Separation of Powers Key Cases Flashcards
1
Q
A and Others v Sos for Home Dep: facts
A
- s23 Anti-Terrorism, Crime and Security Act 2001 permitted the indefinite detention without trial and deportation of foreign prisoners
- prisoners held in Belmarsh challenged their detention on the grounds that such detentions breached the ECHR
2
Q
A and Others v Sos for Home Dep: principle
A
- The HoL made a declaration under s4 HHRA 1998 that s23 of the 2001 Act was incompatible with Art 14 ECHR (prohibition of discrimination) as it was disproportionate and discriminated against foreign prisoners on basis of their nationality or immigration status
- note: this decision led to Parliament deciding to introduce control orders instead (which have now been replaced by TPIMs)
3
Q
Airedale NHS Trust v Bland: facts
A
- victim of Hillsborough spent the following three years in persistent vegetative state
- patient could not give or withhold consent to treatment, so hospital (with parent’s consent) applied to court for declaration to stop feeding him by tube, which would be akin to removing life support, would not be murder
4
Q
Airedale NHS Trust v Bland: principle
A
- court classified withdrawal of feeding tube as omission and contrasted it with administering a fatal dose of a drug, which can be an act
- taking active steps to accelerate death could never be lawful, but in some circumstances, inc. here, withholding life sustaining treatment could be lawful
5
Q
Ghaidan v Godin-Mendoza: facts
A
- when property tenant died in property, his homosexual partner claimed he had inherited tenancy as surviving spouse under Rent Act 1977. Sch. 1. para. 2 of that Act stated that law applied to “a person who was living with original tenant as his or her wife or husband”
- at issue was how that paragraph should be interpreted in light of HRA 1998
6
Q
Ghaidan v Godin-Mendoza: principle
A
- court held Sch. 1 para. 2 of 1977 Act violated Articles 8 and 14 ECHR - there was no justification for difference in treatment of heterosexual and same sex couples so, under s3 HRA 1998 sch. 1 para 2. should be interpreted to comply with ECHR
- an example of “judge-made law” arguably contrary to strict SoP
7
Q
M v Home Office: facts
A
- court ordered deportation order made against M to be delayed
- M was deported, and court ordered his return
- However, Home Sec cancelled return, believing order not to apply
8
Q
M v Home Office: principle
A
- executive, even when acting on behalf of Crown, does not share immunity from law as does Crown
- in this case, injunction was issued against Home Sec, he was in contempt when he ignored it
9
Q
McGonnell v UK: facts
A
- applicant had made series of unsuccessful planning applications in Guernsey A development plan preventing use he requested had been approved by Deputy Bailiff who also sat on Guernsey appeal board
- appellant complained that this had prevented fair hearing
10
Q
McGonnell v UK: principle
A
- case highlights importance of independent judiciary. Lord Chancellor, who sat in HoL as well as being head of judiciary, stated he would not sit on case concerning the exec so as to avoid fettering his judicial independence
Note: LC since been replaced by LCJ under the CRA which further entrenches separation
11
Q
R v A (No 2) (Complainant’s Sexual History): facts
A
- during his rape trial, defendant had argued that to deny him right to submit evidence of his past consensual activity with claimant (as per s41 Youth Justice and Criminal Evidence Act 1999) denied him his right to fair trial under Article 6 ECHR
12
Q
R v A (No 2) (Complainant’s Sexual History): principe
A
- Under s3, court had power to interpret 1999 Act such that evidence of complainant’s previous sexual history was admissible where it was so relevant to issue of consent that by not including it fairness of trial would be brought into question
- In another example of judge made law, Lord Steyn advocated court taking active approach: “section 3 shows it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so.”
- Lord Hope (dissenting) preferred less involved approach. Did not think courts should act as legislatures: “the rule of construction which section 3 lays down is quite unlike any previous rule of statutory interpretation. There is no need to identify an ambiguity or absurdity. Compatibility with Convention rights is the sole guiding principle… but the rule is only a rule of interpretation. It does not entitle the judges to act as legislators… their task is still one of interpretation. The compatibility is to be achieved only so far as this is possible. Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible”.
13
Q
R (Evans) v AG
A
see PS
14
Q
Shaw v DPP: facts
A
- man who had published directory for prostitutes (for a fee) was charged with “conspiracy to corrupt public morals”
- not a crime covered by Obscene Publications Act 1959
- conviction upheld by HoL on basis of centuries-old common law offence which not not been used in living memory
15
Q
Shaw v DPP: principle
A
- further example of “judge-made law” - court did not consider 1959 Act to cover these circumstances and, in reviewing old law, effectively created new offence not considered by Parliament. This process can undermine clarity and consistency in the law.
- Lord Reid dissented on grounds that to use this forgotten common law crime would be going too far. He argued scope of criminal law is matter of public policy and should be decided by Parliament alone.
