Case Law Flashcards
Malone v UK (facts)
Art 8
The applicant was charged with offences relating to the handling of stolen goods. During his trial it emerged that telephone conversations made by the applicant had been monitored by the police. The applicant alleged that it was his belief that both his telephone conversations and correspondence had been intercepted for a number of years and accordingly he brought civil proceedings to have such monitoring declared unlawful. The applicant’s complaint was dismissed by the High Court. The case came before the European Court of Human Rights. Before the Court, the applicant contended a violation of Article 8 of the European Convention on Human Rights in relation to these interferences with his private life.
On a true construction of Article 8 the phrase ‘in accordance with the law’ did not merely refer back to domestic law, but also related to the quality of the law, and required it to be compatible with the rule of law. This implied that there should be a measure of legal protection in domestic law against arbitrary interferences by public authorities. In particular the law should be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which public authorities would be entitled to resort to secret and potentially dangerous interference with the right to respect for private life. In the instant case, it was considered that the law of England and Wales had failed to indicate with sufficient clarity the scope and manner of the exercise of the relevant discretion conferred on the public authorities. To that extent they had not provided the minimum degree of legal protection to which citizens were entitled under the rule of law and, accordingly, there had been a violation of Article 8.
Malone v MPC
ROL, SOP
The plaintiff, an antique dealer, was tried at the Crown Court on a number of offences of handling stolen property. During the trial the prosecution counsel stated that the plaintiff’s telephone had been intercepted on behalf of the police on the authority of a warrant issued by the Secretary of State. Police practice regarding telephone tapping (ie the interception, monitoring and recording of private telephone conversations) was to obtain a warrant (a document giving official authorisation) to tap from the Home Secretary. The warrant was sent to the Post Office and the Post Office then made a recording of conversations on the line being tapped and forwarded that recording to the police.
Sir Robert McGarry B.C.E. rule that no trespass was committed by the police but the interception of communications was “a subject which cries out for legislation”. Megarry VC said that the executive could do anything that was not prohibited by law (purporting to reverse Entick v Carrington). The Court refused to declare that an act of telephone tapping carried out by the post office, at the request of the police, was not unlawful because an act which is not specifically prohibited is permitted
R v R (marital rape)
n this case the House of Lords set aside the long standing common law rule that a husband could not rape his wife. “The House of Lords then concluded that overturning the previous common law rule was a task that could appropriately be undertaken by the courts. There was no need to wait for Parliament to enact legislation changing the law.”
M v Home Office
ROL
Judicial Review – Home Secretary cannot ignore rule of law
M was to be deported. The Home Secretary’s counsel gave an undertaking that this would not happen until after the hearing of the appeal. However, M was deported. The court ordered that M should be taken off the plane when it stopped at Paris. The Home Secretary did not consider himself bound by the order and M was not taken off the plane.
Held: The Home Secretary was held in contempt of court but no punishment imposed.
The “rule of law” requires even government ministers to accept and obey the orders of the courts.
M disappeared shortly after his arrival in Zaire and was never heard from again.
R v Secretary of State for Home Department ex parte Fire Brigades Union
(ROL, SOP)
(1994) Supremacy of Parliament – the Royal Prerogative – used today by ministers as Orders in Council]
Concerned the payment for criminal injuries paid under the Criminal Injuries Compensation Scheme created in 1964 under prerogative powers. the Home Sec. decided that he would introduce a new tariff for compensation by using the Royal prerogative to amend the criminal injuries compensation scheme which had been introduced under the Royal prerogative rather than through an act of Parliament. However, in 1988 Parliament had passed the criminal justice which in part provided for amendments to the criminal injuries compensation scheme. All the relevant provisions had the not yet been brought into force. The question was whether the Home Sec. could use the prerogative rather than the statute the Court of Appeal and the House of Lords ruled that where a statute was enforceable thew Secretary could not avoid provisions and act under the prerogative he could persuade parliament to amend the act or to repeal the provisions, but not to avoid the Act itself
A and Others v Secretary of State for the Home Department
ROL
The case began with 10 men who challenged a decision of the Special Immigration Appeals Commission to eject them from the country on the basis that there was evidence of them being a threat to national security. Under section 25 of this Act, they had the legal right to appeal to the Special Immigration Appeals Commission against their detention. They argued that the antiterrorism, crime and security act (ACSA) 2001, S. 23 to detain foreign terror suspects indefinitely was incompatible with the articles of the Convention. S. 23 permitted detention of the suspected international terrorists without charge or trial. Such detention was incompatible with Art 5 of the Convention and so the UK had previously lodged a derogation from Art 5 to allow it to pass s. 23. The court ruled that the derogation did not satisfy the criteria required; crashed derogation order which then allowed them to issue declaration of incompatibility.
The Case of Proclamations
the king wanted to limit the building of new homes in London and also wanted to ensure that week was preserved for human consumption. He issued proclamations to give effect to these objectives. The House of Commons objected to this law making exercise and the king sought the opinions of the judges. The court stated that the law comprise statute, common law and custom and that the king’s proclamations were none of these. Coke Coke L. CJ ruled that the king had no power to create new offenses and it became “have no prerogative but that which the law of the land allows himLord Coke held that the Crown has no prerogative to change the common law or statute, or to create new offences. He also held that the King only has the powers that the law allows him. This case is important as it is a move away from arbitrary government. It cements the separation of powers and the subjection of the executive to the rule of law.
Attorney General v De Keyser’s Royal Hotel
he House of Lords ruled that where an act of Parliament covers the same scope as the prerogative the act of Parliament prevails in the prerogative, if not expressly abolished, is placed in advance bracket effectively suspended]. Accordingly, the government could not choose to use the prerogative to award a lesser amount of compensation for occupation of property in wartime than the amount provided for under the defense of the rounds
exp Simms
convicted murderer who claimed to be innocent was intervied by a journalist. later HS imposed a blanket ban on journalists using info gained during the interviews with the prisoners. Court found that it was blanket ban and ultra vires.
GCHQ
In 1984 the British government under Margaret Thatcher decided that employees of the Government Communications Headquarters (GCHQ) would not be allowed to join any trade union for national security reasons. This was enforced through an Order in Council, an exercise of the Royal Prerogative. The Council of Civil Service Unions chose to bring this matter to court through judicial review, first to the High Court of Justice, which ruled the Order in Council was invalid. The case then went to the Court of Appeal, which decided that the national security issues trumped any problems of propriety.
From there the case went to the House of Lords, where it was decided on 22 November 1984. In their decision, the Lords found that exercises of the Royal Prerogative were generally subject to judicial review, with certain exceptions such as matters of national security. This was a significant break from the previous law, which held that prerogative powers were not in any way subject to judicial review. The GCHQ case served to identify that the application of judicial review would be dependent on the nature of the government’s powers, not their source
Inland Revenue v Rossminster
ROL, SOP
The Inland Revenue had certain powers under s20 of the Taxes Management Act 1970 which enabled them to apply to the court for a search warrant in connection with suspected tax fraud. Under the terms of the Act, once a warrant was granted the Revenue had 15 days in which to execute it and seize any appropriate evidence.
One such warrant was obtained against a number of persons including Rossminster Limited and the police and Revenue inspectors searched the relevant premises and seized a number of documents. They did not inform the persons of the offences of which they were suspected, nor did the search warrant contain particulars of the alleged offences.
The House of Lords concluded that:
the warrants in question were within the Revenue’s powers and the suspects had no right to be told the nature of the offences alleged against them (Lord Salmon dissenting);
whether there existed a ‘reasonable cause to believe’ that an offence had been committed was a question of fact to be determined on the evidence; and
when the criminal proceedings had ended the immunity would lapse and the Revenue would then be required to state the reasons for their belief.
Lord Wilberforce noted that many criminal tax evasion operations are highly skilled and that the public interest weighed heavily in support of his conclusion that the defendant did not need to be told the exact nature of the allegations against him.
Ex p Coughlan
HR: Art 8; JR: LE from express promise
In the case a severely disabled woman who had been receiving long term nursing care from the National Health Service sold her house after the promise was made by a health authority that she would have a “home for life” at Mardon House a specialist facility run by the NHS Trust “Where the Court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the Court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the Court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”
exp Liverpool Taxi Operator’s Association
LE from express promise
A number of taxi cab owners challenged a decision of the Council to increase the numbers of hackney cabs operating in the city. At a public meeting with the council prior to the decision, the chairman had given a public undertaking that the numbers of hackney cabs would not be increased until the proposed legislation, which included provisions for controlling private hire vehicles, had been enacted by Parliament.
Held: (Majority) On account of this public representation, the applicants were ‘justifiably aggrieved’ by the council’s subsequent unfair conduct. Lord Denning obiter: Even in the absence of such a public undertaking, the applicants would have had a right to be consulted: ‘It is perhaps putting it a little high to say that they [Liverpool Corporation] are exercising judicial functions. They may be said to be exercising an administrative function. But even so, in our modern approach, they must act fairly: and the Court will see that they do so.
AG of Hong Kong v Ng Yuen Shin
LE from express promise
immigrant successfully argued that his case should be dealt with on its own merits based on an expressed policy.
where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise provided the implementation did not conflict with the authority’s statutory duty; that, accordingly, assuming that an alien had no general right to be heard before being deported, the implementation of the promise to interview each illegal immigrant and decide each case on the merits required the applicant to be given an opportunity to state his case and the failure to ask him whether he wished to make representations why he should not be removed was a sufficient ground for setting aside the decision
R (Greenpeace) v SS for Trade and Industry
LE from express promise
The submissions of Greenpeace centred on the promise by the Government in the 2003 Energy White Paper, “Our energy future - creating a low carbon economy”, to carry out full public consultation on the issue before it decided whether or not to change its declared policy position not to support nuclear new build.
The High Court gave Greenpeace declaratory relief that their legitimate expectation had been frustrated and that the procedure followed was unfair, such that the decision to support nuclear new build was unlawful.
