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Consti & Admin > Case Law and Statute > Flashcards

Case Law and Statute Flashcards

1
Q

R v R (1991)

A

New law via judiciary

Court basically makes marital rape an offence even though it isn’t an offence according to established statute

Later formalised through AoP: Criminal Justice and Public Order Act 1994

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2
Q

Vauxhall Estates Ltd v Liverpool Corporation (1932)
AND
Ellen Street Estates Ltd v Minister of Health (1934)

A

Doctrine of implied repeal

If two AoPs conflict, the will of the later Parliament prevails

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3
Q

Significance of Magna Carta?

A

Seminal document of English constitutional practice - 1215

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4
Q

Significance of Bill of Rights 1688?

A

Result of struggle between Stuart kings, English people, and Parliament. Monarchy becomes conditional on the will of Parliament. Establishes roots of parliamentary privilege.

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5
Q

Significance of the Parliament Acts 1911 and 1949?

A

Parliament can change its own powers

1911: Supremacy of House of Commons by limiting legislation-blocking powers of the House of Lords
1949: House of Lords can only delay bills by one year instead of two

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6
Q

Significance of Act of Settlement 1700?

A

Strengthened Bill of Rights (1689). Reinforced principle that government was undertaken by Sovereign and constitutional advisers, not personal advisers

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7
Q

Significance of Act of Union 1707?

A

Led to the creation of United Kingdom of Great Britain

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8
Q

Significance of Representation of the People Act 1918?

A

Widened suffrage by abolishing almost all property requirements for men and enfranchising women over 30 with minimum property qualifications

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9
Q

Significance of House of Commons Disqualification Act 1975?

A

Prohibits certain categories of people from becoming MPs.

Judges
Lords Spiritual (senior Anglican bishops)
Civil servants
Regular members of armed forces
Full time police constables
Members of legislatures of non-Commonwealth countries
Members of tribunals and government departments
Statutory corporations like Channel 4

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10
Q

Significance of Human Rights Act 1998?

A

The Act makes a remedy for breach of a Convention right available in UK courts, without the need to go to the European Court of Human Rights (ECHR) in Strasbourg.

Bringing the rights home was designed to reduce time it took to seek remedy (took 5 years in ECHR) and costs associated (was like £30k for ECHR)

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11
Q

Significance of Scotland Acts 1998, 2012, 2016?

A

Devolution begins in 1998, then transfers further in 2012 and 2016.

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12
Q

Significance of Northern Ireland Act 1998?

A

Devolves power from Westminster to Northern Ireland. Establishes new rules in like with EU and Northern Ireland peace process/Belfast Agreement of 1988.

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13
Q

Significance of Government of Wales Act 1998, 2006, 2017?

A

Devolution begins in 1998, then increases in 2006 and 2017.

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14
Q

Significance of Constitutional Reform Act 2005?

A
  1. Changes Lord Chancellor’s job (no longer Speaker of House, no longer chooses judges, no longer head of judiciary)
  2. Changes House of Lords to Supreme Court
  3. Creates Judicial Appointments Commission for finding judges
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15
Q

Significance of Fixed-term Parliaments Act 2011?

A

Repealed March 2022

For the first time set in legislation a default fixed election date for a general election to the Westminster parliament.

Since the repeal of the FTPA, as before its passage, elections are required by law to be held at least once every five years, but can be called earlier if the prime minister advises the monarch to exercise the royal prerogative to do so.

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16
Q

Edinburgh & Dalkeith Rly Cos v Wauchope (1842)

A

Enrolled Bill Rule

All the courts can do is follow Acts of Parliament. Courts will not inquire as to the mode in which an act was introduced to Parliament

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17
Q

Jackson v AG (2005)

A

Parliamentary sovereignty

Parliaments can bind future Parliaments w/r/t procedural requirements

First time HoL sets out limitations to parliamentary sovereignty (in obiter). Specific threat made re: attempts to subvert rule of law via courts.

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18
Q

Burmah Oil Company v Lord Advocate (1965)

A

Parliament can retrospectively legislate AND legislate over a court ruling by replacing the Burmah Oil decision with the War Damages Act 1965

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19
Q

What’s the significance of the War Crimes Act 1991?

A

Showed that Parliament could legislate for territories outside its competence

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20
Q

Mortenson v Peters [1906]

A

Parliament can override international law

Pre-EU - Courts find Norwegian fisher guilty of fishing offence even though he is a foreigner

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21
Q

Goodwin v UK (2012)

A

Human rights - Art 12

There is no automatic right for same sex couples to marry.

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22
Q

Otto-Preminger v Austria (1994)

A

Human rights - Art 9

State is under a positive duty to ensure holders of beliefs can enjoy them free from interference, impediment, or discrimination

Belief has a very wide meaning

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23
Q

Smith & Grady v UK (1999)
Dudgeon v UK (1984)

A

Human rights - Art 8

Smith & Grady: OK to breach Art 8 on grounds of sexuality - margin of appreciation re: national security

Dudgeon: being gay was illegal. D hadn’t been prosecuted but said Art 8 infringed. Threat of prosecution OK to qualify him as victim

24
Q

Ireland v UK (1979)

A

Human rights - Art 3

Torture is deliberate inhuman treatment causing very serious and cruel suffering

Includes degrading treatment, which is behaviour that arouses feelings of fear, anguish or inferiority

25
Q

McCann v UK (1996)

A

Human rights - Art 2

When is deprivation of life OK?

  • Absolutely necessary
  • Proportionate
  • Could you do anything other than shoot to kill
26
Q

A v SSHD (2004) - aka Belmarsh

A

Human rights - Art 14
Proportionality/deference

Foreign nationals held at Belmarsh based on Anti-Terrorism, Crime and Security Act 2001

HoL: decision to detain not proportionate and was discriminatory, but court must defer to gov’t due to national security

27
Q

Bellinger v Bellinger (2003)
Ghaidan v Godin Mendoza (2004)

A

Human rights - Legislative interpretation

Bellinger: couldn’t give ‘male’ or ‘female’ extended meaning. B would have to look to Parliament for a fix for Matrimonial Causes Act 1973

Ghaidan: ‘as his or her wife or husband’ could be read to allow same sex couples in Rent Act 1977

28
Q

GCHQ (1985)

A

Prerogative powers/judicial review

Courts can review prerogative powers (similar to statute) unless issue is non-justicible:

  1. Making of treaties
  2. Defence of the realm
  3. Prerogative of mercy
  4. Granting of honours
  5. Dissolution of Parliament
  6. Appointment of ministers
29
Q

Ex p Datafin (1987)

A

Judicial review - amenable

  1. Is the matter public or private between parties
  2. Did decision of private organisation affect the public
  3. Doesn’t work if source of power is contractual
30
Q

Anisiminic Ltd v Foreign Compensation Commission (1969)

A

Judicial review - exclusions

Ouster clauses generally don’t work

“The determination … shall not be called in question in any court of law” was unclear

31
Q

Nadarajah v SSHD (2005)

A

Judicial review - procedural impropriety
Reliance

Is departure from previous policy OK?

  1. Did public body have legal duty to do so
  2. Was departure proportionate w/r/t legitimate aim for public interest
  3. Are many people affected
  4. Are policy issues being addressed
32
Q

Wemhoff v Germany (1968)
Bryan v UK (1995)

A

Human rights - Art 6

Wemhoff: 3 years to trial OK; depends on complexity of the case

Bryan: appeal to planning enforcement - planning inspector must be independent

33
Q

Brogan v UK (1988)
Guzzardi v Italy (1981)
Ex p Anderson (2003)

A

Human rights - Art 5

Brogan: Detention for interrogation. 4 days too long.

Guzzardi: House arrest. 18 hours a day too long.

Anderson: Executive has no powers to detain; their involvement could indicate lack of independent trial

34
Q

Blackburn v AG (1971)

A

Parliamentary sovereignty
Prerogative powers

Court held Britain’s decision to join EEC did not surrender PS

Courts would not intervene in process of making treaties

35
Q

Madzimbamuto v Lardner-Burke (1969)

A

Parliamentary sovereignty
Prerogative powers

Declaration of independence invalid
UK statute passed didn’t uphold convention, but law trumps conventio
Practical politics create limitation for Parliament

36
Q

R v Howell (1982)

A

Public order - Breach of peace

Breach of peace is whenever:
harm is done or likely to be done
to a person or in his presence to his property
or a person is in fear of being harmed through assault, affray, riot, unlawful assembly, or other disturbance

37
Q

Laporte v CC Gloucestershire (2006)

A

Public order - Breach of peace/Art 5

If breach of peace is possible, but hasn’t happened yet, arresting people may not be appropriate. Must reasonably apprehend imminent breach of peace to take action.

Exception is Austin v MPD (Kettling for May Day - public safety)

38
Q

Brutus v Cozens (1973)

A

Public order - POA 1986 - s.4/s.5

What is insulting, abusive or threatening?

An ordinary person sees it when he hears it

The person must actually see it for s.4

39
Q

Ex p Siadatan (1991)

A

Public order - POA 1986

What qualifies as immediate?

Violence will result within relatively short period of time and without intervening occurence

Doesn’t need to be instantaneous

40
Q

Hirst and Agu v CC West Yorkshire (1986)

A

Public order - Highway obstruction

  1. Did obstruction include more than minimal occupation
  2. Was obstruction wilful/deliberate (Arrowsmith v Jenkins)
  3. Was obstruction without lawful authority

Peaceful protest could be lawful excuse

41
Q

Arrowsmith v Jenkins (1963)

A

Public order - Wilfully

Wilfully is the exercise of free will

42
Q

DPP v Jones (1999)

A

Public order - Trespass

Stonehenge hippies!

Public highway may have peaceful assembly as long as activity doesn’t amount to public or private nuisance

43
Q

Sunday Times v UK (1979)

A

Human rights - Proportionality

Article 10 re: thalidomide
“Necessary in a democratic society”

  1. Was interference proportionate to legitimate aim pursued
  2. Did interference correspond to pressing social need
  3. Were the reasons given by the national authority relevant and sufficient
44
Q

Flockhart v Robinson (1950)

A

Public order

Procession or assembly?

Procession is a body of persons moving along a route

45
Q

Abdul-Aziz v UK (1985)

A

Human rights - Art 14

Prohibition on discrimination test

  1. Facts must come within scope of another Convention right
  2. Person in analogous situation treated differently to applicant
  3. Is there any objective/reasonable justification for difference in treatment, and is it proportionate (Sunday Times)
46
Q

Padfield v Ministry of Ag. (1968)

A

Judicial review - Illegality

Minister’s refusal to refer genuine and substantial complaint re: price of milk frustrated purpose of legislation (Agricultural Marketing Act 1958)

47
Q

Tesco v Sec State Environment (1995)

A

Judicial review - Illegality

As long as decision isn’t irrational and decision maker considered all factors, court will not substitute its decision on the merits

48
Q

Rogers v Swindon NHS (2006)

A

Judicial review - Illegality

NHS couldn’t explain what an “exceptional circumstance” was, so policy of funding couldn’t be explained

They therefore acted unlawfully as they failed to exercise discretion properly

49
Q

Roberts v Hopwood (1925)

A

Judicial review - Illegality

“Such wages as they may think fit” doesn’t mean the Council can pay whatever they choose - they need to take all factors into consideration

50
Q

Ex p Daly (2001)

A

Judicial review - Proportionality

  1. Is the measure necessary
  2. Is the measure suitable/rationally connected to objective
  3. Does the measure impose excessive burden on individual

alt to Wednesbury when human rights are engaged

51
Q

AG v Fulham Corporation (1921)

A

Judicial review - Illegality

Ultra vires/in excess of power

Baths & Washhouses Act 1846

Power to establish baths and washhouses did not extend to service washes

52
Q

Steel and Morris v UK (2005)

A

Human rights - Art 6

Lack of legal aid infringed Art 6

53
Q

Nottinghamshire v Secretary of State for Environment (1986)

A

Judicial review - Irrationality

Wednesbury Unreasonableness

“Decisionmaker must have taken leave of his senses”

54
Q

Ex p World Development Movement Ltd (1995)

A

Judicial review - Standing

Pressure groups have standing if:
1. They validate rule of law
2. Issues raised are important
3. Absence of another challenger
4. Nature of the breach of duty severe
5. Status of pressure group applying

55
Q

Raymond Bate v DPP (2000)
also, Bibby add this

A

Public order - Breach of peace - Unlawful speech

Is free speech inciting unlawful conduct?

  1. Is there threat of violence? From speaker or 3P?
  2. If there isn’t a threat, is this actually breach of peace
  3. If speech was provocative, was natural consequence 3P violence?
  4. Was conduct of speaker unreasonable?
  5. Proportionality - could you ask speaker to stop, then arrest if they don’t?
  6. If 3P at fault, go after them
56
Q

Percy v DPP (2001)

A

Public order - Harassment - s5 POA 1986

Percy burns American flags in protest. Was the conduct reasonable?

  1. Did action cause insult? Yes
  2. Was being charged with offence proportionate? No –> substance and form of expression protected by Art 10

Leads to an Art 10/Art 5 human rights review - 4 stage test

57
Q

Harvey v DPP needs flashcard

A

Police officers should be more robust, can take verbal abuse for s.5 POA 1986

Consti & Admin (2 decks)

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