Case Law Flashcards

Question

*Padfield v Minister of Agriculture, Fisheries and Food* [1968] AC 997

Answer 1

Limits on discretion - no unfettered discretion

Answer 2

Limits on discretion - Must not delegate discretion - In Bernard v National Dock Labour Board [1953] 2 QB 18, the court considered the issue of delegating discretion. - Involved a scheme where dockworkers were selected for employment by the National Dock Labour Board. - The Board had discretion in selecting workers but delegated this discretion to local managers. - Held that while discretion could be delegated, it must be exercised within the limits of the authority given. If discretion is exercised improperly or unfairly, the decision can be challenged in court.

Answer 3

Limits of discretion - cannot refuse to exercise discretion - revolved around the Secretary of State's refusal to exercise discretion regarding a matter within their authority. The Fire Brigades Union challenged this refusal. - House of Lords ruled that where a statute grants discretionary power to a public authority, the authority must exercise that discretion reasonably and not abuse it. - Secretary of State was found to have acted unreasonably in refusing to exercise discretion, thus the decision was quashed.

Answer 4

Limits on discretion - Must exercise discretion in the public interest

Answer 5

Facts: * Set price of milk + differential for transport costs * South-west region: price too low to cover transport At issue: nature and extent of the Ministers discretion/duty Minister- Duty: consider a complaint fairly Discretion: unfettered – refer complaint or not, as he may think fit Appellants- Duty: refer every genuine complaint Discretion: not unfettered Plus: Misdirected in law or took into account irrelevant considerations Outcome: Intention of Parliament = discretion used to promote the policy and objects of Act Policy and objects = determined by construing the Act as a whole Construction = always a matter of law for the court (Lord Reid, p.1030) + Minister acted unlawfully by: * refusal to consider the relevant matter * misdirecting himself in point of law * taking into account some wholly irrelevant or extraneous consideration * Not taking into account a relevant consideration (Lord Upjohn, p.1058) = 2 related principles: purpose and relevance

Answer 6

Statutory purpose = “promoting development” Interpreted by court to mean = “sound economic development” On the facts court found project was “unsound” Decision was made for improper purpose and based on irrelevant considerations For a critique, see: Irvine, Human Rights, Constitutional Law and the Development of the English Legal System (Oxford, 2003)

Answer 7

* Sunday Entertainment Act 1932, s.1(1): * Granting of licences “subject to any conditions as the authority think fit to impose” * Imposed condition: no children under 15 should be to Sunday performances * Claim: condition was unreasonable * Outcome: not unreasonable, not unlawful

Answer 8

* The case involved the indefinite detention of nine foreign prisoners in the UK prison ‘Belmarsh’ without trial under section 23 of the Anti-Terrorism, Crime and Security Act 200112. * These individuals were threatened with deportation on the basis that there was evidence they posed a national security threat House of Lords held that the provisions under which detainees were being held at Belmarsh prison (section 23) were incompatible with Article 5 of the European Convention of Human Rights However, the Home Secretary was not required to release the prisoners The provision had the effect of discriminating between foreign nationals and nationals of the state As a result, the Lords made a declaration of incompatibility under Section 4 of the Human Rights Act 1998

Answer 9

Addressed the issue of whether a public authority could be liable for misfeasance in public office. * Involved allegations that a public official had acted maliciously and dishonestly in denying the claimant's application for a lease of land. * The Privy Council held that in order to establish liability for misfeasance in public office, it was necessary to prove that the defendant had acted with malice, meaning that they had deliberately done something they knew to be wrong or had acted with reckless indifference to whether their actions were wrong or not. The Court clarified that **malice in this context did not require personal spite or ill-will, but rather a conscious wrongdoing**. Therefore, the **claimant had to demonstrate that the public official had acted in a manner inconsistent with the duties of their office and with the intent to injure the claimant**

Answer 10

Bank Mellat v Her Majesty's Treasury (No 2)[2013] UKSC 38The approach ... can be summarised by saying that it is necessary to determine (1) whether the **objective of the measure is sufficiently important to justify** the limitation of a protected right, (2) whether **the measure is rationally connected to the objective**, (3) whether **a less intrusive measure** could have been used without unacceptably compromising the achievement of the objective, and (4) The question is **whether the significance of the measure's impact on the rights of the individuals it affects, when compared to the importance of the objective it serves and the extent to which the measure contributes to achieving that objective, is greater than the importance of the objective itself**.

Answer 11

Magna Carta's significance lies in its foundational role in shaping modern concepts of rights and freedoms that protect individuals from excessive government power. Its principles have endured through centuries, influencing legal systems and political thought globally.

Answer 12

* Case involved the denial of access to an inmate's legal correspondence. * The Lords ruled that where a statute confers discretionary power, the exercise of that power is subject to judicial review. It was held that the Secretary of State's decision was reviewable and must be exercised reasonably. * Underscored the importance of judicial scrutiny over administrative decisions even before the Human Rights Act 1998 came into effect, emphasizing the principle of legality.

Answer 13

“[M]uch of the Convention reflects the common law...That is why the United Kingdom government felt able in 1950 to accede tothe Convention without domestic legislative change. So the adoption of the text as part of domestic law is unlikely to involve radical change in our notions of fundamental human rights.” Lord Hoffman

Answer 14

No retrospective effect * Defendant, Lambert, was charged with possession of a controlled drug with intent to supply. She was a registered drug addict who had been receiving prescribed heroin. * However, she was not informed of the specific quantity of heroin she was entitled to possess under the Misuse of Drugs Act 1971. * Lambert argued that she could not be convicted of possession with intent to supply because she did not know that her possession exceeded the prescribed limit. HoL held that ignorance of the law was not a defense. Established that individuals are presumed to know the law, including statutory limits on possession of controlled substances. Therefore, Lambert's lack of knowledge of the prescribed limit did not absolve her from criminal liability.

Answer 15

Human Rights Act 1998 is an Act of the UK Parliament * Notion of a ‘constitutional statute’ * Issue revolved around the conflict between EU law and UK law, particularly regarding the metrication of goods sold in pounds and ounces. Thoburn, a greengrocer, was prosecuted by the Sunderland City Council for selling goods in imperial measures contrary to EU regulations that mandated metric measures. * Court held that the Weights and Measures Act 1985 retained its constitutional status, and it could not be impliedly repealed by subsequent legislation, including the European Communities Act 1972. This principle was termed "the metric martyrs" doctrine. * Court ruled that Parliament could only impliedly repeal or amend statutes of constitutional importance through express language.

Answer 16

* Case revolved around the interpretation of the term "spouse", to only include married couples, or if it could be interpreted more broadly to include same-sex partners who were in a long-term committed relationship akin to marriage, in the Rent Act 1977. * Ghaidan, had lived with his male partner, Mr. Godin-Mendoza, in a flat that Mr. Godin-Mendoza had rented under a protected tenancy. * When Godin-Mendoza died, Ghaidan sought to succeed the tenancy as his surviving spouse. HoL held that the term "spouse" could be interpreted in a way that includes same-sex partners in committed relationships, under the principle of reading legislation in a way that is compatible with human rights. The court relied on the European Convention on Human Rights, specifically Article 8 (right to respect for private and family life), to interpret the legislation in a manner that avoids discrimination against same-sex couples

Answer 17

* Anderson, who was a British national facing extradition to the United States on criminal charges related to the fraudulent sale of software. * A argued that his extradition would violate his rights under the European Convention on Human Rights (ECHR), specifically Article 8 which protects the right to respect for private and family life. House of Lords held that extradition decisions should consider whether extradition would disproportionately interfere with the individual's rights under Article 8, balancing these against the public interest in extradition. **This decision established a precedent for considering human rights in extradition proceedings in the UK.**

Answer 18

* Bellinger sought a decree of nullity of her marriage to Michael Bellinger on the grounds that Michael was born a biological male but underwent gender reassignment surgery and was legally recognized as a female. * Elizabeth argued that their marriage was void because it was between two individuals of the same biological sex, which was prohibited under the Marriage Act 1949 While the House of Lords ruled against Elizabeth Bellinger's request for legal recognition of her gender identity for marriage purposes, they also**recognized that the existing law was incompatible with human rights principles and issued a declaration of incompatibility.** This decision paved the way for legislative reform to address the legal recognition of gender identity within the context of marriage.

Answer 19

* S underwent sterilization procedure performed by NHS. Unexpectedly became pregnant and gave birth to child with severe disabilities. S claimed NHS failed to sufficiently inform her of the risks and sought damages for raising the child * Court of Appeal held that the Trust had breached its duty of care and S entitled to damages. * CoA made a declaration of incompatibility under the Human Rights Act 1998. * Found that the existing law failed to provide an adequate remedy for the violation of Mrs. Smith's right to respect for her private and family life under Article 8 of the Convention.

Answer 20

* M was detained at Heathrow Airport under Schedule 7 of the Terrorism Act 2000. * M was carrying encrypted files containing documents leaked by Edward Snowden, a former NSA contractor. * During his detention, electronic devices were seized and examined by authorities Court of Appeal ruled that Miranda's detention under Schedule 7 of the Terrorism Act 2000 was lawful, as it served a legitimate purpose in safeguarding national security. However, Court found that the examination of Miranda's electronic devices exceeded what was necessary and proportionate, infringing his right to freedom of expression under Article 10 of the ECHR. So, issued a declaration of incompatibility under section 4 of the Human Rights Act 1998, stating that certain provisions of the Terrorism Act 2000 were incompatible with the European Convention on Human Rights. This declaration **highlighted the conflict between domestic legislation and human rights obligations, prompting Parliament to consider amendments to bring the legislation in line with human rights standards.**

Answer 21

Courts and tribunals must take into account any judgments, etc from theEuropean Court of Human Rights when determining a question that isconnected with a Convention Right (s.2(1)) ‘While...[ECtHR] case law is not strictly binding, it has been held thatcourts should, in the absence of some special circumstances, follow **any clear and constant jurisprudence of the Strasbourg court**. [...]The dutyof national courts is to keep pace with the Strasbourg jurisprudence as itevolves over time: no more, but certainly no less.’

Answer 22

* Involved the trial of two individuals for murder. The prosecution relied on hearsay evidence, which is typically not admissible in court due to its potential unreliability. * However, the prosecution argued that the evidence fell within certain exceptions under the Criminal Justice Act 2003. The outcome of the case was that the Supreme Court held that the use of hearsay evidence in the trial did not violate the defendants' rights to a fair trial under the European Convention on Human Rights. The court found that the procedures used to admit and assess the hearsay evidence were fair and did not undermine the overall fairness of the trial. Therefore, the convictions were upheld, affirming the decision of the lower court. Deviation from section 2 of the Human Righst Act 1998

Answer 23

* HoL examined the definition of a public authority under the Human Rights Act 1998. * The case involved a dispute over liability for repairs to a church wall that had collapsed onto a neighboring property. * The outcome of the case was **significant in clarifying the definition of a public authority**. * The House of Lords held that a body could be considered a public authority for the purposes of the Human Rights Act if it performed functions of a public nature, even if it was not directly funded by the government. * In this case, the **Parochial Church Council was deemed a public authority because it performed functions that were closely connected to the state**, such as maintaining a place of worship that served the public. * Therefore, the ruling **expanded the scope of what constitutes a public authority under the Human Rights Act, highlighting that entities carrying out functions of a public nature, regardless of their funding source, could be subject to the Act's provisions**

Answer 24

Existing law must be read in a manner compatible with such rights UKSC addressed issue of whether a claimant who has settled a personal injury claim can subsequently pursue a claim for deceit against the defendant based on the same facts. Involved a husband and wife, where the husband had been injured in a car accident and had settled his personal injury claim with the insurance company of the driver responsible. Later, the husband discovered that his wife had deliberately misled him about the severity of his injuries during the settlement negotiations. Ruled that the husband could pursue a claim for deceit against his wife, despite having settled the personal injury claim. Husband was entitled to seek damages from his wife for deceit based on her fraudulent misrepresentation, even though he had settled his personal injury claim with the insurer.

Answer 25

* Involved a prisoner, Simms, who was denied permission to be interviewed by a journalist. * Simms argued that this denial breached his rights under Article 10 of the European Convention on Human Rights (ECHR), which protects freedom of expression. House of Lords held that the denial of access to journalists constituted a violation of Simms' rights under Article 10 of the ECHR. They emphasized the importance of freedom of expression in a democratic society and the role of the media in facilitating public debate and accountability. Lords ruled that any restrictions on prisoners' communication with the media must be justified and proportionate, taking into account the interests of both the prisoner and the wider public. This case **established the principle that prisoners retain certain rights to freedom of expression, including the right to communicate with journalists, subject to legitimate restrictions necessary for the maintenance of prison security and order.**

Answer 26

* European Court of Human Rights considered whether the United Kingdom violated Article 10 of the European Convention on Human Rights, which protects freedom of expression. * The case involved the seizure and destruction of a book by UK customs authorities, claiming it contained obscene material. * Applicant, Handyside, argued that this action violated his right to freedom of expression. * Ruled that while states have the right to limit freedom of expression to protect morals, the interference in this case was not necessary in a democratic society * Judgment affirmed the importance of freedom of expression and set a precedent for balancing this right against other societal interests, such as the protection of morals, in a democratic society.

Answer 27

* Addressed the issue of the right to a fair trial under Article 6 of the European Convention on Human Rights. * The case involved individuals who were convicted of violating Swiss neutrality laws by participating in anti-war demonstrations during the Gulf War. * Applicants argued that their convictions violated their right to a fair trial because the trial judge had made prejudicial remarks during the proceedings. * They also claimed that the Swiss Federal Tribunal, the highest court in Switzerland, failed to adequately review these complaints. * The **ECtHR ruled that Switzerland had violated the applicants' right to a fair trial, emphasizing the importance of impartiality and effective review mechanisms in safeguarding this fundamental right**

Answer 28

Concerned an Austrian journalist who was convicted for defamation due to an article criticizing a political party. The Court held that the journalist's conviction violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. Questioning politicians suitability for office Protection of opinions and value judgements “... a careful **distinction** needs to be made between **facts and value judgements**.The existence of facts can be demonstrated, whereas the truth of value judgements is no susceptible of truth...[**requiring proof of these judgements**] is impossible... and **infringes freedom of opinion**.” Importance of a Free Press "**These principles are of particular importance as far as the press is concerned**. Whilst the press must not overstep the bounds set, inter alia,for the ‘protection of the reputation of others’, it is **nevertheless incumbent on them to impart information and ideas on political issues**...Not only does the press have the task of imparting such information and ideas: the **public has a right to receive them... Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders**.”

Answer 29

* Iceland had wrongfully interfered with a journalist's right of expression by prosecuting him over articles about police brutality. T a journalist wrote two articles about police brutality in a newspaper. * On account of certain parts of the articles he was charged with the offence of defaming civil servants, contrary to Art. 8 of Iceland's General Penal Code of 1940. He was convicted and fined. * Claimed that this violated his right to freedom of expression contrary to the European Convention on Human Rights 1950, Art. 10 and that he had not had a hearing by an impartial tribunal contrary to Art. 6(1) of the Convention. * Held, that (1) Art. 10 of the Convention had been violated. Such interference by an Icelandic public authority was not necessary in a democratic society.

Answer 30

* Journalist who aired an interview with young individuals making inflammatory statements about immigrants, which resulted in criminal charges against the journalist under Danish law prohibiting hate speech. * ECtHR held that while the statements made by the youths were offensive and racist, the journalist was not responsible for their content. * Court emphasized the importance of freedom of expression, particularly in the context of political discourse and debate, even when it involves controversial or offensive speech. * ECtHR ruled that the journalist's conviction violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. Established the principle that the press should not be held criminally liable for broadcasting offensive views expressed by others, provided that the journalist did not endorse or promote those views.

Answer 31

* The case involved a British newspaper, The Observer, which published an article containing information derived from a leaked official document concerning the British government's efforts to prevent the export of certain arms to Iran. * The UK government sought to prevent the publication of further information contained in the leaked document, arguing that it could compromise national security. * Ultimately ruled in favor of the UK government, stating that the interference with freedom of expression was justified by the need to protect national security. * Highlighted the ECtHR's recognition of national security as a legitimate aim that may justify limitations on freedom of expression, particularly in cases involving sensitive information that could compromise the security of a nation.

Answer 32

* Involved the seizure of copies of a magazine by Dutch authorities, claiming that it contained sensitive information about a military operation. * The magazine argued that the seizure violated its right to freedom of expression under Article 10 of the European Convention on Human Rights. * Court found that the Dutch authorities had not provided sufficient justification for the seizure and had not adequately balanced the right to freedom of expression against the legitimate aim of national security. * Therefore, the ECtHR ruled that the seizure constituted a violation of the magazine's right to freedom of expression under Article 10 of the Convention. * Case underscores the principle that **while national security is a legitimate aim, any restrictions on freedom of expression must be necessary and proportionate to achieve that aim.**

Answer 33

* Involved the screening of a controversial film that contained scenes deemed offensive by Austrian authorities. * Austrian government prohibited the screening of the film, citing concerns about protecting the reputation of individuals depicted in the film. * The Court found that the Austrian authorities had failed to strike a fair balance between the right to freedom of expression and the protection of reputation. * ECtHR ruled that Austria had violated the right to freedom of expression under Article 10 of the European Convention on Human Rights. * Established the **principle that while the protection of reputation is a legitimate aim, any restrictions on freedom of expression must be carefully balanced and proportionate to avoid undue interference with fundamental rights.**

Answer 34

* Princess Caroline of Monaco's complained against Germany for allowing the publication of photographs depicting her in private settings. * ECtHR acknowledged that freedom of expression, including the press's right to report on matters of public interest, is essential in a democratic society. * However, it also recognized the importance of protecting individuals' privacy rights, particularly when it comes to their private lives. * Court found that the German courts had appropriately balanced the right to freedom of expression with the protection of Princess Caroline's privacy and reputation. * Therefore, the publication of certain photographs was deemed unlawful, as it did not serve a legitimate public interest and unjustifiably infringed upon her privacy rights. The case **underscores the importance of considering the legitimate aims, such as protecting the reputation of others, when assessing the scope of freedom of expression, especially in the context of privacy rights.**

Answer 35

Protection of the reputation or rights of others * Garaudy, a French writer and philosopher, who was convicted in France for questioning the Holocaust and making anti-Semitic statements. * G argued that his conviction violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. * However, the ECtHR held that the French authorities' interference with Garaudy's freedom of expression was justified. * Found that Garaudy's statements had the potential to incite racial hatred and undermine social cohesion, thus **serving as a legitimate aim in restricting his freedom of expression.** * Turkish politician, Perinçek, who was convicted in Switzerland for denying the Armenian genocide. * P argued that his conviction violated his freedom of expression. * However, the ECtHR held that Switzerland's criminalization of denying the Armenian genocide was not necessary in a democratic society and went beyond what was proportionate to achieve the legitimate aim of protecting the reputation of others. * Emphasized the **importance of robust debate and differing opinions in democratic societies, particularly on sensitive historical and political issues.** Interference justified in G v F Criminalisation went too far in P v S

Answer 36

Maintaining the authority and impartiality of the judiciary * Case arose when the Sunday Times published an article critical of a judge's conduct during a trial. * The judge subsequently issued an injunction preventing further publication of the article, citing concerns about the potential impact on public confidence in the judiciary. * Ruled that the injunction imposed by the judge did not violate the Sunday Times' right to freedom of expression. * Court found that the injunction was necessary to prevent harm to the administration of justice and to uphold public confidence in the judiciary. Courts will restrict the margin of appreciation where press freedom is restricted

Answer 37

* Involved a Slovakian journalist who had criticized the Prime Minister and other government officials in articles published in a weekly magazine. * Journalist was subsequently sued for defamation by the Prime Minister and other officials, and the Slovakian courts ruled against him. * Court found that the articles in question **concerned matters of public concern, specifically political issues and the conduct of public officials**. Therefore, they were **deemed to be within the scope of protected speech under Article 10** * Also noted that freedom of expression is not an absolute right and can be subject to restrictions, such as those aimed at protecting the reputation or rights of others. * In this case, the Court found that the **interference with the journalist's freedom of expression was justified by the legitimate aim of protecting the reputation and rights of the individuals mentioned in the articles**.

Answer 38

* Involved a journalist who had written articles critical of Liechtenstein's government and judiciary. The government fined the journalist for defamation, leading to a legal dispute. * Court ultimately found that the interference with the journalist's freedom of expression was not justified. * Concluded that the fines imposed on the journalist for defamation were disproportionate and excessive, given the context of the articles and the public interest in the issues discussed. * Therefore, the Court ruled that Liechtenstein had violated Article 10 of the European Convention on Human Rights by imposing fines on the journalist for exercising his freedom of expression. * Underscores the **importance of ensuring that limitations on freedom of expression are necessary, proportionate, and compatible with democratic principles**

Answer 39

* German magazine publisher, Markt Intern Verlag GmbH, published a magazine containing an advertisement for an alcoholic beverage. * German law at the time prohibited advertising for alcoholic beverages with more than 15% alcohol content. * Publisher argued that this restriction violated its freedom of expression rights under Article 10 of the European Convention on Human Rights (ECHR). * The ECtHR held that while commercial expression, such as advertising, is protected under Article 10, it can be subject to restrictions. * This case highlights the ECtHR's **approach to balancing freedom of expression with other legitimate interests, such as public health concerns, in the context of commercial expression**

Answer 40

“..whereas article 10 of the Convention ... proceeds to state afundamental right and then to qualify it, **we ...proceed ... upon anassumption of freedom of speech, and turn to our law to discover the established exceptions to it.**” Lord Goff Ultimately, the case underscored the **importance of striking a balance between national security concerns and the right to freedom of expression in the UK legal framework**. It established that while certain limitations on freedom of expression may be justified in specific circumstances, any **restrictions must be proportionate and necessary in a democratic society.**

Answer 41

The common law meets the standards of Art.10 Court stressed that **any restriction on freedom of expression must be necessary and proportionate, meeting the standards set by Article 10 of the ECHR**. Therefore, while the common law allowed for the injunction in this case, it had to be applied in a manner consistent with the requirements of the European Convention on Human Rights.

Answer 42

State Security Laws: Breach of Confidence Disclosing information which you know or ought to know relates to state secrets * Attorney-General sought an injunction to prevent The Observer newspaper from publishing an article that contained confidential information about a former British intelligence officer. * The newspaper argued that such an injunction would violate its right to freedom of expression under Article 10 of the ECHR. * House of Lords found in favor of the Attorney-General and granted the injunction. * However, the court stressed that any restriction on freedom of expression must be necessary and proportionate, meeting the standards set by Article 10 of the ECHR. * Therefore, while the common law allowed for the injunction in this case, it had to be applied in a manner consistent with the requirements of the European Convention on Human Rights.

Answer 43

State security: Official Secrets Act 1911 * Issue revolved around the interpretation of the Official Secrets Act 1911. * Defendant, Chandler, had leaked information regarding a police investigation to a suspect. * Despite the information not being classified as secret, the** HoL ruled that the disclosure still had the potential to undermine the interests of the state, and thus Chandler could be prosecuted under the Official Secrets Act 1911.** * This case established a broad interpretation of the Act, extending its scope beyond just the disclosure of classified information to encompass any action that could harm the interests of the state, even if the information itself was not considered secret.

Answer 44

State Security Law; Official Secrets Acts * Sh, former intelligence officer, was charged with offenses under the Official Secrets Act 1989. * Had disclosed classified information to a newspaper regarding alleged misconduct and inefficiency within the UK intelligence services. * HoL held that Shayler's disclosures did not fall within the defenses provided by the Official Secrets Act. * Court emphasized the importance of protecting national security and classified information, even in cases where individuals may believe they are acting in the public interest. * Sh was convicted of offenses under the Official Secrets Act. * Highlights the **limitations on the defense of public interest in cases involving breaches of official secrecy laws**.

Answer 45

Repeals Official Secrets Acts; three separate espionage offences: obtaining or disclosing protected information; obtaining or disclosing trade secrets; and assisting a foreign intelligence service The National Security Act of 2023 represents a significant step in the reform of official secrets acts, aiming to **modernize legislation, enhance protection of national security, balance secrecy with transparency, protect whistleblowers, align with international standards, address technological challenges, and promote a culture of national security**

Answer 46

State security laws; concerns about protection of journalistic sources Investigatory Powers Act 2016 is significant in the context of concerns about the protection of journalistic sources because it has implications for press freedom, privacy rights, and the ability of journalists to fulfill their role as watchdogs in society.

Answer 47

Defamation and Malicious Publication (Scotland) Act 2021 represents a significant reform of defamation law, balancing the protection of reputation with the preservation of free speech rights. It reflects Scotland's commitment to modernizing its legal framework to address evolving challenges in communication and media while upholding fundamental principles of justice and fairness.

Answer 48

DA 2013 s.1: ‘Making false statements that injure the reputation of a person’ –need to show evidence of actual harm caused, or likelihood of future harm

Answer 49

* "PJS," sought an injunction to prevent the publication of details regarding his extramarital activities. * Claimant argued that the publication would infringe upon his right to privacy and potentially harm his family. * Court ruled in favor of PJS, granting the injunction and preventing the publication of the details. * Emphasized the potential harm to PJS and his family if the information were to be disclosed, outweighing the public interest in knowing the details of his private life. Case underscored the **significance of privacy rights in the context of media reporting and highlighted the courts' role in balancing individual privacy against the public interest in freedom of expression.**

Answer 50

“Contempt of court is the established, if unfortunate, name given to the species ofwrongful conduct which consists of interference with the administration of justice. Itis an essential adjunct of the rule of law. Interference with the administration ofjustice can take many forms”

Answer 51

* Case stemmed from the publication by the Sunday Times newspaper of an article discussing allegations of corruption and misconduct against certain judges. * ECtHR held that while the protection of the administration of justice was a legitimate aim justifying restrictions on freedom of expression, any interference with this right must be proportionate. * Found that the Contempt of Court Act 1981 provided adequate safeguards to prevent arbitrary or excessive restrictions on freedom of expression in cases involving prejudicial publications. * Affirmed the principle that **freedom of expression may be subject to restrictions to protect the administration of justice, but such restrictions must be proportionate and accompanied by adequate safeguards to prevent abus**

Answer 52

Contempt of Court Act 1981: prejudicial publications * Issue revolved around whether certain newspaper articles amounted to contempt of court under the Contempt of Court Act 1981 due to their potentially prejudicial nature. * The articles in question were published during ongoing criminal proceedings, and there were concerns that they could influence the jury or undermine the fairness of the trial. * Court held that the publications had the potential to prejudice the administration of justice by influencing the opinions of potential jurors or witnesses. * Highlighted the **importance of respecting legal restrictions on reporting during criminal proceedings to uphold the right to a fair trial for all parties involved**. limitation of scope of strict liability rule - risk of serious prejudice

Answer 53

Regulation of the Media; TV broadcasting: Communications Act 2003. * The Pro-Life Alliance alleged that the BBC's decision to exclude its party election broadcast was biased and violated its rights under the European Convention on Human Rights, particularly Article 10 (freedom of expression). * HoL held that while the BBC had a duty to maintain impartiality in its coverage, this did not extend to providing equal airtime to all political viewpoints. * Court emphasized the importance of editorial discretion and the right of broadcasters to exercise judgment in determining what content to air. * Reaffirmed the principle that freedom of expression does not necessarily entail equal access to media platforms, particularly in the context of political broadcasts. * Highlighted the **balance between freedom of expression and editorial discretion in the regulation of media, with the courts ultimately affirming the BBC's right to exercise editorial judgment in its coverage of political issues**.

Answer 54

The Court of Session (sitting in its capacity as the Scottish Electoral Registration Court) issued adeclaration of incompatibility under HRA, s 4

Answer 55

Enhanced scrutiny injudicial review cases Involved a Turkish national who faced deportation from the UK due to criminal convictions. Bugdaycay argued that his deportation would violate his rights under the European Convention on Human Rights (ECHR), particularly the right to respect for private and family life. HoL ruled that the ECHR was not directly enforceable in domestic law. However, they recognized that the UK government had signed the ECHR and had an obligation to act in accordance with its principles. Therefore, the courts had the authority to review administrative decisions, including deportation orders, to ensure they were compatible with the principles of the ECHR. Established the principle that **although human rights protections were not explicitly entrenched in UK common law, courts could still review government actions for compliance with international human rights standards**

Answer 56

* "T," challenged the lawfulness of his detention without trial under the common law power of the Crown. * Argued that his detention violated his fundamental human rights, particularly his right to liberty under Article 5 of the European Convention on Human Rights (ECHR). * Held that while the common law recognized the Crown's authority to detain individuals in certain circumstances, this power was subject to limitations imposed by fundamental human rights. * Emphasized that the exercise of common law powers must be compatible with the rights guaranteed under the ECHR. * Ruled in favor of T, holding that his detention without trial violated his right to liberty under the ECHR. Highlighted the evolving recognition of human rights within the framework of common law, emphasizing the need for judicial review to ensure that governmental actions are consistent with fundamental human rights principles.

Answer 57

“not the purpose of the Human Rights Act that the common law should become an ossuary”.Lord Toulson

Answer 58

Common law should bedeveloped “inaccordance with” HRA

Answer 59

“follow any clear and constant jurisprudence of the Strasbourg court... keep pace with theStrasbourg jurisprudence as it evolves.” Lord Bingham, [20] – the “mirror principle”

Answer 60

Occasionally, “open to the domestic court to decline to follow the Strasbourg decision”where it appears “a decision of the Strasbourg court does not sufficiently appreciate oraccommodate particular aspects of domestic process”. (Lord Phillip

Answer 61

Duty to take account of ECtHR decisions BUT, where there is a “clear and constant line of decisions whose effect is not inconsistentwith some fundamental substantive or procedural aspect of our law, and whose reasoningdoes not appear to overlook or misunderstand some argument or point of principle, weconsider that it would be wrong for this court not to follow that line.”

Answer 62

**positive obligation** to protect life of mentally ill woman **even though no such authority to that effect from ECtHR**

Answer 63

Retreat from Ullah, principle now **substantially modified:** “where there is no directly relevant decision of the ECtHR with which it would be possible (even ifappropriate) to keep pace, we can and must do more. We must determine for ourselves the existenceor otherwise of an alleged Convention right.

Answer 64

“...it is not the function of our domestic courts to establish new principles of Convention law. But that is **not to say that they are unable to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law**. In situations which have not yet come before the European court, **they can and should aim to anticipate, where possible, how the European court might be expected to decide the case, on the basis of the principles established in its case law**.” (Lord Reed, [59])

Answer 65

Individual asylum seekers won a JR case against the Government for the unlawful Rwanda Asylum plan

Answer 66

The Scottish Government’s Gender Recognition Bill was blocked by theUK government following JR under s.25, Scotland Act 1998

Answer 67

Parliament **must act compatibly with requirements of rule of law** and unwritten constitution “... the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is **not unthinkable that circumstances could arise** where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In **exceptional circumstances** involving an attempt to abolish judicial review or the ordinary role of the courts, the [...] Supreme Court may have to consider **whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.**” Lord Steyn

Answer 68

“Judicial Review provides the **means** by which **judicial control of administrative action** is exercised”

Answer 69

“Judicial review [is] a **remedy** invented **by the judges to restrain** the excess or **abuse of power**”

Answer 70

It is “**fundamental** to the rule of law that decisions and actions of the executive are... **reviewable by the court**...” (Lord Neuberger, [52]. c.f. “the rule of law is of the first importance. But it is **integral to the rule of law that the courts give effect Parliamentary intention**...”(LordHughes, [154]

Answer 71

Amenability to review England & Wales: **distinction between “public” bodies and “private” bodies**. Can only review the exercise of “public functions” The key principle that emerged is that the distinction between public and private bodies is based on the nature of their functions and their relationship with the public interest.

Answer 72

Amenability to review: Scottish Law **no distinction between public and private law** – “[t]he competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review as a public law remedy. Grounds of review: “...**no substantial difference** between English and Scots law as to the grounds on which the process of decision-making may be open to review” Jurisdiction: The Court of Session ''has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by **any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument**. ... The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the **person or body does not exceedor abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires**.” (at 412-413) Application to the supervisory jurisdiction of the court “does **not depend upon any distinction between public law and private law**

Answer 73

ENGLAND AND WALES s.31(3): claimant must show "sufficient interest" in the matter under review to have standing

Answer 74

SCOTLAND section 27b subsection 2 claimant must show "sufficient interest" in the matter

Answer 75

* “A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.” * "The essential function of the courts is...the preservation of the rule of law, which extends beyond the protection of individuals' legal rights. ... There is thus a public interest involved in judicial review proceedings ... A public authority can violate the rule of law without infringing the rights of any individual...”

Answer 76

“Once again it must be stressed that there is, in principle, **no difference between the lawof England and Scots law as to the substantive grounds** on which a decision by a tribunalwhich acts within its jurisdiction may be open to review

Answer 77

“Judicial review has developed to a stage when... one can conveniently classify under three headsthe grounds upon which administrative action is subject to control by judicial review. The firstground I would call ‘**illegality**’, the second ‘**irrationality**’ and the third ‘**procedural impropriety’**.

Answer 78

Proportionality: available in relation to Convention rights and EU law; now possibly a standalone common law ground Courts in both cases evaluated whether the actions of the government were proportionate by considering factors such as the seriousness of the issue at hand, the impact on individual rights, and whether less restrictive measures could have been employed to achieve the same objective

Answer 79

The effect of this decision to provide interim relief, and others in the Factortame series, was to disapply primary legislation that was inconsistent with other primary legislation (i.e. the European Communities Act 1972). This does not necessarily undo parliamentary sovereignty: it simply tries to reconcile two conflicting pieces of primary legislation and gives precedence tothe clear intention of s.2 of the 1972 Act to allow Treaty law to be directly enforceable in UK law

Answer 80

Applications for judicial review should be made within 3 months of the date of the decision giving rise to the grounds **Time limit starts from point of decision and not when the person is told of the decision**

Answer 81

If the Court cannot reasonably reach a final decision at that stage, it may defer the issue The decision to defer must be reasonable and made in good faith, ensuring that all relevant factors are taken into account before reaching a conclusion.

Answer 82

* Determine time-bar question at the permission stage * Court emphasized that the determination of time-bar questions should be deferred until the substantive appeal hearing, unless it is evident that the appeal is time-barred on its face. This approach ensures that procedural issues do not unnecessarily impede the consideration of substantive legal matters

Answer 83

Continuing wrongs? The date is still calculated from the date of the decision complained of The court held that the Ministers had properly considered the potential impact on golden eagles and had taken reasonable steps to mitigate any adverse effects. The decision highlights the importance of thorough consideration of environmental impacts in planning decisions, but also demonstrates the deference given to administrative bodies in making such decisions when they have followed proper procedures.

Answer 84

Cannot delegate powers to a sub committee

Answer 85

“By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest.”

Answer 86

"insufficient legal title to sue"

Answer 87

"Council of Civil Service Unions v Minister for the Civil Service," was a landmark legal case in the United Kingdom that took place in 1984. The case involved the Government Communications Headquarters (GCHQ), a British intelligence agency, and its employees who were members of trade unions. The significance of the GCHQ case lies in its reaffirmation of the **principle that prerogative powers are subject to the rule of law and cannot be used to circumvent statutes passed by Parliament.** Established an important precedent regarding the limits of executive authority in the UK legal system. “By ‘illegality’ as a ground for judicial review I mean that the **decision-makermust understand correctly the law thatregulates his decision-making power andmust give effect to it**. Whether he has or not is **par excellence a justiciable** question to be decided, in the event of dispute, bythose persons, the judges, by whom the judicial power of the state is exercisable.”

Answer 88

Whether prerogative power is reviewable **determined by inquiring whether the issue at stake is justiciable or not**

Answer 89

Procedure: Scotland Need permission of the court to proceed

Answer 90

Procedure: England and Wales 55.54.1(2)(a): “a ‘claim for judicial review’ means a claim to review the lawfulness of (i) an enactment; or (ii) a decision, action, or failure to act in relation to the exercise of a public function.” Two stages * Must obtain permission to proceed (CPR, 54.4) * If granted permission, claim then considered by the court Permission granted if * Claim is arguable * Claim made within 3-month time-limit (CPR, 54.5) * Claimant has sufficient interest (standing) * Other avenues of redress have been exhausted (e.g.internal appeal) * Court considers that if successful the claim would make adifference to the claimant.

Answer 91

* Ch.58 applies to an **application to the supervisory jurisdiction of the court** – application must be made by petition for judicial review (r58.1(1)) * **Cannot petition for JR if application could be made by appeal or review** under ay enactment (r 58.3(1)) * Must apply within three months (s.27A(1), Court of Session Act 1988(CSA 1988), as amended) * **Need permission of the court** to proceed (s.27B(1), CSA 1988, and see Wightman v Advocate General for Scotland [2018] CSIH 18 at [9], 2018 SC 388, 2018 SCLR 588, 2018 SLT 356) * Permission will only be granted if: * Applicant has **sufficient interest** * Application has a **real prospect of success** (grounds of review not fanciful – s.27B(2), CSA 1988, and see Wightman)

Answer 92

statute-based grounds s.29 (competence of the Scottish Parliament) s.57 (“member of the Scottish government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights”)

Answer 93

Statutory interpretation “**involves an objective assessment of the meaning which a reasonable legislature** as a body would be seeking to convey in using the statutory words which are being considered”

Answer 94

* Case emphasizes the importance of discerning the objective meaning of statutory language rather than relying solely on the subjective intentions of lawmakers. * The court highlighted the need to consider various factors such as the language used, the context in which it was used, and the purpose behind the provision. * By examining these elements, the court aimed to arrive at an interpretation that aligns with the legislative intent and serves the broader goals of the law

Answer 95

Interpretation of the law **Purpose is important**: “in matters of statutory construction, the **statutory purpose and the general scheme** by which it is to be put into effect are of **central importance**.”

Answer 96

Fails to fulfil duty Mental Health (Care and Treatment) (Scotland) Act 2003 s. 268(11)(12):“Qualifying patient” to be defined by regulations + s.333(2):“come into force on1st May 2006 or such earlier day as the Scottish Ministers may by order appoint.” =Discretionary power constrained by legal duty to act by specified date

Answer 97

* Cannot delegate discretionary powers * The NDLB had been established to regulate the hiring of dockworkers. * B, a dockworker, was refused registration by the Board. * Argued that the Board had unlawfully delegated its power to refuse his registration to local dock managers. * The Court of Appeal held that the Board had indeed unlawfully delegated its power. * It found that the Board could not delegate its statutory duties to others without specific authorization from the legislature

Answer 98

Cannot delegate discretionary powers Was the delegation authorised by law? * Issue of unlawful delegation arose in the context of the Secretary of State's power to make rules governing the release of prisoners on license. * Secretary of State had delegated this power to the Parole Board, allowing them to set the conditions for release. * Court found that the delegation was unlawful because it exceeded the limits of permissible delegation

Answer 99

* Unlawful delegation * Note that civil servants can, and do, act/make decisions on behalf of Ministers even if Ministers are legally responsible for their departments: the Carltona principle

Answer 100

**Facts**: * Set price of milk + differential fortransport costs * South-west region: price too low tocover transport **Minister**: discretion/duty to appointcommittee, act on report **At issue**: nature and extent of the Minister's discretion/duty Held that the Minister's discretion must be exercised reasonably and in accordance with the purpose for which it was granted. In this case, the Minister's refusal to refer the matter to arbitration was deemed unreasonable as it failed to consider the relevant purpose of the legislation. The outcome underscored the principle that the **exercise of discretionary powers by public authorities should be guided by the purpose for which those powers were granted, and must be relevant to achieving that purpose**.

Answer 101

Purpose: Interpretation “[W]here a statute **does not by express words define the purposes** for which the powers it confers are to be exercised the decision-maker is bound nevertheless to **ascertain and apply the aims intended**, since no statute can bepurposeless...” Purpose may be **express or implied**

Answer 102

Purpose: interpretation Statutory purpose = “promoting development” Interpreted by court to = “sound economic development” On the facts court found project was “unsound” Decision was made for improper purpose and based onirrelevant considerations

Answer 103

“...it will become more widely recognised that...**Wednesbury was an unfortunately retrogressive decision in English administrative law**... in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the scope of judicial invalidation. **The depth of judicial review and the deference due to administrative discretion vary with subject matter**.”

Answer 104

Standard of review - a "sliding scale" “It is now well established that the Wednesbury principle itself **constitutes a sliding scale of review, more or less intrusive according to the nature and gravity** of what is at stake” Laws LJ

Answer 105

Courts have developed an “**issue sensitive scale of intervention** to enable them to perform their constitutional function in an increasingly complex polity”

Answer 106

Overlap: unreasonableness and relevance “The law has always made a **clear distinction** between the question of whether something is a material consideration and the weight which it should be given. The **former is a question of law**, and the **latter is a question of planning judgment**, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all materials considerations,**it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight** the planning authority thinks fit or no weight at all.”

Case Law Flashcards

(130 cards)