Illegality Flashcards
What are the categories of illegality?
Misinterpretation of law Abuse of discretion Retention of discretion Error of fact Simple illegality
What are the categories of illegality?
Misinterpretation of law Abuse of discretion Retention of discretion Error of fact Simple illegality
Lord Diplock’s definition of illegality
A decision maker must understand the law and use it properly, otherwise this is grounds for JR
Ultra vires
Where the public authority acts outside its authority
AG v Fulham Corp
Fulham Corp had power to provide washing service for free, but provided laundry service at a cost. Ultra vires
Westminster Corp v London & NW Railway
Had power to build toilets for station, also built subway. Not ultra vires as was incidental to exercise of conferred power
Principle of illegality
A fundamental right cannot be infringed unless it is expressly worded as such. If statute is interpreted to infringe a fundamental right then it is illegal and the basis for JR
R v SSHD ex p Leech
Prison had power to intercept letters, but interpreted power to read letters between prisoner and solicitor. This is fundamental right, and as infringement not expressly worded as such this was illegal
HM Treasury v Ahmed
Interpretation of United Nations Act 1946 to allow freezing of prisoners assets (fundamental right). Not expressly worded as such so this was illegal
Errors of fact - Precedent fact
Where a fact is the basis of an action then an error of that fact will be a precedent fact and will mean that the decision is illegal and grounds for JR
Ex p Khawja
Illegal immigrant detained on basis that he was an illegal immigrant. He wasn’t therefore error of precedent fact
Unsubstantiated fact
No evidence rule
Colleen Properties v Minister of Health
No evidence for decision. Illegal.
Mistake of established fact
Where a fact is wrongly held or contentiously held and this is used as the basis of an action then this will be grounds for JR
Tameside
Decision to force a school to go comprehensive was made on the basis that Grammar schools are bad for kids. Mistake of fact, therefore illegality and JR
E v Home Secretary
A mistake of established fact or the use of a contentious fact for the basis of a decision is grounds for illegality if;
- Claimant is not responsible for the fact
- The error effected the outcome of the trial
Misinterpretation of the law
Where law is interpreted wrongly this is grounds for JR
Anisminic v FCC
Where law is interpreted wrongly this is grounds for JR
Ex p Page - Misinterpretation of law is not grounds for JR in 4 situtaions
- Mistake immaterial to outcome
- Special system of rules
- Decision of court of first instance is binding
- Where multiple interpretations of the law are possible as law is so wide Ex P South Yorkshire Transport
R v CICB ex p A
Policewoman’s testimony that wounds inconsistent with rape was used at trial, this was a mistake of established fact as medical team reached opposite conclusion
Abuse of discretion - Relevant and irrelevant considerations
Courts must consider mandatory factors and ignore prohibitory factors
Ex P Fewings
- Mandatory factors must be considered
- Prohibitory factors cannot be considered
- Discretionary factors are up to discretion
Decision taken on the basis of morality was a prohibitory factor was was grounds for illegality
R v SSHD ex p Venables
Decision taken in consideration of public outcry, this was a prohibitory factor therefore grounds for illegalityq
Roberts v Hopwood
Did not look at mandatory factor, therefore illegality
Are resources a relevant factor?
Yes - Ex p Barry
No - Ex p P
Sometimes - Ex p Tandy
Abuse of discretion - Improper purpose
Where discretion is used for a purpose it is not conferred for
Padfield v Minister of Agriculture
Minister had power to direct investigations however denied investigation as it owuld have embarrassed him. Grounds for judicial review on illegality, abuse of discretion, improper purpose
Congreve v Home Office
Declaration that TV licences were void was illegal as an improper purpose. not designed to generate revenue but regulate TV usage
