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Flashcards in Separation of Powers Deck (26)
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1

Duport Steel v Sirs

In this case, he held that it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers.

However it is also noted that we are not to be governed by Parliaments intentions but only by Parliaments enactments; it is the judge’s duty to interpret and apply the law, not to change it to meet the judges’s idea of what justice requires

the 3 s's __, ___ and separation of powers

2

In this case, he held that it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers.

However it is also noted that we are not to be governed by Parliaments intentions but only by Parliaments enactments; it is the judge’s duty to interpret and apply the law, not to change it to meet the judges’s idea of what justice requires

the 3 s's __, ___ and separation of powers

Duport Steel v Sirs

3

Ex Parte Fire Brigades Union
This case regarded the

This case regarded the compensation for criminal injuries
HELD:
Lord Mustill noted that it is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. However the interpretation function of the courts requires them to step into the terrortory which belongs to the executive to verify that they accord with Parliament

4

This case regarded the compensation for criminal injuries
HELD:
Lord Mustill noted that it is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. However the interpretation function of the courts requires them to step into the terrortory which belongs to the executive to verify that they accord with Parliament

Ex Parte Fire Brigades Union
This case regarded the

5

R v Ex parte Witham

Case concerned a statutory instrument which increased court fees and removed the exemption for those claiming income support, the court found the Lord Chancellor had gone beyond his powers and was ultra vires.
The Lord Chancellors power to set the fees under s130 Supreme Court Act 1981 was impliedly limited by the common law right to access to the courts

6

Case concerned a statutory instrument which increased court fees and removed the exemption for those claiming income support, the court found the Lord Chancellor had gone beyond his powers and was ultra vires.
The Lord Chancellors power to set the fees under s130 Supreme Court Act 1981 was impliedly limited by the common law right to access to the courts

R v Ex parte Witham

7

Ahmed v HM Treasury:

This case concerned an act aimed at preventing financing for terrorism. The applicant applied for the order to be set aside. 
HELD:
It was held that only Parliament could authorise grave interferences with individual rights

8

This case concerned an act aimed at preventing financing for terrorism. The applicant applied for the order to be set aside. 
HELD:
It was held that only Parliament could authorise grave interferences with individual rights

Ahmed v HM Treasury:

9

R v ex parte Venables and Thompson

T an V were juvenile killers who claimed that the Home Sec had unlawfully decided not to release them from prison and refused to take into account their progress and development during detention. He increased the tariff period from 10 to 15 years to delay release and that they should be dealt with on the same basis as adult offenders
HELD:
The Home Sec acted unlawfully and that his legal premise was only from time to time to decide whether detention is still justified.

10

T an V were juvenile killers who claimed that the Home Sec had unlawfully decided not to release them from prison and refused to take into account their progress and development during detention. He increased the tariff period from 10 to 15 years to delay release and that they should be dealt with on the same basis as adult offenders
HELD:
The Home Sec acted unlawfully and that his legal premise was only from time to time to decide whether detention is still justified.

R v ex parte Venables and Thompson

11

R (Anderson) v Sos for HD
mr aderson killed

Case concerned an adult murderer. Exercising his powers under the Crime Act 1997 and set a tariff a 20 years. The prisoner argued this was a violation of Art 6.
HELD:
the fixing of a tariff of a convicted murdered is legally indistinguishable form the imposition of sentence
The Home Secretary is not an independent and impartial tribunal therefore the Home Sec would not fix the tariff of a convicted murderer

This decision followed the finding in Stafford v UK, a similar case concerning the imprisonment of a life prisoner

12

Case concerned an adult murderer. Exercising his powers under the Crime Act 1997 and set a tariff a 20 years. The prisoner argued this was a violation of Art 6.
HELD:
the fixing of a tariff of a convicted murdered is legally indistinguishable form the imposition of sentence
The Home Secretary is not an independent and impartial tribunal therefore the Home Sec would not fix the tariff of a convicted murderer

This decision followed the finding in Stafford v UK, a similar case concerning the imprisonment of a life prisoner

R (Anderson) v Sos for HD

13

Shaw v DPP

In this case the accused had published a magazine containing the names and addresses of prostitutes and a description of their services. The appellant appealed on the grounds that no such offence of conspiracy to corrupt public morals existed
HELD:
This was illegal under a common law offence called ‘conspiracy to corrupt public morals’ ; the HOL essentially created a new crime

14

In this case the accused had published a magazine containing the names and addresses of prostitutes and a description of their services. The appellant appealed on the grounds that no such offence of conspiracy to corrupt public morals existed
HELD:
This was illegal under a common law offence called ‘conspiracy to corrupt public morals’ ; the HOL essentially created a new crime

Shaw v DPP

15

r v r

In this case the defendant raped his wife; though he argued on grounds of the marital rape exemption under the common law.
HELD:
They held there was no martial rape exception; though legally this was a retrospective decision which was not put into law until the Sexual Offences Act 2003

16

In this case the defendant raped his wife; though he argued on grounds of the marital rape exemption under the common law.
HELD:
They held there was no martial rape exception; though legally this was a retrospective decision which was not put into law until the Sexual Offences Act 2003

r v r

17

Malone v MPC

the three m's,

It is no function of the courts to legislate in a new field. The extension of the existing laws and principles are one thing, the creation of an altogether new right is another
It was admitted that judges do legislate but with molecular rather than molar motions

the three m's molar, motion and

18

It is no function of the courts to legislate in a new field. The extension of the existing laws and principles are one thing, the creation of an altogether new right is another
It was admitted that judges do legislate but with molecular rather than molar motions
he three m's molar, motion and

Malone v MPC

19

The defendant shared a flat with his homosexual partner and was told could not succeed the tenancy as they were not married
HELD:
Lords used s.3 to interpret the act as including persons in a same sex relationship

Lord Nichollas recognised that the courts are in effect able to modify the meaning and hence the effect of primary and secondary legislation

Ghaiden v Mendoza:

20

Ghaiden v Mendoza:

The defendant shared a flat with his homosexual partner and was told could not succeed the tenancy as they were not married
HELD:
Lords used s.3 to interpret the act as including persons in a same sex relationship

Lord Nichollas recognised that the courts are in effect able to modify the meaning and hence the effect of primary and secondary legislation

21

This was a judicial review case taken against the UK government regarding Spanish fishermen who claimed that the UK had breached EU law.
This was the first time that courts held that they had power to restrain the application of an Act of Parliament pending trial and to misapply that Act when it was found to be contrary to EU law

factor tame

22

factor tame

This was a judicial review case taken against the UK government regarding Spanish fishermen who claimed that the UK had breached EU law.
This was the first time that courts held that they had power to restrain the application of an Act of Parliament pending trial and to misapply that Act when it was found to be contrary to EU law

23

M v Home Office

Regarded the application of an asylum seeker. The judge ordered the return of the applicant but the SoS who believed the application was rightfully rejected applied for the judge’s injunction order to be set aside and cancelled his return.
ISSUE:
 Crown Proceedings Act kept the Crown’s immunity from injunction and thus could not be impeded for contempt of court
HELD:
Even before the Crown Proceedings Act, Crown officials could be personally liable for a tort committed or authorised by them, despite the action being carried out in their official capacity.
In other words, injunctions can be granted against Crown officials acting in their official capacity
While the Crown itself cannot be found guilty of contempt of court, a minister in his official capacity can

24

Regarded the application of an asylum seeker. The judge ordered the return of the applicant but the SoS who believed the application was rightfully rejected applied for the judge’s injunction order to be set aside and cancelled his return.
ISSUE:
 Crown Proceedings Act kept the Crown’s immunity from injunction and thus could not be impeded for contempt of court
HELD:
Even before the Crown Proceedings Act, Crown officials could be personally liable for a tort committed or authorised by them, despite the action being carried out in their official capacity.
In other words, injunctions can be granted against Crown officials acting in their official capacity
While the Crown itself cannot be found guilty of contempt of court, a minister in his official capacity can

M v Home Office

25

mcgonnell v uk

consent; the decision was made by a judge who also presided over the island’s legislature.
HELD: 
Any direct involvement in the passage of legislation or executive rules is likely to be sufficient to cast doubt on the judicial impartiality of a person
The Strasbourg judges held that McGonnel was found to have been denied a fair hearing by an independent and impartial tribunal

Mc____- the flower grower

26

consent; the decision was made by a judge who also presided over the island’s legislature.
HELD: 
Any direct involvement in the passage of legislation or executive rules is likely to be sufficient to cast doubt on the judicial impartiality of a person
The Strasbourg judges held that McGonnel was found to have been denied a fair hearing by an independent and impartial tribunal
Mc____- the flower grower

mcgonnel v uk