LS 3 - RR -Public order, judicial review

Question 1

Public order law

Answer 1

right to protest exists (Hubbard v Pitt).

Human Rights Act article 10.
Article 11 (freedom of assembly)

Question 2

General rules

Answer 2

Highways Act 1980 - wilful obstruction not permitted.

Offence without lawful authority of excuse to obstruct free passage of highway.

Question 3

Processions

Answer 3

Any person organising processions to give at least six clear days notice of date time and route.
For any of these purposes;
-demonstrate support for or opposition to views or actions of any person or body of persons
-to publicise a cause or campaign or
-to mark or commemorate an event.

Public place -
private as well such as football grounds which the public can access on purchasing a ticket.

S(11)(4) - deliver notice to police station in police area where procession will start

Qualifications and exemptions
Notice;
does not apply to funeral processions or customary or commonly held processions or police should be aware it is a regular occurrence.
Also where not reasonably practicable to give notice.

Offences -
Guilty if do not give required notice (s11(7)(a)
Guilty if processions differ from what notice specified (s11(8).

Defence to second if depart arose from circumstances beyond control or something done in agreement with police.

Burden on D on balance of probabilities to prove D exists.

Fine not exceeding level 3 (£1,000).

Does not render procession unlawful.

Question 4

Imposing conditions

Answer 4

S12 of POA 1986
senior police officer reasonably believes -
-march will result in serious public disorder, damage to property (serious) or serious disruption to life of community
- purpose of organisers is to intimidate others, with a view to compelling them not to do something they have a right to do.

Intimidation -
More than being a nuisance or causing discomfort.
Or noise cause significant impact on those in vicinity or serious disruptions to actives of an organisation.
(not being able for prolonged period to carry out activities within vicinity of protests).

Changed to ‘more than minor hindarance’, including in making of a journey. (Just Stop Oil).

Also consider -
all relevant disruption
-cumulative impact.

Community - any group of persons affected by procession

Senior police officer - most senior at the scene.
Before event must be in writing and give sufficient reasons.
Art 11 - any conditions imposed must be proportionate.

Question 5

Offences under s12

Answer 5

• s 12(4): Organising a public procession and failing to comply with a condition imposed
  under s 12(1) where the person concerned knows or ought to know that the condition has
  been imposed.
  Possible sanctions: Imprisonment not exceeding 51 weeks or a fine not exceeding level 4
  on the standard scale (currently £2,500) or both (s 12(8))
• s 12(5): Taking part in a public procession and failing to comply with a condition imposed
  under s 12(1) where the person concerned knows or ought to know that the condition has
  been imposed.
  Possible sanctions: Fine not exceeding level 3 on the standard scale (currently £1,000)
  (s 12(9)).
• s 12(6): Inciting a participant in a public procession to commit an offence under s 12(5).
  Possible sanctions: Imprisonment for a term not exceeding 51 weeks or a fine not
  exceeding level 4 on the standard scale (s 12(10))

Defence - failure to comply was due to circumstances beyond their control.
Burden on D on balance of probabilities.
Also defence to prove conditions are invalid

Question 6

Power to prohibit

Answer 6

Chief officer can apply for prohibition order.
If reasonably believe due to particular circumstances in locality that powers in s12 insufficient to prevent risk of serious public disorder (s13(1).

Chief must apply to local authority.

London - Commissioner of Police for City makes order with Home Secretary consent.

Order for any period not exceeding three months.
Order may ban all processions of particular class, cannot ban specific.

Question 7

Challenge?

Answer 7

By way of judicial review.

Question 8

Offences under s13

Answer 8

• s 13(7): Organising a public procession knowing that it is prohibited under s 13.
  Possible sanctions: Imprisonment not exceeding three months or a fine not exceeding
  level 4 on the standard scale or both (s 13(11)).
• s 13(8): Taking part in a public procession knowing that it is prohibited under s 13.
  Possible sanctions: Fine not exceeding level 3 on the standard scale (s 13(12)).
• s 13(9): Inciting a participant to take part in a public procession that is prohibited
  under s 13.
  Possible sanctions: Imprisonment for a term not exceeding three months or a fine not
  exceeding level 4 on the standard scale s 13(13).

Question 9

Meetings

Answer 9

General rule no requirement to obtain permission.

Private land - permission of owner
Can only eject if breach of the peace or crime

Public - subject to specific bylaws.

Conditions on public assemblies -
Senior police officer can impose conditions if reasonably believe may result in serious public disorder, serious damage or serious disruption of life of community or purpose is intimidation of others.

No requirement for advance notice.
Same provisions as to noise.

Public assembly -
compromising two or more persons in a public place that is wholly or partly open to air.

May impose any condition to prevent disorder, damage, disruption or intimidation.

Can give powers to disperse (e.g. set five minute time limit).

Offences under s14
* s 14(4): Organising a public assembly and failing to comply with a condition imposed
under s 14(1) where the person concerned knows or ought to know that the condition has
been imposed.
Possible sanctions: Imprisonment not exceeding 51 weeks or a fine not exceeding level 4
on the standard scale or both (s 14(8)).
* s 14(5): Taking part in a public assembly and failing to comply with a condition imposed
under s 14(1) where the person concerned knows or ought to know that the condition has
been imposed.
Possible sanctions: Fine not exceeding level 3 on the standard scale (s 12(9)).
* s 14(6): Inciting a participant in a public procession to commit an offence under s 14(5).

Possible sanctions: Imprisonment for a term not exceeding 51 weeks or a fine not
exceeding level 4 on the standard scale (s 12(10)).

Defence - show failure to comply was due to circumstances beyond their control. Burden on D.
Or
Conditions are invalid.

May be hard to argue proportionate if small gathering.

‘Proportionate’
whether legitimate objective could have bee achieved by means that interfere less with rights.

Question 10

Trespassory assemblies

Answer 10

Assembly to be held at a pace or on land which public has no right of access or only a limited right of access.

Of more than 20 persons
Land - land in open air.

Chief officer of police must reasonably believe that it is intended to hold a trespasseory assembly -
-without permission of the occupier or outside the terms of any permission or rights of access
-which may result in serious disruption to the life of the community or significant damage to the land or monument which is of historical, archaeological or scientific importance.

may then apply for order prohibiting holding of all assemblies in district or part of it.
Must not last for more than four days and must not apply to area represented by a circle or greater than five mile radius from the specified centre.
LA must obtain Home Sec consent.

In London the Police Commissioner for the Metropolis or the Commissioner of the City of
London Police may make such an order with the consent of the Secretary of State.
The POA 1986 as amended by the CJPOA 1994 creates the following offences:
* s 14B(1): Organising an assembly knowing it to be prohibited.
Possible sanctions: Imprisonment not exceeding three months or a fine not exceeding
level 4 on the standard scale or both s 14B(5).
* s 14B(2): Taking part in assembly if the participant knows it is prohibited.
Possible sanctions: Fine not exceeding level 3 on the standard scale (s 14B(6)).
* s 14B(3): Incitement to organise or participate in an assembly if the person knows it is
prohibited.
Possible sanctions: Imprisonment for a term not exceeding three months or a fine not
exceeding level 4 on the standard scale s 14B(7).

Prohibition only applies to tresspassory assemblies

Highway - only tresspassory if go outside right of access.
Can be on highway provided not public and private nuisance and did not unreasonably obstruct.

S14C
Constable in uniform-
stop person who reasonably believes to be on way to tresspassory assembly and direct them not to proceed.
Offence to proceed by level 3 fine.

Question 11

Common law breach of peace

Answer 11

Whenever harm is actually done or likely to be doe to a person in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.

Not criminal.

May arrest if happened or to prevent.
Can order to move way.
Common law power of entry to prevent a breach of the peace.

Contrast with Human Rights

Breach must be imminent.

EU - proportionality.

Crowed measures - provided not arbitrary, in good faith and proportionate/

Question 12

Grounds of Judicial Review

Answer 12

-

Question 13

What is JR?

Answer 13

Courts ensure that public bodies act within the power they have been granted and do not exceed.

Legislature decides how much decision-making power the executive should be given.

Review only for secondary legislation.

Question 14

Three grounds for domestic judicial review

Answer 14

Illegality
Irrationality
Procedure impropriety

Illegality and irrational substantive grounds of review.

Question 15

European Grounds

Answer 15

Breach of ECHR
Breach of retained law.

Question 16

Illegality

Answer 16

Illegal or ultra vires if it beyond powers of public body, as do not exist or exceeded.

Cannot act without legal authority.

Rule against delegation -
decision-making powers cannot be further delegated or ‘sub-delegated’.
Vine v National Dock Labour Board (1957).

Exceptions to rule against delegation -
Carltona -
government minister sub-delegating decision-making powers to civil servants in their departments provides an exception to general rule. Can act through ciil servant

Local Governments Act - local authorities may delegate decision making powers to committees, subcommittees or to individual officers, provided they make a formal resolution to do so.

Question 17

Fettering of discretion
(Illegality)

Answer 17

If parliament provides with discretionary power, court will not permit body to restrict or ‘fetter’
Can occur;

a) acting under dictation of another
b) applying a general policy as to exercise of discretion in too strict a manner.

a)
Lavender - based on anothers ministers objection not general policy

b)
must not shut ears, and must be willing to listen to new things (not too strict)
-

Question 17

Using powers for an improper or unauthorised purpose
(Illegality)

Answer 17

TV licenses revoking (Congreve v Home Office)

Question 18

Dual purposes

Answer 18

Primary purpose test -

Provided permitted/authorised purpose is the ‘primary’ purpose, then decision is not ultra vires and should stand.

R v Inner London Authority test -
Where one authorised and one unauthorised -
was authority pursuing an unauthorised purpose which materially influenced the making of its decision?

If primary purpose lawful than obtaining an incidental advantage may not invalidate the exercise of that power.

Question 19

Taking account of irrelevant considerations or failing to take account of relevant considerations

Answer 19

Must disregard irrelevant considerations and take into account relevant considerations when exercising powers.

May simply do one or the other (Padfield).

Question 20

Errors of law

Answer 20

Error of law always amiable to judicial review

Question 21

Errors of fact

Answer 21

More reluctant to allow.

a) Jurisdictional -
errors of fact that go to the root of a public authoritys capacity to act are reviewable.

b)
Other areas of fact - non-jurisdictional
not usually amenable to JR.

Question 22

Irrationality

Answer 22

Require very high degree of unreasonableness.

Wednesbury principle -
whether having regard to relevant considerations, the decision-maker came to a conclusion so unreasonable that no reasonable authority could ever have come to it.

Developments -
so outrageous in defiance of logic or accepted moral standards that no sensible person could have arrived at it.

Question 23

Procedural grounds of judicial review

Answer 23

Focus on procedure followed in arriving at decision.
Different from substantive above.

Steps leading to and circumstances surrounding decision rather than the decision itself.

Question 24

Procedural fairness

Answer 24

rules of natural justice.
Common law rules (created by judiciary).

a) rule against bias (no personal interest)

Direct or indirect interest

Direct - may lead to financial gain or proprietary interest.
Non-pecuniary where decision maker is involved in promoting same cause as party to the case

Court normally obliged to automatically quash

Indirect -
relative of decision maker.
Not obliged to automatically quash.
Not to lose face.
Test - would a fair minded and impartial observer conclude there has been a real possibility of bias.

b) right to a fair hearing
Duty on decision makers to act in good faith and listen fairly to both sides.
How much C had to lose taken into account.

Three classes of C -

Forfeiture cases - had most to lose, e.g. livelihood. Deprived of something they previously enjoyed.

Legitimate expectation cases - legitimate for C to expect that an established practice would continue when seeking renewal or confirmation of license.

Procedural - decision-maker failed to follow normal procedure

Substantive - decision-maker led someone to believe he or she will receive a benefit.

Application cases -
where C is first-time applicant who merely seeks a licence, membership or office they held previously.,

Must give notice and opportunity to refute evidence prior to decision.

May not apply if merely preliminary -
e.g. suspended.

Must give reasons where fairness requires that C should have an effective right to challenge a decision that looks wrong.
No general duty.
UNLESS;
-where legal subject matter is particular important
-where decision appears aberrant.

Forfeiture is entitled to expect full hearing.

Every C entitled to hearing that is fair and reasonable in all the circumstances.

Depends on character of decision-making body, kind of decision is has to make and statutory or other framework in which it operates.

Do not apply where decision -maker has a legislative rather than judicial function.

Question 25

Procedural ultra vires

Answer 25

Statutory.

Mandatory requirement

Directory requirement

Wording of state. Close inspection of facts.

Whether a C is substantially prejudiced by non-compliance with an important procedural safeguard is a factor for the courts to take into account.

Should consider consequences of non-compliance.
Intention of Parliament.

Substantive legitimate expectation - led someone to believe they will receive a benefit.

Outcomes of legitimate expectation cases -
Public authority is only required to bear in mind its previous policy or representation on irrationality grounds

Court may decide that the promise or practice induces a legitimate expectation. (Procedural)

Court may decide that the promise or practice has induced a legitimate expectation of a substantive benefit and that to frustrate the expectation is so unfair it would amount to an abuse of power.
Weigh up against public policy.

Question 26

JR - Procedures and Remedies

Answer 26

-

Question 27

Bring a claim?

Answer 27

Must be against public body.
(Procedural exclusivity)

Exception -
both private and public law -
public law may be raised in private law proceedings.
public law issues exclusively public.

May use public law defence in criminal proceedings.
In private proceeding may raise as defence (civil claim e.g. trespass).

Question 28

Identity of decision maker

Answer 28

Source of power -
if been set up under statute or under delegated legislation or derives power under reviewable prerogative power, then it is a public body.

If not satisfied apply second-part

Nature of power -
if body making decision is exercising public law functions it may still be a public body.

Question 29

Standing in claim

Answer 29

Sufficient interest -
must have this in matter to which claim relates

Question of standing -
closely linked to merits of case.

Pressure groups -
five factors to show sufficient interest -
need to uphold rule of law
importance of issue raised
likely absence of any other responsible challenger
role of pressure group.

Fifth particular relevant.

May scrutinise standing more rigorously if pressure group.

Question 30

Making a claim

Answer 30

Administrative court - High Court

Time limit -
refuse if undue delay.
claim form filed within maximum three months after ground to make claim firs arose.

Planning acts - six weeks.

Extend?
Only for good reason.
Merits of allowing a claim outweighs the undue delay and prejudice caused by granting the permission.

C must make promptly and without undue delay.

Question 31

Exclusion of courts judicial review jurisdiction

Answer 31

Exclude right of challenge

Full ouster clause -
Covers all challenges
However, if public body steps outside permitted area, its decision are not covered by an ouster clause ‘nullities’
Only protect valid decisions

Partial ouster clauses -
e.g. certain limits.
No authority on extending unreasonably short.
Proportionate balance.

If failed to use appropriate statutory procedure for obtaining a remedy, court not generally exercise its discretion.

Question 32

Procedure

Answer 32

Pre-action protocol

-
Send letter before claim to decision maker to give latter 14 days to reconsider.

If not satisfied start proceedings.

Permission stage -
whether C has standing and within time.
Must not grant permission to apply for JR where improper conduct complained of would be highly likely not to have resulted in substantially different outcome.
May disregard in exceptional public interest.

Hearing of claim -
usually confined to argument on law.

Question 33

Remedies

Answer 33

All discretionary

Must refuse remedy if outcome not substantially different. Again may disregard if of exceptional public interest.

Prerogative orders;

Quashing order -
Quashes decision found to be unlawful.
Remits to decision maker.
Suspended - certain date
Prohibited - decision void onwards, not reverse previous decisions.
Prospective only - where public body has set up a scheme pursuant to which it has made thousands of small payment.

Prohibiting order -
Refrain from acting beyond powers.
Rare as often prefer to apply for injunctions.

Mandatory order -
enforce performance of duties

Private law remedies -
non-prerogative orders. May apply for these.

Declaration -
court order confirming, but not changing legal position or rights of parties.

Injunction -
temporary
interim

Damages -
where seeking other relief and damages could have been awarded in a civil claim.
Must have private law cause of action.