Download Jan 15 Public Law

LEVEL 6 - UNIT 12 – PUBLIC LAW
SUGGESTED ANSWERS - JANUARY 2015
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the January 2015 examinations. The suggested answers set out a response that
a good (merit/distinction) candidate would have provided. The suggested
answers do not for all questions set out all the points which students may have
included in their responses to the questions. Students will have received credit,
where applicable, for other points not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
SECTION A
Question 1
AV Dicey provided the classic definition of parliamentary sovereignty:
(i)
(ii)
that there is no legal restraint upon Parliament’s law-making powers; and
that no other person or body within the constitution is able to question the
validity of primary legislation.
Parliamentary sovereignty is a common law doctrine accepted by the courts. It
has its origins in the 17th century struggle between the Crown and Parliament for
supremacy, culminating in the Bill of Rights 1689.
Supremacy asserts itself via the will of Parliament as expressed in Acts of
Parliament, as opposed to mere resolutions of Parliament. The courts’ approach
is reflected in the so-called ‘enrolled Act rule’ (Edinburgh & Dalkeith Railway v
Wauchope (1842)), namely that the courts will not challenge the validity of
legislation which is on the statute book. All the courts can do is to check that the
Act has been certified by the Clerk of Parliament as having been properly
enacted. The courts have no power to check that proper procedures have
actually been followed (Pickin v BRB (1974)). As a general rule there can be no
judicial review of primary legislation.
Parliament’s power to legislate on any matter it chooses is illustrated by a
number of examples. For example, statute may amend the constitution (e.g. Bill
of Rights 1689, European Communities Act 1972 and Human Rights Act 1998 to
name just a few statutes of immense constitutional significance); statute may
override international law (Mortensen v Peters (1906) and statute may operate
retrospectively (Burmah Oil Co v Lord Advocate(1965)).
Arguably the one thing that Parliament cannot do is to bind its successors. The
‘continuing’ nature of sovereignty means that a later Parliament may, if it so
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chooses, expressly repeal any or all the Acts of previous Parliaments. The courts
also apply the doctrine of implied repeal; a later statute the content of which is
inconsistent with an earlier statute will impliedly repeal the earlier statute to the
extent of the inconsistency (Ellen Street Estates v Minister of Health (1934)).
However, in Thoburn v Sunderland City Council (2002) Laws LJ obiter developed
a qualification to the traditional doctrine. He drew a distinction between
‘ordinary’ and ‘constitutional’ statutes, such as the European Communities Act
1972, the Human Rights Act 1998 and the Scotland Act 1998, and stated that
constitutional statutes could not be impliedly repealed. He defined a
constitutional statute as one that governed the legal relationship between citizen
and state in some general, overarching manner, or changed the scope of
fundamental constitutional rights. Recently, in the Supreme Court case of H v
Lord Advocate (2012), Lord Hope obiter stated that the Scotland Act could not be
impliedly repealed because of its ‘fundamental constitutional nature’, thereby
offering high-level support for Thoburn.
Parliamentary sovereignty is, however, no longer regarded as absolute, and it is
subject to some limitations arising, for example, out of the UK’s membership of
the European Union.
EU law is incorporated via the European Communities Act 1972 (ECA). Section
2(1) of the ECA provides that UK courts must recognise and enforce rights and
obligations arising under EU law. The ECA makes no reference to the supremacy
of EU law but clearly impacts on supremacy as s 2(4) provides that ‘any
enactment passed or to be passed…shall be construed and have effect subject to’
rights and obligations arising s.2(1). The decisions of the ECJ are also binding on
UK courts under s.3(1).
The courts have approached the first limb of s.2(4) (‘shall be construed’) as a
rule of construction and have accordingly, wherever possible, pursuant to the
principle of indirect effect interpreted UK law to comply with EU law. This could
result in national legislation being given a meaning rather different from its literal
meaning (Webb v EMO (1993)). The courts have taken s.2(4) as an obligation to
interpret domestic legislation in a way that ensures domestic law conforms to EU
law, but only because Parliament instructed them to do so in the ECA.
While the courts will use principles of interpretation to avoid a conflict between
domestic legislation and EU law as far as possible, occasionally there is a direct
conflict which cannot be resolved through interpretation. When this occurs, the
courts have interpreted the second limb of s.2(4) (‘have effect subject to…’) as
meaning that they must set aside inconsistent national legislation as in R v SoS
for Transport ex p. Factortame (No 2) (1991). The provisions of directly effective
EU law prevailed over a subsequent Act of Parliament, the Merchant Shipping Act
1988, thereby illustrating that implied repeal does not apply to the ECA. In
effect, the courts have given supremacy to directly effective EU law contrary to
the traditional doctrine of parliamentary sovereignty.
Nevertheless, based at least upon judicial observations in Macarthy’s Ltd v Smith
(1979)and Garland v BREL (1983), it remains possible for Parliament to
expressly repeal the ECA. Further, the European Union Act 2011 places on a
statutory footing the common law principle of parliamentary sovereignty with
respect to directly applicable or directly effective EU law. Section 18 of the Act
provides that directly applicable and directly effective EU law is given effect in
the law of the UK only by virtue of an Act of Parliament.
Until recently many commentators asserted that for a combination of political,
economic and practical reasons, the repeal of all or part of the ECA was
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extremely unlikely. However, the Conservative Party has promised an in-out
referendum on EU membership in 2017 if it wins the next election, so its repeal
no longer seems as unlikely as it once did.
In conclusion, EU membership has limited parliamentary sovereignty, but the UK
courts have given effect to directly effective EU law in priority to domestic
legislation because Parliament told them to do so in the ECA. The EU Act simply
confirms the approach of the courts. Parliament may therefore expressly, though
not impliedly, repeal the ECA. This, however, is only likely to occur if the British
electorate has voted for withdrawal from the EU in a referendum.
Question 2 (a) The rule of law
The rule of law is concerned with ‘government according to law’. There must be a
proper legal basis for the exercise of power by the state over the citizen, and
power must not be exercised in an arbitrary or oppressive manner.
AV Dicey provided the classic definition of the rule of law in Introduction to the
Study of the Law of the Constitution (1885). There are three elements to Dicey’s
definition:
(i)
(ii)
(iii)
there should be an absence of arbitrary power; i.e. regular law should be
supreme;
there should be equality before the law; and
the basic constitutional rights of individuals are the result of judicial
decisions of the courts in England.
Under the first element citizens should only be punished if they have committed
a distinct breach of the law established before the courts (in modern parlance
‘due process’). Under the second element there should not only be equality
between citizens, but also between public officials and citizens; public officials
should not have special privileges or immunities. Dicey also considered that the
common law was the most effective guarantor of personal freedoms, rather than
written constitutions.
Dicey’s views have been criticised as outmoded. While much of what he thought
remains valid, in a modern society it has been necessary to give public officials
far more discretionary powers than he envisaged. Moreover, the courts have not
always been effective in guaranteeing personal freedoms, as shown by Malone v
MPC (1979) where it was held that the police were free at common law to tap
phones as there was no law prohibiting it.
Accordingly, there have been numerous attempts to update the concept. For
example Raz has emphasised the need for clarity and certainty in the law to
enable citizens to obey it; accordingly laws should not operate retrospectively.
He also considered that judicial independence and the right to a fair trial were
crucial.
One of the most authoritative recent versions is that of Lord Bingham’s (The Rule
of Law (2010)). In some areas Lord Bingham’s definition overlaps with Dicey’s,
for example both uphold equality before the law and the need for clear and
predictable laws. Conversely, in other areas Lord Bingham goes further, for
example his definition stresses the importance of protecting human rights and
complying with international law.
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An independent judiciary is of particular constitutional importance as judicial
independence is essential to prevent arbitrary or oppressive government. If the
judiciary is not sufficiently independent from the other branches of the state, its
ability to act as a check and balance on them would be severely curtailed. An
independent judiciary is therefore essential to maintaining the rule of law.
Question 2 (b) Judicial Separation from the other branches of state
(i)
The Executive
The Constitutional Reform Act 2005 (CRA) has done much to strengthen the
separation between the executive and the judiciary in a number of ways, for
example:

It imposes a specific statutory duty on the Lord Chancellor and other
ministers to uphold the independence of the judiciary.

It introduced the Judicial Appointments Commission (JAC) which has limited
the role of the Prime Minister and Lord Chancellor in judicial appointments,
thus minimising the potential for political interference.
Even before the CRA there were rules and conventions designed to guarantee
judicial independence:

Judges enjoy security of tenure and cannot be dismissed on the whim of the
executive. Thus Senior and Supreme Court judges hold office ‘during good
behaviour’ and may only be dismissed following a vote of both Houses of
Parliament (s.11 Senior Courts Act 1981, s.33 CRA).

By convention, ministers - members of the executive - do not criticise judges
although it is open to debate whether this is still adhered to; for example,
ministers have from time to time criticised court decisions, particularly in the
sphere of human rights.

The judiciary exercises a check on the executive through judicial review of
how the executive exercises its powers.
Nevertheless, there are some areas where separation is not maintained. In
particular there is arguably a risk of a politicised judiciary due to the Human
Rights Act 1998, as illustrated by A v Home Secretary (2005) (‘Belmarsh’) on the
detention of suspected terrorists.
Some government ministers have quasi-judicial responsibilities which can be
difficult to reconcile with their party political roles. However, following the ECtHR
decision in Stafford v UK (2002) the Home Secretary has lost the power to set
the tariff of prisoners subject to life sentences.
(ii)
Legislature
There is also considerable judicial separation from the legislature. Judges cannot
be MPs (s.1 House of Commons Disqualification Act 1975). Also the CRA 2005,
through establishing the Supreme Court, took the UK’s highest court out of the
House of Lords. Consequently, the anomaly of the Law Lords sitting as members
of the legislature was removed.
The UK judiciary (unlike the US judiciary) has interpreted the separation of
powers as meaning that it cannot declare statutes unconstitutional. Instead, the
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UK judiciary may only make a declaration of incompatibility under the Human
Rights Act and this does not invalidate the statute concerned. However, Lord
Steyn’s obiter comments in Jackson (2005) suggest that judges might strike
down legislation that undermined basic constitutional principles such as the rule
of law.
By convention, MPs do not criticise judges and judges avoid party politics. Also,
under the sub-judice rule, Parliament refrains from discussing matters currently
before the courts.
On the other hand the judiciary arguably plays a quasi-legislative role in
interpreting statute and developing the common law (the legislative theory).
However, Parliament may always pass further legislation if it ‘disapproves’ of
developments in case law (Burmah Oil v Lord Advocate (1965)). Also, the
judiciary does exercise restraint in its law-making role.
Conclusion
The judiciary is sufficiently independent from the other branches of the state to
ensure observance of the rule of law. The CRA 2005 has buttressed the mixture
of law and convention that previously existed to ensure the independence of the
judiciary.
Question 3
Lord Diplock identified the traditional grounds of review in CCSU v Minister for
the Civil Service (1985) as illegality, irrationality and procedural impropriety. The
traditional grounds of review, particularly the substantive grounds, have been
concerned with the legality of administrative action, not its underlying merits.
Illegality typically rests, for example, on whether the powers exist (A-G v Fulham
Corporation (1921)), who is exercising them (Lavender v MHLG (1970)), and
whether they are being used properly or for an ulterior purpose (Congreve v
Home Office (1976)).
Similarly, the threshold of irrationality has been set at a very high level by the
courts. In the landmark case of Associated Provincial Picture Houses v
Wednesbury Corporation (1948) Lord Greene MR stated that a decision would
only be quashed for unreasonableness if it was ‘so unreasonable that no
reasonable authority could have come to it…’. In CCSU Lord Diplock used the
term ‘irrationality’ to describe ‘Wednesbury unreasonableness’, and applied it to
a decision ‘so outrageous in its defiance of logic or accepted moral standards that
no sensible person…could have arrived at it’.
Proportionality is a principle applied across continental Europe and is a particular
feature of German public law. It gives judges wider powers to consider the
merits of a decision than the traditional English grounds. The principle has
entered the English legal system via the European Convention on Human Rights
and EU law. Since the UK joined the EU in 1973 British judges have been under a
duty to apply the principle in cases involving EU law and there have been calls
for it to supplant irrationality as a ground of review.
In R (on the application of Daly) v Secretary of State for the Home Department
(2001), which was decided in the wake of the coming into force of the Human
Rights Act 1998 and the resultant incorporation of Convention rights into
domestic law, Lord Steyn adopted a three-fold approach for proportionality
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(previously set out by the Privy Council in De Freitas v Permanent Secretary of
Ministry of Agriculture (1999)) namely that:
(1)
there must be a legislative objective which is sufficiently important to
justify limiting a fundamental right;
(2)
the measures designed to meet the legislative objective must be rationally
connected to it; and
(3)
the means used to impair the right/freedom must be no more than
necessary to accomplish the objective.
Interestingly, Lord Steyn commented – as was indeed the outcome in Daly itself
- that most cases would be decided in the same way whether the traditional
approach or the proportionality approach is used.
However, Daly effectively confirms that, where Convention rights are engaged,
the proportionality approach must be used. Lord Steyn suggested that there are
significant differences between the two approaches, which affect the intensity of
review by the courts. This is greater under the proportionality approach because
proportionality requires the court to assess the balance the decision-maker had
struck. The court would therefore look at the relevant weight accorded to the
interests and consideration and would have to decide whether the interference
with the right was ‘necessary in a democratic society’ and, if so, really was
proportionate.
In Peck v UK (2003) the European Court of Human Rights also confirmed this
approach. It made it clear that judicial review did not provide adequate
protection when considering the legitimacy of an interference with a Convention
right. The threshold set by English courts for impugning a decision on grounds of
irrationality was so high that it effectively excluded any consideration by them of
the question of whether an interference with a Convention right was
proportionate.
An example of the application of proportionality in an EU law context is R v CC of
Sussex ex p. International Trader’s Ferry (1998). The Chief Constable decided to
provide police protection to live animal exports on only two days a week. The
effect of the decision was that exports could only take place on those two days
owing to animal rights protests. The court looked at the relative weight accorded
by the Chief Constable to competing interests when examining, i.e. the policing
needs of the people of Sussex, ITF’s business activities and the rights of the
protesters to engage in peaceful protest. The House of Lords held that the Chief
Constable was best placed to decide upon the allocation of resources.
In the human rights context, there are many cases in which the courts have
applied proportionality, a notable case being A v SoS for the Home Department
(2001). Under anti-terrorism legislation, the government had detained several
foreign suspected terrorists without trial as it was not possible to deport them.
The House of Lords held that the detention of these suspects was incompatible
with their Article 5 ECHR rights (right to liberty) and disproportionate.
Conversely R (Prolife Alliance) v BBC (2003) provides a different perspective. The
BBC had refused to screen an election broadcast showing footage of abortions
which viewers might find offensive. The ProLife Alliance applied for judicial review
of this decision, arguing it interfered with their freedom of expression. The House
of Lords held that Parliament had given the broadcasters the discretion to
exercise their judgment on such matters and had weighed the correct factors in
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reaching their decision. This illustrates a degree of judicial ‘deference’ even in
some human rights cases.
In his statement, Lord Steyn was clearly alive to the legality versus merits issue
and what effect therefore the use of proportionality would have on the traditional
role of the courts in judicial review. He in fact emphasised that there had not
been a shift to merits-based review as the roles of judges and administrators
remain fundamentally distinct. While the courts apply proportionality extensively
in cases involving EU law and Convention rights, in purely ‘domestic’ cases
irrationality remains the appropriate test.
Question 4 (a) Powers of the police to control protesters
People are free to associate with each other so long as they do not break the
law. Freedom of association is therefore a residual freedom which those taking
part in public protests are able to rely on. However, the police have both
common law and statutory powers to control the conduct of protesters.
At common law the police may act to prevent an actual or reasonably
apprehended breach of the peace, provided in the latter case that it is imminent
(R (Laporte) v CC of Gloucestershire (2006)). This may involve arrest or other
action such as dispersing a meeting or directing protesters not to proceed to a
meeting. In R v Howell (1982) the Court of Appeal defined a breach of the peace
as occurring whenever harm is done or likely to be done to a person or, in his
presence, to his property or a person is in fear of being so harmed through an
assault, an affray, a riot, unlawful assembly or other disturbance.
Statutory powers include the power (under s. 24 PACE) to arrest someone for
committing a criminal offence, including public order offences such as using
threatening words or behaviour contrary to s.4 Public Order Act 1986, and
inciting racial hatred contrary to s.18 Public Order Act 1986.
The police also have statutory powers to control public order short of arrest,
granted to them chiefly by the Public Order Act 1986. Key provisions of the POA
include:

Section 11 – the organisers of a march must give the police six clear days’
notice

Section 12 – imposing conditions on public processions
-
If the ‘senior police officer’ reasonably believes serious public disorder/
damage/ disruption may occur or the organisers have intimidatory
purpose, he may make directions imposing conditions necessary to
prevent such disorder etc occurring;
-
The conditions may relate to the route of the procession or prohibit it from
entering specified public places;
-
For conditions imposed during the procession, the senior police officer is
the most senior officer present. For conditions imposed in advance, it is
the Chief Police Officer.
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

Section 13 - ban on processions
-
If the Chief Police Officer believes the s.12 powers are inadequate, he may
apply in advance to the district council for an order banning public
processions;
-
The Council may then with the consent of the Home Secretary make an
order banning processions.
Section 14 – public assemblies
-
If the senior police officer reasonably believes that serious public disorder
etc or intimidation may occur, he may make directions imposing conditions
necessary to prevent such disorder etc occurring;
-
The conditions may relate to the place at which the assembly is held, its
duration and the number of people attending.
-
The conditions may be imposed in advance of or during the assembly.
Additionally the police may apply to have trespassory assemblies banned under
s.14A POA.
Where a march takes place on a public highway, the police may charge
protesters under s.137 Highways Act 1980 should they cause an obstruction.
However, the House of Lords held in DPP v Jones (1999) that a meeting on a
public highway might be a reasonable use of the highway and therefore lawful,
provided it was peaceful and did not obstruct the highway by unreasonably
impeding the rights of others using the highway.
Question 4 (b) Limits of exercise of police powers
Section 6 Human Rights Act 1998 provides that it is unlawful for a public
authority to act incompatibly with Convention Rights.
Section 3 HRA requires English courts to construe legislation consistently with
Convention rights, so far as it is possible to do so. The courts will therefore seek
to interpret public order legislation in a manner consistent with Articles 10 and
11 ECHR. This may indirectly limit police powers.
It will often be easy for protesters to show that police action has interfered with
their freedom of expression under Article 10 ECHR or freedom of assembly under
Article 11 ECHR. However, these are not absolute rights but qualified rights.
Articles 10(2) and 11(2) enable the police to defend their actions as being
‘necessary in a democratic society’, e.g. for the prevention of disorder or crime.
They must be able to show that any action taken is
-
prescribed by law
necessary in a democratic society, e.g. for the prevention of disorder
proportionate to achieving that aim.
In assessing proportionality, the courts will apply the threefold approach set out
in R (Daly) v Secretary of State for Home Department (2001):
-
the legislative objective must be sufficiently important to justify limiting a
fundamental right;
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-
the measures designed to meet the legislative objective must be rationally
connected to it; and
-
the means used to impair the right/freedom must be no more than necessary
to accomplish the objective
One further limit on the exercise of police powers is that the police now have a
positive duty to protect the exercise of Convention Rights. So where a speech or
meeting might trigger violent opposition, the first duty of the police is to act
against those using violence. Only in the last resort should they arrest a speaker
or disperse a meeting (Redmond-Bate v DPP (1999)).
Laporte also shows how the police are bound by both the common law and
Convention Rights. Police action in turning back protesters going to a
demonstration was held to be unlawful because the police did not reasonably
apprehend an ‘imminent’ breach of the peace. It was also unlawful because the
police action was premature and arbitrary, and therefore a disproportionate
interference with the claimant’s Convention Rights under Articles 10 and 11.
However, in R (McClure and Moos) v MPC (2012) the Court of Appeal upheld the
‘kettling’ of protesters to prevent an imminent and serious breach of the peace,
but only in exceptional circumstances.
Clearly Articles 10 and 11, mainly through the HRA 1998, represent an important
but limited restriction on police powers.
SECTION B
Question 1
Amenability/ Eligibility
The Albany District Council is a public law body as it is exercising statutory
functions under the Parking Restrictions Act (‘the Act’) to convert double yellow
lines into double red lines. Imposing parking restrictions is a public rather than
private law matter, so the Council is amenable to judicial review (O’Reilly v
Mackman(1983).
Caroline is directly affected by the decision, as it will affect her nightclub’s
revenue. She therefore has ‘sufficient interest’ in the decisions to bring a claim
for judicial review (s.31(3) SCA 1981).
It is necessary to consider whether ANA has standing. The factors the court
considers are outlined in cases such as in R v SoS for Foreign Affairs ex p. World
Development Movement Ltd (1995) –



The need to uphold the rule of law
Whether any other body was likely to bring a challenge
The role of the pressure group involved
ANA is a local organisation whose members will be affected by the changes to
parking in the city centre at night. It is likely to have sufficient interest under
the WDM criteria. The court is likely to want to hear its views on serious issues
concerning the safety of night workers and bias to ensure that the rule of law is
not breached by the Council.
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Timing
Caroline and ANA must make the application for permission for judicial review
promptly, without undue delay and in any event within three months of the date
of the decision to adopt the proposals (SCA s.31(6), CPR 54.5).
Ouster clause
There is, however, an ouster clause aimed at preventing a challenge to the
Council’s decision. The courts are hostile to attempts to exclude their jurisdiction.
The House of Lords’ decision in Anisminic v FCC (1969) made it clear that
complete ouster clauses will not protect decisions that were never valid
(‘nullities’) and thus, it is for the courts to determine whether a decision is valid
or invalid. The ouster clause is highly unlikely to prevent Caroline and ANA from
bringing proceedings.
Grounds?
Applying (as relevant) the grounds of review identified by Lord Diplock in CCSU v
Minister for the Civil Service (1985) as illegality, irrationality and procedural
impropriety:
(i)
Caroline
Illegality
‘Jurisdictional’ challenge
The proposal shows an intention to place double red lines along the road outside
Caroline’s night club but, as she points out, there are no yellow lines there at
present. The power is to convert double yellow lines into double red lines and
not create new parking restrictions where there have been none before. The
Council appears to be trying to do something that it has no power to do (A-G v
Fulham Corporation (1921)).
Unauthorised delegation
The decision-making power has been granted to the Council, not the local MP.
The Council has effectively delegated its discretion to the local MP which is ultra
vires as, in the absence of express statutory authority, a body to whom a power
has been delegated cannot sub-delegate it. Moreover, the exercise of that
discretion by the body to whom it has been unlawfully delegated will also be ultra
vires (Lavender v MHLG (1970)).
Procedural impropriety
Rule against bias
Caroline will argue that the chief executive of the Council was biased, as he owns
shares in a nearby nightclub which may benefit from the proposals. This may be a
case of actual bias in that the chief executive has a direct financial interest in the
outcome (Dimes v Grand Junction Canal (1852)).
If the chief executive’s interest falls short of actual bias, Caroline could clearly
argue that it was still sufficient to lead a fair-minded and impartial observer to
conclude that there was ‘a real possibility’ that the decision-maker had been
biased (Porter v Magill (2002)).
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(ii)
ANA
Illegality
Fettering of discretion
The Council when exercising its statutory discretion may adopt a policy as to how
it will exercise its discretion, but the policy must allow for exceptions and be
reasonable.
The policy appears to be reasonable: the Council could argue that the policy of
always imposing total parking bans as they are normally more effective than
partial ones reflects the purpose of the statute – easing congestion.
However, while the Council may adopt a policy if it is reasonable, it should be
prepared to listen to anyone who has something new to say (British Oxygen v
Minister of Technology (1970)). ANA has raised a concern about the safety of
night workers leaving work in the early hours of the morning and has suggested
that the double red lines could be suspended after 11.30pm because there is
little congestion in the city centre at night. The statute does allow the Council to
determine the times during which the parking restrictions apply. It however, has
refused to consider this suggestion and has failed to exercise its discretion by
applying its policy too rigidly.
If the assertion that there is little traffic in the centre after 11.30pm is correct,
then the Council may have ignored a relevant consideration when deciding how
to implement the scheme (Roberts v Hopwood (1925)).
(iii)
Caroline/ANA
Illegality
Ulterior purpose
Public bodies will be acting illegally if they use their powers for an improper or
unauthorised purpose (Congreve v Home Office (1976)). The purpose of the Act
is to ease congestion in city centres.
The Council’s statement indicates that the decision had the purpose of raising
revenue through fines to prevent spending cuts which is irrelevant to the purpose
of the Act. The Council seems to have had an ulterior motive (Sydney Municipal
Council v Campbell (1925)).
Irrationality
The power to convert double yellow lines into double red lines is discretionary but
the Council must use the power rationally. Having regard to relevant
considerations only, is its decision so unreasonable that no reasonable body
could have reached it (Associated Provincial Picture Houses v Wednesbury
Corporation (1948) or does it defy logic (CCSU)?
As the threshold for irrationality is high, this is unlikely to be the case.
Remedy
Caroline and ANA would apply for quashing orders.
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Question 2 (a) Legality of police action
Monday 8pm
(i)
Stop and Search
PC Green may exercise a power to stop Richard and search him for stolen articles
(PACE, s.1(2)). PC Green must have ‘reasonable grounds’ for suspecting that he
will find stolen articles (s 1(3)). He has such grounds, as the store manager has
told him that an iPhone 5 has been stolen, Richard matches the thief’s
description and PC Green sees Richard near the location of the theft. Thus, PC
Green’s reasonable suspicion is based on an objective assessment of the
circumstances (Code A).
He may seize any article he finds if he has reasonable grounds for believing it to
be stolen (s.1(6)). On the information provided, there are reasonable grounds
for believing that the iPhone 5 is stolen.
PC Green does not, however, carry out the stop and search correctly. He must
comply with the s.2 safeguards by taking reasonable steps before searching
Richard to inform him of his identity and the reasons for the search. In Osman v
DPP (1999) the court applied s.2 strictly, so PC Green has breached s.2, as what
he said fell short of the requisite standard.
(ii)
Arrest
For the arrest to be lawful, PC Green must have the power to arrest Richard, the
arrest must be necessary and must be carried out in the correct manner.
Power of arrest? Section 24(3) – the offence of theft has been committed, and
PC Green has the power to arrest anyone whom he has ‘reasonable grounds’ for
suspecting to be guilty of it; PC Green has reasonable grounds – Richard
matches the description of the thief, he is seen near the shop and an iPhone 5
was found in his possession. [Alternatively PC Green could rely on s.24(2), as he
has at least reasonable grounds for suspecting that an offence has been
committed.]
Arrest necessary? Are any of the reasons in s.24(5) met? Yes, the arrest is
necessary to prevent Richard causing loss of or damage to property
(s.24(5)(iii)), to allow the prompt and effective investigation of the offence
(s.24(5)(e) and to prevent Richard from disappearing (24(5)(f)).
Manner of arrest? Section 28 - PC Green must tell Richard that he is under
arrest and give the grounds for the arrest, even if obvious (s.28(2) and (4)).
The fact of the arrest should be given as soon as practicable after the arrest
(s.28(1)) and the grounds should be given at the time of or as soon as
practicable after the arrest ( s28(3)). In Abbassy v MPC (1990) and Taylor v CC
of Thames Valley (2004) the courts held that the police did not have to use
precise legal terms, provided they conveyed the essential information to the
arrested person in simple, non-technical language. However, PC Green does not
even do this. There is also no reason why PC Green could not give this
information immediately; he has therefore breached s.28 and so the arrest is
unlawful.
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Monday 8.30 pm
Detention at the police station
PC Green complies with s.30 by taking Richard to the police station as soon as
practicable after the arrest.
Sergeant Adebayo belatedly complies with ss.28(2) and (4) by giving the fact of,
and the grounds for, the arrest so the arrest is now lawful.
Sergeant Adebayo must comply with s.37. Richard’s ongoing detention appears
to comply with s.37 as Sergeant Adebayo probably has reasonable grounds for
believing that detention without charge is necessary to obtain evidence by
questioning (s.37(2)). However, no reviews are carried out so the arrest
becomes unlawful once the first review has been missed (s.40).
Refusal to allow Richard access to a solicitor
Richard has the right to consult a solicitor (s.58(1)), although this right can be
delayed for up to 36 hours in certain circumstances.
One of the grounds in s.58(8) for delaying access is that access ‘will lead to the
alerting of other persons suspected of having committed such an offence’, but
there appears to be no evidence that this is the case here. In Samuel (1988) the
Court of Appeal held that the police were required to believe that the solicitor
concerned would commit a criminal offence before they could refuse access.
Their objection has to relate to a specific solicitor. Even if the police have
reasonable grounds for delaying access to Richard’s usual solicitor, they should
offer him an alternative, e.g. the duty solicitor.
Refusal to allow Richard to see a solicitor may also violate his right to fair trial
under Article 6 ECHR. In Averill v UK (2000) and Magee v UK (2000) the ECtHR
ruled that denying a suspect access to a lawyer while he was being questioned
breached Article 6, unless there were good grounds for denying access.
Question 2 (b) Admissibility of confession at trial
Richard will ask the court to rule confession inadmissible, raising arguments
under ss.76(2) and 78:

Section 76(2) – he may argue that the confession was obtained by oppression
(s.76(2)(a)) or in circumstances rendering it unreliable (s.76(2)(b).

Oppression? Possibly – if he thought the police were going to keep him at
the police station indefinitely unless he confessed.

Unreliability?
Probably – the confession is unreliable because he only
confessed to get out of the police station and not because he was actually
guilty.

Section 78 – this provides a more general discretionary power of the court to
exclude prosecution evidence if the admission of the evidence would have
such an adverse effect on fairness of the proceedings that the court ought not
to admit it. Richard would use similar arguments to those raised under s
76(2)(b).
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In Samuel (above) the Court of Appeal excluded a confession on similar facts to
Richard’s. However, in Alladice (1988) the court refused to exclude the evidence
as the defendant would have confessed anyway. However, PC Green’s conduct of
the interview is particularly shocking and so the confession will probably be
excluded under s.76. The prosecution has the burden of proving the confession
was not unreliable and this will be difficult to discharge.
Question 3
Francesca will claim that the article published in the Sunderland Star (the Star)
breaches her right to privacy. The right to respect for private and family life is
protected by Article 8 of the European Convention on Human Rights (ECHR).
However, there is no general right of privacy in English law (Wainwright v UK
(2006)). While it is unlawful for a public authority to breach Convention rights
(s.6(1) Human Rights Act 1998 (HRA)), the prospective defendant, the Star, is a
private body. Francesca cannot therefore directly invoke Article 8.
However, the HRA has significantly enhanced the protection of an individual’s
Article 8 rights, particularly through the development of breach of confidence.
Accordingly, Francesca may be able to bring a claim against the Star under the
‘horizontal effect’ principle developed in cases such as Venables v News Group
Newspapers Ltd (2001) and Douglas v Hello! Ltd (2005), if she can show that
publication of the information amounts to a breach of confidence on the part of
the Star. In Douglas, there was a breach of confidence based on unauthorised
photographs of Michael Douglas’s wedding, as the photographs constituted
private and personal information.
Another relevant case is Campbell v Mirror Group Newspapers Ltd (2005). A
newspaper had disclosed that the ‘supermodel’ Naomi Campbell was a drug
addict and was attending a drug rehabilitation centre; it also published
photographs of her leaving the centre. The court accepted that Ms Campbell’s
Article 8 rights were engaged as she had a reasonable expectation of privacy in
relation to what had been published. However, the court also had to balance her
rights against the newspaper’s right to freedom of expression under Article 10
ECHR.
The Star published the following in relation to Francesca:
(a)
An article that she had left her husband for her new boyfriend, the editor
of her newspaper, and
(b)
A photograph of her leaving her boyfriend’s house which can be identified
from the photograph.
As regards both items, Francesca will need to establish a reasonable expectation
of privacy. The vital issue for her is whether the courts will protect her sexual
conduct.
In A v B (a Company) (2002) the Court of Appeal overturned an injunction
preventing publication of a Premier League footballer’s extra-marital affairs.
Whether a duty of confidence existed depended on the nature of the relationship.
A key question was whether the intrusion concerned a situation where a person
could reasonably expect their privacy to be respected. The more stable the
relationship the greater the significance the courts would attach to it. The
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confidentiality attached to a permanent relationship was far greater than that
attached to a fleeting one.
In contrast, Mosley v News Group Newspapers (2008) shows a greater
willingness by the courts to protect the sex lives of public figures. Max Mosley, a
well-known personality, had taken part in a sado-masochistic orgy with
prostitutes. His claim succeeded as there was insufficient public interest to justify
publication of his conduct.
Concerning photographs, Murray v Express Newspapers Ltd (2007) is relevant. A
photograph had been taken of the infant son of JK Rowling while he was on the
street with his parents, and subsequently published by a newspaper. The Court
of Appeal held that it was at least arguable that the child had a reasonable
expectation that he would not photographed in circumstances where his parents
would object.
It is debatable whether Francesca has a reasonable expectation of privacy
regarding her relationship with the Northern Sentinel’s editor. However, unlike
the footballer in A v B, she is in a long-term relationship with him and her
conduct falls well short of Max Mosley’s. On balance, she probably has a
reasonable expectation of privacy.
Based on Murray and Campbell, she has a strong argument that she has a
reasonable expectation of privacy regarding the photographs. Accordingly, her
Article 8 rights are therefore engaged. The court will then have to balance her
right to privacy (Article 8) with the Star’s freedom of expression (Article 10). Both
are qualified rights and the proportionality of interfering with the one (privacy) has
to be weighed against the proportionality of interfering with the other (freedom of
expression). Neither right takes precedence over the other.
In Campbell v MGN the House of Lords held that the newspaper was entitled to
reveal details of Ms Campbell’s drug addiction. She had previously denied taking
drugs and the newspaper could therefore ‘set the record straight’ by publishing
that she was an addict who was receiving treatment. However, by a 3-2 majority
the House of Lords held that the newspaper had gone too far in publishing details
of the treatment and photographs of her leaving the centre. This amounted to an
unjustified interference with her Article 8 rights.
In Francesca’s case, she has set out her own moral position on sex in her column
in the Northern Sentinel, criticising the sexual conduct of unmarried couples. Is
the Star able to challenge her morality by exposing this?
Applying the proportionality test, the degree of intrusion into Francesca’s private
life is serious. Conversely, s.12(4) HRA provides that the court must have
‘particular regard’ to the importance of freedom of expression. However, s.12(4)
does not give Article 10 priority over Article 8.
Overall, as regards leaving her husband for her new boyfriend, the ‘setting of the
record straight’ argument by the newspaper is likely to succeed by analogy with
Campbell.
The main issue here concerns the photograph of Francesca leaving her
boyfriend’s house. The majority in Campbell held that the photograph of Ms
Campbell near her rehab centre went too far in ‘setting the record straight’.
However, Francesca’s argument is not as strong as Ms Campbell’s as her health
is not involved. Nevertheless the Star may have acted disproportionately as it
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was not necessary to publish a photograph of Francesca, particularly as it shows
her looking untidy and the house can be identified.
Accordingly, the Star was probably entitled to print the article, but the
publication of the photograph constitutes a breach of confidence.
Question 4 (a) DET
Since the coming into force of the Crown Proceedings Act 1947 Government
contracts have been justiciable. Accordingly, the DET cannot simply cancel the
contract with impunity; it needs legally valid reasons. The facts indicate that the
DET has two reasons for cancelling the contract.
The first reason is that it has already overspent its budget for the current year
and so does not have sufficient funds; the Treasury is refusing to allocate it any
further funds. The fact that Parliament has not appropriated the funds is not a
good reason for a government to cancel a contract (New South Wales v Bardolph
(1934)).
The second reason is that it needs all available resources to pay large grants to
certain manufacturers to prevent large-scale redundancies. That is a better
argument, as there is case law to show that executive necessity can provide a
valid justification for behaviour which otherwise would constitute a breach of
contract (The SS Amphitrite v R (1921)); the Crown cannot be prevented by an
existing contract from exercising powers vested in it either by statute or common
law. However, that case concerned the detention of a ship under wartime
regulations and can be distinguished from the current case which involves a
standard commercial contract. Notwithstanding the dire state of public finances,
the need to pay grants to manufacturers to prevent redundancies cannot justify
reliance on executive necessity to cancel an unrelated commercial contract.
Even if the executive necessity argument succeeded, in relation to the work
completed by Vuvuzela there would have to be an account and a payment on a
quantum meruit basis, unless the DET successfully argues that the work has
been defective in whole or in part.
There is therefore no reason why Vuvuzela should not bring a breach of contract
claim against the DET. Although the issue of executive necessity is one of public
law, Vuvuzela’s claim is for breach of contract and so is suitable for a civil law
action notwithstanding the public element (Roy v Kensington and Chelsea Family
Practitioner Committee (1992)).
Question 4 (b) Andrew
As a Government Minister, Andrew is bound by the convention of individual
ministerial responsibility. Constitutional conventions are rules or practices which
are accepted as binding (to a greater or lesser degree) by those involved in
operating the constitution. However, they are not enforced by the courts (Re
Amendment to the Constitution of Canada (1982)).
This convention holds that individual Government Ministers are answerable to
Parliament both for their personal conduct and the conduct of their department.
In this instance there has been maladministration in Andrew’s department and
Andrew has himself misled Parliament.
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Arguably there is no need for Andrew to resign simply as a result of
maladministration within his department. Historically Ministers would resign as a
result of this. For example, the Crichel Down affair led to the resignation of the
Minister following serious errors by civil servants and Lord Carrington, the
Foreign Secretary resigned over the Argentine invasion of Falklands in 1982.
Since then, however, Ministers have refused to resign as a result of
maladministration by their officials. For example, Michael Howard did not resign
as Home Secretary after several high-risk prisoners escaped from Parkhurst
Prison, blaming the Prison Service instead.
Knowingly misleading Parliament is, however, a matter serious enough to require
Andrew’s resignation. There are several examples of Ministers resigning after
telling lies/misleading Parliament, for example the Profumo affair. It is also a
clear breach of the Ministerial Code. It is not clear whether Andrew knew he was
misleading Parliament; he claims he was not properly briefed. If he did,
although the courts cannot compel him to resign, it is inevitable that the Prime
Minister will require his resignation. If not, his survival as a Minister will depend
on the support he receives from the Prime Minister and ministerial colleagues.
Question 4 (c) Janice
Janine’s proposed defamation action raises issues of parliamentary privilege.
One of its chief aspects is freedom of speech, guaranteed by Article 9 of the Bill
of Rights 1689 which states that the freedom of speech and debates or
proceedings in Parliament ought not to be impeached or questioned in any court
or place out of Parliament. Article 9 protects what is said in debate in either
House and members have the right to say what they like.
Freedom of speech is limited to ‘proceedings in Parliament’. This clearly includes
parliamentary debates, so what Andrew said in the debate is undoubtedly
privileged.
Section 13 of the Defamation Act 1996 provides that a member may waive
privilege for the purpose of any defamation proceedings in which his or her
conduct is questioned. However, there is no reason to suppose that Andrew
would be willing to waive his privilege.
It is then necessary to consider whether the TV interview is privileged. The exact
scope of proceedings in Parliament is unclear. As well as anything said in
parliamentary debates, anything said in committees or reports of either House
will be protected. However, statements to the media are unlikely to be protected
as they are unrelated to parliamentary business, even if made within the
precincts of Parliament.
Andrew is proposing to rely on qualified privilege as a defence. Janice can negate
this defence if she can show malice on Andrew’s part, but she cannot use the
false allegations he made in the debate to establish malice; they are absolutely
privileged (Church of Scientology v Johnson-Smith (1972)).
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