable work and it did not stop them from doing other work

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35
Q

What type of considerations would be taken when deciding if forced labour?

A
  1. Type of work involved
  2. Penalty or burden for not carrying it out
  3. Level of hardship or oppression to which the individual was subject to
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36
Q

What happened in Reilly v Secretary of State for Work and Pension?

A

The requirement that a person in receipt of Jobseeker’s allowance had to carry out unpaid work experience was not forced labour

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37
Q

What is Article 5?

A

The right to liberty and security

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38
Q

When may the state lawfully deprive an individual of their security?

A
  1. Imprisonment after conviction
  2. Ensuring compliance with a court order
  3. Arrest on suspicion of a crime
  4. Detention of a minor for educational services
  5. Detention in mentally ill hospitals
  6. Detention of foreigners in the context of asylum and deportation cases
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39
Q

What was stated in Saadi v UK regarding deprivation of liberty?

A
  1. Must be in good faith and closely connected with a legal purpose
  2. Must be necessary (other less severe measures considered and rejected)
  3. Length of detention should not exceed that reasonably required
  4. Proper records for detention should be kept
  5. The detention must be lawful in terms of the national law
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40
Q

What is needed for an arrest?

A
  1. Breach or reasonable suspicion of breach of some known law
  2. The giving of reasons for arrest and charge
  3. A trial within a reasonable time
  4. The availability of judicial review
  5. The right to compensation for breach of Article 5
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41
Q

What happened in the Belmarsh case?

A

Suspected terrorists were being detained for an indefinite period

Therefore they declared s23 incompatible

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42
Q

What happened in Guzzardi v Italy

A

This helped to define deprivation of liberty

Even though had larger island this was still deprivation of liberty

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43
Q

What happened in Secretary of State for the Home Department v JJ?

A

Required to stay in a flat except between 10am and 4pm

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44
Q

What is kettling?

A

Containing a group of people in a particular area for a limited period of time

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45
Q

What happened in Austin v UK?

A

Four people at a demonstration were contained in a police cordon for 6-7 hours. One was a demonstrator but others were passers-by

Court found that the police had no alternative

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46
Q

What is article 6?

A

Right to a fair trial

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47
Q

What are the 5 elements required in a criminal case?

A
  1. Individuals should have access to the court
  2. The court should be independent and impartial
  3. Trial should be in public and decision announced publicly
  4. Trial itself should take place within a reasonable time
  5. Trial should be conducted in a fair way
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48
Q

What happened in R (Anderson) v Secretary of State for the Home Department?

A

Held in breach of Article 6 that the Home Secretary was deciding tariffs

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49
Q

What are the exceptions for a public trial?

A
  • Interests of morality, public order or national security
  • Interests of juveniles or protection of life of the parties
  • Special circumstances
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50
Q

What is the time limit for a trial?

A

6 months

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51
Q

What is meant by the trial conducted in a fair way?

A

The defendant must be able to participate in the trial effectively

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52
Q

What happened in T v UK (Bulger case)?

A

Two eleven year old boys struggled to understand the magnitude of the situation

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53
Q

When may the court refuse evidence?

A

If obtained illegally

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54
Q

What happened in Khan v UK?

A

Bugging devices in flat helped to convict Khan of drug offences
- The court held that evidence obtained by the police unlawfully is allowed to be used if it is a relevant issue of the case

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55
Q

Are strict liability offences a breach of Article 6?

A

NO

Salabiaku v France [1991]

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56
Q

What is the rule on the right to silence?

A

The court can draw adverse inferences from silence

HOWEVER not convicted on this alone

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57
Q

What happened in Murray v UK?

A

Murray was convicted and the jury drew adverse inferences from his silence

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58
Q

What are the minimum rights for those charged with a criminal offence?

A
  1. Promptly of the details of the case
  2. Sufficient time to prepare a defence
  3. To defend themselves either personally or with the assistance of a lawyer
  4. To call witnesses in their defence and to cross-examine those who have given evidence against them
  5. To have an interpreter provided for free where necessary
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59
Q

What is article 7?

A

No punishment by law (eg person cannot be punished for conduct that was not a criminal offence when they committed it)

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60
Q

What happened in SW v UK?

A

Applicants had been convicted of raping their wives when at the time it had not been a crime. However this was rejected as this development could be reasonably foreseen

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61
Q

What is Article 12?

A

The right to marry

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62
Q

Do transgender/same sex marriages come under this?

A

Transgender YES

Same sex NO

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63
Q

What is a restriction on the right to marry?

A

Illegal marriages - father marrying daughter in law

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64
Q

What is article three of the first protocol?

A

Requires the state to hold free elections

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65
Q

Do prisoners have the right to vote?

A

Prisoners who are released on temporary charge or home detention curfew are allowed to vote

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66
Q

What is article 1 of protocol 14?

A

The abolition of the death penalty

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67
Q

What must you consider for qualified rights?

A

Is the interference prescribed by law

In pursuit of a legitimate aim

Proportionate

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68
Q

What does prescribed by law mean?

A

It must be embodied by the law - written or unwritten

This must be accessible and sufficiently precise to enable citizens to regulate their conduct

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69
Q

What is meant by in pursuit of a legitimate aim?

A

For each right there will be a list of legitimate aims

eg national security, prevention of crime, protection of health and morals

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70
Q

What is meant by proportionate?

A

Necessary in a democratic society

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71
Q

What is the test used for proportionality?

A

Bank Mellat test

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72
Q

What is article 8?

A

The right to respect for private and family life

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73
Q

What happened in Peck v UK?

A

Mr Peck’s image was used in a campaign for CCTV, against his will
- No attempt to hide his identity so in breach of article 8

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74
Q

What test is relevant in deportation cases?

A

Uner v Netherlands

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75
Q

What happened in Razgar v Secretary of State for the Home Department?

A
  • Article 8 was engaged when being removed from the country
  • Mental and physical wellbeing
  • However, would have to be a high threshold
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76
Q

What happened in the application of Countryside Alliance v Attorney General?

A

Claimed that Article 8 was invoked as they were prevented from hunting on their land and jeopardising their livelihoods

There was NO BREACH

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77
Q

What was established in Author of a Blog v Times Newspapers?

A

Information on a blog is public and there is no expectation of privacy

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78
Q

What is article 9?

A

The right to freedom of thought, conscience and religion

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79
Q

What interferences could be made?

A

Could place restrictions on items of clothing, or require people to carry out certain tasks

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80
Q

What happened in Eweida and Others v UK?

A

4 cases regarding clothing

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81
Q

What was Eweida’s case?

A

Wore cross as a BA attendant which was banned

BREACH as did not detract from professional appearance or BA brand

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82
Q

What happened in Chaplin’s case?

A

Wearing a cross as a nurse was banned

NO BREACH as this was about health and safety

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83
Q

What happened in R (Begum) v Denbigh High School

A

Girl told could not wear gown

NO BREACH

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84
Q

What were the reasons given in Begum?

A
  1. She could have attended different school that was closer
  2. She had worn this for 2 years without objection
  3. The school had a policy of allowing muslims to wear whatever they liked in an inclusive unthreatening and uncompetitive way
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85
Q

What is article 10?

A

The freedom of expression

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86
Q

What was set out in the 2003 Communications Act?

A

Ban on political advertising

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87
Q

What happened in Animal Defenders v UK?

A

Wanted to use advert on exploitation of animals in commerce and leisure
- This was banned as political
Said that it was infringing their article 10 right
- NO BREACH

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88
Q

What was established in the Public Order Act 1986?

A

Outright racist remarks are not protected by freedom of expression

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89
Q

What happened in Percy v DPP?

A

Defamed American flag

- factors given on freedom of expression

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90
Q

What happened in Norwood v UK?

A

BNP poster banned, NO BREACH as views incompatible with ECHR

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91
Q

What is article 11?

A

Freedom of assembly and association

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92
Q

What is a key determining factor in freedom assembly?

A

Must be peaceful

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93
Q

What happened in Tabernacle v Secretary of State for Defence?

A

Anti-atomic weapons camp for 23 years was being shut down

- Held that this was an interference with right to assembly

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94
Q

What happened in United Communist Party of Turkey v Turkey?

A

Party was dissolved by Turkey due to name and beliefs

- However BREACH as name could not justify dissolution

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95
Q

What happened in Refah Partisi (the Welfare Party) v Turkey?

A

Party was dissolved as wanted strict requirements of sharia law
- This was NOT A BREACH as would have undermined values of ECHR

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96
Q

What is article 1 of the first protocol?

A

The right to peaceful enjoyment of property

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97
Q

What is a restriction on this right?

A

CPO’s

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98
Q

What is article 2 of the first protocol?

A

The right to education

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99
Q

When is this right qualified?

A

Admission policies

Exclusions and suspensions

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100
Q

What is the general rule about conflicting rights?

A

Absolute rights will prevail over qualified rights

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101
Q

What is an example of absolute over qualified?

A

Venables v NGN: Publication of information of which would lead to Venables was banned as his life would be in danger

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102
Q

What about with Article 6 v article 10?

A

Article 6 is absolute and article 10 is qualified but there are two ways of dealing with it

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103
Q

What are the two ways to deal with Art 6 v Art 10?

A
  1. The Contempt of Court Act 1981

2. Common Law Contempt

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104
Q

What is meant by publication in Contempt of Court Act 1981?

A

The communication must address the public at large or a section of the public

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105
Q

What is meant by active proceedings?

A

If the trial is set to begin or has already begun

106
Q

What is meant by risk or prejudice?

A
  1. Risk of prejudice must be SUBSTANTIAL

2. Degree of prejudice must be SERIOUS

107
Q

What are defences?

A
  1. Innocent publication/distribution

2. Contemporary report of proceedings

108
Q

What is innocent publication?

A

At the time of publishing they did not know or had no reason to believe that the proceedings were active at the time of publication

109
Q

What is a contemporary report on proceedings?

A

Non-biased

110
Q

What happened in HM Attorney General v MGN?

A

Daily Mirror and Sun were sued for vilifying Christopher Jeffries for murder during trial

111
Q

What is common law contempt?

A

This is intentionally impeding or prejudicing the administration of justice

112
Q

What happened in A-G v Hislop?

A

There were articles trying to prejudice the jury against Sonia Sutcliffe

113
Q

What happened in A-G v Punch?

A

Punch magazine published an article about MI5 officer against injunction

114
Q

What about online publication?

A

Yes Common Law Contempt

115
Q

What happens in a claim of article 8 v article 10?

A

They will be balanced as both qualified

116
Q

How can a claimant make a claim against a private company?

A

Must make a claim in tort

As the court is a public authority, they will make a decision compatible with ECHR

117
Q

Is there a tort of invasion of privacy?

A

Maybe

Douglas v Hello!
Vidal-Hall v Google Inc

118
Q

What happened in Mary Bell case?

A

Mary Bell famous child killer

Found that her fragile mental health meant that Article 8 should prevail over Article 10

119
Q

What was the Campbell case?

A

Naomi Campbell pictured outside Narcotics Anonymous

Article 8 right prevailed as thought it would prevent her getting help

120
Q

What was the Campbell test?

A

Does the complainant have a reasonable expectation of respect for private life?

121
Q

What happened in Von Hannover v Germany (No1)?

A

The princess won as it was suggested that the fact someone is a public figure, does not automatically mean they have no privacy at all

122
Q

What happened in Von Hannover v Germany (No2)?

A

Held that it was a matter of general public interest of the health of her father, the Prince of Monaco

123
Q

What happened in the Murray case?

A

JK Rowling son, picture taken

As a child it was held that had a higher reasonable expectation for privacy

124
Q

What was established in Murray?

A

There were a number of factors to be considered

125
Q

What happened in Bloomberg v ZXC?

A

Member of company was under criminal investigation

Whether it contributed to the general public debate

126
Q

What happened in Mosley v News Group Newspapers?

A

Sado-masochistic activities

Was not in the public interets

If had been Nazi related then would have been due to grandfather being Oswald Mosley

127
Q

What happened in LNS v Persons Unknown?

A

Superinjunction regarding JT affair

128
Q

What happened in Ferdinand v MGN?

A

Rio portrayed himself as a family man

Public interest to demonstrate that this image was false

129
Q

What was PJS v News Group Newspapers?

A

PJS won a case to prevent details of threesome

But showed injunctions didn’t mean anything in social media age

130
Q

What is judicial review?

A

The mechanism by which the courts ensure that public bodies act within powers that they have been granted and do not exceed or abuse those powers

131
Q

What are the three constitutional principles with which it interacts with?

A

Rule of law
Separation of powers
Parliamentary sovereignty

132
Q

What is pre-action protocol for judicial review?

A

Send a letter before claim to the decision maker including the claim, remedies sought and a detailed statement of the claimant’s grounds for making the claim

Serve this to the defendant

133
Q

When do you not need to follow pre-action protocol?

A

VERY urgent cases (deportation cases)

134
Q

What are the two stages?

A
  1. Permission stage

2. Hearing stage

135
Q

What happens in the permission stage?

A

The court considers whether the claimant has standing and whether the claim was begun in sufficient time

136
Q

What is the purposes of the permission stage?

A

To weed out hopeless claims

137
Q

What is the hearing stage?

A

This is where the court hears the case

138
Q

What is the first step?

A

Does the claim raise PUBLIC law issues?

139
Q

What is the rule in O’Reilly v Mackan?

A

It is contrary to public policy and an abuse of process of court to allow a claimant to seek to enforce public law rights by way of ordinary action

140
Q

What is an exception to the public law rule?

A

If the case involves both public and private law elements

141
Q

What happens in Roy v Kensington Family Practitioner?

A

A case about pay, which was a public law decision and a private law decision (breach of contract)

142
Q

What is the second step?

A

Is the decision maker amenable to judicial review?

143
Q

What is meant by amenable to judicial review?

A

Can only be a public body

144
Q

What is the Datafin test?

A
  1. SOURCE OF POWER - if has been set up under statute or under delegated legislation
  2. NATURE OF POWER: if the body is exercising its public law functions then it could still be a public body
145
Q

What is the third step?

A

Does C have sufficient interest to make a claim?

146
Q

What is meant by sufficient interest?

A

If personally affected then fine, if no personal interest then not fine

147
Q

What is an exception to no personal interets?

A

Pressure groups

148
Q

What happened in Inland Revenue Commissioners ex party National Federation Self Employed?

A

Casual workers on Fleet Street avoided taxes and when found out were awarded amnesty.
A pressure group applied for judicial review and were allowed
Courts unlikely to reject valid judicial review claim, on the grounds of lack of standing

149
Q

What happened in R v Secretary of State ex p World Development Movement?

A

WMD pressure group

Applied for judicial review

They were allowed

150
Q

What were the 5 points raised in WMD?

A
  1. The need to uphold the rule of law
  2. The importance of the issue raised
  3. The likely absence of any other responsible challenger
  4. The nature of the alleged breached of duty
  5. The role of the pressure group
151
Q

What is step four?

A

Must be within the time limit

152
Q

What is the general rule for time limits?

A

A claim form must be filed promptly at a maximum of 3 months

The court can refuse a claim if there has been undue delay

153
Q

What is the exception to the rule in the Plannings Act?

A

Reduced to six weeks

154
Q

What is special about time limits and the court?

A

The court have COMPLETE DISCRETION

155
Q

What happened in FinnKelcey v Milton Keynes Borough Council?

A

The applicant applied for permission to build a wind farm, but waited until the end of the three months to file it
This was undue delay

156
Q

What happened in R v Stratford Upon Avon DC?

A

8 month delay

This was allowed as had multiple difficulties

157
Q

What was established in R(Kigen) v Secretary of State for the Home Department?

A

Delay in obtaining legal aid is not a reason for delay

158
Q

What happened in R v Dairy Produce Quota Tribunal ex p Caswell?

A

Even if permission was granted, could still be rejected at the end fo delay

159
Q

What is step five?

A

Are there any ouster clauses ?

160
Q

What is an ouster clause?

A

This is a clause in an Act of Parliament where is wishes to exclude any right of challenge once decisions have been made by a public body

161
Q

What is a full ouster clause?

A

Purports no right of challenge and attempts to exclude the courts

162
Q

What happened in Asminic?

A

The court still used judicial review even though there was a full ouster clause

163
Q

What is a partial ouster clause?

A

Some opportunity for judicial review

164
Q

What was the case in Ostler?

A

Reduced time limited from 3 months to 6 weeks

165
Q

What are the three grounds for judicial review?

A
  1. Illegality
  2. Irrationality
  3. Procedural impropriety
166
Q

What is meant by illegality?

A

An action is illegal or ultra vires if it is beyond the powers of the public body

167
Q

What is the rule against delegation?

A

Once decision making powers are given by Parliament, they cannot be further delegated or sub-delegated

168
Q

What case confirmed that cannot delegate?

A

Vine v National Dock Labour Board

Dock board set up a committee to deal with claims - this was delegation

169
Q

What are the two exceptions to the rule of delegation?

A
  1. Carltona principle

2. s101 Local Government Act 1972

170
Q

What is the Carltona Principle?

A

Government ministers are allowed to sub-delegate decision making powers to civil servants in their department

171
Q

When will Carltona not apply?

A
  1. There is clear wording of statute that the decision was for one minister alone
  2. The decision is crucial with serious consequence and placing duty on minister will not give excessive burden on them
172
Q

What is s101 Local Government Act 1972?

A

Local authorities may delegate decision making powers to committees provided they make a formal resolution to do so

173
Q

What is fettering of discretion?

A

If Parliament provides a public body with discretionary powers, courts will not permit that body to restrict or fetter such discretion

174
Q

What are the two ways in which discretion can be fettered?

A
  1. Acting under the dictation of another

2. Applying a general policy and not taking each case individually

175
Q

What is an example of acting under the dictation of another?

A

Lavender & Sons v Minister of Housing and Local Government: was found to have fettered discretion by basing the decision to extract sand on another Minister’s objection

176
Q

What is an example of a general policy fettering discretion?

A

British Oxygen v Minister of Technology

Minister of Technology rejected British Oxygen proposal as under £25 without considering the case properly

177
Q

What is using powers for an improper or unauthorised use?

A

If powers which are not conferred on the government by Parliament

178
Q

What happened in Congreve v Home Office?

A

Home Office had no powers to revoke a TV licence which was purchased just before the fees increased

179
Q

What is meant by dual purposes?

A

Where there are dual purposes on an action by a public authority, the primary purpose must be analysed

180
Q

What is the Westminster Corporation v LNWR test?

A

Westminster Corporation built toilets under Whitehall, which created a subway to increase chance of trespass on to LNWR’s land
- This was the primary purpose test

181
Q

What happened in R v ILEA?

A

£650,000 on an advertising campaign bringing central governments rate-capping policy to light.
However it was held that the campaign was about ILEA’s views rather than the rate-capping policy

182
Q

What relevant/irrelevant considerations?

A

Public bodies should not be taking in to account irrelevant considerations when making a decision

183
Q

What happened in Roberts v Hopwood?

A

Paid a generous wage to males and females

Had taken in irrelevant considerations (feminist ambition) and disregarded relevant ones (the wage levels across the labour market and the burden this would have on the tax payer)

184
Q

What happened in Padfield v Minister of Agriculture?

A

Potential political embarrassment to the minister was not a matter to take in to account

185
Q

What is the difference between errors in law and errors of fact?

A

Error of law - when a mistake has been made on a piece of law

Error of fact - when a mistake has been made on a piece of fact

186
Q

What happened in Asminic?

A

Foreign sea commission rejected a claim of compensation

This was outside their jurisdiction

187
Q

What happened in the Khawaja case?

A

Immigration Act 1971 allowed the Home Secretary to remove illegal immigrants from the UK. Facts were incorrect as not an illegal immigrant

188
Q

What are the four conditions needed for ground on error of fact?

A
  1. Mistake as to existing fact
  2. The fact must be uncontentious and objectively verifiable
  3. The person seeking review must not have been responsible for the mistake
  4. The mistake must have played a material part in the decision maker’s reasoning
189
Q

What is irrationality?

A

A very high degree of unreasonableness

190
Q

What is the Wednesbury principle?

A

The decision maker came to a conclusion that was so unreasonable that no reasonable authority could have ever come to it

191
Q

What happened in Wednesbury?

A

Owners of cinema granted licence but only if over 15s

192
Q

What was said in CCSU?

A

So outrageous in its defiance of logic that no sensible person would have arrived at it

193
Q

When was this used?

A

Black Cab rapist case being released on parole

194
Q

What is the distinction between direct and indirect bias?

A 
DIRECT = court is obliged to quash
INDIRECT = not obliged
195
Q

What happened in Dimes v Grand Junction Canal?

A

Lord Chancellor awarded injunctions to Grand Junction, but it was found that he held significant shares in the company

This was direct bias

196
Q

What happened in Pinochet?

A

Lord Hoffman who was part of charging Chilean dictator was chairman of Amnesty International therefore viased

197
Q

What is indirect bias?

A

This could be if a relative has an interest, not the judge themselves. This will not be quashed automatically and will be treated on a case by case basis

198
Q

What happened in Porter v Magill?

A

policeman called press conference early saying that someone would likley be charged - felt there was a need to charge them

This was found that NO INDIRECT BIAS

199
Q

What was the test from Porter v Magill?

A

‘would a fair-minded and impartial observer conclude that there had been a real possibility of bias?’

200
Q

What is the right to a fair hearing?

A

There is a duty on decision makers to act in good faith and listen fairly to both sides

201
Q

What is the key determining factor and case law?

A

How much the defendant has to lose

McInnes v Onslow

202
Q

What are the three categories of claimant?

A
  1. Forfeiture (lose their whole livelihood)
  2. Legitimate expectation (seeks renewal of a licence previously held)
  3. Application (where the claimant is a first time applicant, who merely seeks a licence)
203
Q

What can be expected for a forfeiture case?

A

Entitled to alot more from their hearing

204
Q

What happened in Ridge v Baldwin?

A

Ridge was dismissed from his role as a policeman and given no warning

  • Stood to lose livelihood and pension rights
  • Right to know case, right to reply, right to reasons
205
Q

What are the two types of legitimate expectation?

A
  1. Procedural

2. Substantive

206
Q

What is procedural legitimate expectation?

A

Where a decision maker has failed to follow a normal procedure

207
Q

What happened in R v Liverpool (Taxi)?

A

300 taxi drivers were promised that they would be consulted if new licences handed out - they weren’t

208
Q

What happened in R (Save Britain’s Heritage) v Secretary of State?

A

Reasons for refusing to call in a planning application

209
Q

What are substantive legitimate expectation cases?

A

Where the decision maker has led someone to believe that he or she will receive a benefit

210
Q

What happened in R v North and East Devon Health Authority?

A

Claimant consented to move to a new care facility on the basis it would be her home for life
However after 3 years it was shut down
1. There was legitimate expectation it would stay open

211
Q

What can be expected from an application case?

A

Expect alot less from hearing

212
Q

What happened in McInnes v Onslow-Fane?

A

6 applications to Boxing Board of Control for a licence to manage boxers
No hearing but as first time not expected as much

213
Q

When does a right to a fair hearing not apply?

A
  1. If the decision is merely preliminary

2. If there are national security concerns

214
Q

What happened in Lewis v Heffer?

A

Officers had been suspended by dismissed. Therefore could not seek judicial review

215
Q

What happened in Begum?

A

No fair hearing as national security

216
Q

What is the general rule on a right to reasons?

A

The law has not yet accepted that public authorities have a general duty to give reasons for their decisions

217
Q

What are the two exceptions?

A
  1. Where the decision taken, in the absence of reasons, looks aberrant
  2. Where the decision concerns the length of a prisoner’s term of imprisonment
218
Q

What happened in R v Civil Service Appeal Board, ex p Cunningham?

A

Awarded £6500 instead of £15,000 upon dismissal. Without reasons this looked aberrant

219
Q

Is there a right to an oral hearing and cross-examination of witnesses?

A

There is no right to an oral hearing, although a claim in forfeiture is entitled to expect far more - this might include a full oral hearing

220
Q

What happened in Lloyd v McMahon?

A

Warned twice about meeting and refused oral hearing - fair

221
Q

What are the two types of requirement for procedural requirements?

A

Mandatory

Directory

222
Q

What is the difference in remedy for failure to comply with mandatory v directory?

A 
Mandatory = decision invalid
Directory = not invalid
223
Q

Example of mandatory?

A

Bradbury v London Borough of Enfield

The borough failed to provide required notice on reform of school.

224
Q

Example of directory?

A

Coney v Choyce

Complied with 2/3 requirements

225
Q

What is a quashing order?

A

Reverses decision

226
Q

What is a procession?

A

A procession in a public place

227
Q

Do you have to give advance notice for a procession?

A

YES

228
Q

What are the exceptions when you do not have to give advance?

A
  1. Funeral procession
  2. Customary or commonly held processions eg remembrance day
  3. Improptu reactions
229
Q

What happened in Kay v Commissioner of Police of the Metropolis?

A

Mass cycle rides were allowed, even if they changed the route every year
Commonly held

230
Q

How much notice is required?

A

6 clear days notice

231
Q

What is a defence to giving no notice?

A

Organiser did not know and did not have any reason to suspect would not be complied with

232
Q

Does giving no notice make the procession unlawful?

A

NO

233
Q

Can you impose conditions on a public procession?

A

YES
as long as
1. The march will result in serious public disorder, damage to the property or disruption to public life
2. The purpose of the organisers is to intimidate with a view to compel them to do something

234
Q

What is the meaning of intimidation (case law)?

A

Must want them to do something
Police v Reid
- Anti-apartheid protesters were hurling abuse but not preventing people from going inside

235
Q

What is the meaning of a senior police officer?

A

If BEFORE - then chief police officer

If DURING - then most senior officer at the scene

236
Q

Can you prohibit public processions?

A

YES in certain circumstances

237
Q

What circumstances would allow for a ban on a procession?

A

If chief of police beleives that the powers are insufficient to risk of serious public disorder

238
Q

WHat is the procedure to ban?

A

Chief of police applies to local authority - they apply to home secretary

239
Q

Can you challenge a ban on a procession?

A

Yes judicial review

Kent v Met Police Commissioner
Banned all processions in metropolitan district for 28 days. This was too wide and area

240
Q

What is the general rule regarding meetings?

A

No requirement to obtain permission to hold a meeting

241
Q

What is an exception to this?

A 
Certain areas (eg Trafalgar Square)
Royal Parks
242
Q

What is the definition of a public assembly?

A

Two or more people in a public place that is wholly or partly open to the air

243
Q

Can you impose conditions on a public assembly?

A

YES

under s14 of the POA 1986

244
Q

Is there a requirement for notice?

A

NO

245
Q

Can you ban?

A

NO but can disperse

246
Q

What are trespassory assemblies?

A

These are assemblies held on land which the public has no right of access or only limited right of access

247
Q

What is the difference between a public and trespassory assembly?

A
  1. Public assembly need only comprise of two people whereas 20 for trespassory
  2. Public need partly in open air whereas trespassory fully in open air
  3. Trespassory must be on land which public has limited right to
248
Q

What are the criteria for banning?

A
  • Must be without the right or permission of the occupier

- May result in serious disruption to the life of the community

249
Q

What are the limits on the banning?

A
  • No more than 4 days
  • Must not apply to area greater than 5 miles radius
  • Local authority must have the Home Secretary’s consent
250
Q

What happened in DPP v Jones?

A

Order prohibiting assemblies at Stonehenge
21 people at a highway nearby
This was allowed as public place

251
Q

What is breach of the peace?

A

The police have common law powers to prevent a breach of the peace

252
Q

What is it defined as R v Howell?

A

There is a breach of the peace whenever harm is actually done or likely to be done

253
Q

What can the police do?

A
  1. They have the power to arrest
  2. Attend or disperse a gathering
  3. Powers of entry
254
Q

What happened in Moss v McLachlin?

A

80 miners stopped to picket line

Reassonble to expect breach of peaec

255
Q

What happened in the Laporte Case?

A

The police stopped coaches carrying 120 anti-war protesters
They were sent back despite having peaceful intentions
- This was not lawful to expect a breach of the peace

256
Q

What are the three academic justifications for judicial review?

A
  1. Ultra vires
  2. Common law
  3. Modified ultra vires
257
Q

What is ultra vires?

A

Carrying out parliamentary intent

258
Q

What is common law?

A

Should act as a check on the executive

259
Q

What is modified ultra vires?

A

This recognises some of the limitations of ultra vires and imputes a general intention to Parliament that it wants its decision-makers to abide by the rules

260
Q

Criticisms?

A
  • Intention of 650 MPs

- Ouster provisions?

Law 2 (4 decks)

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