English Legal System

Semple Piggot Rochez • 173B Cowley Road • Oxford OX4 1UTwww.spr-law.com

CHAPTER 1ENGLISH LEGAL SYSTEM

INTRODUCTION. THE SYLLABUSTHE NATURE OF THE ENGLISH LEGAL SYSTEM.

THE LEGAL PROFESSION IN ENGLAND

CONTENTS OF THE MANUAL

Chapter 1: Introduction. The Syllabus. The Nature of the English LegalSystem. The Legal Profession in England.

Chapter 2: The Court Structure

Chapter 3: Judges and Judicial Reasoning: The Judiciary and its Tasks

Chapter 4: Judges and Judicial Reasoning: The Doctrine of Precedent

Chapter 5: Judges and Judicial Reasoning: Statutory Interpretation

Chapter 6: The Criminal Process

Chapter 7: The Criminal Process: The Jury System

Chapter 8: Legal Services: Legal Aid

Chapter 9: The Civil Process

Chapter 10: The Appellate Process

CONTENTS OF CHAPTER 1

Introduction ............................................................................. 1

The Nature of the English Legal System .................................... 10

The Legal Profession ............................................................... 13

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SEMPLE PIGGOT ROCHEZ 1

English Legal System

1. INTRODUCTION

SYLLABUS

The University of London list the following six areas of studyin their syllabus:

(a) The court structure

(b) Judges and judicial reasoningThe judiciaryThe magistracyThe doctrine of precedentInterpretation of statutes

(c) The criminal processArrestSearch and seizureInterrogation and the right to legal adviceThe ProsecutionBailClassification of offencesCommittal proceedingsTrial on indictmentSummary trialPlea bargainingThe jury systemSentencing options and sentencing principles (in outlineonly)

(d) The civil processCivil procedure in Queen’s Bench DivisionCounty courts and small claimsEnforcement of judgements (in outline only)Tribunals: representation and adjudication

(e) The appellate processCivil and criminal appeals

(f) Legal ServicesThe legal professionUnmet legal needLegal aidLaw centresContingent and Conditional feesLegal expenses insurance

GENERAL COMMENT

The English Legal System (or “ELS”) for the University ofLondon External Programme has been described a diffusesubject. The University’s own subject guide makes this pointclear. Whilst I have kept to what were the original chapterheadings for this manual, you will see that the syllabus is

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separated in a slightly different way. Where possible, there isnow a direct link between the syllabus item and the chapterheading for ease of reference. I am sure you will find theindividual chapters of more assistance in this format becausethey reflect the areas where the examiners tend to askquestions regularly.

THE NEW TERMINOLOGY

Do note throughout this course that I am using the newterminology. Therefore, in future please use the term‘claimant’ instead of ‘plaintiff’ and so on.

POINTS OF REFERENCE

In order to study English law it is essential that students,especially those from overseas who may be unfamiliar withEnglish institutions, acquire sufficient background tounderstand its complex nature. A grasp of the variousinstitutions is essential to the successful study of substantiveEnglish law subjects, both core and optional, which form thesyllabus for the LLB degree.

This manual aims to provide that background and then todraw attention to the most important elements of each subjectarea in order to guide their preparation for the virtual tutorialsand marked assignments which comprise the SPR course forELS. There is one overall topic and one chapter of the manualfor each of the Virtual Tutorials (VT). This does not mean thatthe whole of the basic material referred to should not also bestudied during the year. You will need to ‘read into thesubject’ so do take a very careful look at the reading lists. Theminimum reading for each VT is merely targeted forconvenience of students who will get most out of their VTs ifreasonably prepared, and if they consolidate afterwards to

SLAPPER AND KELLY – ENGLISHLEGAL SYSTEM

The University of London now recommend a specific bookfor main study: Slapper & Kelly’s ‘English Legal System’ (4thedition 2001). In addition, there is a sourcebook by the twoauthors in its second edition published in 2001. You shouldknow these publications in detail. However, it does not meanthat your reading finishes here: it is only just starting. I wouldadvice you to read the two ‘Law in context’ books byProfessor Michael Zander:

� Cases and Materials on the English Legal System (8thedition 1999)

� The Law-Making Process (5th edition)

Pay special attention to the footnotes which accompany thetext. These footnotes contain much of the authority you arerequired to cite when answering questions fully and will raisethe general level of your classification. Throughout the

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manual, I have referred specifically to Zander as the ‘gloss’ onthe basic text provided by Slapper and Kelly.

HOW DO YOU STUDY THEENGLISH LEGAL SYSTEM?It is essential first to read thoroughly the introduction to theUniversity’s ELS subject guide which explains how the ELScourse sets out to provide the “necessary platform of basicknowledge and technique” to study the other subjects of thedegree course.

The introduction draws attention to the need for the studentto have a grasp of:

� the structure of legal institutions

� legal reasoning

� the culture of English law

� the techniques for analysing texts from which legal rulesand principles are formally derived (i.e. statutes and caselaw).

This sounds like a list of self contained topics but will be moredifficult for overseas students to access as they may lack thenecessary historical and political background to understandwhy English legal institutions are as they are. However, thiscan usually be made up by the distinct background whichstudents from other jurisdictions may bring to the course,which will in time enable them to compare their own legalsystems, and the cultural and political influences on them, tothat of English law.

LAW AS A ‘LIVING’ SUBJECT

The other vital point to grasp at this stage is that all law is“living” and therefore constantly changes; nowhere is thismore clear than when studying ELS which is not a staticsubject. It is therefore essential to keep up to date withcurrent affairs generally, as well as with new cases, becausethe context in which the English legal system operates issubject to ongoing change. Most important cases in an ELScontext appear in The Times Law Reports soon after they aredecided, and some time before they get into the regular series,so this source should be watched. The Times, and its lawreports, can be read on the Internet anywhere in the worldand this brief report will usually be sufficient for students’needs during the academic year in which ELS is being studied,and The Times will usually also highlight other relevantconstitutional and socio-political issues so it is worth the effortof accessing their site regularly.

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CONSILIO

An additional source of up to date material is SPR’s online lawmagazine Consilio, which may be accessed directly throughthe SPR website.

ELS: THE PROBLEM WITH RULES

It is a problem for ELS students that the socio-economiccontext of the subject makes its a wide and ‘all-embracingarea’ for study. The solution to this problem in the timeavailable, especially for part time students, is to obtain at leastone good basic textbook as mentioned and to acquire athorough understanding of that book. Your personal researchcan be backed up by selective wider reading, rather than toread widely from the start and to remember nothing. Theessential building blocks need to be in place before criticalcommentary can be embarked upon.

The University subject guide mentions this dilemma, notingthat “all too often the task of learning the rules, principles andtechnique of using legal language swallows up the availabletime”. But they also propose a solution to this dilemma, underthe heading “method of working” which students would bewell advised to follow, where it is suggested that what isneeded is a firm foundation of factual knowledge by firstreading any textbook and making notes, and only thenresorting to other materials, of which there are of coursemany. The reading lists point to both basic textbooks andfurther reading and these should be treated as suggested, i.e.either as basic knowledge or supplementary study.

THE RELEVANCE OF LEGALHISTORY

The University stresses in the ELS subject guide that legalhistory as such is not part of the syllabus. Nevertheless,some background in this respect will help rather than hinderand where relevant the SPR course draws attention to thehistorical background. I have kept legal history to a minimumbut for those interested do look at ‘Walker and Walker’sEnglish Legal System’ by Professor Richard Ward (8th edition,1998 Butterworths).

THE EFFECT OF LAW REFORM

The University also draws attention to the exclusion of lawreform from the syllabus (see Zander ‘The Law-MakingProcess’ Chapter 9, page 404). However, some knowledge ofproposed reforms will help to hone the critical faculties whichthe University’s guide also makes clear are expected to beacquired, polished and exercised at degree level, and soproposed reform is also worth noting. Articles on The Timeslegal pages on Tuesdays often deal with current initiatives orproposals for reform.

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Page 5 of the University’s guide mentions the LordChancellor’s Department’s website which is a plentiful sourcefor potential law reform material, especially as the current LordChancellor has already presided over many significantreforms.

The pace and extent of recent reform in the law may becompared with the whole programme of the first ministry ofGladstone between 1866 and 1874, where his governmentwas described by a contemporary commentator as leavingoffice like a range of “exhausted volcanoes”, except that LordIrvine shows no sign of exhaustion, and has declared that hehas no intention of leaving office.

GENERAL KNOWLEDGE OF LAW

One of the most important tasks of the law student is to learnto think like a lawyer. To this end, you should make use of allthe opportunities for acquiring such background knowledgewhich are afforded by access to all the resources of the SPRwebsite and its links. Apart from Consilio, the online lawstudents’ magazine, you can also access the general andnewspapers, such as The Times, The Lawyer, and theGazette. There are also good lecture notes on the skill of FactManagement, and on European Law and its impact on Englishlaw.

Whilst European Law is not part of the ELS syllabus, anunderstanding of the European institutions and how theywork, and enforcement of European law in England is, so youshould download from the ELS subject page and studycarefully the notes on an introduction to the law of the singlemarket, and on the jurisdiction of the Court of Justice and theenforcement of EU law.

LEARNING HOW TO ANSWEREXAMINATION QUESTIONS

This is a process which may be much more difficult in ELSthan in the substantive law subjects where the confines of thequestion are traditionally more distinct. This is because thebreadth and bulk of the ELS material is so great. I give someguidance in the ‘handy hints’ below, but some useful adviceon Examination Technique in general, with particular referenceto ELS, is also contained in an Appendix to the University’sELS subject guide. You should read this at the start of thecourse, not in the second or third term when revision and theexamination is suddenly very close. Careful mastery of theskill of answering ELS questions should begin with the firstassignment. In total, four assignments will be scheduledduring the year. So, when the mock examination paper isoffered, and this should ideally be written and submitted inthe Easter Vacation, some practice will already have beenobtained in writing the answers.

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READING LISTS

The University’s detailed reading lists contain many usefuland interesting books. It has already been mentioned thatfrom 2001 onwards there is a recommended textbook for ELSwhich is Slapper and Kelly (see below).

TEXTBOOKS

� Slapper, G and Kelly, D, The English Legal System, 4thedition, London, Cavendish Publishing, 1999(www.cavendishpubishing.com) ISBN 1 85941 6578.

While this is the basic textbook, a second basic bookwould be worth obtaining, largely for regular reference asit has a level of detail not contained in Slapper and Kelly,and this is:

� Smith, Bailey and Gunn on the Modern English LegalSystem, 4th edition, 2001, ISBN 0 421 74130 9

At least one supplementary book would be useful fordeeper study of precedent and statutory interpretationand of those listed by the University. Manchester’sExploring the Law: the Dynamics of Precedent andStatutory Interpretation, London, Sweet & Maxwell, 1996is suggested as the most straightforward for the purposeof imparting a good grasp of these two sometimes difficultpractical topics. Zander is also particularly helpful anddetailed.

SOURCEBOOKS

Any of the books listed by the University in their subjectGuide would be useful, but as Professor Michael Zander isthe long recognised authority on and acute critic of the Englishlegal system, one of his titles, perhaps his Cases andMaterials, 8th edition, Butterworths 1999, would probably bea good selection.

An additional sourcebook is Slapper & Kelly’s Sourcebook ofthe English Legal System ( second edition 2001).

OTHER MATERIALS

Your course materials include a range of soundfiles, both ofgeneral background interest and specific ELS titles whichcorrespond to the fortnightly virtual tutorial topics, and thesemay be downloaded from the SPR website, on which will alsobe found extensive on line materials including Law Reports,and these should of course be accessed whenever a specificcase needs to be read.

The ELS subject page also contains a series of lecture notes towhich subject specific reading is directed in each chapter ofthis manual. These lecture notes are of a high quality. Theyare of increasing value as the ELS course progresses andstudents will become familiar with the shape of the English

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legal system as a whole. It is useful to download and print offthese notes at the start of the course, because constantreference to them will be found to be most beneficial.

An early study should be made of the lecture notes to readLegal Skills and Legal Research, which advises the student onhow to study for a law degree and on developing the lawyerlyskills which will lead to successful study.

GENERAL HANDY HINTS

Remember that when you are studying for your degree,whether it is at Intermediate or Finals level, the main need isfor you to understand basic substantive principles of lawinvolved. You will then need to apply these principles in eitheran essay or factual situation.

Legal principles have been laid down both by statute and incase law. However, you must realise that you cannot learnevery case, so be guided by your textbooks to those casesthat are the most important. Also, know you way aroundyour statute books (where appropriate) in detail just in caseyour memory freezes in the examination hall and you need tomake reference to it.

Some paragraphs are highlighted for effect in many of theleading texts and practitioners works. Do take special noticeof these highlights as you prepare for your final revision.

Ten guidelines to help you with your revision.

1. Review the contents of your textbooks so that you havean overview of the course.

2. Do the same with each specific topic that you haveselected for revision. Follow your own selection of topicscovered in the textbooks.

3. Examine one topic at a time and digest it.

4. Look where the author has highlighted points.

5. Read each leading passage and case carefully and try tounderstand what is being said (re-read the notes youhave already made as they are always a useful learningdevice).

6. Make a determined effort to remember:

Names of casesFacts of the caseThe ‘ratio decidendi’Other important or associated features

7. Re-read the passage a few times and then ask yourself:

� Does this passage link with other areas, cases andinterpretations?

� How is it similar?

� How does it differ from other points already known?

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� Do I understand this part of the law? If your answeris ‘no’, then read it over again

8. Test your understanding by working through any self-examination questions by memory only.

9. Mark your self-assessments by checking through the textto establish where you have made errors or omissionsand then rectify and memorise the points. Possibly, youmight need very short notes for any awkward points thatyou feel you might forget.

10. Remember that you are undertaking an academicexamination and you need to be able to argue pointsfrom both sides and include academic thought in youranswers. Do note that you cannot afford to forget whatyou have already studied, nor can you overlook otherareas of the law when giving answers to questions. Inexaminations, the examiner expects you to have retainedknowledge learnt from other areas of the law.

IN THE EXAMINATION HALL

Points discussed in this section are for each subject includingthe English Legal System. There are normally seven essayquestions and possibly one problem question. Do try theproblem question if possible because you stand to obtain ahigher classification from your answer to it. Many of theessay questions tend to be ‘bread and butter’ questions withless scope to obtain higher marks.

Do read the rubric at the top of the examination paper in caseany changes have been made. The examiners sometimes slipin changes which you must take notice of.

You may consider that the paper you are sitting may not,superficially, appear to cover all the topics on the syllabus.However, within individual questions there may be partswhich give the examiner greater scope to test your knowledgeof the subject generally by linking specific topics. This is not tocatch you out, but merely to test your knowledge – that iswhat this examination is all about.

FURTHER COMMENTS ONEXAMINATION TECHNIQUE

From the beginning of your course you will have beenpreparing yourself for the final examination. The techniquesthat the examiner may use in order to test your knowledgeare the discussion-type essay, the situation-type question andthe essay-type question which is broken down into individualparts: (a), (b), (c), etc., so that you do not need to spend somuch time planning your answer. Ensure you read thequestion clearly: answer what is required.

Study the passage/question carefully and then read thequestions set about it. Don’t attempt to answer a questionuntil you are satisfied that you fully understand the passage.

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Consider the following questions:

A What is this section/question all about?

B What areas of law does it cover?

C What are the relevant laws and academic legal arguments,and what are the related statutes and cases, rememberingthat you can take a statute book into the examinationhall?

Underline key phrases and words in the question and thenmake absolutely sure that you use these in your answer andthat the content of your answer is relevant to those keypoints in the question.

Review the main points of the answer by brainstorming.Order your ideas and use cases to substantiate your answer.

Do refer back to the question whilst writing out your answer.

Concentrate on making distinct and separate points, backedby references/authorities.

Write in clear, simple English, and keep your sentences short.

Avoid large, undigested paragraphs of jargon orcolloquialisms.

Do not waffle, and be relevant. The examiner will detectirrelevant trivia. Note that the examiner is an experiencedperson with substantial knowledge of substantive legal issues(otherwise he or she would not be an examiner!)

Allocate sufficient time for each question very strictly.Remember that when an examiner is constructing anexamination paper time is allowed for reading the question,preparing the answer, writing it and reading it through once ithas been completed.

LAST MINUTE REVISION TIPS

I insert these points now so that your mind will be sufficientlyconcentrated towards the end product: passing thisexamination well.

With the actual examination day approaching fast, last minuterevision becomes of key importance, but don’t overdo it! Youwill need to allocate your final revision time carefully.

Prepare a revision programme:

� Prepare for yourself your own schedule of topics to becovered during the revision period.

� Allow time for emergencies that may occur during thiscritical time.

Plan your time carefully:

� Think about how you are going to use your time. It is agood idea to do 40 to 45 minutes intensive study and

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then have a 10-minute break. A two-hour stretch at atime is about the maximum that you will be able to do atany one time.

� Make sure that you will not be disturbed.

2. THE NATURE OF THEENGLISH LEGAL SYSTEM

READING PATH:University of London ELS subject guide Chapter 1Slapper & Kelly, Chapters 1, 2 and 11Smith & Bailey, Chapters 1-4Zander – The Law-Making Process Chapters 1 and 2.

From the website subject page:

Soundfile: Introduction to the English legal systemLecture Notes: Introduction to English and EU lawLecture Notes: Sources of law (1) – Judicial Precedent – Casesas a source of lawLecture Notes: Sources of law (2) – UK LegislationLecture Notes: Common law and equity

THE NATURE AND SOURCES OFENGLISH LAW

English law is a “common law” system, based on precedent,unlike the “civil law” systems of continental Europe, such asFrance and Spain. There are still traces of such civil lawsystems in certain overseas jurisdictions, such as some statesof the USA which were former French and Spanish colonies,although most American law is common law based. Anotherexample: the legal system of the Canadian province ofQuebec is based on the Napoleonic civil code, although therest of Canada maintains the system of English common law.

England once had a civil law system as well; the legacy ofRoman occupation, which ended at the beginning of the fifthcentury AD. It may be said therefore, that English law beganas a civil law system but has moved away from that position.The notable exception is the Scottish legal system, which isstill based on Roman law.

After the Romans left England, there was no unified system oflaw. Local courts were locally administered by individual locallords on a regional or parochial basis, e.g. the shire courts,the hundred courts and the franchise courts. It was fromthese courts that the local “common” law developed, and thecivil law which had prevailed under the Roman occupationdisappeared except in the Church, which retained it as thebasis of ecclesiastical law.

Certain milestones in the development of English common laware revealed by the following chronology:

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1066: The Norman Conquest. Following the conquest, astrong centralised system began to develop, centred on theKing and his Council, the “Curia Regis” (Latin for “King’sCouncil”), which established courts on a national basis. Thisdevelopment ensured certainty and consistency andconstituted an early form of precedent, although also somerigidity also developed in the means of starting actions by“writs”. If there was no applicable writ, there was no remedy.Also, there were no rules of evidence, no disclosure orsubpoena procedure to compel written or oral evidence to begiven and no alternative to money damages. The rich had thebest chance of succeeding in all actions. Curiously, it was therich, i.e. a group of English barons at Runnymede whoattempted to address this and other grievances by forcing theking to sign the Magna Carta in 1215.

1258 the Provisions of Oxford. This statute prohibited furtherexpansion of writs, and then more formally Parliament becamesettled in London. Thus by the middle ages both case law andstatute law were established sources.

The rigid writ system was subsequently developed by the riseof “equity” (or a “gloss upon the law”) which createdflexibility in the discretionary remedies which could beobtained from the Lord Chancellor, This was the origin of themodern remedies of specific performance and injunction.However, its very flexibility created a disadvantage as it madethe law less certain. It was said that in some cases the lawvaried “with the length of the Chancellor’s foot”! For centuriesthere were different courts for cases involving either law orequity until the Judicature Acts of 1873-75.

1873-75 – the Judicature Acts. This legislation united law andequity and made both available in all courts.

In modern times more new courts and sources of law haveappeared, notably:

� the European Court of Justice and its satellites in Brussels

� the Council of Europe, in Strasbourg, together with:

� the Council of Ministers,

� the European Commission and

� the European Parliament

All these have established a system of European law, which isbinding in England and Wales following our accession to theTreaty of Rome 1957 and the setting up the EuropeanCommunity. Our participation in this whole system waseffected in English law by our own statute; the EuropeanCommunities Act 1972. European Community Law, bindingon us under this Act, comes from the primary source ofEuropean treaties and the secondary source of Regulations,Directives and Decisions. As European law is a separatesubject, there is no need here to explore this further.

1998: The Human Rights Act. The European Convention onHuman Rights and Fundamental Freedoms, was imported into

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English Law by the Human Rights Act 1998 now in force. TheEuropean Court of Human Rights is in Strasbourg.

Our own statutes are made by Parliament at Westminster inLondon. Statute law comprises primarily:

Acts of Parliament or secondary (or subordinate) legislationmade in the form of Statutory Instruments, under powersconferred in the parent Act, or…

Orders in Council (the Privy Council is the moderndescendant of the Curia Regis) or…

Byelaws.

Acts starts out as Bills, which, if passed through both Housesof Parliament, are formally given the Royal Assent, when theyare said to be “placed on the statute book”.

PUBLIC LAW AND PRIVATE LAW

Public law regulates the relationship between the state andthe citizen, e.g. criminal law, constitutional and administrativelaw.

Private law concerns relationships between individualcitizens, e.g. the law of contract, tort and divorce. Some areasof law are more logically hybrid, e.g. consumer protection, apart of contract law but regulated by the state.

CIVIL LAW AND CRIMINAL LAW

Civil law is basically private law, although the state establishesthe framework within which such private legal rights can beasserted. Sometimes a civil case will involve both public andprivate law liability.

The objects of civil and criminal law are different.

Civil law aims to adjudicate between private persons’ rightsas between themselves, and to compensate the individual inthe right.

Criminal law seeks to punish the wrongdoer for anti-socialbehaviour and thus to deter others from criminal activity.

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3. THE LEGAL PROFESSION

Before we examine this subject area which is covered by ‘legalservices’ in the syllabus, please visit the following websites:

The General Council of the Bar

www.barcouncil.org.uk

and

The Law Society

www.lawsociety.org.uk

You will know that the practising English legal professionconsists of barristers, solicitors and legal executives, who allhave their own regulatory bodies. Academic lawyers inuniversities are not necessarily professionally qualified aspractitioners unless they belong to one of these groups.

SOLICITORSIf a barrister is the equivalent of a consultant, then it might besaid that a solicitor is the general practitioner of the legalprofession. They are regulated by the Law Society, on whoseRoll they must be in order to be recognised as solicitors inpractice.

Solicitors work in offices, either as sole practitioners or inpartnerships. Their work is varied; everything from wills tocontracts, conveyancing to debt collecting, personal injuryand business law to matrimonial cases. They do thepreparatory work before a case goes to court and unlikebarristers, deal directly with the client who instructs them.

Solicitors also divide into general practitioners and specialists,but the big divide here is between the City, usually largelycommercial, firm and the high street general practitioner.

Solicitors are entitled to appear as advocates in all courtsexcept the High Court and above, to which they have accessprovided they possess a Higher Courts Advocacyqualification, for which an examination is necessary. TheCourts and Legal Services Act 1990 first widened solicitors’rights of advocacy, but many solicitors have not taken upthese rights. It appears that in practice the division of workbetween barrister and solicitor is a practical one. It works well,because all too often it is not cost effective for solicitors to doall their own advocacy when a specialist barrister, doing itevery day, can take on the presentation in court of a casewith less disruption than if the solicitor left the office for theday to advocate in court himself. In the same vein, solicitorscan also “take silk” and become ‘Queens Counsel’.

The Law Society has also become more relaxed aboutsolicitors advertising their profession. Solicitors are nowpermitted to compete with other professionals, such asaccountants and licensed conveyancers, who have been

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systematically making inroads into the work of both barristersand solicitors. Standards within the profession have beentightened up, and a new more effective system of dealing withcomplaints has been developed.

SOLICITOR QUALIFICATIONS

Solicitors qualify, like barristers, either through a qualifying lawdegree or by graduation in another discipline plus passing theCPE or postgraduate Diploma, and then taking a Legal PracticeCourse, offered by one of many institutions nation-wide whoare validated by the Law Society to do so. They must thenundertake a 2 year training contract, the solicitors’ equivalentof pupillage.

BARRISTERS

These are the consultant specialists, also called “counsel”,who work in “chambers” rather than offices. They are solepractitioners sharing accommodation and office systems andservices, rather than working in any form of partnership.Barristers are accessed by the general public only via“instructions” from a solicitor. There is also, however, asystem of “direct professional access” by which overseaslawyers and certain UK or overseas-based professions, suchas accountants, town planners and architects may approach abarrister directly without going through a solicitor.

As barristers traditionally did not, or theoretically do not,discuss money, they still have no right to sue for their feesand until the recent case of HALL v SIMONS, (The Times, 21 July2000), they were also immune from actions for negligence incases conducted in court, although they could be sued fornegligent advice given outside court cases. See RONDEL vWORSLEY [1969] 1 AC 191. This immunity no longer applies.The immunity which solicitors also had when acting asadvocates (see SAIF ALI v SYDNEY MITCHELL & CO [1980] AC198) has also been lost following HALL v SIMONS.

QUALIFYING AS A BARRISTER

Barristers are “Called to the Bar” by one of the four Inns ofCourt. These venerable collegiate institutions have the soleright to “call” barristers. Each Inn is governed by seniorbarristers and judges called “Benchers”. The Courts andLegal Services Act 1990 s 27 expressly preserved the soleright of Benchers to call student barristers once they havesuccessfully completed a Bar Vocational Course taken at oneof eight institutions validated by the General Council of theBar, to whom the 1990 Act gave the right to supervise Bareducation.

The prerequisite for undertaking the Bar Vocational Course isa “qualifying law degree” taken at a recognised university.Alternatively, those graduating in another discipline may takethe Common Professional Examination (also called thePostgraduate Diploma in Law) following a fast track, one yearconversion course which offers the core subjects studied inthe qualifying law degree. This is followed by a year in

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pupillage, during which they are entitled to undertake theirown court cases and advisory work, after 6 months, underthe supervision of their pupil masters – or pupil mistresses.

Following successful completion of pupillage, newly qualifiedbarristers must practise at first in a recognised set ofChambers, which involves finding a “tenancy” in such a setafter the end of their pupillages. However, since the Courtsand Legal Services Act 1990, they may practise from home, orfrom an office without the need for belonging to a formal setof chambers. Unless invited to remain in their pupillageChambers, finding the tenancy is often the young barrister’sworst hurdle in starting practice, and many pupils neverobtain one, and instead are compelled to leave theIndependent Bar for employed practice or other destinations.

THE BAR CODE OF CONDUCT

Throughout barristers’ careers, they are regulated by a Codeof Conduct, which is revised regularly. One core requirementof the Code is the “cab rank rule” which requires all barristersto accept any work offered unless it is either outside thescope of the barrister’s practice, or the barrister isunavailable. This means even legal aid (i.e. publicly funded)work, remunerated at rates less than the barrister’s usualtariff, must be accepted. Quality assurance initiatives, such as“Barmark” which requires certain standards of management,and observance of equal opportunities and other policies,have been progressively introduced to address the Bar’serroneous public image, which is often of an elite “fat cat”profession, out of touch with the contemporary scene.

AN ERA OF CHANGE

In recent years, the Bar has been forced to becomecompetitive, not least by such decisions as HALL v SIMONS.The changing legal landscape has also meant that barristershave abandoned some of their old customs such as a ban onadvertising. They may, since 1990, now advertise theirservices. Also, equal opportunity means that they areaccessible to all, regardless of race, sex, creed etc. Instructingsolicitors may not discriminate against any member of the Baron the same grounds, e.g. by asking for a “male (or white)barrister”.

THE EMPLOYED BAR

Barristers may work outside self employed independentpractice, as “in house lawyers”. Since the Access to JusticeAct 1999, such lawyers now have rights of audience in court,whereas previously they did not. (Formerly they merelyadvised their employers in the course of their employment,without taking on any other legal work).

The largest employer of barristers is the Crown ProsecutionService (CPS), but most large commercial concerns maintain an“in house” lawyer to conduct their legal business, whether bydirectly doing it personally, or instructing solicitors or counselas necessary.

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The Bar Association for Commerce, Finance and Industry(BACFI) represents the interests of employed barristers. Thereare also specially designated seats on the Bar Council,allocated for the representation of this section of the Bar inproportion to their numbers.

TRADITIONAL DIVISIONS OF THE BAR

The Bar is traditionally divided into general law and specialistsections, represented by the relevant Bar Associations andthe division of Chambers into specialist areas of practice andpractice groups within them.

Chancery practitioners find Chambers in Lincoln’s Inn(though there are some in the Temple and Grays Inn)

Common lawyers practice in the Temple or Gray’s Inn.

Commercial lawyers are to be found in all the Inns. It isimportant to note that in practice, much of the heavycommercial litigation takes place in the modern ChanceryDivision of the High Court, much more so than in formertimes when “Chancery” meant almost entirely eruditepaperwork on trusts, wills, tax, mortgages and so forth.

Within the typical Chambers, work now tends to beconcentrated in “practice groups” – practical groupings ofbarristers doing the same specialised work, and supportingeach other in providing cover for cases where one of theteam is engaged elsewhere. Outside London, practitionerswithin the regional Bar also specialise, but to a lesser extent.

QUEENS COUNSEL

Leading barristers eventually become Queens Counsel(“QCs”). This is an appointment made by the Lord Chancellorin an annual competition in which those wishing to “take silk”must apply to him for the honour, which tends to be given toa about 10% of the Bar overall. Only those in self employedor employed practice “take silk” although occasionally there ishonorary silk given to an academic,

An issue for discussion

Will the latest changes in rights of audiences be likely to leadto fusion of the legal profession in England and Wales?

Would this be a good thing, or do you think there aredisadvantages?

LEGAL EXECUTIVES

Staff of solicitors’ offices and other interested parties may nowqualify as legal executives by taking examinations formembership and fellowship in the body which regulates theirqualification and recognition: namely The Institute of LegalExecutives. The Institute (called ILEX) was established in 1963.

Frequently, such staff go on to qualify as solicitors via on thejob training, night classes, day release or distance learningroutes to examinations. This route is particularly suitable for

Chapter 1


legal executives who are often highly experienced specialistsin key areas of law, especially crime, matrimonial, orconveyancing. Members of ILEX do not have rights ofaudience in court, but can go before the minor judiciary or onuncontested matters before judges.

OTHER PROFESSIONALS

Other professionals include such groups as licensedconveyancers, probate practitioners and immigrationpractitioners. The profession of licensed conveyancer wasdeveloped following the Administration of Justice Act 1985which ended solicitors’ monopoly in this area of law, and alsolicensed probate practitioners. More recently, the HomeOffice has set up a system for registering and regulatingimmigration practitioners following sweeping changes toimmigration law and it is likely that more such sub-professionsmight be developed.

The trend is now firmly against monopoly. Lord Mackay ofClashfern, when Lord Chancellor, extended rights of audiencesignificantly in the Courts and Legal Services Act 1990 andLord Irvine, the present Lord Chancellor, continued theprocess in the Access to Justice Act 1999.

Nevertheless, the legal profession (in England and Wales)remains divided, with solicitors performing their functions andbarristers theirs, unlike most other countries where there is afused profession in which practitioners must qualify in bothskills. Certain opinion has it that a fused bar would force alllawyers to become more competitive and to offer serviceswhich would be more economical for clients. Others say it isdoubtful that a fused bar would really save money for clients.The argument is that barristers and solicitors still retain distinctfunctions, in practical terms as well as by name, despite anincrease in the crossover of their work in certain cases .

GOVERNMENT LAW OFFICERS

The government has its own “in house” lawyers, who, unlikeother employed barristers, have always gone to court fortheir employer when required. The highest rankinggovernment law officers are the Attorney General, the SolicitorGeneral and the Director of Public Prosecutions.

The Attorney-General is a very ancient office, dating from theMiddle Ages. He is assisted by a Solicitor-General, who is nota solicitor at all. Both are in fact barristers! Their remit is toconduct important cases on behalf of the government, e.g. theFACTORTAME litigation in the European Court, together withother important functions under both civil and criminal law.

The third high profile lawyer employed by the government isthe Director of Public Prosecutions, (or “DPP”) who headsthe Crown Prosecution Service.

Chapter 1


THE JUDICIARY

The English judiciary, full and part time, is drawn from formerpractitioners. unlike continental countries where judges aretrained straight from university, as an alternative to practisingas lawyers and advocates, There is no career judiciary inBritain. See below for a more detailed exploration of thejudiciary and its tasks.

From the professional judiciary, full and part time, must bedistinguished the magistracy. Lay magistrates sit in the firstlevel of courts, to hear both criminal and some small civilcases. They also carry out certain administrative functionssuch as licensing. The work of most magistrates courts iscriminal, with 97% of all criminal cases coming before them atsome stage. Their civil work is considerably less.

Chapter 1


SELF-ASSESSMENT QUESTIONS

All the answers can be found in the recommended materialsor the above summaries.

1. Distinguish between:

� common law and civil law

� civil law and criminal law

� public law and private law

� common law and equity

2. What are the sources of English law?

3. Distinguish between:

� barristers and solicitors

� solicitors and legal executives

4. What other types of legal practitioners are there andwhat do they do?

Copyright © Semple Piggot Rochez Ltd 2001LLB_ELS_Ch01(08/01)



THE COURT STRUCTURE

CONTENTS

The Court Structure, Tribuals and ADRs .................................... 1

Civil Courts .............................................................................. 2

Reform of Civil Justice ............................................................... 7

The Development of Tribunals and Inquiries ............................. 7

Alternative Dispute Resolution (ADR) ...................................... 11

Chapter 2



THE COURT STRUCTURE

READING PATH:University of London ELS subject guide, Chapter 2

Slapper & Kelly, Chapters 3 and 8

Smith & Bailey, Chapters 2,4,10,12,15 and 16

Zander, Cases and Materials, Chapter 1.


Soundfile: The Civil Court

Lecture Notes: Introduction to English and EU law

Lecture Notes: Legal disputes and their resolution

1. TRIBUNALS ANDALTERNATIVE DISPUTERESOLUTIONS (ADR)

Civil and criminal court systems are completely separate,although some courts do both civil and criminal work. Ahelpful diagram of the courts, showing the overlap of civil andcriminal work, can be found in lecture notes 3 which you candownload now.

This chapter, however, concentrates exclusively on the civilsystem. For the criminal system, see Chapter 6.

Not all civil matters are handled by courts. There is also aframework of tribunals which are not courts as such. Insteadthey are informal; created under specific statutes to enablemembers of the public access a more informal method ofresolving disputes often by specialists and often without thenecessity for legal representation. Logically, such tribunalsusually deal with specialist matters with which it is thoughtthat the courts are considered to ill equipped to deal.

There is no relation between the court and tribunal systemsas such, i.e. tribunals are not inferior courts within the courtsystem, although cases do go from tribunals to courts insome cases on appeal. For example, appeals from the LandsTribunal (which itself exercises an appellate function fromother property tribunals) will go to the High Court and ifnecessary, the Court of Appeal on a point of law, oralternatively they will be referred to “the court” (e.g. theCounty Court) where a specific statute gives that court theduty of deciding a matter of law within the particularlegislation.

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ADR (alternative dispute resolutions) is the third string to thecivil system. Which broadly breaks down further into twoseparate systems of arbitration and mediation. It is useful toview the Centre for Alternative Dispute Resolution (CEDR) ontheir website at: www.cedr.org.uk.

Arbitration may be by agreement or governed by theArbitration Act, where a duly appointed arbitrator decides adispute in a binding resolution.

Mediation is a distinct concept where a neutral third partyassists the parties to the dispute to resolve their differences ina timely, cost effective and mutually beneficial manner, withoutrecourse to litigation. Mediation is usually non-binding, butnonetheless has evolved in recent years to provide manycreative variants. The disputatious parties may, for example,agree that they will accept a decision made by such a thirdparty in a process known as “neutral evaluation”.

ADR now has a formal role in the post Woolf system of civiljustice, where the rules provide for (and courts regularlyinvite the parties to consider) an adjournment for ADR to betried in order to seek a resolution of a dispute which hasreached litigation.

Both ADR and tribunals should be distinguished fromCommissions and Inquiries which are often set up to inquireinto disasters, business and financial scandals (and sometimesunder the Companies Acts) or specific events, such as theScott Inquiry, the Blue Arrow Inquiry, the BSE Inquiry and theBloody Sunday Inquiry.

2. CIVIL COURTS

The civil courts to be found in the diagram referred to abovecan be listed as follows in ascending order or importance:

� the Magistrates Courts

� the County Court

� the High Court of Justice (with its Divisions andDivisional Courts)

� the Court of Appeal, Civil Division, and

� the House of Lords.

It is useful to memorise the individual courts and their positionin the hierarchy.

The High Court and the Court of Appeal – form the SupremeCourt of Judicature, set up by the Judicature Acts 1873-5. Itsjudges are Supreme Court judges, either of the High Court orthe Court of Appeal.

If they are in the High Court they are called The HonourableMr Justice (second name) although all are knighted, and inprivate life are correctly titled Sir (first name and secondname). They are addressed as ‘My Lord’ or ‘My Lady’.

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In the Court of Appeal, judges are called The RightHonourable Lord Justice (second name) although they remainknights, and are still Sir (first name and second name) inprivate life. They are addressed as ‘My Lord’ or ‘My Lady’.

Judges at both levels receive the same salary, although theLords Justices of the Court of Appeal are also PrivyCouncillors (members of the Queen’s Privy Council) whichentitles them to be Right Honourables instead of merelyHonourables! This distinction was agreed at the time of theJudicature Acts when the two levels of judge were asked ifthey would prefer a higher salary in the Court of Appeal tobeing Privy Councillors, and chose the latter.

The County Court was established in 1846 to provide acheaper system of local justice than was available in the HighCourt. Its judges are circuit judges and district judges, whoare not knights and are styled His (or Her) Honour Judge(second name) for circuit judges, or ‘Sir’ or ‘Madam’ fordistrict judges. Some are promoted to the High Court, but thiscareer progression is rare. It is also still rare for the promotionof District Judges to the Circuit Bench.

THE MAGISTRATES COURT

Apart from its main criminal jurisdiction, the Magistrates Courtdeals with a large volume of civil work, including:

� licensing

� certain civil debts

� family cases (under the title of the Family ProceedingsCourt) including domestic violence, spousal maintenance,financial provision for children under the Children Act1989, applications for private law orders and care andother orders for the protection of children, also underthe Children Act

THE COUNTY COURT

This court’s jurisdiction is governed by:

� the County Courts Act 1984

� the Courts and Legal Services Act 1990

� the High Court and County Courts Jurisdiction Order1991 and

� the new Common Procedure Rules 1998 (the “CPR”) .

The CPR came into force in April 1999. The CPR are acommon set of rules for High Court and County Court in thepost Woolf era of civil justice and have created a newlandscape of justice which rests on an ‘overriding objective’to be found in rule 1 of the CPR.

The County Court jurisdiction is now unlimited except thatpersonal injury actions where expectation of damages

Chapter 2


exceeds £25,000 may be started in the High Court and will beheard there unless transferred to the County Court, Thecriteria in both cases are set out in the Jurisdiction Order.

County Court work covers traditional Chancery matters (suchas recovery of land, actions in equity, bankruptcies, probateand company winding up) as well as ordinary common lawmatters such as family law and consumer credit, together withPatents and landlord and tenant, which in the High Courtmight be dealt with in either the Queens Bench or Chancery.Traditionally the work is undertaken by both Common Law orChancery and/or Commercial lawyers.

ENFORCEMENT

The syllabus mentions the enforcement of judgments inoutline only. It is sufficient to say that most county courtcases are to collect debts and enforce the judgment when themoney is not forthcoming.

Under the new CPR system, cases of a value lower than£5,000 go to “informal arbitration” also called the “smallclaims” procedure, by a “District Judge” (i.e. the assistantjudge level in the county court) Higher value cases go to thefast or multitracks depending on whether they are of a valueof under or over £15,000, exactly as in the High Court.Other criteria, e.g. of importance or complexity, might changethe allocation of a case within these boundaries.

THE HIGH COURT

The High Court is divided into three basic divisions, each ofwhich are further sub-divided. A High Court judge onappointment is assigned to a specific division, and althoughany High Court judge (called a “puisne”, meaning lesser,judge) can deal with any matter, they tend to specialise.

The Divisions of the High Court have Heads and are asfollows:

� Queen’s Bench Division (Lord Chief Justice, now LordWoolf, LCJ)

� Chancery Division (theoretically the Lord Chancellor, inpractice the Vice-Chancellor, now Lord Morritt, V-C)

� Family Division (President of the Family Division, nowLady Justice Butler-Sloss, P).

The Queen’s Bench Division is the largest of the Divisions,and deals with contract and tort. It also has specialist courts,such as the Admiralty Court, which deals with claims forinjury and loss due to collisions at sea, and the CommercialCourt, which deals with insurance, banking, agency andnegotiable instruments.

The Queen’s Bench Division also has civil appellatejurisdiction from:

� certain tribunals and arbitrators (by a single judge)

Chapter 2


� certain civil functions, e.g. Solicitors Disciplinary Tribunal(by two judges in the Divisional Court)

� all inferior courts (issuing what were once called theprerogative orders of mandamus, certiorari, habeascorpus and prohibition) and within this regime, also dealswith judicial review. See the glossary below for thechange in terminology.

The Chancery Division deals with the same traditionalChancery matters as may also be handled at county courtlevel, taking the more complex and/or the more valuablecases, as well as a great deal of heavy commercial litigation,which is the staple diet of the modern Chancery Division.

In particular the division is specially appropriate in caseswhere there is a need to apply any of the traditional equitableremedies, such as rectification of deeds, and where specialistexpertise is required such as by the Companies Court, thePatents Court and the Court of Protection.

Planning is also a part of the traditional property jurisdiction ofthe Chancery Division.

The Chancery Division also has appellate jurisdiction (one ortwo High Court judges of the Chancery Division), from theCommissioners of Inland Revenue, and from the CountyCourt in bankruptcy and land registration.

The Family Division was created by the Administration ofJustice Act 1970 and deals with all family matters including:

� marriage, nullity, divorce, judicial separation, includingfinancial matters following any decrees relating to thesematters

� domestic violence and family property disputes outsidedivorce, etc. and not in the Chancery Division

� legitimacy, adoption, wardship

� all applications under the Children Act 1989

� artificial reproduction

he Family Division has an appellate jurisdiction (two HighCourt judges of the Family Division) from:

� county courts

� magistrates courts (called Family Proceedings Courts forthe purpose of their family jurisdiction)

THE COURT OF APPEAL

This Court is presided over by the Master of the Rolls,currently Lord Phillips MR, and is served by the LordsJustices of Appeal, by the Heads of Division and by a numberof senior High Court judges who can also sit if the workloadrequires.

Chapter 2


The Court of Appeal hears appeals from:

� the three divisions of the High Court, and their divisionalcourts

� the county courts

� the Employment Appeal Tribunal, Lands Tribunal, andTransport Tribunal.

Normally three judges sit, although two can be sufficient, e.g.for leave to appeal or where the parties agree. In the case ofan important appeal, sometimes five judges are convened, forexample. the case of DAVIS v JOHNSON [1979] AC 264 wherethe five judges sitting were referred by Lord Denning to as“the court of all the talents”.

THE HOUSE OF LORDS

This is the supreme court of appeal for civil and criminal casesin Great Britain and Northern Ireland (not simply England andWales).

Appeal requires leave of the court below, i.e. the Court ofAppeal or the High Court or Divisional Court if there is a“leapfrog” appeal under the provisions of the Administrationof Justice Act 1969, ss.12-15. For this ‘leapfrog’ effect to beput in place, the trial judge must certify that there is a point ofpublic importance which needs to go directly to the House ofLords because there is a question of statutory interpretationand an authority on the point by which the Court of Appeal isbound. The parties involved must also consent and theHouse of Lords must itself give leave to appeal.

Appeal Committees may consist of three or five (sometimesseven) Lords of Appeal in Ordinary, also called “Law Lords”.They hear the appeal in a room outside the Chamber of theHouse and then deliberate on their decision in the normalway. Their decision, however, (although not the wholejudgment giving reasons and called a “speech”,) is thendelivered in the Chamber, as this is technically a decision of acommittee of the House.

The Judicial Committee of the Privy Council comprises thesame Law Lords, sometimes joined by the Lord Chancellor,senior Commonwealth judges and Privy Councillors, andhears civil appeals from the Ecclesiastical Courts and certainprofessional tribunals, as well as having a criminal appellatejurisdiction from those Commonwealth countries which havenot abolished this appellate route.

EUROPEAN COURTS

European Courts include the European Court of Justice andthe European Court of Human Rights. Although they do notform part of the English system of civil justice, if a case isreferred to them, e.g. to the European Court on a question ofinterpretation or validity, then the European Court is supreme:H P BULMER LTD v J BOLLINGER SA [1974] Ch 401.

Chapter 2


As the Convention on Human Rights and FundamentalFreedoms will have direct effect in English law, following theimplementation of the Human Rights Act 1998, it should nolonger be necessary for a case to go to the European Court ofHuman Rights

OTHER CIVIL COURTS

Other types of civil court include:

� Coroners courts (inquests into deaths, inquiries intotreasure trove, etc.)

and …

� Ecclesiastical courts.

3. REFORM OF CIVIL JUSTICE

There have been many initiatives to reform civil justice sincethe mid 1980s when the then Lord Chancellor, LordHailsham, began a review of civil justice. Its findings wereimplemented in the Courts and Legal Services Act 1990, whichredistributed court business, leading to the Order of 1991already mentioned.

In directing more work towards the county courts, this orderstarted the trend towards the trial of cases at the lowestappropriate level, which has been continued by the WoolfReport and subsequent legislation implementing Lord Woolf’srecommendations.

4. THE DEVELOPMENT OFTRIBUNALS AND INQUIRIES

Tribunals, which have existed for about 200 years, were firstestablished to deal with Income Tax as long ago as 1799. In1873 the precursor of the contemporary Transport Tribunalwas set up to deal with disputes between the railway andcanal companies and between those companies and theircustomers.

Subsequently, tribunals have multiplied, particularly since theSecond World War, when there was an escalation ofadministrative decisions in the wake of the creation of thewelfare state. This expansion in the number of tribunals,however, had its origins as early as 1911 when the NationalInsurance Act set up an unemployment benefit scheme.Appeals under this scheme were initially referred to a “courtof referees” from which there was an appeal to a national“umpire”. This scheme proved superior both to the referral toarbitration which had been used under the Workmen’sCompensation Act and to referral to county court judges, andif necessary onwards to higher appeal.

Chapter 2


From these beginnings the tribunal system evolved further. In1957, it was reported on by the Franks Committee onAdministrative Tribunals and Enquiries, which, recognisingthat tribunals had come to stay, also recommended theestablishment of a Council on Tribunals to supervise theirprocedures. Other recommendations were implemented insubsequent Tribunals and Inquiries Acts 1958, 1971 and1992. A review under the chairmanship of a retired Court ofAppeal Judge, Sir Andrew Leggatt, which will report some timein 2001.

THE COUNCIL ON TRIBUNALS

Overall, there are now nearly 100 types of tribunals, mostwithin the jurisdiction of the Council on Tribunals, and ahandful outside that jurisdiction. The Council’s contemporaryrole is to monitor and review the operation of tribunals, forwhich the Council regularly and routinely sends observers tosit in on proceedings, report back to the Council and possiblydisseminate to additional interested parties for trainingpurposes. Each year, the Council writes an annual report onthe carrying out of their statutory function.

Each tribunal is usually linked to the government departmentresponsible for the specialist legislation which created it,though for some their link is directly with the LordChancellor’s Department through the LCD agency, the CourtService. Independent lawyers are appointed as chairs andfollowing the case of STARRS v PROCURATOR FISCAL (The Times,17 November 1999) in Scotland, these part time judicialappointments to tribunals in England and Wales are generallynow to be for a period of 5 years in the first instance, andsubject to the age limit for the appointment, to be terminatedbasically only for bad behaviour, incapacity or operationalchange making them in effect redundant.

Besides those already mentioned, the wide operational area oftribunals includes:

� VAT Tribunals

� Employment Tribunals (formerly called IndustrialTribunals)

� Social Security Tribunals

� Rent Assessment and Leasehold Valuation Tribunals

� Mental Health, Medical and Disability Benefits Tribunals

� Vaccine Damage

� Registered Home

� National Health Service

� Special Educational Needs, and

� Child Support Appeal Tribunals

Chapter 2


PROFESSIONAL TRIBUNALS

Professional tribunals outside this wide range include theGeneral Medical Council and tribunals which regulate theprofessional conduct of the Bar and solicitors. The courts canintervene to ensure that these tribunals have not acted “ultravires” or outside their remit, using the prerogative writs ofmandamus, certiorari or prohibition. This means to performsome duty such as allow an appeal, to inform the High Courtof the facts if it has acted ultra vires, or to prevent an excessof jurisdiction.

ADMINISTRATIVE TRIBUNALS

Sometimes the disputes are between government departmentsand individuals (hence the term “administrative tribunals”) andsometimes between individuals, e.g. the Leasehold ValuationTribunal values freeholds and leaseholds for enfranchisementand determines the reasonableness of service charges leviedby landlords and managing agents.

THE TYPICAL TRIBUNAL – STRUCTURE

A tribunals is a committee consisting of a lawyer or otherprofessionally qualified chair, and two specialist members, ofwhom one will be the “expert lay member”, or theprofessional common sense element within the committee.

The expert or specialist in question may be a magistrate, orany person with some experience of committee work,preferably with some reference to the subject matter normallydetermined by the tribunal. Some chairs are able to go it alonefor certain types of cases, e.g. under the Trade Union andEmployment Rights Act 1993, and the Traffic Commissioners,when regulating the road haulage and bus industries underthe Goods Vehicle (Licensing of Operators) Act 1995 or thePublic Passenger Vehicles Act, always sit alone.

ADVANTAGES OF TRIBUNALS:� informality (no rules of procedure and evidence beyond

natural justice)

� perceived impartiality duty to hear both sides of the case

� independence (nemo judex in causa sua)

� speed in comparison to the courts (though delays stilloccur due to lack of sufficient administrative support)

� flexibility

� cheaper cost (but costs not normally awarded, so notrecoverable by the winner

� specialism and expertise (often lacked by the courts)

� hearings usually public though some are private.

Chapter 2


DISADVANTAGES OF TRIBUNALS:� lack of representation (unless the applicant/respondent

wishes to pay for it)

� potentially inadequate appeal provisions

� other tribunals decisions and those of appellate tribunalsare persuasive)

� potential bias (usually now addressed by a register ofinterests kept by the tribunal president)

� expediency at the expense of justice.

THE FUTURE OF TRIBUNALS

Balanced against the advantages enumerated above, some ofthe disadvantages of tribunals have given rise for concern.Doubts have been expressed about the performance oftribunals and it was inevitable once the Woolf reforms were inplace in the courts, that there would be a review, at least todetermine how best to ensure consistency. It was alsodecided to assist the tribunals in doing their work by givingthem more administrative support and possibly also to extendtheir jurisdiction and area of operation, so as further to relievecourts of the resulting burden of work.

Since the 1957 Franks Report, there have been subsequentreports, including the 1980 special report on “The Functionsof the Council on Tribunals” (Cmd 7805) and the 1988JUSTICE-All Souls Report on “Administrative Justice”. Neitherreport has succeeded in taking these matters further. Ideally,the work of tribunals could and should now be bothextended and formalised to operate as alternative to easecourt overloads, in cases where appropriate.

Some points you should consider from this chapter:

� Should the Council on Tribunals be given extendedpowers?

� Should its composition be altered and its resourcesincreased?

� Should it have a political base, such as a select committeein Parliament?

� Should tribunals have a more formalised method ofoperation?

Chapter 2


5. ALTERNATIVE DISPUTERESOLUTION (ADR)

ARBITRATION

SUMMARY

Popular in England and Wales for some time, arbitration is ameans of settling disputes other than by court action. Itinvolves the appointment of one or more persons to hear thearguments put forward by the parties and to decide uponthem. It is to be noted that an arbitrator’s awards are final,and can include an order to pay costs. The award can beenforced like a court judgement.

Its advantages, of particular appeal to the commercial client,include:

� privacy

� speed

� cost

� relative informality

The court may refer a matter to arbitration either byagreement or under the Arbitration Act. This will likely bebeneficial if the matter is complex or technical. Such anagreement can be either oral or written, but the Act onlyapplies to the latter. The agreement will either name thearbitrator or the trade or professional association whosenominee will be appointed.

THE POWERS OF THE ARBITRATOR

Once appointed, the arbitrator can fix and time and place ofthe hearing, examine witnesses and parties on oath exactly asa court could, and has power to order disclosure as a courtcould. Many arbitrators are appointed for their expertknowledge thus reducing costs because experts are notneeded.

It should be re-asserted and stressed that an arbitrator’sawards are final, and can include an order to pay costs. If andwhen necessary, the arbitrator can employ a legal adviser todraw up the award, or can state a case on the law for theopinion of the court. The law is then applied to the facts, aprocedure which a party can compel in appropriatecircumstances.

An arbitrator’s award will only be set aside by the court formisconduct, procedural irregularity in terms of natural justice(e.g. refusing to hear one party, communicating with oneparty privately or examining witnesses in the absence of oneof the parties). The award can be enforced like a courtjudgment.

Chapter 2


An arbitration clause in a contract can be enforced against anactual or potential litigator by applying to the court to stayproceedings, providing the applicant applies before taking anystep in the proceedings and of course that the action beforethe court is actually covered by the agreement in question.

MEDIATION

The Centre for Alternative Dispute Resolution (CEDR) acharity which has been in existence for 10 years, hasattempted to spread the use of mediation in English courts Itsbrief includes the provision of training for an increasingnumber of mediators to service court referrals. However,such referrals continue to have a low take up rate, despitemuch pro bono work. Mediation does not incur the sameenthusiasm in England and Wales as it engenders in NorthAmerica or Australia.

Mediation has apparently acquired a poor public image due tothe failed pilot projects under the Family Law Act 1996, whichled the Lord Chancellor to decide to postpone implementationof Parts II and III of the Act due to public hostility to theconcept of routine mediation to resolve disputes on divorce.after attending the pilot information meetings, 39% said theywould be less likely to go to mediation and more likely toconsult a lawyer.

More work obviously needs to be done in this field ofmediation, since it is clearly a useful tool in resolving disputeson divorce in families with limited assets, as has beendemonstrated by the schemes run by organisations such asthe Family Mediators Association and Solicitors Family LawAssociation. Nevertheless, some barristers chambers, whichinitially ran mediation schemes, have reported that they haveclosed them down due to lack of demand.

MEDIATION AND ARBITRATION

It remains a fact that all forms of ADR cost less in bothfinancial and emotional terms than litigation, and resolvematters more quickly. A particularly effective measure wouldbe to combine mediation with arbitration, first to resolve thedispute in general terms, and subsequently to decide anyoutstanding issues, especially if those issues are quantifiable.

Other mediation organisations, such as the Institute ofAdvanced Legal Studies, have now begun to publish up anADR journal to expand the study and practice of all forms ofmediation and other means of alternative dispute resolution.

Chapter 2



All the answers can be found in the recommended materials,your reading list or the above summaries.

1. How is work now allocated between the High Court andCounty Court?

2. What, if any, is the relationship between courts andtribunals? Could this be improved in any way?

3. What is an Inquiry?

4. How does the use of ADR relate to the remainder of thecivil justice process? Could better use be made of ADR?

5. What do you think are the objectives of a “good” civiljustice system?




JUDGES AND JUDICIAL REASONING:THE JUDICIARY AND ITS TASKS

CONTENTS

The Judiciary............................................................................. 1

The Essential Judicial Qualities ................................................... 3

Selection of the Judiciary ........................................................... 7

Training of the Judiciary .......................................................... 10

Chapter 3



THE JUDICIARY AND ITS TASKS


Slapper & Kelly, Chapter 6

Smith & Bailey, Chapter 4

Zander, The Law-Making Process. Chapter 7 – the nature ofthe judicial role in law-making


Soundfile: The Judiciary

Lecture Notes: Sources of law (1) Judicial precedent – Casesas a source of law

1. THE JUDICIARY

A BROAD OR A NARROWERDEFINITION?The judiciary in the widest sense of the term, encompasses allthose holding judicial office of any sort, whether full time, orpart time and at every level. In this sense it includes theTribunals and the professional and lay magistracy.

Unlike the case in continental jurisdictions, there is no careerjudiciary in Britain, either in England and Wales nor in Scotlandor Northern Ireland. However a comparatively minimumdegree of formal training is the remit of the Judicial StudiesBoard – the body which assesses and attempts to meet thejudiciary’s contemporary training needs, a positive contrast tothe past in which the prospective judges received very littletraining or even induction at all.

There is, however, a narrower usage of the term judiciary. Insome contexts, ‘judiciary’ means only those holding judicialoffice at any level who are legally qualified. This definitiontherefore excludes the lay magistracy.

STIPENDIARY AND LAY MAGISTRATES

Although part of the broader concept of the judiciary, the laymagistracy is distinct in that it comprises a large panel of parttime magistrates who are ‘laymen’ i.e. not legally qualified, andwho may otherwise work in any trade occupation orprofession, or not at all, or be retired. In contrast, theprofessional magistracy – once called stipendiary magistrates,but now known as district judges (Magistrates Courts) are

Chapter 3


legally qualified, are full time and are drawn from the ranks offormer practitioners, as are all the professional judiciary,whether full or part time.

Similarly, some Tribunal “chair persons” are full time, whilesome Tribunals have Presidents, who may be either part orfull time.

In the narrowest sense of all, reference is sometimes made tothe term “higher judiciary”, which means judges in theSupreme Court of Judicature and above (i.e. the High Court,Court of Appeal and House of Lords) with whom is usuallybracketed, but kept discrete, the Circuit Bench, i.e. the CircuitJudges who deal with civil work in the County Courts, andalso sit on criminal cases in the Crown Court, which is themain criminal court.

JUDGES’ TENURE

Nevertheless, only High Court judges and above havesecurity of tenure under the Act of Settlement 1701, wherebythey hold office quamdiu se bene gesserint, i.e. “during goodbehaviour” and can only be removed by address of bothHouses of Parliament.

No English judge has ever been removed by this processalthough prior to 1701 James II, whose notorious record fordisregarding judicial independence equalled his father’s fordisregard of the independence of Parliament, never hesitatedto dispense with the services of judges of who would not dowhat he wanted. The largely unassailable tenure of judgestoday is the direct result of a reaction against James II’snotorious abuse of power of the judiciary of his day.

Circuit judges and below can be removed for misbehaviour orincapacity, although only one circuit judge has ever beenremoved (in the 1980s, for smuggling). In most cases where ajudge likely to be removed, he or she simply “resigns”.

DISTRICT JUDGES

A lower rank of full time professional judge is the “DistrictJudge”. District Judges are full time professional judges, formerbarristers or solicitors, who take interlocutory work and someclasses of first instance business to assist Circuit Judges in theCounty Courts and Judges of the Family Division of the HighCourt. The equivalent title for this second rank of judge in theQueens Bench and Chancery Divisions is a “Master”,Queens Bench Master or Chancery Master as the case maybe. In Bankruptcy cases in the Chancery Division, theseMaster level appointments are called “Registrars” (which usedalso to be the name for the District Judges of the FamilyDivision).

RECORDERS

The rest of the judiciary is largely part time, e.g. Recorders,who are practitioners sitting part time in the Crown Court togain their first judicial experience. From these Recorders areappointed all the higher ranks of judges, although it is possiblefor a District Judge to be advanced to Recorder (or to Circuit

Chapter 3


Judge). The former rank of Assistant Recorder has just beenabolished by the Lord Chancellor.

CAREER PROGRESSION

All court ranks of judicial office up to the High Court, exceptRecorder, also offer opportunities to learn the work as a parttimer, in the role of “Deputy”. Thus Deputy District Judgesmay progress to District Judge, Deputy Circuit Judges to theCircuit Bench and Deputy High Court Judges to the HighCourt. This gives the Lord Chancellor, who makes allappointments, the opportunity to monitor a part timer’sperformance before making a full time appointment. At HighCourt level the deputy system stops – High Court judgesadvanced to the Court of Appeal and thence to the House ofLords progress without any further apprenticeship.

Some but not all Tribunals also offer Deputy appointments,e.g. the Traffic Commissioners all have deputies. Since theScottish case of STARRS AND CHALMERS v PROCURATORFISCAL, above, all these deputies now have relative security oftenure in order to stress their independence in not relying onthe state for renewal of shorter terms of office, and thus beingpotentially subject to state influence.

2. THE ESSENTIAL QUALITIESOF A JUDGE

Judges are required to be both independent and impartial. Ithas been said that there is sometimes a conflict betweenindependence and impartiality on the one hand and thecontemporary post-Woolf drive for efficiency.

JUDICIAL INDEPENDENCE

Nothing is more is crucial to the English legal system than heindependence of the judiciary. This principle is reinforced byprotection from removal and the doctrine of judicial immunitywhich protects judges from civil suit in respect of theiractivities during the course of judicial office.

The independence of judges is constitutionally important inaccordance with Montesquieu’s theory of the separation ofpowers. For this reason, judges cannot be members ofParliament and never stand for election to the House ofCommons. However, the Lord Chancellor and Law Lords aremembers of the House of Lords, as they are given lifepeerages on appointment. However, only retired Law Lordssit and vote in the House on ordinary business, while thosecurrently appointed as Lords of Appeal in Ordinary concernthemselves only with their legal business on the Law Lordscorridor, i.e. sitting on appeals from courts below. Whiledelivering their judgments in the form of “speeches” harksback to the origin of the House itself as the highest appealcourt in the land, the work of the Law Lords is in practice nowcompletely separate from House of Lords business.

Chapter 3


THE LORD CHANCELLOR’S ROLE

This is not true of the Lord Chancellor who holds anincongruous clutch of offices: as Lord Chancellor he is apolitical appointee, a minister in the government of Cabinetrank and usually is a member of the Cabinet. Part of the workof his department is to control the appointment of judges of allranks, and of lay magistrates. He sits on the Woolsack in theHouse, introduces important government legislation and alsotakes part as a judge in the hearing of appeals. A similarsituation in the Channel Islands took the case of McGONNELLv UK, The Times, 22 February 2000, ECHR, to the European Courtof Human Rights in Strasbourg, where it was confirmed that amixture of legislative, judicial and administrative roles wasinappropriate when the Bailiff of Guernsey, who combined allthese, made a judicial decision against a resident. There havebeen numerous and various calls, including from the lawreform society JUSTICE, for the Lord Chancellor’s position tobe re-examined.

IMPARTIALITY

This crucial quality has also received much attention recently.It is a rule of natural justice that “no man should be a judge inhis own case”: nemo uidex in casa sua.

It should be noted that impartiality is obviously also essentialin arbitrators, as well as throughout the judiciary as such; thisis equally obviously of some practical importance in view ofthe increase in alternative dispute resolution prior to orinstead of litigation, which may also much spread the use ofbinding arbitration .

In December 1998 the principle of impartiality was strictlyupheld when the House of Lords had to set aside one of itsown judgments because this rule had inadvertently beenbroken in the case of RE PINOCHET (NO 1). This was set asidein RE PINOCHET (NO 2), which is properly referred to as R vBOW STREET METROPOLITAN STIPENDIARY MAGISTRATE, EXPARTE PINOCHET UGARTE (NO 2) [2000] 1 AC 119.

The problem which required this unusual step was that LordHoffmann, one of the five Law Lords in the first case, was anunpaid director of the charity arm of Amnesty Internationalwhich was an intervening party in the case. Despite the factthat the charitable arm of Amnesty was a completely separatelegal entity, a registered charity which avoided any politicalcampaigning, five different Law Lords sat on the second caseto examine whether Lord Hoffmann should have declared hisinterest in the charity (and therefore connection with a party).It was decided that he should not only have done so butshould have stood down, the crux of the matter apparentlybeing that it was not so much any interest in the outcome ofthe first case which was unacceptable but the mereconnection with one of the parties which generated aperception of bias. This approach goes back to the dicta ofLord Hewart CJ in R v SUSSEX JUSTICES, EX PARTE MCCARTHY[1924] LB 256:

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“It is not merely of some importance but it is offundamental importance that justice should notonly be done, but should manifestly be seen tobe done.”

In other words, it is not merely a financial or proprietary“interest” in a case, which is fatal to perceived impartiality butany significant involvement, although the second Pinochetcase left unanswered the specific question of whether non-active membership of a charity would be enough to disqualifya judge or arbitrator from hearing a case if that personregularly gave money to that charity.

The recent case of AT & T CORPORATION v SAUDI CABLE CO,The Times 23 May 2000, CA, casts some further light on this inadvancing the correct test to apply where a judge or arbitratordoes not have an obvious interest in the outcome of a case,but does have an arguable bias. This is important asallegations of actual bias are very rare in English law, thoughthis did occur in the case of HALIFAX BUILDING SOCIETY vSECRETARY OF STATE FOR THE ENVIRONMENT [1983] 2 EGLR 163where the trial judge (Woolf, J, now Lord Woolf, MR) saidthere was:

“at least a degree of hostility and a degree ofrefusal to pay attention to the evidencemanifested by the inspector, so that it gave theimpression to reasonable people attending theinquiry that justice was not being done.” Thisseems to mean that he did not find that there hadbeen actual bias but that there was impropriety inthat a real impression had been created that theappellant building society had not been given afair hearing by the planning inspector who hadappeared to be over protective of the localauthority’s witnesses and excessively fault findingwith the building society.

This has been called the “real apprehension of bias” test. InRe Gough [1993] AC 646 the House of Lords rejected thisapproach and held that the correct test was whether therewas in fact a “real danger of bias”. This was a case where nosuch danger was found when a juror discovered after theverdict of guilty had been returned that she was the nextdoor neighbour of the defendant’s brother, who was also acriminal suspect. The test in this case was therefore notwhether reasonable people in court could have wonderedwhether she might have realised these facts earlier than sheclaimed, but whether there was a real danger that she haddone so and that this had influenced her judgment.

This “real danger” test has not been adopted in othercommon law jurisdictions such as Scotland, Australia andSouth Africa which have all preferred the “real apprehensionof bias” test. The House of Lords did not reconsider R vGOUGH in the second Pinochet case because it wasunnecessary to decide if Lord Hoffman was actually biased,as his connection had already made it necessary for him tostand down.

Chapter 3


IMPARTIALITY IN ARBITRATION – ACHALLENGE

The AT & T case was about whether one of three arbitratorsshould or should not have sat on the case at all: the arbitratorin question was a non-executive director of a competitor ofAT & T called Nortel of Canada, which had lost a contractwith the other party in the case, Saudi Cable Co. which hadbeen won by AT & T. The arbitrator’s connection was notdiscovered until after the three arbitrators had made partialawards to Saudi Cable Co. However the Commercial Courtrefused to set aside the awards on the basis that hisconnection was irrelevant since it was not a connection with aparty to the case. Thus there was no automaticdisqualification, as in Lord Hoffmann’s case, The Court ofAppeal upheld the Commercial Court and observed in passingthat the same tests apply to judges and arbitrators.

Nevertheless, despite the difficulty of finding experts in a smallspecialised field where everyone has probably at some stagehad dealings with everyone else, the High Court will order theremoval of an arbitrator who has a relevant connection with acase, e.g. recently they removed a rent review arbitratorbecause his firm was currently acting for a companyassociated with one of the parties. This suggests thatarbitrators and parties may need to review their conflictsearch procedures as appointing bodies such as the RoyalInstitution of Chartered Surveyors (RICS) who often choosethe arbitrator in such cases, cannot realistically be relied uponto identify the existence or lack of conflict.

CONFLICTS OF INTEREST

The Court of Appeal has recently considered a clutch of casesconcerning judges’ potential conflicts of interest: seeLOCOBAIL (UK) LTD v BAYFIELD PROPERTIES LTD [2000] 1 All ER65, [2000] 2 WLR which concerned five cases with the commonproblem of bias, dealt with by the strong court of LordBingham of Cornhill, CJ, Lord Woolf, MR and Sir Richard Scott,VC, as they then were. They looked at the twin problems ofactual and apparent bias, and held that:

P actual bias is rare but where a decision maker had a directpersonal interest in the outcome of proceedings, which wasother than de minimis, bias was presumed and that personmust be automatically disqualified from hearing or continuingto hear a case and any judgment given must be set aside (theLord Hoffmann situation).

Apparent bias arises when, looking at the matter through theeyes of a reasonable man there was a “real danger ofunconscious bias” on the part of the decision maker. Thecourt declined to give factors which could give rise to suchbias saying that that would be dangerous and futile as itdepended on the fact in every case, including the nature ofthe issue to be decided.

Chapter 3


THE NEED FOR DISCLOSURE

The counsel of perfection for judges and decision makersincluding arbitrators is therefore to be alert to any potentialconflict and to disclose it before a hearing commences so thatif it is necessary to step down this may be done immediately.If the issue arises during a hearing, as it sometimes does, thendisclosure should be made at once, although the Court ofAppeal commented that it is generally undesirable to abort ahearing unless the reality or appearance of justice requires it.

So is it “real apprehension of bias” or “real danger of bias”which rules? On the authorities, the correct test is “realdanger of bias”, but it should be noted that where there is adirect personal interest in the outcome of proceedings (as inLord Hoffman’s case) bias will be presumed, so that the judgeor arbitrator will automatically have to step down becauseotherwise justice will not be seen to be done, regardless of theactual view of the person in question. In practice this meansthat s/he steps down because of apprehension of bias, or theperception that justice cannot be seen to be done, so possiblythe former colonial jurisdictions’ adherence to theapprehension test shows much logic!

POST WOOLF EFFICIENCY

In theory there is no reason why judges should not deliverjustice with efficiency, though there have been cases wherethis has been challenged. For example, there was the conflictbetween the former Lord Chancellor, Lord Mackay, and aSupreme Court judge who did not like measures proposed bythe Lord Chancellor for efficiency in conduct of cases andultimately resigned having been told by the Lord Chancellorthat there would be no debate about the changes and that ifthe judge did not like them he should “consider his position”.

A year of operation of the CPR seems to indicate that judgeshave responded well to the new hands-on management ofcases and that both lawyers and the pubic are not displeasedwith the new arrangements.

3. SELECTION OF THEJUDICIARY

Old fashioned methods of selection of the judiciary, havecome in for considerable criticism despite innovations inrecent years to advertise all posts up to and including theHigh Court and also to limit to some extent the referencingsystem which is still referred to as “secret soundings” amethod much disapproved of by those who are notsuccessful in obtaining appointments, or who actively to seekappointees from amongst women and the ethnic minorities.

The perception is that as the predominantly male upper middleclass Oxbridge and public school educated judiciary remainsunrepresentative of the public which it serves, there is ineffect a built in “corporate” bias on the Bench which should

Chapter 3


be addressed, as the existing Bench is out of touch with themoral values of the generation appearing before them. Thissame bias is still said to exist amongst lay magistrates,following research in the 1970s, though probably with lessjustification, since the character of lay bench has been muchchanged in recent years.

Moreover, most of the higher judiciary comes from the Bar,though there is an occasional solicitor appointment to theHigh Court, usually as a Deputy High Court judge or of asolicitor who is promoted from the Circuit Bench, to which theappointment may have been made from the District Bench.There are numerous solicitor appointments lower down thescale, however, on the District Bench and amongst theMasters and Registrars.

NEW INITIATIVES

The present Lord Chancellor has, however, taken initiatives toimprove chances of selection from these non-traditionalsources, including encouraging work shadowing in a pilotscheme amongst District Judges, road shows in which hisDepartment takes a group of officials from the judicial selectionunits around the country to explain the new and improvingmethods of selection and provision of feedback to those notappointed, and the qualifications and qualities sought.

The statutory qualifications as set out in the Courts and LegalServices Act 1990 are clearly emphasised in the informationpacks issued by the Department, but some confusionundoubtedly still exists amongst those who are not appointedas to what qualities are in practice looked for.

THE PEACH REPORT

In 1999 Sir Leonard Peach conducted a survey and wrote areport for the Lord Chancellor on contemporary systems forselection of the judiciary which broadly approved the currentmethods, and so far the appointment of a JudicialAppointments Commission, pressed for by many over aperiod, has not occurred. However, it is felt that this mustcome and that if we are to pay more than lip service to equalopportunity and transparency in public life the system of“secret soundings” will have to be replaced in due course,although no one agrees how this should be done. Certainly,neither political appointments nor the American system ofpublic scrutiny of judicial appointees appears to be welcomedhere, even if no one can actually come up with a blueprint forthe future.

Further progress has however been made in widening thefield of lawyers from whom the minor judiciary can now beselected. It has been formally recognised that experience ofadvocacy might not in all cases be essential. Lord Mackay wasthe first to take such a step when he appointed someacademics as recorders a decade ago, on the basis that whilelacking advocacy experience, they might compensate bydisplaying other essential judicial qualities to a higher degree,such as the” good sound judgment based upon knowledge ofthe law; willingness to study all sides of an argument with anacceptable degree of openness, and an ability to reach a firm

Chapter 3


conclusion and to articulate clearly the reasons for theconclusion”.

Amongst these appointments was Professor Brenda Hoggettwho now sits in the Court of Appeal as Lady Justice Hale,who was called to the Bar in 1969, and obtained academic“silk”, becoming a QC in 1989, but was never in seriouspractice at the Bar although she had her name on the door ofa set of Chambers for a period.

WOMEN IN THE JUDICIARY

The lack of suitable women appointees nonetheless remains aproblem, however. There is still no female Law Lord, onlythree women in the Court of Appeal, and one female Head ofDivision. There are however a number of women on theCircuit Bench, and many women sitting on tribunals. Womenare also fairly well represented in the lay magistracy.

Consider this issue for discussion:

What else could be done to widen the pool from whichappointments could be made to address the perceivedcorporate bias problem?

Should the Lord Chancellor go on appointing the judiciary?

Or should there be a Judicial Appointments Commission?

THE MAGISTRACY – HOW TO QUALIFY

Lay justices, “justices of the peace” (“JPs”) sit only inmagistrates courts although on appeals from magistratescourts which go to the Crown Court two lay justices sit with aCrown Court judge. They are unpaid and receive onlyexpenses. They try the majority of minor criminal cases, over97%. They have provided a cheap and quick source of localjustice since the 14th century. They have always been said tobe vital to the legal system for this very reason, but there isnow much debate about abolishing them altogether in favourof a wholly professional magistracy, as research has shownthat a professional magistrate can dispose of cases muchfaster and more efficiently.

Anyone over 21 and under 60 can be appointed, if living orworking in the “commission” area of the court to whichappointments are to be made: the magistrates operate on aregional basis corresponding to the 45l police forces aroundthe country. Unlike judges, magistrates do not have to be“independent”, e.g. local councillors can be found on theirlocal benches.

Although the essence of the lay magistracy is that the justicesare not legally qualified, they do now receive training from theJudicial Studies Board. Questions of law are decided for themby their clerk, who is a qualified, usually a barrister orsolicitor.

Stipendiary magistrates sit in the busier courts where theworkload is heavy. They sit alone, and do not need legal

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advice from their clerks as they are legally qualifiedthemselves.

4. TRAINING OF THEJUDICIARY

This has come on by leaps and bounds in recent years. Theformer view that judges knew how to judge automatically,through having been previously advocates, has now beenovertaken by a significant expansion of the Judicial StudiesBoard (the “JSB”).

In 1998-9 significant training was provided for the judiciary,full and part time, on the Woolf reforms and the CPR prior totheir implementation in April 1999. In 1999-2000 theemphasis has been on training for the Human Rights Act 1998which came into force in October 2000. Whereas the CPRtraining was restricted to the courts as such which the CPRwould affect, the Human Rights training has been universal,including every tribunal as well as the courts. This has beensupplemented by racial awareness and equal opportunitiestraining, with a Bench Book being produced to record thenorms expected together with much useful backgroundinformation for judges of all types and ranks now sitting in amultiracial and multi-cultural society where most women nowapparently habitually expect to have a career whether marriedor not.

One area where training is obviously still required is for thosesitting on criminal cases, because many appear to have little orno previous criminal experience. Unless civil and criminaljudicial work is to be separated and allocated appropriately tothose with the relevant experience, as has often beenadvocated, this deficiency clearly still needs addressing.

This explosion in training partly stems from the RuncimanCommission’s recommendations in 1993, but has alsopossibly been brought on by the positive results ofsuccessive training schemes. Success may be breedingsuccess here. The JSB had a £1.6m. budget for Human Rightstraining.

THE JUDICIAL TASK

Judges may either finders of both fact and law, or whileexamining, sifting and admitting (or declining to admit) theevidence for a jury to find the facts, may merely be concernedwith the law: criminal judges have a jury to find the facts, inwhich case the judge will deal only with the law. Civil judgesare usually finders of both facts and law, except in thosecases where a jury is still used, e.g. defamation.

Judges’ tasks will therefore be partly control of admission ofevidence and of court procedure, but more importantlystatutory interpretation and application of the law inmaintaining and establishing precedent.

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Tribunals are mostly finders of both fact and law, and areusually masters of their own procedure with no or few rulesof evidence.

Lay magistrates find only fact and their clerk advises them ofthe law which they must apply, and also controls procedure.

Consider these discussion points:

Now that advocacy no longer appears to be an essentialprerequisite for appointment to the Bench, is there a case fora judicial college and separate judicial career to be madeavailable for the provision of English judges?

Would this permit experts in fields other than law to beappointed as judges?

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All the answers can be found in the recommended materials,the reading list or the above summaries.

1. What is meant by the independence of the judiciary? Isthis independence important?

2. How does independence differ from impartiality?

3. Is it important for the judiciary to be representative ofsociety? Is so, why? Does this also apply to magistrates?How could the judiciary and/or the magistracy be mademore representative of society in general?

4. What criticisms have been made of the selection andappointment of the judiciary?

5. What are the advantages and disadvantages of thesystem of lay magistrates? Do you think they should bereplaced with a national system of stipendiarymagistrates?




JUDGES AND JUDICIAL REASONING:THE DOCTRINE OF PRECEDENT

CONTENTS

The Common Law System – Stare Decisis ................................... 1

The House of Lords and the Court of Appeal ............................ 3

Chapter 4



THE DOCTRINE OF PRECEDENT




Zander, The Law-Making Process. Chapter 4 (page 194onwards) and Chapter 6 (page 259 onwards)


Soundfile: The Doctrine of Precedent

Lecture Notes: Introduction

Lecture Notes: Sources of law (1) Judicial precedent

1. THE COMMON LAW SYSTEM– STARE DECISIS

The basis of the common law is the doctrine of stare decisis(basically letting past decisions stand as a norm). This meansthat a judge must look to previous decisions in order to makea decision on a case consistent with previous cases which arebinding at that level of court. He must then base the legal andfactual reasoning for the decision on one or more of theissues before the court.

WHAT DO WE MEAN BY ‘RATIODECIDENDI’?Ratio decidendi is the principle on which a decision is made.The system of common law evolved from statute, custom andcase law, although in fact, ‘common law’ is case law. Thewealth of cases started to accumulate as early as the MiddleAges or even earlier when case decisions were first recorded.

Applying common law principles, the judge’s task will include:

� finding the facts (or records them if there is a jury as factfinder)

� stating the legal principles applicable to the factual issuesin the case

� applying the latter to the former.

The resultant ratio decidendi, if in a superior court, is abinding precedent in lower courts, usually of persuasive

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authority at the same level of court. However, ratio decidendidoes not bind courts higher than the level at which it wasmade, except that in the case of the Court of Appeal, all Courtof Appeal cases bind the Court of Appeal: CASSELL v BROOME[1972] AC 1027 and those of the Divisional Court usually bindthe rest of the High Court: HUDDERSFIELD POLICE AUTHORITYv WATSON [1947] AC 743 and R v GREATER MANCHESTERCORONER EX P TAL [1985] QB 67.

The House of Lords is not bound by itself: see the PracticeStatement (Judicial Precedent) of Lord Gardiner, LC [1966] 1WLR 1234.

Note that the ratio decidendi must be a statement of law, notof fact: QUALCAST WOLVERHAMPTON LTD v HAYNES [1959] AC743.

WHAT DO WE MEAN BY ‘OBITER DICTA’?Any other significant judicial statements not based firmly in theratio decidendi, are called obiter dicta (things statedincidentally) and are not binding but may be persuasivedepending on the reputation of the judge and level of court –in the House of Lords they would be very significant, andmight be from the mouth of a respected Court of Appealjudge, or even a High Court judge with a reputation forknowledgeable specialism. Where there is no direct authorityin English law, caselaw from other common law countries canbe highly persuasive.

The only way to get round a precedent which is bindingbecause it was decided by a court higher up the scale thanthat in which the judge wishing to disregard it is sitting it todistinguish it. This means finding it is not on all fours with thecase in which it is cited, for some fundamental reason.

If the precedent is unwelcome in a higher court than that inwhich the decision was made, there is no problem as thehigher court can overrule it.

The hierarchy of the courts is set out in a helpful diagram inthe Lecture Notes Introduction to English and EU law alreadyreferred to in Chapter 1.

Advantages and disadvantages of the common law system ofprecedent:

� certainty (disadvantage is rigidity)

� consistency (disadvantage is that it is backward looking)

� logical rather than creative (but can be individualistic)

� adaptable (but any creativity leads to uncertainty)

� precise if there is a precedent (principle often obscured).

Compare the common law to the civil law system ofinterpretation in continental European countries, which isinquisitorial. Again, certain advantages and disadvantages ofan inquisitorial system are revealed.

Chapter 4


The Continental system of civil law is:

� not based on precedent but on a Code of principles

� recognises only very limited case law

� expects the judge to look forward to develop the widelyframed law as necessary to fit the case.

This makes the civil law system:

� less certain (but not rigid)

� potentially less consistent (but forward looking)

� to some extent creative (but still potentially individualistic)

� possibly not ultimately precise (less cases, but principlesclear).

The civil law system nevertheless works for the followingreasons:

� there is a career judiciary

� lawyers and judges are familiar with the principles of theCode

� their teleological (also called schematic or purposive)approach looks at the context of the case in relation tothe Code.

The English and continental civil law approaches are movingcloser together especially where English judges have tointerpret a statute which has given effect to EU law, where anEnglish precedent may be abandoned if it no longer fits thecontext.

2. THE HOUSE OF LORDS ANDTHE COURT OF APPEAL: THEDOCTRINE OF PRECEDENT

One Court has to be at the top of the hierarchy to givecertainty to the law. This was the reason for the House ofLords practice direction of 1966, although the House made itclear this would be used “most sparingly” as has been done:see JONES v SECRETARY OF STATE FOR SOCIAL SERVICES [1972]AC 442 where the lords refused to overrule their own earlierdecision in RE DOWLING [1967] 1 AC 944 on this ground, eventhough three members of the 7 member court acknowledgedthat the law stated in RE DOWLING was wrong.

They did use the Practice Direction to overrule their owndecision in ANNS v MERTON BOROUGH COUNCIL by theirdecision in MURPHY v BRENTWOOD DISTRICT COUNCIL [1990]3 WLR 414 on the grounds that the former case had departedfrom established principle and it was necessary to restorecertainty to the law, and this encapsulates the raison d’etre of

Chapter 4


the House of Lords as the final appeal court. Russell LJemphasised the importance of certainty in the law in the caseof GALLIE v LEE [1969] 2 Ch 17. The House Judicial Committeemakes about 100 decisions a year in which it is usuallynecessary to review the authorities and properly to clarify thelaw. Sometimes it will overrule itself very quickly, as in R vSHIVPURI [1987] AC 1 which overruled the case of ANDERTONv RYAN [1985] AC 560 only about a year before, and ninemonths after that in R v HOWE [1987] AC 417 they overruledDPP for NORTHERN IRELAND v LYNCH [1975] AC 653 although inthat case the arguments for overruling were weaker thanthose in SHIVPURI.

The Court of Appeal, on the other hand, despite attempts tosecure acceptance of the contrary when Lord Denning wasMaster of the Rolls, is only able to depart from its own earlierdecisions in strictly defined cases: YOUNG v BRISTOLAEROPLANE CO LTD [1944] KB 718.

These are:

� where there are conflicting Court of Appeal decisions thecourt can follow either

� where a decision was given per incuriam (in ignorance orforgetfulness of some conflicting authority)

� decisions impliedly if not expressly overruled by theHouse of Lords.

These rules may be departed from:

� where the Court of Appeal decision is inconsistent with aHouse of Lords

� possibly where it is inconsistent with a Privy Councildecision though this is seen as a “Denning argument” asthe Privy Council is in theory only a persuasiveauthority.

R v GOULD [1986] 2 QB 65 sets out when the Court of AppealCriminal Division may refuse to follow its own precedents (i.e.when they think the earlier decision is wrong: traditionallyprecedent has not been so rigidly followed in the criminaldivision of the court).

DEPARTING FROM OWN PREVIOUSDECISIONS – COURT OF APPEAL

This subject continues to be a popular examination area. Thearguments for the Court of Appeal to depart from its ownprevious decisions outside YOUNG v BRISTOL AEROPLANEsituations are not strong, given that the Court of Appealdelivers ten times as many decisions annually as the House ofLords, and there are numerous Lords Justices so that LordSimon of Glaisdale said that, while he had sympathy with LordDenning’s views, he though adherence to precedent to be“no bad thing”: see the judgment of Lord Simon of Glaisdale,in DAVIS v JOHNSON [1979], AC 264, at p.344 online now. Hepointed out that High Court judges who felt Court of Appeal

Chapter 4


decisions were wrong could always refuse to follow them,and that there was also the possibility of a “leapfrog” appealunder the Administration of Justice Act 1969. He alsosuggested that when the court gave leave to appeal from adecision made because the court considered it was bound byits own precedent, they should be able to order that theappeal be paid for out of public funds, which would resolvethe argument that sometimes people cannot afford to appeal,and it might therefore be a long time before the House gotaround to changing binding decisions of the Court of Appealwhich were thought to be wrong.

Consider this type of question which is often asked:

Would codification provide a solution to the problemscurrently presented by the doctrine of precedent?

MODERN CASE LAW – A RELIABLESOURCE OF PRECEDENT

Since the Incorporated Council of Law Reporting was set up in1865, reports of cases are reliable and can relied upon. Casesolder than that date depend for their reliability on thereputation of the reporter.

For example in the old English reports, the reporter Espinassehad the reputation of hearing half the case and reporting theother half. The story goes that a judge at the time commentedacidly that he did not want to hear any report of Espinasse,“or any other ass”. How fortunate for justice that times havechanged.

Chapter 4



All the answers can be found in the recommended materialsor the above summaries.

1. What is:

(a) the ratio decidendi of a case

(b) obiter dicta (singular obiter dictum)

(c) a case decided per incuriam?

2. In what circumstances may a case be distinguished froman apparently binding precedent? Do you think that thisprovides adequate flexibility?

3. What is the rationale for the doctrine of precedent? Doyou think it is being fulfilled?

4. Do you think the House of Lords should make greateruse of the Practice Direction?




JUDGES AND JUDICIAL REASONING:STATUTORY INTERPRETATION

CONTENTS

Interpretation of Statutes: A Key Judicial Task............................. 3

The Traditional Rules ................................................................ 2

Maxims of Interpreation ............................................................ 2

Intrinsic Aids to Interpretation ................................................... 3

Presumptions ........................................................................... 3

Chapter 5



STATUTORY INTERPRETATION




Zander, The Law-Making Process. Chapter 3, page 106 – youshould read this in detail because they contain much usefulresearch to cover the examination question in this area.


Soundfile: Statutory InterpretationLecture Notes: Sources of Law - Statutory InterpretationLecture Notes: Direct and Indirect EffectLecture Notes: Introduction to the Law of the Single Market (1)and (2)Lecture Notes: Jurisdiction of the Court of JusticeLecture Notes: Enforcement of EU law

1. INTERPRETATION OFSTATUTES: A KEY JUDICIALTASK

Most recent, or newer law is statute based. Therefore, theinterpretation of statutes is a key judicial task, particularly asmodern statutes are complex. However, in the busy contextin which legislation is produced, even the most detailedcarefully draughted statutes are likely to have gaps andambiguities. Traditionally English judges have followed specificrules of statutory interpretation. But in the contemporaryEuropean context in which continental codified civil lawimpacts upon the jurisdiction of England and Wales, thesetraditionally rigid rules have had to be relaxed.

There is no specific Act of Parliament which guides judges ininterpreting statutes although the Interpretation Act 1978 is ofsome broad assistance.

Where European law has been the source of a statutoryprovision, judges can look to European sources: read LISTER vFORTH DRY DOCK [1989] 2 WLR 634 online now.

When interpreting European law, the courts must interpret therelevant Treaties which created it in line with the EuropeanCourt of Justice.

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It will be recalled that European courts use European code-based civil law systems which state broad principles to beapplied in wider contexts. They do not examine words indetail, and therefore do not apply the literal interpretations.Therefore the importance of European law lies in the actualprinciples and not in the wording of a decision. This is themain difference of approach between continental Europeanand English law. See H P BULMER v J BOLLINGER SA [1974] Ch401, and R v REGISTRAR-GENERAL EX P SMITH which discussesthe effect of the United Kingdom’s membership of theEuropean Community on English rules and approaches tostatutory interpretation.

Since the leading case of PEPPER v HART [1993] 1 All ER 42 CA,judges can refer to Hansard for aid in interpretation if a statuteis ambiguous and the literal rule would lead to absurdity.

It is also useful to read online the case of INCO EUROPE LTDAND OTHERS v FIRST CHOICE DISTRIBUTION (A FIRM) ANDOTHERS [2000] 2 All ER 109, and Professor Zander’s article[2000] NLJ 1 December at p.1790.

2. THE TRADITIONAL RULES

These are three main rules of judicial interpretation and arefully covered in all the main textbooks in detail, which may bedescribed as follows:

THE LITERAL RULE

Basically, this means that ordinary words should be giventheir obvious everyday meaning by the court. See THE SUSSEXPEERAGE CASE (1844) 11 Cl & Fin 85.

THE GOLDEN RULE

This rule supplements the literal rule, giving the words of astatute an interpretation which best delivers Parliament’sintention. See GREY v PEARSON (1857) 6 HL Cas 61.

THE MISCHIEF RULE

Also called the Rule in HEYDON’S CASE (1584) 3 Co Rep 7a,which defined it. Sometimes it is said to be an extension of thegolden rule, although there are some conflicts. It looks to thepurpose of the Act so as to fulfil that purpose.

3. MAXIMS OFINTERPRETATION

There are various maxims which also aid interpretation withinthe above rules. The most common are ejusdem generis,expressio unius exclusio alterus and noscitur a sociis,described as follows:

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WHAT DO WE MEAN BY ‘EJUSDEMGENERIS’?This is a classification rule. Categories of words and classes ofperson to be understood as included are restricted to thoseof the general classification referred to: see ALLEN vEMMERSON (1944) KB 362.

EXPRESSIO UNIUS EXCLUSIO ALTERUS

This is a similar rule which excludes other members of a classif a specific member of it is mentioned.

NOSCITUR A SOCIIS

This is a rule which recognises words by their associates, andinterprets a word according to its context.

4. INTRINSIC AIDS TOINTERPRETATION

Certain intrinsic aids may by used, such as the title of the Act(both the “short title”, e.g. Family Law Act 1996 and the “longtitle”, e.g. “An Act for the purpose of …..) and the headings ofthe sections. However the latter can sometimes be misleadingsince when a Bill is amended during its various stages ofpassage through Parliament, sometimes the headings remainand the sections against them are not entirely relevant.

5. PRESUMPTIONS

Certain presumptions also assist in the task of interpretation,e.g. the presumption against retrospective operation ofstatutes, confirmed in RE ATHLUMNY [1898] 2 QB 547, R v ALLEN[1985] AC 1029 and BLACK CLAWSON INTERNATIONAL vPAPIERWERK WALDOF-ASCHAFFENBURG [1985] AC 1029. Thiscase also discussed the proper objectives of the judiciarywhen interpreting statutes.

Download now!

Download from the website the soundfile on statutoryinterpretation recorded by Lord Justice Brooke. The soundfilecan also be accessed via the linked Consilio site.

THE WAY AHEAD

The implementation of the Human Rights Act 1998,incorporated into English law the European Convention onHuman Rights and Fundamental Freedoms. For the secondtime in a quarter of a century, it brings with it a greateremphasis on the purposive approach of European civil lawjudges and extends that influence on the approach of Englishjudges to statutory interpretation under our traditional rules,although precisely how is not yet clear. What is clear is that

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the present Lord Chancellor, Lord Irvine’s comment that theHuman Rights Act 1998 will completely change the way inwhich judges work.

In his soundfile mentioned above, Lord Justice Brookeconsiders that the Act has already had for some time, aninfluence and an effect on the way judges work and confirmsthat he does not think that “judges interpret statutes with theirnoses in a book”. Certainly there have been numerousinfluences on English judges over the past few years, whichhave made it difficult to sustain the formerly restrictive Englishapproach, despite any negative commentary on the part ofthe academics. Since October, 2000 when the Human RightsAct came into force, any survey or monitoring of law reportswill almost inevitably show indications of change in the waystatutes are interpreted.

Consider this issue for discussion:

How do you think membership of the European Union andthe implementation of the Human Rights Act 1998 has affectedthe judiciary’s approach to statutory interpretation?

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All the answers can be found in the recommended materials,reading lists or the above summaries.

1. What types of problems may be encountered wheninterpreting statutes and how do English judges addressthese?

2. When interpreting statutes, are the judges endeavouringto follow the intention of Parliament or the meaning of thewords used? Is there a difference between theseobjectives?

3. Which of the rules allows the judges more creativity ininterpretation of statutes?

4. Which offers the most restraint on the powers of thejudiciary to be creative when interpreting statutes?

5. When interpreting statutes, to what extent may thejudiciary refer to dictionaries, Law Commission reportsand Parliamentary reports?




THE CRIMINAL PROCESS

CONTENTS

The Criminal Courts .................................................................. 1

The Investigative Path ............................................................... 4

Arrest ...................................................................................... 7

Detention without Charge – Time Limits ................................... 11

The Role of Bail ....................................................................... 15

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THE CRIMINAL PROCESS


Slapper & Kelly, Chapters 4, 9 and 10

Smith & Bailey, Chapters 13 and 14

Blackstone’s Criminal Practice 2001

Zander: Cases and Materials, Chapter 3 at page 111 onwards

Zander: PACE – see his preface to the main work

Ashworth – Sentencing and Criminal Justice


Soundfile: Criminal Justice

1. THE CRIMINAL COURTS

The courts exercising criminal jurisdiction are as follows:

� Magistrates’ Courts

� Crown Court

� Queens Bench Divisional Court (appeals),

� Court of Appeal (Criminal Division)

� House of Lords.

MAGISTRATES’ COURTS

More than 97% of criminal cases are dealt with by themagistrates, who try the following:

� summary offences, without a jury, e.g. petty motoringoffences, common assault etc.

� “either way offences”, i.e. indictable offences whichfollowing “mode of trial” hearings, are triable summarily ifthe magistrates are prepared to offer summary trial andthe accused accepts it. (Note that this system may wellchange to remove the accused’s choice in some casesalthough two Government Bills have been rejected by theHouse of Lords during 2000-2001.)

� committal proceedings, i.e. immediate transfer ofindictable offences for trial in the Crown Court without apreliminary hearing and preliminary hearings to

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investigate indictable offences so as to decide if there is acase to answer. If there is, the case can be transferred tothe Crown Court for trial.

The magistrates can also commit to the Crown Court, forsentence only, and this is usually done in appropriate caseswhere they find their powers of sentence inadequate.

THE CROWN COURT

The Crown Court then tries those cases committed to it fortrial, usually by magistrates.

Appeals

Appeals lie from the magistrates to the Crown Court or theDivisional Court of the Queens Bench Division…from theDivisional Court direct to the House of Lords…and from theCrown Court to the Court of Appeal (Criminal Division), fromwhich there is also appeal to the House of Lords. Furtherinformation about appeals is listed in the last chapter.

STRUCTURE OF MAGISTRATES’ COURTS

Magistrates’ court benches usually consist of two to sevenlay justices, or a single stipendiary magistrate now known as adistrict judge criminal courts (or magistrates’ courts).

Magistrates have the power to imprison a convicted personfor six months and can also impose fines up to £5,000. Theyalso impose various community service orders. As previouslymentioned, if magistrates’ powers are inadequate in thecontext of the seriousness of an offence, they can commit forsentence to the Crown Court.

The magistrates also sit, separately from the adult court, as aYouth Court for the purpose of dealing with young offendersbetween the ages of 10 and 17. The court used to be termedthe “Juvenile Court” but a new regime was created by theCriminal Justice Act 1991, which was designed to drawpractical distinctions and boundaries between adult and youthjustice. Magistrates nonetheless have to use the same buildingfor both types of court.

THE CROWN COURT: STRUCTURE

Created by the Courts Act 1971, the Crown Court is part ofthe Supreme Court of Judicature, of which the other membersare the High Court and the Court of Appeal, both Civil andCriminal Divisions. For the practical purpose of assigning theappropriate level of judge to match the seriousness of theoffences to be tried, the work of the Crown Court is dividedinto three tiers:

� Tier 1: Class 1 offences (murder, treason etc.) are triedby a High Court (usually Queens Bench Division) judge

� Tier 2: Class 2 offences (rape, manslaughter etc.) aretried by High Court or circuit judges

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� Tier 3: Class 3 offences (the less serious offences) aretried by circuit judges or recorders (i.e. part time judges,usually practitioners but occasionally very ableacademics, appointed on a temporary basis at the start oftheir judicial experience)

The court also hears appeals from the magistrates court, inwhich case a judge will sit with two to four lay magistrates.This is by way of a trial de novo and only the defendant canuse this route of appeal.

APPEALS TO THE DIVISIONAL COURTSOF QUEENS BENCH DIVISION

Appeals go to this court from both the magistrates and theCrown Court on either a point of law or because themagistrates have exceeded their jurisdiction. This may bedone by way of a “case stated” for the opinion of the HighCourt. If an appeal goes directly from the magistrates to theDivisional Court in this way, the right to appeal to the CrownCourt, as above, is lost, so the appellant must choose whichroute to use when convicted in the magistrates court. Thisroute is available both to prosecution and defence.

Cases can go by way of ‘case stated’ from the Crown Courtalso, when the Crown Court has heard an appeal from themagistrates.

The Divisional Court usually has two judges, one of them aLord Justice of Appeal from the Court of Appeal, but theAccess to Justice Act 1999.

COURT OF APPEAL, CRIMINALDIVISION

In this court, criminal appeals by the defendant may be onquestions of law or fact, against conviction and/or sentence,and by the prosecution on points of law where the accusedhas been acquitted. This latter appeal is made under theAttorney General’s reference pursuant to s.36 of the CriminalJustice Act 1972 in order to clarify a point of law for thefuture. It does not affect the acquittal which generates it.

REDRESS AGAINST LENIENT SENTENCES

There is a further Attorney General’s reference pursuant toPart IV of the Criminal Justice Act 1988 whereby the Attorneymay refer an unduly lenient sentence to the Court of Appeal(Criminal Division), which may vary, including increasing thesentence. The object of this is to address under sentencing inmanifestly problematic cases which would otherwiseundermine pubic confidence, outrage the victim, demoralisethe police, or otherwise adversely affect sentencing policy.

Judges of this court include the Lord Chief Justice, LordsJustices of Appeal and puisne judges of the High Court.

Pursuant to the Criminal Appeal Act 1995, all appeals to theCourt of Appeal (Criminal Division) now required leave.

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HOUSE OF LORDS

This function is carried out by the Judicial Committeecomprising the Lords of Appeal in Ordinary, or Law Lords,holding such office for the time being, and any other peers,such a retired Law Lords, who have held high judicial office.

COURTS MARTIAL

Outside the mainstream system, courts martial deal withoffences committed by those serving in the Armed Forces.

REVIEW OF CRIMINAL JUSTICE; THEAULD REPORT

Lord Justice Auld has concluded his review of criminal justicein his report due to be published in late 2001 Similar in itsterms of reference to Lord Woolf’s inquiry into civil justice,the Auld Report recommends certain reforms of the criminaljustice system. One possible reform is the abolition of layjustices and their replacement by stipendiaries, or alternativelya much increased role for the magistrates’ legally qualifiedclerk. The Magistrates Association and the Justices’ Clerks areexpected to submit evidence to the Auld Inquiry supportingtheir obviously divergent views in this regard.

2. THE INVESTIGATIVE PATH

The criminal justice system should be seen as a continuousprocess from suspicion of crime, to investigation and arrest ofsuspects through to the actual trial. Following extensivelegislation to protect the civil rights of the individual, not leastthe incorporation of the European Convention on HumanRights and Fundamental Freedoms by the Human Rights Act1998 which came into force in 2000, evidential considerationsnow arise at the very earliest stage in an investigation.

A series of legislative changes has also threatened the libertyof the subject in this process. The police are thereforerequired to comply with procedure set out in the Police andCriminal Evidence Act 1984 (called “PACE”) and the Codesmade thereunder in order to protect these liberties, whetherthey are stopping and searching suspects, seizing evidence,detaining a suspect, seeking to effect an identification bywitnesses or recording interrogations.

The Act also serves to some extent to protect them againstclaims of abuse. The Codes, made under ss.60 and 66 of theAct, are an important part of the regime, and they lay downgood practice at key stages as follows:

Code A – Stop and search

Code B – Search and seizure

Code C – Detention

Code D – Identification

Code E – Tape recording interrogation.

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The following Articles of the Convention are of importance inrelation to the criminal justice process:

� Article 3 (Torture and inhuman and degrading treatment)

� Article 5 (Unlawful detention)

� Article 6 (Fair trial)

� Article 7 (Certainty, i.e. that the ingredients of a commonlaw offence were insufficiently clear to enable an accusedto know, at the time of the commission of the offence,that such conduct was in breach of the criminal law.)

These articles enable challenge both substantive criminal lawand criminal procedure at all levels of courts. Points can betaken at the magistrates court, Crown Court, Divisional Court,Court of Appeal and House of Lords, as well as at courtsmartial.

The mechanisms used are those already existing, namely:

� objection to the issue of a summons for a common lawoffence

� a motion to quash an indictment for a common lawoffence

� a substantive defence to a common law charge

� an aid to construction of a statutory offence so that it isnot inconsistent with a Convention right

� an application for a declaration of incompatibility by theHigh Court or Court of Appeal

� the court’s powers to exclude evidence under ss.76 and78 of PACE and common law

� the court’s powers to allow a submission of no case toanswer

� a conviction following a trial in which the appellant’sArticle 6 rights have been violated will be deemed“unsafe” within the meaning of s.2(1) of the CriminalAppeal Act 1968 (see Chapter 9).

REMEDIES

The Act does not create new remedies as such. The House ofLords in R v DPP ex p Kebilene and others, The Times, 2November 1999, HL, has specifically refused to extend thearea of judicial review to criminal cases. In particular adecision of the DPP (in the absence of dishonesty, mala fedesor exceptional circumstances) to give consent to a particularprosecution is not subject to judicial review. Challenges underthe Human Rights Act are all to take place in the criminal trial inquestion or on appeal and not in satellite litigation. The LordChief Justice has issued a Practice Direction on Abuse ofProcess, but human rights lawyers are already discussingwhether this itself breaches Article 6!

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STOP AND SEARCH

Police powers to stop and search are contained in PACE 1984and in the Codes of Practice. Under s.1 a police officer canstop, detain and search anyone reasonably suspected ofcarrying stolen or prohibited items, and seize them.

Such articles are:

� offensive weapons

� articles made or adapted for use in an offence such asburglary, theft, taking of a motor vehicle, or obtainingproperty by deception.

There are other statutes besides PACE which gives policethese powers, e.g.

� Misuse of Drugs Act 1971

� Firearms Act 1968

� Aviation Security Act 1982

� Crossbows Act 1987

� Prevention of Terrorism (Temporary Provisions) Act1989.

By s.2 safeguards are provided by the suspect and thesection makes clear the extent to which an officer can searchin a public place. Reasonable force is permitted by s.117.

MOTOR VEHICLES

A motor vehicle may be stopped pursuant to s.163 of theRoad Traffic Act 1988.

These powers will now need to be interpreted to require“reasonable suspicion” if the Act in question does notexpressly say so, for example, a Prevention of Terrorism(Temporary Provisions) Act.

ENTRY, SEARCH AND SEIZURE

SEARCH WARRANTS

There is a general power for magistrates to issue searchwarrants to the police in the event that there are reasonablegrounds for believing that “a serious arrestable offence” hasbeen committed, and the police has reasonable grounds forbelieving that evidence of the offence will be found on thepremises and also that:

� it is not reasonably practicable to contact any personwho could give permission to enter the premises, or

� such a person had unreasonably refused to allow thepolice to enter the premises or to hand over theevidence, and

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� evidence would be hidden, removed or destroyed if thepolice sought access without a warrant.

Certain articles (e.g. those subject to legal privilege such assolicitor and own client communications) cannot be seized.Other such items include personal and medical records, andcertain journalistic material held in confidence.

The police are supposed to be very clear what they arelooking for and why, and how it would help an investigation

An “arrestable offence” is one where a constable has a powerof “summary arrest”, i.e. immediate detention.

SEARCH WITHOUT A WARRANT

It is possible to enter and search without warrant pursuant tos.18 of PACE 1984. This is permitted after arrest for anarrestable offence of a person who occupies or controls thepremises so that further evidence connected with the offencemay be obtained.

By s.32 police may enter a search premises if a suspect isarrested away from the police station and was at thosepremises on or prior to arrest, in order to search for evidenceof the offence committed.

The same human rights considerations will apply here asabove.

3. ARREST

ARREST WITHOUT WARRANT RE:ARRESTABLE OFFENCE

A constable ( or a police officer of any rank) can arrestwithout warrant if there is a reasonable ground for believingthat an “arrestable offence” has been or is about to becommitted, or when general arrest provisions exist. Unders.24 of PACE the police have wide powers of arrest withoutwarrant. An “arrestable offence” has a technical meaning andis:

� an offence for which the sentence is fixed by law, e.g.murder for which the penalty is life imprisonment

� an offence carrying a maximum of 5 years imprisonmentor more

� any offences listed in s.24(2) of the Act, e.g. Customsand Excuse offences, taking a motor vehicle, goingequipped for stealing indecent assaults on women,various obscenity offences

� any attempt to commit any of the above.

These categories can be extended by s.116 if:

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� if there is serious harm to state security or public order

� serious interference with the administration of justice in aparticular case

� serious injury or death, or substantial gain or loss.

If the arrest is by a member of the public, i.e. not a constable,(“constable” is the medieval term for policeman) more thanreasonable ground for believing in the commission of anarrestable offence is required: the offence must actually becommitted.

‘NON ARRESTABLE OFFENCES

If the offence is “non-arrestable”, different considerationsapply. Only the police have this power, and they need to relyon the general arrest conditions in s.25(3) of the Act:

� the name of the suspect must be unknown or unable tobe discerned, or

� there must be reasonable grounds for believing that thearrest is necessary to protect the suspect from

� causing physical harm to himself or others

� suffering physical injury

� causing unlawful obstruction of the highway

� causing loss or damage to property

� committing a public decency offence.

COMMON LAW POWER OF ARREST

There is also a common law power of arrest for breach of thepeace. Any person can make such an arrest where the breachof the pace is actually taking place, and a constable can arrestanyone who is obstructing him in the execution of his dutyand may call upon the general public to assist him, usingreasonable force if necessary. The arrestee will not be able toclaim false imprisonment even if not charged with any offenceafterwards: MOHAMMED-HOLGATE v DUKE [1983] 2 WLR 660,CA.

Moreover the police can enter any premises to deal withbreach of the peace: McCONNELL v CHIEF CONSTABLE OFGREATER MANCHESTER[1990] 1 WLR 364, CA, R v HOWELL [1981]3 WLR 501, CA. However, arrests for behaviour likely to causea breach of the peace may violate Article 11 (freedom ofassembly) if the law is not sufficiently clear: STEEL v UK , TheTimes, 1 October 1998.

REASONABLE SUSPICION

As far as all arrests go, there must at least be “reasonablesuspicion” which has been held by the ECHR to mean theexistence of facts or information which would satisfy anobjective observer that the person concerned may have

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committed the offence: FOX, CAMPBELL AND HARLEY v UK, 13EHRR 157.

ARREST UNDER WARRANT

If the arrest is under a warrant, the warrant will usually haveprovisions included as whether bail should be granted andthis will have been decided by the magistrate issuing thewarrant.

ARREST PROCEDURES

When an arrest is made, the arresting officer must make itclear to the individual that he is being arrested and state thereasons for the arrest. If this is not possible. Then the personarrested should be informed as soon as practicable s.28,PACE 1984. If this is not done the arrest will be unlawful. TheECHR has also been of influence here: see FOX, CAMPBELLAND HARLEY v UK, above, where it was held that the personmust be told “in simple, non-technical language that he canunderstand, the essential legal and factual grounds for hisarrest so as to be able, if he sees fit, to apply to a court tochallenge its lawfulness”.

IN THE POLICE STATION

Where the person is already in the police station, s.29 appliesto require the police formally to make an arrest if they want tostop the suspect leaving, although they have no duty to tellsuch a person that it is not necessary to stay unless an arrestis made. If not already there, then pursuant to s.30 theperson must be taken to a police station as soon as possible,and by s.36 that station must have a designated “custodyofficer” normally above the rank of sergeant, who will decidewhether to detain the person.

The police must actually arrest a person whom they want todetain, unless the person is willing to go voluntarily: R vLEMSATEF [1977] 1 WLR 812, CA. Contrary to what is read in thenewspapers, the police have no power short of arrest torequire anyone to “help them with their enquiries”.

DUTIES OF THE CUSTODYOFFICER

The custody officer has well defined duties and must informthe suspect:

� of the reason for arrest

� of the right to inform someone of his/her arrest

� of the rights existing under PACE (including to legaladvice)

� of the right to consult the PACE Codes of Practice.

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The custody officer, who is the guardian of the suspect’srights while in custody. must be independent of theinvestigation and must also:

� open a custody record

� give written notice confirming the rights set out above.

The rights may only be delayed by an officer of the rank ofsuperintendent (actual or acting): R v ALLADICE [1988] 138 NLJ347, CA, if the suspect:

� is detained for a serious arrestable offence

� could obstruct the recovery of property obtained in theoffence if the usual rights are exercised, and/or

it might lead to an interference with or harm to evidenceconnected with a serious arrestable offence.

If there is to be a delay, this must be communicated to thesuspect and recorded in the custody record, and the end ofthe delay must also be communicated to the suspect: R vWALSH [1989] 91 Cr App R 166, CA.

The grounds for delay must be specific, e.g. it is not enoughthat an accomplice is still at large and may be alerted,especially if the arrest was made in a public place: R vALLADICE, above.

INDEPENDENCE OF THE CUSTODYOFFICER

In practice it is difficult for the custody officer to beindependent as has been shown by cases such as R vABSOLAM [1988] 88 Crim App R 332, CA, but the court will stillusually quash convictions where the suspect’s rights areinfringed.

The custody officer searches the suspect and records theproperty found, usually allowing personal items to be retainedbut not money or valuables, or any items which might causeinjury to the suspect or others.

BODY SEARCHES

Intimate body searches are possible but permission will berequired from a superintendent or higher ranking officer, andsuch searches for drugs or harmful objects should beundertaken by a nurse or doctor, or an officer of the samesex, using reasonable force: s.117.

4. DETENTION WITHOUTCHARGE – TIME LIMITS

Detention may be without charge but is subject to time limits.The Code’s regime in respect of meals, refreshment and restbreaks applies throughout.

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The time limits are:

� 24 hours unless a serious arrestable offence has beencommitted

� 36 hours if a superintendent decides it is necessary tosecure or preserve evidence

� up to 60 hours if the limit is extended by a magistratebefore whom the suspect is brought

� there is provision for further extension by magistrates.

SERIOUS ARRESTABLE OFFENCE

A “serious” arrestable offence is one that has led to seriousconsequences, including the following:

� the death of any person

� serious financial loss (on an objective test)

� serious financial gain (on a subjective test) or is likely tolead to such consequences,

or …

� where there is likely to be serious interference with theadministration of justice or the investigation of theoffence. The police may have to decide on the spotwhether an offence is or is not a serious arrestableoffence, if necessary by a perusal of the Act.

If the suspect is not charged, there must be regular reviewsconducted by an officer of at least the rank of inspector. Thereviews are as follows:

� first review – 6 hours from detention

� second and subsequent reviews – every 9 hours.

Article 5(3) of the convention guarantees the right of anarrested person to be brought before a judge or other judicialofficer “promptly” after an arrest.

VULNERABLE SUSPECTS

Vulnerable suspects have their own regime, requiring an“appropriate adult” (not a police employee) during interview ifthey are:

� a juvenile

� blind

� mentally handicapped

� unable to read.

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APPROPRIATE ADULT

The vulnerable person can object to an appropriate adultbeing present: DPP v BLAKE [1989] 1 WLR 432, where theobjection was made to the detainee’s estranged father, but ifthe vulnerable person makes a confession without thepresence of an appropriate adult, the confession may beexcluded at trial, or if it is not excluded, the judge may give awarning to the jury of the danger of convicting on the basis ofthe confession.

MEDICAL TREATMENT AND FITNESSFOR INTERVIEW

The custody officer must arrange for medical treatment if asuspect requires it. If a doctor deems a suspect to be unfit tobe interviewed then a further examination should beundertaken before any interview takes place.

Failure to do this is not a breach of the Code itself: R vTRUSSLER [1988] Crim L R 446.

Failure to observe these principles may make any confessioninadmissible in evidence: R v EVERETT [1988] CRIM LR 826, DPP vBLAKE, above.

LIMITATION OR DELAY OF LEGALADVICE AT THE POLICE STATION

Legal advice cannot be denied nor delayed without very goodcause: PACE s.58, R Samuel [1988] and certainly not asaccess to a solicitor may prejudice police inquiries, becausesuch advice is “one of the most important and fundamentalrights of a citizen”. Limitation on this right, e.g. delay for goodcause, is permitted by the Convention if in the public interest:see BONZI v SWITZERLAND (1978) 12 D & R 185 online, so thes.58 restrictions are likely to be Convention compliant, thoughsubstantial delay on any ground, even if authorised bystatute, may violate Article 6(3) by breaching the right to a fairtrial, particularly if adverse inferences are subsequently drawnfrom the defendant’s failure to answer questions in aninterview: MURRAY v UK, 22 EHRR 29.

By s.58(1) such consultation shall be in private, so theremight be a breach of Convention rights if, e.g. the dutysolicitor were overheard at the telephone or there were noproper interviewing facilities. The solicitor can be the dutysolicitor or the suspect’s own. The Law Society encouragessolicitors to take a courteous but proactive role in protectingtheir clients, which in the past they did not always do, oftentaking instead a somewhat passive role.

THE DUTY SOLICITOR

The Duty Solicitor Scheme should be able to provide legaladvice at any time of the day or night. There is a rota, a panelsolicitor should be permitted to provide direct telephoneadvice if not able to attend personally, and this should not beprevented unless the suspect is intoxicated or violent. An

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interview should not begin before the solicitor arrives at thestation, unless there is some extraordinary urgency or thesuspect has said that legal advice is not needed, in which casethis should be recorded in writing. The service is free for oneattendance, after which legal aid or private funding will berequired. The Scheme was originally set up in the 1980s as aresult of the increase in police powers enactment culminatingin PACE 1984 and regulated by the Legal Aid Board’s DutySolicitor Arrangements.

ADMISSIBILITY OF CONFESSIONS

If the suspect has not been cautioned first, including after anybreak in interrogation.

confessions are generally useless as evidence – especially sosince the so called abolition of the right to silence by ss.34-38of the Criminal Justice and Public Order Act 1994. In fact ifthere is a good reason why a suspect should not answer atthe particular stage a question is asked, it is still possible torefuse remain silent without inferences being drawn, especiallyon appropriate legal advice, e.g. if there is insufficient evidencedisclosed by the police for the suspect to have a case toanswer at that point, as pursuant to Articles 5(2) and 6(3)(a)the accused must be informed of the nature of the chargeagainst him, and the material facts on which it is based, butnot necessarily the evidence in support: BROZICEK v ITALY, 12EHRR 371.

GROUNDS FOR EXCLUSION OF ACONFESSION

Even if there has been a caution, if there has also been othermisbehaviour by the police, or the suspect has also beenrefused legal advice any confession will be likely to beexcluded either under s.76 (which covers confessionsobtained by oppressive conduct or inducements) or s.78 ofPACE (which allows unfair evidence to be excluded) or both.

INTERVIEWS

There is now a definition of an interview which takes placeonce an officer suspects, reasonably or not, that a personhas committed an offence: thereafter any resulting question isan interview. “An interview is the questioning of a personregarding his involvement in a criminal offence which byvirtue of para 10.1 of Code C would required to be carriedout under caution”: Code C para 11.1A. this has swept awaya voluminous case law on the subject.

An interview should be recorded contemporaneously unlessthere is a reason, and in this case a record must be made assoon as possible including of why it was impossible to recordthe interview at the proper time: R v DELANEY [1988] 88 Cr AppR 338, CA. The record of the interview is to be shown to thesuspect if the suspect is still in custody at the completion ofthe record.

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ENTRAPMENT

For some time there has been no clear guidance in Englishcase law on the status of evidence secured followingentrapment by the police, but the court has always beenhighly likely to take any such conduct into account whenapplying s.78. However the ECHR is clear that if policeofficers go beyond an “essentially passive” investigation of asuspect’s criminal activities and have “exercised an influencesuch as to incite the commission of an offence” then the rightto a fair trial has been violated: TEIXEIRA DE CASTRO vPORTUGAL, 9 June 1998, unreported.

This case was followed by the Divisional Court inNOTTINGHAM CITY COUNCIL v AMIN, 2 December 1999, DC,when the Court decided that in exercising their discretion toexclude under s.78, judges should have regard to theConvention. This was a case of plain clothes officers stoppinga cab whose sign was not illuminated. The driver, whoselicence was for a different area, agreed to take them as a fare.The court decided there was no pressure to commit anoffence, merely an opportunity afforded to do so, so therehad been no basis for the magistrate exercising discretion toexclude the evidence under s.78, as the circumstances didnot make the prosecution unfair.

Basically, there has never been automatic restriction in the UKon admissibility of unfairly or illegally obtained evidence(sometimes called “the fruits of the poison tree”) unlike in theUSA. Nor is there any absolute requirement under theConvention to exclude illegally obtained evidence, but the useof such evidence may give rise to unfairness on the facts of aparticular case: see SCHENCK v SWITZERLAND 13 EHRR 242, atparas 46-48. In R v KHAN (SULTAN) [1997] AC 558, HL, theHouse of Lords indicated that this was a matter for discretionunder s.78, as “the discretionary powers of the trial judge toexclude evidence march hand in hand with Article 6.1”: perLord Nicholls of Birkenhead at p.583. In this case the judgehad allowed secretly taped evidence at trial when theinstallation of the listening device was not in accordance withthe law, violating both Article 8 (privacy) and Article 13(because the police were not an independent body able toprotect abuse of authority) but the illegally obtained evidence,although the sole evidence against the accused, was verystrong, thus proportionately reducing the need for supportingevidence. When the case went to Strasbourg, the ECHRdecided that the issue was fairness, as in Schenck, and as theaccused had had the opportunity to challenge admissibilityunder s.78 at all stages right up to the House of Lords, therehad been no breach of Article 6 right to a fair trial.

A very popular question with examiners in the past has been:

Has the long tradition of the “right to silence” really been lostpursuant to the 1994 Act? Consider this as a result of yourgeneral reading of this subject. Remember that any ‘problem’question in the examination may well involve PACE (seeZander and Blackstone’s Criminal Practice 2001).

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THE RIGHT TO IDENTIFICATIONPARADES

The general principle is that if the suspect wants anidentification parade to take place it must be done unless it isimpracticable to do so. The police must ensure that the paradeis fairly conducted in accordance with the Code. Breaches arelikely to lead to evidence being excluded under s.78.

5. THE ROLE OF BAIL

The granting of bail from court is governed by the Bail Act1976 as amended. Under s.4 there is a right to bail unless thecase falls within one of the exceptions in Schedule 1. If theaccused is charged with an imprisonable offence, the courtdoes not have to grant bail if it is reasonably believed that theaccused will:

� fail to surrender to custody

� commit an offence while on bail

� interfere with witnesses or otherwise obstruct the courseof justice.

Bail can be granted at the police station or by the court beforewhich the accused appears when charged and brought tocourt by the police.

If there was no warrant, the police must act in accordancewith PACE 1984, and must decide if bail should be granted.

RESTRICTIONS

The Criminal Justice and Public Order Act 1994 restricts thegranting of bail if the accused committed another offence whilealready out on bail.

APPEALS

It is possible to appeal against the refusal to grant bail, eitherto a High Court judge (technically a civil application) or to theCrown Court.

With one exception no longer applicable, English law on bailhas always been in accordance with the Convention. Article5(3) allows the imposition of reasonable bail conditions.

SENTENCING

For a general outline of sentencing policy you should befamiliar with the leading authority of Ashworth on ‘Sentencingand Criminal Justice’. Also be aware of the considerabledebate which surrounds current sentencing policy and theproposals for change to be outlined in the Criminal Justice Bill2001/2 and the Police Bill 2001/2.

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All the answers can be found in the recommended materials,reading lists or the above summaries. Do keep up to date withchanges.

1. What is:

(a) an arrestable offence

(b) a serious arrestable offence?

How can you tell?

2. When can a person leave the police station?

3. What is an interview?

4. Which PACE Codes regulate:

(a) stop and search

(b) detention

(c) identification

(d) search and seizure

(e) recording of interviews?

5. On what basis can bail be refused?




THE CRIMINAL PROCESS: THE JURY SYSTEM

CONTENTS

The Institution of the Jury.......................................................... 1

The Jury: Studies, Enquiries and Research ................................. 1

Judge and Jury ......................................................................... 3

Selection of the Jury .................................................................. 3

The Case for the Jury ............................................................... 5

The Runciman Commission: Recommendations .......................... 5

Human Rights and the Jury: The Sander Case............................. 6

Chapter 7



THE JURY SYSTEM


Slapper & Kelly, Chapter10


Zander: Cases and Materials, Chapter 5

1. THE INSTITUTION OF THEJURY

Old as the common law itself, the jury system is believed tohave been the element in the justice system which made thelaw “common”, that is available and applicable to all. The juryof “12 good men and true” (which of course includes women)is a fact finding body, introducing the “common” elementprocess, a fundamental safeguard to our liberty. See Zanderfor a full history and research some of his interestingfootnotes.

It was one of the fundamental demands of Magna Carta,1215, that the Barons who sought constitutional assurancesfrom King John that they should be tried “by their peers” andnot by that unpredictable king’s arbitrary decision. However,there has been much criticism of the jury in recent years andthere are a number of ongoing proposals to alter or abolish itsfunctions.

The Royal Commission on Criminal Justice has put forwardproposals to reduce the role of the jury in criminal trials, andthe present Labour government is introducing legislation torestrict the right to jury trial.

2. THE JURY: STUDIES,ENQUIRIES AND RESEARCH

A study of a jury from the point of view of a juror was madeby Penny Darbyshire in “The Lamp That Shows ThatFreedom Lives – Is It Worth a Candle?” Her aim was:

“… to question the traditional qualifications usedin praise and defence of the jury, suggesting thatsome of them are conceptually unsound …[to]argue that jury defenders inflate the jury’simportance by portraying the ‘right’ to jury trial as

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central to the criminal justice system and as aguardian of due process and civil liberties”.

She criticises the traditional romantic view of the jury andmany commentators’ emphasis on tit “mystery”, in particularbecause they are not a representative sample of thepopulation, but tend to be comprised of jurors who happento be available, calling the result:

“an antidemocratic, irrational and haphazardlegislator, whose erratic and secret decisions runcounter to the rule of law”.

There are, however, few in depth studies of the jury, as theContempt of Court Act 1981, s.8, forbids the really essentialresearch, which is obviously into how the jury actuallyfunctions once in the jury room. This not only preserves theromantic view but is detrimental to change in the justicesystem. If Penny Darbyshire is right, it plays such a small rolein the minority of cases that its passing would not be causefor lament, but without research to back this suggestion it isimpossible to decide this point one way or the other, sinceothers argue to the contrary.

THE JURY IN DECLINE?In modern times the use of the jury has declined:

� The Administration of Justice Act 1933 limited the use ofjuries in civil cases

� The 1986 Roskill Report advocated the abolition of theright to trial by jury in complex fraud cases

� Lord Denning argued that some jurors are notadequately suited to the task required of them

� Amendments to the Criminal Damage Act 1971 havetaken certain cases away from the jury, making themsummary offences

� Part V of the Criminal Justice Act 1988 removed the rightto jury trial for other offences, including driving whilstdisqualified

� The James Committee in its 1975 study “The Distributionof Criminal Business between the Crown Court and theMagistrates Courts recommended that minor thefts andsimilar offences should become summary offences only.

� In civil cases the use of the jury has almost disappeared

� The Coroners’ Court has also been modified by theCriminal Law Act 1977

� The Northern Ireland (Emergency Provisions) Act 1991has taken away the right to jury trial for defendants inserious criminal cases

� The right to jury trial in Northern Ireland was taken awayin most serious cases (not exclusively relating to

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terrorism) following Lord Diplock’s report on intimidationof jurors as long ago as 1973.

The Royal Commission did undertake some studies of pre trialprocedures in continental countries which suggested that thejury should be reformed along similar lines: see Leigh andZedner’s 1992 “Report on the Administration of CriminalJustice in the Pre-trial Phase in France and Germany”,although this suggestion has not been welcomed.

3. JUDGE AND JURY

The jury decides the facts, the judge decides the law, i.e.

� the jury are lay persons with no legal knowledge whorely on their common sense to assess the accused andthe evidence against the accused in order to reach averdict. If the verdict is an acquittal there is no appeal,and once an accused is acquitted s/he cannot be chargedwith the same offence again (a situation which has beenparticularly criticised) although s.36 of the CriminalJustice Act 1972 does provide in the Attorney-General’sreference a procedure whereby such cases can bereferred to the Court of Appeal for that Court to clarifythe law in such a case with a view to preventing such asituation’s arising again.

� the judge explains the law to the jury so the jury canreach their verdict. This is principally done in thesumming up of the evidence before the jury retires toconsider its verdict. The judge has no power to instruct ajury to convict an accused.

This system generally appears to work tolerably well, withjury taking its responsibilities seriously and following thejudge’s directions, e.g. Baldwin and McConville in “JuryTrials” (1979) established evidence to suggest that juriesacquitted people in the face of unjust prosecution.

4. SELECTION OF THE JURY

Jury selection is governed by statute.

Eligibility depends on the Juries Act 1974 which lays down therules for selecting a jury, and the Criminal Justice Act 1987which excuses those over 65 as of right. This leaves anyonelisted on the electoral register between the ages of 18 and 70,who has been resident in the UK for at least 5 years since theage of 13.

Certain persons are ineligible:

� members of the judiciary, barristers, solicitors, the clergyand the mentally ill

Certain persons are excused:

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� MPs, members of the armed forces and medical and legalprofessions

� (by administrative discretion) any person who hasserved on a jury in the past 2 years, any person withgood reason to be excused: s.120, Criminal Justice Act1988.

CHALLENGING INCLUSION OF JURORS

Challenging the presence of a particular individual on a jurymay be done if the juror:

� is not qualified

� is biased

� may be reasonably suspected of bias against thedefendant.

The prosecution and the defence both have a right tochallenge. The prosecution also has the right to ask a juror to“stand by” for the Crown. The Attorney General has laiddown guidelines as to when the prosecution can exercise thisright:

� if the jury check shows information supporting theexercise of this right

� if the person to be sworn as a juror is unsuitable and thedefence agree: Practice Statement 1988.

ABOLITION OF PRE-EMPTORYCHALLENGE

Note: the defence no longer has the right to pre-emptorychallenge of up to 3 jurors without giving reasons. This wasabolished by the Criminal Justice Act 1988, s.118.

VETTING THE JURY

The panel is selected a random and any party to theproceedings can inspect the panel from which the jurors willbe chosen. Their backgrounds are investigated as todetermine whether they are suitable for jury service, apractice called “jury settling” which came to public noticeduring a 1978 trial under the Official Secrets Act 1911, andagain in two cases in 1980.

In practice only the prosecution has the resources to do thistype of investigation, as they have access to police records.The constitutional position of this procedure is thereforemuch in doubt, although the Court of Appeal has recognisedthe legitimacy of the Crown’s right to “stand by” potentialjurors. There is some regulation of the practice: the AttorneyGeneral issued a Practice Note in 1988 together with astatement confirming the previous guidelines.

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5. THE CASE FOR THE JURY

FOR…

The arguments for retaining the jury are as follows:

� the members should reflect society

� the jury is central to protecting our liberties

� the existence of the jury checks any abuse of judicialpower

� jurors have no legal training and import common sense

� juries are a barometer of public feeling

� jurors are not “prosecution minded” (better chance ofacquittal before them than before magistrates)

� any bias can be overcome – there are 12 jurors.

AGAINST…

The arguments against retaining the jury are:

� they have no legal training (not even a basic knowledgeof the law usually)

� they are sometimes not intellectually equipped to follow acomplex case (e.g. fraud, clinical negligence)

� they can be influenced by outside forces

� they are sometimes actually prejudiced as well asignorant

� a good lawyer can sway them

� they are said to acquit too many people

� they often bring in perverse verdicts.

6. THE RUNCIMANCOMMISSION:RECOMMENDATIONS

The Royal Commission on Criminal Justice HAS maderecommendations to improve the jury system, including thefollowing:

� The Contempt of Court Act 1981, s.8 to be repealed toallow research into the jury.

� Changes in selection and disqualification of jurors.

� More checks to be made of jurors to ensure they are notrelated to one another or the accused.

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� A more balanced panel with at least three members fromethnic minority groups.

� One member reflecting the ethnic origins of the accused.

� Protection of juries from outside influences duringproceedings.

� More flexible trial scheduling to allow jurors to go towork especially during long trials.

� The abolition of the defendant’s right to elect for jury trialin either way cases, the decision to be vested instead inthe magistrates (this is the subject of currentcontroversial legislation).

While it is argued that this would produce a more rationaldistribution of cases, some commentators are deeply criticaland consider that the right to jury trial should remain in caseswhich would have serious implications for a defendant. Seee.g. McConville: “ A Comedy of Errors” writing in Legal Actionin 1993, was totally opposed to truncating the right to jurytrial.

7. HUMAN RIGHTS AND THEJURY: THE SANDER CASE

Article 6 (fair trial) obviously requires the institution of animpartial jury. The case of SANDER v UK The Times, 12 May 2000,ECHR, shows the inherent problems in a multi-cultural societywhere racial imbalance on the jury cannot be correctedautomatically. The judge’s redirection of the jury to stress theimportance of avoiding racial prejudice was held to beinadequate.

There were three letters from the jury. The first complainedthat two fellow jurors were making racist remarks and jokes.The second was from the whole jury, refuting the allegationsin the first letter. The third was from one of the alleged racistjurors who denied any racial bias. The Court held that racialbias does not go away overnight, and that the jury shouldhave been discharged, due to the violation of Article 6.

THE EXAMINATION

There is often a question about the jury system. Considerthis:

Do you think that the present system of selection, exclusion,exemption and challenge procedures does anything to ensurethat juries are representative of the pubic conscience?

If not, do you think that the retention of the jury is dictated byemotion or are there good reasons for keeping it? If so,explain.

For your own research, see the Grobbelaar case (2001) TLRCA which is possibly going on a further appeal to the Houseof Lords.

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All the answers can be found in the recommended materials,reading lists or the above summaries.

1. What evidence is there that the jury is an outmodedinstitution.

2. What did the Roskill Report, examining alternatives forcomplex fraud trials, suggest instead? Would thesesuggestions assist in other complex trials?

3. Do juries have the opportunity to assess the truth of acase?




LEGAL SERVICES: LEGAL AID

CONTENTS

The Concept of Access to Justice............................................... 1

The Legal Aid Act 1988 ............................................................. 3

Modernising Justice: The Post-April 2000 Dispensation ............. 6

Legal Aid and Human Rights ...................................................... 7

Legal Expenses Insurance ......................................................... 7

Chapter 8



LEGAL SERVICES: LEGAL AID


Slapper & Kelly, Chapter12

Smith & Bailey, Chapters 8, 9 and 11

Zander: Cases and Materials, Chapter 6 (this informationwould now appear to be in need of amendment)


Soundfile: Legal aid

1. THE CONCEPT OF ACCESSTO JUSTICE

The concept of access to justice for all is seen as being centralto our notion of the Rule of Law. Litigation, however, isexpensive, hence the establishment of what became known aslegal aid. The syllabus still refers to the public funding oflitigation as ‘legal aid’ so I will use this term. Note that the LegalAid Board has now been superseded by the Legal ServicesCommission under s.1 of the Access to Justice Act 1999which is now in force. The authority’s functions are theestablishment, maintenance and distribution of:

� the Community Legal Service (CLS) which replaces the oldcivil legal aid scheme; and

� the Criminal Defence Service (CDS) which will replace thecriminal legal aid scheme.

The CLS was launched on the internet in April 2000: seewww.justask.org.uk. The Lord Chancellor sees it as astrategically important part of the public funding of legalinformation and advice. Note also that conditional feeagreements (CFAs) are seen as an important part of thestrategy to control public spending on legal services.

THE DEVELOPMENT OF LEGAL AID

Until after World War II, Legal aid was not available at all.Therefore, individuals needing legal advice had to depend onpro bono work. There was a Poor Prisoners Defence Act asearly as 1903, which provided a limited scheme for lawyers tobe paid from public funds. However a comprehensive statesystem of legal aid was not created until the Legal Aid Act1949. This immediately gave a boost to limited reforms to

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divorce law because it enabled women, normally entirelydependent on their husbands, to afford lawyers so as topetition for divorce on the same footing as their husbands.

Legal aid was therefore initially part of the post-war welfarestate which in theory attempted to reconstruct the country ina way which enabled all classes to participate in the victory.The war had swept much of the social framework of the pre-war period away. Women who had replaced men at workduring the war years, did not expect to return to their formerdomestic subservience.

The government held out the hope of full employment andalong with the other benefits of the welfare state, legal aid wasexpected to meet all legal needs for those who could notafford to pay, which was interpreted as everyone but therich. In the 1950s and early 1960s, 80% of the populationqualified for legal aid.

THE RISING COSTS OF LEGAL AID

When a state-wide system of legal aid was first implemented, itappeared that no thought was given either to setting a realisticbudget for a demand-led system or even controlling it. Thecost of the scheme got out of hand in the ‘80s and continuedto rise until the mid 90s. In 1986, the Legal Aid ScrutinyReport recommended a number of proposals to help cut costsin the administration of the scheme and some of theseproposals were implemented in the Legal Aid Act 1988.

In the late 80s and early 90s the then Lord Chancellor, LordMackay of Clashfern, identified a number of proposals to alterthe funding such as reduced interest bank loans, contingencyfees and legal insurance, besides at the same time setting outto modernise the legal profession so that the cost of litigatingwould itself also fall, To accomplish this, Green Papers in1989 were followed in 1990 by the Courts and Legal ServicesAct, which began the process of widening rights of access tothe higher courts so that solicitors could if they wished handlemore of their own advocacy, thus restricting the need forincurring the fees of a professional advocate from the Bar inon top of their own. Indeed it was Lord Mackay who appearsfinally to have realised, and brought home to the governmentof that time, that cuts were no longer going to be enough:rather a completely new approach would be required.

The reasons for the increase in legal aid requirements wereeasy enough to see: an increased crime rate was a maincontributory cause.

CUTTING COST: THE FIRST ATTEMPTS

The first approach was to cut legal aid costs by decreasingeligibility. Legal aid limits were set at the same level as the mainwelfare benefit - supplementary benefit - in 1974 andtherefore only marginally increased each year in line.

By 1979 it was estimated that more than 11 million people hadlost their access to civil legal aid as a result, a result whichconcerned many. Pressure groups and learned papers,including from the law reform society JUSTICE, explored

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alternatives to rescue the ailing legal aid scheme, but only costcutting, and no root and branch reappraisal, was adopted atthis stage.

A new Legal Aid Act in 1988 set up the system whichendured until April 2000. This enabled an applicant to qualifyautomatically for legal aid if in support of any of the mainwelfare benefits ( income support, family credit or incapacitybenefit) but otherwise it was means tested. The means testtook into account savings, and items of value, to assess aqualifying capital level, as well as a qualifying income level.Above the automatic qualifying level but below the ceiling, anapplicant would have to make a contribution, but above theceiling legal aid would not b available at all.

The statutory charge was introduced to restrict accessfurther, making legal aid a loan rather than a gift, as anymoney or property recovered or preserved was earmarkedfor immediate or eventual repayment of the litigant’s share ofthe cost of the litigation, if necessary when the property wasultimately sold. This kept the costs down in funding ofdivorces, as mostly divorcing spouses obtained a decreerelatively cheaply, but ran up large bills over ancillary relief.

2. THE LEGAL AID ACT 1988Under this scheme, legal aid was administered by the LegalAid Board, established under s.3 of the 1988 Act, to succeedthe Law Society in control of funding. The Board’s chairmanwas a lay person and the members were chosen for theirknowledge of the legal system and fiscal issues. Pursuant tos.4 the Board advised the Lord Chancellor on policy issuesregarding legal services, and produced Consultation papers.Their duties were set out in s.5.

The scheme provided three sorts of legal aid:

� Legal Advice and Assistance (“The Green Form Scheme”)

� Civil Legal Aid

� Criminal Legal Aid.

The Green Form Scheme, introduced in 1972, coveredpractical assistance from a solicitor who would advise, writeletter or negotiate for the client, and could consult a barrister.It covered all legal services up to but not includingrepresentation at court, which was further provided for if theclient met the necessary qualifying criteria.

Civil Legal Aid was available for proceedings in all civil courtsand at some tribunals, to assist with the cost of all pre-courtwork, including representation in court. Besides satisfying thefinancial eligibility criteria, the assisted person also had tosatisfy the Board that s/he had reasonable grounds for legalaid to be granted, and the second limb of this secondqualifying condition was linked with the “paying client” test,i.e. would a party who had to pay privately be likely to think itworth doing so: if this was not likely, legal aid out of publicfunds would not be appropriate.

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Criminal Legal Aid was available in all courts trying criminalcases, and the courts had the power to grant it where it wasin the interests of justice. The initial application would be madeto the magistrates on an applicant’s first appearance beforethem, and would be dealt with by the clerk. The level of legalaid granted at this stage was representation by a solicitor andpreparation of the client’s case.

The merits test which regulated whether criminal legal aidshould be granted was set out in s.22 of the Legal Aid Act, i.e.if the accused:

� would be likely to be deprived of his liberty onconviction, or

� had some form of mental or physical impediment, or

� was incapable of comprehending the proceedingsbecause he could not speak English, or

� if the case involved a point of law.

In the 1990s standard fees for legal aid work in magistratescourts were introduced and then extended to Crown Courts.

Finally, the Legal Aid Board tried a system of “franchising”whereby administrative costs were cut by delegating legal aiddecisions to firms of solicitors to whom a franchise had beengranted in effect to take all the decisions that were normallytaken by the Board through its Area management. Certainstandards were demanded of such firms including under thefollowing heads:

� strategic management

� service plans

� management of information

� personnel management

� case management.

At the same time, the Legal Aid Board had to deal with a newsource of potential clients: children. The Children Act 1989gave children a greater say in how they were treated by thecourts, particularly if the child had a sufficient age andunderstanding, which was called being “GILLICK competent”.This term came from the case of GILLICK v WEST NORFOLKAND WISBECH AREA HEALTH AUTHORITY [1986] AC 112 whichyou should read online.

Rule 9.2(A) (1) of the Family Proceedings Rules 1991 formallyrecognised the welfare principle embodied in the 1989 Actwhich entitled children to make their own applications in familyproceedings, and from 1989 a child’s legal aid eligibility wasbased solely on the child’s mean calculated by completing asimplified statement of means.

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LEGAL NEEDS UNMET

Vast areas of law, some with considerable importance inrespect of individual rights, still remained uncovered by thelegal aid scheme. Research showed that lawyers were usedonly by a small social group, and then only for a smallproportion of the areas which needed to be covered. Manywho would have benefited from the services of a lawyer didnot take advantage of the service. The Marre Reportrecommended that lawyers should promote more publiceducation and awareness of the legal profession, that theyshould attempt to be more approachable to help reduce publicfear of lawyers, particularly with regard to ethnic minoritygroups who often feel intimidated by the legal profession.

THE FIRST REFORMS

In 1995, Lord Mackay, the then Lord Chancellor, spoke of thegrave need to reform the legal aid system to stem the stillspiralling costs. For the first time in the Green Paper TargetingNeed (1995) emphasis was placed on replacing the existingdemand-led system with its apparently ineffective cuts andcontrols with a cash limited budget, similar to that on the basisof which a decade before the Department of Social Securityhad replaced “single payments” in the welfare benefits schemewith the cash limited Social Fund. The concept of a fixedannual amount for legal aid work was thus born, leading toblock contracting and franchised “fundholders”, similar to thesystem pioneered in the National Health Service.

In 1995 the Conditional Fee Agreements (CFA) Order led theway in making such arrangements available for personal injurywork and cases before the European Court of Human Rights:this system provides funding for the running of the case withno bill for the client if the case is won, and an uplift for thelawyer if it is won.

At the same time, insurance cover for legal costs began toincrease in popularity, and is now gathering prominence withmany household policies providing such cover.

During the same period, alternative legal services began to bedeveloped, the three most important being:

� Legal Advice Centres,

� Citizens Advice Bureaux

� Law Centres

Legal Advice Centres provided free advice, in universities andother law schools, charitable social service centres and withinsome Citizens Advice Bureaux. An extension of this is the BarCouncil’s Free Representation Unit (FRU), staffed by Barstudents, which provides advocates for tribunals. The BarCouncil also operates a pro bono unit whereby members ofthe Bar, including QCs, make themselves available toundertake legal work, including advocacy, for no fee.

Citizens Advice Bureaux are voluntary general advice centresfound in high streets, sometimes linked to public libraries, or

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court centres. That in the Royal Courts of Justice in the Strandin London is one of the busiest. They give general advice on awide range of problems which affect the citizen, including legalproblems.

Law Centres were initially established in 1968 by the Societyof Labour Lawyers and the first opened in 1970, muchopposed by the Law Society. Their initial remit was to:

� educate the public in their rights and duties under thelaw, and

� specialise in specific areas of law seen as appropriate topoorer sections of the community, such as landlord andtenant, employment law and social security law.

3. MODERNISING JUSTICE:THE POST-APRIL 2000DISPENSATION

In the autumn of 1998, the present Lord Chancellor, LordIrvine, announced a package of fundamental reforms of legalaid His White Paper “Modernising Justice” unveiled areplacement for the Legal Aid Board to be called the LegalServices Commission, which, following the Access to JusticeAct 1999 setting up the new system, began work in April2000: s. 4 of the Act provided for the Commission to set up aCommunity Legal Service to replace legal aid in family andother civil cases where assistance remains available, and for aCriminal Defence Service to buy legal services for the public ina controlled way.

The Criminal Defence Service, inaugurated in April 2001 willreplace criminal legal aid under the arrangements pursuant tothe Legal Aid Act 1988. The Lord Chancellor now budgetsannually for these services, and the Act further explicitlyimposes a statutory duty to obtain value for money: AJA1999 s.5. pursuant to s.10 it is intended that legal aid shallbecome more of a loan than a means tested grant, and theLegal Services Commission is developing its own qualityassurance system, called Quality Mark, for the lawyers who itwill use under the new regime.

There are two CLS Quality Mark points of contact for thepublic, sources of:

� information (which comprise a wide range of distributionpoints, including charities and local information servicesof all kinds as well as lawyers, who will give outinformation in a number of formats, including leaflets) and

� help (i.e. legal services within the system).

In his launch of the CLS in May, 2000, the Lord Chancelloralso pointed out that those who wanted to litigate payingprivately would also find good value if using those lawyerswho had the CLS Quality mark.

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Go online now!

Access the Lord Chancellor’s website, www.open.gov.uk/lcd,and download the latest information on the Legal ServicesCommission, the Community Legal Service and the CriminalDefence Service. It is also useful to look at the Legal ServicesCommission press notices which are also posted on the web.

4. LEGAL AID AND HUMANRIGHTS

Article 6 of the Human Rights Act (fair trial) is clearly relevantto the issue of genuine access to justice through the provisionof legal help where necessary. Is the new cash limited systemin breach of Article 6?

The answer to date appears to be ‘No’. See PROCURATORFISCAL, FORT WILLIAM v McLEAN AND ANOTHER The Times, 11August 2000. In this case, the High Court of Justiciary, sitting asthe Court of Criminal Appeal, so held in a case where theappellant claimed that it was an abuse of his human rights forthe Crown to prosecute him for a crime while restricting to£550 the fee they were prepared to pay to his lawyer todefend him. The Convention is already in force in Scotland,having been incorporated into Scottish law by the ScotlandAct 1998. Lord Prosser, giving the judgment of the court, heldthat there had been no actual prejudice in the case before thecourt (a prosecution for assault and breach of the peacewhere there was no suggestion that the solicitor acting for thedefendant had been pressured in any way and had thereforeallowed his professional standards to drop) and that therewas also no breach in general terms on the basis that afinancial restriction would be bound to prejudice a fair trial.

5. LEGAL EXPENSES INSURANCE

Many will have heard recently of organisation such as ‘ClaimsDirect’ and other specific private sector companies offering ano win no fee arrangement. Such arrangements are commonin personal injury actions and students can view the detailedarrangements through Butterworths PI online service. Whilstyou should be aware of the changes currently taking place, itis doubtful whether a specific examination question willappear in this area. Do monitor the publicity (mainly badpublicity) surrounding organisations such as Claims Direct inthe media. At present, large amounts of money owed toclients remain still to be paid to them. It can be seen thereforethat the problems surrounding the introduction of CFAs andthe concept of ‘no win no fee’ are far from settled. Studentsshould also note the strict provisions for such arrangementsinvolving solicitors and their clients, and solicitors andcounsel.

For the actual examination it is difficult to predict what type ofquestion may be asked at the present time. One whichsprings to mind is:

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Is the Legal Services Commission the solution to the problemsthat have dogged legal aid for the past few decades, or is it alltoo good to be true?

You may like to consider this discussion in the light of thedifficulties surrounding the Criminal Defence Service.

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All answers can be found in the recommended materials, thereading list, the websites or the above summaries.

1. What are the objectives of the new system of providinglegal help in place of the old legal aid system?

2. What is a contingency fee? What was the objective of theintroduction of contingency fees? When can a solicitorcharge a client under this system?

3. What were the main drawbacks of the old legal aidsystem?

4. Explain the merits test for the grant of criminal legal aid.




THE CIVIL PROCESS

CONTENTS

The Civil Process....................................................................... 1

Woolf: The Reasons for Reform ................................................ 1

Chapter 9



THE CIVIL PROCESS


Slapper & Kelly, Chapters 3, 6, 7 and 8

Smith & Bailey, Chapters 11 and 14

Zander: Cases and Materials, Chapter 2


Soundfile: Civil Justice

1. WOOLF: THE REASONS FORREFORM

Prior to Lord Woolf’s review of civil justice, litigation wascontrolled almost entirely by the parties, and the rules ofcourt were contained in two weighty tomes: The Rules of theSupreme Court, or “RSC” (“the White Book”) and the CountyCourt rules (“CCR”) or (“the Green Book”). Together with theSupreme Court Act 1981 the RSC regulated all aspects of theHigh Court, and where the CCR did not provide, recoursecould be had to the RSC to fill the gaps.

Much out of date terminology was used (e.g. the initial claimwas usually a “writ”, although lack of uniformity, due to theantecedent history of the Divisions of the High Court and thestatute-created County Court meant that these documentshad different names in different courts).

These historical arrangements were further impeded byarcane terms of reference liberally sprinkled with Latin. Therewere furthermore, fewer and fewer distinctions between HighCourt and County Court litigation. Confusion between thetwo proliferated to such an extent that an overhaul wasobviously desirable. First aid was put in place, such as theCivil Justice Review and the Courts and Legal Services Actwhich implemented some of its recommendations.

The High Court and County Court Jurisdiction Order of 1991had had limited beneficial effect, but costs soared and delayand overload multiplied. Alternative dispute resolution wasfrequently mentioned as a likely help in moving the civilprocess along, as were contingency fees. But trials moved nofaster nor was there an increase in settlements. Complexityseemed entrenched amid frequently heard complaints aboutlack of access to justice.

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LORD WOOLF’S REPORT: THEIMPACT

There were two Woolf reports, the Interim Report (1995) andthe Final Report a year later, which identified delay, cost,complexity and problematical access to justice as the fourmain problems of the old system, which were traced to acommon cause identified as excessive adversarialism. Wenow move to what is termed the new landscape.

In addressing these problems, Lord Woolf:

� articulated an overriding objective, explicitly making therules “a code to enable the court to deal with casesjustly”

� set out to simplify complexities both of law andprocedure.

Examples:

� the different forms by which to start an action were allreplaced by a single “claim”.

� the RSC and CCR were replaced by a single set of rules:the new Civil Procedure Rules, or “CPR”

� encouraged alternative dispute resolution as analternative to the courts at any stage at which a disputemight still be settled. Example: the creating of pre-actionto be complied with before any litigation could be started,thus cutting the court workload

� built in efficiency. For example, case management wasput into the hands of the judges, who were required toexert hands-on proactive management instead of leavingthe conduct of the case to the parties as previously

� set up a new tracking scheme to allocate cases to:

fast track (up to £15,000 value)

multi track (over £15,000)

or small claims stream (for cases involving up to£5,000 value)

� reformed the delivery of expert evidence

� created timetables which had to be met

� generated a new culture of openness

� set up and invoked costs sanctions for non-compliance

� fixed costs in certain cases

� simplified English with less emphasis on Latin usage

and

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� created a post of head of Civil Justice to oversee thework of the entire system.

These recommendations were implemented in the CivilProcedure Act 1997 and the Civil Procedure Rules 1998.They were brought into force from 26th April 1999. SirRichard Scott (Vice-Chancellor of the Chancery Division) wascreated Head of Civil Justice.

REACTIONS TO WOOLF

Bearing in mind the radical nature of the reforms, reaction tothem has been positive, from both judges and those who usethe courts, including lawyers and clients. Seem as aparticularly effective innovation is the partnership between thenew government agency the Court Service and the presidingjudges at Civil Trial Centres, (which now group county courtstogether in a satellite framework) and in the High Court.

Information Technology which could much assist courtprocesses and management, is apparently not yet entirely upto the standard required, but doubtless will be furtherdeveloped. Voice recognition software is eventually likely tosave judges the task of taking notes of proceedings so as toenable them to concentrate more closely on the conduct ofthe hearing. This in itself might further speed up processing ofthe caseload.

THE POST-WOOLF LANDSCAPE

Lord Woolf has now moved on to become Lord Chief Justice.The new Master of the Rolls, is Lord Phillips of WorthMaltravers, who is well known for his then innovative casemanagement techniques in the trial of the Maxwell brothers.Meanwhile, the team which drafted the CPR is now assistingLord Justice Auld in the review of criminal justice which willreport in late 2001.

Basically the new systems are perceived to be working equallywell in the County Courts and High Court and the Court ofAppeal. However, those who are either knowledgeable orwish to appear so, predict that once Lord Phillips is able to getinto the driving seat on the Civil Justice Council and tofamiliarise himself with the reforms to the Court of Appeal,there will be further refinements.

A review of Tribunals under Sir Andrew Leggatt, a retiredCourt of Appeal judge, may also offload further work ontotheir sector, freeing up more judicial resources in both CountyCourt and High Court.

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The glossary set out below will give some indication of theterminology used within the English Legal System

GLOSSARYScope

This glossary is a guide to the meaning of certain legalexpressions as used in these Rules, but it does not give theexpressions any meaning in the Rules which they do nototherwise have in the law.

Affidavit

A written, sworn statement of evidence.

Alternative dispute resolution

Collective description of methods of resolving disputesotherwise than through the normal trial process.

Base rate

The interest rate set by the Bank of England which is used asthe basis for other banks’ rates.

Contribution

A right of someone to recover from a third person all or partof the amount which he himself is liable to pay.

Counterclaim

A claim brought by a defendant in response to the claimant’sclaim, which is included in the same proceedings as theclaimant’s claim.

Cross-examination (and see “evidence in chief”)

A claim brought by a defendant in response to the claimant’sclaim, which is included in the same proceedings as theclaimant’s claim.

Damages

A sum of money awarded by the court as compensation tothe claimant.

Aggravated damages

Additional damages which the court may award ascompensation for the defendant’s objectionable behaviour.

Exemplary damages

Damages which go beyond compensating for actual loss andare awarded to show the court’s disapproval of thedefendant’s behaviour.

Defence of tender before claim

A defence that, before the claimant started proceedings, thedefendant unconditionally offered to the claimant the amount

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due or, if no specified amount is claimed, an amount sufficientto satisfy the claim.

Evidence in chief (and see “cross-examination”)

The evidence given by a witness for the party who called him.

Indemnity

A right of someone to recover from a third party the wholeamount which he himself is liable to pay.

Injunction

A court order prohibiting a person from doing something orrequiring a person to do something.

Joint liability (and see “several liability”)

Parties who are jointly liable share a single liability and eachparty can be held liable for the whole of it.

Limitation period

The period within which a person who has a right to claimagainst another person must start court proceedings toestablish that right. The expiry of the period may be a defenceto the claim.

List

Cases are allocated to different lists depending on the subjectmatter of the case. The lists are used for administrativepurposes and may also have their own procedures andjudges.

Official copy

A copy of an official document, supplied and marked as suchby the office which issued the original.

Practice form

Form to be used for a particular purpose in proceedings, theform and purpose being specified by a practice direction.

Pre-action protocol

Statements of understanding between legal practitioners andothers about pre-action practice and which are approved by arelevant practice direction.

Privilege

The right of a party to refuse to disclose a document orproduce a document or to refuse to answer questions on theground of some special interest recognised by law.

Seal

A seal is a mark which the court puts on a document toindicate that the document has been issued by the court.

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Service

Steps required by rules of court to bring documents used incourt proceedings to a person’s attention.

Set aside

Cancelling a judgment or order or a step taken by a party inthe proceedings.

Several liability (and see “joint liability”)

A person who is severally liable with others may remain liablefor the whole claim even where judgment has been obtainedagainst the others.

Stay

A stay imposes a halt on proceedings, apart from taking anysteps allowed by the Rules or the terms of the stay.Proceedings can be continued if a stay is lifted.

Strike out

Striking out means the court ordering written material to bedeleted so that it may no longer be relied upon.

Without prejudice

Negotiations with a view to a settlement are usually conducted“without prejudice” which means that the circumstances inwhich the content of those negotiations may be revealed tothe court are very restricted.

The examination questions here are somewhat sparse but it issuspected that, at some future date, students will be asked toconsider the effectiveness of the Woolf reforms. One of theeasiest books to read on the subject is Blackstone’s CivilPractice 2001 – read the first two chapters in detail andbecome familiar with the Civil Procedure Law Reports whichare now being published. Consider also this question: whatdo you think should be the objectives of a “good” system ofcivil justice? Has Lord Woolf designed such a system in yourview? Or (as predicted by sceptics such as Professor MichaelZander) has he merely significantly changed the legallandscape?

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All answers can be found in the recommended materials, thereading list, Blackstone or the above summaries.

1. Do you think that, given Lord Woolf’s stated support ofADR, (Alternative Dispute Resolution) has been given asufficiently high profile within the new systems?

2. What is the role of the protocols?

3. What sanctions exist to apply against those who do notfollow the rules?

4. How has the role of experts changed following LordWoolf’s reforms?




THE APPELLATE PROCESS

CONTENTS

The Appellate Courts ................................................................. 1

The Court of Appeal ................................................................. 2

Magistrates’ Courts Appeals ..................................................... 3

Civil Appeals: The Practice Direction to Part 52 CPR .................. 5

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THE APPELLATE PROCESS


Slapper & Kelly, Chapters 3, 4 and 7


Zander: Cases and Materials, Chapter 7 (page 545)

Blackstone’s Criminal Practice 2001

Blackstone’s Civil Practice 2001


Soundfiles: Appeals and Miscarriages of Justice

1. THE APPELLATE COURTS

There are separate civil and criminal appeal routes.

In criminal cases this is regulated by the Criminal Appeals Act1968, the Criminal Appeal Act 1995 and the MagistratesCourts Act 1980. The latter deals with appeals from themagistrates courts. The first two lay down the routes ofappeal, procedure and powers on appeal in criminal casesabove the magistrates courts level. For a detailed account ofthe criminal court structure see Chapter 6.

In civil cases the County Courts Act 1984 and the SupremeCourt Act 1981 lay down the routes of appeal, grounds andprocedure in civil cases. For a detailed account of the civilcourt structure refresh your memory above and look at thestudy guide again in detail.

In both cases there is an appeal above the Supreme Courtlevel to the House of Lords

Additionally, there is another appeal tier beyond the routineappeal structure in the case of criminal cases. The RoyalCommission on Criminal Justice 1993 recommended theestablishment of a Criminal Cases Review Authority, whichreviews cases which have exhausted other appeal routes andwhere there may be a miscarriage of justice.

RIGHTS OF APPEAL

There was never any common law right of appeal from asuperior court. As a result the appeal system is entirelystatutory. Appeals really began in the 19th century when thejudges began meeting informally to discuss difficult cases, but

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the statutory origin of the present Court of Appeal is theJudicature Acts 1873-5, the latter of which added the Houseof Lords at the top of the appeal tiers. Both criminal and civilappeal systems have become overloaded in recent years sothat measure have been taken to restrict the right of appeal,the levels at which appeals should be heard, so as toconserve superior judicial resources for the cases whichreally needed them.

2. THE COURT OF APPEAL

The court has two divisions, civil and criminal. The work ofthe Court of Appeal (Criminal Division) was significantlyrevamped by the Criminal Appeal Act 1995, and that of thecivil division has received the attention of Sir Jeffrey Bowman,whose Report in 1998 made many recommendations towardsbringing the Court of Appeal into line with the Woolf reformswhich have taken effect in civil justice in the High Court andCounty Courts.

THE BOWMAN REFORMS

The Access to Justice Act 1999, giving effect to some of theBowman recommendations, brought the Court of Appeal intoline with the theory behind the new Civil Procedure Rules, soas to save for the Court of Appeal the work that the Court ofAppeal really needed to do. The Act utilises judicial casemanagement to fast track those cases directly to the Court ofAppeal. The key to this has been to restrict rights of appeal byrequiring leave for all appeals with very few exceptions: AJA1999 s.54. Alongside this move, efforts have been made togive more accurate information to appellants so that cases arebetter prepared for those hearings that cannot be avoided,and to encourage appellants whose disputes might be settledin that way to go to ADR. However there has not been a greatwelcome extended to ADR in Britain, unlike in many overseasjurisdictions, and in particular the Court of Appeal’scustomers have shown a very low take up rate: only 7% ofthose offered ADR by the Court of Appeal have respondedpositively to the suggestion.

Some of the Bowman recommendations now being put intoforce pursuant to ss 54-59 are controversial, e.g. in cuttingthe numbers of Lords Justice sitting on a case – one judgeinstead of two or three in some cases – which may raise againthe question of whether efficiency is now being sought at theexpense of quality justice, especially as s.59 allows the Masterof the Rolls to delegate this decision itself to one Lord Justiceof Appeal. Appeals are also to be restricted to one level only,the lowest most appropriate level, instead of up the wholeladder: AJA 1999 s.55.

THE CRIMINAL APPEAL ACT 1995Reform of the Criminal Division’s work was effected by thisstatute.

Pursuant to s.1, leave is now needed for all appeals, whetheron point of law, fact or mixed law and fact. According to

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Hansard this was “necessary” to provide a “filter mechanismfor appeals without merit”.

Pursuant to s.2 of the Act, the ground on which appeals wereallowed was also changed from where the conviction was“unsafe and unsatisfactory” to where it was “unsafe”. Thisled to debate in and outside Parliament as to whether thisnarrowed the ground of appeal, although the Lord ChiefJustice of the time, Lord Taylor, was of the view that it merelyrestated the current practice of the Court of Appeal CriminalDivisions.

Acceptance of fresh evidence was also redefined by s.4, againputting into statutory form what was thought to be thecontemporary practice of the Court of Appeal CriminalDivision, i.e. to admit fresh evidence if it was capable of belief,might afford a ground of appeal and would have beenadmissible at trial, provided there was an explanation for itsomission at the trial.

THE ATTORNEY GENERAL’SREFERENCES

These remain, and were undisturbed by the 1995 reforms,permitting a references (1) where an acquittal gives rise to aquery about the law, pursuant to s.26 Criminal Justice Act1972 and it is desirable that the law be clarified for futurecases without disturbing the acquittal in question, and (2)where a particularly lenient sentence is referred to the Courtof Appeal, Criminal Division, which may increase it pursuantto ss.35 and 36 Criminal Justice Act 1988, the purpose of thisreference being to ensure consistency in sentencing.

3. MAGISTRATES’ COURTSAPPEALS

The two routes of appeal from the magistrates courts areeither

� to the Crown Court, where a judge sits with two to fourlay magistrates and the hearing is de novo, or

� to the Divisional Court of the Queens Bench Division bycase stated, where the appeal is herd by 2 judges, oneusually a Lord Justice of Appeal and the other a HighCourt judge. Either side may appeal by this route butonly on point of law, and any further appeal is direct tothe House of Lords provided a point of law of generalpublic importance is certified by the Divisional Court andleave to appeal is given.

In the case of appeal to the Crown Court, only the defendantcan appeal, either against conviction or against bothconviction and sentence, but only against sentence if therewas a plea of guilty below, unless that guilty plea was“equivocal”.

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MISCARRIAGES OF JUSTICE

The former Home Secretary’s reference for review of potentialmiscarriages of justice has been replaced by the creation of aCriminal Cases Review Commission, an independent reviewbody set up under the Criminal Appeal Act 1995. While thetheory is that the other provisions of the 1995 Act shouldnow catch future potential miscarriages of justice, there is aresidue of cases which successive Home Secretary’s werereluctant to return to the Court of Appeal for reconsideration,which the CCRC now reviews and refers to the Court ifappropriate, where there may still be historic mistakes in theadministration of justice, often due to the manner in which theoffences in question were investigated. Some cases haveturned up some unpleasant instances of corruption in thepolice.

The Report of the Runciman Commission urged that the Courtof Appeal be given new powers to investigate the eventsleading up to a conviction. It is possible that the Auld reviewof criminal justice now in process may look at this aspect ofpotential miscarriages of justice.

Mainly cases which have been successfully reviewed havebeen high profile ones, and there is concern that there may beothers that simply do not come to the CCRC’s attention.

The CCRC is not able however to remedy injustice. Somecases of murder where the wrongly convicted person washanged, e.g. Derek Bentley, are particularly disturbing, asalthough Bentley received a posthumous pardon, limited tosentence only, under the Royal prerogative of mercy in 1993,it was not until 1998 that the Lord Chief Justice, reconsideringthe conviction in the Court of Appeal Criminal Division, wasable to say that he had been denied a fair trial, “the birthrightof every British citizen”, besides which Bentley had alreadybeen hanged in 1953.

Other notorious cases include the Bridgewater Four, who hadspent 18 years in prison during which one of them (convictedon a fabricated confession after days of oppressivequestioning without legal advice) had already died, and theGuildford Four, one of whom (convicted on circumstantialevidence which turned out to be wrong while otherexonerating evidence was concealed) had also died in prisonbefore the conviction was quashed.

Over 250 cases were handed over from the Home Officewhen the CCRC started work in 1997, and there is concernthat their work is hampered by insufficient administrativesupport. This is a concern when research by Dr KateMalleson at the London School of Economics has shown thatby far the most common cause of wrongful conviction isjudicial mistake. Do consider the most recent annual report ofthe CCRC on the following website:

www.ccre.gov.uk

Now consider this question: does the present system ofappeals now make sufficient provision for catchingmiscarriages of justice during the routine appeal stages?

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4. CIVIL APPEALS: THEPRACTICE DIRECTION TOPART 52 CPR

Under the Civil Procedure Rules, Part 52, there is referencenow to the main Practice Direction (PD) which you can readin full in Blackstone’s Civil Practice 2001. To give you aflavour of the PD, I attach part one which you should readcarefully in order to see how the new regime works. This willalso give you an opportunity to consolidate all yourknowledge of the civil process together with its somewhatdetailed terminology. Do read online the case of TANFERN LTDv CAMERON-McDONALD AND ANOTHER [2000] 2 All ER 801 CAand specifically the judgment of Brooke LJ who has reviewedand summarised the changes to civil appeals.

CONTENTS OF THIS PRACTICEDIRECTION

1.1 This practice direction is divided into three sections:

Section I – General provisions about appeals

Section II – General provisions about statutory appeals andappeals by way of case stated

Section III – Provisions about specific appeals

I am only including section one in these notes:

“SECTION I – GENERAL PROVISIONS ABOUT APPEALS

2.1 This practice direction applies to all appeals to which Part 52 appliesexcept where specific provision is made for appeals to the Court ofAppeal.

2.2 For the purpose only of appeals to the Court of Appeal from cases infamily proceedings this Practice Direction will apply with suchmodifications as may be required.

ROUTES OF APPEAL

2A.1 Subject to paragraph 2A.2, the following table sets out to which courtor judge an appeal is to be made (subject to obtaining any necessarypermission):

Decision of

Appeal made to:

District judge of a county court

Circuit judge

Master or district judge of the High Court

High Court judge

Circuit judge

High Court judge

High Court judge

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Court of Appeal

2A.2 Where the decision to be appealed is a final decision–

(a) in a claim allocated to the multi-track under rules 12.7, 14.8 or26.5; or

(b) made in specialist proceedings (to which rule 49(2) refers) theappeal is to be made to the Court of Appeal (subject to obtainingany necessary permission).

2A.3 A “final decision” is a decision of a court that would finally determine(subject to any possible appeal or detailed assessment of costs) the entireproceedings whichever way the court decided the issues before it.

2A.4 A decision of a court is to be treated as a final decision for routes ofappeal purposes where it:

(a) is made at the conclusion of part of a hearing or trial which hasbeen split into parts; and

(b) would, if it had been made at the conclusion of that hearing ortrial, have been a final decision.

2A.5 An order made:

(a) on a summary or detailed assessment of costs; or

(b) on an application to enforce a final decision is not a “final decision”and any appeal from such an order will follow the appeal routes setout in the table in paragraph 2A.1.

Section 16(1) of the Supreme Court Act 1981 (as amended);section 77(1) of the County Courts Act 1984 (as amended); and theAccess to Justice Act 1999 (Destination of Appeals) Order 2000 setout the provisions governing routes of appeal)

2A.6

(a) Where the decision to be appealed is a final decision in a Part 8claim treated as allocated to the multi-track under rule 8.9(c) thecourt to which the permission application is made should, ifpermission is given, and unless the appeal would lie to the Court ofAppeal in any event, consider whether to order the appeal to betransferred to the Court of Appeal under rule 52.14.

(b) An appeal against a final decision on a point of law in a case whichdid not involve any substantial dispute of fact would normally be asuitable appeal to be so transferred.

(see also paragraph 10.1)

GROUNDS FOR APPEAL

3.1 Rule 52.11(3)(a) and (b) sets out the circumstances in which the appealcourt will allow an appeal.

3.2 The grounds of appeal should set out clearly the reasons why rule52.11(3)(a) or (b) is said to apply.

PERMISSION TO APPEAL

4.1 Rule 52.3 sets out the circumstances when permission to appeal isrequired.

4.2 The permission of-

(a) the Court of Appeal; or

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(b) where the lower court’s rules allow, the lower court is required forall appeals to the Court of Appeal except as provided for by statuteor rule 52.3

(The requirement of permission to appeal may be imposed by a practicedirection – see rule 52.3(b))

4.3 Where the rules of the lower court or any other enactment do notprovide for the giving of permission to appeal, the lower court may givean indication of its opinion as to whether permission should be given.

Appeals from case management decisions

4.4 Case management decisions include decisions made under rule 3.1(2)and decisions about:

(1) disclosure

(2) filing of witness statements or experts reports

(3) directions about the timetable of the claim

(4) adding a party to a claim

(5) security for costs

4.5 Where the application is for permission to appeal from a casemanagement decision , the court dealing with the application may takeinto account whether:

(1) the issue is of sufficient significance to justify the costs of anappeal;

(2) the procedural consequences of an appeal (eg loss of trial date)outweigh the significance of the case management decision ;

(3) it would be more convenient to determine the issue at or aftertrial.

Court to which permission to appeal application should be made

4.6 An application for permission should be made orally at the hearing atwhich the decision to be appealed against is made.

4.7 Where:

(a) no application for permission to appeal is made at the hearing; or

(b) the lower court refuses permission to appeal, an application forpermission to appeal may be made to the appeal court inaccordance with rules 52.3(2) and (3).

4.8 There is no appeal from a decision of the appeal court, made at an oralhearing, to allow or refuse permission to appeal to that court. Seesection 54(4) of the Access to Justice Act 1999 and rule 52.3(3) and (4).

Second appeals

4.9 An application for permission to appeal from a decision of the HighCourt or a county court which was itself made on appeal must be madeto the Court of Appeal.

4.10 If permission to appeal is granted the appeal will be heard by the Courtof Appeal.

Consideration of permission without a hearing

4.11 Applications for permission to appeal may be considered by the appealcourt without a hearing.

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4.12 If permission is granted without a hearing the parties will be notified ofthat decision and the procedure in paragraphs 6.1 to 6.7 [6.6] will thenapply.

4.13 If permission is refused without a hearing the parties will be notified ofthat decision with the reasons for it. The decision is subject to theappellant’s right to have it reconsidered at an oral hearing. This may bebefore the same judge.

4.14 A request for the decision to be reconsidered at an oral hearing must befiled at the appeal court within 7 days after service of the notice thatpermission has been refused. A copy of the request must be served bythe appellant on the respondent at the same time. If no request is madefor the decision to be reconsidered, it will become final after the timelimit for making the request has expired.

Permission hearing

4.15 Notice of the hearing need not be given to the respondent unless thecourt so directs. The appeal court will usually so direct if the appellant isasking for a remedy against the respondent pending the appeal.

4.16 f notice of the hearing is to be given to the respondent, the appellantmust supply the respondent with a copy of the bundle (see paragraph5.6) within 7 days of being notified, or such other period as the courtmay direct. The costs of providing that bundle shall be borne by theappellant initially, but will form part of the costs of the permissionapplication.

Appellants in receipt of services funded by the Legal ServicesCommission applying for permission to appeal

4.17 Where the appellant is in receipt of services funded by the Legal ServicesCommission (or legally aided) and permission to appeal has been refusedwithout a hearing, the appellant must send a copy of the reasons theappeal court gave for refusing permission to the relevant office of theLegal Services Commission as soon as it has been received from thecourt. The court will require confirmation that this has been done if ahearing is requested to re-consider the question of permission.

Limited permission

4.18 Where a court, under rule 52.3(7) confines its permission to some issuesonly, it should expressly refuse permission on any remaining issues. Thoseother issues may only be raised at the hearing of the appeal with theappeal court’s permission. The court and the respondent should beinformed of any intention to raise such an issue as soon as practicableafter notification of the court’s order.

4.19 An application to raise a remaining issue will normally be dealt with atthe outset of the appeal unless the court otherwise directs.

APPELLANT’S NOTICE

5.1 An appellant’s notice (N161) must be filed and served in all cases. Wherean application for permission to appeal is made to the appeal court itmust be applied for in the appellant’s notice.

Human rights

5.1A Where the appellant is seeking to rely on any issue under the HumanRights Act 1998, or seeks a remedy available under that Act, for the firsttime in an appeal he must include in his appeal notice the informationrequired by paragraph 16.1 of the practice direction to CPR Part 16.Paragraph 16.2 of that practice direction also applies as if references tostatement of case were to appeal notice.

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5.1B CPR rule 19.4A and the practice direction supplementing it shall apply asif references to the case management conference were to theapplication for permission to appeal.(The practice direction to Part 19provides for notice to be given and parties joined in certaincircumstances to which this paragraph applies)

Extension of time for filing appellant’s notice

5.2 If an appellant requires an extension of time for filing his notice theapplication must be made in the appellant’s notice. The notice shouldstate the reason for the delay and the steps taken prior to theapplication being made.

5.3 Where the appellant’s notice includes an application for an extension oftime and permission to appeal has been given or is not required therespondent has the right to be heard on that application. He must beserved with a copy of the appellant’s bundle. However, a respondentwho unreasonably opposes an extension of time runs the risk of beingordered to pay the appellant’s costs of that application.

5.4 If an extension of time is given following such an application theprocedure at paragraphs 6.1 to 6.6 applies.

Applications

5.5 Notice of an application to be made to the appeal court for a remedyincidental to the appeal (eg an interim remedy under rule 25.1 or anorder for security for costs) may be included in the appeal notice or in aPart 23 application notice.

(Rule 25.15 deals with security for costs of an appeal)

(Paragraph 10 [11] of this practice direction contains other provisionsrelating to applications)

Documents

5.6 The appellant must lodge the following documents with his appellant’snotice in every case except where the appellant’s notice relates to arefusal of permission to apply for judicial review (see paragraph 15.3below):

(1) one additional copy of the appellant’s notice for the appeal court;and

(2) one copy of the appellant’s notice for each of the respondents ;

(3) one copy of any skeleton argument (see paragraph 5.9)

(4) a sealed copy of the order being appealed;

(5) any order giving or refusing permission to appeal, together with acopy of the reasons for that decision;

(6) any witness statements or affidavits in support of any applicationincluded in the appellant’s notice; and

(7) a bundle of documents in support of the appeal– this shouldinclude copies of the documents referred to in paragraphs (1) to(6) and any other documents which the appellant reasonablyconsiders necessary to enable the appeal court to reach its decisionon the hearing of the application or appeal. Documents which areextraneous to the issues to be considered should be excluded. Theother documents will, subject to paragraph 5.7, include:

(a) any affidavit or witness statement filed in support of theapplication for permission to appeal or the appeal,

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(b) a suitable record of the reasons for judgment of the lowercourt (see paragraph 5.12);

(c) where permission to appeal has been given or permission isnot required; any relevant transcript or note of evidence (seeparagraph 5.15 below)

(d) statements of case,

(e) any application notice (or case management documentation)relevant to the subject of the appeal,

(f) in cases where the decision appealed was itself made onappeal, the first order, the reasons given and the appellant’snotice of appeal from that order,

(g) in cases where the appeal is from a Tribunal, a copy of theTribunal’s reasons for the decision, a copy of the decisionreviewed by the Tribunal and the reasons for the originaldecision

(h) in the case of judicial review or a statutory appeal, theoriginal decision which was the subject of the application tothe lower court

(i) relevant affidavits, witness statements, summaries, experts’reports and exhibits;

(j) any skeleton arguments relied on in the lower court; and

(k) such other documents as the court may direct.

5.7 Where it is not possible to file all the above documents, the appellantmust indicate which documents have not yet been filed and the reasonswhy they are not currently available.

5.8 Where bundles comprise more than 150 pages excluding transcripts ofjudgment and other transcripts of the proceedings in the lower courtonly those documents which the court may reasonably be expected topre-read should be included. A full set of documents should then bebrought to the hearing for reference.

Small claims

5.8A Where the appeal relates to a claim allocated to the small claims track,the appellant must file the following documents with his appellant’snotice.

(1) a sealed copy of the order being appealed;

(2) any order giving or refusing permission to appeal, together with acopy of the reasons for that decision; and

(3) a suitable record of the reasons for judgment of the lower court(see paragraph 5.12 below).

5.8B The appellant may file any other document listed in paragraph 5.6 inaddition to the documents referred to in paragraph 5.8A.

Skeleton arguments

5.9

(1) The appellant’s notice must, subject to (2) and (3) below, beaccompanied by a skeleton argument. Alternatively the skeletonargument may be included in the appellant’s notice. Where theskeleton argument is so included it will not form part of the noticefor the purposes of rule 52.8.

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(2) Where it is impracticable for the appellant’s skeleton argument toaccompany the appellant’s notice it must be lodged and served onall respondents within 14 days of filing the notice.

(3) An appellant who is not represented need not lodge a skeletonargument but is encouraged to do so since this will be helpful tothe court.

Content of skeleton arguments

5.10 Skeleton arguments for the appeal court should contain a numbered listof points stated in no more than a few sentences which should bothdefine and confine the areas of controversy. Each point should befollowed by references to any documentation on which the appellantproposes to rely.

5.11 The appellant should consider what other information the appeal courtwill need. This may include a list of persons who feature in the case orglossaries of technical terms. A chronology of relevant events will benecessary in most appeals. In the case of points of law, authorities reliedon should be cited with reference to the particular pages where theprinciple concerned is set out.

Suitable record of the judgment

5.12 Where the judgment to be appealed has been officially recorded by thecourt, an approved transcript of that record should accompany theappellant’s notice. Photocopies will not be accepted for this purpose.However, where there is no officially recorded judgment, the followingdocuments will be acceptable:

Written judgments

(1) Where the judgment was made in writing a copy of that judgmentendorsed with the judge’s signature.

Note of judgment

(2) When judgment was not officially recorded or made in writing a note ofthe judgment (agreed between the appellant’s and respondent’sadvocates) should be submitted for approval to the judge whose decisionis being appealed. If the parties cannot agree on a single note of thejudgment, both versions should be provided to that judge with anexplanatory letter. For the purpose of an application for permission toappeal the note need not be approved by the respondent or the lowercourt judge.

Advocates’ notes of judgments where the appellant is unrepresented

(3) When the appellant was unrepresented in the lower court it is the dutyof any advocate for the respondent to make his/her note of judgmentpromptly available, free of charge to the appellant where there is noofficially recorded judgment or if the court so directs. Where theappellant was represented in the lower court it is the duty of his/her ownformer advocate to make his/her note available in these circumstances.The appellant should submit the note of judgment to the appeal court.

Reasons for judgment in Tribunal cases

(4) A sealed copy of the Tribunal’s reasons for the decision.

5.13 An appellant may not be able to obtain an official transcript or othersuitable record of the lower court’s decision within the time withinwhich the appellant’s notice must be filed. In such cases the appellant’snotice must still be completed to the best of the appellant’s ability onthe basis of the documentation available. However it may be amendedsubsequently with the permission of the appeal court.

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Advocate’s notes of judgments

5.14 Advocates’ brief (or, where appropriate, refresher) fee includes:

(1) remuneration for taking a note of the judgment of the court;

(2) having the note transcribed accurately;

(3) attempting to agree the note with the other side if represented;

(4) submitting the note to the judge for approval where appropriate;

(5) revising it if so requested by the judge, and

(6) providing any copies required for the appeal court, instructingsolicitors and lay client; and

(7) providing a copy of his note to an unrepresented appellant.

Transcripts or notes of evidence

5.15 When the evidence is relevant to the appeal an official transcript of therelevant evidence must be obtained. Transcripts or notes of evidence aregenerally not needed for the purpose of determining an application forpermission to appeal.

Notes of evidence

5.16 If evidence relevant to the appeal was not officially recorded, a typedversion of the judge’s notes of evidence must be obtained.

Transcripts at public expense

5.17 Where the lower court or the appeal court is satisfied that anunrepresented appellant is in such poor financial circumstances that thecost of a transcript would be an excessive burden the court may certifythat the cost of obtaining one official transcript should be borne atpublic expense.

5.18 In the case of a request for an official transcript of evidence orproceedings to be paid for at public expense, the court must also besatisfied that there are reasonable grounds for appeal. Whenever possiblea request for a transcript at public expense should be made to the lowercourt when asking for permission to appeal.

Filing and service of appellant’s notice

5.19 Rule 52.4 sets out the procedure and time limits for filing and serving anappellant’s notice. The appellant must file the appellant’s notice at theappeal court within such period as may be directed by the lower courtwhich should not normally exceed 28 days or, where the lower courtdirects no such period, within 14 days of the date of the decision thatthe appellant wishes to appeal.

Skeleton arguments must be filed with the appellant’s notice whetherthey are included within the notice or accompany it except as providedby paragraph 5.9(2),

The fee must be paid at the time the notice is presented for filing

5.20 Where the lower court judge announces his decision and reserves thereasons for his judgment or order until a later date, he should, in theexercise of powers under rule 52.4(2)(a), fix a period for filing theappellant’s notice at the appeal court that takes this into account.

5.21 Except where the appeal court orders otherwise a sealed copy of theappellant’s notice, including any skeleton arguments must be served onall respondents to the appeal in accordance with the timetable

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prescribed by rule 52.4(3) except where this requirement is modified byparagraph 5.9(2) in which case the skeleton argument should be servedas soon as it is lodged.

5.22 Unless the court otherwise directs a respondent need not take any actionwhen served with an appellant’s notice until such time as notification isgiven to him that permission to appeal has been given.

5.23 The court may dispense with the requirement for service of the noticeon a respondent. Any application notice seeking an order under rule 6.9to dispense with service should set out the reasons relied on and beverified by a statement of truth.

5.24 Where the appellant is applying for permission to appeal in hisappellant’s notice, there is no requirement at this stage for copies of thedocuments referred to at paragraph 5.6 to be served on therespondents. However, if permission has been given by the lower courtor permission is not required, copies of all the documents must beserved on the respondents with the appellant’s notice.

(Paragraph 5.6 provides for certain documents to be filed with anappellant’s notice.)

Amendment of appeal notice

5.25 An appeal notice may be amended with permission. Such an applicationto amend and any application in opposition will normally be dealt withat the hearing unless that course would cause unnecessary expense ordelay in which case a request should be made for the application toamend to be heard in advance.

PROCEDURE AFTER PERMISSION IS OBTAINED

6.1 This paragraph sets out the procedure where:

(1) permission to appeal is given by the appeal court; or

(2) the appellant’s notice is filed in the appeal court and-

(a) permission was given by the lower court; or

(b) permission is not required.

6.2 If the appeal court gives permission to appeal, copies of all thedocuments referred to at paragraph 5.6 must be served on therespondents within 7 days of receiving the order giving permission toappeal.

(Part 6 (service of documents) provides rules on service.)

6.3 The appeal court will send the parties-

(1) notification of:

(a) the date of the hearing or the period of time (the “listingwindow”) during which the appeal is likely to be heard; and

(b) in the Court of Appeal, the date by which the appeal will beheard (the “hear by date”);

(2) where permission is granted by the appeal court a copy of theorder giving permission to appeal; and

(3) any other directions given by the court.

Appeal Questionnaire in the Court of Appeal

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6.4 The Court of Appeal will send an Appeal Questionnaire to the appellantwhen it notifies him of the matters referred to in paragraph 6.3.

6.5 The appellant must complete and lodge the Appeal Questionnaire within14 days of the date of the letter of notification of the matters inparagraph 6.3. The Listing Questionaire must contain:

(1) if the appellant is legally represented, the advocate’s time estimatefor the hearing of the appeal;

(2) where a transcript of evidence is relevant to the appeal,confirmation that a transcript of evidence has been ordered wherethis is not already in the bundle of documents;

(3) confirmation that copies of the appeal bundle are being preparedand will be held ready for the use of the Court of Appeal and anundertaking that they will be supplied to the court on request. Forthe purpose of these bundles photocopies of the transcripts will beaccepted

(4) confirmation that copies of the Appeal Questionnaire and theappeal bundle have been served on the respondents and the dateof that service;

Time estimates

6.6 The time estimate included in an Appeal Questionnaire must be that ofthe advocate who will argue the appeal. It should exclude the timerequired by the court to give judgment. If the respondent disagrees withthe time estimate, the respondent must inform the court within 7 daysof receipt of the Appeal Questionnaire . In the absence of suchnotification the respondent will be deemed to have accepted theestimate proposed on behalf of the appellant.

RESPONDENT

7.1 A respondent who wishes to ask the appeal court to vary the order ofthe lower court in any way must appeal and permission will be requiredon the same basis as for an appellant.

7.2 A respondent who wishes only to request that the appeal court upholdsthe judgment or order of the lower court whether for the reasons givenin the lower court or otherwise does not make an appeal and does nottherefore require permission to appeal in accordance with rule 52.3(1).

7.3 A respondent who wishes to appeal or who wishes to ask the appealcourt to uphold the order of the lower court for reasons different fromor additional to those given by the lower court must file a respondent’snotice.

7.3A Paragraphs 5.1A and 5.1B of this practice direction also apply to arespondent and a respondent’s notice.

Time limits

7.4 The time limits for filing a respondent’s notice are set out in rule 52.5 (4)and (5).

7.5 Where an extension of time is required the extension must be requestedin the respondent’s notice and the reasons why the respondent failed toact within the specified time must be included.

Respondent’s skeleton argument

7.6 Except where paragraph 7.7A applies, the respondent must provide askeleton argument for the court where he proposes to addressarguments to the court. The respondent’s skeleton argument may beincluded within a respondent’s notice. Where a skeleton argument is

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included within a respondent’s notice it will not form part of the noticefor the purposes of rule 52.8.

7.7 Where the skeleton argument is not included within a respondent’snotice it should be lodged and served no later than 21 days after therespondent receives the appellant’s skeleton argument.

7.7A Where the appeal relates to a claim allocated to the small claims trackthe respondent may provide a skeleton argument but is not required todo so.

(Rule 52.5(4) sets out the period for filing and serving a respondent’snotice)

Content of skeleton arguments

7.8 A respondent’s skeleton argument must conform to the directions atparagraphs 5.10 and 5.11 above with any necessary modifications. Itshould, where appropriate, answer the arguments set out in theappellant’s skeleton argument.

Applications within respondent’s notices

7.9 A respondent may include an application within a respondent’s notice inaccordance with paragraph 5.5 above.

Filing respondent’s notices and skeleton arguments

7.10 The respondent must lodge the following documents with hisrespondent’s notice in every case:

(1) two additional copies of the respondent’s notice for the appealcourt

(2) one copy each for the appellant and any other respondents; and

(3) two copies of any skeleton arguments.

7.11 If the respondent does not file a respondent’s notice, he will not beentitled, except with the permission of the court, to rely on any groundnot relied on in the lower court.

7.12 If the respondent wishes to rely on any documents in addition to thosefiled by the appellant he must prepare a supplemental bundle and lodgeit at the appeal court with his respondent’s notice. He must serve a copyof the supplemental bundle at the same time as serving the respondent’snotice on the persons required to be served in accordance with rule52.5(6).

7.13 The respondent’s notice and any skeleton argument must be served inaccordance with the time limits set out in rule 52.5(6) except [where]this requirement is modified by paragraph 7.7.

Appeals to the high court

8.1 This paragraph applies where an appeal lies to a High Court judge fromthe decision of a county court or a district judge of the High Court.

8.2 The following table sets out the following venues for each Circuit–

(a) Appeal centres – court centres where appeals to which thisparagraph applies may be managed and heard.

(b) Hearing only centres – court centres where appeals to which thisparagraph applies may be heard by order made at an appeal centre(see paragraph 8.5).

Circuit

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Appeal Centres

Hearing Only Centres

Midland and Oxford Circuit

Birmingham

Oxford

Nottingham

Lincoln

Leicester

Northampton

Stafford

North Eastern Circuit

Leeds

Teeside

Newcastle

Sheffield

Northern Circuit

Manchester

Carlisle

Liverpool

Preston

Wales and Chester Circuit

Cardiff

Swansea

Chester

Western Circuit

Bristol

Truro

Exeter

Plymouth

Winchester

South Eastern Circuit

Central London

Royal Courts of Justice

Provincial

Lewes

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Chelmsford

Luton

St Albans

Norwich

Maidstone

Reading

8.3 The appellant’s notice must be filed in the District Registry at an appealcentre on the Circuit in which the lower court is situated. Unless theappeal court otherwise orders the appeal will be managed and heard atthat appeal centre.

8.4 The appeal court may transfer an appeal to another appeal centre(whether or not on the same Circuit). In deciding whether to do so thecourt will have regard to the criteria in rule 30.3 (criteria for a transferorder). The appeal court may do so either on application by a party or ofits own initiative. Where an appeal is transferred under this paragraph,notice of transfer must be served on every person on whom theappellant’s notice has been served. An appeal may not be transferred toan appeal centre on another Circuit, either for management or hearing,unless the consent of a Presiding Judge of that Circuit has beenobtained.

8.5 Directions may be given for–

(a) an appeal to be heard at a hearing only centre; or

(c) an application in an appeal to be heard at any other venue

instead of at the appeal centre managing the appeal.

8.6 Unless a direction has been made under 8.5, any application in theappeal must be made at the appeal centre where the appeal is beingmanaged.

8.7 A respondent’s notice must be filed at the appeal centre where theappellant’s notice was filed unless the appeal has been transferred toanother appeal centre, in which case it must be filed at that appealcentre.

8.8 The appeal court may adopt all or any part of the procedure set out inparagraphs 6.4 to 6.6.

8.9

(1) Appeals and applications for permission to appeal will be heard bya High Court Judge or by a person authorised under paragraphs(1),(2) or (4) of the Table in section 9 (1) of the Supreme Court Act1981 to act as a judge of the High Court;

(2) Other applications in the appeal may be heard and directions in theappeal may be given either by a High Court Judge or by any personauthorised under section 9 (1) of the Supreme Court Act 1981 toact as a judge of the High Court.

Appeals to a judge of a county court from a district judge

8A.1 The Designated Civil Judge in Consultation with his Presiding Judges hasresponsibility for allocating appeals from decisions of district judges toCircuit judges

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Re-hearings

9.1 The hearing of an appeal will be a re-hearing (as opposed to a review ofthe decision of the lower court) if the appeal is from the decision of aminister, person or other body and the minister, person or other body—

(a) did not hold a hearing to come to that decision; or

(b) held a hearing to come to that decision, but the procedureadopted did not provide for the consideration of evidence.

Appeals transferred to the Court of Appeal

10.1 Where an appeal is transferred to the Court of Appeal under rule 52.14the Court of Appeal may give such additional directions as areconsidered appropriate.

Applications

11.1 Where a party to an appeal makes an application whether in an appealnotice or by Part 23 application notice, the provisions of Part 23 willapply.

11.2 The applicant must file the following documents with the notice

(1) one additional copy of the application notice for the appeal courtand one copy for each of the respondents;

(2) where applicable a sealed copy of the order which is the subject ofthe main appeal;

(3) a bundle of documents in support which should include:

(a) the Part 23 application notice

(b) any witness statements and affidavits filed in support of theapplication notice

(c) the documents specified in paragraph 5.6 (6)[5.6 (7)]above inso far as they have not already been filed with the appellant’snotice.

DISPOSING OF APPLICATIONS OR APPEALS BY CONSENT

Dismissal of applications or appeals by consent

12.1 These paragraphs do not apply where any party to the proceedings is achild or patient.

12.2 Where an appellant does not wish to pursue an application or an appeal,he may request the appeal court for an order that his application orappeal be dismissed. Such a request must contain a statement that theappellant is not a child or patient. If such a request is granted it willusually be on the basis that the appellant pays the costs of theapplication or appeal.

12.3 If the appellant wishes to have the application or appeal dismissedwithout costs, his request must be accompanied by a consent signed bythe respondent or his legal representative stating that the respondent isnot a child or patient and consents to the dismissal of the application orappeal without costs.

12.4 Where a settlement has been reached disposing of the application orappeal, the parties may make a joint request to the court stating thatnone of them is a child or patient, and asking that the application orappeal be dismissed by consent. If the request is granted the applicationor appeal will be dismissed.

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Allowing unopposed appeals or applications on paper

13.1 The appeal court will not make an order allowing an application orappeal unless satisfied that the decision of the lower court was wrong.Where the appeal court is requested by all parties to allow an applicationor an appeal the court may consider the request on the papers. Therequest should state that none of the parties is a child or patient and setout the relevant history of the proceedings and the matters relied on asjustifying the proposed order and be accompanied by a copy of theproposed order.

Procedure for structured settlements and consent orders involving a child orpatient

13.2 Settlements relating to appeals and applications where one of the partiesis a child or a patient; and structured settlements which are agreed uponat the appeal stage require the court’s approval.

Child

13.3 In cases involving a child a copy of the proposed order signed by theparties’ solicitors should be sent to the appeal court, together with anopinion from the advocate acting on behalf of the child.

Patient

13.4 Where a party is a patient the same procedure will be adopted, but thedocuments filed should also include any relevant reports prepared forthe Court of Protection and a document evidencing formal approval bythat court where required.

Structured settlements

13.5 Where a structured settlement has been negotiated in a case which isunder appeal the documents filed should include those which would berequired in the case of a structured settlement dealt with at firstinstance. Details can be found in the Practice Direction whichsupplements CPR Part 40.

SUMMARY ASSESSMENT OF COSTS

14.1 Costs are likely to be assessed by way of summary assessment at thefollowing hearings:

(1) contested directions hearings;

(2) applications for permission to appeal at which the respondent ispresent;

(3) dismissal list hearings in the Court of Appeal at which therespondent is present;

(4) appeals from case management decisions; and

(5) appeals listed for less than one day.

14.2 Parties attending any of the hearings referred to in paragraph 13.1should be prepared to deal with the summary assessment.

OTHER SPECIAL PROVISIONS REGARDING THE COURT OF APPEAL

Filing of Documents

15.1

(1) The documents relevant to proceedings in the Court of Appeal,Civil Division must be filed in the Civil Appeals Office Registry,Room E307, Royal Courts of Justice, Strand, London, WC2A 2LL.

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(2) The Civil Appeals Office will not serve documents and where serviceis required by the CPR or this practice direction it must be effectedby the parties.

Master in the Court of Appeal, Civil Division

15.2 When the Head of the Civil Appeals Office acts in a judicial capacitypursuant to rule 52.16, he shall be known as Master. Other eligibleofficers may also be designated by the Master of the Rolls to exercisejudicial authority under rule 52.16 and shall then be known as DeputyMasters.

Judicial Review Appeals

15.3 Where the Court of appeal gives permission to apply for judicial reviewunder rule 52.15(3) the court may, hear the application for judicialreview. This will be rare, but may be appropriate where, for example, theHigh Court is bound by authority or for some other reason, an appeal tothe Court of Appeal will be inevitable.

15.4 Paragraphs 5.6 and 5.19 above do not apply to cases where the appealnotice seeks permission to appeal a refusal to give permission to applyfor judicial review. In such cases the following documents must be filedwith the appellant’s notice:

(1) one additional copy of the appellant’s notice for the Court ofAppeal

(2) one copy of the appellant’s notice for each of the respondents tobe sealed and returned

(3) the order refusing permission to apply for judicial review

(4) Form 86A;

(5) a copy of the original decision which is the subject of theapplication to the High Court

(6) any witness statements or affidavits in support of any applicationincluded in the appellant’s notice;

(7) a copy of the bundle of documents used in the High Court

(8) the skeleton argument relied on in the High Court; and

(9) a transcript of the judgment.

15.5 The time for filing an appellant’s notice in these circumstances is set outin rule 52.15(1). The arrangements for service on the respondent inparagraph 5.24 apply.

15.6 Where it is not possible to file all these documents, the appellant mustindicate which documents have not yet been filed and the reasons whythey are not currently available.

Listing and hear-by dates

15.7 The management of the list will be dealt with by the listing officer underthe direction of the Master.

15.8 The Civil Appeals List of the Court of Appeal is divided as follows:

· The applications list – applications for permission to appeal andother applications.

· The appeals list – appeals where permission to appeal has beengiven or where an appeal lies without permission being required.

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· The expedited list – appeals or applications where the Court ofAppeal has directed an expedited hearing. The current practice ofthe Court of Appeal is summarised in Unilever plc v ChefaroProprietaries Ltd (Practice Note)[1995] 1 WLR 243.

· The stand-out list – appeals or applications which, for good reason,are not at present ready to proceed and have been stood out byjudicial direction.

· The fixtures list – where a hearing date for the appeal is fixed inadvance.

· The second fixtures list – if an appeal is designated as a “secondfixture” it means that a hearing date is arranged in advance on theexpress basis that the list is fully booked for the period in questionand therefore the case will be heard only if a suitable gap occurs inthe list.

· The short-warned list – appeals which the court considers may beprepared for the hearing by an advocate other than the oneoriginally instructed with a half day’s notice, or, if the court sodirects, 48 hours notice.

15.9 Once an appeal is listed for hearing from the short warned list itbecomes the immediate professional duty of the advocate instructed inthe appeal, if he is unable to appear at the hearing, to take allpracticable measures to ensure that his lay client is represented at thehearing by an advocate who is fully instructed and able to argue theappeal.

CPR PD 52 [3]

Practice Note on the Short Warned List and Special Fixtures List

The Master of the Rolls has given guidance on the Short Warned List and theSpecial Fixtures List in the Court of Appeal. Reference should be made to theterms of the Practice Note (Court of Appeal, Civil Division: Short Warned Listand Special Fixtures List) (2001) Times, 27 February itself but the attention ofpractitioners is drawn to the following provisions in particular.

Short Warned List

Where an appeal had been assigned to the Short Warned List the time forfiling any outstanding bundles might be abridged.

It is the duty of solicitors to inform both their advocate and their client thatthe appeal has been assigned to the Short Warned List, as soon as notificationis received from the Civil Appeals Office. Any application for the appeal to beremoved from the Short Warned List had to be made in writing within 14 daysof notification. A supervising Lord Justice, or the Master, would consider anysuch application, which would be granted only for the most compellingreasons.

When an appeal is called for hearing and any party’s advocate of first choice isnot available, a substitute advocate had to be instructed immediately. Oncethe appeal was listed, under these arrangements, it became the immediateprofessional duty of the advocate instructed in the appeal, if he was unable toappear at the hearing, to take all practical measures to ensure that his layclient was represented at the hearing, by an advocate who was fully instructedand able to argue the appeal (see para 15.9 of CPR PD 52).

The Special Fixtures List

The Special Fixtures List would be used to deal with cases that might requirespecial listing arrangements, such as the need to list a number of cases beforethe same constitution, in a particular order, during a particular period or at agiven location. Where cases are assigned to the Special Fixtures List the parties’representatives would be notified of the particular arrangements that would

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apply. While every effort would be made to accommodate counsel’savailability, where such special arrangements were engaged, the specialrequirements of the court would necessarily prevail.

Requests for directions

15.10 To ensure that all requests for directions are centrally monitored andcorrectly allocated, all requests for directions or rulings (whether relatingto listing or any other matters) should be made to the Civil AppealsOffice. Those seeking directions or rulings must not approach thesupervising Lord Justice either directly, or via his or her clerk.

Lists of authorities

15.11 Once the parties have been notified of the date fixed for hearing theappellant’s advocate shall file, after consulting his opponent, for thepurpose of pre-reading by the court, one bundle containing photocopiesof the principal authorities upon which each side will rely at the hearing,with the relevant passages marked. There will in general be no need toinclude authorities for propositions not in dispute. This bundle should bemade available 28 days before the hearing, unless the period of notice ofthe hearing is less than 28 days in which case the bundle should be filedimmediately. Such bundles should not normally contain more than 10authorities. If any party intends, during the hearing to refer to otherauthorities these may be included in a second agreed bundle to be filedby the parties at the hearing. Alternatively, and in place of the secondbundle only, a list of authorities and text may be delivered to the officeof the Head Usher of the Court of Appeal no later than 5.30pm on thelast working day before the hearing is to commence.

NOTES

CPR PD 52 [4]

Decisions on applications for permission by appeal are at best only ofpersuasive authority and the court does not encourage reference to suchcases: Clark v University of Lincolnshire and Humberside [2000] 3 All ER752,[2000] 1 WLR 1988, CA.

Reserved judgments of the Court of Appeal

15.12 Unless the court orders otherwise, copies of a written judgment will bemade available to the parties’ legal advisers by 4 p.m. on the secondworking day before judgment is due to be pronounced on the conditionthat the contents are not communicated to the parties themselves untilone hour before the listed time for pronouncement of judgment.

15.13 The judgment is made available to legal advisers primarily to enablethem to consider the judgment and decide what consequential ordersthey should seek. The condition is imposed to prevent the outcome ofthe case being publicly reported before judgment is given, since thejudgment is confidential until then. Every page of the judgment will bemarked “Unapproved judgment: No permission is given to copy or use incourt”. These words carry the authority of the court.

15.14 Where a party is not legally represented a copy of the judgment will bemade available to him at the same time as to legal advisers. It must betreated as confidential until pronouncement of judgment

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All the answers can be found in the recommended materials,reading list or the above summaries.

1. What are the risks of a sentence being increased if adefendant appeals?

2. If a person who has been convicted in the magistratescourt is dissatisfied with the decision of the Crown courtor Divisional Court is there any further right of appeal?

3. Can the prosecution appeal against an acquittal in (1) themagistrates court? (2) the Crown Court?

4. Is it possible to appeal directly to the House of Lordsbypassing the Court of Appeal, and if so on whatgrounds? Is this as of right?


Semple Piggot Rochez • 173B Cowley Road• Oxford OX4 1UTwww.spr-law.com

CHAPTER 11

LOCAL GOVERNMENT; DELEGATED LEGISLATION;OTHER INSTITUTIONS OF ADMINISTRATIVE LAW;

REFORM OF ADMINISTRATIVE LAW

CONTENTS

Introduction............................................................................. 1

The structure of local government ............................................ 2

The work of local government .................................................. 3

Status ...................................................................................... 4

Local government finance ........................................................ 5

Control of local authorities ....................................................... 8

Bye-laws ............................................................................... 12

Definition of delegated legislation ............................................ 13

The secondary legislation of the European Communities ....................................................................... 20

Tribunals................................................................................ 20

Inquiries................................................................................. 28

Parliamentary Commissioner for Administration....................... 30

Outline critique of administrative law ...................................... 34

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CONSTITUTIONAL AND ADMINISTRATIVE LAW

LOCAL GOVERNMENT;DELEGATED LEGISLATION;OTHER INSTITUTIONS OFADMINISTRATIVE LAW; REFORMOF ADMINISTRATIVE LAW

INTRODUCTION

Local government has been described by one (presumablyover-enthusiastic!) commentator as the constitutional issue ofthe 1990s.

Some of the reasons for this include the following:

� it has provided a huge amount of new law and litigation

� it illustrates the centralising nature of our unitaryconstitution, i.e. all power resides in Parliament

� it raises the issue of central versus local administration (orgovernment)

� it raises questions as to the proper role and function oflocal authorities

� it raises questions as to the value of elections – after all,local government is the only elected body other thanParliament.

Local government has been subject to major changes since1979 and this trend is likely to continue as the LocalGovernment Act 1992 has established the Local GovernmentCommission with the duty to review and report to theSecretary of State on the structure, boundaries and electorateof local government.

The Commission has just reported after a full scale review ofthe boundaries and structure of local government. Thegovernment has made it clear that it will act on the advice ofthe Commission, but equally that it expects an increasingmove to so-called ‘unitary’ authorities – one body dealing withall local functions, as in the metropolitan areas.

These reviews and proposals have been controversial, withlittle agreement on the proposed models. They have alsovaried considerably with area – with some areas retaining atwo-tier structure. The Commission’s Report hasrecommended rather fewer boundary changes than expected.

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THE STRUCTURE OF LOCALGOVERNMENT

The structure of local government in England and Wales is theresult of three Acts of Parliament: the London Government Act1963 and the Local Government Acts 1972 and 1985.

THE AUTHORITIES

The Local Government Act 1972, which came into effect inApril 1974, abolished the existing county councils, boroughcouncils, urban and rural district councils in England andWales, and all parishes in Wales. The only survivals from theold system of local government, which had been established inthe late nineteenth century, are the rural parishes in Englandwith their parish councils or parish meetings.

The 1972 Act divided England (outside Greater London) intothirty-nine administrative county councils. The thirty-ninecounties are divided into 296 district councils. The Act permitsthe Crown to grant a Charter conferring on a district the statusof a borough. A district authority may, therefore, be referredto as a district council or a borough council or, if granted citystatus, a city council. This varying terminology makes nodifference, other than in some purely ceremonial matters, tothe constitution and functioning of these district authorities.

The 1972 Act also created six metropolitan county councils tocover the conurbations of Greater Manchester, Merseyside,South Yorkshire, West Yorkshire, Tyne and Wear, and theWest Midlands. These six metropolitan counties were dividedinto thirty-six metropolitan district councils. However, theLocal Government Act 1985 abolished the six metropolitancounty councils (and the Greater London Council) and re-allocated most of their functions to the metropolitan districtcouncils. In the six metropolitan areas of England, and inGreater London, there is now, therefore, only one level oflocal government, unlike the position elsewhere in England.

In Wales there are eight county councils and thirty-sevendistrict councils. The Act abolished parishes in Wales andinstead introduced a system of communities in each district,each community having a community meeting and somehaving a community council. In England the rural parisheswere not abolished and continued to exist after 1 April 1974,and the Act contains powers by which new parishes may becreated in former borough and urban district areas where theparish did not exist as a local government unit before 1974.

Local government in London is the result of the LondonGovernment Act 1963 which created the Greater LondonCouncil and the thirty-two London borough councils, and theLocal Government Act 1985 which abolished the GreaterLondon Council, leaving the thirty-two borough councils asthe single tier of local government in the Greater London area.

Within the Greater London area, the City of London stillremains a separate and distinct local government area with its

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own ancient and elaborate constitution of Lord Mayor, Courtof Aldermen and elected Court of Common Council.

Under earlier legislation, the initiative in proposing boundarychanges to local government areas lay primarily in the handsof local authorities. The 1972 Act changed this by creatingLocal Government Boundary Commissions for England andWales with the duty to keep the situation under constantreview. The Commissioners make recommendations onboundary changes to the Home Secretary or the Secretary ofState for Wales, who can give effect to them by Order.

The Local Government Act 1992 abolished the LocalGovernment Boundary Commission and replaced it by theLocal Government Commission. It makes periodic reviews ofelectoral boundaries every 10–15 years in order to reflectchanging communities and to ensure ‘effective and convenientlocal government’. It was held in R v SECRETARY OF STATE FORTHE ENVIRONMENT EX P LANCASHIRE AND DERBYSHIRE CC thatthe Government’s guidance to the Local GovernmentCommissioners favouring unitary authorities (i.e. abolishingone tier) was ultra vires. In the event the proposals from theCommission are less radical than expected with single tierauthorities only proposed in areas where they are likely to beless controversial.

Local government in Scotland was not affected by the 1972Act. In May 1975 a new system of nine regional councils andfifty-three district councils came into existence under theprovisions of the Local Government (Scotland) Act 1975.

THE WORK OF LOCALGOVERNMENT

The functions of local government have changed dramaticallyin the last decade in that local authorities have increasinglybeen required, for example by The Local Government Act1988 not to provide a service themselves, but throughoutside contractors tendering to do the work: the authoritiesare seen more as facilitators or regulators – for example, thecouncil house sales programme and the cuts in further andhigher education.

The county council is responsible for services which requirelarge-scale planning over the whole of the county area (suchas education, social services, highways, police, the fireservice, libraries and refuse disposal).

The district council is responsible for services which can beplanned in greater detail for a smaller area (such as housing,public health and refuse collection).

There is shared responsibility for museums, art galleries, parksand recreational facilities.

Planning is a responsibility for both county and districtcouncil:

� the county council is responsible for the preparation of thestructure plan and for county matters such as mineral

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development, development inconsistent with thefundamental provisions of the structure plan anddevelopment affecting certain principal roads

� the district council prepares the local plan for its area anddeals with applications for planning permission exceptwhere they involve county matters.

Even before the abolition of the six metropolitan countycouncils in 1986 it was the metropolitan district councils whichwere responsible in their areas for education, social servicesand libraries. Most of the other functions of the abolishedcounty councils have been given to the metropolitan districtcouncils, for example, functions connected with town andcountry planning, highways and road traffic and refusedisposal. Joint authorities consisting of councillors from thedistrict councils have been established in each metropolitanarea to provide such services as police, fire, civil defence andtransport.

In Greater London broadly the same pattern is followed, withthe borough councils inheriting most of the functions of theabolished GLC. There is one major exception which is that thePolice Authority for the Greater London (i.e. metropolitan)police area is not a joint authority made up of districtcouncillors and magistrates but is a Minister of the Crown (theHome Secretary).

Think Point 1

Could the services now performed by localgovernment be better performed by some other body?What advantages and disadvantages would there be inthe event of such a change?

STATUS

All local authorities, with the exception of the City of LondonCorporation which is still a common law corporation, arestatutory corporations, each with its own separate and distinctlegal existence and capacity. They can act only within theexpress or implied powers conferred upon them by statute(the ultra vires doctrine).

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As the United Kingdom is a unitary state with a legallysovereign Parliament, local authorities are subject to the will ofParliament expressed in legislation on all matters, such as theirexistence, composition, powers and functions.

LOCAL GOVERNMENT FINANCE

Much of the legislative change and litigation over the lastdecade has been concerned with this issue.

The main sources of local government revenue today are:

� council tax (replacing the unpopular ‘Poll Tax’)

� grants from central government

and

� the receipts received from providing various services,especially housing.

The Secretary of State is able to designate any authority andlimit the amount charged if he considers that the new charge isexcessive, a process introduced by the ‘rate-capping’measures of the Rates Act 1984.

CENTRAL GOVERNMENT GRANTS

The revenue received by local authorities from the localitymeets less than half of their expenditure. Approximately 56per cent of local government expenditure is provided for bygrants from the central government. Some grants are made forspecific services such as the police, housing, roads,development schemes and re-location of population.However, most of the money provided by the centralgovernment is in the form of a general grant, known as therevenue support grant, which can be spent as the localauthority chooses. The main structure is now in the LocalGovernment and Housing Act 1989.

As local government expenditure is so large, and so much of itis provided through central government grants, it is perhapsinevitable that a certain tension between local and centralgovernment is created as the latter seeks to ensure that thelevel of local government expenditure is consistent with itsoverall economic policy.

BORROWING

Local taxation and general grants jointly provide currentrevenue. Local authorities also require money to purchasecapital assets. If the asset is one with a long life, it would beunfair to place the entire burden on current revenue. Suchrevenue might also be simply inadequate without placingunacceptable demands upon the existing Charge-payers, andso borrowing is a regular method of financing new projects.Central control of such borrowing is not new, but theemphasis has changed from merely ensuring that a localauthority has not entered upon excessive commitments, to

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ensuring that local government borrowing is consistent withthe central government’s overall management of the economy.

Control over capital expenditure must now be seen in the lightof Part VIII of the Local Government and Housing Act 1989.

The money for capital expenditure may be obtained by issuingloan stock or by borrowing from the Public Works LoanBoard.

EXPENDITURE

Local authorities are now statutory authorities, with the soleexception of the City of London, and they therefore havepower to spend money only for such purposes as areauthorised by Parliament. However, these purposes includewhat is reasonably incidental as well as what is expresslyprovided for: s.111 Local Government Act 1972, as amendedby the Local Government and Housing Act 1989.

Section 151 of the Act requires every local authority to makearrangements for the proper administration of its financialaffairs and to make one of its officers responsible for theadministration of those affairs. Whether this officer is calledthe treasurer or the director of finance he is not an ordinaryservant of the council. Farwell J in ATTORNEY-GENERAL vWINTON [1906] 2 Ch 106 said that ‘he owes a duty and standsin a fiduciary relationship to ratepayers’. He cannot, therefore,plead the orders of the council as an excuse for an illegalexpenditure of money.

THE AUDIT SYSTEM

The system of auditing the accounts of local authorities is ofspecial importance not only in local government itself but alsoin administrative law, as the audit is one of the mechanisms ofjudicial review. ROBERTS v HOPWOOD was only one casewhich arose from the audit of accounts. The audit system isthe means whereby improper expenditure can not only beexposed, but charged personally to the councillors or officersresponsible.

The system of district audit and the office of district auditordate back to 1844. The Local Government Finance Act 1982repealed the existing provisions relating to district audit (thenfound in the Local Government Act 1972). The 1982 Actestablished the Audit Commission to be responsible forauditing the accounts of a large number of public bodies,including local authorities.

The Audit Commission is a body independent of the centralgovernment. It appoints the district auditor who will audit theaccounts of a local authority. The auditor will be either anofficer of the Commission or a firm of private accountants. TheCommission is also responsible for studies into the economy,efficiency and effectiveness of local authority services and theimpact thereon of statutory provisions and initiatives by thecentral government.

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An audit may be a normal, regular audit or it may be anextraordinary audit which the Audit Commission has power toorder under s.22 of the 1982 Act.

Section 17 of the Act provides that the accounts of a localauthority at an ordinary audit are open to inspection, and anylocal government elector for the area may appear before theauditor, question him and make objections. If the auditor failsor declines to take the action available to him under ss.19 and20, described below, the local government elector may takethe matter to court himself.

Section 19 empowers the auditor, where it appears to him thatany item of account is contrary to law, to apply to the court(County Court or High Court) for a declaration to that effect.This does not apply where the item was sanctioned by theSecretary of State.

If the court grants the declaration it may also order thoseresponsible for the expenditure to repay it to the council and,if the expenditure exceeds £2,000 and the person responsibleis a councillor, order him to be disqualified from membershipof a council for a stated period. But repayment ordisqualification must not be ordered if the court is satisfied thathe ‘acted reasonably or in the belief that the expenditure wasauthorised by law’.

Section 20 provides that, where it appears to the auditor:

(a) that a person has failed to bring into account any sumwhich should have been included and the failure has notbeen sanctioned by the Secretary of State, or

(b) that a loss or deficiency has been incurred or caused bythe wilful misconduct of any person,

the auditor shall certify to that effect and the local authoritymay recover the amount certified.

There is a right of appeal to the High Court for any personaggrieved in the circumstances of s.20. The court has a widepower to confirm, vary, or quash the certificate or give anycertificate which the auditor could have given.

A district auditor has to comply with a Code of Audit Practicedrawn up by the Audit Commission and approved byParliament (s.2(14)) of the 1982 Act but otherwise heperforms an independent and quasi-judicial function. Thismeans that the district auditor must act fairly, for example, bygiving the affected members an opportunity to makerepresentations before issuing a certificate under s.20. But inLLOYD v McMAHON [1987] 1 All ER 1118 (the case which arosefrom the refusal of Liverpool City Council to set a legal rate in1985) the House of Lords held that the auditor was notobliged in every case to offer the affected members theopportunity for making oral representations. Since the auditorhad given the appellants adequate notice of the case they hadto meet, and adequate opportunity of making representations,he had not acted unfairly before issuing the certificate.

The recent report of the district auditor into the affairs ofWestminster City Council illustrates the work of the audit

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system. The report involved allegations about misspendinglarge amounts of money in the sale of council homes in certainparts of the city. The report is controversial and may involvelegal challenges before, or if, any application is made by theauditor to the court.

Think Point 2

Why has there been so much conflict between centraland local government over the finance of localgovernment?

CONTROL OF LOCAL AUTHORITIES

FINANCIAL CONTROL

As we have just seen, this is by audit.

MINISTERIAL CONTROL

The preceding pages have indicated a number of importantcentral government controls over local authorities in thefinancial area – over grants and local revenue raising and thusover expenditure. Non-financial controls take many forms,some of which are described now.

� The general provisions of statutes relating to localgovernment services may vest general responsibility in aMinister of the Crown: the Education Reform Act 1988, forexample, provides that the responsibility for promoting theeducation of the people of England and Wales and forensuring the effective execution by local authorities of thenational policy for providing a varied and comprehensive

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(i.e. wide) educational service in every area is vested in theSecretary of State.

A statute may also provide that local authorities mustsubmit proposals to the minister explaining how they willperform their statutory functions and obtain ministerialapproval of these plans. Bye-laws made by a localauthority have to be submitted to the minister forapproval. The minister may have the power to makeregulations which are binding on the local authority, forexample, the power to prescribe standards for schoolbuildings under the Education Reform Act 1988.

� Circulars distributed to local authorities by governmentdepartments perform a number of functions in therelationship of central and local government. They may beintended to impart technical information or to explain astatutory instrument more fully. Circulars may be used inplace of delegated legislation. They may be a means bywhich the government department explains its policy tolocal authorities. The language used in circulars also varies.Some request, some invite and some clearly indicate whatthe government department expects local authorities to do.Circulars are important in most areas of local governmentactivity, particularly so in town and country planning.

� Inspection of local government services by officials of thecentral government may take place. The practice datesback to the supervision by inspectors of the activities ofthe Boards of Guardians under the Poor Law AmendmentAct 1834. The services now subject to regular inspectionare fire, police, education and child welfare. Inspectionserves two functions: to ensure the maintenance ofstandards and to give advice.

� Default powers are to be found in many standards andprovide that a minister can himself take over theperformance of a certain function, or direct anotherauthority to undertake it, if he considers that the localauthority is failing to perform its duties. The cost is chargedto the defaulting authority. Clearly such powers will onlybe used as a last resort. Examples of default powers are tobe seen in the Education Reform Act 1988 and theHousing Act 1980 in a number of forms but all with thesame general effect.

� A statute may confer decision-making powers upon aminister. In town and country planning, a disappointedapplicant for planning permission can appeal from thedecision of the local planning authority to the Secretary ofState. Objections made to a compulsory purchase orderserved by a local authority will go to a governmentdepartment which will decide whether the order is to beconfirmed or not.

� Statutes may give the central government control over theappointment, conditions and dismissal of local governmentofficers. Although police officers are not strictly employeesor officers of a local authority, the police service is alocally-based service and the Police Act 1964 as amendedby the Police and Magistrates Courts Act 1994, provides

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notable examples of such central government control overthe activities of Police Authorities in such matters.

POLITICAL CONTROL

This, of course, is achieved through local elections.

JUDICIAL CONTROL

The courts have always played a part in the control of localauthorities. The courts reviewed the administrative functionsof the Justices of the Peace before the creation of localauthorities in the nineteenth century and have continued tohear cases both by way of judicial review and on appeal.Statutes provide for appeals on many matters. The grounds ofreview and the remedies available will be covered in laterChapters.

The courts, in reviewing the decisions of local authorities,consider the existence of legal authority, the correctness ofthe manner in which discretionary powers are exercised, andprocedural correctness, which includes the rules of naturaljustice.

In a series of cases the courts have entered as McEldowneyputs it ‘in a sensitive area of having to adjudicate betweencentral and local government over matters involving thefundamental role of local authorities’. In R v SECRETARY OFSTATE FOR THE ENVIRONMENT EX P NOTTINGHAMSHIRECOUNTY COUNCIL [1986] 2 WLR 1 the House of Lords werereluctant to interfere in the discretion of the Secretary of Statewho was exercising his ‘political judgement’ over the allocationof rate support grants. By contrast in BROMLEY LBC v GLC[1983] 1 AC 768 their Lordships held that the subsidy of theGLC to London Transport was unlawful. In HAMMERSMITHAND FULHAM v SECRETARY OF STATE FOR THE ENVIRONMENT[1990] 3 All ER 589 the House of Lords considered whether thepoll-tax capping rules were lawful. It decided that the Secretaryof State was free to set his own criteria even thoughdifferences between authorities based on politicalconsiderations might apply.

Local authorities are also, of course, affected by the law ofcontract and tort.

THE OMBUDSMAN PRINCIPLE INLOCAL GOVERNMENT

Part III of the Local Government Act 1974 established, fromApril 1974, a complaints system for local government inEngland and Wales. A Commission for Local Administrationinvestigates complaints of maladministration by localauthorities in England (with a separate Commission for Wales).The basis of this scheme is that a citizen who believes himselfto be the victim of maladministration by local governmentauthorities should enjoy the same right to have his complaintindependently scrutinised as he already enjoys through theParliamentary Commissioner in respect of alleged

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maladministration by central government. Scotland has its ownCommission for Local Administration established by the LocalGovernment (Scotland) Act 1975.

The English Commission is an independent statutory bodyconsisting of three Local Commissioners, each responsible foran area of England. (In Wales and Scotland there are singleCommissioners.) The Commissioners are appointed by theCrown but are financed by local authorities and wereresponsible, not to Parliament, but to a body representative oflocal government in each country, to which they report. Thisbody has now been abolished by the Local Government andHousing Act 1989. Formerly, complaints first had to be sent toa Local Councillor; since the 1989 amendments to the 1974Act, most complaints are now sent directly to the LocalCommissioners.

The Local Commissioners can deal with complaints against anylocal authority (including its committees, members andofficers), except a parish council, and also joint boards of localauthorities. The complaint must be made in writing to theCommission stating the action alleged to constitutemaladministration: s.26(2) 1974 Act.

Like the Parliamentary Commissioner (see below), the LocalCommissioners appear to accept many cases where therewould be legal remedies – where councillors with personalinterests deal with planning applications, for example.Personnel matters and contractual and commercialtransactions are excluded. Also excluded are complaints aboutthe conduct, curriculum, internal organisation, managementand discipline of schools and colleges maintained by a localeducation authority. Complaints could be considered ofmaladministration in other educational matters such as choiceof school, medical and dental inspections or school transport.

JUSTICE published a review of the work of the LocalCommission in 1980 and was generally favourably impressedby the quality of the investigations, concluding that the systemwas functioning effectively. A number of improvements weresuggested, including an extension of jurisdiction to covercommercial and contractual matters, allowing complaints to bemade directly as well as through a councillor, and arecommendation that the findings of the Local Commissionerbe made enforceable through the courts at the suit of thecomplainant, thereby providing a really effective remedy. Theprinciple of direct access was supported by theCommissioners and is now available since the LocalGovernment and Housing Act 1989, but they are notenthusiastic about legal enforcement because it might damagethe atmosphere of confidence and goodwill with localauthorities which the Commissions find invaluable. Theyprefer to rely on this goodwill and on the influence of publicopinion.

A Local Commissioner is subject to scrutiny by the courts (seeR v LOCAL COMMISSIONER EX PARTE EASTLEIGH BOROUGHCOUNCIL [1988] QB 855 where the Commissioner had actedwithout jurisdiction in questioning the merits of Councilpolicy).

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BYE-LAWS

The power to make bye-laws is a form of delegated legislationand therefore depends upon statutory provision. Section 235Local Government Act 1972 gives a general power to thecouncils of districts and of London boroughs to make bye-laws ‘for the good rule and government of the whole or anypart of the district or borough ... and for the prevention andsuppression of nuisances thereon’.

Power to make bye-laws is also found in statutes dealing withparticular local government services such as the Public HealthAct 1936 and the Highways Act 1980. Where there is such aspecific bye-law-making power the general power given by theLocal Government Act cannot be used. It is a residuary poweronly.

The procedure for making bye-laws under the LocalGovernment Act is set out in s.236. The main features of thisprocedure are that at least one month before application ismade to the Home Secretary for confirmation of the bye-laws,notice of the intention to apply for confirmation must be givenin one or more local newspapers and, for that month, a copyof the bye-laws must be deposited at the offices of theauthority and be open to public inspection.

The Home Office may confirm, or refuse to confirm, any bye-laws. In practice, bye-laws will have been submitted in draftand informal discussions will probably have taken placebetween the local authority and the government department.The Home Office issues sets of ‘model’ bye-laws on particulartopics. Confirmation is not usually given to those which departfrom them unless strong local reasons can justify the variation.A bye-law is not effective until confirmed. Section 226provides that a copy of the bye-laws, when confirmed, mustbe printed and deposited at the offices of the authority and beopen to public inspection. Copies of the bye-laws may bepurchased.

VALIDITY OF BYE-LAWS

Bye-laws may provide that persons contravening them shallbe liable on summary conviction to a fine not exceeding £20and a further fine not exceeding £5 a day for a continuingoffence (or the sums fixed by the particular statute). It is opento any person to institute proceedings for breach of a bye-lawunless the statute under which it is made restricts the right toprosecute. An injunction may be sought to restrain a breachof the bye-laws. This may be particularly important where thespecified penalties do not discourage a continuing disregard ofthem.

If a person is prosecuted for a breach of a bye-law he mayargue its invalidity as a defence. In addition to having beenmade in the manner prescribed by the enabling statute, a bye-law, to be valid, must:

� be within the statutory power under which it is made

� be certain in its terms

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� not be repugnant to general statute or common lawbeyond that contemplated or authorised by the enablingstatute

and

� be reasonable.

CONCLUSION

As a result of the changes we have seen in the functions,finance, audit, and central government control of localgovernment – even to the extent of abolishing a tier of localgovernment – it is suggested that there has been afundamental shift in the relationship between central and localgovernment. The current proposals of the Local GovernmentCommission relating to unitary authorities are likely to lead, it isclaimed by commentators, to more quangos, joint authoritiesand commissions appointed by central government. This againraises questions as to local accountability. These changesillustrate the problems with such a relationship within ourconstitutional framework, and raise further questions as to thevalue and work of local authorities, especially within thecontext of the developing role of the European Union. Theconstitutional position of local government is further affectedby the devolution of legislative power to a Scottish Parliamentand administrative power to a Welsh Assembly. In addition theNorthern Ireland Assembly is being established.

DEFINITION OF DELEGATEDLEGISLATION

Because all the necessary rules which must have the force oflaw cannot be made in Parliament, powers of legislation areconferred by Parliament upon other bodies, e.g. Ministers ofthe Crown, local authorities, nationalised industries andprofessional bodies. The term delegated, or subordinate,legislation is used to describe legislation made by a body otherthan Parliament under the authority of an Act of Parliament.The Act conferring the authority can be described as the‘enabling’, ‘empowering’ or ‘parent’ Act – the terms tend to beused interchangeably. This delegation of power to make ruleswhich have the force of law has a long history and the specialfeature of twentieth-century delegated legislation is its volumeand complexity.

Items of delegated legislation may be referred to as rules,regulations, orders, Orders in Council, by-laws or directions.There is no particular significance in the choice of word, butthe most important type of delegated legislation is the statutoryinstrument made by the Queen in Council or by a Minister ofthe Crown. Section 1 of the Statutory Instruments Act 1946defines statutory instruments as being:

� Orders in Council made under the authority of a statute

� ministerial rules, regulations, orders or directions which theenabling statute states are to be made by statutoryinstrument

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� rules to be made in the future under the authority ofstatutes passed before 1948 and to which the RulesPublication Act 1893 applied.

Section 2 of the 1946 Act provides for the numbering ofstatutory instruments and for their publication and sale.

Section 4(1) provides that where an instrument must be laidbefore Parliament after being made, it must be laid before itcomes into operation. However, if it is essential for theinstrument to become operative at once, the reason must benotified forthwith to the Lord Chancellor and to the Speaker.

Section 4(2) provides that every statutory instrument mustbear on its face a date on which the instrument came, or willcome, into effect.

THE USES OF DELEGATEDLEGISLATION

� To provide the technical regulations necessary for thefulfilment of schemes the general principles of which arecontained in the parent Act, e.g. the Public Health Act1961 and the building regulations made thereunder; theRoad Traffic Act 1972 and regulations for the use of motorvehicles on the road, their construction and equipmentmade thereunder.

� To allow the government to respond to a changingsituation, such as the introduction of new manufacturingtechniques or the production of a new product, withouthaving to seek new legislative powers in a statute everytime the situation changes. For example, the Control ofPollution Act 1974 gives authority for regulations to bemade to limit noise from plant and machinery. The minister,therefore, has the power to respond to such changes asthe invention of new machines and to technologicaladvances in noise reduction technique without having tointroduce a new bill into Parliament. Delegated legislationenables future developments, which may be foreseen butare not definable at the time of the passing of theempowering Act, to be dealt with at the appropriate time inthe future.

� To confer extensive powers upon the government to dealwith emergencies in war-time (Emergency Powers(Defence) Acts 1939 and 1940) or in peace-time(Emergency Powers Acts 1920 and 1964).

� To bring an Act, or part of an Act, into effect at aconvenient time or to continue the life of an Act whichwould otherwise have expired.

� To adapt or modify existing Acts of Parliament. Such aprovision is known as a Henry VIII clause and is nowusually used only to enable the detailed provisions ofstatutes to be changed by statutory instrument, e.g.Factories Act 1961, Companies Act 1967, but ss.2(2) and(4) European Communities Act 1972 contain an example ofa Henry VIII clause which is not confined to details.

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The Deregulation Act 1994 gives wide powers to ministers torepeal many regulatory measures without primary legislation, aproposal which has been much criticised as a further limitationon parliament’s powers.

THE REASONS FOR DELEGATEDLEGISLATION

� Pressure on parliamentary time.

� The two Houses are not competent to deal with the detailsand technicalities to be found in most delegated legislation.

� The need for a government department to be able to adaptwith necessary speed and flexibility to new situations suchas changes in products and manufacturing or in economiccircumstances.

� The need for the government to be able to deal withemergency situations in war-time and peace-time.

� Administrative convenience.

� Local conditions vary, and local government bye-laws areable to take account of this.

THE SCRUTINY OF STATUTORYINSTRUMENTS

PUBLICATION

Statutory instruments are published and sold by HerMajesty’s Stationery Office. Collected volumes of statutoryinstruments are published annually.

CONSULTATION

When consultation works well it solves many of the problemsassociated with delegated legislation, in that Parliamentconcerns itself with the general principles while the details areleft to government departments and the interests affected.Consultation is in many cases a political necessity and somebodies must be consulted in matters affecting their interests.However, in BATES v LORD HAILSHAM OF ST MARYLEBONE[1972] 1 WLR 1373, a failure to consult interested parties washeld not to amount to a breach of natural justice. The LordChancellor held that ‘many of those affected by the legislationare never consulted in the process of enacting; yet they haveno remedy.’

There may also be a statutory requirement to consultcontained in the enabling Act. The requirement may be toconsult a specified body or to consult at the minister’sdiscretion or both, e.g. s.9 of the Public Health Act 1961requires that the minister shall consult the Building RegulationsAdvisory Committee and other such bodies as appear to himto be representative of the interests concerned when making

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building regulations. There is no general requirement to giveadvance notice of the making of statutory instruments as therewas when the Rules Publication Act was in force between1893 and 1946.

PARLIAMENTARY SCRUTINY

Here there is a problem of balance: the scrutiny must beneither too heavy (this would defeat the purpose of delegatedlegislation) not too light (which might lead to abuse). There arethree forms of parliamentary scrutiny.

� Examination of the nature and scope of the legislativepower to be delegated when the parent Act is a bill and isproceeding through Parliament.

� Usually the enabling Act provides for the statutoryinstrument to be laid before Parliament in one of thefollowing four ways:

– to be laid subject to annulment within forty days – thenegative resolution procedure

Under the negative resolution procedure the instrumentbecomes effective either when made or on the datespecified, but may be objected to by means of a prayer.If the House accepts the prayer the instrument will bewithdrawn. Because of the pressure on parliamentarytime, few prayers against statutory instruments areactually debated in the Commons. Provision has,therefore, been made for statutory instruments againstwhich a negative resolution has been moved to bedebated on their merits by a standing committee of theHouse of Commons. After this consideration a vote onthe prayer for annulment may be taken in the wholeHouse without further debate. This procedure can onlybe invoked at the instance of a minister and can beblocked if twenty or more MPs object.

A recent example of a major change introduced by thenegative resolution procedure was the decision not toallow an annual parliamentary debate on the Civil List.On 24 July, 1990 Prime Minister Thatcher made astatement in the Commons that a 10-year agreementhad been made on Royal salary levels and that details offuture spending will be kept secret until 2001, unlessthe monarchy needs more money in the meantime. Themove went through Parliament by a statutoryinstrument on a negative resolution, with the result thatMPs did not debate it (Guardian, 10 July 1992).

– to be laid subject to an affirmative resolution

The affirmative resolution procedure is reserved for themost important instruments. Either the statutoryinstrument will become effective only when approvedby both Houses or it may become effective when made,or on a specified date, but will have to be approvedwithin a specified period or else cease to have furthereffect.

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– to be laid in draft

The draft may either have to be affirmatively approvedor be subject to the negative resolution procedure.Then the statutory instrument itself can be made.

– to be laid with no further directions.

Which laying requirement is used depends upon the termsof the enabling Act. Sometimes there is no mention of alaying requirement.

� The third form of parliamentary scrutiny is throughparliamentary committees. The House of Lords had aSpecial Orders Committee (established 1925) whichexamined those instruments which were subject toaffirmative resolution. In 1944 the House of Commonsestablished its Select Committee on Statutory Instrumentswhose terms of reference required it to considerinstruments laid or laid in draft before the House and todraw the attention of the House to instruments on any ofthe following grounds:

– that it imposes a tax or charge

– that it is made in pursuance of an enactment containingspecific provisions excluding it from challenge in thecourts

– that it purports to have retrospective effect where theenabling Act confers no express authority so toprovide

– that its form or content call for elucidation

– that there has been unjustifiable delay in its publicationor in its laying before Parliament or in sendingnotification to the Speaker when the instrument comesinto effect before it is laid

– that it gives rise to doubts whether it is intra vires or itappears to make unusual or unexpected use of thepowers conferred by the Act under which it was made

– that its drafting appears to be defective.

In 1973 a Joint Select Committee of both Houses wasestablished, having the terms of reference and thefunctions of the two existing committees. The Joint SelectCommittee has seven members from each House and itschairman is an Opposition MP. Before drawingParliament’s attention to a statutory instrument on any ofthe above grounds the Committee must give anopportunity to the department concerned to give anexplanation orally or in writing. The Joint Committee is notconcerned with policies or with the merits of theinstruments but is confined to technicalities. The mereexistence of the Joint Committee is a potential check,particularly as it has the power to call for explanationsfrom the department with which it has established goodrelations. The Joint Committee makes an annual report toParliament and a special report where necessary.

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JUDICIAL SCRUTINY

The courts are not confined to the interpretation of delegatedlegislation when it comes before them. The purported exerciseof statutory power will be void if it is ultra vires (beyond thepowers) the person who exercises it and in this there is afundamental difference between an Act of Parliament and apiece of delegated legislation. There are two grounds on whichthe courts may hold delegated legislation to be void: theprocedural and the substantive.

� Procedural ultra vires

Where the enabling Act requires a certain procedure to befollowed in the making of delegated legislation, thedelegated legislation may be held void, wholly or in part, ifthat procedure is not followed.

But not all procedural errors will invalidate a regulation, asthere is a distinction between requirements which aremandatory, i.e. which must be followed, and requirementswhich are directory, i.e. which ought to be followed butfailure to do so will not be fatal to the validity of theinstrument.

For example, where a statute states that a minister, beforemaking a statutory instrument, is required to consultunnamed groups or organisations appearing to him to berepresentative of the interests affected, the minister hasdiscretion in whom to consult, discretion which he mustexercise in good faith. If he does decide to consult agroup, effective consultation with that group will bemandatory.

Further, in some circumstances (e.g. a statutory schemegiving local authorities responsibility for day-to-dayadministration coupled with the existence of obviousrepresentative bodies such as the associations of localauthorities) consultation will be mandatory even if nospecific group is named.

Publication of a statutory instrument as required by theStatutory Instruments Act 1946 appears to be directoryonly because s.3(2) of the Act makes non-publication ofthe instrument a defence if someone is prosecuted for non-compliance with the instrument: see R v SHEER METALCRAFT[1954] 1 QB 586. (The prosecution can still succeed if it canestablish that, in the absence of publication, reasonablesteps were taken to publicise the existence of theinstrument.)

The general opinion is that a failure to lay an instrumentbefore Parliament is a directory mistake only, e.g. wherethe negative resolution procedure is followed.

� Substantive ultra vires

Delegated legislation will be void if it is not authorised by,or is repugnant to, the enabling Act. This is a matter ofstatutory interpretation. For example, in ATTORNEY-GENERAL v WILTS UNITED DAIRIES (1921) 37 TLR 884: Food

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Controller was held not to have power to impose whatamounted to a tax on the company.

CRITICISM OF DELEGATEDLEGISLATION

Although the inevitability of delegated legislation is generallyaccepted, critics are concerned with the effectiveness ofscrutiny. Today’s criticisms are not usually as forceful as LordHewart’s in The New Despotism published in 1929. His attackon its constitutional propriety led to the establishment of theCommittee of Ministers’ Powers (Donoughmore) in 1929.Although the Committee did not find any abuse of the systemof delegated legislation it made a number of importantrecommendations, some of which were implemented by theStatutory Instruments Act 1946.

Critics today claim there is a tendency to introduce regulationsrather than statutes. For example, the Child Support Act 1991contains 100 regulation-making powers in its 58 sections,although only 12 are subject to the affirmative resolutionprocedure – which at least has the merit of a guaranteed voteon the floor of the House on the substance of the matter. In aLords debate on the government’s legislative programme LordSimon of Glaisdale saw a tendency for ‘aggrandisement of theexecutive at the expense of both Parliament and individualrights’ (Hansard Col. 747, 22 December 1991). Specificcriticisms are as follows:

� the sheer bulk of delegated legislation makes it difficult to beaware of regulations

� individual officials are being given more power to makedecisions since, increasingly, appeals are to administrativetribunals rather than to courts

� a tendency for statutory instruments to become general incharacter thus leaving details to be filled in later bydepartmental circulars – this negates the principle thatParliament should supervise matters of policy andprinciple.

Consider also the growing influence of documents nottechnically having the force or character of law, but which dohave a considerable effect on how central and localgovernment administration actually works and may also affectprivate businesses and individuals, e.g.:

� ministerial circulars

� codes of practice such as those on labour relations andhealth and safety at work

� extra-statutory concessions made by the Inland Revenueand the Customs and Excise

� administrative rules such as the Immigration Rules madeunder the Immigration Act 1971 but not contained in astatutory instrument.

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THE SECONDARY LEGISLATION OFTHE EUROPEAN COMMUNITIES

The directly applicable law of the European Communities madein the form of regulations cannot be regarded as delegatedlegislation for the reasons listed below.

� It is made in Brussels by the Council of Ministers and theCommission and, when made, is automaticallyincorporated into the domestic law of the member stateswithout any national process of adoption or incorporation.

� The European Communities Act 1972, which provides forthe reception in the United Kingdom of directly applicablelaw, makes no provision for parliamentary scrutiny of suchlaw.

� The European Court of Justice in Luxembourg has calledthis directly applicable law autonomous legislation,deriving from the treaties which established theCommunities and not from the legislation of any memberstate. The Court of Justice has emphasised in many casesthat EC law must take precedence over the domestic law ofthe member states when the two come into conflict so thatCommunity law is the same throughout the Community.

� The European Communities Act provides that the courts inthe United Kingdom have to follow the decisions andprinciples of the Court of Justice on matters of Communitylaw such as the validity and meaning of Communityregulations and directives. The courts in the UnitedKingdom, therefore, do not have a free hand to determinetheir validity as they do with British delegated legislation,because Community secondary legislation is to be judgedby principles of Community law and not of domestic law.

The non-directly applicable Community law made in theform of directives, which state an objective to be attainedwhile leaving the member states to make their ownarrangements for implementing the directive, is applied inthe United Kingdom through statutory instruments asprovided for in s.2(2) of the European Communities Act.

TRIBUNALS

INTRODUCTION

The establishment of a large number of administrative tribunalsby statute has been a parallel development to the increaseduse of delegated legislation. Both are consequences of thegrowth of government activity in economic and social policy.The tribunals vary considerably in composition, function andprocedure.

� Most tribunals deal with disagreements which arisebetween an individual and an officer of a governmentdepartment, for example:

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– disputes about such matters as entitlement tounemployment benefit, industrial injuries benefit, orincome support are resolved by the Social SecurityAppeal Tribunals established by the Health and SocialServices and Social Security Adjudication Act 1983 tocombine the work previously performed by theNational Insurance Tribunals and the SupplementaryBenefit Appeal Tribunals in their respective fields. (TheSocial Security Appeal Tribunals are local and hearappeals from the decisions of adjudication officers.)

– disputes about an assessment of tax are resolved bythe Income Tax Tribunals, i.e. the GeneralCommissioners, and the Special Commissioners, forincome tax

– disputes about the adequacy of compensation for thecompulsory purchase of property are resolved by theLands Tribunal.

� Some tribunals deal with disagreements between privateindividuals, for example:

– disputes between landlord and tenant about the rent ofrented accommodation are determined by rentassessment committees and by rent tribunals

– industrial tribunals deal with a wide range ofdisagreements between employer and employee,including entitlement to redundancy payment and tocompensation for unfair dismissal.

Although the parties before these tribunals may be privateparties, the disagreements arise out of statutory schemesor out of matters, such as housing, in which thegovernment has a strong interest.

� There are a small number of tribunals which haveregulatory functions and are as much administrative bodiesas adjudicating tribunals, e.g. the licensing authorities forpublic service vehicles and goods vehicles.

Note: We are not dealing here with tribunals of aprivate character, i.e. domestic tribunals: thedisciplinary committees of trade unions, professionalbodies, clubs, and sporting organisations such as theFootball Association or the Jockey Club.

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COURTS AND TRIBUNALS

There is no clear distinction between them. Both have apermanent existence and both hear and determine a dispute.Both come to an independent decision after establishing thefacts and applying the relevant law. A few tribunals are,however, policy oriented which means that they are requiredto take government policy into account and may be givenguidance or direction by the government. The Civil AviationAuthority is a notable example of this exceptional type oftribunal.

The courts, although now established on a statutory basis,have a long historical tradition behind them while tribunals areall of recent statutory origin.

Another distinction may be that the tribunals are specialisedbodies dealing with a restricted subject matter while courtsdeal with a wide range of legal matters. This is true, but theidea of specialisation is not unknown to the High Court.

Probably the most significant distinction to be drawn is the factthat a court will be presided over by a judge while a tribunalwill be made up of laymen with a legally-qualified person aschairman. The Restrictive Practices Court is, and the NationalIndustrial Relations Court was, a statutory body with a veryspecialised jurisdiction. When they were established, in 1956and 1972 respectively, they were called courts rather thantribunals because of the presence of a High Court judge. Onthe other hand, the Employment Appeal Tribunal, establishedin 1976 to replace the National Industrial Relations Court, iscalled a tribunal although it is presided over by a High Courtjudge and performs many of the functions of its predecessor,e.g. hearing appeals on points of law from the industrialtribunals.

REASONS FOR THEESTABLISHMENT OF TRIBUNALS

� The need for an independent adjudication of disputes whilepreserving the close connection between the work of thetribunal and the work of a government department. Hencethe term administrative tribunals.

� The need for a cheap, speedy settlement of disputes,cheap both for people using the tribunals and for the state.

� The need for informality of atmosphere and procedure.Formality is not normally associated with speed orcheapness, and formality might discourage people fromtaking their cases to the tribunals.

� Doubts as to the suitability of the ordinary courts. Apartfrom the second and third points above, these doubtsincluded the suitability of the judicial methods of statutoryinterpretation and the judicial system of precedent.

� The number of cases decided would be too many for theordinary courts to handle. This is decisive. Tribunals deal

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with approximately 200,000 cases annually. The greatmajority are decided on their own facts and few casesinvolve the consideration of a difficult point of law. Tohave a highly trained, expensive judge to deal with thesecases would be a waste of resources.

Think Point 3

List the main differences between courts and tribunals.

THE COMMITTEE ONADMINISTRATIVE TRIBUNALS ANDINQUIRIES

This Committee, under the chairmanship of Sir Oliver Franks(now Lord Franks) was established in 1955 as a result of theCrichel Down affair, although Crichel Down was notconcerned with either tribunals or inquiries. The Committee’sterms of reference required it to ‘… consider and makerecommendations on (a) The constitution and working oftribunals other than the ordinary courts of law, constitutedunder any Act of Parliament by a Minister of the Crown forthe purpose of a Minister’s functions’.

In addition to a number of detailed recommendations, theCommittee reached the following general conclusions aboutthe tribunal system which, in the years prior to theestablishment of the Committee, had been much criticised.

� The Committee acknowledged the merits of tribunals andthe contribution made to the preservation of the ordinaryjudicial system. It did not recommend any general transfer

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of functions from tribunals to the courts, but did think thata decision should be entrusted to a court rather than to atribunal in the absence of special considerations whichmake a tribunal more suitable. These specialconsiderations would be the reasons examined above.

� Tribunals should be regarded as part of the machinery ofjustice rather than of the machinery of administration.

� Tribunals should have three basic characteristics:openness, fairness and impartiality.

� There should be two councils on tribunals to keep theconstitution and working of tribunals under constantreview.

The Franks Committee produced its report in 1957 and thiswas quickly followed by the Tribunals and Inquiries Act 1958which implemented many, but not all, of the Committee’sdetailed recommendations. The 1958 Act and the Tribunalsand Inquiries Act 1966 were consolidated in 1971 in theTribunals and Inquiries Act of that year; all are nowconsolidated in the Tribunals and Inquiries Act 1992.

THE OPERATION OF TRIBUNALS

Tribunals have not been established in accordance with a pre-conceived grand design. They have been set up ad hoc todeal with particular classes of issues which it is thoughtundesirable or unnecessary to confide either to the ordinarycourts or to the organs of central or local government. Thecommon feature of tribunals is that they make their decisionsindependently and are free from political influence.

APPOINTMENT OF MEMBERS

Members of tribunals are usually lay people who are providinga form of public service. The Franks Committee found that thequality of members was, on the whole, satisfactory. Themembers are appointed by the minister responsible for thescheme with which the tribunal is concerned. As far as ispossible the chairman of a tribunal will be legally-qualified andchairmen are appointed by the minister from a list drawn upby the Lord Chancellor. There are some chairmen andmembers of tribunals who are full-time or part-time membersand are paid a salary.

PUBLIC HEARINGS

Most tribunals are open to the public. The Franks Committeeaccepted that there are circumstances when this general rulemust be modified, such as when the tribunal is consideringintimate personal details of finances or of health.

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PROCEDURAL

Procedural rules for tribunals are made by the appropriateminister after consulting the Council on Tribunals. Generally,tribunals are influenced by and follow the adversary mode ofprocedure, but some, e.g. rent assessment committees andMedical Appeal Tribunals, may have to carry out aninvestigation and apply their own knowledge and impressionsif they find the expert evidence unsatisfactory.

LEGAL REPRESENTATION

Before the Franks Report the procedural rules of a number oftribunals excluded the right to legal representation in theinterests of informal, cheap and speedy proceedings. This hasnow been changed and legal representation is permitted beforeall tribunals. In the service committees of Family PractitionerCommittees in the National Health Service, which deal withcomplaints against NHS practitioners, paid advocates arebarred, but an unpaid barrister or solicitor can assist in thecapacity of a friend.

LEGAL AID

The Franks Committee was of the opinion that legal aid, whichis obviously linked to the availability of legal representation,should be extended to the more important tribunals andespecially to the appellate tribunals. This opinion has sincebeen endorsed, at various times, by the Law Society, theCouncil on Tribunals, the Lord Chancellor’s AdvisoryCommittee on Legal Aid and by the 1979 report of the RoyalCommission on Legal Services. But the only tribunals wherelegal aid for advocacy (as opposed to legal advice andassistance) is available are the Lands Tribunal and theCommons Commissioners. The Lord Chancellor announced inMay 1995 that a pilot scheme would be introduced toconsider the application of legal aid to tribunals.

RULES OF EVIDENCE

The strict rules of evidence are not usually followed intribunals and the Franks Committee thought that it would be amistake to introduce strict rules as applied in a court. TheCommittee thought that the presence of a legally-qualifiedchairman should enable the tribunal members to attach properweight to the evidence before them.

REASONS FOR DECISIONS

Before 1958 reasons did not have to be given for tribunaldecisions. Section 12 of the 1958 Act (which is s.10 of theTribunals and Inquiries Act 1992) stated that where a tribunalnamed in Schedule 1 to the Act gave a decision, it must give awritten or oral statement of the reasons for the decision ifrequested to do so on or before the giving or notification ofthe decision. The reasons must be proper, adequate andintelligible, and must deal with the substantive points raised.

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The Act does not require that parties be told of their right toask for reasons.

APPEALS

No right of appeal exists unless one is provided by Act ofParliament. Parliament has created many appellate proceduresfrom tribunal decisions, but has not followed a consistentpattern so that the form of appeal varies from tribunal totribunal. An appeal may lie from a tribunal to a minister, or toan appellate tribunal with, or without, a further appeal to acourt of law. An appeal may lie directly from a tribunal to acourt of law. The appeal may be on questions of fact or law orboth, and may be with or without leave. To reach the HighCourt an appeal must invariably be on a point of law.

In some cases there is no right of appeal to a court of law, e.g.the Immigration Appeal Tribunal, the National Health ServiceTribunal, the Betting Levy Appeal Tribunal. The decisions ofsuch bodies may be subject to review by the High Court ongrounds of lack of, or excess of, jurisdiction or breach of therules of natural justice.

Some statutes preclude the right of appeal. For example, theSocial Security Act 1986, introducing the new Social Fund,removed the right of appeal to a tribunal and provided insteada Social Fund Commissioner both to appoint Social FundInspectors and check their work, his responsibility beingdirectly to the Secretary of State. Furthermore, theParliamentary ombudsman was no longer to enjoy jurisdictionin that area.


The Franks Committee recommended two councils ontribunals. One of these was established (with a Scottishcommittee). It is made up of part-time members who areappointed by the Lord Chancellor. The ParliamentaryCommissioner for Administration is an ex officio member ofthe Council. There is some overlap between his jurisdictionand that of the Council. Its functions are:

� to supervise the working of tribunals generally and toreceive complaints about their working – the Council isneither an appeal body nor an executive body

� to consider such matters as the Lord Chancellor may referto it concerning tribunals, e.g. the degree of privilege to beconferred on witnesses; whether tribunals should be ableto subpoena witnesses

� to consider procedural rules which a minister is preparingfor tribunals – this is an advisory function and the adviceneed not be taken by a minister.

In addition, the Council is consulted by departments whenlegislation which will establish new tribunals or extend thejurisdiction of existing tribunals is in preparation.

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The Council publishes an annual report on its work. In itsreport for 1986, for example, it criticised the lack of appealsprocedure for claimants to the Social Fund created by theSocial Security Act 1986. Also the Council has drawn attentionto the low proportion of women serving on tribunals. Othermatters referred to in Council reports include the retirementage for chairmen of industrial tribunals; whether legal rules ofevidence need to be observed before tribunals; whether it isright to make an exception to the principle of right to legalrepresentation in the case of the National Health Servicecommittees.

The Council on Tribunals is regarded as a worthy body whichperforms a useful function in reviewing many of the problemsof administrative justice. Its weaknesses lie in its part-timecharacter and its lack of legal resources. The annual reports ofthe Council recognise the absence of powers to conducteffective inquiries, even into the relatively small number ofcomplaints received from the public about tribunals andinquiries. The government refuses to increase its powers. Forexample, the Council had wanted to act as an advisory bodyover the whole area of administrative adjudication in thetribunals, and also to be consulted on draft legislation.

The Council’s effectiveness is also impaired by a widespreadignorance of its existence. The Council comparesunfavourably with the Parliamentary Commissioner forAdministration, who has access to the records of governmentdepartments and who is supported by a select committee ofthe House of Commons. The Parliamentary Commissioner hasan authority which the Council on Tribunals does not haveand the existence of the Parliamentary Commissioner probablyaccounts for the reduction in the number of complaints aboutthe working of tribunals and enquiries which has beenreaching the Council in recent years.

Think Point 4

What are the functions of the Council on Tribunals?

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INQUIRIES

This subject is another consequence of the growth ofgovernment activity and of the extension of governmentresponsibility. Inquiries collect information and makerecommendations to a Minister of the Crown which he is freeto accept or reject as he thinks fit. Many inquiries arediscretionary inquiries in that the Minister is under no legalobligation to establish them, but some inquiries must be set upby the minister. These statutory inquiries, i.e. those which aminister must hold, include the following.

� Inquiries into objections to a compulsory purchase ordermade under the authority of an Act of Parliament and towhich the procedure specified in the Acquisition of Land(Authorisation Procedure) Act 1981 applies, or madeunder a statute which itself prescribes a similar procedurefor compulsory purchase.

� Inquiries into objections made to a minister’s orderdesignating land as the site of a new town under the NewTowns Act 1965.

� Inquiries into objections made by local authorities, throughwhose area the line runs, to the line of a motorway fixedby a minister under the Highways Act 1959.

� Inquiries into appeals made against the refusal of a localplanning authority to grant planning permission to aperson or into appeals against unacceptable conditionsattached to the grant of planning permission.

TRIBUNALS AND INQUIRIESCOMPARED

� A tribunal will have a defined jurisdiction within which it willdecide disputes. It will give a definite and binding decision,subject perhaps to appeal or review, on the facts and thelaw of the matter before it. An inquiry is an investigatingbody which ends with the person who conducted theinquiry (the inspector) making a report to the ministercontaining his findings of fact and his recommendations.The final decision will then be taken by the minister or by asenior civil servant in the name of the minister.

� An inquiry is therefore a stage on the way to a decision.The purpose of the inquiry is to provide the minister withinformation before he makes his decision and to allowobjectors and appellants to state their case. The four typesof inquiry listed above are all concerned with land and theuse of land. These are matters for which a minister(currently the Secretary of State for the Environment) isresponsible to Parliament. Decisions taken by thedepartment following such an inquiry may well be basedon policy considerations and are not considered suitablefor determination by an independent tribunal.

� A tribunal will be composed of members who are not civilservants. An inquiry of the type considered above will

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usually be conducted by an inspector who is an official ofa government department.

PROCEDURE FOR THE INQUIRY

Detailed statutory procedural rules have been made forinquiries which ministers are under an obligation to hold ifobjections or appeals are made, e.g. the Compulsory Purchaseby Public Authorities (Inquiries Procedure) Rules 1976 and theTown and Country Planning (Inquiries Procedure) Rules 1974.


The Council has functions in respect of inquiries as well astribunals.

� It must be consulted by the Lord Chancellor before hemakes procedural rules for statutory inquiries.

� It may undertake ad hoc investigations into particularaspects of inquiries or inquiry procedure. The Tribunalsand Inquiries Act enables the Council to consider andreport on such matters as the Council may determine tobe of special importance in respect of statutory inquiries.

� The Council may be asked to consider and report on suchmatters relating to inquiries as may be referred to it by theLord Chancellor.

TRIBUNALS OF INQUIRY

Under the Tribunals of Inquiry (Evidence) Act 1921 a tribunalof inquiry may be set up by resolution of both Houses toinquire into a definite matter of urgent public importance. Thematters to be investigated by such tribunals are matters whichcause public concern and which require investigation in orderto allay public anxiety but which cannot be dealt with byordinary civil or criminal processes. Other types of inquiry,such as a Royal Commission, a select parliamentary committeeof inquiry, an inquiry of the type carried out by Lord Denningin the Profumo case or more recently the Scott Inquiry into the‘Arms for Iraq’ affair, are for various reasons consideredunsuitable for the purpose, and are outside the remit of the1992 or 1921 Acts.

A Royal Commission on Tribunals of Inquiry, under thechairmanship of Lord Justice Salmon, recommended in 1966that tribunals of inquiry be set up as sparingly as possible. Ithas been estimated that these have been set up on less than20 occasions including:

� the Edmund-Davies Tribunal into the Aberfan disaster(1966–67)

� the Scarman Tribunal into events in Northern Ireland inAugust 1969 (1969–72)

� the James Tribunal into the collapse of the Vehicle andGeneral Insurance Company (1971–72)

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� the Widgery Tribunal into events in Londonderry inJanuary 1972 (1972).

A tribunal of inquiry usually has a judge as chairman, with twoother members. The tribunal has all the powers of the HighCourt in enforcing the attendance of witnesses and compellingthe production of documents. A refusal to answer questionsmay lead to committal to prison for contempt. A tribunal ofinquiry will sit in public unless it judges that it is not in thepublic interest to do so. It cannot impose penalties of any kindbut reports to the appropriate minister.

DIFFICULTIES ASSOCIATED WITHTRIBUNALS OF INQUIRY

There are a number of difficulties associated with a tribunal ofinquiry.

� It is not a court of law. It is an inquisitorial, investigativebody. There is no precise dispute and the tribunal’sactivities will be general. Therefore there is always thedanger of a person becoming involved without being fullyaware of the possible consequences and subsequentlybeing prejudiced by the report of the tribunal withouthaving had a full opportunity of knowing or answering acharge against him.

� Because of the wide powers of punishing for contemptpossessed by a tribunal of inquiry there is a danger thatpublic comment on a matter of national importance may bestifled by the establishment of such a tribunal, e.g. themisgivings expressed at the time of the Aberfan disaster.

� The role of the Attorney-General before a tribunal ofinquiry means that he may be put in the difficult position ofhaving to question his colleagues in the government. Hetherefore has to balance very carefully his role as therepresentative of the public interest seeking the truth, withhis loyalty to his ministerial colleagues.

Because of these difficulties there have been a number ofinstances where inquiries without statutory powers have beenused. A current example is the Scott Inquiry into the MatrixChurchill trial.

PARLIAMENTARY COMMISSIONERFOR ADMINISTRATION

So far, we have been considering legal remedies foradministrative errors. To obtain a legal remedy a breach of thelaw must be established. To provide a remedy where nobreach of the law may have taken place but where,nevertheless, there may have been administrative mistakes,delays or insensitivity, the Parliamentary Commissioner Act1967 established the office of Parliamentary Commissioner forAdministration, known as the Ombudsman.

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The position of the Commissioner as regards appointment,salary and removal is similar to that of High Court judges andthe Comptroller and Auditor-General. The purpose of theCommissioner is to supplement the existing political means forthe redress of grievances which result from administrativeaction or inaction. The Commissioner has a staff of sixty toassist him and he makes an annual report to Parliament andspecial reports when necessary.

The government departments subject to the Commissioner’sjurisdiction are listed in Schedule 2 to the Act. Schedule 3excludes from his jurisdiction certain types of activityundertaken by the departments and agencies listed in thesecond schedule, e.g. granting of honours, personnel mattersin the military and civil services, external relations, action byan Embassy or High Commission official overseas, theprerogative of mercy, conduct or commencement of civil orcriminal proceedings, contractual and commercial matters,action taken by nationalised industries, National Health Servicebodies, the police, or local government (see below).

The complaint ought to come to the Commissioner through anMP and must be a complaint of ‘injustice in consequence ofmaladministration’. Neither ‘injustice’ nor ‘maladministration’ isdefined in the Act. Initially the Commissioner confined himselfto the process of decision-making, but the Select Committee,which the House of Commons set up to consider his reports,encouraged him to regard a bad decision as evidence ofpossible maladministration in procedure so as to enable him toinvestigate. When investigating a complaint, theCommissioner’s staff is able to examine departmental files andtake written or oral evidence (which the MP cannot do). TheCommissioner reports on each complaint investigated to thecomplainant and the MP through whom the complaint cameand, if injustice caused by maladministration is established, theCommissioner may recommend financial compensation wherethis is appropriate. There is nothing to compel acquiescencewith his recommendations except the Commissioner’s moralauthority and the strength of parliamentary and publicopinion.

Many complaints must be rejected by the Commissionerbecause they are outside his jurisdiction, usually because thecomplaint does not concern administrative matters, orconcerns personnel matters in the civil service or armedforces, or concerns authorities which are not covered bySchedule 2 to the Parliamentary Commissioner Act.

On average, in about 40 per cent of the cases investigated,the complaint of maladministration is found to be fully justifiedand to be partly justified in another 20 per cent of cases.

Besides recommending compensation for individuals found tobe victims of injustice caused by maladministration, theCommissioner recommends changes in administrativeprocedures in order to improve administration generally andprevent a repetition of the maladministration. Every annualreport contains examples of such general recommendations.

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OTHER COMMISSIONERS FORADMINISTRATION

The Parliamentary Commissioner has established himself overthe years since the introduction of the office. The ombudsmanprinciple has been extended to authorities other thangovernment departments and new ombudsman offices havebeen created. The National Health Service Reorganisation Act1973 created two offices of Health Service Commissioner, onefor England and one for Wales with separate legislationproviding Scotland with its Health Service Commissioner. Thestatutory provisions are now to be found in the HealthServices Commissioner Act 1993 which consolidates earlierlegislation. The person who is Parliamentary Commissionercontrols the office of Health Service Commissioner in all threecountries. The Health Service Commissioner in each countrywill investigate complaints against regional and district hospitalauthorities and family practitioner committees that injustice hasbeen caused by maladministration or through failure toprovide care and attention (but the Commissioner cannotconcern himself with the particular medical treatment of apatient, or the exercise by a doctor of his clinical judgement).

The Commissioner for Complaints Act (Northern Ireland) 1969set up the office of Commissioner to investigate complaints ofinjustice caused by maladministration by public bodies in theprovince. Under the Act, a complainant has direct access tothe Commissioner whose decisions are enforceable in thecounty court. The complainant can apply for an injunction,damages, and other orders that may be appropriate.

The Prisons Ombudsman was appointed in 1994 to hearcomplaints on disciplinary proceedings. This post was notestablished by Act of Parliament.

An even less legalistic system of redressing wrongs is theCitizens Charter programme announced by the Government in1991. So far it has concentrated on providing publicinformation leaflets on a variety of public services.Responsibility for the programme lies with the Office of PublicService and Science. In his 1993 Report the ParliamentaryCommissioner announced that he was using the performancetargets of the Charter sets for public services to help him takeaccount of administrative failings.

A number of private sector Ombudsmen have recently beencreated in areas such as banking and insurance. These are notstate officials.

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Think Point 5

What extensions have been made to the ombudsmanprinciple?

CRITICISM OF THE OMBUDSMAN

In 1977 JUSTICE produced a report entitled ‘Our FetteredOmbudsman’, which criticised the existing system on severalgrounds:

� the narrowness of the concept of ‘maladministration’ – itshould be replaced by the term ‘unreasonable, unjust oroppressive’

� the MP-filter deters some complainants

� the preponderance of ex-civil servants in theCommissioner's staff was unhealthy

� there should be more use of the press and publicity

� the Commissioner’s jurisdiction should be extended – forexample to cover government contracts and thenationalised industries – and there have also beensuggestions that delegated legislation should be included

� the Commissioner should be able to suggest legislativereforms

� lack of effective enforcement.

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Other proposals for reform have been made, for example, byCarol Harlow who suggests that the ParliamentaryCommissioner should have power to investigate on his owninitiative. She is not in favour of direct access and stresses thatthe task should be to improve administrative decision-makingsystems rather than redress individual grievances.

OUTLINE CRITIQUE OFADMINISTRATIVE LAW

REPORTS AND STUDIES

The rapid growth of administrative law in the past decade hasprompted ongoing reviews of its efficacy. Important studiesare now listed.

� The Report of the JUSTICE/All Souls CommitteeAdministrative Justice: Some necessary reforms (OxfordUniversity Press, 1988)

� Woolf, Sir Harry Protection of the Public: The NewChallenge (Hamlyn Lectures, 1989)

� The Law Commission announced in July 1991 that it wassetting up a major inquiry into procedures for judicialreview: Law Commission Fifth Programme of Law Reform.Its proposals were published in October 1994.

PROCEDURAL REFORMS

Perhaps in no other area of law is procedure so important,and breach of it so fatal, to an application. Criticism hascentred on the following issues.

THE REQUIREMENT OF LEAVE

Defenders, including the Law Commission and Lord Woolf, callit a ‘safeguard for administrators’; opponents, who includeWade, call it a ‘constitutional outrage’. The JUSTICE – All SoulsReport considered that it was inequitable to discriminateagainst public law applications by the use of a leaverequirement.

THE PUBLIC/PRIVATE LAW DIVIDE

You will remember the issues arising out of the decision inO’REILLY v MACKMAN 1983 and the difficulties of applying thedistinction in practice. In a writ action, GILLICK v DHSS [1986]AC 112 (supply of contraceptives by GPs to under-age girls),Lord Templeman noted: ‘In the present case the proceedingsare not in form judicial review proceedings but at this stage thetechnicality can be ignored because the legal issues raised inthese proceedings cannot be allowed to remain unanswered’.

The Law Commission questions whether the exclusivityprinciple should be abolished, leaving litigants with the

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possibility of seeking injunctions and declarations againstpublic bodies by converting from Order 53 procedure to awrit action.

TIME LIMITS

We are referring here to the effect of the requirement to act‘promptly and in any event within three months’. The LawCommission would retain this.

RULES ON ‘STANDING’

Following the R v SECRETARY OF STATE FOR THE ENVIRONMENTEX PARTE ROSE THEATRE TRUST CO 1990, Lord Woolfrecommended that the office of Director of Civil Proceedingsbe created to take over the role of the Attorney-General inrelation to civil proceedings. The new Director would beresponsible for the development of the law generally andwould be able to refer cases to the Court of Appeal and theHouse of Lords to assist the public to have access to thecourts. The Law Commission approved the practice ofgranting standing to pressure groups and individuals acting inthe public interest.

OTHER PROPOSALS FOR REFORM

Other proposals for reform include:

� extension of availability of interim relief particularly in lightof the decision in R v SECRETARY OF STATE FOR TRANSPORTEX PARTE FACTORTAME LTD AND OTHERS 1989

� machinery to overcome difficulties of discovery andopportunities to cross-examine witnesses

� integration of the courts, tribunals and Commissioner by asystem of cross-referrals (Woolf)

� extending legal aid and reducing costs, including the optionof an entirely written procedure for applications for judicialreview.

REFORM OF GROUNDS

PROPORTIONALITY AS A FURTHERGROUND

This concept is of European origin and has been used as ageneral principle of law to interpret the provisions of theEuropean Convention on Human Rights. But, as Jowell andLester point out in Jowell and Oliver (1988):

‘In the absence of explicit guarantees of positive rights or acodified set of administrative law principles, English law hastraditionally preferred to deal in remedies rather than

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principles. Our judges have been reluctant to express basicnotions of fairness as fundamental principles of law.’

However, the authors do find examples of the use of theconcepts of proportionality in decided cases. Thus:

‘At the heart of both Congreve and Wheeler was the refusalof the court to countenance the achievement of a legitimateend (the raising of revenue in Congreve and the promotionof good race relations in Wheeler) by disproportionatemeans, punishing in each case where the individual haddone no legal wrong.’

Jowell and Lester, and other commentators, recommendproportionality as a more comprehensible and just conceptthan WEDNESBURY unreasonableness. On the other hand,such an approach is getting very close to judging the merits ofa decision.

CODIFICATION OF GROUNDS

This has been attempted by statute in Australia, and isrecommended by those, such as Griffith, who see the courtsas encroaching too often on what are deemed political issues.

AN ACKNOWLEDGEMENT OF THE DUTYTO GIVE REASONS FOR DECISIONS

In his Hamlyn Lecture, Sir Harry Woolf (as he then was) said:‘… if I were to be asked to identify the most beneficialimprovement which could be made to English administrativelaw I would unhesitatingly reply that it would be theintroduction of a general requirement that reasons shouldnormally be available for all administrative action.’

In R v CIVIL SERVICE APPEAL BOARD EX PARTE CUNNINGHAM[1991] IRLR 297, the Court of Appeal held that natural justicerequired that the Board give outline reasons sufficient toestablish whether its decisions were lawful. The House ofLords held in R v SECRETARY OF STATE FOR HOME DEPARTMENT,EX P DOODY (1993) 3 WLR 154 that procedural fairness mayrequire a duty to give reasons.

JUDICIAL TRAINING

Woolf has recommended training for judges involved in judicialreview, and that the courts do more to develop English law inline with that of the European Community. He also demandsthat principles of good administration be laid down.

CONCLUSION

In Lord Diplock’s view, progress towards a comprehensivesystem of review in administrative law is the greatestachievement of the courts in his judicial lifetime. There is,however, a great deal of disagreement over the ultimate formthat this review should take. The government has apparently

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been worried, and in fact produced a leaflet for governmentdepartments entitled ‘The Judge over your Shoulder’ warningcivil servants of the danger of laying ministers open tochallenge in the courts. It has been suggested that the reasonwhy the Education Reform Act (to cite one example) containsvery broadly drafted powers for the Secretary of State is toavoid legal challenge.

A major area of controversy is how far can the courts beprevented from reviewing administrative actions if the relevantStatute precludes it.

The doctrine of Parliamentary supremacy means that thecourts are limited in the extent to which they can controlexecutive action. Paradoxically then, it is for Parliament toprotect the courts’ role by ensuring that ‘ouster’ clauses arelimited. The courts have, in ANISMINIC LTD v FOREIGN forexample, shown how they will find a way out of the apparentimpasse of an attempt to preclude review, but this approachwas refined in R v SECRETARY OF STATE FOR THE ENVIRONMENTEX PARTE OSTLER [1977] QB 122 where the setting of a six-weeklimit in which review was allowed moved the court to refusean application which was out of time.

It is the uncertainty about the principles upon which review isbased that increases political criticism of the judiciary. Calls forthe judges to take a more interventionist position are made bythose who see the powers of central government,unrestrained by a written constitution, as omnipotent.Furthermore, the convention of ministerial responsibility oftenflounders when faced with the huge scope for public officialsto abuse their power.

The debate on judicial review is closely allied to that on thecodification of rights. At the time of the nadir of judicialsubservience to the executive in LIVERSIDGE v ANDERSON, thedissenting judge, Lord Atkin opined: ‘Bacon, I think, once saidthe judges were lions under the throne, but the House ofLords has reduced us to mice squeaking under a chair’.

For the potential impact of the Human Rights Act on judicialreview see Chapter 16.

Revision

When you have revised the chapter and done theadditional reading, you should attempt the Self-assessment Test which follows. You should not sendyour answer to your tutor but compare it with thespecimen answer provided. You should attemptAssignment C after this chapter. Send your answers toyour tutor. You will receive specimen answers withyour marked script.

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ADDITIONAL READING

Bradley and Ewing, Chapters 27 and 28

Jowell, J. and Oliver, D. (eds), New Directions in JudicialReview (Stevens, 1988), Chapters 2, 3, 5

CASES REFERRED TO IN THISCHAPTERR v SECRETARY OF STATE FOR ENVIRONMENT EX P LANCASHIREAND DERBY CCs

ATTORNEY-GENERAL v WINTON 1906

ROBERTS v HOPWOOD

LLOYD v McMAHON 1987

R v SECRETARY OF STATE FOR ENVIRONMENT EX PNOTTINGHAMSHIRE CC 1986

BROMLEY v GLC 1983

HAMMERSMITH AND FULHAM v SECRETARY OF STATE FORENVIRONMENT 1990

R v COMMISSIONER FOR LOCAL ADMINISTRATION EX PARTEEASTLEIGH BOROUGH COUNCIL 1988

BATES v LORD HAILSHAM OF ST MARYLEBONE 1982

R v SHEER METALCRAFT 1954

ATTORNEY-GENERAL v WILTS UNITED DAIRIES 1921

O’REILLY v MACKMAN 1983

GILLICK v DEPARTMENT OF HEALTH AND SOCIAL SECURITY 1986

R v SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTE ROSETHEATRE TRUST CO 1990

R v SECRETARY OF STATE FOR TRANSPORT EX PARTEFACTORTAME LTD AND OTHERS 1989

R v CIVIL SERVICE APPEAL BOARD EX PARTE CUNNINGHAM 1991

R v SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTEOSTLER 1977

ANISMINIC LTD v FOREIGN COMPENSATION COMMISSION 1969

LIVERSIDGE v ANDERSON 1942

R v SECRETARY OF STATE FOR HOME DEPARTMENT, EX P DOODY1993

Self-assessment Test



SELF-ASSESSMENT TEST

QUESTION 1

‘The powers and duties of local government have beeneroded of late, showing the weakness of the constitutionalposition.’

Discuss.

QUESTION 2

What are the justifications for delegated legislation?



SPECIMEN ANSWERS TO SELF-ASSESSMENT TEST

QUESTION 1

The system of local government developed during thenineteenth century and steadily grew until the 1970s. Sincethen, the autonomy of local authorities has been whittledaway.

The structure of local authorities set up by the LocalGovernment Act 1972 was perhaps the high point of localgovernment. Most important was the establishment of themetropolitan authorities with a strategic role for eachmetropolitan region. The model, the Greater London Council,with its subordinate and yet powerful second-tier boroughcouncils, had actually been set up earlier, in 1967. The countycouncils remained, but instead of the mixture of the boroughs,urban districts and rural districts, a system of larger districtcouncils was set up as the second-tier authorities. It wasperhaps the activities of these new authorities, with theirpropensity to borrow for large-scale capital projects includinggrand new offices for themselves, which led to centralgovernment wishing to cut down their autonomy in the1980s.

By the Local Government Act of 1985 the GLC and the othermetropolitan authorities were abolished and the second-tiercouncils took over. This meant that there was no localauthority to take a look at the needs of each metropolitan areaas a whole. Local government was divided and weakened. Thesystem of county councils and district councils remained but,in 1992, the Local Government Commission was set up toreview the structure of local government with specificinstructions to favour the establishment of unitary authoritiesbased on the metropolitan area pattern.

However, in the midst of the deliberations of the LocalGovernment Commission came the courts’ decision in R vSECRETARY OF STATE FOR THE ENVIRONMENT EX PARTELANCASHIRE AND DERBYSHIRE CCs that the Government’sguidance to the Local Government Commission favouringunitary authorities was ultra vires. In the event, the proposalswhich have now gone to the Government from the LGC arefar from radical with unitary authorities only proposed forareas where they are likely to be uncontroversial. So theprocess of weakening local government by structure has beentemporarily halted, if not reversed. The reopening of thedebate on devolution for Scotland and Wales may provoke areawakening of interest in local government for England.

The functions of local government have been transformed innature so that local authorities have changed from beingproviders of services to being purchasers of services. Firstcame the ‘right to buy’ policy which diminished the stock oflocal authority housing and thus local authority discretionover the allocation of homes. The Government then said thatlocal authority housing estates could become self-governing



taking them away from direct local authority management.Then the Government withheld capital and borrowing capacityfrom local authorities so that they could not build councilhousing. Instead, housing associations were given grants tobuild and manage housing. Local authorities were not evenallowed to use the proceeds of sale of council homes. Thenthe Government said that schools could opt out of localauthority council thus diminishing the role of local educationauthorities. Changes to the structure and financing ofpolytechnic and further education colleges have made furtherinroads into local education authorities’ powers. Finally, thepolicy that local authorities should contract out services, fromstreet cleaning, through rubbish collection and roadmaintenance, to legal services, has further diminished the size,scope and influence of local authorities. The Governmentgives guidance on how local authorities should carry out theirfunctions by statute, by circulars and by inspections.

Most significant of all have been the changes in the waygovernment controls local government finance. In the 1970slocal government finance was widely regarded as being out ofcontrol as local authorities could raise money in the financialmarkets to finance capital projects. They also had discretionover the levels of domestic and business rates. The onlycontrol the government exercised was over the level of ratesupport grant which was and is now about 56 per cent oflocal authority expenditure. The result was that theGovernment could not control the money supply and thencethe rate of inflation. Rate-capping was the first measure tostrike at the heart of local government autonomy. Theintroduction of the Community Charge was matched by settingup a Uniform Business Rate so that the level of local taxes oncommercial property was set by central government. TheCommunity Charge has been replaced by the Council Taxwhich is locally determined by accounts for less than 20 percent of local authority revenue. Even then, the Governmentcan limit the level of council tax if it considers that it is toohigh. As far as borrowing is concerned there is now strictcontrol over the level of borrowing by local authorities inorder to bring borrowing by local authorities within the targetsfor overall public sector borrowing. There is also power forthe Government to cap local authority spending levels. Thus,the local authorities operate on tramlines as far as spending isconcerned.

The means of auditing local government spending was alsoreformed in the Local Government Finance Act 1982 whichset up the Audit Commission which appoints the districtauditors to audit local authority accounts and carry out specialaudits. The recent enquiry into Westminster City Council is anexample of the Audit Commission’s special enquiries.

The courts may also be involved in the way in which localauthorities carry out their functions. In BROMLEY LB v GLC theGLC’s ‘fares fair’ policy was ruled ultra vires. Most recently, inR v SOMERSET EX PARTE FEWINGS AND OTHERS the localauthority’s decision to ban staghunting was ruled ultra vireson the grounds that it was outwith its statutory powers.

Changes in the structure, functions and financing of localauthorities have all conspired to weaken their influence. But it



may be too soon to write off local government. First, the LocalGovernment Commission has not recommended the wholesaleintroduction of unitary authorities and, secondly, the currentchanges implementing devolution have the effect ofreawakening interest in local government in England.

QUESTION 2

By delegated legislation is meant legislation which is made by abody other than Parliament under the authority of an Act ofParliament. Parliament has delegated its law-making powers.The most important recipients of such delegated legislativepowers are Ministers of the Crown, who may be given thepower to make regulations having the force of law, and theQueen in Council who may be given the power to makeOrders in Council having the force of law. Such regulationsand orders will be known as statutory instruments and willgenerally be subject to the provisions of the StatutoryInstruments Act 1946 unless the enabling, or parent, Actprovides otherwise. Other delegates may be local authorities,with power to make bye-laws; the Rules Committees of theHigh Court and the County Courts with power to make theprocedural rules for those courts; the Church of England, withpower to make measures for the government of the Church;and public corporations which may also have the power tomake bye-laws. Parliament may also confer legislative effectupon a resolution of the House of Commons alone as in thecase of the Budget resolutions.

Delegated legislation is necessary because the rules andregulations made by the delegates are of a very detailed andtechnical nature. The Act of Parliament will contain the generalprinciples and a minister may then be given power to completethe details by making the necessary provisions through astatutory instrument. Parliament does not have the time, orusually the interest, to wish to examine these details. Thebuilding regulations, made under the authority of the PublicHealth Act 1961, are a good example of this. Further, agovernment frequently wishes to possess legal powers to dealwith future developments which, although anticipated, cannotbe precisely catered for in the statute. A new product may beintroduced, or a change in manufacturing technique occur,which requires an adjustment of legal rules. Rather than haveto go to the lengths of steering a new Act through Parliament,a minister will wish to be able to react as quickly as isnecessary by using the powers delegated to him in an Act ofParliament.

Delegated legislation is used to deal with emergencies. TheEmergency Powers (Defence) Acts 1939 and 1940 conferredenormous powers upon ministers to deal with the war-timeemergency. These statutes have lapsed, but the EmergencyPowers Act 1920 is still on the statute book and can beactivated by the government to give itself wide powers ofdealing with a peace-time emergency such as a threat to thesupply of the essentials of life. These peace-time emergencypowers, though wide, are far more restricted than their war-time equivalents.



Bye-laws have the advantage of allowing a local authority tomake laws for the good rule and order of its area and so canbe related to the nature of the particular area.

Lastly, there is the all-important advantage of the administrativeconvenience of delegated legislation. An Act may receive theRoyal Assent but its immediate implementation may beimpossible or undesirable. A power may therefore be given inthe Act to allow a minister to choose the most convenient timefor bringing the remainder of the Act into effect. A governmentmay wish to have stand-by powers, hoping perhaps not tohave to use them but having the means of implementing theAct and activating the powers when necessary. Otherlegislation may be restricted in its effect to a period of one yearbut may be continued from year to year by statutoryinstrument. Occasionally a minister is given power to amendother Acts of Parliament by statutory instrument or evenpower to amend the enabling Act itself by statutoryinstrument, thereby saving himself the need to introduce anew amending bill.

Copyright © Semple Piggot Rochez Ltd, 2002(09/02)


CHAPTER 12

INTERNATIONAL CONVENTIONS

CONTENTS

General Introduction to Civil Liberties........................................ 1

The European Convention for the Protection ofHuman Rights and Fundamental Freedoms .......................... 1

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INTERNATIONAL CONVENTIONS

GENERAL INTRODUCTION TOCIVIL LIBERTIES

The next five chapters will be concerned with selected aspectsof civil liberties. Since the enactment of the Human Rights Act1998, which entered into force on 2 October 2000, civilliberties have become the most exciting and fast-paced area ofpublic law in the United Kingdom. Every week brings a newcase exploring some aspect of human rights and it is importantto try to keep up to date with the case law coming from thecourts.

As will be seen, the 1998 Act gave further effect in the UnitedKingdom to the European Convention on Human Rights. It isnot correct to say that the Act “implemented” or“incorporated” the Convention, since the rights guaranteed inthe Convention only have that effect in English law which theAct gives them. In other words, the terms of the Act have tobe the starting point of any discussion of the meaning andeffect of the Convention rights in this country. But there canbe no doubt that the Act, together with the Convention rightsit guarantees, amount to a Bill of Rights for the UK. The longdebate about whether or not to “incorporate” the Conventioninto domestic law, and what the pros and cons of doing sowould be, mean that the decision finally to do so was of thegreatest constitutional significance.

Of course, the Act and the Convention rights do not exhaustthe subject of civil liberties. Important human rights are alsosafeguarded by other statutes, such as the Data ProtectionAct 1998 and the Freedom of Information Act 2000, and alsoby EU law and by the common law. Indeed, the traditionalapproach of the common law, namely, that everything ispermitted which is not expressly prohibited, sometimesreferred to as “negative liberty”, remains a corner stone of theBritish constitution. If the government wish to limit a person’sliberty, they must find express powers authorising them to doso. For an example of this principle see R v SECRETARY OFSTATE FOR THE HOME DEPARTMENT, EX PARTE PIERSON [1998]AC 539. The great contribution of the Human Rights Act 1998is that it supplements this approach, by allowing the courts tomeasure the standards of the common law and statute by thehigher norms of the Convention rights.

It is impossible to study this area without having someappreciation of the political context in which the law is applied.Of course we are here studying law not political philosophy.You will, however, find that all writers on this subject makepolitical assumptions about what direction the law ought totake. It is important that you question these assumptions andconsider whether you share them. The law is applied generally

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on the basis that respect for individual liberty, the hallmark ofthe liberal democracies, is a universal good. But its applicationinvolves difficult choices about the need to balance this withother objectives such as the respect for the properties ofothers. In each of the areas we are examining you will have toconsider whether in your opinion the law has achieved anappropriate balance.

THE EUROPEAN CONVENTIONFOR THE PROTECTION OFHUMAN RIGHTS ANDFUNDAMENTAL FREEDOMS

The Council of Europe drew up this Convention in 1950. TheUnited Kingdom ratified the Convention in 1951 and, since1966, has allowed individuals to petition the EuropeanCommission on Human Rights in Strasbourg. This means thatan individual may petition the Commission claiming to be thevictim of a violation in the United Kingdom of the rights setforth in the Convention. The United Kingdom had, in theConvention, agreed to accept the final decisions of theCommittee of Ministers or the Court of Human Rights asbinding upon it. Further, the United Kingdom is obliged by Art13 to provide an effective remedy before a national authorityfor everyone whose rights and freedoms have been violated.By Art 13 the United Kingdom is committed in international lawto bringing it about that the substantive provisions of theConvention are made part of its law.

The significance of this is that United Kingdom legislation (andcommon law) may be examined by an independent andimpartial international body to determine whether it isconsistent with the treaty obligations accepted by the UnitedKingdom.

An adverse decision in Strasbourg does not itself strike downa United Kingdom statute, but there will be an internationalobligation upon the United Kingdom government to changethe law so that it is consistent with the provisions of theConvention.

The Articles of the Convention cover the following matters:

Article 1: Contracting parties to secure for everyone withintheir jurisdiction the rights and freedoms defined inthe Convention.

Article 2: Right to life.

Article 3: No-one to be subject to torture or to inhuman ordegrading treatment or punishment.

Article 4: Concerning slavery.

Article 5: Right to liberty and security of person.

Article 6: Right to fair and public hearing of criminal charge.

Article 7: On retrospective criminal legislation.

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Article 8: Right to respect for private and family life, homeand correspondence.

Article 9: Right to freedom of thought, conscience andreligion.

Article 10: Right to freedom of expression.

Article 11: Right to freedom of peaceful assembly andassociation.

Article 12: Right to marry and found a family.

Article 13: Right to effective remedy for violation of rights.

Article 14: Enjoyment of rights free from discrimination.

Article 15: Right of states to derogate from obligations in timeof war or public emergency. No derogation fromArt 2 except in respect of deaths resulting fromlawful acts of war or from Arts 3, 4 and 7.

Article 16: Restriction on the political activity of aliens.

Article 17: Prevents a person relying on a Convention rightwhere his or her ultimate aim is the destruction orlimitation of Convention rights.

The Convention has long been used as a guide to statutoryinterpretation. In WADDINGTON v MIAH [1974] 2 All ER 377 LordReid quoted Art 7 of the Convention, which prohibitsretrospective criminal legislation, and went on to say: ‘So it ishardly credible that any government department wouldpromote or that Parliament would pass retrospective criminallegislation’.

The need to take the Convention into account wasemphasised strongly by the Court of Appeal in DERBYSHIRECOUNTY COUNCIL v TIMES NEWSPAPERS LTD (1992) 3 WLR 28when it ruled that a county council could not sue for libel.Butler-Sloss LJ said that ‘where there is an ambiguity, or thelaw is otherwise unclear or so far undeclared by an appellatecourt the English court is not only entitled but … obliged toconsider the implications of Art 10’. The House of Lordshowever considered that in this particular instance thecommon law could determine the issues in favour of freedomof speech and that recourse to the Convention was notnecessary.

The United Kingdom courts have shown increasing willingnessto cite the Convention in cases involving human rights. Thusin R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ANDANOTHER EX PARTE NORNEY AND OTHERS (1995) The Times, 6October , the declaration was granted that the decision of theHome Secretary not to refer the cases of the applicants, IRAlife sentence prisoners, to the Parole Board until after theexpiry of the tariff period of the sentences flouted theprinciples of the common law and Art 5(4) of the EuropeanConvention on Human Rights. The Home Secretary shouldhave referred the applicants’ cases to the Parole Board at sucha time as would have ensured as far as possible that theywould be heard immediately after expiry of the tariff period. A

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broad approach to natural justice was adopted by the PrivyCouncil in GUERRA v BAPTISTE (1995) The Times Law Report, 8November when it held that delay in passing sentence ofexecution in the Republic of Trinidad and Tobago was aviolation of fundamental rights. There had been a delay ofnearly five years between sentence and the time it was to becarried out. Here the Convention was not cited but it isarguable that in cases such as this United Kingdom judgeshave given an indication how they might operate if theEuropean Convention was incorporated. However, althoughin R v SECRETARY OF STATE FOR DEFENCE EX PARTE SMITH ANDOTHERS (1995) The Times, Law Report 6 November the Master ofthe Rolls indicated that where human rights were at issue thecourts might be more willing to declare in judicial review casesthat the threshold of irrationality had been breached, theCourt of Appeal showed it was unwilling to put thatconsideration before public policy. Thus the ban onhomosexuals in the armed forces did not violate WEDNESBURYprinciples of irrationality.

It is important to note that in terms of the Convention, in orderfor a complaint to be brought to the Court of Human Rights inStrasbourg, individuals must satisfy a number of criteria:

� they must have exhausted all national remedies

� they must bring the action within six months

� it must concern a breach by the state or public body

and

� it must be an arguable breach of one of the Articles of theConvention and its Protocols.

Since November 1998, Protocol 11 to the EuropeanConvention has been effective. This protocol introduces aradical change to the procedure for enforcing the Convention,abolishes the Commission and puts in place a full-timepermanent Court of Human Rights which itself decideswhether or not the complaint is admissible. Also, the right toapply to the new Court is now mandatory in the sense that allstates ratifying the Convention must accept the jurisdiction ofthe Court and the right of individuals to make a complaint to it.

More than 60 cases involving the United Kingdom and Islandshave to date been determined by the Court of Human Rightsin Strasbourg. The procedure before the Strasbourg court isgoverned by the Convention, the procedural aspects of whichwere radically amended by Protocol 11 to the Convention (inforce since 1/11/1998). Before this Protocol, the supervisionand enforcement of the Convention lay in the hands of twobodies, the European Commission on Human Rights and theEuropean Court of Human Rights, both located in Strasbourg.Protocol 11 abolishes the Commission and creates apermanent court, which is exclusively responsible forinterpreting and applying the Convention rights.

The Convention now requires all members of the Council ofEurope to ratify the Convention and accept the jurisdiction ofthe Court of Human Rights, including the right of individuals topetition the Court complaining about human rights violations.A complaint to the court basically involves two stages, known

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as an admissibility and merits stage. At the admissibility stage,it must be shown that the Court has jurisdiction over thecomplaint. For example, it is necessary to establish that alldomestic remedies have been exhausted, that the complaint isagainst a Council of Europe state and that the person bringingthe complaint is a victim of a violation of human rights. If acomplaint is found to be admissible, the Court will thenconsider the merits of the case and decide whether theviolation of Convention rights is made out.

When dealing with an application, the Court normally consistsof chambers of three judges for ruling on admissibility mattersand of seven judges when disposing of the merits of acomplaint. One of the judges will be the judge nominated bythe state against which the complaint has been made. If eitherthe complainant or the state wishes to appeal the final decisionof a chamber, provision is made for an appeal to be heard bya “Grand Chamber” of the Court, consisting of 17 judges.

Early cases involving the United Kingdom included mattersarising out of the Obscene Publications Acts, contempt ofcourt, birching in the Isle of Man, the Prison Rules – whichprevented a prisoner communicating with a person outside inconnection with legal or other business without officialpermission – techniques of interrogation used by the securityforces in Northern Ireland, the closed shop in British Rail,corporal punishment in Scottish schools, the Northern Irelandlaws prohibiting homosexual activities between males,detention in Broadmoor Hospital, telephone tapping, and thedifferent treatment of the sexes in the Immigration Rules.

Think Point 1

Read DERBYSHIRE CC v TIMES NEWSPAPERS LTD ANDOTHERS [1993]. Does it convince you that the commonlaw adequately protects human rights?

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Some of the landmark cases involving the UK are thefollowing:

� SUNDAY TIMES v UNITED KINGDOM E Ct HRR A 30 (1979):the injunction issued by the House of Lords in 1972 torestrain the publication of an article on the thalidomidecase in The Sunday Times was held by the Court of HumanRights to be a breach of Art 10 of the Convention whichguarantees freedom of expression, subject toqualifications. One of those qualifications, in Art 19(2), isthe necessity of maintaining the authority of the judiciary.In the particular circumstances of this case the injunctionissued had not been, in the opinion of the Court of HumanRights, ‘necessary’ to maintain the authority of thejudiciary. The court did not consider what the petitionersargued was the generality and lack of precision of the lawof contempt as a whole.

As a result of this case the Contempt of Court Act 1981was passed, making changes to the law of contempt ofcourt.

� MALONE v UNITED KINGDOM 7 EHRR 14 (1985): the Court ofHuman Rights held that the law in the United Kingdom did notindicate with sufficient clarity the scope and manner of exerciseof the discretionary power of the government to authorise theinterception of communication (e.g. telephone tapping). Nor didit indicate the minimum degree of legal protection against abusewhich individual citizens were entitled to expect under the ruleof law. The right to respect for private life, home andcorrespondence guaranteed by Art 8 had been violated.

As a result of this case the Interception of CommunicationsAct 1985 was passed, making clear the legal authority onwhich interception of communications is based. Both thesestatutes will be examined later in the course.

In BROGAN v UK [1988] The Times, 30 November, the court heldthat Art 5(3) of the Convention on Human Rights had beenviolated by detention under the Prevention of Terrorism Act1984 for seven days. Art 5(3) required suspects to be broughtpromptly before a judge or other judicial officer. Four days’detention was the limit permitted under the Convention.

The decision does not in itself invalidate the Prevention ofTerrorism Act or make its continued application illegal in theUnited Kingdom. But, in international law, there is anobligation on the government in international law either tochange the law in the United Kingdom or to seekderogation from these provisions of the Convention underArt 15 on the ground of a grave public emergency i.e. thespecial problems caused by terrorism in the UnitedKingdom. The latter position was recently adopted.

� The SPYCATCHER litigation in the UK resulted in a decisionby the Court of Human Rights in Strasbourg (see SUNDAYTIMES v UNITED KINGDOM [1991] The Times, 27 November.

It decided that there was no breach of Art 10 (freedom ofexpression) by the government imposing injunctions on

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the press to prevent publication of extracts of the book onthe grounds of breach of confidence. However, once thebook was in the public domain having been publishedabroad and freely available in the UK it was from that timeonwards a breach of Art 10 to continue the injunctions.

� The case of R v SECRETARY OF STATE FOR THE HOME OFFICEEX PARTE BRIND [1991] 2 WLR 588 concerning the banning ofthe IRA from the broadcast media by the Home Secretaryshould be noted. The House of Lords upheld the ban andrefused to consider the ECHR because, as noted earlier,the Convention was not part of the UK law. TheCommission itself decided the applicant’s case wasinadmissible under Art 10 as such constraint was‘necessary in a democratic society’.

In McCANN v UNITED KINGDOM [1995] The Times, October 9 theCourt considered an application from the parents of three IRAterrorists killed in a military operation aimed at preventing abomb attack in Gibraltar. The application claimed the killingsconstituted a violation of Art 2 of the European Convention onHuman Rights which protects the right to life. The complaintwas upheld by a majority of 10 to nine. The Court held thatArt 2 was a fundamental provision which required strictinterpretation when considering whether the force used in thedefence of persons from unlawful violence was more thanabsolutely necessary. The United Kingdom authorities hadmade an incomplete hypothesis that there was a suspect carbomb, but had conveyed this as a positive identification to thesoldiers involved in the anti-terrorist operation who believedshooting was necessary to prevent detonation of the bomb.Although there was no premeditated plan to kill the suspectsthere had been a breach of Art 2 of the Convention as theauthorities had shown lack of appropriate care and control incarrying out the operation by instructing the soldiers to act ontheir intelligence assessments which failed to account for apossible margin of error and which were in the eventerroneous.

In JOHN MURRAY v UK (Case No. 41/1994/488/570) [1996] TheTimes, 6 February the ECHR determined that the right to remainsilent under police questioning and the privilege against self-incrimination were generally recognised international standardswhich lay at the heart of the notion of fair procedure. Butthese immunities were not absolutes and the presumption ofinnocence had not been infringed by the drawing of inferencesfrom the defendant’s silence. The Court however, determinedon the facts that denial of access to legal advice for 48 hoursdid infringe Art 6 of the European Convention of HumanRights.

In HALFORD v UNITED KINGDOM [1997] The Times, 3 July, theCourt held the Merseyside Police Authority had violatedArticles 8 and 13 in intercepting the telephone calls of anassistant chief constable.

In LUSTIG-PREAN v UK (2000) 29 EHRR 548, the Court held thatthe UK government’s policy of excluding homosexuals fromthe armed forces constituted a violation of Article 8 of theConvention (right to privacy). In effect, this amounted to

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overruling the Court of Appeal’s decision in SMITH v MINISTRYOF DEFENCE [1996] QB 517. The Court was also doubtful ifjudicial review on the ground of irrationality was a sufficientremedy for the complainants.

In OSMAN v UK (2000) 29 EHRR 245, the Court held that theprocedural device of striking out an action could amount to aviolation of Article 6 of the Convention. In effect the casechallenged the immunity of the police from liability fornegligence, decided in HILL v CHIEF CONSTABLE OF WESTYORKSHIRE [1988] 2 WLR 1049. This decision has proved to bevery controversial in England: see Lord Hoffmann, “HumanRights and the House of Lords”, (1999) 62 MLR 159.Arguably, the Court has retreated from Osman in the morerecent case of Z v UK (2002) 34 EHRR 97.

In V & T v UK (2000) 30 EHRR 121, arising out of the trials of thechild murderers of the baby James Bulger in 1993, the Courtheld that the English procedure for trying very youngdefendants charged with serious crimes did not meet severalrights guaranteed by Article 5 of the Convention.

In HATTON v UK (2002) 34 EHRR 1, the Court decided that thegovernment’s authorisation of night flights from London’sHeathrow airport constituted a violation of local home owners’Convention rights to privacy and property. Interestingly, theUK government decided to appeal this decision to a GrandChamber of the Court and the appeal decision is awaited.

In PRETTY v UK, Application No 2346/02, decision of April 29th2002, the complainant lost her complaint that her rights to lifeand privacy were violated by English law’s prohibition onassisted suicide. But the Court, unlike the UK’s House ofLords, accepted that the right to privacy was relevant to theclaim.

Think Point 2

(i) List any statutes passed in the last year which youthink have increased protection for human rightsin the United Kingdom.

(ii) List any statutes passed in the last year which youthink have lessened protection for human rights inthe past year.

In most of the cases involving the United Kingdom before theCourt of Human Rights the law (or practice, as in theinterrogation, birching and corporal punishment cases) hasbeen adjusted in accordance with the United Kingdomgovernment’s obligations under the Convention.

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CONCLUSION ON ECHRIt is perhaps of interest to note that the UK has (arguably) theworst record for the number of complaints upheld forbreaches of the Convention.

It is also important to note that, as we saw when looking at EClaw, the ECJ has indicated a number of times that it regards theConvention as a source of guidance in its development of thegeneral principles of law, and will always seek to interpret EClaw in accordance with the Convention. This principle hasbeen put on a firmer legal basis by the Treaty on EuropeanUnion. It is clear therefore that the impact of the ECHR willgrow and could be said to be increasingly a part of UK lawthrough the influence of the UK’s Community membership.

In an Opinion of the European Court of Justice (Opinion 2/94)issued under Art 228(b) (now Art 300) of the EC Treaty theCourt considered the following question from the Council ofthe European Union: ‘Would the accession of the EuropeanCommunity to the Convention for the Protection of HumanRights and Fundamental Freedoms of 4 November (hereinafter“the Convention”) be compatible with the Treaty establishingthe European Community?’

The Court considered that accession by the Community to theConvention presented two main problems:

� the competence of the Community to conclude such anagreement, and

� its compatibility with the provisions of the Treaty, inparticular those relating to the jurisdiction of the Court.

With regard to the first question, the Court noted that noTreaty provision confers on the Community institutions anygeneral power to enact rules on human rights or to concludeinternational conventions in the field. It also noted that theimportance of respect for human rights was emphasised invarious declarations of the Member States and of Communityinstitutions. Reference is also made to respect for human rightsin the preamble to the Single European Act and in the preambleto and in Articles of the Treaty on European Union.

It was well settled that fundamental rights form an integral partof the general principles of law whose observance the Courtensures. Respect for human rights is therefore a condition ofthe lawfulness of Community acts. Accession to theConvention would, however, entail a substantial change in thepresent Community system for the protection of human rightsin that it would entail the entry of the Community into adistinct international institutional system as well as integrationof all the provisions of the Convention into the Communitylegal order. Such a modification of the system for theprotection of human rights in the Community, with equallyfundamental institutional implications for the Community andfor member States, would be of constitutional significance andwould therefore be such as to go beyond the scope of Art235 (now Art 308). That provision provides that ‘if any actionby the Community should prove necessary to attain, in thecourse of the operation of the common market, one of the

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objectives of the community and the Treaty has not providedthe necessary powers, the Council shall, acting unanimouslyon a proposal from the Commission and after consulting theEuropean Parliament, take the appropriate measures. But thatprovision could not serve as a basis for widening the scope ofCommunity powers beyond the general framework created bythe provisions of the Treaty as a whole and in particular bythose that define the tasks and activities of the Community.The necessary modification to allow accession to theConvention could be brought about only by way of Treatyamendment. As Community law now stands, the Community,in the opinion of the Court, has no competence to accede tothe European Convention for the Protection of Human Rightsand Fundamental Freedoms.’

On the question of whether accession by the Community tothe Convention would be compatible with the rules of theTreaty the Court did not consider it had sufficient informationregarding the arrangements by which the Communityenvisaged submitting to the present and future judicial controlmachinery established by the Convention.

CONSIDERATION

Consideration of the efficacy of the Convention is closelyrelated to the discussion on a Bill of Rights. Debate hascentred on the following issues:

� The Convention is concerned with individual civil rightsrather than economic and social rights. Sedley LJ hasreferred to its basis in nineteenth-century concepts whichare not appropriate to the modern world.

� The process of invoking the Convention is expensive andlengthy.

� Incorporation of the Convention into UK law would raisethe dilemma of entrenchment as a threat to parliamentarysupremacy.

Many of these issues have now been resolved by theenactment of the Human Rights Act 1998 (see Chapter 13).

SOCIAL AND ECONOMIC RIGHTSIN INTERNATIONAL LAW

The preamble to the Charter of the United Nations refers tothe determination of the member states to promote socialprogress and better standards of life and in order to achievethis to employ international machinery for the promotion ofthe economic and social advancement of all peoples. The mostimportant of the specialist agencies carrying out this work isthe International Labour Organisation (ILO). This originated in1919 and its mission is to advance social justice on the basisthat ‘universal and lasting peace can only be established if it isbased upon social justice’. In 1944 the ILO GeneralConference adopted a Declaration of Aims and Purposes. Itstenets include the following:

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� Labour is not to be regarded as a commodity.

� All human beings have the right to pursue both materialwell-being and spiritual development in conditions offreedom and dignity, economic security and equalopportunity without discrimination on grounds of race,creed or sex.

� Programmes should be implemented to achieve (inter alia)full employment, rising standards of living, a minimumliving wage, recognition of the rights of free collectivebargaining, provision of adequate nutrition, housing andfacilities for recreation and culture.

To carry out its functions, the ILO has adopted a number ofConventions including those on:

� collective bargaining

� rights of workers and employers to establishorganisations,

� equal remuneration for work of equal value withoutdiscrimination on grounds of sex.

The United Kingdom has been found to be in violation ofthese Conventions on a number of occasions including thedenial of union membership to workers at the GovernmentCommunications Headquarters (GCHQ).

The Council of Europe and the European Community havepursued similar activity to the ILO. In 1961 the member statesof the Council of Europe signed the European Social Charterwhich came into force in 1965. This includes a list of rightssimilar to that proclaimed by the ILO. There is however noenforcement procedure similar to that under the EuropeanConvention on Human Rights. The Charter like the ILOConventions imposes obligations on the state which take effectin international law but does not confer enforceable rights onindividuals.

Alongside these developments the Social Chapter of the Treatyof Rome was expanded by an Agreement between eleven ofthe twelve member states (the twelfth being the UnitedKingdom) as part of the Final Act at the Maastricht Conferencein 1991. This empowers the EC Council of Ministers to adoptDirectives to advance the objectives of dialogue betweenmanagement and labour, high employment and improved livingand working conditions. The EC Social Chapter does notextend to all the rights covered by the Council of Europe’sEuropean Social Charter.

After the Treaty of Amsterdam in 1997, the UK adhered to theSocial Chapter of the EC Treaty in full and abandoned its optout.

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Think Point 3

What arguments did the United Kingdom Governmentadvance to explain why it did not sign the EuropeanSocial Chapter?

Revision

When you have revised the chapter and done theadditional reading, you should attempt the Self-assessment Test which follows. Do not send youranswers to your tutor, but compare them with thespecimen answers provided.

ADDITIONAL READING

Bradley and Ewing, Chapter 19

Marston and Ward, Chapters 6, 7

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CASES REFERRED TO IN THISCHAPTERWADDINGTON v MIAH 1974

R v SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTENORNEY AND OTHERS 1995

GUERRA v BAPTISTE 1995

R v SECRETARY OF STATE FOR DEFENCE EX PARTE SMITH ANDOTHERS 1995

DERBYSHIRE CC v TIMES NEWSPAPERS LTD AND OTHERS 1992

SUNDAY TIMES v UK 1979

MALONE v UK 1985

BROGAN v UK 1988

SUNDAY TIMES v UK 1991

R v SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTEBRIND 1991

McCANN v UK 1995

JOHN MURRAY v UK 1996

HALFORD v UK 1997

R v SECRETARY OF STATE FOR THE HOPE DEPARTMENT, EX PPIERSON [1998] AC 539

LUSTIG-PREAN v UK (2000) 29 EHRR 548

OSMAN v UK (2000) 29 EHRR 245

HILL v CHIEF CONSTABLE OF WEST YORKSHIRE [1988] 2 WLR 1049

Z v UK (2002) 34 EHRR 97

V&T v UK (2000) 30 EHRR 121

HATTON v UK (2002) 34 EHRR 1

PRETTY v UK APPLICATION NO 2346/02





QUESTION

What was the significance of the European Convention onHuman Rights in English law before the Human Rights Act1998?



SPECIMEN ANSWER TO SELF-ASSESSMENT TEST

First, give a brief outline of:

� the history of the Convention itself

� the procedure that must be followed to bring a case beforethe Court in Strasbourg

� criticisms of the above.

You should then point out that, although the ECHR has beenratified by the UK, it had not been enacted by the UKParliament and so the Convention was not formally a part ofUK law. However, the Human Rights Act 1998 has the effectof making the Convention a principle of statutoryinterpretation.

Next explain the implications of this: that it can’t be useddirectly in the UK courts – a point which had been re-affirmedin EX PARTE BRIND (1990).

Go on to point out the positive aspects of the UK’s havingratified the ECHR:

� it does have influence, in that the UK is obliged to alter itslaw when the Court of Human Rights finds that UK law isin breach of the ECHR (give examples such as the MALONEand THE SUNDAY TIMES (Thalidomide) cases)

� it seems clear that the UK courts do have regard to theECHR when interpreting UK law – you could useDERBYSHIRE CC as an example here

� the UK is unlikely to pass new law which is in breach ofthe ECHR.

Note the restrictive view of the right to silence taken in JOHNMURRAY v UK. Note also that the Convention concentratesvery much on individual as opposed to collective rights (seeGCHG case).

You should make the point that the ECJ has made it clear that ithas regard to the Convention when interpreting the law of theEuropean Communities and, as European law is becomingincreasingly important in the UK, the ECHR is bound also tohave a greater impact, especially with the ratification of theTreaty on European Union.

You should refer to the points on the Human Rights Actcovered in Chapter 16. It is important to stress that now thejudiciary will have an obligation to interpret legislation in light ofthe Convention. The Act will not have the effect of simplyincorporating the Convention into English law so it becomes ineffect a statute. Thus the Act does not present a set ofentrenched rights. Nevertheless it marks a profound shifttowards the notion of positive rights covered in Chapter 13.



CHAPTER 13

THE HUMAN RIGHTS ACT 1998

CONTENTS

Human Rights Act 1998 ........................................................... 2

In Favour of the Human Rights Act .......................................... 6

Against the Human Rights Act .................................................. 6

The Emerging Case Law ........................................................... 7

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THE HUMAN RIGHTS ACT 1998

INTRODUCTION

There has been a long running debate in the UK over whethera bill of rights should be adopted and what form it should take.Over the years various committees have reported on thesubject but no consensus was reached. Inevitably, the matterwas influenced by politics but the left/right distinctions werenot so marked because of the complex issues whichentrenching a bill of rights raises.

The constitutional issues presented by the bill of rights debateare easy to state and impossible to resolve. In favour of a billof rights are the arguments from counter-majoritarianism,namely, that fundamental human rights must be enshrined inconstitutional law so as to be above and beyond repeal orerosion by passing political majorities. On this approach , a billof rights requires a supreme court the decisions of whichcannot be overturned by the legislature. In addition, the bill ofrights and decisions made under it must be immune fromamendment or at least subject to a special procedure foramendment. The model for a bill of rights along these lines isthe US bill of rights, that is, the First through Fourteenthamendments to the US Constitution. But in one form oranother, most legal systems now have a fundamental lawincorporating protection of human rights which are ultimatelysafeguarded by a supreme court.

In contrast, the UK’s constitutional tradition is majoritarian,with the fundamental rule being parliamentary supremacy. Onthis approach, the highest form of law known to the legalsystem is an Act of Parliament and these have equal statusamong themselves. No Parliament can bind its successors,which means that it is not possible to entrench higher laws.The courts’ bounden duty is to uphold the law passed byParliament. Judicial power is limited to the interpretation ofstatutes and recognises no power to review the legality ofstatutes or invalidate them if they infringe fundamental norms.While this traditional approach has needed to be qualified bythe imperatives of EC law, it remains the orthodoxconstitutional position for most purposes.

The twin difficulties which a UK bill of rights has faced are theimplications of the sovereignty of Parliament and concernabout the power of the judiciary under a bill of rights. The firstfocuses on the difficulty of entrenching laws in light of the rulethat no Parliament can bind its successors and the doctrine ofimplied repeal, while the second raises issues about theappointment of judges. Implicitly this focuses on the politicalattitudes and disposition of the people who become judges,most notably discussed by Professor JAG Griffith in Politics ofthe Judiciary. The basic point here is that if the judges continueto be selected from narrow backgrounds and hold small ”c”

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conservative views, the main effect of a bill of rights will be toentrench established power structures and the privileges ofelites. The ability of a political majority to secure radicalreforms will be frustrated by the courts, which will always beable to find some human rights interest superior toParliament’s will.

Eventually, the advocates of a bill of rights – or more correctly,a version of one – prevailed. In October 1997, the newLabour government published a White Paper entitled BringingRights Home, which set out its plans to give effect in UK lawto the European Convention on Human Rights. Subsequently,the Human Rights Act 1998 was enacted and entered force onOctober 2nd 2000. For the present at least, the Act amountsto a Bill of Rights for the UK. Its provisions strike a balancebetween the counter-majoritarian arguments for an entrenchedbill of rights and the British constitutional tradition of thesupremacy or sovereignty of Parliament.

In the last two years, UK courts have decided a growingnumber of cases on the 1998 Act and the Convention rights itguarantees. Some of the decisions have undoubtedly beenradical and embraced the spirit of the new Act, treating it asopening a new constitutional chapter in the UK’s legal historywhich calls for a new approach to constitutional litigation.Other decisions have been less radical and some might saypay only lip service to human rights while preferring a narrow,textual approach to deciding cases. But these two approaches– stated here starkly and simplistically – embody the tensionbetween liberal and conservative approaches to interpretationof constitutional documents which is present in all systemswith a written constitution. The nature of human rightslitigation is that there are rarely easy answers and always morethan one answer to the questions raised. The Human RightsAct 1998 has brought the traditional difficulties ofconstitutional human rights litigation directly to the UK.

HUMAN RIGHTS ACT 1998The Act received Royal Assent on 9 September 1998. Thepurpose of the Act is to give further effect to rights andfreedoms guaranteed under the European Convention onHuman Rights. In essence the Act requires all public officials torespect the rights of individuals as set out in the EuropeanConvention on Human Rights but it is important to stress thatthe Convention rights themselves do not become part ofsubstantive law. As Ewing has put it (62 Modern Law Review1999 The Human Rights Act and Parliamentary Democracy,pp.79–99 at p.84):

“The Human Rights Act 1998 does not incorporate the ECHRinto domestic law in the way that the European CommunitiesAct 1972 incorporates the EC Treaty. Rather what it does is togive effect to certain provisions of the Convention and someof its protocols by providing that these so called ‘Conventionrights are to have a defined status in English law’. A majoromission is Article 13 of the Convention which provides that‘Everyone whose rights and freedoms as set forth in thisConvention are violated shall have an effective remedy beforea national authority’.”

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Section 2 provides for a court or tribunal in determining aquestion which has arisen in connection with a Conventionright to take into account judgments of the European Court ofHuman Rights. Thus the jurisprudence from Strasbourg is notmade binding. Section 3 provides that ‘so far as possible to doso’ both primary and delegated legislation are to be read andgiven effect to in a way which is compatible with Conventionrights. Under s.4 a court which is satisfied that a provision isincompatible with Convention rights has to make a declarationof that incompatibility. This applies to the higher courts only,namely the House of Lords, Privy Council, the Court ofAppeal and the High Court. The declaration does not affect thevalidity of the provision in question. If the question of adeclaration of incompatibility is raised in proceedings to whichthe Crown is not party the Crown is entitled to notice of sucha declaration being made and may be joined as a party to theproceedings (s.5). Section 6 provides that it is unlawful for apublic authority to act in a way which is incompatible with aConvention right. A public authority is defined as a court, atribunal which exercises functions in relation to legalproceedings and any person certain of whose functions arefunctions of a public nature. In relation to litigation notinvolving a public authority Ewing comments:“… Convention rights may be relied upon in litigation betweenprivate parties but cannot themselves be the basis of a causeof action”. The definition excludes both Houses of Parliamentor persons exercising functions in connection withproceedings in Parliament. Section 7 provides for proceedings,including judicial review, to be brought in the appropriatecourt or tribunal where there is a claim that a public authorityhas acted or proposes to act in a way which is made unlawfulby s.6. The rule as to standing is narrower than that forjudicial review since only victims of the alleged unlawful actionmay bring proceedings. Section 8 provides for each court inrespect of an act by a public authority which it finds unlawfulto give a remedy which is appropriate to that court.

Parliamentary sovereignty in the legal sense is preserved bythe stipulation that it is for Parliament to decide what action totake as a result of a declaration of incompatibility. Section 10and Schedule 2 regulate remedial action and remedial orders.Primary legislation can only be amended or repealed byprimary legislation although s.10 empowers a minister to takeremedial action to amend primary legislation by order wherethere are ‘compelling reasons’ for doing so. Sections 14 to 17regulate derogations and reservations.

The Act makes provision to ensure that new legislation iscompatible with Convention rights. Section 19 provides thatthe Minister ‘in charge of a Bill in either House of Parliament’must make a statement to the effect that in his view itsprovisions are compatible with Convention rights. (Note thatprovision is also made that ministers must take into accountobligations arising under the ECHR in preparing business forthe Cabinet. See ‘Ministerial Code: A Code of Conduct andGuidance on Procedure for Ministers’, Cabinet Office 1997.)

The Press were concerned that the guarantee of the right toprivacy might affect freedom of expression. As a result, s.12applies where a court is considering whether to grant anyrelief which might affect the exercise of the right to freedom of

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expression primarily though not exclusively in interlocutoryproceedings. The concern of the Churches that by beingtreated as public bodies they might lose privileges in relation tothe exercise of faith was addressed by s.13 which providesthat if a court’s determination of any question arising underthe Act might affect the exercise by a religious organisation ofthe Convention right to freedom of thought, conscience andreligion it must have regard to the importance of that right.

It is clear that the Act strikes a balance between judicial reviewon human rights grounds and the orthodox approach to theUK Constitution which respects the supremacy of Parliament.The key points to note are that all legislation and all persons,private and public, are affected by the rule of interpretationprovided by s.3 of the Act. If primary legislation cannot beinterpreted to be compatible with Convention rights, s.4permits a court with jurisdiction to issue a declaration ofincompatibility against the impugned provision. However,such a declaration will not affect the continuing force andeffect of the legislation and the case may have to be decidedaccording to the challenged rule. It is left to Parliament todecide whether to repeal the legislation and, if so, what effectthis should have on the instant case. Finally, ss.6 and 7 createa new cause of action against public bodies, including someprivate bodies “certain of whose functions are of a publicnature” for violation of human rights. But only a victim,defined in accordance with the Convention understanding ofthe term, can raise the action.

The fact that the Human Rights Act 1998 has not radicallyaltered the balances in the UK constitution has been madeclear by the enactment of the Anti-Terrorism, Crime andSecurity Act 2001, passed in the wake of September 11 2001.Part 4 of this Act provides for “indefinite detention” ofterrorist suspects who are not UK nationals. So as to beimmune from challenge under the Human Rights Act 1998, theUK government has lodged a derogation from Article 5 of theConvention with the Council of Europe: see Human Rights Act1998 (Amendment No.2) Order 2001, SI 2001/4032, insertinga new Part I in Schd. 3 to the 1998 Act. Yet, there is no doubtthat the UK is not facing a “public emergency threatening thelife of the nation”, which is the requirement provided in Article15 of the Convention for derogations from Convention rightsin times of public emergency. Only time will tell how thecourts, no doubt eventually including the European Court, willapproach the new anti-terrorism legislation and the validity ofthe derogation from Convention rights which it requires.

Returning to s.3 of the Human Rights Act 1998, the utility of ageneral rule of interpretation applying to all legislation isapparent from the experience with EC law and, in particular,s.2(4) of the European Communities Act 1972. In the cases ons.3 of the Human Rights Act 1998 so far, it is clear that mostjudges are prepared to apply s.3 as a “strong” rule ofinterpretation, requiring where necessary that words in astatute are to be made to have a Convention consistentmeaning, if at all possible: see especially the speech of LordSteyn in R v A [2001] 3 All ER 1 (quoted below). The problem iswhat scope this leaves for s.4: if “interpretation” can alwaysremedy the difficulty, there will be little need for a s.4

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declaration, which means that criteria for resorting to andapplying s.4 will be slow in coming.

Greater problems surround the new cause of action forbreach of Convention rights. The first difficulty is the scope ofthe action, which requires an assessment of how far theConvention rights reach into the private sector. This issue hasbeen a source of much debate since the Act was passed.

One view is that the Act only binds public bodies, courts andtribunals, and other persons “certain of whose functions areof a public nature” – known as defined public bodies: sees.6(3) of the 1998 Act. Any other approach which meant thatall private persons are bound by the Convention rights wouldrender meaningless s.6(5) of the Act, which expresslyexcludes the “private acts” of defined public bodies. Thealternative view, the leading proponent of which is ProfessorSir William Wade, is that since public bodies are defined bys.6(3) as including courts and tribunals, every case which acourt decides, including cases involving only two privatepersons, is affected by the Convention rights. On this view,every court decision amounts to an “act” for the purposes ofs.6 of the Human Rights Act 1998.

So far, the courts have not ruled definitively on the scope ofthe Convention rights. It is certainly arguable that somedecisions lean against the Act applying to purely privatepersons: see, for example, POPLAR HOUSING &REGENERATION COMMUNITY LTD v DONOGHUE [2001] 4 AllER 604. On the other hand, there are cases in which theConvention rights have been applied, or at least interpreted, incases between two private parties where only the commonlaw governs: see DOUGLAS v HELLO! LTD [2001] 2 All ER 289.

In any event, two points appear to be clear. First, theConvention rights are relevant when courts are developing thecommon law. At the least, this is one effect of the courts beingdefined as public bodies for the purposes of s.6 of the HumanRights Act 1998. Secondly, where legislation applies to a casebetween two private parties, the Convention rights apply byvirtue of s.3 of the Act. Such a case does not present anyproblem about the Convention rights applying to privatepersons since the real issue will be the compatibility oflegislation rather than the act of a private party per se.

Furthermore, even if the Act and therefore the Conventionrights within the UK do not affect the private acts of privatepersons, there remains the possibility that the UK will still be inbreach of the Convention. This is because the European Courtmay consider that the UK government has failed to act toprotect the Convention rights of private persons betweenthemselves. What scope there is for a UK court to reach asimilar conclusion in terms of s.6 of the Act, while possible, isstill unclear.

Another difficulty posed by s.6 of the Human Rights Act 1998is the relationship between the new cause of action and otherremedies, notably judicial review. This is most apparent inrelation to the time limit for judicial review, which is traditionallyunderstood as three months. But the time limit for raising ahuman rights complaint is 1 year: see s.7 of the 1998 Act.

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While s.7 expressly preserves shorter limitation periods,which means that if a human rights issue is to be raised injudicial review, proceedings must be raised promptly and inany event within 3 months, questions could arise aboutwhether a complaint should have been brought throughjudicial review or pursued under the 1998 Act independently,in which case the more generous limitation period will apply.

Beyond these technicalities, bigger questions about the prosand cons of the Human Rights Act 1998 as it stands must beaddressed. In considering these, it is important to recall whythe 1998 Act takes the form it does and to ask whether astronger, more entrenched bill of rights is likely or evenmeritorious.

IN FAVOUR OF THE HUMANRIGHTS ACT

Not all the protagonists would agree with each point, but theprincipal arguments are that:

� existing common law safeguards have failed

� the discussion on implementation has the beneficial effectof raising public awareness of the issues

� judges will be constrained to follow principles which weregenerally agreed

� many issues which are of general human concern will beremoved from constant change precipitated by partypolitics

� the United Kingdom will be following the example of manyother countries who have found it valuable to implement abill of rights

� strict party discipline means that Parliament will not actindependently to check the executive, so the Act is neededto deal with what Lord Hailsham called ‘an electivedictatorship’

� recourse is already available to Strasbourg, and it willsimplify matters for litigants if there was a national courtcapable of dealing with these issues.

AGAINST THE HUMAN RIGHTSACT

Here again, it would be untrue to say that every member ofthe ‘anti-’ camp agreed with every point, but the mainarguments are that:

� its content is too general and vague, and there will be aconstant battle over what should be included – forexample, controversial matters such as the right to picket

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� the judges will interpret the Bill too narrowly and will haveincreased power to impose their class-based views ofrights

� society is based on a conflict of interests and, on thewhole, it would be impossible to satisfy these impartially: itis better that they be debated politically rather than legally

� the record of the Strasbourg court on certain matters –trade union rights at GCHQ, for example – is a cause forconcern; collective as opposed to individual rights arebadly protected

� the Act will encourage too much litigation

� legislative change will be continually delayed byconstitutional conflict – as has happened in Canada forexample

� human rights are already well protected in the UK:contrast this with other countries, such as the formerUSSR, where a Bill of Rights or its equivalent did notprevent gross abuse

� the Act is against the pragmatic British approach toproblems

� the Common Law adequately protects human rights andaccepts the principles enshrined in the EuropeanConvention, see, for example, DERBYSHIRE v TIMESNEWSPAPERS [1993] 1 All ER 1011.

THE EMERGING CASE LAW

During the first two years of the Human Rights Act 1998(HRA 1998) there have been several important decisionsconsidering its terms and the meaning and implications of theConvention rights. The more important cases to note are thefollowing:

R v A [2002] 3 All ER 1 – leading case on s.3 of the HRA 1998: adefendant was charged with rape of his friend’s girlfriend. Hisdefence was that intercourse had taken place with thecomplainant’s consent and that he had had a sexualrelationship with her for about three weeks prior to the allegedrape. He wished to cross-examine her about their alleged priorrelationship but the judge ruled that s.41 of the Youth Justiceand Criminal Evidence Act 1999 prevented him from doing so.On appeal, the House of Lords held that s.3 of the HRA 1998and Article 6 of the Convention (right to fair trial) meant that,subject always to regard being had to the complainant’sdignity and protecting her from humiliating questioning, s.41was to be understood as allowing the defendant’s cross-examination of the complainant if the evidence to be sought isso relevant to the issue of consent that to exclude it wouldendanger the fairness of the defendant’s trial. On the effect ofs.3 of the HRA 1998 and its interaction with s.41, Lord Steynsaid (at paragraphs 44 and 45 of his speech):

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“(T)he interpretative obligation under s.3 of the 1998Act is a strong one. It applies even if there is noambiguity in the language in the sense of the languagebeing capable of two different meanings. It is anemphatic adjuration by the legislature: R v DIRECTOROF PUBLIC PROSECUTIONS, EX P KEBILENE [2000] 2 AC326, per Lord Cooke of Thorndon, at p 373F; and myjudgment, at p 366B. The White Paper made clear thatthe obligation goes far beyond the rule which enabledthe courts to take the Convention into account inresolving any ambiguity in a legislative provision: see"Rights Brought Home: The Human Rights Bill" (1997)(Cm 3782), para 2.7. The draftsman of the Act hadbefore him the slightly weaker model in s.6 of the NewZealand Bill of Rights Act 1990 but preferred strongerlanguage. Parliament specifically rejected the legislativemodel of requiring a reasonable interpretation. Section3 places a duty on the court to strive to find a possibleinterpretation compatible with Convention rights.Under ordinary methods of interpretation a court maydepart from the language of the statute to avoidabsurd consequences: s.3 goes much further.Undoubtedly, a court must always look for acontextual and purposive interpretation: s.3 is moreradical in its effect. It is a general principle of theinterpretation of legal instruments that the text is theprimary source of interpretation: other sources aresubordinate to it: compare, for example, articles 31 to33 of the Vienna Convention on the Law of Treaties(1980). Section 3 qualifies this general principlebecause it requires a court to find an interpretationcompatible with Convention rights if it is possible to doso. In the progress of the Bill through Parliament theLord Chancellor observed that "in 99% of the casesthat will arise, there will be no need for judicialdeclarations of incompatibility" and the HomeSecretary said "We expect that, in almost all cases, thecourts will be able to interpret the legislationcompatibility with the Convention": Hansard (HLDebates), 5 February 1998, col 840 (3rd Reading) andHansard (HC Debates), 16 February 1998, col 778(2nd Reading). For reasons which I explained in arecent paper, this is at least relevant as an aid to theinterpretation of s.3 against the executive: "PEPPER vHART: A re-examination" (2001) 21 Oxford Journal ofLegal Studies 59. In accordance with the will ofParliament as reflected in s.3 it will sometimes benecessary to adopt an interpretation whichlinguistically may appear strained. The techniques tobe used will not only involve the reading down ofexpress language in a statute but also the implication ofprovisions. A declaration of incompatibility is ameasure of last resort. It must be avoided unless it isplainly impossible to do so. If a clear limitation onConvention rights is stated in terms, such animpossibility will arise: R v SECRETARY OF STATE FOR THEHOME DEPARTMENT, EX P SIMMS [2000] 2 AC 115, 132A-Bper Lord Hoffmann. There is, however, no limitation ofsuch a nature in the present case.

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45. In my view s.3 requires the court to subordinatethe niceties of the language of s.41(3)(c), and inparticular the touchstone of coincidence, to broaderconsiderations of relevance judged by logical andcommon sense criteria of time and circumstances.After all, it is realistic to proceed on the basis that thelegislature would not, if alerted to the problem, havewished to deny the right to an accused to put forwarda full and complete defence by advancing trulyprobative material. It is therefore possible under s.3 toread s.41, and in particular s.41(3)(c), as subject to theimplied provision that evidence or questioning which isrequired to ensure a fair trial under article 6 of theConvention should not be treated as inadmissible. Theresult of such a reading would be that sometimeslogically relevant sexual experiences between acomplainant and an accused may be admitted unders.41(3)(c). On the other hand, there will be caseswhere previous sexual experience between acomplainant and an accused will be irrelevant, eg anisolated episode distant in time and circumstances.Where the line is to be drawn must be left to thejudgment of trial judges. On this basis a declaration ofincompatibility can be avoided. If this approach isadopted, s.41 will have achieved a major part of itsobjective but its excessive reach will have beenattenuated in accordance with the will of Parliament asreflected in s.3 of the 1998 Act. That is the approachwhich I would adopt”.

This passage is worth setting out in full because it captures theradical effect s.3 of the HRA 1998 has on statutoryinterpretation and it explains one important view of the properrelationship between s.3 and s.4 of the HRA 1998. It is so farthe leading statement of the House of Lords on s.3 of the HRA1998.

WILSON v FIRST COUNTY TRUST LTD (NO 2) [2001] 3 All ER 229 –declaration of incompatibility under s.4: W obtained a loanfrom F, a pawnbroker, and gave as security her car. W did notrepay the loan and raised proceedings against F claiming thatthe agreement was unenforceable against her by virtue ofs.127(3) of the Consumer Credit Act 1974 because theagreement did not comply with the minimum requirements forconsumer credit agreements provided by the 1974 Act. Attrial, the judge refused to find the agreement void and Wappealed. A question then arose whether s.127 of the 1974Act was compatible with the HRA 1998 if its effect as against Fcould be to render the agreement void. Held, the provisions ofs.127(3) of the 1974 Act were incompatible with the rightsguaranteed by Protocol 1 Art.1 (right to property) and Art.6(1)(right to fair trial) of the Convention since the absolute bar toenforcement of a regulated agreement that did not contain theterms prescribed by the 1974 Act was a disproportionaterestriction on the rights of a lender. Accordingly, a declarationof incompatibility was issued against s.127(3) of the 1974 Act.Note that this decision is presently under appeal to the Houseof Lords.

POPLAR HOUSING & REGENERATION COMMUNITY LTD vDONOGHUE [2001] 4 All ER 604 – s.6 HRA 1998, public/private

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distinction, public or private body: D had been a tenant of alocal authority which had a statutory duty to house her. Inaccordance with central government policy, the local authoritytransferred its housing responsibilities to P, an association.Subsequently, the local authority determined that D had madeherself intentionally homeless and P issued on her a notice toquit. At the repossession hearing, a question arose whether Pwas a body bound by s.6 of the HRA 1998. Held, as againstD, in principle P was a body bound by s.6 of the Act. LordWoolf CJ observed:

“The purpose of s.6(3)(b) [“persons certain of whosefunctions are of a public nature”] is to deal with hybridbodies which have both public and private functions.It is not to make a body, which does not haveresponsibilities to the public, a public body merelybecause it performs acts on behalf of a public bodywhich would constitute public functions were suchacts to be performed by the public body itself. An actcan remain of a private nature even though it isperformed because another body is under a publicduty to ensure that it is performed….What can makean act, which would otherwise be private, public, is afeature or a combination of features which impose apublic character or stamp on the act. Statutoryauthority for what is done can at least help to mark theact as being public; so can the extent of control overthe function exercised by another body which is apublic authority. The more closely the acts that couldbe of a private nature are enmeshed in the activities ofa public body, the more likely that they are to bepublic. However, the fact that the acts are supervisedby a public regulatory body does not necessarilyindicate that they are of a public nature….Taking intoaccount all the circumstances, we have come to theconclusion that while activities of housing associationsneed not involve the performance of public functions,in this case, in providing accommodation for D andthen seeking possession, the role of P is so closelyassimilated to that of [the local authority] that it wasperforming public and not private functions. Ptherefore is a functional public authority, at least tothat extent.

The Court of Appeal stressed that not all of P’s functions willnecessarily be public. As an example of a possible private act,the court gave P raising finance as a possible private function.On the application of s.6 and the division between public andprivate bodies, see also R (HEATHER) v LEONARD CHESHIREFOUNDATION [2002] 2 All ER 936.

Before turning to consider some cases interpreting andapplying the Convention rights, mention must be made of theproblem which has arisen about the potential retrospectiveeffect of the HRA 1998. While this is a sunset problem, theway in which the courts have approached it provides aninteresting insight into judicial decision-making.

The HRA 1998 entered force on October 2nd 2000, butsections 7(1)(b) and 22(4) of the Act in effect allowed itsprovisions to be relied on as a defence to an action brought

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by a public authority where it was alleged that the authorityhad acted inconsistently with Convention rights before the Actentered force. In other words, the Convention rights couldonly be used as a sword after October 2nd 2000 but couldbe used as a shield with respect to acts of a public authorityoccurring before that date. Apparently straightforward, this leftseveral matters open to doubt, notably whether a personconvicted before October 2nd 2000 could rely on theConvention rights in an appeal after that date where someviolation of Convention rights was alleged at or before the trial.

In R v LAMBERT [2001] 3 All ER 577, the House of Lords by amajority of 4:1 held that the HRA 1998 could not be relied onin an appeal from a conviction obtained before the Act enteredforce, that is, October 2nd 2000, where it was an act of thetrial court which was impugned. The HRA 1998 was clear asto the limited retrospective effect it was to have and this didnot permit a convicted person to impugn a trial taking placebefore the Act entered force.

However, in R v KANSAL (NO 2) [2002] 1 All ER 257, a slightlydifferently constituted appellate committee of the House heldby a majority of 3:2 that the HRA 1998 did have retrospectiveeffect so as to permit a convicted person to complain aboutacts of the prosecuting authorities (including the police)occurring before the HRA 1998 entered force. But all of theirLordships considered themselves bound by the recentdecision in LAMBERT that the HRA did not have retrospectiveeffect so as to apply to trials occurring before the Act enteredforce. The three judges in the majority who consideredLAMBERT wrong gave three different reasons for applying itnonetheless. Lord Lloyd considered that LAMBERT wasinconsistent with a previous House of Lords decision (namelyR v DIRECTOR OF PUBLIC PROSECUTIONS, EX P KEBILENE [2000]2 AC) and that the whole matter should be referred to a panelof 7 Law Lords for a final ruling; in the meantime, though, therule in LAMBERT remained arguably valid and there was nocompelling reason to overrule so recent a decision. LordSteyn, who had dissented in LAMBERT, considered himselfbound by the majority decision in that case on the groundsfamously set forth by Lord Reid in R v KNULLER [1973] AC 435,at 455 (in particular, that a supreme court should be carefulwhen departing from its previous decisions and only do sowhen some very good reason justifies it). Lord Hopeconsidered that LAMBERT should still apply because in thepresent case the prosecutor had not acted unlawfully, but inaccordance with a statutory provision which at the time theevidence was coerced could not have been read differently.

It follows from all of this that LAMBERT continues to governand that the HRA 1998 does not have retrospective effectexcept to the limited extent of being a shield against actionsraised by a public authority. But a criminal prosecution is notconsidered to be an action raised by a public authority.

More generally, the way the House of Lords has handled theissue of the HRA 1998’s retrospectivity is far from ideal.Basically, the rule in LAMBERT survived and was applied inKANSAL not because a majority of the House in the latter caseconsidered it correct but because of a commitment to stare

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decisis. To what extent can a rigid subscription to stare decisisjustify continuing application of legal rules which are thoughtto violate human rights?

Turning to some of the developments concerning the meaningand effect of the Convention rights themselves, there areseveral decisions to note.

The House of Lords decision in R (PRETTY) v DPP [2002] 1 All ER1 concerned Articles 2 (right to life), 3 (right not to be subjectto inhumane and degrading treatment), 8 (privacy) and 9(freedom of conscience), in the context of an asserted right toassisted suicide. Mrs. Pretty suffered from an incurabledisease and was too ill to commit suicide herself. She wishedher husband to assist her in ending her life. This engageds.2(1) of the Suicide Act 1961, which made it a criminal offencefor anyone to assist another to commit suicide. She thereforesought a declaration that her husband would not beprosecuted and asserted Articles 2,3,8 and 9 of theConvention in support. Held, none of the Convention rightscould be interpreted so as to allow the appellant a right to die.There was therefore no inconsistency with Convention rightspresented by the Suicide Act 1961 in the present case.

Interestingly, only one of the judges (Lord Hope) consideredArticle 8’s right to privacy relevant at all. When Mrs Prettytook her case to the European Court of Human Rights inStrasbourg, it concluded that the right to privacy, in the senseof a right to personal autonomy, was relevant to her claim. Butnone of her rights had been violated by UK law, mainlybecause of the wide margin of appreciation extended by theConvention and the Court to states in the area of morals andbecause there was no consensus among the Conventionstates on euthanasia (see PRETTY v UK, ECHR Judgment of29/4/2002).

The PRETTY decision raises the issue of whether and to whatextent the Convention rights allow challenge to the substanceor quality of laws. There is a long running debate in manyconstitutional systems about whether human rights onlyprotect process values – such as a trial which is procedurallyfair, the right to vote, etc – or also substantive values, such as“fundamental justice”, fairness in a substantive sense, libertyin the sense of freedom of choice, privacy in the sense ofrespect for human dignity and a protected sphere of personalautonomy, and so on. This mirrors a debate about themeaning of the rule of law – whether it is just about theexistence of positive laws or incorporates a value systemwhich allows laws to be measured for their inherent justiceand fairness.

The House of Lords decision in PRETTY is not encouraging inthis regard. Most of their Lordships did not engage with theArticle 2 or Article 8 rights beyond a rather narrow, textualapproach to their interpretation. There was nothing like theapproach of the majority in the US Supreme Court in ROE vWADE 410 US 113 (1973), in which the rights to liberty and dueprocess of law were interpreted to include protected conceptsof privacy and personal autonomy. Equally, in MATHEWS vMINISTRY OF DEFENCE [2002] 3 All ER 513, the Court of Appeal

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concluded that the right to a fair trial guaranteed by Article 6 ofthe Convention did not protect any substantive values againstwhich statutory provisions could be measured. In that case,M claimed against the MOD for injuries sustained throughexposure to asbestos in the 1960s while serving in themilitary. Section 10 of the Crown Proceedings Act 1947continued the Crown’s immunity from suit in actions broughtby serving or former members of the armed forces. Thisimmunity had been removed by statute in 1987, but onlyprospectively, so M was not affected by the change. M arguedthat s.10 violated his Article 6 Convention right to a fair trial.Held, although the effect of the 1987 change was harsh,leading to different treatment of service personnel before andafter that date, s.10 of he 1947 Act provided a rule ofsubstantive law. Article 6 only extended to proceduralmatters. It was clear that Article 6 did not go so far as todetermine what rules of substantive law a state was requiredto have.

More recently, in ADAMS v LORD ADVOCATE, The Times, 8/8/02,the Scottish Court of Session held that the ScottishParliament’s prohibition of fox hunting in Scotland did notinfringe the rights to privacy and property guaranteed byArticle 8 of the Convention and Article 1 of Protocol 1 to theConvention. Emphasis was placed on the limited nature ofthese rights under the Convention and the need to defer todemocratically elected legislatures in regard to the merits andcontents of particular laws.

The courts have, however, been more activist in protectingthe right to a fair trial as guaranteed by Article 6 of theConvention. Matters got off to an inspired start with theScottish High Court of Justiciary’s decision in STARRS vRUXTON (2000) JC 208, where it was held that part-time judges,appointed on renewable one year contracts, did not providean independent and impartial tribunal to hear a criminalprosecution for the purposes of Article 6 of the Convention.

However, it is reverse onus clauses which have been thesource of most difficulty. To what extent does a statutoryprovision reversing the onus of proof by placing it on thedefence, conflict with the right to a fair trial and thepresumption of innocence guaranteed by Article 6? The twoleading cases are R v LAMBERT [2001] 3 All ER 577 and BROWN vSTOTT [2001] 2 WLR 817. In BROWN, it was found that the testfor considering the validity of limitations on Convention rightsalways involves a form of proportionality analysis. Thisrequires consideration of the importance of the purposepursued by a measure, the rationality of the measure in light ofits purpose, whether the measure is strictly necessary andwhether it strikes a balance with the importance of thepurpose it pursues. On this basis, for example, a provisionwhich requires a person to explain that his possession of acertain quantity of drugs is not for the purposes of supply willbe lawful in light of the important social policy of deterringdrug dealing.

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Revision


ADDITIONAL READING

Jowell & Oliver (4th ed. 2000), Chapter 4.





QUESTION

To what extent should there be a constitutional right to die?



SPECIMEN ANSWER TO SELF-ASSESSMENT TEST

First, outline the human rights involved:

� Article 2 – right to life, but in its terms does not include aright to commit suicide

� Article 3 – right not to be subject to inhuman or degradingtreatment, but traditionally limited to practices related totorture or punishment

� Article 5 – right to liberty, but traditionally understood asfreedom from restraint rather than liberty to do something

� Article 8 – right to privacy

� Article 9 – freedom of conscience and religion

� Article 10 – freedom of expression

Also worth noting that s.11 of the Human Rights Act 1998provides that the Convention rights are not the limit of aperson’s rights. This means that there are human rightsbeyond the Convention rights.

Secondly, briefly survey the policy reasons for and againsteuthanasia. These include the sanctity of human life and thedangers involved in allowing individuals an unfettered right towhen and how to end their lives. Even if only the very ill areto be given the right, there are great difficulties in decidingwhat is meant by “very ill” and what if any process should beinvolved in approving the decision to end life. On the otherhand, any meaningful concept of privacy includes a right tomake the most personal and intimate decisions free from stateinterference. Every civilized society must respect a sphere ofpersonal autonomy which is protected from state regulation.

Thirdly, review the House of Lords and ECHR decisions inPRETTY. This requires an outline of the leading judgments andan assessment of whether they answered the question posed.To say that the appellant was asserting a right to die arguablymisses the point: she was claiming a constitutional right toautonomy which includes a right to make the most personaldecisions for oneself.

It is necessary to acknowledge the great difficulties associatedwith a constitutional right to die. Bit it is also necessary toquestion whether the House of Lords is approaching theConvention rights as a ceiling or a floor for human rightsprotection in the UK. Section 2 of the 1998 Act provides thatUK courts must have regard to decisions of the ECHR whendeciding cases, but that they are not bound by them. If so, itis possible for courts here to go beyond the limits whichConvention rights have presently reached in Strasbourg. UKcourts are not restrained by the international element inStrasbourg decision-making. Is there a danger that in hidingbehind the restraints of the Strasbourg case law, courts hereare avoiding making the most difficult value judgments thathuman rights require?



CHAPTER 14

POLICE ACCOUNTABILITY AND POWERS

CONTENTS

Police accountability and powers ............................................. 1

Organisation of the police service in England and Wales ............................................................................. 1

Accountability and control of the police..................................... 5

Police powers and individual freedom ....................................... 8

Arrest ...................................................................................... 9

Search of the person .............................................................. 26

Powers of entry onto premises; search and seizure................. 27

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POLICE ACCOUNTABILITY ANDPOWERS

A person’s freedom can be seriously invaded by unwarrantedinterference with liberty and property. The police are givenwide powers to enforce the law and these include powers ofarrest, detention, search of person and property and seizureof goods. As the Royal Commission on Criminal Procedurewhich reported in 1981 put it, the law must achieve a balancebetween ‘the interests of the community in bringing offendersto justice and the rights and liberties of persons suspected oraccused of crime’. Two major statutes, the Police and CriminalEvidence Act 1984 (PACE), and the Criminal Justice and PublicOrder Act 1994 (CJPOA) deal with the law in this area but wewill also be looking at other statutes and various common lawprovisions. The law relating to the management andorganisation of the police forces has been consolidated intothe Police Act 1996.

ORGANISATION OF THE POLICESERVICE IN ENGLAND AND WALES

There is no national police force. Before the creation ofprofessional police forces in the nineteenth century, policework was performed by the parish constable under thesupervision of the Justices of the Peace. The recent tendencyhas been to reduce the number of local forces in the interestsof co-ordination and efficiency. There are now forty-threepolice forces in England and Wales. The Police Act 1996contains the statutory rules relating to the police serviceconsolidating the Police Act 1964, Part IX of the Police andCriminal Evidence Act 1984 and Chapter 1 of Part 1 of thePolice and Magistrates Courts Act 1994.

POLICE AUTHORITIES

A police area is based on the area of an administrative countycouncil (e.g. Lancashire, Nottinghamshire, Sussex) or of anumber of county councils (e.g. Avon and Somerset, Devonand Cornwall, Thames Valley). The Police Authority in eachpolice area is a committee known as the police committeeformerly composed of local county councillors who comprisedtwo-thirds of the membership and magistrates who comprisedone-third. Following the new and controversial provisions inthe PMCA the composition of the police authorities has beenchanged mainly by the addition of independent members,approved by the Home Secretary, who comprise a third of themembership.

In the Metropolitan Police District of London the arrangementsare different. The Police Authority is not a committee but is the

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Home Secretary, and the local authorities within theMetropolitan Police District have no statutory role to play inthe maintenance of the police force (other than contributing 50per cent of the cost).

The Police Authority has responsibility for maintaining anadequate and efficient force, determining its establishment andproviding it with its equipment. It appoints the ChiefConstable, a Deputy Chief Constable and Assistant ChiefConstables subject to the approval of the Home Secretary.The Police Authority may, with the approval of the HomeSecretary, retire these officers compulsorily in the interests ofefficiency.

OFFICE OF CHIEF CONSTABLE

Operational control of the force is vested in the ChiefConstable. The Chief Constable responsible for the day-to-daypolicing of the area and gives him direction and control of thepolice force. The Chief Constable presents an annual report tothe Police Authority on the policing of the area and he may berequested to give other reports from time to time but, with theHome Secretary’s concurrence, he may decline to supplyinformation if its disclosure would be contrary to the publicinterest or unnecessary for the discharge of the Authority’sfunctions. It seems that the Police Authority may give the ChiefConstable advice, but it cannot instruct him on whether orhow to comply with his duty to enforce the criminal law.

In R v METROPOLITAN POLICE COMMISSIONER EX PARTEBLACKBURN [1968] 1 All ER 763, Lord Denning defined theunique constitutional position of the office of Chief Constable:

‘No Minister of the Crown can tell him that he must ormust not keep observation on this place or that; or that hemust not prosecute this man or that one. Nor can anyPolice Authority tell him so. The responsibility for lawenforcement lies on him. He is answerable to the law andto the law alone.’

But the scope given to chief officers of police is very wide anda court would be reluctant to intervene if the chief officer isable to point to good grounds for a policy decision not toapply the law in a particular case, as is indicated by R v CHIEFCONSTABLE OF DEVON AND CORNWALL EX PARTE CENTRALELECTRICITY GENERATING BOARD [1981] 3 All ER 826. In thiscase the Court of Appeal declined to order the Chief Constableto remove passive objectors who were unlawfully obstructingthe Board’s survey of a prospective site for a nuclear powerstation.

In R v CHIEF CONSTABLE OF SUSSEX EX PARTE INTERNATIONALTRADERS’ FERRY LIMITED [1998] 3 WLR 1260 the House of Lordsdismissed an appeal by International Trader’s Ferry against aruling of the Court of Appeal upholding the legality of thedecision of the Chief Constable of Sussex to reduce the levelof policing at Shoreham-by-the-Sea. The appellants had arguedthat the Chief Constable had an overriding duty to make itpossible for the lawful activity of exporting live animals toproceed in the face of violent demonstrations. The decision

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maintains the position that a Chief Constable has a widediscretion to determine how the law will be enforced.

In recent years concern has been expressed that theincreasing professionalism of the police and their increasinguse of sophisticated equipment has meant that they havebecome rather detached from the communities they serve,especially in London. For example, Lord Scarman in his reporton the Brixton disorders (Cmnd. 8429 (1981)) identified thelack of any formal liaison between the police and the localcommunity as a contributory cause of the disorders since itled to policing without the consent of the local population. Hefelt that the police did not consult sufficiently, that thisadversely affected their efficiency and that they were notsufficiently accountable.

Section 96 of the Police Act 1996 seeks to meet the need forliaison by providing that arrangements shall be made by eachPolice Authority for obtaining the views of people in that areaconcerning policing and obtaining their co-operation inpreventing crime in the area. In the Metropolitan Police Districtthe arrangements are made by the Metropolitan PoliceCommissioner after consulting local authorities within thedistrict and receiving guidance from the Home Secretary.Outside the metropolis the arrangements are made by thePolice Authority after consulting the Chief Constable.

The Chief Constable appoints constables below the rank ofAssistant Chief Constable and he is responsible for theirdiscipline.

Local control and organisation of the police force should becontrasted with the fear of a national police force which raisesthe spectre of officers acting at the behest of politicians. Lately,however, there have been increasing signs of centralisingtendencies, particularly through the Association of Chief PoliceOfficers (ACPO) which is a powerful pressure grouprepresenting the views of Chief Constables. The president ofthe ACPO has some control over the National ReportingCentre which helps co-ordinate mutual assistance. This bodyengaged in a high degree of co-operation during the miners’strike 1984–5.

POSITION OF HOME SECRETARY

In addition to his responsibilities as the Police Authority for themetropolitan area, the Home Secretary has a generalresponsibility for promoting the efficiency of the police servicein the rest of England and Wales. He must ensure that boththe Police Authority and the Chief Constable are enabled toexercise their powers and that they in fact do so. This he cando in a number of ways:

� he makes the Police Regulations which deal withestablishments, discipline, pay, pensions, allowances,training, duties, leave, housing, uniforms and equipment

� he has powers of inspecting local forces through theInspectorate of Constabulary – the payment of the annualgrant of 50 per cent of the cost of the police service to a

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Police Authority by the Home Office depends upon thereceipt of a favourable report from the inspectors

� he can impose a compulsory scheme for the amalgamationof police forces by statutory instrument after holding alocal inquiry if the local forces are unable or unwilling toproduce an acceptable voluntary scheme

� he can issue circulars and orders of practice

� he has a general power to call for reports from ChiefConstables on the policing of their areas

� he can conduct an ad hoc inquiry into the conduct of apolice force – for example, the inquiry by Lord Scarman, in1981, into the policing of the Brixton area

� he approves the appointment of senior constables and isan appeal body when serious disciplinary action is takenagainst a Chief Constable, Deputy Chief Constable andAssistant Chief Constable by the Police Authority, andagainst other constables by the Chief Constable

� he can, by virtue of the Police and Magistrates Courts Act(PMCA), set ‘objectives’ for police authorities; theseinclude performance targets.

The above powers of the Home Secretary are derived fromstatute. In addition he is, as was held in R v HOME SECRETARYEX PARTE NORTHUMBRIA POLICE AUTHORITY [1987] 2 All ER 282,entitled, under the Royal Prerogative of maintaining the peace,to supply equipment to a Chief Constable without theapproval or consent of the local Police Authority, where theequipment (plastic baton rounds and CS gas in that case) isnecessary to deal with either an actual or apprehended breachof the peace.

STATUS OF A POLICE OFFICER

A police constable has a special common law status as a publicofficer. A constable, when acting as a peace officer, is notexercising a delegated authority, i.e. he does not obtain hislegal authority from the orders of a superior officer or from thePolice Authority or Home Secretary. The police service ischaracterised by strict discipline and hierarchy of rank, but thecommon law principle is important because it contains thejustification for the exercise of independent judgement,particularly by the Chief Constable in his dealings with thePolice Authority or Home Secretary. It aims to ensure that thepolice are not used as an arm of government and that politicalexpediency will not influence the operational independenceand status of Chief Constables.

On appointment a constable declares that he will ‘well andtruly serve the Queen’ and his responsibilities for themaintenance of law and order and the preservation of thepeace make him an officer of the Crown. The constable,however, is not paid out of the Consolidated Fund and,outside the metropolitan area, he is not appointed directly orindirectly by the Crown. A police constable does not,

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therefore, satisfy the requirements of what constitutes aCrown servant specified in s.2(6) Crown Proceedings Act.

In 1919, following police strikes in London and Liverpool overpay, it was made illegal for police officers to go on strike. Norcan they join a trade union. The Police Federation of GreatBritain is analogous to a trade union and all police officers upto and including the rank of chief inspector are automaticallymembers.

More recently, police dissatisfaction with work and conditionshas led to calls for restoration of the right to strike. Inevitably,prohibition of this right raises human rights issues, includingpossible violation of the rights to force expression andfreedom of association guaranteed by Articles 10 and 11 ofthe European Convention.

ACCOUNTABILITY AND CONTROLOF THE POLICE

COMPLAINTS

Since 1964, a statutory system for receiving and investigatingcomplaints from members of the public concerning theconduct of police officers has existed. Such a complaint maylead to disciplinary procedures or criminal prosecution. Therecurrent criticisms of the system have concerned theconfidentiality of the proceedings and the absence of anyindependent element: before 1964 complaints about theconduct of police officers were investigated by other policeofficers.

The Police Act 1976 established the Police Complaints Boardto provide an element of independent supervision of theinvestigation of complaints, but was heavily criticised for itslack of independence. The Police and Criminal Evidence Act1984 replaced the Police Complaints Board with the PoliceComplaints Authority which has greater powers. Theprocedure for lodging complaints was also changed (see nowss.66–83, Police Act 1996).

Complaints must still be formally recorded and investigated.The Act introduced a new aspect of procedure, known as aninformal resolution, which depends on the consent of thecomplainant and is applicable only to minor complaints whichwould not result in a criminal or disciplinary charge. If aninformal resolution is not suitable, or if the procedure fails toresolve the complaint, the Chief Constable must arrange for itto be formally investigated by an officer from his own force orfrom another force.

In all cases where the report indicates that a criminal offencemay have been committed, the Chief Constable must send thereport to the Director of Public Prosecutions who will decidewhether a criminal prosecution should be brought against theofficer concerned.

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If no criminal proceedings are taken, disciplinary proceedingsmay be instituted which will involve a hearing at which theofficer may be legally represented. The possible punishmentsinclude dismissal, being required to resign, reduction in rank,and a caution. The officer has a right of appeal to the HomeSecretary.

A copy of the report on the complaint is sent to the PoliceComplaints Authority which may require that the report to besent to the DPP or that a disciplinary charge be brought.

Serious complaints, i.e. complaints that police conduct has ledto death or serious injury, must be referred to the PoliceComplaints Authority which has power to supervise theinvestigation and give instructions as to its conduct. TheAuthority has power to veto the appointment of the officerconducting the investigation, and will receive the report andcertify whether it is satisfied with the investigation.

The Authority will also supervise the investigation ofcomplaints specified in regulations made by the HomeSecretary. It has the power to require any complaint or matterto be referred to it if it considers that it is in the public interestto do so. The Chief Constable of a police force or the PoliceAuthority (in the case of complaints against a Chief Constableor a Deputy or Assistant Chief Constable) have a discretion torefer complaints, which they are not obliged to refer, to thePolice Complaints Authority.

Continuing public concern is expressed about the efficacy andindependence of the Police Complaints Authority.Interestingly, while civil suits against the police are on theincrease, the number of complaints has fallen, suggesting lackof public confidence in the Police Complaints Authority.Particular criticisms are:

� the continued responsibility of the police themselves(rather than an independent body) for the investigations

� allegations of unreasonable pressure being put by policeon complainants to settle by the ‘informal resolutionprocess’

� the ‘better than 50 per cent chance of success’ ruleapplied by the Crown Prosecution Service whenconsidering whether to prosecute officers – this is verydifficult to satisfy since evidence of police malpractice ishard to obtain

� the application of the criminal standard of proof indisciplinary proceedings – in almost all other employmentcontexts the civil standard is applied. However, this is nowunder review.

� the secrecy of the hearings

� the use made by the police of a complainant’s file – forexample, in defending civil or criminal proceedings, in alibel suit or secretly to keep a personal record.

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Think Point 1

Explain the status of a police constable.

Who appoints him?

Who pays him?

Who can dismiss him?

Who is his employer?

Who is vicariously liable for torts committed by aconstable in the course of his duty?

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CIVIL REMEDIES

A plaintiff may sue in negligence but, if the action or omissioncomplained of is a policy decision, the courts are unlikely torecognise a private duty of care: see HILL v CHIEF CONSTABLEOF WEST YORKSHIRE [1988] 2 All ER 238. Other possible suits arefalse imprisonment, trespass and assault. Following R v CHIEFCONSTABLE OF WEST MIDLANDS EX P WILEY [1995] 1 AC 274there is less risk that in such litigation that police documentswhich plaintiff may need to call in evidence are protected bypublic interest immunity.

JUDICIAL REVIEW

Chief Constables are public officers and therefore theoreticallysubject to control by the courts. In practice this hardly everhappens: see BLACKBURN (above).

HABEAS CORPUS

The famous prerogative writ of habeas corpus may be soughtto challenge the legality of detention and to secure release fromillegal detention. It applies to criminal and to civil detention andmay be sought through an ex parte application supported byan affidavit to the Queen’s Bench Division of the High Courtby the person detained or by a person on his behalf if accessto the prisoner is denied.

POLICE POWERS AND INDIVIDUALFREEDOM

Note: Section numbers refer to the Police and CriminalEvidence Act 1984 (PACE).

The law on police powers has long been associated withuncertainty and anomaly. It was based on common lawprinciples (established in many cases before the establishmentof professional police forces) and was developed by ad hocstatutory additions as well as by judicial interpretation. Policepractice, in addition, might not follow the letter of the law.PACE followed the report in 1981 of the Royal Commission onCriminal Procedure which was set up following concern overserious miscarriages of justice. It aimed to clarify policepowers, extending them where necessary, but also providingclear safeguards for individuals against misuse of the powersby making clear the procedures to be followed and the limits ofthe powers as well as their extent. Difficulties with theoperation of PACE led to the passing of the new statute,CJPOA, in 1994.

More recently, the Police Act 1997 and the Regulation ofInvestigatory Powers Act 2000 have put police powers ofsurveillance on a statutory basis. Surveillance must now beauthorised by an empowered police officer and must takeaccount of a suspect’s privacy and other human rights beforebeing permitted.

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ARREST

Arrest is a deprivation of a person’s freedom of movement. Itconsists of the seizure or touching of a person’s body with aview to his restraint. Words may be sufficient if they arecalculated to bring, and do bring, to a person’s attention thefact that he is under restraint and he then submits.

ALDERSON v BOOTH [1969] 2 All ER 271 illustrates theimportance of making clear that someone is under arrest.Instead of saying ‘I arrest you’, PC Booth said, ‘I shall have toask you to come to the police station for further tests’. Whilethese words were polite, they were not sufficiently clear tobring home to the appellant the fact that he was under arrest.Although the officer had intended to make an arrest, no arresthad occurred in the circumstances.

In R v INWOOD [1973] 2 All ER 643, where the defendant hadgone voluntarily to a police station to help the police with theirenquiries and had not been told that he was under arrest, aconviction of assaulting a police officer in the execution of hisduty when the defendant attempted to leave the station wasset aside. Stephenson LJ said, ‘there is no formula to suitevery case … different procedures might have to be followedwith different persons, depending upon their age, ethnicorigin, knowledge of English, intellectual qualities, physical ormental disabilities. There is only the obligation on the police tomake it plain to the person that he is no longer a free man’.

In ALDERSON v BOOTH Lord Parker CJ said that the simplestand clearest form of words to use was ‘I arrest you’.

The principle that a person must be informed of the fact ofarrest is given statutory effect by s.28(1) PACE: when aperson is arrested otherwise than by being informed that he isunder arrest, the arrest is not lawful unless the personarrested is informed that he is under arrest as soon aspracticable after his arrest.

This applies even if the fact of the arrest is obvious, but doesnot apply if it was not reasonably practicable for him to be soinformed because of his having escaped from arrest before theinformation could be given.

Arrest is a step in the process of bringing criminals to justiceand can only be effected with lawful authority.

ARREST WITH WARRANT

A police officer who believes that a specified person hascommitted a crime may make a sworn statement to amagistrate, who is empowered to issue a written warrant forarrest. Any arrest of the specified person made on theauthority of this warrant will be lawfully effected. Note:

� warrants are normally issued only to police officers

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� a general warrant giving a power to arrest but withoutnaming a specific individual was held illegal in LEACH vMONEY (1765) 19 St Tr 1001

� the warrant for arrest on a criminal matter need not be inthe possession of the arresting officer.

ARREST WITHOUT A WARRANT

The powers of both private persons and constables to effectan arrest without a warrant were based on the common law,but s.2 of the Criminal Law Act 1967 created statutory powersof arrest without warrant for both private persons andconstables, in connection with what the act termed arrestableoffences. In addition, over the years powers of arrest withoutwarrant have been conferred piecemeal by numerous Acts ofParliament in connection with specific offences. The RoyalCommission on Criminal Procedure 1981 criticised the lack ofclarity and the confused nature of the law relating to summaryarrest. The intention of Part III of PACE was to simplify andclarify the law. It does this by repealing almost all the existingstatutory powers of arrest without a warrant. Instead, themajority of police powers to arrest without a warrant arecontained in the Act and there is potentially a power of arrestfor every criminal offence. But matters are complicated by thecreation of:

� two categories of offence

and

� three categories of power of arrest.

There is also the common law power of arrest without awarrant in connection with a breach of the peace.

THE ARRESTABLE OFFENCE

The arrestable offence was originally created by s.2 of theCriminal Law Act 1967. That section is now repealed by s.24of PACE which contains a wider definition of arrestable offencefor which an arrest may be made summarily, i.e. without awarrant.

Section 24(1) defines arrestable offences as:

� offences for which the sentence is fixed by law (e.g.murder, treason)

� offences for which a person of twenty-one or over (notpreviously convicted) may be sentenced to imprisonmentfor a term of five years

� the offences listed in paragraphs (a) to (e) of s.24(2) (whichare offences which are not punishable by five yearsimprisonment but which are considered to be seriousenough to be arrestable offences, e.g. indecent assault ona woman, going equipped for stealing)

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� attempts to commit arrestable offences and conspiring,inviting, aiding, abetting, counselling and procuring suchoffences are also arrestable offences.

PACE gives any person the power to arrest without a warrant:

� anyone who is, or who is reasonably suspected to be, inthe act of committing an arrestable offence: s.24(4)

� where an arrestable offence has been committed, anyonewho is guilty, or is reasonably suspected of being guilty, ofthe offence: s.24(5).

Section 24(4) and (5) provide what are described as ‘citizen’sarrest powers’, but they are available to police officers as wellas citizens. Police officers, however, also have the widerpowers provided by s.24(6) and (7):

� where a constable has reasonable grounds for suspectingthat an arrestable offence has been committed, he mayarrest without a warrant anyone whom he has reasonablegrounds for suspecting to be guilty of the offence: s.24(6)

� a constable may arrest without a warrant anyone who isabout to commit, or whom he reasonably suspects to beabout to commit, an arrestable offence: s.24(7).

The difference between s.24(5) and s.24(6) is illustrated byWALTERS v WH SMITH [1914] 1 KB 595: a bookstall managerreasonably suspected that W had stolen a particular bookfrom his stall and arrested him under the common law powerwhich is now s.24(5). Other books had been stolen, but notthis particular book, therefore no arrestable offence (felony in1914) had been committed. W obtained damages for falseimprisonment. The arrest would have been lawful had it beeneffected by a constable.

GENERAL OFFENCES

These include all offences which are not arrestable offences orthe subject of a specific statutory power of arrest withoutwarrant, i.e. all offences which are tried summarily, includingoffences such as driving without lights and depositing litter.

Section 25(1) provides that, where a constable has reasonablegrounds for suspecting that any offence which is not anarrestable offence has been committed or attempted, or isbeing committed or attempted, he may arrest the relevantperson if it appears to him that service of a summons isimpracticable or inappropriate because one or more of thegeneral arrest conditions set out in s.25(3) paragraphs (a) to(e) is satisfied, e.g. that the name of the person is unknown toand cannot be readily ascertained by the constable; that theperson has failed to provide a satisfactory address for serviceof a summons.

STATUTORY POWERS OF ARRESTWITHOUT WARRANT

Section 26(1) provides that any such statutory powers shallcease to have effect, but this is subject to s.26(2) which

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preserves the statutory powers of arrest specified in Schedule2 of the Act.

Schedule 2 lists the Acts of Parliament which contain powersauthorising a constable to arrest without a warrant or a courtorder, each of which is preserved because there is believed tobe a need for powers of arrest unfettered by the general arrestconditions of s.25 in respect of offences which are notsufficiently serious to be categorised as arrestable offences, orin order to preserve powers of arrest in respect of personswho have not committed criminal offences but must bedetained either for their own safety or because they areillegally at large. The Public Order Act 1986 contains manysuch sections.

Section 26(1) repeals only those statutory powers whichenable a constable to arrest without warrant. Consequently,powers of arrest given to citizens (e.g. s.41 Sexual OffencesAct 1956, which permits citizens to arrest any man foundpersistently soliciting in a public place for immoral purposesand persons found committing the offence of living on theearnings of male prostitution), to immigration officers, customsand excise officers, and others, are unaffected by the repeal.

COMMON LAW POWER OF ARRESTWITHOUT WARRANT

The one remaining common law power of arrest is unaffectedby PACE. The Court of Appeal in R v HOWELL [1981] 3 All ER383; [1982] QB 416 held that the power to arrest is available to aconstable and a private citizen where:

� a breach of the peace is committed in the presence of theperson making the arrest

� the arrestor reasonably believes that such a breach will becommitted in the immediate future by the person arrestedalthough he has not yet committed any breach

� a breach of the peace has been committed and it isreasonably believed that a renewal of it is threatened.

In HOWELL, Watkins LJ explained the meaning of ‘breach ofthe peace’.

‘There is a breach of the peace whenever harm is actuallydone or is likely to be done to a person or, in hispresence, to his property, or a person is in fear of beingso harmed through an assault, an affray, a riot, anunlawful assembly or other disturbance.’

Violence, therefore, actual or apprehended, is an essentialingredient of breach of the peace. Loud noise or boisterousbehaviour is not, without more, a breach of the peace. In R vCHIEF CONSTABLE OF DEVON AND CORNWALL EX PARTECENTRAL ELECTRICITY GENERATING BOARD [1981] 3 All ER 826Lord Denning MR, in the context of a demonstration againstthe possible choice of a site for a nuclear power station whichtook the form of obstruction of the board’s workers, includedunlawful passive resistance in the definition: ‘There is a breachof the peace whenever a person who was lawfully carrying

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out his work was unlawfully and physically prevented byanother from doing it.’

The House of Lords in ALBERT v LAVIN [1982] AC 465 held thatthe common law allows a person to temporarily detain andrestrain a person breaking or threatening to break the peacewithout arresting him. If he desists or ceases to threaten abreach of the peace he may be released. If he persists he maybe arrested. Resistance to such restraint is unlawful. LordDiplock pointed out that it is not only the right of a citizen totake reasonable steps to stop or prevent a breach of thepeace, it is also his duty.

Such a duty normally falls upon police constables. In MOSS vMcLACHLAN (1984) 149 JP 167 the Divisional Court held that thepolice had reasonable grounds for apprehending an imminentbreach of the peace when they arrested four defendants afterstopping a convoy of striking miners on the M1 inNottinghamshire preventing them from continuing on to join amain picket at collieries nearby. The police had, therefore,been engaged in the execution of their duty at the time of thearrests and the defendants had been rightly convicted of wilfulobstruction of a police officer in the execution of his dutycontrary to s.51(3) Police Act 1964.

Think Point 2

List the circumstances in which a police officer mayarrest without warrant.

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ASPECTS OF ARREST

REASONABLE CAUSE TO SUSPECT

This phrase underlies most of the powers of arrest withoutwarrant. As might be expected, it has not been given a fulljudicial interpretation as the reasonable suspicion mustultimately be judged on the facts as they appeared at the timeof the particular arrest. But judicial guidance has been given.

� It does not have to amount to a prima facie case againstthe arrested person. In HUSSIEN v CHONG FOOK KAM[1970] AC 942; [1969] 3 All ER 1626 Lord Devlin said thatsuspicion was a state of conjecture or surmise whereproof was lacking. Suspicion arises at or near the startingpoint of an investigation of which obtaining prima facieproof is the end. Where prima facie proof is obtained, thepolice case is complete. The matter is ready to pass on tothe next, the judicial, stage.

� The test of reasonableness is objective, i.e. it cannotdepend only on the arrestor’s state of mind.

� In HOLGATE-MOHAMMED v DUKE [1984] 1 All ER 1054 theHouse of Lords applied Lord Greene MR’s principles setout in ASSOCIATED PROVINCIAL PICTURE HOUSES LTD vWEDNESBURY CORPORATION [1948] 1 KB 223 (CA) andapplicable to the exercise of an executive discretion by apublic official. The constable must act in good faith,exercise the power of arrest for a proper purpose, andirrelevant matters must be excluded from consideration.The police officer, investigating a theft, had suspicionsabout the plaintiff and believed that there was a greaterlikelihood that she would respond truthfully to questions atthe police station than at home. He arrested her for thepurpose of taking her to the police station for questioning.The House of Lords held that the officer’s belief was notirrelevant and that the discretion to arrest had beenexercised properly. The courts have allowed the policemuch leeway to arrest where suspicion is at a low level. InCASTORINA v CHIEF CONSTABLE OF SURREY (1988) NLJ 180detectives were investigating a burglary of a company’spremises and came to the conclusion that it was an ‘insidejob’. They then arrested a dismissed employee, a middleaged woman with no criminal record. She was detainedand released without charge. She sued unsuccessfully forfalse imprisonment. The Court of Appeal held that wherean unlawful arrest is alleged two questions must beanswered: firstly did the arresting officer suspect theperson to be guilty (a subjective test), secondly was therea reasonable cause for suspicion (an objective test). If theanswer to both was yes then the officer had discretion tomake an arrest.

ENTRY ON TO PRIVATE PREMISES TOMAKE AN ARREST

PACE replaces the previous statutory and common lawpowers possessed by constables to enter premises to make

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an arrest. Section 17(1) confers upon a constable power toenter and search any premises for the purpose of:

� executing a warrant of arrest issued in connection with orarising out of criminal proceedings

� arresting a person for an arrestable offence

� arresting a person for specified offences under the PublicOrder Act 1936 (political uniforms, offensive weapons atpublic meetings, offensive conduct conducive to a breachof the peace) and Criminal Law Act 1977 (offences relatingto entering and remaining on property, i.e. squattingoffences).

The constable must have reasonable grounds for believingthat the person he is seeking is on the premises: s.17(2)(a).

For the lawful exercise on private premises of a specific powerof arrest without warrant conferred by an Act of Parliamentincluded in Schedule 2 of PACE (preserved powers of arrest –the third category of arrest without warrant powers referredto above) the statute must authorise the entry as, for example,do ss.5 and 7 of the Road Traffic Act 1972 as amended by theTransport Act 1981.

USE OF FORCE TO EFFECT AN ARREST

Section 3(1) of the Criminal Law Act 1967 provides that ‘aperson may use such force as is reasonable in thecircumstances in the prevention of crime or in effecting orassisting in the lawful arrest of offenders or suspectedoffenders or of persons unlawfully at large’.

This applies generally, not only to arrest, and applies to anyperson and not merely to constables.

In addition, s.117 of the Police and Criminal Evidence Act,which does apply only to constables, allows a constable touse reasonable force, if necessary, in the exercise of powersconferred by the Act, e.g. the powers of arrest conferred.

REASONS FOR ARREST

The common law principle, stated by the House of Lords inCHRISTIE v LEACHINSKY [1947] AC 573, is that a person who isarrested without a warrant must be informed of the trueground of arrest. Otherwise the arrest will be unlawful, as itwas in CHRISTIE v LEACHINSKY when L was told that he wasbeing arrested for unlawful possession of a bale of clothcontrary to the Liverpool Corporation Act 1921. The policehad no power to arrest without warrant under the Actbecause the Act only permitted such arrest where theperson’s name and address were unknown. L was eventuallycharged with larceny and was acquitted. He sued the policeofficers for damages for false imprisonment. The officersargued that at the time of the arrest they reasonably suspectedL of having stolen or having feloniously received the cloth.The House of Lords held that, as L had not been told the realreason for his arrest, but had been given a different reason

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which was not a ground of arresting him without a warrant, hewas entitled to damages.

In ABBASSY AND OTHERS v NEWMAN AND OTHERS [1990] 1 AllER 193 the Court of Appeal held that the trial judge in a civilaction against the police for unlawful arrest and other mattershad been wrong to hold that the reason given for the arrest,namely ‘unlawful possession’ was necessarily insufficient asreason for an arrest for the subsequent charges of theft, orreceiving, or illegally taking and driving away, a motor vehicle.

Section 28 incorporates the common law rule of CHRISTIE vLEACHINSKY: no arrest will be lawful unless the personarrested is informed of the ground of arrest at the time of, oras soon as is practicable after, the arrest. Where a person isarrested by a constable this applies even if the ground ofarrest is obvious: s.28(4).

In DPP v HAWKINS [1988] All ER 673, a police officer arresting aperson did not act outside the execution of his duty if duringan arrest it was not practicable to give the reason for thearrest because the accused physically resisted arrest, andwhen it became practicable later he did not do so. An assaulton the officer was an assault on him in the execution of hisduty. However, in EDWARDS v DPP 1991 Crim.L.R. 45 CA wherethe reason given for the arrest was incorrect, the arrest wasunlawful: giving the correct information for the arrest was heldto be of the utmost constitutional significance.

DETENTION FOR QUESTIONING BEFOREARREST

The police, in the execution of their duty to keep the peace,prevent crime and bring criminals to justice, may makereasonable enquiries and ask questions of the public: RICE vCONNOLLY [1966] 2 QB 414; 2 All ER 649.

RICE v CONNOLLY also established that a person is under nolegal obligation to answer such questions, and refusal toanswer does not in itself constitute the offence of wilfulobstruction of a constable in the execution of his dutycontrary to s.89 Police Act 1996. Lord Parker CJ said that theduty to help the police was social or moral in character andnot legal. Rice had declined to give his full name and addressto police officers. His conviction of wilful obstruction of theofficers was quashed.

It might be different if the refusal to answer police questionsabout an alleged offence is accompanied by hostile andabusive behaviour, as in RICKETTS v COX (1982) 74 Cr App Rep298.

These are common law principles. Some Acts of Parliament doimpose a legal duty to answer police questions in the specifiedcircumstances, e.g. Prevention of Terrorism (s.11 TemporaryProvisions) Act 1984, s.6 Official Secrets Act 1920. Unders.159 of the Road Traffic Act a constable in uniform haspower to require a person driving a motor vehicle on the roadto stop and, under s.161, a constable (whether in uniform ornot) may require production of driving licence and a statement

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of date of birth of any person driving a motor vehicle on aroad. The common law power of a constable to ask questionsdoes not carry with it a power to detain a person forquestioning.

There are also numerous cases concerned with whether anassault on a police officer arising out of the officer’s attempt todetain in order to ask questions is an assault on the officer inthe execution of his duty contrary to s.89 Police Act 1996.The answer given in cases such as COLLINS v WILLCOX [1984]3 All ER 374 is in the negative. DONNELLY v JACKMAN [1970] 1 AllER 987 is distinguished because there the officer merely tappeda shoulder to attract attention instead of, as in the other cases,placing a hand firmly on a shoulder or taking hold of an arm.

The House of Lords, in HOLGATE-MOHAMMED v DUKE (seeabove) held that where there was reasonable suspicion that aperson had committed an arrestable offence it was permissiblefor a constable to arrest in order to take the suspect to apolice station where there was a greater likelihood that thesuspect would respond truthfully to questions than at home.

There is no common law power to detain for questioningwithout a formal arrest. PACE does not confer any suchpower on the police. Where a person has voluntarily attendedor accompanied a police officer to a police station, s.29 of theAct states that he shall be entitled to leave at will unless he isplaced under arrest and is informed of that fact at once.

A person must be cautioned upon arrest for an offence unlessit is impracticable to do so. Here it is important to refer to theCodes of Practice which may be issued by the HomeSecretary, laid in draft form before Parliament and brought intoeffect by statutory instrument. These were last revised in1995. Code C deals with detention, treatment and questioningof persons by police officers. Following changes introduced inthe CJPOA the new words of the caution are given in therevised Code C: ‘You do not have to say anything. But it mayharm your defence if you do not mention when questionedsomething which you later rely on in court. Anything you saymay be given in evidence.’ This provision must be read inconjunction with the stipulation in the Code that interviewingshould take place at the designated police station howeverthere may be exceptions to this requirement, for example ifthere is a risk of harm to evidence. An interview is ‘thequestioning of a person regarding his involvement orsuspected involvement in a criminal offence or offences.’ It iscrucial to decide whether an exchange is an interview or notbecause, if it is, various safeguards for the suspect come intoplay. The new statute makes several inroads to what isgenerally known as the right to silence and it appears that thisapplies both on arrest and during questioning at the policestation. Thus under CJPOA s.34 the effect of the accused’sfailure to mention facts when questioned or charged which aresubsequently relied on at trial may lead to the drawing of‘such inferences from the failure as appear proper’.Furthermore under ss.36 and 37 such inferences may bedrawn from the accused’s failure or refusal to account forobjects, substances or marks, or for his presence at aparticular place. Guidance on appropriate inferences to be

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drawn from silence at trial is given in R v COWAN [1995] 3 WLR818. Under the provision of paragraph 11.2A of the Code, theinterviewing officer at the police station may put to the suspect‘any significant statement or silence’ which occurred beforehis arrival at the police station.

The Court of Appeal has now held that legal advice not toanswer questions at police interview will not in itself amount tosufficient reason for not mentioning relevant matters which thedefendant may later rely on (R v CONDON 1997 1 WLR 827).

See also R v DANIEL [1998] The Times, 10 April.

DISPOSITION AFTER ARREST

Table: Criminal Justice and Public Order Act 1994

Provisions on silence:

s.34 s.36 s.37

Suspect must have been given general caution code C para 10.4.

Suspect or his counsel at trialmust offer explanation whichmight reasonably have beengiven earlier (s.34(1))

Suspect must have been arrested and given the specialwarning (Code C paras 10.5 A and B).

Suspect must be interviewed at police station unless thespecial conditions of Code C para 11.1 apply, e.g. danger ofinterferene with evidence.

Arrested suspect at interviewshould be given opportunityto confirm/deny earliersilence outside police station.

Suspect should be given opportunity at start of interview toconfirm/deny earlier failure to account outside police station.

Suspect must fail to accountfor objects, substances ormarks.

Suspect must fail to accountfor presence.

Silence cannot be used aspart of primary case againstsuspect.

His failure to so account canbe used as part of theprimary case against him.

His failure to so account canbe used as part of theprimary case against him.

Suspect shall not be committed for trial or be convicted solely on silence, failure or refusalto account (s.38(4)).

Note: Code C issued under Police and Criminal Evidence Act 1984.

Where an arrest warrant has been issued, police officers mustcomply with the terms of the warrant, which will require eitherproduction of the arrested person in court straightaway or hisrelease on bail.

Where a private person arrests without a warrant he shouldtake the arrested person to a police officer or magistrate assoon as is reasonably possible.

Section 30(1) provides that, where a person is arrested by aconstable for an offence, or is taken into custody by a

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constable after being arrested for an offence by a personother than a constable at any place other than a police station,he shall be taken to a police station as soon as is practicableafter the arrest. Normally this would be a designated policestation, i.e. one used for the purpose of detaining arrestedpersons and having the necessary facilities.

Section 30(10) allows a delay if the presence of the arrestedperson is necessary elsewhere in order to carry out immediateinvestigations. Such delay must be recorded on arrival at thepolice station.

Before PACE came into effect it was most uncertain as to howmuch time the police had at their disposal to question anarrested person and further pursue their enquiries beforeformally charging him with an offence and producing himbefore a court. Research conducted for the Royal Commissionon Criminal Procedure 1981 indicated that 75 per cent ofsuspects are formally charged or released within six hoursand 95 per cent within twenty-four hours. But there was nospecified time limit, and in some cases suspects were held bythe police for periods of up to five days (seven days in R vMACINTOSH [1982] The Times, 8 October) before a charge wasmade.

Part IV of PACE gives much clearer and more specificstatutory rules relating to the duration of police detention.Each designated police station must have a custody officer toreview the continued applicability of the grounds for detentionof a person and to ensure that the duties imposed by the Actand the Code of Practice (revised in 1995) relating to reviewsof detention and the keeping of records are complied with.

Section 40 of the Act provides for periodic reviews by thepolice of the detention of each person, the first review beingnormally after six hours with subsequent reviews at nine-hourintervals.

Section 41 provides that a person shall not be kept in policedetention for more than twenty-four hours without beingcharged with an offence. The relevant time from which thetwenty-four hours is to run is explained in s.41(2) to (6) and isnormally the time of arrival of the detained person at therelevant police station, i.e. the first police station to which he istaken in the police area in which his arrest was sought. Aperson who has not been charged at the end of twenty-fourhours shall be released (unless s.42 or s.43 applies) either onbail or without bail: s.41(7).

Section 42 deals with the situation where a person is underarrest in connection with a serious arrestable offence asdefined in s.116 and Schedule 5. This phrase occurs severaltimes in PACE. Serious arrestable offences must bedistinguished from arrestable offences. The list includesoffences which are obviously ‘serious’, such as murder andmanslaughter, but it also specifies that other offences canbecome serious arrestable offences if they involve:

� serious harm to the security of the state or public order

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� serious interference with the administration of justice orwith the investigation of offences or a particular offence

� the death of any person

� serious injury to any person

� substantial financial gain

� serious financial loss to any person.

The last two items are relative, so a minor theft could be‘serious’ depending on the means of the victim.

A police officer of the rank of superintendent or above may, ifhe has reasonable grounds for believing that the detention ofthe person without charge is necessary to secure or preserveevidence relating to an offence for which he is under arrest orto obtain such evidence by questioning him, authorise keepingthat person in police detention for up to thirty-six hours afterthe relevant time. The detained person, or a solicitorrepresenting him, shall be given an opportunity to makerepresentations to the officer about the detention: s.42(6).

Section 43 provides that if the police, in a case covered bys.42, wish to detain a person without charge for longer thanthirty-six hours, they must apply to a magistrates’ court,normally before the expiry of the thirty-six hours, and satisfythe court that there are reasonable grounds for believing thatfurther detention is justified. The court may issue a warrant offurther detention authorising the keeping of the person inpolice detention for such period as the court thinks fit, but forno longer than thirty-six hours. The person detained must beinformed of this application to the magistrates’ court and mustbe brought before the court where he will be entitled to legalrepresentation: s.42(2) and (3).

Under s.44 the police may apply to the court for an extensionof a warrant of further detention which can be for no longerthan another thirty-six hours. In all, detention without chargecannot exceed ninety-six hours after the relevant time.

Section 46 provides that where a person is charged with anoffence and is then kept in police detention he shall be broughtbefore a magistrates’ court as soon as is practicable and inany event not later than the first sitting after he is charged.

The Prevention of Terrorism (Temporary Provisions) Act 1984– first enacted in 1974 – empowers the police to detainpersons reasonably suspected to be involved in offencesunder the Act for up to forty-eight hours and for a further fivedays with the consent of the Home Secretary.

QUESTIONING OF SUSPECTS IN POLICEDETENTION

From 1912 this was governed by the Judges’ Rules, a non-statutory code of practice, drafted by the judges, which thepolice were expected to follow. The Rules dealt with the givingof cautions to suspected offenders at specified times during aninvestigation and with the reception and use of admissions

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and confessions as evidence. Once a person was formallycharged with an offence, the right of the police to continue toquestion him was severely restricted by the Judges’ Rules.

The Judges’ Rules have been replaced by the Codes ofPractice relating to the detention, treatment, questioning andidentification of persons by the police.

QUESTIONING OF SUSPECTS AND THERIGHT TO LEGAL ADVICE

PACE gives all persons arrested and held at a police station aright to have someone informed of the fact and place of theirdetention. By s.58 they are, in most cases, to be allowedaccess to a solicitor, delay being allowed only in the case of aserious arrestable offence and if an officer of at least the rankof superintendent authorises it. He may authorise delay if hehas reasonable grounds for believing that the exercise of theright to a solicitor will lead to:

� interference with, or harm to, evidence

or

� interference with, or physical injury to, other persons

or

� alerting of other persons suspected of having committedsuch an offence but not yet arrested for it

or

� hindering of the recovery of any property obtained as aresult of such an offence.

The conduct of the interrogation is covered in detail by TheCode of Practice, revised in 1995. They cover such matters asthe administering of the caution, the amount of rest whichsuspects must be allowed and recording of the interviews. Amajor problem with the Act is that there is no enforcementprocedure: breaches of the Code or statute do not inthemselves constitute civil or criminal wrongs. The optionsopen to the suspect who has suffered a breach of the Codeare:

� to make a complaint, which may lead to disciplinary actionagainst the police

� to attempt at the trial to have any evidence obtained as aresult of the breach of procedure declared inadmissible.

Much contest revolves around confessions which the suspectwants to retract. Because of the risk of a confession beingmade for a number of reasons other than guilt – for example,fear, intimidation, or other psychological compulsion – therules of evidence have been developed to protect vulnerablesuspects. These are now to be found in three sections ofPACE which, to some extent, overlap.

The basic framework on admissibility of evidence is as follows:

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– s.76(2)(a) Oppression test – applies only to confessionevidence

– s.76(20)(b) Reliability test – applies only to confessionevidence

– s.78 Fairness test– applies to confession and non-confession evidence.

Section 76(2)

This section provides that, if it is alleged that a confession wasobtained:

� by (a) oppression

or

� (b) in consequence of anything said or done that was likelyto render any confession unreliable

the confession will not be admitted unless the prosecution canprove beyond reasonable doubt that it was not so obtained.

Section 76(2)(a)

Here, ‘oppression’ includes torture but is much wider. Theleading case on s.76(2)(a) is R v FULLING [1987] 2 All ER 65where it was defined as ‘the exercise of authority or power ina burdensome, harsh or wrongful manner, unjust or crueltreatment of subjects inferiors etc. … the imposition ofunreasonable or unjust burdens’. In this case the defendantRuth Fulling was arrested in connection with a burglary. Aconvicted criminal had given information leading to the arrest.Initially Fulling remained silent but then one of the officers toldher that her boyfriend had been having an affair with anotherwoman who was in the next cell. Upon hearing this, Fullingbecame very upset and confessed, since she could not bearto be in the cell any more. She later argued that the confessionshould be excluded on the grounds that it was obtained byoppression. The Court of Appeal upheld the trial judge’sruling, refusing to exclude the confession. It was held thatoppression would usually involve deliberate impropriety onthe part of the interrogator. The definition of oppression inFULLING was applied in R v MILLER (reported sub nom R vPARIS, ABDULLAH and MILLER (1993) 97 Cr App R 99). The Courtof Appeal quashed the convictions for murder of a Cardiffprostitute because the confessions were obtained byoppression. Miller had been interviewed for 13 hours in totaland had denied being at the scene over 300 times before hebegan to make admissions. The interviews were taperecorded. The Court of Appeal found that Miller was ‘bulliedand hectored’ such that ‘short of physical violence it was hardto conceive of a more intimidating approach by officers to asuspect’. These techniques were regarded as oppressive. Itdid not help the police to argue that there was a solicitorpresent who failed to intervene.

In R v HUGHES (1988) Crim LR 442 it was held that denial ofaccess to a solicitor which was not due to bad faith on thepart of the police could not amount to oppression.

Section 76(2)(b)

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This section deals with unreliability. Here, the test as towhether the facts existing at the time the confession was madewould be likely to render it unreliable is objective.

It is not necessary under this test to show that there has beenany misconduct on the part of the police. In R v HARVEY (1988)CRIM LR 241 the defendant, a mentally ill woman of lowintelligence, may have been induced to confess to murder afterhearing her lesbian lover’s confession. The ‘something said ordone’ was the lover’s confession, while the ‘circumstances’were the defendant’s low intelligence and her mental state. It isnecessary therefore to find some special factor in the situationsuch as the mental condition of the defendant in order toinvolve s.76(2)(b). In R v CANALE (1990) 2 All ER 187 there wasbreach of the recording provisions and, it was alleged, a trickplayed by the police to obtain a confession. The court heldthat exclusion under this section was inappropriate becausethe defendant had been in the Parachute Regiment and wasnot so weak-minded as to be influenced by the trick. But in R vSILCOTT, BRAITHWAITE, RAGHIP (1992), The Times, 9 Decemberthere was a need to overturn the convictions inter alia, out ofconsideration of the mental condition of one of the defendantswhen he made the confession.

In R v GOLDENBERG (1988) 88 Cr App R 285 the Court of Appealheld that ‘something said or done’ canot be something self-inflicted by the defendant.

Section 78

This section provides that:

‘in any proceedings the court may refuse to allow evidenceon which the prosecution proposes to rely to be given if itappears to the court that, having regard to all thecircumstances, including the circumstances in which theevidence was obtained, the admission of the evidencewould have such an adverse effect on the fairness of theproceedings that the court ought not to admit it.’

This is the discretionary ‘fairness’ test which was designed tosafeguard the fairness of the trial rather than discipline thepolice for malpractice. The case law shows that where there is‘bad faith’ on the part of the police – for example indeliberately breaching s.58 by delaying access to a solicitor –then the evidence of the confession will not be admitted.

In R v SAMUEL [1988] 2 All ER 135, wrongful delay in allowingaccess to a solicitor led to the confession being ruledinadmissible. Here the defendant was not able to handle theinterview without legal advice.

But in R v ALLADICE (1988) 87 Crim App Rep, delay was held notto render the confession inadmissible. Lord Lane stated that‘the only difference the presence of a solicitor would havemade would have been to provide additional advice to theappellant’s right to say nothing – a right which he knew andunderstood and indeed at times during the interviewexercised’. There was no causal connection between the delayand the confession.

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In R v MASON [1988] 1 WLR 139 the police tricked the defendantinto confessing by falsely claiming to have his fingerprints onan incriminating article. The deceit both of the police and of thesolicitor led to the confession being ruled inadmissible.

It seems that s.78 will be applied if there is deliberate bad faithon the part of the police or a significant and substantialimpropriety not accompanied by bad faith. Bear in mind that ifthere are several interviews, breaches in one may render evenproperly conducted subsequent interviews inadmissible sincethe suspect may reckon he has nothing to lose, R vMcGOVERN [1991] Crim LR 124.

Section 82(3)

Section 82(3) preserves the common law discretion of thejudge to rule any piece of evidence inadmissible, but inpractice is not invoked because of the prevalence of the othertests. The importance of this rule is much diminished by thescope of s.78 of PACE which is normally relied on.

IMPROPERLY OBTAINED EVIDENCEOTHER THAN CONFESSIONS

Under the common law the discretion to exclude improperlyobtained evidence other than confessions was rarelyexercised. In JEFFREY v BLACK [1978] 1 All ER 555, Lord WidgeryCJ said: ‘I have not the least doubt that an irregularity inobtaining evidence does not render the evidence inadmissible.Whether or not the evidence is admissible depends onwhether or not it is relevant to the issues in respect of which itis called.’

In R v SANG [1980] AC 402, a case involving an agentprovocateur, it was held that there was no defence ofentrapment in English law. The House of Lords appeared alsoto maintain that it is arguable that the common lawexclusionary power is limited to confessions, and evidenceobtained from the accused after the commission of theoffence.

Section 78 of PACE applies to any evidence and its applicationwas considered in R v CHRISTOU and R v WRIGHT [1992] 3 WLR228. In this case, in order to deal with a spate of burglaries thepolice set up a shop run by two officers who pretended to bejewellers prepared to buy stolen goods. The two defendantswere filmed offering stolen goods for sale. They appealed ontwo grounds: firstly that the police trick deprived them of theirprivilege against self-incrimination and secondly that theconversations with the police were interviews and thereforeCode C was breached. The appeals were rejected. The courtacknowledged that there was a discretion to exclude evidenceunder PACE and at common law and that criterion ofunfairness was the test; the trial judge had not actedunreasonably in the exercise of the discretion. They also heldCode C did not apply because the defendants were not beingquestioned by the undercover police in their capacity as policeofficers.

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In R v SMURTHWAITE (1994) Crim LR the Court of Appealconsidered the application of s.78 to evidence obtained withthe assistance of entrapment. Smurthwaite had made inquiriesfor a contract killer and was approached by an undercoverpolice officer. Smurthwaite was convicted of solicitation tomurder and on appeal argued that the evidence of theundercover officer should have been excluded. The courtupheld the conviction. It was held that s.78 has not changedthe substantive rule of law that entrapment or use of an agentprovocateur does not per se afford a defence in law to acriminal charge. However, evidence obtained by entrapmentcan be excluded under s.78 if the trial judge concludes thatthe obtaining of the evidence in that way would have theadverse effect described in the Act. The court should considerwhether the officer was acting in such a way as to entice thedefendant to commit an offence he would otherwise notcommit. The court should consider the nature of theentrapment and the nature of the officer’s role in it. Each caseturned on its own facts.

In R v KHAN [1996] 3 WLR 162 the House of Lords upheld aconviction where evidence had been obtained by unlawfulinstallation by the police of an electronic listening device in aprivate house.

However, in the same case before the European Court ofHuman rights (KHAN v UK [2001] 31 EHRR 1016), it was held thatthe complainant’s right to privacy under Article 8 of theConvention had been breached. Even so, the Court also heldthat admission of the unlawfully obtained evidence did notconstitute a breach of the right to a fair trial in terms of Article 6.

Think Point 3

What is meant by ‘the right to legal advice’?

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SEARCH OF THE PERSON

NECESSITY OF AN ARREST

At common law the power of a police officer to search aperson depended upon the fact of arrest.

This common law power is given a statutory basis by s.32(1)–(5) of PACE which provides that where an arrest is made at aplace other than a police station a constable may, if he hasreasonable grounds for believing that the arrested person maypresent a danger to himself or others, search an arrestedperson. An arrested person may also be searched foranything which might help him to escape or which might beevidence of an offence. The constable may seize and retainanything he finds which he has reasonable grounds forbelieving the arrestee might use to cause physical injury to selfor another, or to escape. If the search is in public, only outerclothing should be removed. Items relevant to evidence of anyoffence may also be seized. The premises where the arrestedperson was when, or immediately before, he was arrestedmay be entered and searched for evidence of the offence forwhich he was arrested by virtue of s.32(6) and (7).Reasonable grounds for believing that such items may beconcealed must exist. Seizure and retention of articles foundare covered by s.32(8) and (9).

Sections 54 and 55 of the Act provide for the search ofpersons arrested at a police station and of persons detainedfollowing an arrest elsewhere. The custody officer at a policestation must ascertain and record everything which such aperson has with him, but clothes and personal effects mayonly be seized in the prescribed circumstances. Section 55 isconcerned with searches of intimate parts of the body. Theseare authorised only in the special circumstances prescribed bys.55.

STOP AND SEARCH

The common law did not permit a constable to stop a personfor the purpose of searching him. The stopping of a personwithout his consent was technically a false imprisonment andthe search was an assault. However, the Metropolitan PoliceAct 1839 gave the police in London power to stop and searchpersons and vehicles reasonably suspected of having stolenproperty on them. The same power was adopted in local Actsfor urban areas outside London. Fear that the notorious ‘sus’law had been abused thus leading to the Brixton riots in 1981was one of the driving forces behind the regularisation of stopand search powers in PACE. A small number of public generalActs of Parliament have been passed to confer such a powerof stop and search for specified items, e.g. prohibited drugs,firearms, wild plants, birds’ eggs.

Part I of the 1984 Act confers a power of stop and search onthe police in England and Wales. Sections 1 and 2 empowerthe police to stop, detain and search persons and vehicles forstolen or prohibited articles as defined, e.g. offensive

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weapons, articles for use in burglary, theft, taking a motorvehicle without authority, and obtaining property bydeception.

The constable must have reasonable grounds for suspectingthat he will find such articles. A Code of Practice on theExercise of Stop and Search Powers, issued by the HomeOffice under s.66 seeks to explain and clarify the very wideterm reasonable suspicion, e.g. reasonable suspicion cannever rest solely on colour, dress or hairstyle.

Other safeguards include the requirement that the constablemust communicate the object of the search, his grounds forproposing to make it, and his name and police station: ss.2(2)and (3). A record in writing must be made unless it isimpracticable to do so: s.3.

The power to stop and search conferred by the Act isexercisable in any place to which the public or any section ofthe public has access for payment or otherwise, or to whichpeople have ready access but which is not a dwelling e.g. therear of a shop, works canteen: s.1(1).

Section 4 of the Act enables a police officer of the rank ofsuperintendent or above, in connection with a seriousarrestable offence, to authorise the establishment of a road-check to ascertain whether a vehicle is carrying a person whohas committed an offence (other than a road traffic offence) ora witness to such an offence or a person intending to commitsuch an offence or a person unlawfully at large. The policehave the power under s.163 of the Road Traffic Act 1988 tostop individual vehicles. Section 4 confers the power to stopall vehicles if necessary. The police are entitled to detain thevehicle for a reasonable time so as to enable the police, if theysuspect the vehicle to be stolen, to effect an arrest. However,s.163 does not provide a power to search the vehicle. Nordoes s.4 of PACE. Searches must come within the provisionsof s.1 or s.17 of PACE.

POWERS OF ENTRY ONTOPREMISES; SEARCH AND SEIZURE

The common law principle is that nobody has the right toenter private premises except strictly with authority.

Powers of police officers to enter premises are now mainly,but not entirely, contained in PACE. For the purposes of theAct, ‘premises’ is defined in s.23 as including any place andalso any vehicle, vessel, aircraft, hovercraft, tent or moveablestructure. Powers of entry are also possessed under variousstatutes by other public officials.

The necessary authority to enter premises may come from thefollowing.

� Entry with the express or implied consent of the occupier.For the police this is numerically the most commonauthority.

� Entry by a constable to effect an arrest: s.17 (above).

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� Entry by a constable to search premises upon an arrest:s.32(2)(b) which authorises police to enter and search anypremises in which the arrested person was when arrestedor immediately before he was arrested for evidencerelating to the offence for which he was arrested. Thepolice must have reasonable grounds for believing thatsuch evidence is on the premises.

This alters the common law as stated in McLORIE v OXFORD[1982] 3 All ER 480, which held that police could not returnlater to search premises which could have been, but werenot, searched at the time of arrest.

� Entry by a constable to search premises following anarrest: s.18. Where a person has already been arrested foran arrestable offence away from his own premises, policemay enter and search any premises occupied or controlledby that person if there are reasonable grounds forsuspecting that evidence is on the premises relating to thatoffence or to some other connected or similar offence.Under this section items connected with the arrestableoffence for which the person was arrested, or anotherconnected arrestable offence, may be seized. There is noneed for the justification mentioned in s.19 (see below).

An officer of inspector rank or above must authorise thesearch except where a constable may conduct a searchbefore taking a person to police station if the search isnecessary for the effective investigation of the offence:s.18(5).

� Entry by a constable to recapture a person who isunlawfully at large and whom he is pursuing: s.17(1)(d).Reasonable grounds must exist for believing that theperson is on the premises. This replaces the ancient butuncertain position at common law.

� Entry by a constable to save life or limb or prevent seriousdamage to property: s.17(1)(e). Again this replaces an oldbut uncertain common law power. The police need not besearching for anyone and there is no requirement that thethreat should concern the premises in question.

� Entry by a constable to deal with or prevent a breach ofthe peace: s.17(6). Based on an old common law power.

� Rights of entry available to ordinary citizens are still basedon old and uncertain common law powers.

� Entry under the authority of specific statutory provisionfor public officials to inspect premises or to superviseactivities, e.g. the Gaming Act 1968 allows a constable toenter premises without a warrant to examine whetherterms of a gaming licence are being observed. Similarpowers exist in relation to public houses, cinemas, theatresand knackers’ yards. Many other public officials havestatutory powers to enter to inspect premises, e.g.customs and excise, gas, electricity, public health, food,fire service, social security, television reception.

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� Section 19 confers important general powers of seizure onofficers who are ‘lawfully on the premises’. Under thissection anything which the constable has reasonablegrounds for believing is evidence of any offence may beseized if it is necessary to prevent it being concealed, lost,altered or destroyed.

� Section 20 of the 1984 Act extends the powers of seizureto computerised information.

� Section 21 provides for access to and copying of materialseized by the police.

� Section 22 provides that anything seized or taken away bya constable under s.19 or s.20 may be retained so long asis necessary in the circumstances.

The above powers cover situations where the police arelawfully on premises. Section 19(5) provides that, ‘the powersconferred by this section are in addition to any powerotherwise conferred’. This arguably refers to common-lawpowers of seizure demonstrated in GHANI v JONES [1970] 1 QB639 (see below) which cover trespassing constables.

ENTRY UNDER THE AUTHORITYOF A SEARCH WARRANT TOSEARCH PREMISES

The only search warrant permitted by the common law wasone to search for stolen goods. Numerous somewhathaphazard statutory powers exist for police to obtain a searchwarrant to enter and search for e.g. stolen goods, explosivesubstances, forgeries, firearms, prohibited drugs, obscenepublications. Search warrants may also be obtained byinspectors of income tax, Value Added Tax, and customs andexcise.

A search warrant is usually issued after an information onoath has been laid before a magistrate.

The extent of the statutory power conferred varies. Somewarrants authorise search for and seizure of evidence of thecommission or intended commission of an offence. Others aredrafted more narrowly in terms of the specific articles to besearched for.

ENTICK v CARRINGTON (1765) 19 St Tr 1029 established the illegalityof general search warrants. Following that decision, the judgesallowed the common law on search warrants to be developedwith some flexibility in order not to hinder the police in theinvestigation of crime. This culminated in GHANI v JONES in whichLord Denning MR said obiter that, where police officers enterpremises by virtue of a search warrant or even where there isno warrant or arrest, they can take articles which theyreasonably believe to be material evidence in relation to the crimefor which they enter and also any other articles which show theoccupier of the premises to be implicated in some other crime. Inthis case and in CHIC FASHIONS v JONES [1968] 2 QB 299 the

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Court of Appeal extended powers of seizure without statutoryauthority.

With one minor exception, all the pre-existing search warrantpowers conferred by Acts of Parliament survive PACE.

In addition to these existing powers, s.8 allows a police officer,where he has reasonable grounds for believing that a seriousarrestable offence has been committed, to apply for a searchwarrant from a magistrate to authorise a search of premiseswhere there is likely to be relevant evidence. This fills the gapin the previous law and enables the police to obtain a warrantto search for evidence of murder and kidnapping which wasnot previously covered by statute.

Section 8 does not apply to legally-privileged material (asdefined in s.10, e.g. a communication between a legal advisorand a client concerned with the giving of legal advice), whichcannot be obtained by the police under any statutory power.

Section 8 does not apply to excluded material (as defined inss.11, 12 and 13, e.g. journalistic material held in confidenceor personal records of a trade or business held in confidence),which cannot be obtained unless another statutory warrantpower exists and the special procedure in Schedule 1 of PACEis followed. This involves an application to a circuit judge.

The special procedure of Schedule 1 also applies to what iscalled special procedure material defined in s.14, e.g. non-confidential journalistic material.

The issue of a search warrant to a constable under anystatutory enactment is subject to the safeguards contained inPACE. The applicant must state the reason for the search andthe warrant must specify the name of the applicant, date ofissue, empowering statute, premises to be searched andidentify (so far as is practicable) the articles or person to besought: s.15.

Revision

When you are satisfied that you have understood thematerial in the chapter, and have done the additionalreading, try the Self-assessment Test which follows. Donot send your answers to your tutor, but comparethem with the specimen answers provided.

ADDITIONAL READING


Marston and Ward, Chapters 17, 18

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CASES REFERRED TO IN THISCHAPTER

* denotes most significant cases

R v METROPOLITAN POLICE COMMISSIONER EX PARTEBLACKBURN 1968

R v CHIEF CONSTABLE OF DEVON AND CORNWALL EX PARTECENTRAL ELECTRICITY GENERATING BOARD 1981

R v CHIEF CONSTABLE OF SUSSEX EX PARTE INTERNATIONALTRADERS’ FERRY LIMITED 1998

R v HOME SECRETARY EX PARTE NORTHUMBRIA POLICEAUTHORITY 1987

HILL v CHIEF CONSTABLE OF WEST YORKSHIRE 1988

* R v CHIEF CONSTABLE OF WEST MIDLANDS EX PARTE WILEY 1995

ALDERSON v BOOTH 1969

R v INWOOD 1973

LEACH v MONEY 1765

WALTERS v WH SMITH 1914

R v HOWELL 1981

ALBERT v LAVIN 1982

MOSS v McLACHLAN 1984

* HUSSIEN v CHONG FOOK KAM 1970

HOLGATE-MOHAMMED v DUKE 1984

R v COWAN

R v CONDON 1997

R v DANIEL 1998

ASSOCIATED PROVINCIAL PICTURE HOUSES v WEDNESDAYCORPORATION 1948

* CASTORINA v CHIEF CONSTABLE OF SURREY 1988

CHRISTIE v LEACHINSKY 1947

ABBASSY AND OTHERS v NEWMAN AND OTHERS 1990

DPP v HAWKINS 1988

EDWARDS v DPP 1991

RICE v CONNOLLY 1966

COLLINS v WILLCOX 1984

DONELLY v JACKMAN 1970

R v MACINTOSH 1982

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* R v FULLING 1987

R v PARIS, ABDULLAH and MILLER 1993

* R v HUGHES 1988

* R v HARVEY 1988

* R v CANALE 1990

R v SILCOTT, BRAITHWAITE, RAGHIP 1992

* R v GOLDENBERG 1988

* R v SAMUEL 1988

* R v ALLADICE 1988

* R v MASON 1988

R v McGOVERN 1991

JEFFREY v BLACK 1978

* R v SANG 1980

* R v CHRISTOU 1992 and R v WRIGHT 1992

* R v SMURTHWAITE 1994

R v KHAN 1996

GHANI v JONES 1970

McLORIE v OXFORD 1982

ENTICK v CARRINGTON 1765

CHIC FASHIONS v JONES 1968





QUESTION 1Cyril was taking part in a protest demonstration in Londonagainst the policies of the Republic of Mordor. While the marchwas peacefully dispersing outside the Mordorian Embassyafter the handing in of a petition of protest, Cyril wasobserved by two police officers still to be shouting anti-Mordor slogans and banging his banner on the ground. Hewas red in the face and looked very angry.

The two officers approached Cyril and each took hold of anarm with the intention of moving Cyril away from the Embassyarea in the hope he would calm down. However, Cyril resistedand struck one of the police officers and was then arrested forassaulting a police officer in the execution of his duty. Cyrilwas searched and the officers found an unauthorised firearm.

Cyril’s address indicated that he did not live far away so theofficers took him to his flat, made him open the front door andthen searched the flat where they found a number ofexpensive stolen goods.

Cyril is now charged with assaulting a police officer inexecution of his duty, possession of an unauthorised firearmand handling stolen goods.

Discuss.

QUESTION 2X is suspected by the police of having taken part in a numberof armed robberies. He is followed to the house of Y, a friend.When X leaves he is arrested without a warrant, in the street,by police officers.

Outline the procedure which will be followed from the time ofarrest to the period of interviewing.




QUESTION 1One of the fundamental duties of a police officer is to preservethe peace. To this end, although all other police powers ofarrest without warrant are now authorised by statute, therestill remains a common law power of arrest without warrant inconnection with a breach of the peace.

The Court of Appeal in R v HOWELL (1981) explained that thepower of arrest did not exist only where a breach of the peacewas actually committed. It also existed where a police officer,or a private citizen, reasonably believed that such breachwould be committed in the immediate future by the personarrested although no breach had yet been committed. Abreach of the peace, as defined by Watkins LJ in HOWELL,involves violence, actual or threatened, to person or property.Furthermore the House of Lords in ALBERT v LAVIN (1981) heldthat the common law allows a person to temporarily detainand restrain anyone breaking or threatening to break thepeace without actually arresting him. If he persists he maythen be arrested. Lord Diplock pointed out the duty of acitizen to take reasonable steps to prevent or stop a breach ofthe peace.

This would appear to cover the circumstances described.ALBERT v LAVIN also held that resistance to temporaryrestraints in these circumstances is unlawful. When Cyrilstruck the officer he therefore committed the offence of wilfullyassaulting a police officer in the execution of his duty contraryto s.89 of the Police Act 1996. The officers would have to tellCyril that he was under arrest and the reason for the arrest asrequired by s.28 of the Police and Criminal Evidence Act1984.

At common law a police officer has a right to search anarrested person This common law power is put onto astatutory basis by s.32(1) of the Police and Criminal EvidenceAct 1984, which provides that, where an arrest is made at aplace other than a police station a constable may, if he hasreasonable grounds for believing that the arrested person maypresent a danger to himself or others, search the arrestedperson. The search of Cyril appears reasonable in thecircumstances and, therefore, legitimate. When the firearm isfound Cyril would again have to be told of the fresh reasonfor his arrest.

On the authority of JEFFREY v BLACK (1978) the subsequentsearch of Cyril’s flat without his consent and without a searchwarrant would have been unlawful before the coming intoeffect of the Police and Criminal Evidence Act 1984. Section18 of the Act allows the police, where a person has beenarrested for an arrestable offence away from his ownpremises, to enter and search any premises occupied orcontrolled by that person. The police must have reasonablegrounds for suspecting that evidence is on the premises



relating to that offence or to some other connected or similaroffence. A constable may conduct such a search before takingthe arrested person to the police station if the search isnecessary in the effective investigation of the offence.

The police found an unauthorised firearm when they searchedCyril. Possession of an unauthorised firearm is an arrestableoffence as a person may be sentenced, on indictment, to aprison term of five years. A search of Cyril’s flat would appearreasonable in the circumstances of the arrest, i.e. a politicaldemonstration outside an Embassy and possession of anillegal firearm.

Stolen goods, which the officers find during the search, couldnot be said to be a connected or similar offence tounauthorised possession of a firearm. But seizure anddetention by the police of the stolen goods would be lawfulunder the provisions of s.19 of the Police and CriminalEvidence Act 1984. This section does not confer a power ofentry onto premises but it does confer a power of seizure ona constable who is lawfully (as seems to be the case here) onpremises. Even if the police are held to be unlawfully on thepremises, arguably GHANI v JONES confers common lawpowers of seizure. The constable may seize anything on thepremises if he has reasonable grounds for believing that it hasbeen obtained in consequence of any offence and to preventit from being concealed or destroyed.

It therefore appears from the facts given that the police haveacted lawfully and that the evidence of the firearm and thestolen goods can be used in a subsequent prosecution. Evenwhere evidence has been obtained illegally it is only in extremecases that a court would refuse to admit it if it is otherwiserelevant to the prosecution. Section 78 of PACE rarelyoperates to exclude such evidence.

QUESTION 2The police officers have exercised the power of arrest withoutwarrant in connection with an arrestable offence conferred bys.24(6) of the Police and Criminal Evidence Act 1984.

Section 28 of the Act requires certain information to be givento the arrested person. He must be informed that he is underarrest even if the fact of arrest is obvious and he must also beinformed of the reason for the arrest at the time of the arrestor as soon as is practicable after the arrest. At common law,according to the principles stated by the House of Lords inCHRISTIE v LEACHINSKY (1947) the reason given does not haveto be expressed in precise and technical terms so long as it isthe true ground of arrest.

Where an arrest is made at a place other than a police station,as is the case here, s.32 of the Police and Criminal EvidenceAct permits a constable, if he has reasonable grounds forbelieving that the arrested person may present a danger tohimself or to others, to search the arrested person foranything which might help him to escape or which might beevidence of the offence for which he was arrested. Such asearch would seem to be reasonable in the case of a personsuspected of having been involved in armed robberies.



Section 32 also allows the premises where the arrested personwas immediately before being arrested to be entered andsearched for evidence of the offence for which the arrest wasmade. Reasonable grounds for believing that such items maybe concealed must exist. If this is the case, under thisprovision the police may enter and search Y’s house.

Another power to enter and search premises following anarrest is conferred by s.18. Where a person has beenarrested for an arrestable offence away from his ownpremises, the officers may enter and search any premisesoccupied or controlled by the arrested person if there arereasonable grounds for suspecting that evidence which relatesto that offence or to some other connected or similar offenceis on the premises. Normally an officer of inspector rank orabove must authorise the search, but a constable mayconduct such a search before taking the person to a policestation if the search is necessary for the effective investigationof the offence. The officers, therefore, have the power tosearch X’s premises.

Section 30 of the Act requires the arresting officers to take thearrested person to a police station as soon as is practicableafter the arrest. Normally this would be to what the Act termsa designated police station, i.e. one used for the purpose ofdetaining arrested persons and having the necessary facilities.Section 30(10) allows a delay if the arrested person’s presenceis necessary elsewhere in order to carry out immediateinvestigations such as a search of his own premises. Anysuch delay must be recorded on arrival at the police station.

When the arrested person arrives at the police station s.54requires the custody officer to record everything which thearrested person has with him. Clothes and personal effectsmay only be seized if the custody officer believes that thearrested person may use them to injure himself or anotherperson, damage property, interfere with evidence or help inescape, or if he has reasonable grounds for believing that theymay be evidence relating to an offence. In special cases asearch of the intimate parts of the body may be authorised bythe detailed and careful provisions of s.55.

Interrogation of a person in police custody is regulated by theHome Office’s Code of Practice drawn up as required by s.66PACE. The Code requires cautions to be given at specifiedstages of the investigation and does not normally permitquestioning to continue after the arrested person has beenformally charged with an offence or informed that he will beprosecuted. Normally the questioning must be conducted atthe designated police station but there are circumstances inwhich it may take place outside the station. A caution asdefined in Code C should be administered and the defendantis thus made aware that his silence or failure to mention factshe later relies on at the trial may lead to appropriate inferencesbeing drawn under ss.34, 36 and 37 of Criminal Justice andPublic Order Act 1994.

Section 56 allows a detained person to have a relative orfriend informed that he has been arrested and is beingdetained. Section 58 allows the detained person to consult asolicitor. Delay is permitted in both cases only in the case of a



serious arrestable offence, which is the case here (armedrobbery), or on specified grounds and cannot exceed thirty-six hours.

The Police and Criminal Evidence Act specifies the amount oftime the police have to question arrested persons and collectevidence before bringing a formal charge. Section 41 providesthat person shall not be kept in detention for more thantwenty-four hours without being charged with an offence. Thetwenty-four hour period normally begins to run from the timewhen the arrested person arrives at the police station. Periodicreviews of the detention must be carried out by the police andrecords kept. Section 42 allows the detention of a suspect in aserious arrestable offence, such as armed robbery, to bedetained for up to thirty-six hours. If the police wish to detainfor longer than thirty-six hours they must apply to amagistrates’ court for an order of further detention: s.43. Thismay be for up to thirty-six hours and s.44 allows anapplication for an extension of an order of further detention.But the maximum permitted period of detention is ninety-sixhours. At the end of ninety-six hours the arrested personmust be charged or released.

Section 46 provides that when a person is charged with anoffence and is kept in detention he shall be brought before amagistrates’ court as soon as is practicable and in any eventnot later than the first sitting of the court after he is charged.



CHAPTER 15

FREEDOM OF SPEECH; OPEN AND CLOSEDGOVERNMENT; FREEDOM OF INFORMATION

CONTENTS

Freedom of speech .................................................................. 1

Open and closed government ................................................ 15

Freedom of information .......................................................... 18

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FREEDOM OF SPEECH; OPEN ANDCLOSED GOVERNMENT;FREEDOM OF INFORMATION

FREEDOM OF SPEECH

INTRODUCTION

Freedom of speech and expression is an important part of theUnited Kingdom’s democratic traditions, but there is noconstitutional declaration and guarantee of the right as there isin the United States, where the First Amendment to theConstitution states that ‘Congress shall make no law ...abridging the freedom of speech or of the press’. In the UnitedKingdom freedom of expression may be restricted by both thecommon law and by parliamentary legislation.

However, the United Kingdom has signed and ratified theEuropean Convention for the Protection of Human Rights andFundamental Freedoms and allows individuals to complain of abreach of the Convention to the European Commission onHuman Rights in Strasbourg. Article 9 of the Conventionrecognises the right to freedom of thought, conscience andreligion, while Art 10 recognises the right to freedom ofexpression. In the qualifications which are attached to thestatement of the principle of freedom of expression, Art 10 ofthe Convention, like English law, recognises that the right offreedom of expression is subject to limitations.

The exercise of the right to freedom of expression carries withit duties and responsibilities, as words can cause damage. Theright can legitimately be limited by the demands of nationalsecurity or public safety, the need to prevent crime, protecthealth or morals, protect the reputation or rights of others,prevent the disclosure of information received in confidenceand the need to maintain the impartiality and authority of thejudiciary.

The law may either:

� prevent expression by imposing restraints before thecommunication is made

or

� apply criminal or civil law sanctions to those who breakthe existing legal rules.

The importance of free speech has been underlined by theenactment of the Human Rights Act 1998 and the guarantee ofthe Convention right to freedom of expression (Article 10).This can clearly be seen in the recent case of PERCY v DPP

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[2001] 166 JP 93. Here, the right to free expression was held toprotect the right to deface a US flag outside a US militaryhouse. A prosecution under s.5 of the Public Order Act wasfound to be a disproportionate and therefore unlawfulrestriction on the Article 10 right to free expression.

CENSORSHIP

THE PRINTED WORD

Legal censorship of the printed word ended when the systemof licensing newspapers and other publications lapsed in1695. It was briefly revived by the war-time defenceregulations of 1914 and 1939.

There exists a voluntary form of censorship which applies tothe press (and broadcasting). This is the D- (Defence) noticesystem relating to defence and intelligence matters. A non-statutory Services, Press and Broadcasting Committee, whichconsists of representatives from the three areas, approves theissue of D-notices by government departments to the mediarequesting that material should not be published because itwould have an adverse effect on national defence or security.The Committee has no legal powers, and disregard of a D-notice is not an offence, but it might, possibly, lead to aprosecution under the Official Secrets Acts or to a withholdingof information in the future.

The system has fallen into disrepute in recent years andignoring of D-notices is common. The House of CommonsSelect Committee on Defence in 1980 recommended that thesystem be reformed to make the D-notices much more precisethan they are.

The lobby system of unattributable briefings allows ministersto brief selected journalists and thus, to this extent, ‘manage’the news.

On a very practical level, every newspaper has its owncensor, the editor, who decides what is to be printed. Theinfluence of newspaper proprietors may be important (in 1936they agreed not to publish stories about the relationshipbetween King Edward VIII and Mrs Simpson). On someoccasions in recent years the printing unions have refused toprint articles, news items or cartoons, of which theydisapproved.

Historically, there was no right to privacy in English law andthe press has been criticised for breaching good taste onoccasion. To date, self-regulation operates through the PressComplaints Commission and legal restraints have not beenimposed. But the effect of Article 8 of the ECHR is to create aright to privacy which s.12 of the HRA 1998, in effect,requires to be balanced against press freedom.

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THE CINEMA

Film censorship is in the hands of local authorities, which havethe statutory function under the Cinemas Act 1985(consolidating the Cinematography Acts 1909 to 1982) oflicensing cinemas. In many cases the local authorities havedelegated this licensing function to justices. The licensingauthority is empowered to grant licences subject to conditionsand under such regulations as they think fit. Conditionsimposed relate to public safety but they also restrict theadmission of children and may prohibit the showing of filmslikely to be injurious to morality. In order to achieve a measureof consistency the film industry, in co-operation with theHome Office, established the British Board of FilmClassification (BBFC). This is a non-statutory body whichissues film certificates classifying films into categories. TheBoard may refuse a certificate, or grant one only if prescribedcuts are made. A condition commonly imposed by a locallicensing authority upon a cinema is that no film will be shownunless it is approved by the BBFC. However, while a licensingauthority can decide generally to follow the BBFC’s decisions,it cannot abdicate its own responsibilities by deciding to followthe Board’s decisions in all cases. This would be an invalidfetter on the licensing authority’s discretionary power. A locallicensing authority may refuse to allow the showing of a filmpassed by the BBFC.

Even if the film is certified by the Board and allowed by thelocal licensing authority, the exhibitor may still be prosecutedfor the statutory offence of obscenity under the ObscenePublications Act 1959, although such a prosecution can beinstituted only by, or with the consent of, the Director ofPublic Prosecutions.

The Video Recordings Act 1984 extended the work of theBBFC to provide classification certificates for video recordings.It is an offence under the Act to supply or offer to supply anunclassified video recording or to possess such a recordingfor the purpose of supply.

BROADCASTING

There is no formal system of censorship in broadcasting. Inthe United Kingdom, broadcasting is not a function ofgovernment but is the responsibility of two publiccorporations, the British Broadcasting Corporation, and theIndependent Television Commission which replaced theIndependent Broadcasting Authority.

The BBC is a public corporation established by Royal Charterin 1926 and headed by a Board of Governors appointed bythe Crown on the advice of the Prime Minister. The BBC is anon-profit-making body financed by a grant from Parliamentwhich is equal to the net revenue received by the BBC fromlicence fees fixed by the Home Secretary. The Corporation hasa broadcasting licence under the Wireless Telegraphy Act 1949under which it is required to broadcast an impartial account ofdaily proceedings in Parliament and to broadcast governmentannouncements. The broadcasting licence also gives the HomeSecretary power to order the Corporation not to broadcast

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any material or class of material specified by him in a writtennotice. If he does issue such a notice, the BBC has the right toannounce that such a ban has been imposed. This is a widepower which could be used to ban programmes or topics ofwhich the government disapproves – indeed it has been used,if sparingly, in this way in recent years. The broadcastinglicence enables the government to take over the BBC in anemergency. This power has never been used.

The BBC accepts that it has a duty to ensure that as far as ispossible programmes should not offend against good taste ordecency, or be likely to encourage crime or disorder, or beoffensive to public feeling. It also accepts a similar obligation totreat controversial subjects with due impartiality. These cannotbe the subject of formal directives and the Home Secretarycould not revoke the broadcasting licence for a breach ofthem. Censorship is, in fact, predominantly self-imposed bymanagers or the Director-General, or even the Board ofGovernors (appointed by the government) declining tobroadcast contentious programmes.

In R (PROLIFE ALLIANCE) v BBC [2002] 2 All ER 756, the BBC’sdecision not to broadcast a party political broadcast by theAlliance during a General Election on the grounds of taste anddecency was held ultra vires. The Court affirmed theimportance of “political speed” under the right to freeexpression and decided that the BBC’s decision was adisproportionate limit on the Alliance to rights and thereforeunlawful.

As already referred to the Independent Television Commissionreplaced the Independent Broadcasting Authority as part ofthe de-regulation of the Broadcasting Act 1990. The Actconstitutes a major restructuring of commercial TV and radiobroadcasting. Under it, both the ITC and the Radio Authorityhave duties to ensure that nothing is included in programmes‘which offends against good taste or decency or is likely toencourage or incite to crime or lead to disorder or be offensiveto public feeling’. The ITC published its Programme Code in1991 covering impartiality in matters of political or industrialcontroversy. The Code also deals with matters of good taste,decency and violence. The ITC does not have the power tomonitor programmes prior to broadcast but the difficultyinherent in providing balance may deter the making ofcontroversial programmes.

The Act placed the Broadcasting Standards Council (BSC) on astatutory footing. An independent body appointed by theHome Secretary, the BSC has powers to initiate its owncomplaints as well as to adjudicate complaints made bymembers of the public. According to Geoffrey Robertson inhis book Media Law the Council ‘displayed both an ignoranceof the nature of television and an intention to damage it as amedium for providing education, information andentertainment’. To some extent the ITC and the BSC overlap inmonitoring standards.

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THE THEATRE

The Lord Chamberlain’s censorship of stage plays wasabolished by the Theatres Act 1968. The Act replacedcensorship by applying the statutory laws against obscenity,incitement to racial hatred, conduct intended to or likely tocause a breach of the peace, to theatre productions.Prosecutions under the Theatres Act require the consent ofthe Attorney-General.

Theatres have to be licensed but, unlike the cinema, thelicensing is only concerned with matters of public health andsafety.

GOVERNMENT INTERFERENCEWITH THE MEDIA

Some examples:

� The banning by the BBC, in January 1987, of aprogramme about the Zircon spy satellite and thesubsequent attempt by the government to preventpublication of a New Statesman article about the affair; thegovernment also tried to injunct MPs from viewing theoriginal programme in the House of Lords (a modifiedversion was later shown by Channel 4).

� The vehement criticism by senior government ministers ofthe ‘Death on the Rock’ programme broadcast by ThamesTV about the shootings of IRA members by the SecurityAir Services in Gibraltar in March 1988.

� The broadcasting ban imposed in 1990 on statements byrepresentatives of organisations proscribed by thePrevention of Terrorism or Emergency Powers legislation:see BRIND v SECRETARY OF STATE FOR THE HOMEDEPARTMENT [1991] 1 All ER 720 in which the House ofLords upheld the decision of the Court of Appealconfirming the legality of the Secretary of State’s directiveissued under the Broadcasting Act 1981 (now the 1990Act) and the 1981 Licence Agreement between the HomeSecretary and the BBC.

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Think Point 1

� Which statutes regulate broadcasting?

� Can you think of recent examples of ‘selfcensorship’ by the BBC?

POSSIBLE CIVIL AND CRIMINALLAW CONSEQUENCES OF APUBLICATION

In the previous section, possible restraints on freedom ofexpression which operate before publication or broadcastwere examined. In this section, the circumstances in which thecivil and criminal law may affect existing publications areoutlined.

DEFAMATION

Defamation is the publication, without legal justification, of afalse statement concerning another person. A defamatorystatement is one which tends to lower a person in the opinionof right-thinking persons generally.

Some special provisions for the press were made in theDefamation Act 1952, e.g. in connection with unintendeddefamation, but the civil law of defamation generally remains amajor headache for the press.

In the United States, under the influence of the FirstAmendment to the Constitution, the press has much greaterfreedom to comment and to publish information. On a matterof public or general interest involving public officials orpersons in the public eye the plaintiff must prove that thepublication is false and, if false, that it was published either

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with knowledge of its falsity or with serious doubts as to itstruth. By contrast, in England the burden of proof is on thedefendant, who must prove that the statement is true.

In the important recent case DERBYSHIRE COUNTY COUNCIL vTIMES NEWSPAPERS [1992] 1 QB 770 the House of Lords heldthat county councils could not sue for libel.

CONFIDENTIALITY

There is no general law of privacy in England, but there is adeveloping law of confidentiality as exemplified by:

� ARGYLL v ARGYLL [1967] Ch 302; [1965] 1 All ER 611 (marriageconfidences)

� ATTORNEY-GENERAL v JONATHAN CAPE LTD AND TIMESNEWSPAPERS LTD [1976] QB 752; [1975] 3 All ER 484 (Cabinetproceedings)

� FRANCOME v MIRROR GROUP NEWSPAPERS LTD [1984] 2 AllER 408 (illegal telephone tapping a breach of right toconfidentiality in telephone conversations and injunctionawarded)

� SCHERING CHEMICALS LTD v FALKMAN LTD [1982] QB 1(injunction granted to prevent showing of film about thedrug Primados on grounds of breach of confidence).

The famous series of cases relating to the ‘Spycatcher’saga turned on the law relating to confidentiality.

In ATTORNEY-GENERAL v THE OBSERVER LTD AND GUARDIANNEWSPAPERS LTD [1986] The Times, 26 July, the Court of Appealissued interlocutory injunctions against two nationalnewspapers restraining them from publishing allegationsrelating to national security made by a former member of MI5.The injunctions were based on a breach of the duty ofconfidentiality owed by such a person to the Crown. At thisstage of the proceedings in the case, the public interest in suchconfidentiality was held to outweigh the public interest indisclosure. These interlocutory injunctions were upheld by theHouse of Lords (ATTORNEY-GENERAL v GUARDIANNEWSPAPERS (No 1) [1987] 1 WLR 1248). (The injunctions did notcover reports of parliamentary or court proceedings in whichsuch allegations might be repeated or discussed.)

But, after a long series of cases, the House of Lords, inATTORNEY-GENERAL v GUARDIAN NEWSPAPERS LTD ANDOTHERS (No 2) [1988] 3 WLR 776, refused to issue a finalinjunction preventing newspapers from serialising, ordiscussing the issues raised by, a book which revealedconfidential information acquired by a Crown servant in thecourse of his employment. Publication of the information bythe newspapers would not be contrary to the public interest inthe light of all the publicity generated by the book and itspublication in other countries.

The case illustrates the point that, even though it is acceptedby the courts that a breach of confidence has occurred (as inthe writing and publication of Spycatcher), a permanent

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injunction will not be issued if the element of confidentiality hasbeen lost by extensive publication and debate, or if the publicinterest in freedom of the press outweighs (as it did here) thepublic interest in the confidentiality of government information.

In the OBSERVER AND THE GUARDIAN v UNITED KINGDOM, THESUNDAY TIMES v UNITED KINGDOM [1991] The Times, 27November, the European Court of Human Rights consideredthe series of Spycatcher injunctions. The Court consideredwhether the injunctions were a breach of Art 10 of theConvention. The Court held that the injunctions were aninterference with the newspapers’ freedom of expression butwent on to consider whether the interference fell within one ofthe exceptions provided by para 2 of Art 10. The injunctionsfell within two of the exceptions:

� maintaining the authority of the judiciary

and

� protecting national security.

However, the exceptions only apply if the injunctions werenecessary in a democratic society because they correspond toa pressing social need and were proportionate to the aimspursued. With regard to the period 11 July 1986 to 30 July1987, the Court held that the injunctions were necessaryunder these exceptions. However, the publication ofSpycatcher in the United States changed the situation andtherefore, as regards the period from 30 July 1987 to 30October 1988, the injunctions were no longer necessary toprotect national security or to maintain the authority of thejudiciary. Article 10 was therefore violated by continuing theinjunctions.

CONTEMPT OF COURT

A publication may amount to a contempt of court. Here twoconflicting interests may be at stake, namely those of freespeech and protecting the administration of justice. AsGeoffrey Robertson put it in his book Media Law: ‘Therationale behind the contempt law is an abiding British fear of“trial by newspaper” of the sort that often disfigures majortrials in America, where the First Amendment permits the pressto comment directly on matters involved in litigation.’Robertson argues that the power to punish for contemptcould be justified by reference to Art 6 of the EuropeanConvention on Human Rights, which provides that: ‘In thedetermination of his civil right and obligations, or of anycriminal charge against him, everyone is entitled to a fair andpublic hearing within a reasonable time by an independent andimpartial tribunal established by law.’ Robertson points outthat this is one of ‘the rights of others’ that can justify arestriction on freedom of speech guaranteed by Art 10 if therestriction is ‘prescribed by law’ and not disproportionate tothe aim of securing a fair trial (pp. 261–2). The expressioncontempt of court covers numerous possible acts andincludes the following.

� Deliberate or accidental interference with the outcome ofparticular judicial proceedings by prejudicial publications,

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e.g. disclosure of an accused’s previous convictionswhich have been kept from the jury. This may include anyattempt to bring pressure on a party to settle legalproceedings: ATTORNEY-GENERAL v TIMES NEWSPAPERS LTD[1974] AC 273; [1973] 3 All ER 54 (publication of The SundayTimes article on the thalidomide case).

� Interfering with the administration of justice as acontinuing process even though no particular proceedingsare at risk. The Socialist Worker was held to be incontempt for naming blackmail victims who had beenreferred to in court by letters only: R v SOCIALIST WORKERPRINTERS AND PUBLISHERS LTD [1975] 1 All ER 142.

� Scandalising the court. Criticism of a court or judges is notin itself contempt. It becomes so under an eighteenthcentury rule if it is seen as scurrilous abuse or if it attacksthe integrity of the administration of justice. The DailyWorker was punished for contempt of this kind fordescribing Mr Justice Swift as a ‘bewigged puppetexhibiting a strong class bias’: R v WILKINSON [1930] TheTimes, 16 July. There is little recent authority.

(The above forms of contempt are criminal contempts relatingto publications. Civil contempt is a refusal to do an actrequired by the court.)

STATUTORY CONTEMPT

Until the Contempt of Court Act 1981 the law of contempt ofcourt was almost wholly governed by the common law. It wascriticised for its vagueness, for the summary nature of itsprocedure and for its undue restriction on freedom ofexpression. The Contempt of Court Act 1981 resulted mainlyfrom the judgment of the European Court of Human Rights inStrasbourg in the SUNDAY TIMES CASE.

The newspaper had been prevented by the House of Lords(ATTORNEY-GENERAL v TIMES NEWSPAPERS LTD [1974] AC 273;[1973] 3 All ER 54) from publishing an article on the thalidomidelitigation in 1972 because the article was a detailed examinationof one of the issues in the litigation, i.e. whether the DistillersCo. had been negligent in putting the drug, thalidomide, on themarket. All of their Lordships were opposed to trial by mediaand agreed that this prejudgement of the issue of negligenceamounted to contempt of court because of the possible effecton the outcome of the proceedings.

Further, the general administration of justice might be affectedbecause prejudgement of this kind might dissuade potentiallitigants in other cases from pursuing or defending their casesand also because Distillers, in defending itself, had been heldup to public obloquy. The Strasbourg Court held that the lawof contempt generally, and the particular injunction, had alegitimate aim under Art 10(2), ‘maintenance of the authority ofthe judiciary’ but on the facts the court decided, by a smallmajority, that the injunction against The Sunday Times was notnecessary for maintaining the authority of the judiciary, andthat there had been a violation of Art 10 of the Conventionwhich sets out the principle of freedom of expression.

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The Contempt of Court Act 1981 deals mainly withinterference with the outcome of particular judicial proceedingsby prejudicial publications, what the Act calls the strictliability rule. This means that rule of law whereby apublication (a speech, writing, broadcast or communication inany form addressed to the public or a section of the public)may be treated as a contempt of court if it creates ‘asubstantial risk that the course of justice’, in particular legalproceedings, will be ‘seriously impeded or prejudiced’: ss.1and 2(1)(2). What is substantial or serious will depend uponthe facts of cases.

In criminal cases, the risk of committing a contempt byinfringing the strict liability rule will begin with the arrest of thesuspect or with the issue of an arrest warrant or a summonsto appear in court.

In civil actions, the risk of contempt will begin when the case isset down for trial (which may be some months before the trialactually begins).

Under the old law, the risk of contempt in a civil action beganwhen a writ was issued. Comment on the thalidomide casewould not, therefore, have been banned had the Act been inoperation in 1972, since the action against Distillers had notbeen set down for trial. The new law also ends theeffectiveness of the gagging writ, a writ issued, usually indefamation actions, to stifle further public comment on amatter by means of the law of contempt rather than to bringthe matter before a court.

Section 3 of the Act allows a defence if the publisher did notknow, and had no reason to suspect, that there were activeproceedings to which the risk of contempt would apply.

Section 4 provides that a fair and accurate report of legalproceedings held in public and published in good faith cannotamount to contempt under the strict liability rule.

Section 4(2) of the Act gives the court power to order thepostponement of reports of a trial when necessary to avoid asubstantial risk of prejudice to the trial or other proceedings,while s.11 empowers the court to prohibit the publication ofany name or matter which it had allowed to be withheld incourt.

Section 5 provides that a publication made in good faith in thecourse of a discussion on public affairs is not to be treated asa contempt under the strict liability rule if the risk of prejudiceto particular legal proceedings is merely incidental to thediscussion. The House of Lords has held that this does notactually constitute a defence, but means that the prosecutionhas to prove, first, the substantial risk referred to in s.2(2) andthen, if the publication is part of a discussion of public affairs,that the risk of prejudice is not merely incidental to thediscussion.

Section 5 was intended to prevent bona fide discussion by thepress of controversial matters of general public interest beingstifled merely because there were legal proceedings inexistence in which some particular instance of thosecontroversial matters might be in issue, e.g. the treatment of

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handicapped babies: ATTORNEY-GENERAL v ENGLISH [1982] 2 AllER 903. The House of Lords allowed an appeal against a findingof contempt concerning an article published by the Daily Mailduring the trial of Dr Leonard Arthur for the murder of aDown’s Syndrome baby. In ATTORNEY-GENERAL v GUARDIANNEWSPAPERS AND ANOTHER [1992] (No 3) 1 WLR 874, the courtconsidered the Attorney-General’s submission that an articlein the Guardian entitled ‘In big fraud cases, judges appear tobe over-sensitive’ was strict liability contempt. The court heldin relation to ss.1 and 2 that there had to be a practical, not atheoretical, substantial risk that the course of justice would beseriously impeded or prejudiced. In this instance the courtwas not so satisfied. Furthermore, the publication was madeas a discussion in good faith on a matter of general publicinterest within the meaning of Section 5.

Section 10 provides that no court may require a person todisclose the source of information contained in a publicationfor which he is responsible, unless it is established thatdisclosure is necessary in the interests of justice or nationalsecurity or for the prevention of disorder or crime.

In SECRETARY OF STATE FOR DEFENCE v GUARDIANNEWSPAPERS LTD [1984] 3 All ER 601 the House of Lords held:

� that a publisher could rely on s.10 even when an ownermade a proprietary claim for the return of his property

and

� that the onus for proving that the matter fell within one ofthe four exceptions lay on the party seeking disclosure.

In this case the court, on a three to two majority, held that theCrown had established that disclosure of the newspaper’ssource was necessary in the interests of national security.

In X LTD v MORGAN GRAMPIAN LTD [1991] AC 1 the House ofLords examined the balancing exercise to be carried out unders.10. A young journalist was fined after refusing to obey acourt order to disclose his source for an article in the Engineerabout the financial difficulties of a leading private company. Itheld that the ‘interests of justice’ outweighed the presumptionin favour of non-disclosure because the source had engagedin a grave breach of confidentiality, the information did notdisclose ‘iniquity’ and had no great public interest value.Furthermore the company might suffer great loss if it could notidentify the informant. Robertson comments: ‘The caseillustrates how the judicial value accorded to property rightswill tend to prevail over ethical claims by journalists inbalancing exercises that require a subjective appreciation ofcompeting public interests.’ (p.201). The European Court ofHuman Rights held in GOODWIN v UNITED KINGDOM [1996]The Times, 28 March that the Court order to disclose the soureviolated Art 10 of the Convention.

Proceedings for contempt of court under the strict liability ruleof the Act can only be brought by or with the consent of theAttorney-General. Proceedings for other kinds of contemptmay still be instituted without the need for such consent.

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The application of the strict liability rule to appellateproceedings was considered in RE LONRHO PLC [1990] 2 AC154.

It must be noted that cases in this area will now be affected bys.12 of the Human Rights Act 1998, which requires the Courtto have regard to the right to freedom of expression and thepublic interest before granting any remedy which couldinterfere with the right.

Among the other provisions of the 1981 Act is s.8, whichmakes it a contempt to obtain, disclose or solicit particulars ofwhat happens in the jury room during the course of the jury’sdeliberations. In ATTORNEY-GENERAL v ASSOCIATEDNEWSPAPERS and OTHERS [1994] 2 WLR 277 the House of Lordsupheld the convictions under s.8 (1) of the Contempt of CourtAct 1981 of the publisher, editor and a journalist of the ‘Mailon Sunday’ which had published an article revealing thedeliberations of a jury in a criminal trial. The article referred toaccounts of three of the jurors as to how they had reachedtheir decisions, contained comments by them on the evidencein issue at the trial and gave the opinion of one of them of afellow juror. The journalist who wrote the article had beengiven the information by a third party who had been in directcontact with the jury members. Their Lordships held that in itsordinary meaning ‘disclose’ was apt to describe both therevelation of jury deliberations by an individual juror and thefurther disclosure of those same deliberations by publicationin a newspaper, provided that the publication amounted to adisclosure rather than a republication of already known facts.

In addition to these provisions of the Contempt of Court Act1981, there are a number of other statutory provisions whichrestrict full reporting of judicial proceedings, includingrestrictions on the reporting of committal proceedings inmagistrates’ courts, proceedings in juvenile cases, names inrape cases and indecent evidence in divorce proceedings.

COMMON LAW CONTEMPT

If proceedings are ‘active’ the strict liability statutory ruleapplies. Common law contempt is preserved in s.6(c) of the1981 Act. In these cases intent has to be proved. The leadingcases are: ATTORNEY-GENERAL v TIMES NEWSPAPERS LTD [1991]2 WLR 994 in relation to civil proceedings, and ATTORNEY-GENERAL v NEWS GROUP NEWSPAPERS PLC [1988] 3 WLR 163 inrelation to criminal proceedings.

In the former case the Independent and two othernewspapers published articles based on the memoirs of PeterWright, a former officer in MI5, which appeared to be exactlywhat The Guardian and The Observer were prevented fromdoing by the injunctions issued in 1986 (above). TheAttorney-General began proceedings for criminal contempt ofcourt on the ground that the articles were calculated toprejudice the administration of justice because the Guardian-Observer proceedings were still continuing. The House ofLords has now held that the newspapers were liable forcontempt at common law as their conduct in publishing thearticles constituted the actus reus of impeding the course of

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justice. The mens rea of contempt was conceded by theapplications. Thus parties not subject to the originalinjunctions were bound by them.

The second case concerned articles in the Sun accusing a Dr Bof raping an eight-year-old girl. Proceedings were not pending.The newspaper was found guilty of contempt. On the facts,the proceedings could have been regarded as ‘imminent’, butthe court also held that where a publication was intended tointerfere with justice and created a real risk of prejudice toproceedings, contempt proceedings could be taken,notwithstanding that proceedings were neither pending norimminent. However, in the ATTORNEY-GENERAL v SPORTNEWSPAPERS LTD [1991] 1 WLR 1194, the Divisional Court wasdivided on this point. In this case, however, the requisiteintention had not been proved.

In these cases the test for intention to prejudice theadministration of justice was established. It was held that itconnotes specific intent and that recklessness is not enough. Ithas to be shown that the defendant either wished to prejudiceproceedings, or foresaw that such prejudice was an inevitableconsequence of publication. Thus the editor of the Sun washeld to have the necessary intent, although he denied it. It wasclear that he was knowingly campaigning for the conviction ofthe doctor and that conviction would have benefited thenewspaper through increased sales resulting from the‘exclusive’ story of the alleged victim’s mother. Common lawcontempt does not have the public interest defence of s.5 ofthe 1981 Act; furthermore there is no right to trial by jury.

The contempt of court laws, both at common law and underthe Contempt of Court Act, are a major problem for the pressbecause of the natural inclination of newspapers (andbroadcasters) to publish details of, and comment on, mattersin which the public is interested but which are, or might soonbecome, the subject of criminal or civil judicial proceedings.

Think Point 2

Summarise the main differences between common lawand statutory contempt.

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CRIMINAL LIBEL

Defamation can amount to a crime if it is a libel which isparticularly serious. The likelihood of a breach of the peaceresulting from the libel is no longer an essential element in theoffence, as the House of Lords explained in GLEAVES v DEAKIN[1980] AC 477; [1979] 2 All ER 497. Truth is not a defence to aprosecution, as it is to a civil action in defamation, unless thedefence can convince the jury that publication is for the publicbenefit. The burden of proof in establishing that lies with thedefence.

There is no restriction on bringing a prosecution for criminallibel other than that contained in s.8 Law of Libel AmendmentAct 1888 which provides that:

‘no criminal prosecution shall be commenced against anyproprietor, publisher, editor or any person responsible forthe publication of a newspaper for any libel publishedtherein without the order of a judge in chambers first beingobtained’.

Journalists, authors, book publishers and others may beprosecuted in the ordinary way.

In the past, criminal libel was used to prosecute politicalopponents of the government, such as John Wilkes and TomPaine in the eighteenth century. Today only a handful ofcharges are brought each year, and a few privateprosecutions are brought.

The Law Commission, in its Working Paper No 84 in 1982,recommended that criminal libel be abolished.

BLASPHEMY

The common law misdemeanour of blasphemous libel consistsof publishing contemptuous, reviling, scurrilous or ludicrousmatter relating to God, Jesus Christ, the Bible or theformularies of the Church of England as by law established.Prosecutions for blasphemy were numerous in theseventeenth and eighteenth centuries. In R v LEMON [1979] 1 AllER 898, the first prosecution for blasphemy since 1922, theHouse of Lords held that in order to secure a conviction forthe crime of blasphemous libel it was sufficient for theprosecution to prove an intention to publish material whichwas in fact blasphemous, i.e. calculated to outrage and insult aChristian’s religious feelings, and it was not necessary forthem to prove that the defendant intended to blaspheme. Theintention to publish and the effect of the published materialtherefore constitute the crime of blasphemous libel.

OBSCENITY

The law of obscenity includes a range of common lawoffences, statutory offences and provisions for search,forfeiture and destruction. The law of obscenity is importantbecause of its relevance to freedom of expression, and alsobecause of its part in the debate on the relationship of law andmorality. The common law offence of obscene libel has now

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been superseded by statute, but in SHAW v DPP [1962] AC 220the House of Lords held that an obscene publication was alsoindictable as a common law conspiracy to corrupt publicmorals.

In KNULLER v DPP [1973] AC 435 the House of Lords reaffirmedthat proposition, and the majority were also of the opinion thata conspiracy to outrage public decency was also an offence.The defences provided by the Obscene Publications Act donot apply to such charges.

Under the Obscene Publications Acts 1959 and 1964 it is anoffence to publish an obscene article or to offer an obscenearticle for gain. The statutory test of obscenity is similar to theold common law test and reads: ‘whether the effect is, takenas a whole, such as to deprave and corrupt persons who arelikely, having regard to all relevant circumstances, to read, seeor hear the matter’.

The prosecution must prove that the matter, taken as a whole,would tend to deprave and corrupt. Although it seems that aperson may be convicted even if he had no intention todeprave or corrupt, it is a defence to prove that he had notexamined the offending article and had no reasonable cause tobelieve that publication or possession would be an offence. Itis also a statutory defence that the publication was for thepublic good in the interests of science, literature, art, orlearning or other objects of general concern.

Expert opinion as to the scientific, literary, or artistic merits ofthe book or article is admissible in evidence on both sides. Butthe House of Lords, in R v JORDAN [1976] 3 All ER 775, has heldthat the words ‘or other objects of general concern’ fallswithin the same field as science, literature, art or learning andthat it was therefore not admissible for the defence to produceevidence to the effect that pornography was for the publicgood because it might be of therapeutic benefit to personswith particular sexual problems.

A prosecution under the Obscene Publications Acts may bebrought only by the Director of Public Prosecutions. But aprivate individual may apply for a search warrant enabling aconstable to search premises and seize articles, and he mayinstitute proceedings for forfeiture and destruction of thearticles. These proceedings are brought in a magistrates’ courtwith no jury.

INCITEMENT

The offence of incitement to racial hatred was created bystatute in 1965 and is now governed by the Public Order Act1986, Part III. It is an offence for any person either to publishor distribute written matter which is threatening, abusive, orinsulting or to use in any public place or at a public meetingwords which are threatening, abusive, or insulting where ineither case hatred is likely to be stirred up against any racialgroup in Great Britain.

Racial group means a group of persons defined by referenceto colour, race, nationality or ethnic or national origins.

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There are other statutory crimes of incitement whichnecessarily involve some interference with freedom of speechand which are not subject to a test of ‘likelihood of causingpublic disorder’. Incitement to disaffection among members ofthe armed forces is covered by statutes of 1797 and 1934(see R v ARROWSMITH [1975] 1 All ER 463), while incitement todisaffection among the police is covered by s.53 Police Act1964.

PRIVACY

Historically, English law did not recognise a distinct law ofprivacy. Instead, privacy interests were protected by a rangeof legal rights and remedies, notably the tort of breach ofconfidence. Only when conduct amounted to a breach ofsome existing right – such as confidence – would a legal actionlie. Accordingly, publication of photographs of a celebritytaken on a public beach violated no right and, all things beingequal, gave rise to no remedy.

In recent years, concern has increased about the activities ofsome sections of the media, particularly the tabloid presswhich has become more and more intrusive into people’slives. This has lead to louder calls for a right to privacy butthese have usually been resisted by the Press, which stoutlydefends its right to freedom of expression. The establishmentof the Press Complaints Commission and the voluntary Codeof Conduct that it enforces was a compromise between theprivacy interests of those in the public eye and unrestrictedpress freedom.

The implementation of the Human Rights Act 1998 and therights guaranteed by the European Convention, whichincludes both a right to privacy (Article 8) and a right tofreedom of expression (Article 10), risked altering the existinglegal position dramatically. The guarantee of both rights wouldrequire the courts to balance the competing interests of thepress and those asserting privacy rights from case to case. Asa result of press fears that their interests would beundermined, Parliament enacted s.12 of the Human Rights Act1998. In effect, this requires the courts to have regard to theimportance of freedom of expression whenever they areasked to grant remedies which would restrain publication ofany material. In particular, the courts must have regard to thepublic interest in publication when considering whether or notto restrain publication: s.12(4).

Since the Human Rights Act 1998 entered force, there havebeen several important cases dealing with the interaction ofprivacy and free expression rights. The first importantdecision is DOUGLAS v HELLO! LTD [2001] 2 All ER 289:photographs of the famous actors’ wedding were to bepublished in Hello! Magazine although an exclusivearrangement existed with a rival publication. The applicantssought to restrain publication on the grounds of breach ofconfidence and breach of privacy. The Court of Appeal heldthat although there was now an enforceable right to privacy inEnglish law, it had not been violated here, mainly because theapplicants had traded their privacy and anyone at the weddingcould have taken photographs and sold them on.

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In FLITCROFT v MIRROR GROUP NEWSPAPERS LTD [2002] 2 All ER545, two women with whom a minor footballer had beenhaving affairs wished to publish their stories. He applied torestrain them on the grounds of his right to privacy andbreach of confidence. Dismissing his application, the Court ofAppeal extensively stated the issues which must beconsidered when balancing the right to privacy and the rightto freedom of expression. On the narrow issue of the privacyof “public figures”, Lord Woolf CJ said (at pp553-554):

“Where an individuals is a public figure he is entitledto have his privacy respected in the appropriatecircumstances. A public figure is entitled to a privatelife. The individual, however, should recognise thatbecause of his public position he must expect andaccept that his actions will be more closely scrutinisedby the media. Even trivial facts relating to a publicfigure can be of great interest to readers and otherobservers of the media. Conduct which in the case ofa private individual would not be the appropriatesubject of comment can be the proper subject ofcomment in the case of a public figure. The publicfigure may hold a position where higher standards ofconduct can be rightly expected by the public. Thepublic figure may be a role model whose conductcould well be emulated by others. He may set thefashion....In many situations, it would be overstatingthe position to say that there is a public interest in theinformation being published. It would be moreaccurate to say that the public have anunderstandable and so a legitimate interest in beingtold the information. If this is the situation then it canbe appropriately taken into account by a court whendeciding on which side of the line a case falls. Thecourts must not ignore the fact that if newspapers donot publish information which the public areinterested in, there be fewer newspapers published,which will not be in the public interest.”

These views are especially relevant to THEAKSTON v MGN LTD[2002] EWHC 137. The applicant, a presenter of the BBC show“Top of the Pops”, had visited a prostitute and she sought toget MGN to publish information and photographs of theirliaison. He applied for an injunction to restrain her, on thegrounds of his right to privacy. While he succeeded inrestraining publication of the photographs, he failed to preventpublication of the story. One ground of the decision is that asa TV presenter of a programme watched in significant numbersby young people, there was a public interest in publication.

In addition to the Convention right to privacy and commonlaw remedies for breach of confidence, several other legalrules create privacy rights in particular contexts. Particularlyimportant is the Data Protection Act 1998 (see below). Thislegislation confers rights in data held about a person. Misuseof this data, for example, without the consent of the personwho it concerns, gives rise to a cause of action. It is worthnoting that even where there is no breach of privacy in termsof the Convention, a remedy may arise under the DataProtection Act 1998. This was the case in NAOMI CAMPBELL v

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MIRROR GROUP NEWSPAPERS LTD [2002] EWHC 499, where theclaimant failed on the privacy point but prevailed on a breachof the Data Protection Act 1998.

In conclusion, the right to privacy theoretically presents arestriction on freedom of expression. In practice, the tworights must be balanced and everything depends on contextand circumstances. Section 12 of the Human Rights Act 1998gives some priority to freedom of expression, particularly ifwhat is sought is a pre-publication restraint. Balancing therespective priorities of privacy and freedom of expressionoften requires an assessment of where the public interest liesand this will change from case to case.

OPEN AND CLOSEDGOVERNMENT

INTRODUCTION

It has often been remarked that the United Kingdom isobsessively secretive about the workings of government.Ruling parties of both political complexions have controlled theflow of information to the public or have released it selectivelyat politically opportune moments. Access to information is animportant civil right either for personal private purposes or toaid public discussion and scrutiny of the political process.Clearly there might also be a countervailing public interest insuppressing disclosure, for example to protect nationalsecurity.

OFFICIAL SECRECY

The Official Secrets Acts of 1911, 1920, 1939, 1989, containdrastic powers which can be used to prevent comment onmatters of general public interest. The principal statute is the1911 Act which passed all its stages in the House ofCommons in one afternoon at the time of the Agadir crisis andfollowing a period of ‘spy mania’.

The purpose of the Acts is to prevent espionage and thecommunication of any information which may be calculated toprejudice the interests of the state. It is also intended toprevent unauthorised disclosure of information held byCrown servants in their official capacities, whether or not theinformation has any relevance to state security. It wasconsidered necessary to draft the legislation very widely inorder to ensure the achievement of these purposes.

Section 1 of the 1911 Act makes it an offence to approach,inspect or enter a prohibited place ‘for any purpose prejudicialto the interests of the state’. Prosecutions under s.1 haveusually been concerned with espionage, but CHANDLER v DPP[1964] AC 763 arose out of an anti-nuclear-weaponsdemonstration. The accused were charged with conspiracy tocommit a breach of s.1. In the absence of an overt act, theprejudicial purpose may be inferred from the circumstances. Ifinformation about a prohibited place is proved to have been

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obtained or communicated without lawful authority, thens.1(2) places the onus of proving that the purpose was notone prejudicial to the interests of the state upon the accused.

Section 6 of the 1920 Act makes it an offence to refuse tosupply information as to the commission of an offence underthis section to a senior police officer. The much discredited s.2of the 1911 Act created a number of offences with extensiveramifications for both state officials and other citizens. This hasbeen repealed by the Official Secrets Act 1989.

Following the unsuccessful prosecution under s.2 of the editorof The Sunday Telegraph and others, the government in 1971set up a committee under the chairmanship of Lord Franks toreview the operation of s.2 of the 1911 Act. The Committee’sreport referred to the inevitable and increasing tension in ademocracy between the need for a wide diffusion ofinformation and the need to keep some matters secret for thesafety of the state and the efficiency of government. It was ofthe opinion that the wide terminology of s.2 ‘obscures theimportant distinction between espionage and leakage’ andshould be replaced by new legislation which would apply thecriminal law only to those who disclosed information whichcould seriously affect the interests of the country. Theproposed statute would also protect certain informationdealing with law and order, Cabinet business, the confidencesof private citizens, and official information which could beused for the purposes of private gain. In 1979 thegovernment introduced a Protection of Information Bill toreplace s.2 of the 1911 Act. The bill met considerable criticismand was soon withdrawn by the government. The acquittal ofClive Ponting (R v PONTING [1985] Crim LR 318) prompted a newattempt to change the law.

The Official Secrets Act 1989 replaces s.2 of the 1911 Act witha widely-drafted measure which defines six types ofinformation which are to be protected.

� The first category makes it an offence for any member ofthe security and intelligence services to disclose anyinformation relating to those matters which he or she hasacquired by virtue of his or her position. It is also anoffence for a person who is or has been a civil servant ora government contractor to make a damaging disclosure ofany information on security or intelligence.

� The second category of protected material is thatdisclosed by a Crown servant or government contractorrelating to defence.

� Third, Crown servants or government contractors commitan offence if they disclose information relating tointernational relations.

� The fourth and fifth categories of protected informationrelate to the commission of criminal offences, for example,escapes from legal custody or impeding the prevention ordetection of offences or the arrest or prosecution ofsuspected offenders.

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� Finally it is an offence to disclose information entrusted inconfidence by the British government to other states orinternational organisations.

No proof of damage is required for categories one and six,although for categories two to five disclosure must bedamaging for liability to be attracted.

It should be noted that liability under the Act relates to anycommunication of unauthorised information – by the press ormembers of Parliament, for example. Furthermore, the Actdoes not allow for defences such as ‘prior publication’ or ‘thepublic interest’.

Other significant legislation passed by the Conservativeadministration in this area includes the Security Services Act1989 and the Intelligence Services Act 1994. MI5 is now on astatutory basis and its function ‘shall be the protection ofnational security and, in particular, its protection againstthreats from espionage, terrorism and sabotage, from theactivities of agents of foreign powers and from actionsintended to overthrow or undermine parliamentary democracyby political, industrial or violent means.’

Through this legislation, legal powers are granted to the HomeSecretary to issue warrants authorising any form ofinterference with any private property. The Security ServicesCommissioner (a Law Lord) keeps under review the exerciseof the Home Secretary’s powers to grant warrants. TheCommissioner reports annually to the Prime Minister who laysa copy of the report before each House of Parliament. AnInterception of Communications Tribunal is established toinvestigate complaints.

Under the 1994 Act, MI6 and GCHQ are also put on a legalbasis and a parliamentary Committee was set up to monitorthe services. Ministers and heads of the agencies, however,control information supplied to the Committee, whosemembers are appointed by government.

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Think Point 3

What significant cases led to:

� the reform of the law relating to contempt?

� the repeal of s.2 of the Official Secrets Act 1911?

ACCESS TO INFORMATION

Under the Public Records Act 1967, government papers areopened to public scrutiny after 30 years but some documentscan be closed for longer, or even indefinitely.

FREEDOM OF INFORMATION

Pressure has been growing for the introduction of a Freedomof Information Act along the lines of those existing in, forexample, the United States, Australia, New Zealand or Sweden(where even income tax returns are publicly available). Themain features of such legislation are that:

� official information is accessible to the public

� access is supervised by a body independent ofgovernment

and

� there is a presumption of access with exempt categoriesfor defence, national security, and confidential data etc.

The actual and prospective effects of such legislation havebeen studied by Rodney Austin. They include:

� increase in litigation by members of the public againstofficial bodies

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� a moderation of the doctrine of public interest immunity

� consequent caution and delay in administrative decision-making

� more robust action by the legislature to check theexecutive – especially true in the United States

� strengthening of pressure groups.

MOVES TOWARDS GREATER ACCESS

Changes include:

� the Croham Directive 1977 – an internal memorandum,with no sanctions attached, addressed to all PermanentSecretaries from the Head of the Home Civil Serviceinstructing them to make more information publiclyavailable

� the reform of the select committee system in 1979 with acapacity to call for official documents but no way ofenforcing their production – as we saw in the WestlandAffair

� the Parliamentary Commissioner being given a right ofaccess to all official files except Cabinet papers

� the Local Government (Access to Information) Act 1985:the latest in a series of statutes giving the public a right toattend local authority meetings

� the Data Protection Act 1984 giving individuals access tothe information which is held about them on computerfiles. This has now been replaced by the Data ProtectionAct 1998 extending the data protection regime to certainmanual records described in the Act as “relevant filingsystems”. Manual records will however have partialexemption until October 2007. The 1998 Act implementedan EC Directive.

� the institution in April 1994 of a Code of Practice ingovernment departments under which they agree torespond to reasonable requests for information. The Codeis enforced by the Parliamentary Ombudsman. There area wide range of exceptions.

FREEDOM OF INFORMATION ACT 2000The Labour Government promised a Freedom of Information(FOI) Bill as part of its manifesto in May 1997 and Dr DavidClark, then Chancellor of the Duchy of Lancaster, published aWhite paper “Your Right to Know” in December 1997. TheWhite paper proposed that disclosure of individual documentswould be made on a contents rather than a class basis andthat exemptions would be subject to both a public interest anda harm test, the latter would be a substantial harm test for allareas covered except for decision making and policy advicewhere a simple harm test would apply. A new InformationCommissioner would be appointed to examine disputeddocuments and order disclosure. In July 1998 responsibility

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for (FOI) was transferred from the Chancellor of the Duchy ofLancaster to the Home Office. A draft FOI Bill was published inMay 1999. Introducing the Bill, Jack Straw said in the House ofCommons (HC deb, 24 May 1999, vol.332, col.21):

“Under the Bill for the first time everyone will have theright of access to information held by bodies acrossthe public sector. There will be a duty on publicauthorities to adopt a scheme for the publication ofinformation about their work; a positive duty onauthorities, even where they are not obliged toprovide such information, to consider disclosure onpublic interest grounds; and a new InformationCommissioner, together with a new informationtribunal to enforce the rights which have beencreated.”

However, the Act has been criticised as providing a less liberalscheme than that proposed in the White paper. The mainfeatures of the Act are as follows:

� The Data Protection Registrar and the InformationCommissioner posts are merged and amendments aremade to the 1998 Act. The Data Protection Tribunal ismerged with the new information tribunal.

� The “public interest” test proposed in the White paperremains but becomes a test to be applied by publicauthorities. The Information Commissioner will only beable to require public authorities to consider the publicinterest in deciding on disclosure rather than allowingrelease of information on that ground herself.

� There are a number of class exemptions including thosefor decision making and policy making if disclosure wouldundermine the conventions of ministerial responsibility inthe “reasonable opinion” of a minister.

� Ministerial certificates may be issued to exemptinformation relating to national security, the securityservices and special forces and GCHQ. It will be possibleto appeal to a new tribunal against the certificates.

� Appeals will be possible from the decisions of theCommissioner to a new tribunal and then on a point oflaw to the High Court and ultimately to the House ofLords.

� “Information” is broadly defined to include informationheld in electronic form as well as documents.

� A wide range of public bodies is included.

� Personal information is exempt if it is personal informationabout the applicant or disclosure would contravene dataprotection principles.

� The “substantial harm test” proposed in the White paperhas been replaced with a test which exempts informationwhere disclosure would “prejudice” or would be likely toprejudice particular interests.

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INTERCEPTION OFCOMMUNICATIONS

THE PRACTICE

As long ago as 1663 governments were authorising the secretinterception and opening of postal communications. Morerecently this practice has been extended to tapping telephoneconversations and metering telephones, i.e. compiling lists ofcalls dialled. Authorisation is in the form of a warrant issuedunder the hand of a Secretary of State – usually the HomeSecretary. About three hundred and fifty warrants are issuedeach year.

The interception of communications is acknowledged to be aninterference with personal freedom, but is justified by the factthat it takes place only on the personal warrant of the HomeSecretary, and only in cases involving the investigation of:

� serious crimes by the police

� serious drugs offences by the Customs and Excise

and

� major subversive, espionage or terrorist activities by thesecurity services.

In 1981 Lord Diplock, a Lord of Appeal in Ordinary, carriedout the first of a continuous series of independent checks ofthe system. He reported (3 March 1981) that the interceptionof communications, and particularly telephone tapping, was aneffective and essential weapon for the maintenance of law andorder and the safety of the realm. He concluded that theestablished procedures were working satisfactorily and withminimum interference with legitimate rights of privacy.

THE LEGAL AUTHORITY

The legal authority for the interception of communications is,however, difficult to find. The practice of authorising theinterception of communications has been recognised, but notspecifically authorised, by a long series of Acts of Parliamentfrom 1710 to 1981 dealing with the Post Office. Thecommittee of three Privy Councillors under the chairmanshipof Sir Norman Birkett, a Lord Justice of Appeal, whichexamined the matter in 1977, thought that the legal authoritymight be found in the Royal Prerogative. But when the legalityof telephone tapping was challenged in court (MALONE vMETROPOLITAN POLICE COMMISSIONER (No 2) [1979] 2 All ER620), no attempt was made to argue that the Crown possesseda prerogative power to authorise the tapping of telephones.

Even before the Court of Human Rights had come to itsdecision in the MALONE case, the Home Secretary hadannounced, in March 1984, that authority for the interceptionof communications would be put on a clear statutory basis.

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In 1985 Parliament enacted the Interception ofCommunications Act 1985, now consolidated in a new Act of2000.

REGULATION OF INVESTIGATORYPOWERS ACT 2000All surveillance powers of the state, including interception oftelecommunications, are regulated under this important Act.

Section 1(1) creates a general offence of unlawful interceptionof communications.

Sections 3 and 4 provide that a person shall not be guilty ofthis offence where the interception is in obedience to awarrant issued by a Secretary of State under s.7.

Section 7 authorises a Secretary of State (in practice this isusually the Home Secretary in England and Wales or theSecretary of State for Scotland) to issue a warrant requiring theperson to whom it is addressed to intercept thecommunications (telephone calls, letters, etc.) described in thewarrant. The warrant must be considered necessary in theinterests of:

� national security

� preventing or detecting serious crime

� safeguarding the economic well-being of the UnitedKingdom.

It must be noted that s.7 requires that a warrant shall normallybe issued ‘under the hand of the Secretary of State’, i.e. byhim or her personally.

Part IV of the Act establishes an independent Tribunal (itsconstitution and procedure are set out in Schedule 3) toinvestigate complaints from persons who believe that theircommunications have been intercepted. The Tribunal willestablish whether there is or has been a relevant warrant. Ifthe answer is ‘no’, an offence will have been committed and itwill be a police matter. If a warrant does exist the Tribunal willestablish whether it was issued correctly. The Tribunal haspower to quash an invalid warrant and to direct the HomeSecretary to pay compensation.

There is no appeal from a decision of the tribunal and judicialreview of the tribunal’s decisions, even on grounds ofjurisdiction, is also excluded: s.67(8). But the Act establishesthe office of Communication Commissioner to oversee theexercise of surveillance power under the Act: see s.57.

The Tribunal has no power to deal with tapping without awarrant.

Taylor J, in R v HOME SECRETARY EX PARTE RUDDOCK [1987] 2All ER 518, said obiter that judicial review of the warrant systemhad been possible (the evidence in the case not showing amisuse of power by the minister), but that ‘under the 1985Act the courts henceforth cease to have any supervisory orinvestigative function in the field of interceptions’.

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Section 57 requires the Prime Minister to appoint aCommissioner, a senior judge or former senior judge, to carryout a continuous review of the working of the Act and toreport annually to the Prime Minister, see s.58(4).

CONCLUSION

A ‘culture of secrecy’ still prevails to a large extent in Britain.Critics argue that obsessive secrecy has adverse effects onthe democratic process because:

� the public cannot participate fully in decision-makingbecause they are ill-informed – for example, in the 1983election, one issue was whether the Polaris missilesneeded updating, but the electorate was not told that workon Trident missiles had already begun

� consumers are unable to make informed choices abouthealth, environmental needs etc. because the regulatoryagencies do not provide sufficient information and aresubject to government interference – for example, news ofthe Windscale fire in 1957 was suppressed for threedecades

� ministers leak information selectively when it suits theirpolitical purposes, thus managing the flow of news to theirown, and not necessarily to the public’s, advantage.

Defenders of the present set-up argue that:

� ministerial responsibility would be undermined if civilservants were forced to be more open

� ’goldfish-bowl’ decision-making would make for baddecisions because ministers etc. would not speak franklyfor fear of an increasing tide of litigation against them.

Revision


ADDITIONAL READING

Bradley and Ewing, Chapters 22 and 24

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CASES REFERRED TO IN THISCHAPTERBRIND v SECRETARY OF STATE FOR HOME DEPARTMENT 1991

DERBYSHIRE COUNTY COUNCIL v TIMES NEWSPAPERS 1992

ARGYLL v ARGYLL 1967

ATTORNEY-GENERAL v JONATHAN CAPE LTD AND TIMESNEWSPAPERS 1976

FRANCOME v MIRROR GROUP NEWSPAPERS LTD 1984

SCHERING CHEMICALS LTD V FALKMAN LTD 1982

ATTORNEY-GENERAL v OBSERVER LTD AND GUARDIANNEWSPAPERS LTD 1986

ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS (No 1) 1987

ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS LTD ANDOTHERS (No 2) 1988

OBSERVER AND THE GUARDIAN v UK, THE SUNDAY TIMES v UK1991

R v WILKINSON 1930

ATTORNEY-GENERAL v TIMES NEWSPAPERS 1974

R v SOCIALIST WORKER PRINTERS AND PUBLISHERS LTD 1975

ATTORNEY-GENERAL v SPORT NEWSPAPERS LTD 1991

ATTORNEY-GENERAL v ENGLISH 1982

ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS AND ANOTHER1992

SECRETARY OF STATE FOR DEFENCE v GUARDIAN NEWSPAPERSLTD 1984

X LTD v MORGAN GRAMPIAN LTD 1991

GOODWIN v UNITED KINGDOM 1996

RE LONRHO 1990

ATTORNEY-GENERAL v ASSOCIATED NEWSPAPERS AND OTHERS1994

ATTORNEY-GENERAL v TIMES NEWSPAPERS 1991

ATTORNEY-GENERAL v NEWS GROUP NEWSPAPERS 1988

GLEAVES v DEAKIN 1980

R v LEMON 1979

SHAW v DPP 1962

KNULLER v DPP 1973

R v JORDAN 1976

R v ARROWSMITH 1975

CHANDLER v DPP 1964

R v PONTING 1985

MALONE v METROPOLITAN POLICE COMMISSIONER 1979

R v HOME SECRETARY EX PARTE RUDDOCK 1987





QUESTION 1‘The culture of secrecy in the United Kingdom has survivedunscathed despite demands for change.’

Discuss.

QUESTION 2The Daily Globe has published an article based on informationsent by a hospital doctor giving details of dangerousconditions in a local hospital. The Area Health Authoritydemands details of the informant doctor because they wish todiscipline him or her for breach of confidentiality.Subsequently a patient is found scalded in her bath. Twonurses have disappeared and the police indicate that theywish to question them. The Daily Globe intends to publish anarticle about them indicating they had been investigated andcleared in an earlier incident involving a patient’s death. TheGlobe also commissions a feature article by Kiljoy, a famousTV journalist, detailing his experiences in the hospital andcomplaining about staff attitudes.

Advise the Daily Globe on its legal position in relation to theabove articles and critically evaluate the current state of thelaw in this area.




QUESTION 1Introduction

Question needs to examine current position in UK on accessto information. Defence of lack of positive right is partly basedon adverse impact change would have on decision-makingprocess and on bedrock constitutional convention ofministerial responsibility. However essay will argue thesereasons are erroneous as are other reasons advanced formaintaining secrecy. Proposals for change will be evaluated.

Present position

(i) Official Secrets Act 1989 not a ‘liberalising measure’ asDouglas Hurd maintained. Effect is not to releaseinformation but to preclude criminal sanctions in someinstances of unauthorised disclosure. Test of ‘harm’established, but some areas absolutely protected, e.g.information on international relations. Sanctions onjournalists introduced. No public interest defence. Actparalleled by Security Services Act and Intelligence ServicesAct and prevents effective oversight of security services.

(ii) Private law doctrine of confidentiality, elaborated in AG vJONATHAN CAPE and extended in Spycatcher saga. Noteinjunctions binding on third parties (TIMES NEWSPAPERSAND ANOTHER v AG (1991)). Power of contempt andconfidence laws jointly to preclude dissemination ofinformation by injunction procedure.

(iii) Public interest immunity claims – CONWAY v RIMMER,Matrix Churchill trial.

(iv) Public Records Act 1967 – Thirty-year rule.

(v) D-notice system.

(vi) Increased use of Private Bill procedure rather than publicinquiries – e.g. over Channel Tunnel.

(vii) Miscellaneous legislation – e.g. Medicines Act 1988,presents release of information on why drugs approvedor banned.

(viii) Civil Service Codes of Employment.

(ix) Freedom of Information Act 2000.

Strength of arguments for historic position

(i) Main arguments are constitutional and political ones, i.e.that ministerial responsibility and civil service anonymityare foundations of unwritten constitution and they wouldbe undermined if minister could not be in charge ofdeciding which information should be disclosed to House



of Commons i.e. vital to preserve principle of neutral civilservice. But ‘modern reality bears little resemblance to thenineteenth century idea’ (Rodney Austin). Disclosuredepends on ministerial goodwill, sheer volume ofinformation makes system unworkable, and partydiscipline precludes penetrating parliamentaryinvestigation. Further on the one hand many civil servantsdo routine work whose revelation would not prejudicepolitical neutrality; and on other hand senior civil servantsprovide advice based on a general policy framework and itis a fiction that they offer imperially evaluated opinions,their advice should be subject to public scrutiny. ‘Goldfishbowl’ decision-making perhaps would hamper discussionon politically delicate issues but this could be met bytemporary postponement of access.

(ii) Other reasons for opposition to positive right includecommon law pragmatic approach to disclosure rather thanblanket positive rights. Statute and courts’ approachliberalising already – cf. Data Protection Act, LocalGovernment (Access to Meetings) Act, Land RegistrationAct 1988 (Anyone can obtain information from registerabout registered land title), select committees,ombudsman, green papers, Citizen’s Charter initiativesand Waldegrave’s ministerial post, and also role of courtsin e.g. Matrix Churchill trial and minority judgments ofLords Bridge and Oliver in A-G v GUARDIAN NEWSPAPERSLTD [1987] 3 All ER 316.

(iii) However note should also be taken of commercialconsiderations in opposition to disclosure e.g. underEnvironment and Safety Information Act 1988 risk ofdisclosure of trade secret may be referred to a minister; inMarch 1989 transport minister Portillo cited ‘commercialconfidentiality’ as a reason for refusal to identify sevenpassenger ferries which failed safety standards afterZeebrugge disaster.

Arguments pro change – more openness

(i) Participatory democracy impossible without fullerknowledge – in 1983 electorate not told decision toreplace Polaris had already been taken although it waspresented as election issue.

(ii) People need information to make decisions about ownlives e.g. role of regulatory agencies. cf. Windscale fire1957, news suppressed for 30 years.

(iii) Parliamentary control of executive would be strengthened.

(iv) Government would make better more rational decisions ifpolicy options disclosed.

(v) Experience of other countries e.g. USA shows value ofavailability of information in revealing governmentmalpractice – Watergate.



CONCLUSION

On balance case of Freedom of Information made – but worthconsidering that any positive right would still leave let outs forsensitive areas e.g. national security and change may not makethat much difference – e.g. terms of Freedom of InformationBill and experience of ECHR in Spycatcher where courtrefused unqualified opposition to injunctions (OBSERVER ANDGUARDIAN v UK, SUNDAY TIMES v UK 1991). Recent evidence toScott Inquiry reveals extent of government emphasis onsecrecy, even if this involves keeping Parliament in the dark.All governments have practised it – (cf. Atlee and the A-Bomb).Arguable that whole fabric of government depends onsecrecy, emphasis on strong executive, strict party discipline.Change towards openness probably only possible as part ofoverall constitutional changes.

Note that Bill is criticised as proposing too many exemptionsand an inadequate test for disclosure.

QUESTION 2Demand for name of Doctor:

Contempt of Court Act 1981 s.10. See X v MORGANGRAMPIAN. Need to establish interests of justice, nationalsecurity or prevention of disorder or crime. Here interests ofjustice involves considering, as Lord Bridge put it in MorganGrampian, the balancing of interests. Lord Bridge rejected theview that the interests of justice encompassed only thetechnical matter of the administration of justice, so here theprospect of a civil suit in contract is not decisive. Oneimportant factor was the nature of the information received.Here the public interest in knowing about poor hospitalconditions would seem weighty. Furthermore it was importantin protecting sources that the matter was obtained legitimately.Disclosure may therefore be refused.

Daily Globe article about nurses:

Consider strict liability rule under ss.1 & 2 Contempt of CourtAct. First of all it is necessary to determine if the article couldhave any effect on any ‘particular proceedings’. This is clearlythe case since it refers to the connection between the nursesand the series of accidents. Furthermore proceedings must beactive. Here we are not told there has been either a warrant oran arrest, therefore statute does not apply, s.2(3) and therelevant law is common law contempt.

Under s.6(c) ‘Nothing in the foregoing provisions of this Actrestricts liability for contempt of court in respect of conductintended to impede or prejudice the administration of justice’.Common law contempt committed by publication of an articlewhich causes a real risk of prejudice to the due administrationof justice if done with specific intent to cause such a risk to theadministration of justice (see AG v SPORT NEWSPAPER LTD[1991]). Other leading cases are A–G v TIMES NEWSPAPERS LTD{1991} and A–G v NEWS GROUP PAPERS PLC [1989]. In the lattercase Watkins LJ said that the circumstances in which a criminalcontempt at common law may be committed are not confined



to those in which the proceedings are either pending orimminent. ‘The need for a free press is axiomatic’ but thepress cannot be allowed to charge about like a wild unbridledhorse’. In any case in that case it had been established thatthe proceedings were imminent.

Intent to be distinguished from motive or desire. It can beinferred from the circumstances and need not be the soleintention of the contemnor. The Daily Sport’s editor escapedbeing found in contempt because he might have believed hewas not liable before proceedings became active. However theDaily Globe cannot claim this defence because that advice isnow available to him.

Does the proposed article constitute contempt? Will it interferewith the course of justice. The test is whether a publicationwas calculated or likely to interfere with the course of justiceor whether it created a real risk that the fair and proper trial ofpending proceedings might be prejudiced. The test is lessexacting than the statutory test which is that the article createda substantial risk of serious prejudice.

Evidence of a previous acquittal is not generally admissibleagainst a defendant in cross examination even when hischaracter is in issue. So the newspaper will be putting beforepotential jurors material they will not normally have heard. Itsimpact is likely to be prejudicial, although the argument wouldbe made that it cannot discredit the defendants since it isirrelevant to character. However the court would look to theactual impact of the article not its technical category. TheGlobe should withhold publication therefore of the materialwhich indicates that the nurses have previously beeninvestigated and cleared.

Kiljoy’s Article:

Seems to be no reason why it should not be published, unlessthe comments on staff attitudes are such that they suggest thetwo nurses are guilty of the scalding. Statutory contemptcontains a public interest defence. This does not apply tocommon law contempt although as Robertson points out in hisbook Media Law, ‘It may be that a form of public interestdefence exists at common law in so far as the court may findthat the public interest in freedom of expression outweighs inthe instant case the public interest in the administration ofjustice ... It will be rare for a deliberate attempt to prejudice atrial to escape a contempt finding on this test – although oneexample might be the right of a defendant to proclaim hisinnocence prior to his appearance in court’ (p. 286). Therehave been several cases of programmes or articles which wereinitiating campaigns over criminal proceedings, partly to stingauthorities into action. Robertson suggests that this is notintentional contempt because to encourage the initiation of aprosecution is not prejudicial to the administration of justice.

The state of the law in this area is controversial. In the SPORTcase Bingham LJ held that common law contempt could coverproceedings which though not in existence were imminent.Hodgson J by contrast felt that the judges’ right to controlproceedings should not be extended to proceedings whichwere imminent. Such matters should be dealt with by the



criminal law to be dealt with by for example a charge ofperverting the course of justice. Robertson argues that ‘Theforces antagonistic to media freedom’ have sought to exploitthe residual powers of the court to punish for intentionalcontempt at common law, citing the Spycatcher saga as anexample.

With regard to disclosure of journalists’ sourcescommentators such as David Pannick QC have argued thatthe court’s power will hamper important investigativejournalism. He cites cases such as the forced disclosure ofSarah Tisdall as an informant.

Copyright © Semple Piggot Rochez Ltd, 2000SPR92.140(9/99)


CHAPTER 16

FREEDOM OF ASSOCIATION;FREEDOM OF ASSEMBLY

CONTENTS

Introduction............................................................................. 1

Freedom of association ............................................................ 1

Freedom of assembly ............................................................... 2

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FREEDOM OF ASSOCIATION;FREEDOM OF ASSEMBLY

INTRODUCTION

Freedom of speech and expression are closely connected withfreedom of association and assembly, and here too the law isconcerned with achieving a balance: between freedom ofspeech and assembly on the one hand, and the preservationof the public peace on the other.

Article 11(1) of the European Convention for the Protection ofHuman Rights states that ‘everyone has the right to freedomof peaceful assembly and to freedom of association withothers ...’, while Art 11(2) recognises that restrictions may beimposed upon these rights by law but only such as arenecessary in a democratic society in the interests of nationalsecurity or public safety, for the prevention of disorder orcrime, or for the protection of the rights and freedoms ofothers.

Freedom of association consists of the liberty of two or morepersons to meet, e.g. to form political parties, trade unions,clubs, and to hold public meetings and processions, providedthat they do not infringe any rule of common law or statute.As Stephen J said in 1884: ‘the liberty of the subject alwaysconsists in doing something a man is not forbidden to do’.There is no positive right to associate and with regard toassembly the emphasis has been on the policing aspects ofpublic groupings.

Since enactment of the Human Rights Act 1998, Article 11 ofthe Convention (freedom of association) has effect. Amongrecent cases on this article is GOUGH v CHIEF CONSTABLE OFDERBYSHIRE [2002] 2 All ER 985, upholding the legality of footballbanning orders from challenge under the Convention of EUlaw on free movement of persons.

The laws which apply to unruly political demonstrations arealso applicable to the problems posed by football hooligans,mods and rockers, quarrelling neighbours, drunks, and rioterswithout any apparent political message. They are all viewed bythe law as public order problems. Because of this problem ofpublic order inroads into freedom of assembly have beeneasier to justify than those into freedom of speech.

FREEDOM OF ASSOCIATION

There are very few restrictions on the right to associate. Thejustification for banning associations is generally that they aredangerous, criminal conspiracies or a threat to nationalsecurity. Thus the Prevention of Terrorism Act proscribes the

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Irish Republican Army and the Irish Liberation Army. ThePublic Order Act 1936 (now largely replaced by the PublicOrder Act 1986, see below) was introduced to deal with theprovocations of the British Union of Fascists in the East End ofLondon. Section 1 of the 1936 Act still makes it an offence fora person to participate in the control, management,organisation or training of a body for the purposes of enablingit to usurp the functions of the police or army, or to use forcein the promoting of any political object.

Other restrictions on freedom of association include the banon trade union membership at the GovernmentCommunication Headquarters. The unions challenged the banby way of judicial review but the House of Lords in COUNCILOF CIVIL SERVICE UNIONS v MINISTER OF STATE FOR THE CIVILSERVICE [1985] AC 374 held that, although the unions had alegitimate expectation of consultation that had been breached,the national security implications justified the breach. TheEuropean Commission for Human Rights subsequentlydecided that the order was justified under the national securityexception to Article 11 of the Convention.

The rights of civil servants generally to participate in politicalactivity are constrained by convention under the Civil ServicePay and Conditions of Service Code. Certain political activitiesby categories of civil servants are restricted. Local authorityemployees have had their political activities restricted by law.Under a highly controversial provision of the LocalGovernment and Housing Act 1989 certain posts areidentified as being politically sensitive and their holders arerestricted from becoming elected councillors or Members ofParliament. Commenting on the section and its effect on thesepostholders, Feldman (at p. 576) writes: ‘Furthermore theterms and conditions of their employment are deemed tocontain provisions laid down centrally by the Secretary ofState for the Environment by regulation. This opens thepossibility that government might make it a breach of aperson’s contract of employment to take part in any politicalactivity or to support certain parties. This is a dangerouspower to leave in the hands of central government with onlylimited opportunities for parliamentary oversight.’

The prohibition of fox hunting could be challenged on theground of limiting the right to freedom of association. But inADAMS v LORD ADVOCATE (The Times, 8/8/02) the Scottish Courtof Session stated that the right was not unlawfully limited bythe Scottish ban on fox hunting.

FREEDOM OF ASSEMBLY

The law in this area is covered by various criminal statutesparticularly the Public Order Act 1986 and the Criminal Justiceand Public Order Act 1994. Common law powers supplementthese with both civil and criminal liability. Freedom ofassociation will be examined here in relation to meetings, bothindoor and out, and demonstrations.

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PUBLIC MEETINGS

A public meeting is a meeting for the purpose of discussing, orexpressing, views on a matter of public interest and to whichthe public, or any section of the public, is invited or permittedto attend on payment or otherwise. A public meeting may beheld in a private or in a public place.

PUBLIC MEETINGS IN PRIVATE PLACES

The exercise of liberty to hold a public meeting in a privateplace is embarrassed by the decision in THOMAS v SAWKINS[1935] 2 KB 249 that the police may enter and remain on privatepremises if they have reasonable grounds for believing that, ifthey were not present, seditious speeches would be made ora breach of the peace would occur or, in the opinion of LordHewart CJ, that any offence is imminent or likely to becommitted.

Because many public meetings are held in halls owned by alocal authority and hired for the occasion, a group withunpopular views might find difficulty in obtaining a hall fortheir purpose. Candidates at elections are entitled to haveaccess to locally-maintained schools and other public halls inorder to hold campaign meetings, but otherwise the localauthorities have a discretion whether to allow their premises tobe used (s.95 Representation of the People Act 1983). Unders.43 of the Education No.2 Act 1986 the governing bodies ofuniversities and publicly funded colleges must ‘take such stepsas are reasonably practicable to ensure that freedom ofspeech within the law is secured for members, students andemployees of the establishment and for visiting speakers’.

PUBLIC MEETINGS IN PUBLIC PLACES

As far as public meetings in public places are concerned, it hasbeen held in a number of cases that there is no common lawright to hold a public meeting on the foreshore, a common, inHyde Park, or in Trafalgar Square. But a public meeting in sucha place is not necessarily unlawful.

PUBLIC MEETINGS ON THE HIGHWAY

A public meeting on a highway may amount to a trespassagainst the private owner of adjoining land or the localauthority which owns the surface of the highway because theright of the public to use the highway is a right to pass and re-pass on lawful occasions: HARRISON v DUKE OF RUTLAND[1893] 1 QB 142.

A meeting on the highway may also cause an obstruction andform the basis of a prosecution for the common law offence ofpublic nuisance, i.e. substantial annoyance to the Queen’ssubjects, for example, by impeding them in the exercise oftheir right to use the highway. In R v CLARK (NO 2) [1964] 2 QB315 a demonstration by an anti-nuclear weapons group inLondon was held to be not necessarily unreasonable.

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Section 137 Highways Act 1980 makes it a statutory offencefor any person, without lawful authority or excuse, wilfully toobstruct the free passage of the highway in any way. A policeconstable may arrest offenders without a warrant. InARROWSMITH v JENKINS [1963] 2 QB 561 it was held that thestatutory offence may be committed although only part of thehighway is obstructed and even though no nuisance iscommitted. The appellant’s conviction was upheld eventhough the area was frequently used for meetings and thepolice had been notified of the meeting. However, thereasonableness of the obstructor’s behaviour may providelawful excuse as in NAGY v WESTON [1965] 1 WLR 280 and AGUAND HIRST v CHIEF CONSTABLE OF WEST YORKSHIRE (1986) 85Crim App R. 143.

The Metropolitan Police Act 1839 empowers the MetropolitanPolice Commissioner to direct that certain streets in London bekept clear of crowds, and local by-laws may require policepermission for holding public meetings in certain places.

PICKETING

A picket is a form of public meeting on the highway. At civillaw some immunity is granted to those who, in contemplationor furtherance of a trade dispute, attend a picket at their placeof work to communicate information or persuade peacefully.The protection has been reduced by the legislation of the1980s, but immunities are allowed in certain torts e.g. inducinga breach of contract.

The law is now contained in the Trade Union and LabourRelations Consolidation Act 1992. Section 220(1) reads: ‘It islawful for a person in contemplation or furtherance of a tradedispute to attend – (a) at or near his own place of work or (b)if he is an official of a trade union, at or near the place of workof a member of the union whom he is accompanying andwhom he represents, for the purpose only of peacefullyobtaining or communicating information or peacefullypersuading any person to work or abstain from working.’ Theprovision gives immunity from the offence of ‘watching andbesetting’ covered by s.241.

At criminal law there is no immunity for other offences as mayoccur during a picket, e.g. trespass to the highway, affray,unlawful assembly, riot. Also, as it is a police officer’s duty topreserve the peace, resistance by picketers to the orders ofthe police may constitute the offence of wilful obstruction of apolice officer in the execution of his duty: PIDDINGTON vBATES [1960] 3 All ER 660.

Moreover, a mass picket may amount to a common lawnuisance and also to a s.241 offence: THOMAS v NATIONALUNION OF MINEWORKERS (SOUTH WALES AREA) [1985] 2 All ER 1.

The law on picketing was considered in general terms by theHouse of Lords in BROOME v DPP [1974] 1 All ER 314 when theydeclined to interpret the law flexibly to protect a picket whoheld up a lorry for nine minutes. The Court of Appealdiscussed picketing not arising out of a trade dispute, in thecivil case of HUBBARD v PITT [1975] 3 All ER 1, where an

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injunction was awarded to stop picketing outside an estateagent’s premises. A picket may constitute a trespassoryassembly under CJPOA (see below).

PUBLIC ASSEMBLIES

A public assembly is defined by the Public Order Act 1986 asa meeting of more than twenty persons in a public placewholly or partly in the open air.

No advance notice of meetings (or static demonstrations) needbe given to the police but s.14 Public Order Act 1986 gives asenior police officer power to impose conditions (relating e.g.to place of meeting, maximum duration, maximum number ofpersons) on the organisers of a public assembly if there isreasonable belief that it may result in:

� serious public disorder

� serious damage to property

� serious damage to the life of the community or

� if its purpose is to intimidate or coerce others.

It is an offence knowingly to fail to comply with a conditionimposed, and powers of arrest without warrant are conferredon police officers.

AGGRAVATED TRESPASS ANDTRESPASSORY ASSEMBLY

Sections 68–71 CJPOA were directed particularly at twogroups of people, namely, hunt saboteurs and gatherings atStonehenge. However, some critics fear that they will beapplied in a wide range of situations which Parliament did notoriginally intend. Sections 68 and 69 create a new offence ofaggravated trespass for which police may arrest withoutwarrant. The offence is committed where a person trespasseson land in the open air (highways are exempt) and doesanything intended to have the effect of intimidating peoplefrom carrying out lawful activity on that land or adjoining landso as to deter them from engaging in that activity or disrupt orobstruct that activity. Sections 70–76 created new sections ofthe Public Order Act 1986, 14A, B and C whereby a chiefofficer of police may apply to the district council for an orderto prohibit all trespassory assemblies in the district if hereasonably believes that an assembly is intended to be held inany district at a place to which the public have no or limitedright of access. He must reasonably believe that the assemblyis likely to be held without the permission of the occupier ofthe land and may result either in serious disruption to the lifeof the community, or, where the land or building or monumentis of historical, architectural or scientific importance, insignificant damage to the land, building or monument. Thesemeasures apply to assemblies of 20 or more people. In thearea of the metropolitan police commissioner or the City ofLondon police commissioner the permission is sought of theSecretary of State. The time limit for a prohibition is four days

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and the geographical limit is five miles from a specified centre.It is an offence both to organise such an assembly knowing itis forbidden and to take part in it if the person knows of thebanning order. A constable in uniform may arrest withoutwarrant for these offences on reasonable suspicion. Finally, aconstable in uniform may stop a person on his way to aprohibited assembly if he reasonably believes he is so doing.

The House of Lords judgment in the case of DPP v JONES ANDANOTHER, The Times, 5 March 1999, concerned events of 1 June1995 when a group stood on the roadside verge of theperimeter fence of Stonehenge with banners saying ‘FreeStonehenge’ and were arrested for trespassory assembly. TheHouse of Lords held that a peaceful non-obstructive assemblyof 21 persons on the verge of the A344 at Stonehenge, foundby the trial court to have been a reasonable use of thehighway, had not been a trespassory assembly within themeaning of s.70 CJPOA 1994. The Lord Chancellor’sjudgment was that the law should recognise that the publichighway was a public place where all manner of reasonableactivities might go on. Provided those activities werereasonable, did not involve the commission of public orprivate nuisance and did not amount to an obstruction of thehighway unreasonably impeding the primary right of thegeneral public to pass and repass they should not constitute atrespass. Subject to these qualifications there would be a rightof peaceful assembly on the highway.

PUBLIC PROCESSIONS

� Public processions are prima facie lawful (each individualexercising the right to pass along the highway), but theorganisers may be subject to the civil law of trespass andto the criminal offences of public nuisance at common lawand obstruction of the highway under s.137 of theHighways Act 1980.

� Section 11 of the Public Order Act 1986 introduces ageneral requirement (which had existed previously inparticular areas under local legislation) that the organisersgive the police six days’ written notice of the date, time,and proposed route of a public procession intended:

� to demonstrate support for, or opposition to, views oractions of any person or body of persons

� to publicise a cause or campaign

� to mark or commemorate an event.

It is a criminal offence not to give such notice and s.11also provides the various defences to such a charge.

� Section 12 of the Public Order Act 1986 empowers asenior police officer to impose ‘such conditions as appearto him necessary’ on the organiser of a procession in thesame circumstances as set out in s.14 (above).

� Section 13 of the Act provides that a public processionmay be banned if the chief officer of police reasonably

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believes that power to impose conditions will not besufficient to prevent serious public disorder.

The chief officer applies to the district council for thebanning order (in London to the Home Secretary).

The banning order prohibits the holding of all publicprocessions (or any specified class of procession) in thearea for a period not exceeding three months. Theorganisers of, and participants in, a banned march areguilty of a criminal offence and the police have powers ofarrest without a warrant.

Sections 12 and 13 replace similar provisions in s.3 of thePublic Order Act 1936.

REMOVING TRESPASSERS FROM LAND

Sections 61 and 62 CJPOA are directed particularly at whatwas seen as the problem of new age travellers travelling invehicle convoys. A senior police officer present at the scenehas the power to direct groups to leave land if he reasonablybelieves that there are more than two people who aretrespassing on land, that they have a common purpose toreside there for any period and that reasonable steps havebeen taken on behalf of the occupier to ask them to leave.Furthermore, the officer must be reasonably satisfied that oneof the following conditions is fulfilled: either that one or morepersons have damaged land or property on the land or usedthreatening, abusive or insulting behaviour towards theoccupier, a member of his family, his employee or agent, orthat they have six or more vehicles on the land. The sectionapplies to persons who did not enter as trespassers originallybut have become so as long as the qualifying criteria aroseafter they had become trespassers. A person commits anoffence if he fails to leave the land as soon as reasonablypracticable or if he returns to the land as a trespasser withinthree months of the date he leaves. A constable may arrestwithout warrant anyone whom he has reasonable suspicionhas committed an offence. These two sections extend powersthat were contained in the Public Order Act 1986. The mainchanges are the reduction from 12 to six in the number ofvehicles required and the application of the powers to peoplewho were not originally trespassers.

RAVES

Sections 63–67 CJPOA allow the police to give directions if arave is taking place or being prepared. It is an offence not tocomply with the directions. Among several provisions alsocovering seizure and confiscation of goods the police aregiven powers to remove people and to stop them fromgathering. The rave must be taking place in the open air with100 or more people with amplified music playing during thenight or without intermission. The music must be such as tocause serious distress to the local inhabitants because of itsloudness, duration or the time at which it is played. A personcommits an offence for which he can be arrested by aconstable if he fails to leave as soon as reasonably practicable

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without reasonable excuse or having left returns within sevendays without reasonable excuse.

The general effect of the new Act is to criminalise what hadpreviously been a civil matter, namely trespass.

Think Point 1

Is advance notice required for

� public meetings?

� pickets?

� demonstrations?

CRIMINAL LAW RELATING TOPUBLIC ORDER

THE PUBLIC ORDER ACT 1986

This statute brought about a major revision of public orderlaw. It abolished the old common law offences of unlawfulassembly and affray, and replaced them with new statutoryoffences.

SECTION 1: RIOT

The statutory offence has five elements. The accused is:

� one of twelve or more persons together in a public orprivate place

� using or threatening unlawful violence against a person orproperty

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� for a common purpose (which may be inferred fromconduct)

and

� the conduct is such as would cause a person ofreasonable firmness at the scene to fear for his personalsafety (no such person need actually be present)

and

� is using unlawful violence.

The consent of the DPP is necessary for prosecution. It is anindictable offence with a maximum sentence of ten years.

The mental element is defined in s.6(1): intention to useviolence, or awareness that his conduct may be violent.

SECTION 2: VIOLENT DISORDER

This is the successor to unlawful assembly, applicable both tomajor public disorders and minor group disturbances:

� three or more persons present together in a public orprivate place

� use or threaten unlawful violence against a person orproperty

� and cause a person of reasonable firmness at the scene tofear for his personal safety (as with riot, no such personneed actually be present).

Unlawful violence is an indictable offence with a maximumsentence of five years. The prosecution need establish nocommon purpose and the threat of violence is sufficient.

SECTION 3: AFFRAY

This offence consists of persons using or threatening violencetowards another so as to cause a person of reasonablefirmness present at the scene to fear for his personal safety(again such a person may be hypothetical as no person needactually be present). The threat cannot be made by wordsalone.

Affray is triable on indictment or summarily. The maximumsentence is three years. There is no numerical requirement, asthere is for riot and for unlawful violence, and it may becommitted in a public or private place. A constable has powerof arrest without warrant.

Affray has been, and is likely to continue to be, one of themost common of the public order offences.

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SECTION 4: THREATENING ETC. WORDSOR BEHAVIOUR

The offence consists of using threatening, abusive or insultingwords or behaviour towards another person or thedistribution or display of such writings or signs.

The intent must be to cause fear of, or to provoke, violence.

It may be committed in a public or private place and replacess.5 of the Public Order Act 1936. It is a summary offencepunishable with up to six months in prison and/or a fine.

The House of Lords held in BRUTUS v COZENS [1973] AC 854;[1972] 2 All ER 1297 that the words ‘insulting’, ‘threatening’, and‘abusive’ are to be given their ordinary dictionary meanings. Itis, therefore, a question of fact whether behaviour is insulting,etc.

In R v HORSEFERRY ROAD METROPOLITAN MAGISTRATES EXPARTE SIADATAN [1991] 1 All ER 324 the court held that on a trueconstruction of s.4(1) ‘violence’ meant ‘immediate unlawfulviolence’. The applicant was seeking judicial review of themagistrate’s refusal to issue a summons against the publishersof Satanic Verses for violation of s.4 of the Act. The applicationwas dismissed.

SECTION 4A: INTENTIONAL HARASSMENT,ALARM OR DISTRESS

Section 154 CJPOA creates a new s.4A of the Public OrderAct 1986. The impetus for this offence was concern overincidents of racial violence but the offence is not limited tosuch incidents and in fact does not refer to race at all. It comesbetween ss.4 and 5 of the Public Order Act 1986 in thehierarchy of seriousness of offences and is based on thewording of both. However, its main feature is that it requiresboth that the offender intended to cause harassment, alarm ordistress and proof that the victim did in fact suffer suchconsequences. There is no need for proof of such intent orfor such consequences for s.5. The offence is created if theconsequences are suffered by someone other than the personagainst whom they were directed. The offence can becommitted in a public or a private place but there is no offenceif the words or conduct are used inside a dwelling and theperson who is harassed is also inside that dwelling. Aconstable may arrest without warrant anyone he reasonablysuspects of committing an offence.

SECTION 5: HARASSMENT, ALARM,DISTRESS

The statute defines the offence as disorderly conduct, or useof threatening, abusive, or insulting words or behaviour (ordisplay of such writings, signs, etc.) within hearing or sight ofan actual (not hypothetical) person likely to be causedharassment, alarm, or distress. The offence can be committedin public or private unless the words or conduct are used

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inside a dwelling to a person in the same or another dwelling.The test of awareness is subjective so if the defendant is notaware of the fact that those seeing a display of an abortedfoetus might think it threatening, he cannot be convicted, seeDPP v CLARKE, LEWIS, O’CONNELL and O’KEEFE [1992] Crim LR 60.

This is a new concept of disorderly conduct and criticised byFeldman (at p.808) because it ‘criminalises mere horseplay’. Itis a summary offence punishable with a fine.

TABLE: PUBLIC ORDER ACT 1986

Section 1 2 3 4 4A 5

Offence Riot Violentdisorder

Affray Fear/provoking ofviolence

Intentionaldisorder

Disorderlyconduct

Minimumnumbers

12 3 1 1 1 1

Points toprove

Using or threatening violence so as tocause person of reasonable firmness to fearfor his personal safety (such a person neednot be present):

Uses/displays, threatening, abusive,insulting words, behaviour etc. towardsanother:

Group hascommonpurpose andindividualusesviolenceagainstproperty orperson (s.8).

Using ofthreateningviolenceagainstproperty orperson (s.8).

Using orthreateningviolence toperson. Ifgroup, theirconducttakentogether.

Intended orlikely tocause thatperson toanticipate orto provokeuse ofimmediateviolence.

With intentto causeharassmentetc. andcausingharassmentetc.

Withinhearing orsight ofperson likelyto be causedharassment,alarm ordistress.

Place Private or public place. Public or private unless insulter and insultedboth in private.

Power ofarrest

Arrestable.Max 10years.

Arrestable.Max 5 years.

PC may arrest without warrant if reasonablysuspects offence is being committed.

PC must firstwarn, thenmay arrest ifoffencecontinues.

PREVENTIVE JUSTICE

In addition to the specific criminal offences contained in thePublic Order Act 1986, the principle of preventive justice iswell established. This enables action to be taken to prevent ademonstration or meeting degenerating into disorder.

In his CHARGE TO THE BRISTOL GRAND JURY (1832) Tindall CJreferred to the lawful authority and duty of every person tosuppress a riot by every means in his power. In R v PINNEY(1832), also concerned with the Bristol riots of 1831, Littledale Jindicated that the main duty lay upon the local magistrates andthe police. R v BROWN (1841) establishes that a private citizen isunder a common law duty to go to the aid of a constablewhen called upon to assist in suppressing a breach of thepeace.

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The overriding duty of the police and magistrates to preservethe peace has consistently been recognised by the courts andmay justify preventive methods to avert disorder even if thismeans interfering with someone who is not about to commit abreach of the peace or do or join in any illegal act, but who islikely to be made an object of insult or injury by others whoare about to break the peace.

In BEATTY v GILLBANKS (1882) 9 QBD 308 the right of membersof the Salvation Army to make a peaceful procession wasupheld even though this provoked violent opposition from the‘Skeleton Army’. Other cases however show that evenpeaceful demonstrators may be limited in their actions by thepolice if they reasonably fear a violent counter-demonstration.

In HUMPHRIES v CONNOR (1864) an action for assault against apolice officer, who had gently removed an orange lily from theplaintiff in an Irish town, failed as the officer was authorised todo everything necessary and proper to remove a provocationwhich might cause a breach of the peace. The plaintiff hadcaused a large and threatening crowd to gather.

In O’KELLY v HARVEY (1883) a magistrate anticipated that ameeting to be addressed by Parnell was likely to be broken upby Orangemen. His attempts to disperse the meeting wereheld not to amount to an unlawful assault even though themeeting was lawful in itself and its organisers had no intentionof disturbing the peace.

Magistrates, in the exercise of their preventive duty, also havepower to bind a person over to keep the peace and be ofgood behaviour: Justices of the Peace Act 1361. Binding-overis an exercise of preventive justice and is not a conviction. Apersonal recognizance and sureties may also be required, aswas the case with George Lansbury, the socialist politician, inLANSBURY v RILEY [1914] 3 KB 229 for inciting others to commitbreaches of the peace (a speech encouraging suffragettes tocontinue their policy of militancy).

A person may be sent to prison for six months for refusing tobe bound over. He may also be imprisoned if he is unable toprovide the recognizance and sureties.

In WISE v DUNNING [1902] 1 KB 167 the Divisional Court heldthat the Liverpool stipendiary magistrate had properly orderedPastor Wise to find sureties to keep the peace and be of goodbehaviour for twelve months. Wise had organised a Protestantcrusade calculated to provoke Catholics to commit breaches ofthe peace. Wise had not himself committed a breach of thepeace but had provoked others to do so, and the disorderwas the natural and probable consequence of his conduct.

Closely linked to preventive justice, but amounting to acriminal offence, is the wilful obstruction of a constable in theexecution of his duty contrary to s.89 of the Police Act 1996.This is exemplified by the case of DUNCAN v JONES [1936] 1 KB219 where it was held that the duty of the police to preservethe peace includes a duty to stop public gatherings whereserious disorders occur or may be expected to occur. Thepolice requested that Mrs Duncan hold her meeting onunemployment out of sight of a centre for the unemployed

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where disturbances had apparently occurred following anearlier meeting held by her. Her refusal to cooperate amountedto wilful obstruction.

In MOSS v McLACHLAN [1985] IRLR 76 the police were held tohave lawfully arrested for obstruction drivers and passengersin vehicles who ignored a request to turn back at a road block.The police feared that the pickets at collieries would lead to abreach of the peace.

Think Point 2

What is the difference between s.4A POA 1996 ands.5? List the elements of the two offences.

CONCLUSION

There is no absolute right to demonstrate and, as there is animpressive range of relevant criminal and civil offences,demonstrators may fall foul of the criminal and civil law inmany ways. A balance is necessary between the interests offree assembly and expression of views on the one hand andthe interests of public order on the other.

Commenting on the state of the law in this area, Ewing andGearty write: ‘the residue of which Dicey was so proud hasnarrowed to the point of extinction. There may be freedom toprotest – but it exists only to the extent that it is permitted bythe police.’

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In the last resort, if the police are unable to control a publicdisturbance, the army may be called in to assist the civilpower.

Revision

You should now carry out a comprehensive revision ofthe work we have done in Chapters 9–15 and completeAssignment D under examination conditions. Ideally,you should not refer to the texts when writing youranswers. Specimen answers will be sent to you withyour marked script.

ADDITIONAL READING


Marston and Ward, Chapter 18.

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CASES REFERRED TO IN THISCHAPTERCOUNCIL OF CIVIL SERVICE UNIONS v MINISTER OF STATE FORTHE CIVIL SERVICE 1985

THOMAS v SAWKINS 1935

HARRISON v DUKE OF RUTLAND 1893

R v CLARK (NO 2) 1964

ARROWSMITH v JENKINS 1963

NAGY v WESTON 1965

AGU AND HIRST v CHIEF CONSTABLE OF WEST YORKSHIRE 1986

PIDDINGTON v BATES 1960

THOMAS v NATIONAL UNION OF MINEWORKERS (SOUTHWALES) 1985

BROOME v DPP 1974

HUBBARD v PITT 1975

BRUTUS v COZENS 1973

DPP v JONES 1999

R v HORSEFERRY ROAD METROPOLITAN MAGISTRATES EX PARTESIADATAN 1991

DPP v CLARKE, LEWIS, O’CONNELL and O’KEEFE 1992

CHARGE TO THE BRISTOL GRAND JURY 1832

R v PINNEY 1832

R v BROWN 1841

BEATTY v GILLBANKS 1882

HUMPHRIES v CONNOR 1864

O’KELLY v HARVEY 1883

LANSBURY v RILEY 1914

WISE v DUNNING 1902

DUNCAN v JONES 1936

MOSS v McLACHLAN 1985





QUESTION 1Rolls and Royce, officers of the Middle England Alliance (MEA),propose to hold a demonstration, followed by a picket andspeeches outside the Red Flag theatre in Islington. They intendto show their opposition to the production of a playadvocating the abolition of the monarchy and depicting theQueen as a school dinner person. The Commissioner of theMetropolitan Police decides to impose conditions whichrequire the march to be routed to avoid the noted Republicanarea of Camden High Street. As the march begins at KingsCross a large group breaks free and begins to head towardsCamden High Street. It includes some MEA members and alsonon-MEA marchers belonging to the Militant MonarchistMovement (MMM) which believes in violence to support itsaims.

At the Red Flag theatre a picket is staged and speeches made;the senior police officer present concludes that the mood ofthe crowd is so menacing as to pose a danger to public order.

He shouts out instructions through a loud hailer but thedemonstrators do not follow them. Groups of MMM membersbegin to throw missiles.

Advise on possible breaches of the law committed in theabove circumstances.

QUESTION 2

The League Against Team Sports hired a hall in London for apublic meeting to be addressed by Jack Solo, a leadingadvocate of the case for legally banning team sports. Themeeting is extensively advertised and a large attendance isanticipated. The police learn that a strong contingent from theTwickenham Pedestrians Rugby Football Club will attend themeeting. At an earlier meeting Solo referred to rugby players as‘dim, coarse and brutal with their brains in their boots’.

(a) Have the police any right to attend the meeting?

(b) Have the police any legal powers to stop the meetingtaking place or to terminate the meeting once it has begun?




QUESTION 1

MEA March and MMM March

Need for notice, unless not reasonably practicable to give anynotice. March falls within one of the categories for whichnotice is required. POA 1986 s.11(1)(a).

Commissioner may impose conditions under s.12 if one offour triggers applies. Arguably there is here reasonable fearthat it may result in ‘serious public disorder’ because ofopposition from the Republicans in the area but there wouldhave to have been some evidence that this had previouslyoccurred.

Breakaway marchers are committing a criminal offence if policeinstructions are reasonable. Organisers may have a defenceunder s.12(4) re: MEA marchers. Other possible criminaloffences are those under s.137 Highways Act. See here needfor non reasonable user, NAGY v WESTON, and the courts’acknowledgement of freedom to demonstrate in HIRST ANDAGU v CHIEF CONSTABLE OF WEST YORKS. Public nuisance isanother possible criminal offence but march must amount toan unreasonable user of the highway (R v CLARKE 1964).

Picket

No need for notice. Not a trade dispute therefore no civilimmunity. Police officer may impose conditions if one of fourtriggers applies, but only as to place, maximum duration, ormaximum numbers of persons who may constitute it.Numbers need to amount to at least 20 for section to bite.Therefore, need to consider if conditions that police areshouting are within scope of section. Knowing refusal to obeyconditions is a criminal offence. Arguable that pickets did nothear instructions and, therefore, are not knowingly in breach.Police powers in relation to anticipated breach of the peacealso need to be looked at. Consider BEATTY v GILLBANKS andWISE v DUNNING. Action may be taken against those actinglawfully if they are reasonably considered to provoke othersto violence (DUNCAN v JONES). Could be a possible chargeunder the s.89 Police Act 1996. Civil liability may arise, inparticular in torts of trespass, nuisance (see HUBBARD v PITT,THOMAS v NUM). Possible criminal trespass under s.68CJPOA 1994 if pickets on private land in open air and theyintimidate people from carryng out lawful activity on that landor adjoining land.

Throwing missiles

Possible charge under s.1 POA if twelve or more can beshown to have a common purpose and they use violence.This would seem to be happening here. Consent of DPPneeded for prosecution. Consider also ss.2–4 as possible



lesser offences: s.2 requires three or more to be using orthreatening violence; s.3 charge more likely if action notpremeditated but the latter may not be difficult to prove ifthrowers are members of MMM. (Note ss.1, 2, 3 arearrestable offences as are ss.12 and 14).

QUESTION 2

This question is concerned with the problem of reconcilingfreedom of speech with the need for public order.

(a) A public meeting is a meeting for the purpose ofdiscussing, or expressing views on, a matter of publicinterest and which the public is invited or permitted toattend on payment or otherwise. A public meeting may beheld in a public or in a private place. As members of thepublic, police officers will be entitled to attend the meetingorganised by the League Against Team Sports. But,beyond their status as members of the public, policeofficers will be entitled in law to attend the meeting underthe authority of the decision of the Divisional Court inTHOMAS v SAWKINS (1935) if they have reasonablegrounds for believing that, if they were not present,seditious speeches would be made or a breach of thepeace occur or, in the words of Lord Hewart CJ, that anyoffence is imminent or likely to be committed. In thesecircumstances the police may enter private premises andremain, even against the wishes of the occupier. In viewof the boisterous reputation of rugby players, the subjectmatter of the meeting and the quoted remarks of the mainspeaker, the police might well wish to be present at themeeting in order to ensure the maintenance of publicorder.

(b) It does not appear that the police have any legal power tostop the meeting assembling. Section 13 Public Order Act1986, whereby a Chief Constable may seek a banningorder, applies only to processions and not to publicmeetings. Section 14 of the 1986 Act, which enables asenior police officer to impose conditions relating to theplace and duration of the meeting on the organisers of apublic meeting if there is reasonable belief that it mayresult in serious public disorder, applies only where themeeting is wholly or partly in the open air – which doesnot appear to be the case here. The power to bantrespassory assemblies under s.14B also applies to thosein the open air but does not cover the highway.

There is no reference in the question to any previousdisorder associated with meetings of the League and suchsteps as binding-over to keep the peace and applying theprinciple in DUNCAN v JONES (1936) would appear to beout of place. An otherwise lawful meeting does notbecome unlawful simply because opponents are expectedto cause a disturbance. A binding-over order could bemade if Solo and the League could be accused of beingflagrantly provocative, as in WISE v DUNNING (1902), andthis does not appear to be the case here. As for DUNCANv JONES (wilful obstruction of a constable in the executionof his duty), in which a police officer prevented a public



meeting taking place on a particular spot, one of the mostimportant factors in the case was the disturbance whichhad occurred inside the nearby training centre for theunemployed when Mrs Duncan had held an earliermeeting on that same spot some fourteen months earlier.

When the meeting has assembled, however, the police willbe able to judge its temper and atmosphere and will havelegal power to intervene to prevent disorder. Indeed apolice officer will have a duty to prevent disorder, as oneof the main responsibilities of a police officer is themaintenance of the peace. Should there be a reasonablethreat of disorder, the police will be able to require theorganisers to stop the meeting. Any refusal to complywould amount, on the authority of DUNCAN v JONES(1936), to the offence of wilfully obstructing a police officerin the execution of his duty.

The police will also be able to intervene if they are of theopinion that Solo is using abusive, threatening, or insultingwords or behaviour with an intent to provoke theimmediate use of unlawful violence by others: s.4 PublicOrder Act 1986. The police have a power to arrestwithout a warrant anyone reasonably suspected ofcommitting this

Further, the police will be empowered to intervene unders.2 Public Order Act 1986 should they consider thatthree or more persons at the meeting are either using ormerely threatening unlawful violence which would cause aperson of reasonable firmness present at the scene to fearfor his personal safety. The police have a statutory powerof arrest without warrant in connection with this offence(violent disorder) which is the successor to the oldcommon law offence of unlawful assembly.

The police also have power under the Public Order Act1986 to deal with affray: a person using or threateningviolence towards another sufficient to cause a person ofreasonable firmness to fear for his personal safety: s.3;and also to deal with a full-scale riot as defined in s.1 ofthe Act.

Quite apart from the criminal offences mentioned above,which may be committed by either Solo or the rugbyplayers or others in the audience, in an atmosphere ofimpending violence any reasonable action taken by apolice officer to disperse the meeting would be protected,in the event of a criminal prosecution or civil action forassault which might be brought against the officer, by thelegal duty of the officer to prevent a breach of the peace:HUMPHRIES v CONNOR (1864); O’KELLY v HARVEY (1883). Inthe former case the defendant officer removed an orangelily from the plaintiff because he thought it might provokeviolence and, in the latter case, the defendant magistratedispersed a lawful meeting because he thought it would beattacked by political opponents.



In all cases, though, the rights to freedom of expression andfreedom of association must now be considered and balancedagainst the public interest in law and order.

Copyright © Semple Piggot Rochez Ltd 2002(09/02)

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