PUBLIC LAW L4 - Separations of Power - SOP KEY CASES Flashcards
What does the SHAW V DPP 1962 illustrate? (1)
The absence of a statutory basis for an alleged crime is irrelevant if there is an established principle of common law giving rise to it. Application of that law is not ‘making new law’ but applying existing law.
What are the facts of SHAW V DPP 1962? (2)
Shaw published a directory of prostitutes and their services and was advised by his lawyers this was not an offence. However, ultimately he was convicted of ‘conspiracy to convict public morals’ and offence which did not exist in statute books at the time.
What were the key issues of SHAW V DPP 1962? (1)
Could the court create new offences in its capacity of custos morum (keeper of morals) in the absence of legislation by Parliament.
What was the decision of SHAW V DPP 1962 and by who? (2)
By House of Lords. Long line of case law establishing that conduct calculated to corrupt public morals was an indictable misdemeanour therefore the courts were not creating new offences but applying existing principles of the law to facts.
What does the MALONE V METROPOLITAN POLICE COMMISSIONER 1979 illustrate? (1)
It is no function of the courts to legislate in a new field. The extension of existing laws and principles is one thing, the creation of an altogether new right is another.
What are the facts of MALONE V METROPOLITAN POLICE COMMISSIONER 1979? (2)
Malone was charged with handling stolen property and the prosecution admitted there had been interception of Malone’s telephone conversations on the Secretary of State’s authority. Malone sought declarations against the MPC to the effect that police conduct was unlawful.
What are the key issues of MALONE V METROPOLITAN POLICE COMMISSIONER 1979? (3)
Whether the court had power to make a binding declaration in respect of rights recognised by
What was the decision of MALONE V METROPOLITAN POLICE COMMISSIONER 1979 and by who? (5)
Made by high court. NO, ECHR a treaty and not justiciable in UK and Malone had no right to privacy under it. No, there was a statutory prohibition therefore tapping was not unlawful. No there was no right of property in a phone call. No there was no established right of privacy in English Law.
What does GILLICK V WEST NORFOLK HEALTH AUTHORITY 1986 illustrate? (1)
In the absence of legislation or clear authority to the contrary, ‘the common law should keep pace with the times.’
What are the facts of GILLICK V WEST NORFOLK AUTHORITY 1986? (2)
The health authority issued guidance to GPs that in exceptional cases they may prescribe contraception to children under 16 without parental consent. Claimant sought a declaration that this is unlawful and affected parental rights.
What are the key issues of GILLICK V WEST NORFOLK AUTHORITY 1986? (3)
Did parliament treat contraceptive advice as medical matter? Are children under the age of 16 capable of consenting to medical treatment? Did the absence of clear authority on the question of a child’s capacity to consent prevent the court from taking changes in public attitudes into account?
What was the decision of GILLICK V WEST NORFOLK AUTHORITY 1986 and by who? (4)
By House of Lords. Yes and there as no statutory limit on the age of persons to whom contraceptive facilities may be supplied. Yes, if they have sufficient maturity and intelligence to understand the nature and implications of proposed treatment. No, Lord Scarman warned against judges failing to keep the law abreast of the society in which they live and work.
What does R V R 1992 illustrate? (2)
If a common law rule no longer represents what is socially accepted today, then statutory provisions can and should be interpreted by the courts in a way which reflects current social attitudes, if there is no authority to the contrary.
What are the facts of R V R 1992? (2)
A woman was subjected to an attempted rape by her husband. His defence relied on a common law principle that by marrying a woman consents to intercourse with her husband.
What are the key issues in R V R 1992? (1)
Did the wording of S1(1) of the sexual offences act 1976 allow the interpretation that the old common law principle of standing consent in marriage was a defence to a charge of rape.
