Important Cases Flashcards
1
Q
Thoburn v Sunderland CC [2003] QB
A
- rights can be constitutional or fundamental
- hierarchy of Acts of Parliament: ordinary may be impliedly repealed, and constitutional (eg. SA 1998) may not be, as these condition the legal relationship b/w citizen & state in some general, overarching manner.
2
Q
R HS2 v SS for Transport [2014] UKSC, per Lord Mance and Neuberger
A
- the UK has “no written constitution, but we have a number of constitutional instruments”, in Magna Carta 1297, Bill of Rights, Act of Union etc
3
Q
Entick v Carrington (1765)
A
- CASE RE POWERS OF THE CROWN = SUBORDINATE TO COMMON LAW.
- English law case but w/profound Consitutional complications for common law jurisdictions worldwide.
- Sec of State ordered 2 of King’s messengers to enter citizen E’s land and go thru his belongings to search for some docs. Could Sec of State issue such a search warrant? Held: no. The executive may only act in a lawful manner, set out in statute or common law.
- Lord Camden dictum: “If it is law, it will be found in our books. If it is not found there, it is not law”.
- Guarantees gov officials will act within their executive capacity ie cannot enter private premises w/o legal authority.
4
Q
R v Lord Chancellor, ex Parte Witham (1997)
A
- A CONSTITUTIONAL RIGHT OF ACCESS TO COURTS CAN ONLY BE TAKEN AWAY BY AN EXPRESS ACT OF PARL.
- John Witham wanted to bring proceedings in person for defamation but couldn’t - as an individual on income support - afford legal fees as a result of a decision of the Lord Chancellor to introduce the Supreme Court Fees (Amendment) Order 1996.
- Article 3 of this repealed provisions excusing litigants who received income support from paying legal fees. It’s effect was to deny the applicant on low income his constitutional right of access to the court.
- Court found LC went beyond his powers (ultra vires), as Article 3 meant that those on income support were no longer excused from paying legal fees and were hence being deprived of their right to a fair trial.
- Common law has given special weight to the citizen’s right of access to the court - a constitutional right - but the “cases do not explain what that means”.
5
Q
R v Home Secretary, ex Parte Pierson (1997)
A
- Where a prisoner serving a life sentance has been informed of the minimum period he must serve to meet the requirements of retribution and deterrence, that period could not subsequently be increased by the Home Sec.
- The trial judge and Lord Chief Justice recommended a penal element of 15yrs, but Home Sec said 20yrs = more appropriate bcos was a double murder. BUT murders = on same occasion and no evidence of premeditated actions.
- Held: Home Sec may not extend the tariff for a lifer after it has been set by an earlier Home Sec, merely to satisfy the needs of reputation and deterrence.
- Importance of finality in sentencing - a general principle of common law that sentence pronounced by a judge may not retrospectively be increased.
6
Q
R v SOS for Home Department, ex p Anufrijeva (2003)
A
- A challenged the withdrawal of her benefits. Decision was made to refuse her claim, but it was not communicated to her for many months, during which time, her benefits were cancelled. Result = she was left in a world affected by a decision she was not told of and which she could not challenge.
- “Notice of a decision is required before it can have the character of a determination w/legal effect bcos the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule, it is simply an application to the right of access to justice”. Exceptions to the need to provide notice may be allowed still in exceptional cases; perhaps criminal matters.
7
Q
Constitutional conventions and the courts: Madzimbamuto v Lardner-Burke [1969] per Lord Reid
A
- it is often said it would be “unconstitutional for the UK parl to do certain things, meaning that the moral, political, and other reasons against doing them are so strong that most ppl would regard it as highly improper if Parl did these things. But that does not mean it is beyond the power of parliament to do such things. If Parl chose to do any of them, the Courts would not hold the Act of Parl invalid”.
- even though the UK parl retained the right to legislate, by conviction it would not do so w/o consulting them.
8
Q
Constitutional conventions and the courts: Attorney General v Johnathan Cape Ltd [1976], per Lord Widgery
A
- labour minister of 1960s published his diaries, inc legal accounts of what the party had done, 10 years after he left office. Convention of cabinet confidentiality - ministers must preserve this even after leaving office.
- “… the expression of individual opinions by Cabinet Ministers in the course of Cabinet discussion are matters of confidence, the publication of which can be restrained by the Court when this is clearly necessary in the public interest. The maintenance of the doctrine of joint responsibility, within Cabinet is within the public interest, and the application of that doctrine might be prejudiced by making premature disclosure of the views of individual ministers”.
9
Q
Constitutional conventions and the courts: Reference Re Amendment of the Constitution of Canada [1981] SC of Canada
A
- “The attempted assimilation of the growth of a convention to the growth of common law is misconceived. The latter is the product of judicial effort, based on justiciable issues which have attained legal formulation & are subject to modification and even reversal by the courts which gave them birth. No sure parental role is played by the courts w/respect to conventions.”
- Common law is judicially produced, but tradition produces convention.
10
Q
Constitutional conventions and the courts: Reference re Secession of Quebec [1998] SC of Canada
A
- “…distinction drawn b/w the law of the constitution, which generally speaking will be enforced by the courts & other constitutional rules, such as the conventions of the constitution, which carry only political sanctions”.
- the court has discretion over whether to assert a rule or not. 2 spheres: one is political, one is legal, bcos “it is also the case, however, that judicial intervention, even in relation to the law of the constitution, is subject to the courts’ appreciation of its proper role in the conditional scheme”.
