Public Flashcards
1
Q
Once a principle of law has been laid down, future cases with the same material facts will be decided in the same way if what 2 conditions are fulfilled?
A
- The earlier case was decided in a court which binds it; and
- The relevant part of the earlier case is binding (vs persuasive)
2
Q
What is the ratio of a judgment?
A
-The part of the judgment which is binding on other courts
-The legal principle/rule on which the court’s decision is based, applied to the material facts of the case
3
Q
What is the obiter dictum, and what is its use?
A
-Judge comments on an area of law on which it is not necessary to reach a decision in the case
-Not binding, but may be highly persuasive and influential in subsequent cases (‘practically binding’)
4
Q
What does following a decision mean?
A
Court considers the facts of a case to be so similar to those facts in an earlier case that the law in the earlier case should be followed
5
Q
What does ‘approving’ mean?
A
The court ‘follows’ a decision + the court doing the following is a higher court
6
Q
What does ‘distinguishing’ mean?
A
A court avoids following an otherwise binding precedent by e.g. finding a difference in the material facts between the 2 cases
7
Q
What is a reversed judgment? Does this negate a precedent?
A
-A case goes to appeal and the higher appeal court disagrees with the lower court
-Does not negate a precedent: simply means that the higher court has not applied the law in the same way
8
Q
What does it mean if precedent is overruled or overturned?
A
A superior court in a later case decides that the original precedent set in a past case is wrong and sets a new ‘correct’ precedent instead –> original precedent is no longer good law
e.g., UKSC may overrule a precedent from CoA
9
Q
What is UKSC’s approach to departing from its own precedent?
A
Guarded but flexible:
1) Recognises that it may sometimes be necessary
2) Danger of disturbing retrospectively basis of legal decisions + need certainty re criminal law
10
Q
When will CoA depart from its own precedent?
A
- CoA came into previously conflicting decisions - today’s CoA can select the one to follow
- UKSC/HoL overruled CoA’s previous decision
- CoA’s previous decision was made per incuriam (i.e., the previous court was unaware of a relevant authority which would have been binding on the court + that ignorance led to faulty reasoning by court)
11
Q
What courts are E&W’s courts binding on?
A
UKSC, CoA, HC: all inferior courts and itself (s.t. exceptions)
Upper Tribunal: 1st Tier Tribunal, inferior courts, and itself
1st Tier Tribunal: not binding, but may be persuasive
Family Court, County Court, CC, MC: not binding
12
Q
What is the equitable maxim?
A
Equity follows the law (i.e., the function of equity is to supplement, and not supplant, the common law)
13
Q
When is specific performance unavailable (x2)?
A
-Breach of contract for personal services (e.g. employment)
-Performance of contractual obligations would require constant supervision
14
Q
What is a declaration?
A
A legally binding statement by a court about:
-Legal rights of the parties;
-The existence of facts; or
-A principle of law
15
Q
When can the court make a binding declaration?
A
Regardless of whether any other remedy is claimed (note: a claim for a declaration alone is unusual)
16
Q
What are 5 key equitable remedies?
A
- Specific performance
- Injunction
- Declaration
- Rescission
- Rectification
17
Q
What must be present for rescission to be employed? What are 3 circumstances in which it may be used?
A
Parties can be put back to their pre-contractual position
1. Misrep
2. Mistake
3. Duress/UI
18
Q
When does rectification apply? When is it unavailable?
A
-Only applies to written contracts
-Unavailable if errors in written contract are too fundamental/ extensive
19
Q
What is rectification?
A
Corrects a doc to reflect the parties’ contractual intention
20
Q
What is unique about bills dealing with public finance?
A
Start in HoC and cannot be defeated in HoL (whereas other bills may start in HoC/HoL)
21
Q
Primary legislation: what happens during the 1st, 2nd and 3rd readings?
A
1st: formality - Bill’s title read out; date set for 2nd reading
2nd reading: main principles of Bill are debated
3rd reading: final debate and vote on Bill; if passed, goes to other House
22
Q
Primary legislation: what happens at the Committee stage?
A
Legislative committee scrutinise - and potentially amend - details of Bill
23
Q
When does an Act take effect?
A
-From the day it receives Royal Assent, unless there is a contrary provision in the statute
-Generally, commencement section in Act details when it is to come into force (typically, SoS is delegated power to issue a SI to bring Act into force)
24
Q
What are the key differences between public (or general) and private (or personal) Acts?
A
-Public relate to matters of general public concern; private to particular places/people
-Public relies on lobbying to consider outside bodies’ views; private usually stems from a proposal by a large organisation which wishes to acquire certain powers
25
What is the difference between a gov bill and PMB?
-Gov represents gov policy, based on ministerial proposals; PMB promoted by a particular MP
26
What is secondary ('subordinate') legislation?
Law created by some person/ body other than parl (usually a gov dept) under powers given to them by a parent Act
27
What is an enabling clause in an Act?
Enables secondary legislation to be made (e.g., Henry VIII clause)
28
What are 3 examples of secondary legislation?
-Regulations made by SIs
-Orders in Council
-By laws
29
Does a piece of delegated legislation have equal statutory force to primary legislation
Yes, if made within the powers granted by parl in the parent Act
30
What can parl do with an SI?
Approve or reject it, but cannot amend it (its role depends on what is stated in Parent Act)
31
What power do the courts have re Acts and delegated legislation?
-Courts have no power to invalidate an Act
-Courts can examine whether delegated legislation is made within the powers of the parent Act and 'quash' it if not
32
What is the literal rule of statutory interpretation?
Words used in statute are to be given their ordinary, plain and natural meaning (do not need to consider Parl's intention)
33
What is the golden rule of statutory interpretation?
Take/construe whole of statute together, and give words their ordinary meaning unless doing so produces an inconsistency, absurdity or inconvenience so greater such that this meaning could not have been intended
34
What is the mischief rule of statutory interpretation? What is it now subsumed into?
Consider remedy for mischief (in existing common law pre-Act) Parl intended to provide
Now subsumed into purposive rule
35
What is the purposive rule of statutory interpretation?
Consider the purpose of law/statute to interpret its provision (look beyond word of legislation at the purpose behind it)
36
What is the contemporary approach towards statutory interpretation?
Combination of literal and purposive interpretations:
-Purposive interpretation generally prevails where it provides a clear answer; otherwise, even if court is uncomfortable with result, strict meaning will have to prevail
-Judge 1st considers the ordinary meaning of the words in the general context of the statute, and then moves on to consider the other possibilities where ordinary meaning leads to absurd result
37
What is the linguistic presumption 'expressio unius est exclusio alterius' (the express mention of one thing excludes its extension to others)
There is a list of items with no general items that follow: closed list - Parl intended only to include stated items
38
What is the linguistic presumption 'ejusdem generis' ('of the same kind')
Where general words (e.g., 'other items') follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objects as (i.e., has the characteristics of) the specific words
39
What is the linguistic presumption 'noscitur a sociis' (a word is known by the company it keeps)
Words of statute are understood in the context of the state itself (e.g. 'interest, annuities and other annual payments --> 'interest' means 'annual interest')
40
Secondary EU law: what is the difference between regulations, decisions and directives
-Regulations: directly applicable in MSs' legal systems (direct effect)
-Decisions: legally binding only on the parties to whom they are addressed (may be enforced in national courts against the party to whom they are addressed, if certain conditions are met)
-Directives: must be implemented by MS's national legislation
41
What are the 3 methods by which CoJ can enforce directives in national courts?
i. Direct effect: available if interpretation date has passed
ii. Indirect effect (an obligation on domestic courts to interpret domestic law compatibly with EU law, where possible)
iii. State liability (a form of compensation available for a state's failure as long as it has sufficiently serious consequences)
42
What happens if MS fails to implement a directive properly/ on time?
EC may start legal proceedings ('infringement proceedings') against MS, and eventually determined by CJEU
43
What are the 4 types of secondary EU law?
1. Regulations
2. Decisions
3. Directives
4. CJEU case law
44
What is the form of trial if D appeals from MC to CC?
De novo trial (heard afresh) before CC Judge and 2 Mags
45
If D appeals from CC to CoA, when will CoA quash the conviction and what will the process look like?
-Quash conviction if unsafe
-Hear oral arguments from counsel for both sides, but evidence will not be heard again
46
When can P apply to CoA for appeal of criminal decision from CC?
With DPP's consent, for an order quashing the acquittal of anyone found not guilty of a 'serious offence'
47
When may AG appeal to CoA from CC for a criminal case?
In some limited circumstances, against an 'unduly lenient' sentence imposed by CC
48
When will UKSC hear an appeal from CoA?
Point of law of general public importance
49
What does the CCRC do?
-Power to send cases back to CoA for review if there is a 'real possibility' that CoA will overturn conviction/sentence
-If decision to be reviewed was made in MC/YC: can send back to CC by review, in form of re-hearing (all evidence re-heard)
-Apart from 'exceptional circumstances', must identify new evidence/ legal argument that makes case look significantly different
50
What are the 3 levels of judges in the County Court (in order)? How should they be addressed?
-DDJs - 'judge'
-DJs - 'judge'
-CJs - 'your honour'
51
What are tribunals?
Specialist judicial bodies dealing with administrative and regulatory cases
52
What is the purpose of the 1st Tier Tribunal?
Hears appeals from citizens against decisions made by gov depts/agencies
53
What is the purpose of the Upper Tribunal?
-Senior Court
-Hears appeals from 1st Tier Tribunal
54
What is the difference between tribunal judges and members?
-Judges: legally qualified; responsible for ensuring the individual tribunal hearings they chair make the correct decision in law
-Members: specialist non-legally qualified 'lay' members of the panel hearing the case (not in every panel)
55
In which courts/tribunals can solicitors carry out advocacy?
-MC
-County Court
-Tribunals
-Appeal Tribunals
56
Which judges sit in the High Court, and how should they be addressed?
High Court judges: 'my lord' or 'my lady'
57
What are Masters? How are they addressed?
At 1st instance, deal with all aspects of legal proceedings
'Judge'
58
How are High Court judges appointed? What 2 criteria must they fulfil?
Nominally appointed by monarch on recommendation of Lord Chancellor, after competition administered by JAC
(a) Satisfy judicial appointment eligibility condition on a 7-year basis; or
(b) Be a CJ who has held office for at least 2 years
59
How are CoA judges appointed?
By monarch on recommendation of a selection panel convened by JAC
60
How should magistrates be addressed?
'Your worship', 'sir' or 'madam'
61
What are the main functions of the legislature, executive and judiciary
Legislature: enacts new law, and repeals/amends existing law
Executive: formulate and implement policy within the law
Judiciary: enforce criminal and civil law and adjudicate disputes between individuals, as well as between individuals and the state
62
How can a minister delegate its power?
A power granted to a minister (usually be legislation) can be lawfully exercised by a gov official (civil servant) working in the same dept; minister will still be politically responsible for the use of this power
63
UK's constitutional 'rules' comprise a mixture of legal and non-legal rules. What do each of these comprise of?
Legal: come from constitutional statutes, EU law and the common law (incl. recognition of prerogative powers)
Non-legal: conventions, law and customs of Parl, soft law and academic opinions
64
What is a convention? Why are they stuck to?
-Social conventions that bind constitutional actors and are constitutionally important
-Cannot directly be enforced in court (although courts will recognise them): political, not legal, consequences of breaching a convention
-If there is an inconsistency between convention and law, law will prevail
65
What are 5 key conventions relating to the legislature?
-HoL should defer to HoC
-Salisbury-Addison convention: HoL should not reject at 2nd reading any gov legislation that has been passed by HoC and carries out a manifesto commitment
-Financial bills only introduced by a Cabinet minister in HoL
-Sewel Convention: Westminster Parl will not normally legislate re devolved matters without consent of the relevant devolved legislature
-HoC should be consulted before gov embarks on any major foreign policy initiatives involving armed forces
66
What are 2 key conventions relating to the judiciary?
-Judges should not be politically active
-Parl (+ exec?) must not criticise the professional conduct of judges
67
Common law can, and should, keep pace with the times. What does this mean for judges?
-Where common law rule no longer even remotely represents true position in present day society, the court's duty is to take steps to alter the rule if it can legitimately do so in the light of any relevant Parl enactment (could interpret wording to overturn the existing, archaic common law principle)
-However: courts will not develop law where there are insufficient existing common law threads to build principles from + where matters are novel and contentious (esp. if political/ethical) - will generally defer to parl
68
How have reforms reduced the overlap between judiciary and executive?
-HS' judicial power to sentence - removed
-Tribunals funded and administered by gov depts - removed
-Lord Chancellor: not Speaker or Pres of HoL; not head of Judiciary; powers of judicial appointment transferred to JAC
69
What are 2 exceptions to the rule that judges lack power to scrutinise proceedings in Parl or 'review' primary legislation?
1. Act was inconsistent with EU law or is with retained law
2. Statement of incompatibility with ECHR
70
What is devolved legislation?
Legislation produced by the 3 devolved Parls/Assemblies (cannot be created without the enabling powers of Act of UK Parl)
71
What are devolved matters?
Areas of gov where decision-making has been delegated by UK Parl to the relevant devolved administration (although all devolved laws are still s.t. UKSC review)
72
What are reserved matters?
Areas of gov over which decisions are still taken by Westminster Parl (e.g., immigration, defence, foreign policy)
73
What is RoL? How is it protected in UK constitution?
Gov must respect and act within confines of law
JR = mechanism by which RoL is protected
74
What is the legality principle (Simms)?
Presumed, when interpreting statutes, that Parl cannot be seen to have intended to restrict important rights and freedoms unless this is made clear i.e., fundamental rights cannot be overridden by general/ ambiguous words
75
How can Admin Courts uphold RoL through primary and delegated legislation, common law and prerogative power?
-Primary: cannot be reviewed by courts; however, can assess whether the gov/public body has complied with the provisions in an Act
-Delegated: can assess whether it has been made in accordance with powers granted by Act + assess whether gov has acted in accordance with delegated legislation
-Common law and prerogative power: can assess breach or whether prerogative power has been lawfully exercised
76
Why is there potential friction between parl sovereignty and RoL?
If there is political will, Parl could pass laws that could be seen to go against fundamental features of RoL (e.g., a discriminatory statute)
77
What is the Padfield principle?
-For exercise of discretion to be lawful, it must not frustrate policy/ purpose of the statute which contains the discretionary power
-Failure to exercise discretion at all, if granted by statute, is also potentially unlawful
78
What are the 3 main elements to parl sovereignty?
a. Parl can (un)make any law (inc. concerning any part of the world and with retrospective effect)
b. No one is competent to override/ set aside/ ignore an Act
c. Absence of entrenchment: Parl cannot be bound by a predecessor or bind a successor (express/ implied repeal)
79
What is the Enrolled Bill rule?
If a bill has been enrolled (i.e., become an Act), it is impossible to go behind that; any departure from normal procedure during passage of bill cannot be corrected by courts
80
What is implied repeal?
If a new Act is partly/wholly inconsistent with a previous Act, the previous Act is repealed to the extent of the inconsistency (i.e., Parl is deemed to have implicitly intended the later Act to repeal the earlier one)
81
In what 4 ways has purity of Diceyan doctrine arguably been diluted?
1. Common law: can Parl introduce procedural requirements making it harder for subsequent parls to change the law?
2. EU: whilst UK was a member, given courts enforced principles of EU law over domestic statutes - shows it is possible for a Parl to bind future Parls; however, sovereignty principle remains
3. Devolution: Sewel Convention (although this is not legally enforceable)
4. HRA: for as long as HRA remains in place it will have a dominant effect as a 'constitutional statute'
82
What is the royal prerogative? Who is it exercised?
-A residual form of legal authority which the executive 'owns' but which has not been legitimated through the parliamentary process; finite stock of executive power that can only be reduced in scope and never expanded
-In practice, central gov exercises it (although monarch can perform ceremonial exercise of the power)
83
What are the 3 road types of prerogative power?
1. Ministerial (or 'executive') prerogative powers: now exercised by ministers on their own authority (e.g., foreign affairs, armed forces and emergences ('defence of the realm'), mercy)
2. The monarch's constitutional prerogatives: exercised by King on PM's advice
3. Crown's legal prerogatives
84
What does the prerogative power of 'foreign affairs' involve?
-Recognition of other sovereign states and their representatives
-Making and ratifying treaties
-Diplomacy
-Granting and revoking passports
-Governance of BOT
85
What are 3 examples of the monarch's constitutional prerogatives?
-Appointment of PM
-Right to assent to legislation
-Right to prorogue Parl
86
What are 4 ways in which prerogative powers can be 'controlled'?
1. Application of public law (JR)
2. Overriding effect of statute (legislation 'trumps' the prerogative)
3. Informally, by political pressure in gov and public life
4. Informally, by changes to convention over time
87
What are the 3 ways in which the court can control prerogative powers?
1. Does the gov have a particular power? (Note: finite stock)
2. Scope/limit of prerogative power: review exactly what that power entailed and encompassed (De Keyser and Fire Brigades - superiority of statute over prerogative)
(3) How gov uses its prerogative power: degree of review intensity depends on low/high policy i.e., courts consider whether the matter is one that can/should only be judged politically rather than legally through courts (administrative and affects individuals' freedoms vs high policy)
88
GCHQ: which prerogative powers were deemed not susceptible to JR (obiter)
-Making treaties
-Defence of the realm
-Mercy
-Granting honours
-Dissolution of Parl
-Appointment of ministers
Since: court considers nature of the power concerned, rather than where it came from - substance not form
89
How susceptible are decisions regarding the defence of the realm to JR?
1. Decisions to take military action and how to conduct such operations: higher policy --> executive effectively has sole competence
2. Operational matters: courts are less differential
90
During membership of EU, how did the principle of supremacy of EU law operate? How was the principle mitigated?
-Principle: where a conflict between EU law and the national law of MSs arises, national law cannot override EU law - EU law must prevail over the offending national law
-Mitigation: protection of fundamental rights is a general principle of EU law --> EU law must be interpreted and applied in accordance with fundamental rights
91
What are the 2 regimes post-transition period?
1. EU law preserved by WA
2. Assimilated law: EU law not preserved by WA (i.e., rest of EU law derived from UK's period of membership with EU - both EU-derived domestic legislation and direct EU legislation) - retained by EUWA
92
EU law preserved by WA: how does Parl/EU sovereignty work?
-UK courts can disapply statutes which are incompatible with EU law preserved by WA
-Parl retains right to override EU law and WA
-WA's provisions, incl. any EU law preserved by them, must be interpreted in conformity with CoJ's case law made before end of transition period; however, UK's judiciary only needs to give due regard to CoJ's case law decided after end of transition period (i.e., preliminary references)
93
What is EU-derived domestic legislation?
UK legislation enacted under ECA / relates to EU
94
What is direct EU legislation?
Any EU regulation, decision or tertiary legislation which was in force and applicable in domestic law immediately before the end of the transition period
95
Assimilated EU law: how does EU/Parl supremacy work?
-Assimilated EU law can now be amended by UK legislation
-Interpretative obligation to read and give effect to assimilated direct EU legislation in a way which is compatible with all domestic enactments in so far as it is possible to do so; where a compatible interpretation is not possible, the assimilated direct EU legislation is s.t. domestic enactments in so far as it is incompatible with them
-UK courts and tribunals can no longer make preliminary references to CoJ on questions of assimilated EU law
-Most UK courts and tribunals (except UKSC and CoA) continue to be bound by assimilated EU case law decided before end of transition period
-UK courts and tribunals are not bound by EU case law decided after transition period expired, although they can have regard to it
96
What determines amenability to review decisions by JR? What is the general rule and how has the scope been broadened?
-General rule: only public law decisions are amenable to JR (i.e. decision relates to public body, carrying out a public function, through a statutory power)
-Broadened scope: non-public bodies performing 'public law functions' - regulatory authorities + contracting out
97
Amenability of JR: what test is used for regulatory authorities?
But for test: but for it already being in existence, would Parl almost definitely step in
-Important aspect of national economic life?
-Generally amenable if their functions have a sufficiently public and governmental factor
(Sporting and religious regulation - not amenable - private)
98
Amenability to JR: what test is used for 'contracting out'?
Is the authority subject to statutory underpinning or are relations purely contractual?
99
What are the 2 elements of the general rule of procedural exclusivity (JR)? What are the 2 exceptions?
1. JR is the exclusive procedure for challenging public law decisions (abuse of process of court to bring in any other way)
2. Private law matters are to be dealt with by ordinary action
Exceptions:
1. Neither party objected to use of private law procedure
2. Contested decision was collateral
100
Procedural exclusivity (JR): what will the court consider for mixed claims?
Overall IOJ (for both parties) and if the case is being conducted in an efficient and expeditious way according to CPR
101
What is required for standing in JR?
Applicant has sufficient interest in the matter
102
JR: what is the 2-stage approach to standing?
1. Initial permission stage: turn away those with little hope of success or vexatious litigants
2. Full hearing stage: court considers in more detail whether A can show a strong enough case on the merits, considering proximity of his connection to issue in case
103
JR: what are the 3 categories of claimants? When will each be given standing?
a. Associations: generally given standing to challenge a matter in the communal interest
b. Pressure and interest groups (unlikely that all members will be directly affected): best-placed group to bring action + only body to bring action?
c. Individuals: genuinely concerned (not necessarily granted if there are better placed challengers)
104
JR: when must the claim be filed?
a. Promptly
b. Max 3 months after grounds to make claim 1st arose
Exceptions:
-Planning: 6 weeks
-Public procurement: 30 days
105
JR: can time be extended?
-Between parties: no
-By court: yes, under its general power
106
JR: what happens if there is undue delay?
JR can be refused if court considers granting relief sought would likely cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration
107
JR: What is the difference between a total and partial ouster?
-Total: on its face, appears to oust Admin Court's jurisdiction to conduct JR
-Partial: excludes Admin Court's jurisdiction once a time limit has expired
108
JR: how does the court deal with total and partial ousters?
-Total: hostility; presumption against ousting - need clear/ explicit words
-Partial: taken at face value and enforced
109
JR: when will court consider alternative remedies? What is the significance?
At permission stage, court will consider that JR is only appropriate if:
(1) There is no suitable alternative remedy; or
(2) Alternative remedies have been exhausted
110
JR: what are the 6 available remedies?
-Quashing order
-Prohibitory order
-Mandatory order
-Declaration
-Injunction
-Damages
Discretionary: apply in proportionate way to balance degree of individual interest in mater against wider public interest
111
Illegality: what are the 7 sub-categories of illegality?
1. Simple illegality (ultra vires)
2. Errors of law(e.g., misinterprets meaning of a statutory power)
3. Errors of fact
4. Relevant and irrelevant considerations
5. Improper purpose: uses a statutory power for an improper purpose
6. Fettering discretion
7. Unlawful delegation
112
Illegality: what is the exception to simple illegality?
Public body did not act unlawfully if it did something that was incidental to or consequent upon a power that it did have
113
Illegality: what are the 3 exceptions to errors of law?
1. Error of law is not decisive to a decision ('but for' test)
2. Decisionmaker is interpreting a special system of rules (e.g., statutes of university, superior court, potentially inferior court)
3. Power granted is couched in terms which are so imprecise that it can be interpreted in a wide range of different ways + decisionmaker's conclusion is not irrational
114
Illegality: what are the 3 types of errors of facts?
1. Precedent facts: initial findings of fact which trigger decision-maker's power
2. No evidence for a fact: the finding of a fact is not supported by evidence
3. Ignorance/mistake of an established fact: an established fact is ignored/misunderstood
115
Illegality: what is the 4-part test for ignorance/ mistake of an established fact?
Ignorance/ mistake must have caused unfairness:
1. Mistake as to an existing fact (incl. mistake as to the availability of evidence on a particular matter)
2. Fact/evidence was established
3. A was not responsible for the mistake
4. Mistake played a material (though not necessarily decisive) part in decisionmaker's reasoning
116
Illegality: what are mandatory, prohibitory and discretionary factors for decisionmaker?
-Mandatory: unlawful if not considered
-Prohibitory: unlawful if considered
-Discretionary: lawful if not irrational to take into account + decisionmaker also takes into account other appropriate considerations
117
Illegality: how is the proper purpose of a statutory power determined?
a. Statute clearly indicates purpose for which it is granting power
b. Courts imply a purpose by construing the statute as a whole
118
Illegality: what are the 2 ways in which discretion may be fettered?
1. Fail to exercise the power or abdicate it
2. Apply a policy rigidly or in a blanket fashion: outcome essentially decided in advance, or made without proper exercise of discretion in response to individual factors ('mind must be kept ajar'
119
Illegality: unlawful delegation - what is the general rule, and what are the 2 exceptions?
-General rule: where an Act empowers a public body to make a decision, it is not allowed to delegate that discretion to another body/person
-Exception 1: statutory exceptions
-Exception 2: Carltona principle
120
What is the Carltona principle?
Gov minister or public office holder could discharge all but the most important functions through suitable alternatives (e.g., civil servants within his dept or police officers) for whom they are responsible and answerable
-Official is deemed to step into minister's shoes, and acts in their name (but minister is still politically accountable to Parl for decisions made)
121
Unreasonableness: what is the Wednesbury test?
Review available where a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it
122
What are the 3 grounds for unreasonableness?
A. Material defects in the decision-making process: defects not faulty in terms of 'illegality', but serious enough to render a decision flawed
B. Oppressive decisions (oppressive = unreasonable): a decision imposes excessive hardship or represents an infringement of rights, which is deemed unnecessary
C. Decisions that violate constitutional principles: inconsistent decisions and uncertain rules are unreasonable- can lead to inequality before the law
123
Unreasonableness: what are the 2 ways in which material defects in the decision-making process could arise?
1. Wrongly weighing up relevant factors (consider: what would the reasonable authority do?)
2. Failure to provide a comprehensive chain of reasoning ('irrationality'): decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it
124
What are the two types of procedural impropriety?
1. Failure to observe procedural statutory rules ('procedural ultra vires')
2. Duty to act fairly (right to be heard + rule against bias)
125
Procedural impropriety: what is the test?
In light of the consequences of non-compliance with requirement, could Parl have intended that the outcome of that non-compliance should be the invalidity of the decision?
i.e., court will only intervene if it considers that Parl would have intended the courts to do so based on non-compliance with original duty
126
Procedural impropriety: what is the right to be heard?
A person affected by a public law decision should be given the opportunity to present their case
127
Procedural impropriety: right to be heard - what are the 3 stages to the test?
1. Has a duty arisen?
2. What level of duty dose the public authority owe?
3. What is the content of the duty (of the right to be heard)? Is there a breach?
128
Procedural impropriety: right to be heard - when will a duty not arise?
Duty overridden or significantly modified:
a. Overriding concerns relating to national security
b. Emergency cases: public safety demands urgent actions
c. Rationing of resources cases: cannot be expected to put forward a detailed case
d. A person has waived their right to fairness
129
Procedural impropriety: right to be heard - what are the 3 categories of cases in terms of level of duty that the public authority owes?
a. Forfeiture cases: highest level - require notification of changes + reasons
b. LE cases: conditions are laid down for grant of licence and applicant satisfies them; applicant is entitled to believe that his application will not be rejected without good reason
c. Application cases: notification of specific points may not be appropriate/ practical
130
Procedural impropriety: right to be heard - what factors are considered to determine content of the duty?
a. Notice of the case against a person: to be unlawful, where full notice is not given, full notice must make a material difference
b. Right to make representations: not automatic; should not refuse as a means of saving time and expense; in general, no right to be heard in initial stages of multistage process; consider subject matter and circumstances of case, nature of decision to be made, whether there are substantive and complex issues of fact that cannot be satisfactorily resolved on the available written evidence
c. Witnesses: no automatic common law duty; depends on what is at stake for individual, nature of body and proceedings, whether court feels that a 'legalistic' procedure is appropriate
d. Legal representation: consider seriousness of charge, likelihood that a point of law may arise, ability to conduct own case, need for a speedy process
e. Reasons: may be imposed by statute; consider 'good administration'; may not be necessary it unduly onerous to do so (e.g. complexity of decision, range of factors that must be considered, resource implications); court may decide gist is sufficient; commercial setting
131
Procedural impropriety: what is the rule against bias?
Decisionmakers are not acting fairly if there is a risk that they may be biased; the rule against bias disqualifies such a person from deciding a matter and will lead to the quashing of any decision so made
132
Procedural impropriety: what is the test for indirect bias?
Would the fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased?
133
Procedural impropriety: indirect bias - would unauthorised participation or presence by someone who may be biased invalidate a decision?
Yes, potentially - even if they are not a member of the decision-making body
134
Procedural impropriety: indirect bias - when may membership of multiple bodies result in a decision being quashed for bias?
1. Different bodies are involved in a case; and
2. Same person is a member of >1
Exception: only a provisional view (vs definitive conclusion) has been reached
135
What are the 2 types of legitimate expectations? When do they arise?
1. Procedural LE: arises where (a) public body has promised/ represented that a particular procedure will be followed before a decision is made or (b) there has been an established practice for the public body to use a particular procedure + can reasonably expect to continue
2. Substantive LE: an assurance/ promise has led a person to believe that they will receive a particular, tangible benefit
136
LE: what 5 factors are considered when determining whether an expectation is legitimate?
1. Clarity
2. Legality
3. Agency
4. Reliance
5. Knowledge
137
LE: what is the question to ask regarding clarity?
How, on a fair reading of the promise, would it have been reasonably understood by those to whom it was made?
138
LE: what does 'legality' relate to?
Would it be within the public authority's powers to fulfil the 'promise' in question?
139
LE: what is the significance of 'agency'?
A public body will not be bound by a representation of one of its agents where the agent acted outside his authority in making the representation
140
LE: is knowledge (of the representation or past practice at the relevant time) an essential prerequisite for LE?
Accepted position: yes
However: not always required
141
LE: is detrimental reliance required?
Normally: yes
However: not needed where e.g. a public body seeks to depart from an established policy
142
LE: what test is used to determine whether the public body has lawfully frustrated the LE?
General test: importance of fairness
-Procedural: generally, LE is fulfilled (although not if there are compelling public interest reasons)
-Substantive: more difficult to fulfil - weigh requirements of fairness against any overriding interest relied upon for the change of policy - consider whether it is an 'abuse of power'
Consider higher/lower policy; proportionality has been incorporated
143
JR: when should the sub- and super-Wednesbury standards be used?
Sub: higher end - decisions affecting fundamental/human rights - institutional competence = courts
Super: lower end - decisions concerning broader (social and economic) policy questions; traditional Wednesury standard; constitutional element = reluctant to interfere with decisions of democratically elected officials on policy questions
144
JR: when should proportionality test be used?
Where human rights protected by ECHR are engaged - means employed by a decision-maker to achieve a legitimate aim are no more than necessary to achieve that aim
145
What are absolute rights?
Rights that cannot be legitimately interfered with by the state (Art.3)
146
What are limited rights?
Rights that can, in certain prescribed circumstances contained with the articles, be legitimately interfered with by the state (Art.2 - life; Art.5 - liberty; Art.6 - fair trial)
147
What is required to interfere with qualified rights?
Generally, must show:
(a) PBL
(b) In pursuit of a legitimate aim
(c) Necessary in a democratic society (i.e., proportionate)
(Art.8 - family life; Art.9 - freedom of thought; Art.10 - freedom of expression; Art.11 - freedom of assembly)
148
When will Art.2 be breached for a failure to comply with positive obligations (2 conditions)?
1. Authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of the identified individual(s) from the criminal acts of a 3rd party; and
2. Authorities failed to take reasonable measures, within the scope of their powers, to avoid that risk
149
Margin of appreciation: when is broader vs less discretion given to contracting states?
-Broader: decisions concerning morality and religion; public emergency; national security; social, economic and environmental policies
-Less: individual rights are affected e.g., a person's existence/identity, liberty or legal rights
150
Proportionality: what must there be a fair balance between?
1. General community interests; and
2. Protection of individuals' fundamental/human rights
151
What is the mirror principle?
Although ECtHR case law is not binding, domestic courts should follow any clear and consistent jurisprudence unless
(1) There are special circumstances; or
(2) ECtHR decisions would compel a conclusion fundamentally at odds with the UK constitution
152
HRA: what is the test for standing? Is it narrower or wider than for JR?
1. (Natural or legal) Person, NGO or group of individuals is claiming to be the victim; and
2. (1) is directly affected by state action
Narrower than 'sufficient interest' in JR
153
HRA: standing - when can organisations/ groups bring an action?
Organisation/group is claiming that their rights (enjoyed as an organisation) have been violated (and not bring an action on behalf of people whose rights may have been violated)
154
HRA: standing - when will indirect victims have standing?
-Close relatives of deceased person where complainants allege a violation of the right to life (exceptional)
-Applicant without close relative status when there is an esp. egregious violation of ECHR (very exceptional circumstances)
155
HRA: what is the time limit for bringing an action? When can an extension be given?
-Within 1 year of the date of act complained of
-If a continuing matter: time starts when violation ended
-Extension: may be granted in exceptional cases where 'equitable' to do so in all circumstances
156
Time limits: if a HRA claim is brought within a wider JR application, which time limits apply?
JR (stricter)
157
HRA: what is the test for jurisdiction? When does this not apply?
Test: is the person in jurisdiction of a contracting state (note: no citizenship/residency requirement)
Exceptional circumstances:
-Diplomats
-State has effective control of relevant territory and its inhabitants due to military occupation
-Gov of that territory has consented or acquiesced to the exercise of its powers
158
HRA: s6(1) places obligation on 'public authorities' to act in ECHR-compatible way. What is a public authority?
1. Core public authority: central and local gov, police, immigration officers, prisons, courts and tribunals; consider special powers, democratic accountability, public funding, obligation to act only in public interest, statutory constitution
2. Hybrid/functional public authority: functions are of a public nature; consider extent to which, in carrying out function, body is publicly funded, whether exercising statutory power, relevant functions take place of central gov or local authorities, providing a public service, proximity with delegating authority
Note: private bodies have no liability under s6
159
HRA: what test is used to determine whether a state may derogate from ECHR? Which articles cannot be derogated from?
Proportionality test: in time of war or other public emergency threatening life of nation, state may derogate to the extent strictly required by the exigencies of the situation
Cannot derogate from Art.2 (except from war), Art.3, Art.4 (para.1) and 7
160
HRA: what is a reservation?
Contracting state, when signing/ratifying ECHR, may make its acceptance s.t. a condition which limits/varies application of ECHR to that state
161
HRA: what defence is used when s6(1) is breached?
Is a public body relying on a piece of statute?
i.e, will not be in breach if:
(a) Its actions are required by primary legislation; or
(b) It is acting in a way that gives effect to primary/subordinate legislation
162
What happens if a public authority breaches s6(1) and the defence in s6(2) is not engaged, including if a compatible interpretation is possible?
Liable under s6(1) --> s8 remedy
163
What happens if the s6(2) defence succeeds?
-Public authority is not liable
-Court can make s4 declaration of incompatibility
164
What can gov and C do in response to a s4 declaration of incompatibility?
-Gov/parl can (1) amend offending provision (s10 Remedial Order or enact statute) or (2) do nothing
-C may still be able to take case to Strasbourg for a final ruling --> should not rule out a substantive remedy
165
What does court consider when reading legislation 'so far as it is possible to do so' in a ECHR-compatible way?
Language and context: can
-Interpret a provision even if the language is clear/unambiguous
-Adopt a 'linguistically strained' interpretation
-Read down language (i.e., narrower meaning)
-Read in words/imply in provisions
166
Interpretative obligation: what can courts not do?
-Change the substance of the provision completely
-Make changes which run counter to a fundamental feature of the legislation (go 'against the grain')
-Contradict provisions in the legislation
-Repeal/delete the language used in the legislation
167
HRA: when can the minister take expediated remedial action to amend the legislation to remove the incompatibility?
There are compelling reasons to do so
168
s10 remedial action: what are the 2 different remedial procedures?
1. Standard: draft amending order must be laid before Parl for 60 days before being approved by both HoP
2. Urgent: order may be laid before Parl for approval after it is made
169
HRA: what remedies will be awarded (s8)?
-Court may grant order/ relief/ remedy within its powers as it considers just and appropriate
-Normal range: damages, declarations, injunctions, quashing orders, prohibitory and mandatory orders
170
When will Art.2 (right to life) not be breached?
End to life results from the use of force which is no more than absolutely necessary (i.e., proportionate):
(a) In the defence of any person from unlawful violence
(b) To effect a lawful arrest or to prevent the escape of a person lawfully detained
(c) In action lawfully taken to quell a riot/insurrection
171
When is there an obligation to launch an effective official investigation?
-State directly takes a life
-If 3rd party causes death (state is allowing it to happen)
Above, but for IDT/torture as well
172
HRA: what is required for an effective investigation?
-Public
-Family involved
-Independent
-Official
-Transparent
-Full
-Prompt
173
When is the positive obligation engaged for Art.2 (right to life)
State knew, or ought to have known, that there was a real and immediate risk to life, but failed to take appropriate measures
(Withdrawal of treatment: depends on life prognosis)
174
Is Art.3 (torture and IDT) an absolute right?
-Negative duty: absolute
-Positive duty: not absolute - engaged where C can show that the authorities (ought to) know of particular circumstances likely to expose him to risk of violations
175
What are the thresholds for IDT and torture?
IDT (high threshold): serious ill-treatment/ neglect - serious and wholly unacceptable (e.g., nature and context of the treatment, manner of execution, duration, physical and mental effects)
Torture (higher threshold): aggravated, deliberate and cruel form of treatment or punishment
176
What are 2 examples of the positive obligation in Art.3 being engaged?
1. Deporting/ extraditing (real risk in receiving country of being exposed to (a) a serious, rapid and irreversible decline in health resulting in intense suffering or (b) a significant reduction in life expectancy; also, under Art.6, if person (at risk of) suffering a flagrant denial of a fair trial in that state)
2. Prison sentences (potentially)
177
Art.5: people shall not be deprived of liberty except if what 2 conditions are satisfied?
1. PBL
2. Cases (i.e., restricted circumstances)
178
Art.5: what does deprivation of liberty mean?
Consider 'concrete situation', then type, duration, effects and manner of implementation of measure
-Distinction is of degree/ intensity, not nature/ substance
-Mere restrictions are insufficient
-e.g., detention in prison and 'strict' arrest
179
Art.5: does kettling amount to deprivation of liberty?
Potentially: may become a deprivation if e.g. not necessary throughout the day - proportionate and not imposed arbitrarily
180
What 4 conditions are required for PBL?
(i) Interference with ECHR right must have some basis in national law i.e., state must be able to point to a specific legal rule/regime which authorises its conduct (must not be expressed in terms of unfettered power)
(ii) Identified legal basis must be adequately accessible
(iii) Identified legal basis must be sufficiently clear for citizen to be able to regulate his conduct: must be able to reasonably foresee consequences of given action (depends on content of legal provision; field it is designed to cover; number and status of those to whom it is addressed)
(iv) Safeguards
181
Art.5: what are the 2 limbs for 'cases'?
Limb 1: allows arrests and detention on reasonable suspicion of having committed an offence (even in emergency situation)
Limb 2: allows arrest and detention when it is reasonably considered necessary to prevent committing an offence or fleeing after having done so
182
Under Art.5, a person who has been arrested and detained shall be brought promptly before a judge. What does 'promptly' mean? How does this differ for terrorism suspects and people detained outside criminal proceedings to prevent a concrete and specific offence?
-35 hours allowed (where mag had competence to examine lawfulness of arrest and detention)
-3 days and 9 hours not allowed (16-year-old; lacked other safeguards; failed to take sufficient investigative measures)
-4 days for terrorist suspects
-Prevention: matter of hours, not days
183
Art.5: a person who has been deprived of their liberty by the state ‘shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. What does this apply to?
Ongoing detention not only by a court of law, but also by other bodies of a judicial character
184
When does Art.6 (right to a fair trial) apply?
Applicant's (1) civil rights/ obligations or (2) criminal charges are being determined
-Hearing may not involve a 'trial'
-Need to be charged to make a claim (whereas for Art.5, can make a claim regardless)
185
Art.6: courts need to be independent and impartial. What does this mean?
Independence:
-Manner of appointment of members and their term in office
-Existence of guarantees against outside pressures
-Whether body presents an appearance of independence
Impartiality:
-Subjectively free of personal prejudice/ bias
-Objectively impartial: sufficient guarantees to exclude any legitimate doubt
186
Art.6: when may an applicant be entitled to (free) legal aid?
Q: whether the unrepresented litigant can present his case effectively and without obvious unfairness (threshold should not be 'very high') - consider
-Severity of penalty at stake
-Complexity of case (e.g., difficulty of understanding law) and legal issues
-Capability of litigant in person
-Volume of evidence
187
Art.6: what are the rules surrounding 'closed material' or 'closed evidence' procedures?
Suspect must be given sufficient info about allegations made against them to enable giving of effective instructions, to satisfy demands of procedural fairness
188
Art.6(1) and 6(3): person entitled to defend himself through legal assistance. What does this mean?
-Legal advice can be restricted where there is a good cause for doing so
-Lawyer should be given as counterweight to intimidating atmosphere
-Without good cause, presence of police officer, in hearing range during A's 1st consultation with solicitor, is violation
189
Art.6(1) and 6(2): right to a fair trial incl. right to remain silent and right not to incriminate oneself. What does this mean?
-Courts can draw adverse inferences in a criminal trial; judge should tell jury that adverse inferences should only be drawn where jury was satisfied that D's silence could only be sensibly attributed to their having no answer to case put to them by police
-Right not to incriminate oneself pre-supposes that P must seek to prove their case against D without resort to evidence obtained through coercion/oppression in defiance of will of accused
190
What do Art.6(1) and 6(3)(d) allow for?
-Restrictions on admissibility of evidence in legal proceedings can violate Art.6(1) if they are found to undermine the fairness of trial
-A person charged with a criminal offence has the right to (have) examine(d) witnesses against him and obtain attendance and examination of witnesses on his behalf
191
Art.8: what test is used to determine whether the state can interfere with right to respect for private and family life?
(a) In accordance with the law (i.e., PBL): adequately accessible, sufficiently clear, not unfettered power
(b) Pursuit to a legitimate aim: fair balance between general interests of community and protection of individual's fundamental rights - national security, economic well-being, prevention of disorder/ crime, protection of health & morals, protection of rights and freedom of others
(c) Necessary in a democratic society: answer a pressing social need and proportionate to a legitimate aim pursued (consider public finances)
192
Art.8: prevention of disorder/ crime. What kind of preventative measure is considered? What factors should be considered?
-DNA retention: justifiable if targeted to suspect
-Disclosure of info: cannot adopt a blanket approach of disclosing info to all contacts where not necessary
-Police records: discriminating between very and not very serious offences --> no blanket policy
-Data retention
Blanket policy --> more likely to be disproportionate
193
Art.8: Wainwright - why was Art.8 engaged with respect to protection of health and morals?
2 applicants were subjected to strip and intimate body searches while visiting an inmate in prison
-In accordance with law
-Pursued a legitimate aim (preventing crime and protecting prisoners' health)
-Not proportionate: carried out in intimate and poorly regulated manner
194
Art.8: what is 'private life'?
-Physical, moral and mental integrity (incl. sexual orientation and fulfilment)
-Incl. aspects relating to personal identity (e.g., name/picture) and person's 'zone of interaction' with others, even in a public context
195
Art.8: what is 'family'?
Broad concept: not restricted to traditional family unit (may encompass de facto 'family ties' where partners are living together outside marriage)
196
Art.8: what rights are given surrounding 'home'?
-No right to be provided with a home; merely that home life should be respected
-Person's home should be protected from invasion and intrusion
-Maintaining the situation to which a person has become accustomed, and the very permanence which gives comfort
-Quality of home life: right to be free of other interferences (e.g., noise), nuisances (e.g., smell) and the leaking of waste
197
Art.8: how is prisoners' correspondence dealt with?
-Esp. high degree of protection to prisoners' rights to communicate with their legal advisors: even more fundamental for them
-Prison authorities may only open a letter from a lawyer to prisoner when they have reasonable cause to believe that it contains an illicit enclosure that the normal means of detection have failed to disclose; suitable guarantees preventing the reading of the letter should be provided
198
Art.10: what does freedom of expression include?
Right to:
-Hold opinions
-Receive ideas and info
-Express views and opinions
Includes political opinion, journalistic freedom, artistic expression, commercial info
Does not create a general 'freedom to info'
199
Art.10: what test is used to determine whether freedom of expression can be restricted?
1. PBL: legitimate basis, sufficiently clear, sufficient safeguards
2. In pursuit of a legitimate aim: national security, prevention of disorder/ crime (i.e., protest), protection of health or morals, protecting reputation, protection of the rights of others (morality, religion, racism/ terrorism), preventing disclosure of info received in confidence, maintaining the authority and impartiality of judiciary
3. Proportionate
200
Art.10: when will 'prevention of disorder or crime (protest)' be a legitimate aim?
A reasonable apprehension of a sufficiently imminent BoP
201
Art.10: protection of health or morals - how wide a margin of appreciation is given?
Generally quite wide: no uniform European conception --> national authorities are in a better position to assess the need for any restriction to uphold their own moral code
202
Art.10: protecting reputation - what is the significance of politicians?
Politicians must display a greater degree of tolerance of criticism than ordinary citizens - limits of acceptable criticism are wider
203
Art.10: protecting the rights of others - what obligation is imposed on broadcasters under 'morality'?
Comply with taste and decency standards
Note: Art.10 can also protect tone/ manner in which ideas/ info are conveyed
204
Art.10: protecting the rights of others - how does 'religion' operate?
-ECtHR commonly allows a wide margin of appreciation (incl. regionally within states)
-Obligation to avoid, as far as possible, expressions that are gratuitously offensive to religious believers and thereby infringe their rights under Art.9, without contributing to any form of public debate capable of furthering progress in human affairs
205
Art.10: protecting the rights of others - how does 'racism/ terrorism' operate?
-ECtHR has generally provided a lower degree of protection for forms of expression which include racist comment or can be seen as supportive of terrorism, unless they promote or form part of a wider public debate
-Freedom of expression should not be upheld for ends which are incompatible with letter and spirit of ECHR
-Should not punish journalist for assisting in dissemination of statements made by another person in an interview unless there are esp. strong reasons for doing so
206
Art.10: what types of restraints are used on freedom of expression?
-Injunctions
-Confiscation of property
-Copyright laws
-Decisions to refuse immigration entry
-Limitations on election expenditure
Note: interference with free speech through prior restraint (e.g. an injunction) demands a very high level of justification
207
IHE: what is the cause of action?
If a private party wishes to invoke an ECHR right in a dispute with another private party, there must be a pre-existing cause of action against the other private party upon which to 'hang' the Convention right
208
IHE: What test is used to determine whether private info has been misused?
(a) Applicant has a 'reasonable expectation of privacy' --> engage Art.8
(b) Balancing act between competing rights in Art.8 and Art.10: was the publication necessary?
209
IHE: what is private info?
Includes info that is personal to the person who possesses it and he does not intend shall be imparted to the general public
Should consider:
-C's attributes
-Nature/place of activity in which C was engaged
-Nature and purpose of intrusion
-Absence of consent and whether it was known or could be inferred
-Effect on C
-Circumstances in which, and purposes for which, the info came into publisher's hands
No reasonable expectation of privacy in respect of info in public domain
210
IHE: when balancing between competing rights in Art.8 and 10, what is the decisive factor and what 5 criteria should be considered?
Contribution that the published photos/articles make to a debate of general interest
1. Whether the info contributes to a debate of general interest
2. How well-known the person concerned is and the subject matter of the report
3. Prior conduct of individual concerned
4. Form and consequences of publication
5. Circumstances in which photos were taken, esp. whether the person photographed consented
211
IHE: does Art.8 impose a positive obligation on contracting states to enact a legal measure requiring individuals to receive notification from press in advance of publication of info that interfered with private lives?
No:
-Impact on Art.10
-Doubts of effectiveness
-Wide margin of appreciation
212
When can the state interfere with public order rights (Art.10 and 11)?
1. PBL
2. In pursuit of a legitimate aim
3. Necessary in a democratic society (i.e., proportionate)
213
Public order: what is a public procession?
Takes place in a public place
Purpose:
(a) Demonstrate support for or opposition to the views/actions of any (body of) persons
(b) Publicise a cause/campaign
(c) Mark/commemorate an event
214
Public order: when does notice need to be given for a public procession, what must it contain, how must it be delivered, and when is a public procession exempt?
-Min 6 clear days' notice (unless it is not reasonably practicable to give advance notice)
-Must contain: date, time, details of route, names and addresses of organisers
-Delivery: post or handed to a police station within a relevant police area
-Exemptions: commonly/ customarily held in proposed police area(s) + funeral procession organised by funeral director in normal course of business
215
When can police impose conditions on public processions?
Senior police officer reasonably believes that:
-It may result in serious public disorder, serious damage to property or serious disruption to community life
-Organisers' purpose is to intimidate others with a view to compel them to (not) do an act they have a right (not) to do (i.e., degree intended by organisers to compel another person to act against their will)
Directions must appear to senior police officer to be necessary to prevent such disorder, damage, impact or intimidation
216
What are required for conditions for public processions?
-In writing
-'Necessary' to deal proportionately with the anticipated problems
-Sufficient reasons given to procession organisers for the need to impose conditions
217
What offences and defences are available for public processions?
-Offence for procession organiser/ participant to fail to comply with conditions if, at the time the person fails to comply, they (ought to) know that the condition has been imposed
-Offence to incite another to commit an offence
-Defence: failure arose from circumstances beyond D's control
218
When can apply for/get a prohibition order be applied for, inside and outside of London?
Non-London: chief police officer has power to apply for a prohibition order form the local authority if s/he reasonably believes that powers under s12 will be insufficient to prevent the holding of public procession in (part of) district from resulting in serious public disorder
London: Commissioner of Police for the Metropolis/City of London can make a prohibition order if they reasonably believe that orders under s12 will be insufficient to address concerns over serious public disorder in their police area
Max: 3 months
219
When can police impose conditions on a public assembly?
Senior police officer reasonably believes that:
(a) It may result in serious public disorder, serious damage to property or serious disruption to community life; or
(b) Organisers' purpose is to intimidate others with a view to compel them to (not) do an act they have a right (not) to do
220
What is a public assembly?
A meeting comprising of 2 or more persons in a public place that is wholly or partly open to the air
(Note: purpose is irrelevant; no obligation to give advance notice)
221
When can a senior police officer impose conditions on those organising/ attending assemblies?
They appear to him necessary to prevent the risks of disorder, damage, impact or intimidation
222
Public order: when do the police have powers to instigate or make a prohibition order? When do they not?
Public processions and trespassory assemblies: police have powers
Public assemblies: police lack powers
223
If conditions are imposed in advance of a public assembly, what is required?
-In writing
-Proportionate
-Reasons given
224
What is a trespassory assembly?
1. Consists of at least 20 people
2. Held where public has no/ limited right of access
3. Land is (partly) in the open air
225
When can chief police officer apply for a prohibition order from a local authority for a trespassory authority?
1. They reasonably believe a trespassory assembly is intended to be held;
2. It is likely to be held without land occupier's permission or conducted to exceed the limits of any permission/ right of access; and
3. It may result in serious disruption to community life or significant damage to land, building or monument (where this is of historical, architectural, archaeological or scientific importance)
226
What is a BoP?
-Harm is actually/likely to be done to a person; or
-Harm is actually/likely to be done to a person's property in his presence; or
-A person is in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance
227
What does BoP generate police powers to do?
-Arrest
-Detention
-Bound over
-Enter a meeting to prevent anticipated BoP and ask participants to disperse
-Entry without a warrant to prevent BoP
228
When can common law powers for BoP be used? (2 conditions)
1. Reasonable apprehension of a sufficiently imminent BoP
2. Measure taken was proportionate, deployed in good faith and non-arbitrary
