English Legal System

ENGLISH
CHAPTER 1 LEGAL SYSTEM
INTRODUCTION . THE SYLLABUS T HE NATURE OF THE E NGLISH L EGAL S YSTEM . T HE L EGAL PROFESSION IN ENGLAND
Semple Piggot Rochez
173B Cowley Road Oxford OX4 1UT

www.spr-law.com
CONTENTS
Chapter 1: Chapter 2: Chapter 3: Chapter 4: Chapter 5: Chapter 6: Chapter 7: Chapter 8: Chapter 9: Chapter 10:
OF THE
M ANUAL
Introduction. The Syllabus. The Nature of the English Legal System. The Legal Profession in England. The Court Structure Judges and Judicial Reasoning: The Judiciary and its Tasks Judges and Judicial Reasoning: The Doctrine of Precedent Judges and Judicial Reasoning: Statutory Interpretation The Criminal Process The Criminal Process: The Jury System Legal Services: Legal Aid The Civil Process The Appellate Process
CONTENTS
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Introduction ............................................................................. 1 The Nature of the English Legal System .................................... 10 The Legal Profession ............................................................... 13
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English Legal System
1.
INTRODUCTION
S YLLABUS
The University of London list the following six areas of study in their syllabus: (a) The court structure
(b) Judges and judicial reasoning The judiciary The magistracy The doctrine of precedent Interpretation of statutes (c) The criminal process Arrest Search and seizure Interrogation and the right to legal advice The Prosecution Bail Classification of offences Committal proceedings Trial on indictment Summary trial Plea bargaining The jury system Sentencing options and sentencing principles (in outline only)
(d) The civil process Civil procedure in Queens Bench Division County courts and small claims Enforcement of judgements (in outline only) Tribunals: representation and adjudication (e) (f) The appellate process Civil and criminal appeals Legal Services The legal profession Unmet legal need Legal aid Law centres Contingent and Conditional fees Legal expenses insurance
G ENERAL COMMENT
The English Legal System (or ELS) for the University of London External Programme has been described a diffuse subject. The Universitys own subject guide makes this point clear. Whilst I have kept to what were the original chapter headings for this manual, you will see that the syllabus is
SEMPLE PIGGOT ROCHEZ
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separated in a slightly different way. Where possible, there is now a direct link between the syllabus item and the chapter heading for ease of reference. I am sure you will find the individual chapters of more assistance in this format because they reflect the areas where the examiners tend to ask questions regularly.
T HE NEW TERMINOLOGY
Do note throughout this course that I am using the new terminology. Therefore, in future please use the term claimant instead of plaintiff and so on.
P OINTS OF REFERENCE
In order to study English law it is essential that students, especially those from overseas who may be unfamiliar with English institutions, acquire sufficient background to understand its complex nature. A grasp of the various institutions is essential to the successful study of substantive English law subjects, both core and optional, which form the syllabus for the LLB degree. This manual aims to provide that background and then to draw attention to the most important elements of each subject area in order to guide their preparation for the virtual tutorials and marked assignments which comprise the SPR course for ELS. There is one overall topic and one chapter of the manual for each of the Virtual Tutorials (VT). This does not mean that the whole of the basic material referred to should not also be studied during the year. You will need to read into the subject so do take a very careful look at the reading lists. The minimum reading for each VT is merely targeted for convenience of students who will get most out of their VTs if reasonably prepared, and if they consolidate afterwards to
S LAPPER AND K ELLY E NGLISH LEGAL S YSTEM

The University of London now recommend a specific book for main study: Slapper & Kellys English Legal System (4th edition 2001). In addition, there is a sourcebook by the two authors in its second edition published in 2001. You should know these publications in detail. However, it does not mean that your reading finishes here: it is only just starting. I would advice you to read the two Law in context books by Professor Michael Zander:

Cases and Materials on the English Legal System (8th edition 1999) The Law-Making Process (5th edition)
Pay special attention to the footnotes which accompany the text. These footnotes contain much of the authority you are required to cite when answering questions fully and will raise the general level of your classification. Throughout the
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manual, I have referred specifically to Zander as the gloss on the basic text provided by Slapper and Kelly.
HOW DO YOU STUDY THE ENGLISH LEGAL SYSTEM?

It is essential first to read thoroughly the introduction to the Universitys ELS subject guide which explains how the ELS course sets out to provide the necessary platform of basic knowledge and technique to study the other subjects of the degree course. The introduction draws attention to the need for the student to have a grasp of:
the structure of legal institutions legal reasoning the culture of English law the techniques for analysing texts from which legal rules
and principles are formally derived (i.e. statutes and case law). This sounds like a list of self contained topics but will be more difficult for overseas students to access as they may lack the necessary historical and political background to understand why English legal institutions are as they are. However, this can usually be made up by the distinct background which students from other jurisdictions may bring to the course, which will in time enable them to compare their own legal systems, and the cultural and political influences on them, to that of English law.
LAW AS A LIVING S UBJECT

The other vital point to grasp at this stage is that all law is living and therefore constantly changes; nowhere is this more clear than when studying ELS which is not a static subject. It is therefore essential to keep up to date with current affairs generally, as well as with new cases, because the context in which the English legal system operates is subject to ongoing change. Most important cases in an ELS context appear in The Times Law Reports soon after they are decided, and some time before they get into the regular series, so this source should be watched. The Times, and its law reports, can be read on the Internet anywhere in the world and 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 relevant constitutional and socio-political issues so it is worth the effort of accessing their site regularly.
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CONSILIO
An additional source of up to date material is SPRs online law magazine Consilio, which may be accessed directly through the SPR website.
ELS: T HE P ROBLEM WITH RULES

It is a problem for ELS students that the socio-economic context of the subject makes its a wide and all-embracing area for study. The solution to this problem in the time available, especially for part time students, is to obtain at least one good basic textbook as mentioned and to acquire a thorough understanding of that book. Your personal research can be backed up by selective wider reading, rather than to read widely from the start and to remember nothing. The essential building blocks need to be in place before critical commentary can be embarked upon. The University subject guide mentions this dilemma, noting that all too often the task of learning the rules, principles and technique of using legal language swallows up the available time. But they also propose a solution to this dilemma, under the heading method of working which students would be well advised to follow, where it is suggested that what is needed is a firm foundation of factual knowledge by first reading any textbook and making notes, and only then resorting to other materials, of which there are of course many. The reading lists point to both basic textbooks and further reading and these should be treated as suggested, i.e. either as basic knowledge or supplementary study.
T HE RELEVANCE OF LEGAL HISTORY

The University stresses in the ELS subject guide that legal history as such is not part of the syllabus. Nevertheless, some background in this respect will help rather than hinder and where relevant the SPR course draws attention to the historical background. I have kept legal history to a minimum but for those interested do look at Walker and Walkers English Legal System by Professor Richard Ward (8th edition, 1998 Butterworths).
T HE EFFECT OF LAW REFORM

The University also draws attention to the exclusion of law reform from the syllabus (see Zander The Law-Making Process Chapter 9, page 404). However, some knowledge of proposed reforms will help to hone the critical faculties which the Universitys guide also makes clear are expected to be acquired, polished and exercised at degree level, and so proposed reform is also worth noting. Articles on The Times legal pages on Tuesdays often deal with current initiatives or proposals for reform.
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Page 5 of the Universitys guide mentions the Lord Chancellors Departments website which is a plentiful source for potential law reform material, especially as the current Lord Chancellor has already presided over many significant reforms. The pace and extent of recent reform in the law may be compared with the whole programme of the first ministry of Gladstone between 1866 and 1874, where his government was described by a contemporary commentator as leaving office like a range of exhausted volcanoes, except that Lord Irvine shows no sign of exhaustion, and has declared that he has no intention of leaving office.
G ENERAL K NOWLEDGE OF L AW
One of the most important tasks of the law student is to learn to think like a lawyer. To this end, you should make use of all the opportunities for acquiring such background knowledge which are afforded by access to all the resources of the SPR website and its links. Apart from Consilio, the online law students magazine, you can also access the general and newspapers, such as The Times, The Lawyer, and the Gazette. There are also good lecture notes on the skill of Fact Management, and on European Law and its impact on English law. Whilst European Law is not part of the ELS syllabus, an understanding of the European institutions and how they work, and enforcement of European law in England is, so you should download from the ELS subject page and study carefully the notes on an introduction to the law of the single market, and on the jurisdiction of the Court of Justice and the enforcement of EU law.
LEARNING HOW TO A NSWER E XAMINATION QUESTIONS

This is a process which may be much more difficult in ELS than in the substantive law subjects where the confines of the question are traditionally more distinct. This is because the breadth and bulk of the ELS material is so great. I give some guidance in the handy hints below, but some useful advice on Examination Technique in general, with particular reference to ELS, is also contained in an Appendix to the Universitys ELS subject guide. You should read this at the start of the course, not in the second or third term when revision and the examination is suddenly very close. Careful mastery of the skill of answering ELS questions should begin with the first assignment. In total, four assignments will be scheduled during the year. So, when the mock examination paper is offered, and this should ideally be written and submitted in the Easter Vacation, some practice will already have been obtained in writing the answers.
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READING LISTS
The Universitys detailed reading lists contain many useful and interesting books. It has already been mentioned that from 2001 onwards there is a recommended textbook for ELS which is Slapper and Kelly (see below).
T EXTBOOKS
Slapper, G and Kelly, D, The English Legal System, 4th edition, London, Cavendish Publishing, 1999 (www.cavendishpubishing.com) ISBN 1 85941 6578. While this is the basic textbook, a second basic book would be worth obtaining, largely for regular reference as it has a level of detail not contained in Slapper and Kelly, and this is:
Smith, Bailey and Gunn on the Modern English Legal System, 4th edition, 2001, ISBN 0 421 74130 9 At least one supplementary book would be useful for deeper study of precedent and statutory interpretation and of those listed by the University. Manchesters Exploring the Law: the Dynamics of Precedent and Statutory Interpretation, London, Sweet & Maxwell, 1996 is suggested as the most straightforward for the purpose of imparting a good grasp of these two sometimes difficult practical topics. Zander is also particularly helpful and detailed.
S OURCEBOOKS
Any of the books listed by the University in their subject Guide would be useful, but as Professor Michael Zander is the long recognised authority on and acute critic of the English legal system, one of his titles, perhaps his Cases and Materials, 8th edition, Butterworths 1999, would probably be a good selection. An additional sourcebook is Slapper & Kellys Sourcebook of the English Legal System ( second edition 2001).
OTHER M ATERIALS
Your course materials include a range of soundfiles, both of general background interest and specific ELS titles which correspond to the fortnightly virtual tutorial topics, and these may be downloaded from the SPR website, on which will also be found extensive on line materials including Law Reports, and these should of course be accessed whenever a specific case needs to be read. The ELS subject page also contains a series of lecture notes to which subject specific reading is directed in each chapter of this manual. These lecture notes are of a high quality. They are of increasing value as the ELS course progresses and students 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 off these notes at the start of the course, because constant reference to them will be found to be most beneficial. An early study should be made of the lecture notes to read Legal Skills and Legal Research, which advises the student on how to study for a law degree and on developing the lawyerly skills which will lead to successful study.
GENERAL H ANDY H INTS

Remember that when you are studying for your degree, whether it is at Intermediate or Finals level, the main need is for you to understand basic substantive principles of law involved. You will then need to apply these principles in either an essay or factual situation. Legal principles have been laid down both by statute and in case law. However, you must realise that you cannot learn every case, so be guided by your textbooks to those cases that are the most important. Also, know you way around your statute books (where appropriate) in detail just in case your memory freezes in the examination hall and you need to make reference to it. Some paragraphs are highlighted for effect in many of the leading texts and practitioners works. Do take special notice of these highlights as you prepare for your final revision.
Ten guidelines to help you with your revision.

1. 2. Review the contents of your textbooks so that you have an overview of the course. Do the same with each specific topic that you have selected for revision. Follow your own selection of topics covered in the textbooks. Examine one topic at a time and digest it. Look where the author has highlighted points. Read each leading passage and case carefully and try to understand what is being said (re-read the notes you have already made as they are always a useful learning device). Make a determined effort to remember: Names of cases Facts of the case The ratio decidendi Other important or associated features 7. Re-read the passage a few times and then ask yourself:

3. 4. 5.
6.
Does this passage link with other areas, cases and interpretations? 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 answer is no, then read it over again
8. 9.
Test your understanding by working through any selfexamination questions by memory only. Mark your self-assessments by checking through the text to establish where you have made errors or omissions and then rectify and memorise the points. Possibly, you might need very short notes for any awkward points that you feel you might forget.
10. Remember that you are undertaking an academic examination and you need to be able to argue points from both sides and include academic thought in your answers. Do note that you cannot afford to forget what you have already studied, nor can you overlook other areas of the law when giving answers to questions. In examinations, the examiner expects you to have retained knowledge learnt from other areas of the law.
IN THE E XAMINATION H ALL

Points discussed in this section are for each subject including the English Legal System. There are normally seven essay questions and possibly one problem question. Do try the problem question if possible because you stand to obtain a higher classification from your answer to it. Many of the essay questions tend to be bread and butter questions with less scope to obtain higher marks. Do read the rubric at the top of the examination paper in case any changes have been made. The examiners sometimes slip in 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 parts which give the examiner greater scope to test your knowledge of the subject generally by linking specific topics. This is not to catch you out, but merely to test your knowledge that is what this examination is all about.
F URTHER C OMMENTS ON E XAMINATION T ECHNIQUE

From the beginning of your course you will have been preparing yourself for the final examination. The techniques that the examiner may use in order to test your knowledge are the discussion-type essay, the situation-type question and the essay-type question which is broken down into individual parts: (a), (b), (c), etc., so that you do not need to spend so much time planning your answer. Ensure you read the question clearly: answer what is required. Study the passage/question carefully and then read the questions set about it. Dont attempt to answer a question until you are satisfied that you fully understand the passage.
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Consider the following questions: A B C What is this section/question all about? What areas of law does it cover? What are the relevant laws and academic legal arguments, and what are the related statutes and cases, remembering that you can take a statute book into the examination hall?
Underline key phrases and words in the question and then make absolutely sure that you use these in your answer and that the content of your answer is relevant to those key points 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, backed by references/authorities. Write in clear, simple English, and keep your sentences short. Avoid large, undigested paragraphs of jargon or colloquialisms. Do not waffle, and be relevant. The examiner will detect irrelevant trivia. Note that the examiner is an experienced person 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 an examination paper time is allowed for reading the question, preparing the answer, writing it and reading it through once it has been completed.
LAST M INUTE R EVISION T IPS

I insert these points now so that your mind will be sufficiently concentrated towards the end product: passing this examination well. With the actual examination day approaching fast, last minute revision becomes of key importance, but dont overdo it! You will need to allocate your final revision time carefully. Prepare a revision programme:

Prepare for yourself your own schedule of topics to be covered during the revision period. Allow time for emergencies that may occur during this critical time.
Plan your time carefully:
Think about how you are going to use your time. It is a good 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 a time is about the maximum that you will be able to do at any one time.
Make sure that you will not be disturbed.
2.
THE NATURE OF THE ENGLISH LEGAL SYSTEM
READING PATH:
University of London ELS subject guide Chapter 1 Slapper & Kelly, Chapters 1, 2 and 11 Smith & Bailey, Chapters 1-4 Zander The Law-Making Process Chapters 1 and 2. From the website subject page: Soundfile: Introduction to the English legal system Lecture Notes: Introduction to English and EU law Lecture Notes: Sources of law (1) Judicial Precedent Cases as a source of law Lecture Notes: Sources of law (2) UK Legislation Lecture Notes: Common law and equity
T HE NATURE AND SOURCES OF E NGLISH L AW

English law is a common law system, based on precedent, unlike the civil law systems of continental Europe, such as France and Spain. There are still traces of such civil law systems in certain overseas jurisdictions, such as some states of the USA which were former French and Spanish colonies, although most American law is common law based. Another example: the legal system of the Canadian province of Quebec is based on the Napoleonic civil code, although the rest of Canada maintains the system of English common law. England once had a civil law system as well; the legacy of Roman occupation, which ended at the beginning of the fifth century AD. It may be said therefore, that English law began as a civil law system but has moved away from that position. The notable exception is the Scottish legal system, which is still based on Roman law. After the Romans left England, there was no unified system of law. Local courts were locally administered by individual local lords on a regional or parochial basis, e.g. the shire courts, the hundred courts and the franchise courts. It was from these courts that the local common law developed, and the civil law which had prevailed under the Roman occupation disappeared except in the Church, which retained it as the basis of ecclesiastical law. Certain milestones in the development of English common law are revealed by the following chronology:
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1066: The Norman Conquest. Following the conquest, a strong centralised system began to develop, centred on the King and his Council, the Curia Regis (Latin for Kings Council), which established courts on a national basis. This development ensured certainty and consistency and constituted an early form of precedent, although also some rigidity 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 or subpoena procedure to compel written or oral evidence to be given and no alternative to money damages. The rich had the best chance of succeeding in all actions. Curiously, it was the rich, i.e. a group of English barons at Runnymede who attempted to address this and other grievances by forcing the king to sign the Magna Carta in 1215. 1258 the Provisions of Oxford. This statute prohibited further expansion of writs, and then more formally Parliament became settled in London. Thus by the middle ages both case law and statute law were established sources. The rigid writ system was subsequently developed by the rise of equity (or a gloss upon the law) which created flexibility in the discretionary remedies which could be obtained from the Lord Chancellor, This was the origin of the modern remedies of specific performance and injunction. However, its very flexibility created a disadvantage as it made the law less certain. It was said that in some cases the law varied with the length of the Chancellors foot! For centuries there were different courts for cases involving either law or equity until the Judicature Acts of 1873-75. 1873-75 the Judicature Acts. This legislation united law and equity and made both available in all courts. In modern times more new courts and sources of law have appeared, 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 is binding in England and Wales following our accession to the Treaty of Rome 1957 and the setting up the European Community. Our participation in this whole system was effected in English law by our own statute; the European Communities Act 1972. European Community Law, binding on us under this Act, comes from the primary source of European treaties and the secondary source of Regulations, Directives and Decisions. As European law is a separate subject, there is no need here to explore this further. 1998: The Human Rights Act. The European Convention on Human Rights and Fundamental Freedoms, was imported into
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English Law by the Human Rights Act 1998 now in force. The European Court of Human Rights is in Strasbourg. Our own statutes are made by Parliament at Westminster in London. Statute law comprises primarily: Acts of Parliament or secondary (or subordinate) legislation made in the form of Statutory Instruments, under powers conferred in the parent Act, or Orders in Council (the Privy Council is the modern descendant of the Curia Regis) or Byelaws. Acts starts out as Bills, which, if passed through both Houses of Parliament, are formally given the Royal Assent, when they are said to be placed on the statute book.
P UBLIC LAW AND P RIVATE L AW

Public law regulates the relationship between the state and the citizen, e.g. criminal law, constitutional and administrative law. Private law concerns relationships between individual citizens, e.g. the law of contract, tort and divorce. Some areas of law are more logically hybrid, e.g. consumer protection, a part of contract law but regulated by the state.
CIVIL LAW AND C RIMINAL L AW

Civil law is basically private law, although the state establishes the framework within which such private legal rights can be asserted. Sometimes a civil case will involve both public and private law liability. The objects of civil and criminal law are different. Civil law aims to adjudicate between private persons rights as between themselves, and to compensate the individual in the right. Criminal law seeks to punish the wrongdoer for anti-social behaviour 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 legal services 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 profession consists of barristers, solicitors and legal executives, who all have their own regulatory bodies. Academic lawyers in universities are not necessarily professionally qualified as practitioners unless they belong to one of these groups.
SOLICITORS
If a barrister is the equivalent of a consultant, then it might be said that a solicitor is the general practitioner of the legal profession. They are regulated by the Law Society, on whose Roll they must be in order to be recognised as solicitors in practice. Solicitors work in offices, either as sole practitioners or in partnerships. Their work is varied; everything from wills to contracts, conveyancing to debt collecting, personal injury and business law to matrimonial cases. They do the preparatory work before a case goes to court and unlike barristers, 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 largely commercial, firm and the high street general practitioner. Solicitors are entitled to appear as advocates in all courts except the High Court and above, to which they have access provided they possess a Higher Courts Advocacy qualification, for which an examination is necessary. The Courts and Legal Services Act 1990 first widened solicitors rights of advocacy, but many solicitors have not taken up these rights. It appears that in practice the division of work between barrister and solicitor is a practical one. It works well, because all too often it is not cost effective for solicitors to do all their own advocacy when a specialist barrister, doing it every day, can take on the presentation in court of a case with less disruption than if the solicitor left the office for the day to advocate in court himself. In the same vein, solicitors can also take silk and become Queens Counsel. The Law Society has also become more relaxed about solicitors advertising their profession. Solicitors are now permitted to compete with other professionals, such as accountants and licensed conveyancers, who have been
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systematically making inroads into the work of both barristers and solicitors. Standards within the profession have been tightened up, and a new more effective system of dealing with complaints has been developed.
S OLICITOR QUALIFICATIONS
Solicitors qualify, like barristers, either through a qualifying law degree or by graduation in another discipline plus passing the CPE or postgraduate Diploma, and then taking a Legal Practice Course, offered by one of many institutions nation-wide who are validated by the Law Society to do so. They must then undertake a 2 year training contract, the solicitors equivalent of pupillage.
B ARRISTERS
These are the consultant specialists, also called counsel, who work in chambers rather than offices. They are sole practitioners sharing accommodation and office systems and services, 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, a system of direct professional access by which overseas lawyers and certain UK or overseas-based professions, such as accountants, town planners and architects may approach a barrister 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 fees and until the recent case of HALL v SIMONS, (The Times, 21 July 2000), they were also immune from actions for negligence in cases conducted in court, although they could be sued for negligent advice given outside court cases. See RONDEL v WORSLEY [1969] 1 AC 191. This immunity no longer applies. The immunity which solicitors also had when acting as advocates (see SAIF ALI v SYDNEY MITCHELL & CO [1980] AC 198) has also been lost following HALL v SIMONS.
Q UALIFYING AS A BARRISTER
Barristers are Called to the Bar by one of the four Inns of Court. These venerable collegiate institutions have the sole right to call barristers. Each Inn is governed by senior barristers and judges called Benchers. The Courts and Legal Services Act 1990 s 27 expressly preserved the sole right of Benchers to call student barristers once they have successfully completed a Bar Vocational Course taken at one of eight institutions validated by the General Council of the Bar, to whom the 1990 Act gave the right to supervise Bar education. The prerequisite for undertaking the Bar Vocational Course is a qualifying law degree taken at a recognised university. Alternatively, those graduating in another discipline may take the Common Professional Examination (also called the Postgraduate Diploma in Law) following a fast track, one year conversion course which offers the core subjects studied in the qualifying law degree. This is followed by a year in
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pupillage, during which they are entitled to undertake their own court cases and advisory work, after 6 months, under the supervision of their pupil masters or pupil mistresses. Following successful completion of pupillage, newly qualified barristers must practise at first in a recognised set of Chambers, which involves finding a tenancy in such a set after the end of their pupillages. However, since the Courts and Legal Services Act 1990, they may practise from home, or from an office without the need for belonging to a formal set of chambers. Unless invited to remain in their pupillage Chambers, finding the tenancy is often the young barristers worst hurdle in starting practice, and many pupils never obtain one, and instead are compelled to leave the Independent Bar for employed practice or other destinations.
THE BAR CODE OF C ONDUCT

Throughout barristers careers, they are regulated by a Code of Conduct, which is revised regularly. One core requirement of the Code is the cab rank rule which requires all barristers to accept any work offered unless it is either outside the scope of the barristers practice, or the barrister is unavailable. This means even legal aid (i.e. publicly funded) work, remunerated at rates less than the barristers usual tariff, 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 Bars erroneous 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 become competitive, not least by such decisions as HALL v SIMONS. The changing legal landscape has also meant that barristers have abandoned some of their old customs such as a ban on advertising. They may, since 1990, now advertise their services. Also, equal opportunity means that they are accessible to all, regardless of race, sex, creed etc. Instructing solicitors may not discriminate against any member of the Bar on the same grounds, e.g. by asking for a male (or white) barrister.
THE EMPLOYED B AR
Barristers may work outside self employed independent practice, as in house lawyers. Since the Access to Justice Act 1999, such lawyers now have rights of audience in court, whereas previously they did not. (Formerly they merely advised their employers in the course of their employment, without taking on any other legal work). The largest employer of barristers is the Crown Prosecution Service (CPS), but most large commercial concerns maintain an in house lawyer to conduct their legal business, whether by directly doing it personally, or instructing solicitors or counsel as necessary.
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The Bar Association for Commerce, Finance and Industry (BACFI) represents the interests of employed barristers. There are also specially designated seats on the Bar Council, allocated for the representation of this section of the Bar in proportion to their numbers.
TRADITIONAL D IVISIONS OF THE B AR

The Bar is traditionally divided into general law and specialist sections, represented by the relevant Bar Associations and the division of Chambers into specialist areas of practice and practice groups within them. Chancery practitioners find Chambers in Lincolns Inn (though there are some in the Temple and Grays Inn) Common lawyers practice in the Temple or Grays Inn. Commercial lawyers are to be found in all the Inns. It is important to note that in practice, much of the heavy commercial litigation takes place in the modern Chancery Division of the High Court, much more so than in former times when Chancery meant almost entirely erudite paperwork on trusts, wills, tax, mortgages and so forth. Within the typical Chambers, work now tends to be concentrated in practice groups practical groupings of barristers doing the same specialised work, and supporting each other in providing cover for cases where one of the team is engaged elsewhere. Outside London, practitioners within the regional Bar also specialise, but to a lesser extent.
QUEENS C OUNSEL
Leading barristers eventually become Queens Counsel (QCs). This is an appointment made by the Lord Chancellor in an annual competition in which those wishing to take silk must apply to him for the honour, which tends to be given to a about 10% of the Bar overall. Only those in self employed or employed practice take silk although occasionally there is honorary silk given to an academic, An issue for discussion Will the latest changes in rights of audiences be likely to lead to fusion of the legal profession in England and Wales? Would this be a good thing, or do you think there are disadvantages?
LEGAL E XECUTIVES
Staff of solicitors offices and other interested parties may now qualify as legal executives by taking examinations for membership and fellowship in the body which regulates their qualification and recognition: namely The Institute of Legal Executives. The Institute (called ILEX) was established in 1963. Frequently, such staff go on to qualify as solicitors via on the job training, night classes, day release or distance learning routes to examinations. This route is particularly suitable for
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legal executives who are often highly experienced specialists in key areas of law, especially crime, matrimonial, or conveyancing. Members of ILEX do not have rights of audience in court, but can go before the minor judiciary or on uncontested matters before judges.
OTHER P ROFESSIONALS
Other professionals include such groups as licensed conveyancers, probate practitioners and immigration practitioners. The profession of licensed conveyancer was developed following the Administration of Justice Act 1985 which ended solicitors monopoly in this area of law, and also licensed probate practitioners. More recently, the Home Office has set up a system for registering and regulating immigration practitioners following sweeping changes to immigration law and it is likely that more such sub-professions might be developed. The trend is now firmly against monopoly. Lord Mackay of Clashfern, when Lord Chancellor, extended rights of audience significantly in the Courts and Legal Services Act 1990 and Lord Irvine, the present Lord Chancellor, continued the process in the Access to Justice Act 1999. Nevertheless, the legal profession (in England and Wales) remains divided, with solicitors performing their functions and barristers theirs, unlike most other countries where there is a fused profession in which practitioners must qualify in both skills. Certain opinion has it that a fused bar would force all lawyers to become more competitive and to offer services which would be more economical for clients. Others say it is doubtful that a fused bar would really save money for clients. The argument is that barristers and solicitors still retain distinct functions, in practical terms as well as by name, despite an increase in the crossover of their work in certain cases .
G OVERNMENT L AW O FFICERS
The government has its own in house lawyers, who, unlike other employed barristers, have always gone to court for their employer when required. The highest ranking government law officers are the Attorney General, the Solicitor General and the Director of Public Prosecutions. The Attorney-General is a very ancient office, dating from the Middle Ages. He is assisted by a Solicitor-General, who is not a solicitor at all. Both are in fact barristers! Their remit is to conduct important cases on behalf of the government, e.g. the FACTORTAME litigation in the European Court, together with other important functions under both civil and criminal law. The third high profile lawyer employed by the government is the Director of Public Prosecutions, (or DPP) who heads the Crown Prosecution Service.
17
Chapter 1
T HE JUDICIARY
The English judiciary, full and part time, is drawn from former practitioners. unlike continental countries where judges are trained straight from university, as an alternative to practising as lawyers and advocates, There is no career judiciary in Britain. See below for a more detailed exploration of the judiciary and its tasks. From the professional judiciary, full and part time, must be distinguished the magistracy. Lay magistrates sit in the first level of courts, to hear both criminal and some small civil cases. They also carry out certain administrative functions such as licensing. The work of most magistrates courts is criminal, with 97% of all criminal cases coming before them at some stage. Their civil work is considerably less.
18
Chapter 1
S ELF-ASSESSMENT QUESTIONS
All the answers can be found in the recommended materials or 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. 3.
What are the sources of English law? Distinguish between:

barristers and solicitors solicitors and legal executives
4.
What other types of legal practitioners are there and what do they do?
Copyright Semple Piggot Rochez Ltd 2001

LLB_ELS_Ch01(08/01)
19
ENGLISH
THE COURT STRUCTURE

www.spr-law.com
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

R EADING 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. From the website subject page: Soundfile: The Civil Court Lecture Notes: Introduction to English and EU law Lecture Notes: Legal disputes and their resolution
1.
TRIBUNALS AND ALTERNATIVE DISPUTE RESOLUTIONS (ADR)
Civil and criminal court systems are completely separate, although some courts do both civil and criminal work. A helpful diagram of the courts, showing the overlap of civil and criminal work, can be found in lecture notes 3 which you can download now. This chapter, however, concentrates exclusively on the civil system. For the criminal system, see Chapter 6. Not all civil matters are handled by courts. There is also a framework of tribunals which are not courts as such. Instead they are informal; created under specific statutes to enable members of the public access a more informal method of resolving disputes often by specialists and often without the necessity for legal representation. Logically, such tribunals usually deal with specialist matters with which it is thought that the courts are considered to ill equipped to deal. There is no relation between the court and tribunal systems as such, i.e. tribunals are not inferior courts within the court system, although cases do go from tribunals to courts in some cases on appeal. For example, appeals from the Lands Tribunal (which itself exercises an appellate function from other property tribunals) will go to the High Court and if necessary, the Court of Appeal on a point of law, or alternatively they will be referred to the court (e.g. the County Court) where a specific statute gives that court the duty of deciding a matter of law within the particular legislation.
Chapter 2
ADR (alternative dispute resolutions) is the third string to the civil system. Which broadly breaks down further into two separate systems of arbitration and mediation. It is useful to view the Centre for Alternative Dispute Resolution (CEDR) on their website at: www.cedr.org.uk. Arbitration may be by agreement or governed by the Arbitration Act, where a duly appointed arbitrator decides a dispute in a binding resolution. Mediation is a distinct concept where a neutral third party assists the parties to the dispute to resolve their differences in a timely, cost effective and mutually beneficial manner, without recourse to litigation. Mediation is usually non-binding, but nonetheless has evolved in recent years to provide many creative variants. The disputatious parties may, for example, agree that they will accept a decision made by such a third party in a process known as neutral evaluation. ADR now has a formal role in the post Woolf system of civil justice, where the rules provide for (and courts regularly invite the parties to consider) an adjournment for ADR to be tried in order to seek a resolution of a dispute which has reached litigation. Both ADR and tribunals should be distinguished from Commissions and Inquiries which are often set up to inquire into disasters, business and financial scandals (and sometimes under the Companies Acts) or specific events, such as the Scott Inquiry, the Blue Arrow Inquiry, the BSE Inquiry and the Bloody Sunday Inquiry.
2.
CIVIL COURTS
The civil courts to be found in the diagram referred to above can be listed as follows in ascending order or importance:

the Magistrates Courts the County Court the High Court of Justice (with its Divisions and Divisional Courts) the Court of Appeal, Civil Division, and the House of Lords.
It is useful to memorise the individual courts and their position in the hierarchy. The High Court and the Court of Appeal form the Supreme Court of Judicature, set up by the Judicature Acts 1873-5. Its judges are Supreme Court judges, either of the High Court or the Court of Appeal. If they are in the High Court they are called The Honourable Mr Justice (second name) although all are knighted, and in private life are correctly titled Sir (first name and second name). They are addressed as My Lord or My Lady.
Chapter 2
In the Court of Appeal, judges are called The Right Honourable Lord Justice (second name) although they remain knights, and are still Sir (first name and second name) in private life. They are addressed as My Lord or My Lady. Judges at both levels receive the same salary, although the Lords Justices of the Court of Appeal are also Privy Councillors (members of the Queens Privy Council) which entitles them to be Right Honourables instead of merely Honourables! This distinction was agreed at the time of the Judicature Acts when the two levels of judge were asked if they would prefer a higher salary in the Court of Appeal to being Privy Councillors, and chose the latter. The County Court was established in 1846 to provide a cheaper system of local justice than was available in the High Court. Its judges are circuit judges and district judges, who are not knights and are styled His (or Her) Honour Judge (second name) for circuit judges, or Sir or Madam for district judges. Some are promoted to the High Court, but this career progression is rare. It is also still rare for the promotion of District Judges to the Circuit Bench.
T HE M AGISTRATES COURT
Apart from its main criminal jurisdiction, the Magistrates Court deals with a large volume of civil work, including:

licensing certain civil debts family cases (under the title of the Family Proceedings Court) including domestic violence, spousal maintenance, financial provision for children under the Children Act 1989, applications for private law orders and care and other orders for the protection of children, also under the Children Act
T HE COUNTY COURT
This courts jurisdiction is governed by:

the County Courts Act 1984 the Courts and Legal Services Act 1990 the High Court and County Courts Jurisdiction Order 1991 and the new Common Procedure Rules 1998 (the CPR) .
The CPR came into force in April 1999. The CPR are a common set of rules for High Court and County Court in the post Woolf era of civil justice and have created a new landscape 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 that personal injury actions where expectation of damages
Chapter 2
exceeds 25,000 may be started in the High Court and will be heard there unless transferred to the County Court, The criteria in both cases are set out in the Jurisdiction Order. County Court work covers traditional Chancery matters (such as recovery of land, actions in equity, bankruptcies, probate and company winding up) as well as ordinary common law matters such as family law and consumer credit, together with Patents and landlord and tenant, which in the High Court might be dealt with in either the Queens Bench or Chancery. Traditionally the work is undertaken by both Common Law or Chancery and/or Commercial lawyers.
E NFORCEMENT
The syllabus mentions the enforcement of judgments in outline only. It is sufficient to say that most county court cases are to collect debts and enforce the judgment when the money is not forthcoming. Under the new CPR system, cases of a value lower than 5,000 go to informal arbitration also called the small claims procedure, by a District Judge (i.e. the assistant judge level in the county court) Higher value cases go to the fast or multitracks depending on whether they are of a value of under or over 15,000, exactly as in the High Court. Other criteria, e.g. of importance or complexity, might change the allocation of a case within these boundaries.
T HE HIGH COURT
The High Court is divided into three basic divisions, each of which are further sub-divided. A High Court judge on appointment is assigned to a specific division, and although any 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 as follows:

Queens Bench Division (Lord Chief Justice, now Lord Woolf, LCJ) Chancery Division (theoretically the Lord Chancellor, in practice the Vice-Chancellor, now Lord Morritt, V-C) Family Division (President of the Family Division, now Lady Justice Butler-Sloss, P).
The Queens 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 for injury and loss due to collisions at sea, and the Commercial Court, which deals with insurance, banking, agency and negotiable instruments. The Queens Bench Division also has civil appellate jurisdiction 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 the prerogative orders of mandamus, certiorari, habeas corpus and prohibition) and within this regime, also deals with judicial review. See the glossary below for the change in terminology.
The Chancery Division deals with the same traditional Chancery matters as may also be handled at county court level, taking the more complex and/or the more valuable cases, 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 cases where there is a need to apply any of the traditional equitable remedies, such as rectification of deeds, and where specialist expertise is required such as by the Companies Court, the Patents Court and the Court of Protection. Planning is also a part of the traditional property jurisdiction of the Chancery Division. The Chancery Division also has appellate jurisdiction (one or two High Court judges of the Chancery Division), from the Commissioners of Inland Revenue, and from the County Court in bankruptcy and land registration. The Family Division was created by the Administration of Justice Act 1970 and deals with all family matters including:
marriage, nullity, divorce, judicial separation, including financial matters following any decrees relating to these matters domestic violence and family property disputes outside divorce, 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 High Court judges of the Family Division) from:
county courts magistrates courts (called Family Proceedings Courts for the purpose of their family jurisdiction)
T HE COURT OF A PPEAL
This Court is presided over by the Master of the Rolls, currently Lord Phillips MR, and is served by the Lords Justices of Appeal, by the Heads of Division and by a number of senior High Court judges who can also sit if the workload requires.
Chapter 2
The Court of Appeal hears appeals from:

the three divisions of the High Court, and their divisional courts the county courts the Employment Appeal Tribunal, Lands Tribunal, and Transport Tribunal.
Normally three judges sit, although two can be sufficient, e.g. for leave to appeal or where the parties agree. In the case of an important appeal, sometimes five judges are convened, for example. the case of DAVIS v JOHNSON [1979] AC 264 where the five judges sitting were referred by Lord Denning to as the court of all the talents.
T HE HOUSE OF LORDS
This is the supreme court of appeal for civil and criminal cases in Great Britain and Northern Ireland (not simply England and Wales). Appeal requires leave of the court below, i.e. the Court of Appeal or the High Court or Divisional Court if there is a leapfrog appeal under the provisions of the Administration of Justice Act 1969, ss.12-15. For this leapfrog effect to be put in place, the trial judge must certify that there is a point of public importance which needs to go directly to the House of Lords because there is a question of statutory interpretation and an authority on the point by which the Court of Appeal is bound. The parties involved must also consent and the House of Lords must itself give leave to appeal. Appeal Committees may consist of three or five (sometimes seven) Lords of Appeal in Ordinary, also called Law Lords. They hear the appeal in a room outside the Chamber of the House and then deliberate on their decision in the normal way. Their decision, however, (although not the whole judgment giving reasons and called a speech,) is then delivered in the Chamber, as this is technically a decision of a committee of the House. The Judicial Committee of the Privy Council comprises the same Law Lords, sometimes joined by the Lord Chancellor, senior Commonwealth judges and Privy Councillors, and hears civil appeals from the Ecclesiastical Courts and certain professional tribunals, as well as having a criminal appellate jurisdiction from those Commonwealth countries which have not abolished this appellate route.
E UROPEAN COURTS
European Courts include the European Court of Justice and the European Court of Human Rights. Although they do not form part of the English system of civil justice, if a case is referred to them, e.g. to the European Court on a question of interpretation 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 Fundamental Freedoms will have direct effect in English law, following the implementation of the Human Rights Act 1998, it should no longer be necessary for a case to go to the European Court of Human Rights
OTHER C IVIL C OURTS

Other types of civil court include:
Coroners courts (inquests into deaths, inquiries into treasure trove, etc.) and
Ecclesiastical courts.
3.
REFORM OF CIVIL JUSTICE
There have been many initiatives to reform civil justice since the mid 1980s when the then Lord Chancellor, Lord Hailsham, began a review of civil justice. Its findings were implemented in the Courts and Legal Services Act 1990, which redistributed court business, leading to the Order of 1991 already mentioned. In directing more work towards the county courts, this order started the trend towards the trial of cases at the lowest appropriate level, which has been continued by the Woolf Report and subsequent legislation implementing Lord Woolfs recommendations.
4.
THE D EVELOPMENT OF TRIBUNALS AND INQUIRIES
Tribunals, which have existed for about 200 years, were first established to deal with Income Tax as long ago as 1799. In 1873 the precursor of the contemporary Transport Tribunal was set up to deal with disputes between the railway and canal companies and between those companies and their customers. Subsequently, tribunals have multiplied, particularly since the Second World War, when there was an escalation of administrative decisions in the wake of the creation of the welfare state. This expansion in the number of tribunals, however, had its origins as early as 1911 when the National Insurance Act set up an unemployment benefit scheme. Appeals under this scheme were initially referred to a court of referees from which there was an appeal to a national umpire. This scheme proved superior both to the referral to arbitration which had been used under the Workmens Compensation Act and to referral to county court judges, and if necessary onwards to higher appeal.
Chapter 2
From these beginnings the tribunal system evolved further. In 1957, it was reported on by the Franks Committee on Administrative Tribunals and Enquiries, which, recognising that tribunals had come to stay, also recommended the establishment of a Council on Tribunals to supervise their procedures. Other recommendations were implemented in subsequent Tribunals and Inquiries Acts 1958, 1971 and 1992. A review under the chairmanship of a retired Court of Appeal Judge, Sir Andrew Leggatt, which will report some time in 2001.
THE COUNCIL ON TRIBUNALS

Overall, there are now nearly 100 types of tribunals, most within the jurisdiction of the Council on Tribunals, and a handful outside that jurisdiction. The Councils contemporary role is to monitor and review the operation of tribunals, for which the Council regularly and routinely sends observers to sit in on proceedings, report back to the Council and possibly disseminate to additional interested parties for training purposes. Each year, the Council writes an annual report on the carrying out of their statutory function. Each tribunal is usually linked to the government department responsible for the specialist legislation which created it, though for some their link is directly with the Lord Chancellors Department through the LCD agency, the Court Service. Independent lawyers are appointed as chairs and following the case of STARRS v PROCURATOR FISCAL (The Times, 17 November 1999) in Scotland, these part time judicial appointments to tribunals in England and Wales are generally now to be for a period of 5 years in the first instance, and subject to the age limit for the appointment, to be terminated basically only for bad behaviour, incapacity or operational change making them in effect redundant. Besides those already mentioned, the wide operational area of tribunals includes:

VAT Tribunals Employment Tribunals (formerly called Industrial Tribunals) 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 the General Medical Council and tribunals which regulate the professional conduct of the Bar and solicitors. The courts can intervene to ensure that these tribunals have not acted ultra vires or outside their remit, using the prerogative writs of mandamus, certiorari or prohibition. This means to perform some duty such as allow an appeal, to inform the High Court of the facts if it has acted ultra vires, or to prevent an excess of jurisdiction.
ADMINISTRATIVE TRIBUNALS
Sometimes the disputes are between government departments and individuals (hence the term administrative tribunals) and sometimes between individuals, e.g. the Leasehold Valuation Tribunal values freeholds and leaseholds for enfranchisement and determines the reasonableness of service charges levied by landlords and managing agents.
THE TYPICAL TRIBUNAL STRUCTURE

A tribunals is a committee consisting of a lawyer or other professionally qualified chair, and two specialist members, of whom one will be the expert lay member, or the professional common sense element within the committee. The expert or specialist in question may be a magistrate, or any person with some experience of committee work, preferably with some reference to the subject matter normally determined by the tribunal. Some chairs are able to go it alone for certain types of cases, e.g. under the Trade Union and Employment Rights Act 1993, and the Traffic Commissioners, when regulating the road haulage and bus industries under the Goods Vehicle (Licensing of Operators) Act 1995 or the Public 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 still occur due to lack of sufficient administrative support) flexibility cheaper cost (but costs not normally awarded, so not recoverable by the winner specialism and expertise (often lacked by the courts) hearings usually public though some are private.
Chapter 2
D ISADVANTAGES 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 tribunals are persuasive) potential bias (usually now addressed by a register of interests kept by the tribunal president) expediency at the expense of justice.
T HE FUTURE OF T RIBUNALS
Balanced against the advantages enumerated above, some of the disadvantages of tribunals have given rise for concern. Doubts have been expressed about the performance of tribunals and it was inevitable once the Woolf reforms were in place in the courts, that there would be a review, at least to determine how best to ensure consistency. It was also decided to assist the tribunals in doing their work by giving them more administrative support and possibly also to extend their jurisdiction and area of operation, so as further to relieve courts of the resulting burden of work. Since the 1957 Franks Report, there have been subsequent reports, including the 1980 special report on The Functions of the Council on Tribunals (Cmd 7805) and the 1988 JUSTICE-All Souls Report on Administrative Justice. Neither report has succeeded in taking these matters further. Ideally, the work of tribunals could and should now be both extended and formalised to operate as alternative to ease court overloads, in cases where appropriate. Some points you should consider from this chapter:

Should the Council on Tribunals be given extended powers? Should its composition be altered and its resources increased? Should it have a political base, such as a select committee in Parliament? Should tribunals have a more formalised method of operation?
10
Chapter 2
5.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
A RBITRATION
S UMMARY
Popular in England and Wales for some time, arbitration is a means of settling disputes other than by court action. It involves the appointment of one or more persons to hear the arguments put forward by the parties and to decide upon them. It is to be noted that an arbitrators awards are final, and can include an order to pay costs. The award can be enforced 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 by agreement or under the Arbitration Act. This will likely be beneficial if the matter is complex or technical. Such an agreement can be either oral or written, but the Act only applies to the latter. The agreement will either name the arbitrator or the trade or professional association whose nominee will be appointed.
THE POWERS OF THE ARBITRATOR

Once appointed, the arbitrator can fix and time and place of the hearing, examine witnesses and parties on oath exactly as a court could, and has power to order disclosure as a court could. Many arbitrators are appointed for their expert knowledge thus reducing costs because experts are not needed. It should be re-asserted and stressed that an arbitrators awards are final, and can include an order to pay costs. If and when necessary, the arbitrator can employ a legal adviser to draw up the award, or can state a case on the law for the opinion of the court. The law is then applied to the facts, a procedure which a party can compel in appropriate circumstances. An arbitrators award will only be set aside by the court for misconduct, procedural irregularity in terms of natural justice (e.g. refusing to hear one party, communicating with one party privately or examining witnesses in the absence of one of the parties). The award can be enforced like a court judgment.
11
Chapter 2
An arbitration clause in a contract can be enforced against an actual or potential litigator by applying to the court to stay proceedings, providing the applicant applies before taking any step in the proceedings and of course that the action before the court is actually covered by the agreement in question.
M EDIATION
The Centre for Alternative Dispute Resolution (CEDR) a charity which has been in existence for 10 years, has attempted to spread the use of mediation in English courts Its brief includes the provision of training for an increasing number of mediators to service court referrals. However, such referrals continue to have a low take up rate, despite much pro bono work. Mediation does not incur the same enthusiasm in England and Wales as it engenders in North America or Australia. Mediation has apparently acquired a poor public image due to the failed pilot projects under the Family Law Act 1996, which led the Lord Chancellor to decide to postpone implementation of Parts II and III of the Act due to public hostility to the concept of routine mediation to resolve disputes on divorce. after attending the pilot information meetings, 39% said they would be less likely to go to mediation and more likely to consult a lawyer. More work obviously needs to be done in this field of mediation, since it is clearly a useful tool in resolving disputes on divorce in families with limited assets, as has been demonstrated by the schemes run by organisations such as the Family Mediators Association and Solicitors Family Law Association. Nevertheless, some barristers chambers, which initially ran mediation schemes, have reported that they have closed them down due to lack of demand.
M EDIATION AND ARBITRATION

It remains a fact that all forms of ADR cost less in both financial and emotional terms than litigation, and resolve matters more quickly. A particularly effective measure would be to combine mediation with arbitration, first to resolve the dispute in general terms, and subsequently to decide any outstanding issues, especially if those issues are quantifiable. Other mediation organisations, such as the Institute of Advanced Legal Studies, have now begun to publish up an ADR journal to expand the study and practice of all forms of mediation and other means of alternative dispute resolution.
12
Chapter 2
All the answers can be found in the recommended materials, your reading list or the above summaries. 1. 2. 3. 4. 5. How is work now allocated between the High Court and County Court? What, if any, is the relationship between courts and tribunals? Could this be improved in any way? What is an Inquiry? How does the use of ADR relate to the remainder of the civil justice process? Could better use be made of ADR? What do you think are the objectives of a good civil justice system?

LLB_ELS_Ch02(08/01)
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ENGLISH
JUDGES AND JUDICIAL REASONING : THE JUDICIARY AND ITS TASKS

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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

R EADING PATH:
University of London ELS subject guide, Chapter 3 Slapper & Kelly, Chapter 6 Smith & Bailey, Chapter 4 Zander, The Law-Making Process. Chapter 7 the nature of the judicial role in law-making From the website subject page: Soundfile: The Judiciary Lecture Notes: Sources of law (1) Judicial precedent Cases as a source of law
1.
THE JUDICIARY
A BROAD OR A NARROWER DEFINITION?

The judiciary in the widest sense of the term, encompasses all those holding judicial office of any sort, whether full time, or part time and at every level. In this sense it includes the Tribunals and the professional and lay magistracy. Unlike the case in continental jurisdictions, there is no career judiciary in Britain, either in England and Wales nor in Scotland or Northern Ireland. However a comparatively minimum degree of formal training is the remit of the Judicial Studies Board the body which assesses and attempts to meet the judiciarys contemporary training needs, a positive contrast to the past in which the prospective judges received very little training or even induction at all. There is, however, a narrower usage of the term judiciary. In some contexts, judiciary means only those holding judicial office at any level who are legally qualified. This definition therefore excludes the lay magistracy.
S TIPENDIARY AND LAY M AGISTRATES

Although part of the broader concept of the judiciary, the lay magistracy is distinct in that it comprises a large panel of part time magistrates who are laymen i.e. not legally qualified, and who may otherwise work in any trade occupation or profession, or not at all, or be retired. In contrast, the professional 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 of former practitioners, as are all the professional judiciary, whether full or part time. Similarly, some Tribunal chair persons are full time, while some Tribunals have Presidents, who may be either part or full time. In the narrowest sense of all, reference is sometimes made to the term higher judiciary, which means judges in the Supreme Court of Judicature and above (i.e. the High Court, Court of Appeal and House of Lords) with whom is usually bracketed, but kept discrete, the Circuit Bench, i.e. the Circuit Judges who deal with civil work in the County Courts, and also sit on criminal cases in the Crown Court, which is the main criminal court.
JUDGES TENURE
Nevertheless, only High Court judges and above have security of tenure under the Act of Settlement 1701, whereby they hold office quamdiu se bene gesserint, i.e. during good behaviour and can only be removed by address of both Houses of Parliament. No English judge has ever been removed by this process although prior to 1701 James II, whose notorious record for disregarding judicial independence equalled his fathers for disregard of the independence of Parliament, never hesitated to dispense with the services of judges of who would not do what he wanted. The largely unassailable tenure of judges today is the direct result of a reaction against James IIs notorious abuse of power of the judiciary of his day. Circuit judges and below can be removed for misbehaviour or incapacity, although only one circuit judge has ever been removed (in the 1980s, for smuggling). In most cases where a judge likely to be removed, he or she simply resigns.
D ISTRICT J UDGES
A lower rank of full time professional judge is the District Judge. District Judges are full time professional judges, former barristers or solicitors, who take interlocutory work and some classes of first instance business to assist Circuit Judges in the County Courts and Judges of the Family Division of the High Court. The equivalent title for this second rank of judge in the Queens Bench and Chancery Divisions is a Master, Queens Bench Master or Chancery Master as the case may be. In Bankruptcy cases in the Chancery Division, these Master level appointments are called Registrars (which used also to be the name for the District Judges of the Family Division).
R ECORDERS
The rest of the judiciary is largely part time, e.g. Recorders, who are practitioners sitting part time in the Crown Court to gain their first judicial experience. From these Recorders are appointed all the higher ranks of judges, although it is possible for a District Judge to be advanced to Recorder (or to Circuit
Chapter 3
Judge). The former rank of Assistant Recorder has just been abolished by the Lord Chancellor.
C AREER PROGRESSION
All court ranks of judicial office up to the High Court, except Recorder, also offer opportunities to learn the work as a part timer, in the role of Deputy. Thus Deputy District Judges may progress to District Judge, Deputy Circuit Judges to the Circuit Bench and Deputy High Court Judges to the High Court. This gives the Lord Chancellor, who makes all appointments, the opportunity to monitor a part timers performance before making a full time appointment. At High Court level the deputy system stops High Court judges advanced to the Court of Appeal and thence to the House of Lords progress without any further apprenticeship. Some but not all Tribunals also offer Deputy appointments, e.g. the Traffic Commissioners all have deputies. Since the Scottish case of STARRS AND CHALMERS v PROCURATOR FISCAL, above, all these deputies now have relative security of tenure in order to stress their independence in not relying on the state for renewal of shorter terms of office, and thus being potentially subject to state influence.
2.
THE ESSENTIAL QUALITIES OF A JUDGE
Judges are required to be both independent and impartial. It has been said that there is sometimes a conflict between independence and impartiality on the one hand and the contemporary post-Woolf drive for efficiency.
JUDICIAL INDEPENDENCE
Nothing is more is crucial to the English legal system than he independence of the judiciary. This principle is reinforced by protection from removal and the doctrine of judicial immunity which protects judges from civil suit in respect of their activities during the course of judicial office. The independence of judges is constitutionally important in accordance with Montesquieus theory of the separation of powers. For this reason, judges cannot be members of Parliament and never stand for election to the House of Commons. However, the Lord Chancellor and Law Lords are members of the House of Lords, as they are given life peerages on appointment. However, only retired Law Lords sit and vote in the House on ordinary business, while those currently appointed as Lords of Appeal in Ordinary concern themselves only with their legal business on the Law Lords corridor, i.e. sitting on appeals from courts below. While delivering their judgments in the form of speeches harks back to the origin of the House itself as the highest appeal court in the land, the work of the Law Lords is in practice now completely separate from House of Lords business.
Chapter 3
THE LORD C HANCELLORS R OLE

This is not true of the Lord Chancellor who holds an incongruous clutch of offices: as Lord Chancellor he is a political appointee, a minister in the government of Cabinet rank and usually is a member of the Cabinet. Part of the work of his department is to control the appointment of judges of all ranks, and of lay magistrates. He sits on the Woolsack in the House, introduces important government legislation and also takes part as a judge in the hearing of appeals. A similar situation in the Channel Islands took the case of McGONNELL v UK, The Times, 22 February 2000, ECHR, to the European Court of Human Rights in Strasbourg, where it was confirmed that a mixture of legislative, judicial and administrative roles was inappropriate when the Bailiff of Guernsey, who combined all these, made a judicial decision against a resident. There have been numerous and various calls, including from the law reform society JUSTICE , for the Lord Chancellors position to be 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 in his own case: nemo uidex in casa sua. It should be noted that impartiality is obviously also essential in arbitrators, as well as throughout the judiciary as such; this is equally obviously of some practical importance in view of the increase in alternative dispute resolution prior to or instead of litigation, which may also much spread the use of binding arbitration . In December 1998 the principle of impartiality was strictly upheld when the House of Lords had to set aside one of its own judgments because this rule had inadvertently been broken in the case of RE PINOCHET (NO 1). This was set aside in RE PINOCHET (NO 2), which is properly referred to as R v
BOW STREET METROPOLITAN STIPENDIARY MAGISTRATE, EX PARTE PINOCHET UGARTE (NO 2) [2000] 1 AC 119.
The problem which required this unusual step was that Lord Hoffmann, one of the five Law Lords in the first case, was an unpaid director of the charity arm of Amnesty International which was an intervening party in the case. Despite the fact that the charitable arm of Amnesty was a completely separate legal entity, a registered charity which avoided any political campaigning, five different Law Lords sat on the second case to examine whether Lord Hoffmann should have declared his interest in the charity (and therefore connection with a party). It was decided that he should not only have done so but should have stood down, the crux of the matter apparently being that it was not so much any interest in the outcome of the first case which was unacceptable but the mere connection with one of the parties which generated a perception of bias. This approach goes back to the dicta of Lord 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 of fundamental importance that justice should not only be done, but should manifestly be seen to be done. In other words, it is not merely a financial or proprietary interest in a case, which is fatal to perceived impartiality but any significant involvement, although the second Pinochet case left unanswered the specific question of whether nonactive membership of a charity would be enough to disqualify a judge or arbitrator from hearing a case if that person regularly 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 in advancing the correct test to apply where a judge or arbitrator does not have an obvious interest in the outcome of a case, but does have an arguable bias. This is important as allegations of actual bias are very rare in English law, though this did occur in the case of HALIFAX BUILDING SOCIETY v
SECRETARY OF STATE FOR THE ENVIRONMENT [1983] 2 EGLR 163
where the trial judge (Woolf, J, now Lord Woolf, MR) said there was: at least a degree of hostility and a degree of refusal to pay attention to the evidence manifested by the inspector, so that it gave the impression to reasonable people attending the inquiry that justice was not being done. This seems to mean that he did not find that there had been actual bias but that there was impropriety in that a real impression had been created that the appellant building society had not been given a fair hearing by the planning inspector who had appeared to be over protective of the local authoritys witnesses and excessively fault finding with the building society. This has been called the real apprehension of bias test. In Re Gough [1993] AC 646 the House of Lords rejected this approach and held that the correct test was whether there was in fact a real danger of bias. This was a case where no such danger was found when a juror discovered after the verdict of guilty had been returned that she was the next door neighbour of the defendants brother, who was also a criminal suspect. The test in this case was therefore not whether reasonable people in court could have wondered whether she might have realised these facts earlier than she claimed, but whether there was a real danger that she had done so and that this had influenced her judgment. This real danger test has not been adopted in other common law jurisdictions such as Scotland, Australia and South Africa which have all preferred the real apprehension of bias test. The House of Lords did not reconsider R v GOUGH in the second Pinochet case because it was unnecessary to decide if Lord Hoffman was actually biased, as his connection had already made it necessary for him to stand down.
Chapter 3
IMPARTIALITY IN ARBITRATION A
CHALLENGE
The AT & T case was about whether one of three arbitrators should or should not have sat on the case at all: the arbitrator in question was a non-executive director of a competitor of AT & T called Nortel of Canada, which had lost a contract with the other party in the case, Saudi Cable Co. which had been won by AT & T. The arbitrators connection was not discovered until after the three arbitrators had made partial awards to Saudi Cable Co. However the Commercial Court refused to set aside the awards on the basis that his connection was irrelevant since it was not a connection with a party to the case. Thus there was no automatic disqualification, as in Lord Hoffmanns case, The Court of Appeal upheld the Commercial Court and observed in passing that the same tests apply to judges and arbitrators. Nevertheless, despite the difficulty of finding experts in a small specialised field where everyone has probably at some stage had dealings with everyone else, the High Court will order the removal of an arbitrator who has a relevant connection with a case, e.g. recently they removed a rent review arbitrator because his firm was currently acting for a company associated with one of the parties. This suggests that arbitrators and parties may need to review their conflict search procedures as appointing bodies such as the Royal Institution of Chartered Surveyors (RICS) who often choose the arbitrator in such cases, cannot realistically be relied upon to identify the existence or lack of conflict.
C ONFLICTS OF INTEREST
The Court of Appeal has recently considered a clutch of cases concerning judges potential conflicts of interest: see
LOCOBAIL (UK) LTD v BAYFIELD PROPERTIES LTD [2000] 1 All ER 65, [2000] 2 WLR which concerned five cases with the common
problem of bias, dealt with by the strong court of Lord Bingham of Cornhill, CJ, Lord Woolf, MR and Sir Richard Scott, VC, as they then were. They looked at the twin problems of actual and apparent bias, and held that: P actual bias is rare but where a decision maker had a direct personal interest in the outcome of proceedings, which was other than de minimis, bias was presumed and that person must be automatically disqualified from hearing or continuing to hear a case and any judgment given must be set aside (the Lord Hoffmann situation). Apparent bias arises when, looking at the matter through the eyes of a reasonable man there was a real danger of unconscious bias on the part of the decision maker. The court declined to give factors which could give rise to such bias saying that that would be dangerous and futile as it depended on the fact in every case, including the nature of the issue to be decided.
Chapter 3
THE NEED FOR DISCLOSURE

The counsel of perfection for judges and decision makers including arbitrators is therefore to be alert to any potential conflict and to disclose it before a hearing commences so that if it is necessary to step down this may be done immediately. If the issue arises during a hearing, as it sometimes does, then disclosure should be made at once, although the Court of Appeal commented that it is generally undesirable to abort a hearing 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 real danger of bias, but it should be noted that where there is a direct personal interest in the outcome of proceedings (as in Lord Hoffmans case) bias will be presumed, so that the judge or arbitrator will automatically have to step down because otherwise justice will not be seen to be done, regardless of the actual view of the person in question. In practice this means that s/he steps down because of apprehension of bias, or the perception that justice cannot be seen to be done, so possibly the former colonial jurisdictions adherence to the apprehension test shows much logic!
P OST W OOLF E FFICIENCY

In theory there is no reason why judges should not deliver justice with efficiency, though there have been cases where this has been challenged. For example, there was the conflict between the former Lord Chancellor, Lord Mackay, and a Supreme Court judge who did not like measures proposed by the Lord Chancellor for efficiency in conduct of cases and ultimately resigned having been told by the Lord Chancellor that there would be no debate about the changes and that if the judge did not like them he should consider his position. A year of operation of the CPR seems to indicate that judges have responded well to the new hands-on management of cases and that both lawyers and the pubic are not displeased with the new arrangements.
3.
SELECTION JUDICIARY
OF THE
Old fashioned methods of selection of the judiciary, have come in for considerable criticism despite innovations in recent years to advertise all posts up to and including the High Court and also to limit to some extent the referencing system which is still referred to as secret soundings a method much disapproved of by those who are not successful in obtaining appointments, or who actively to seek appointees from amongst women and the ethnic minorities. The perception is that as the predominantly male upper middle class Oxbridge and public school educated judiciary remains unrepresentative of the public which it serves, there is in effect a built in corporate bias on the Bench which should
Chapter 3
be addressed, as the existing Bench is out of touch with the moral values of the generation appearing before them. This same bias is still said to exist amongst lay magistrates, following research in the 1970s, though probably with less justification, since the character of lay bench has been much changed in recent years. Moreover, most of the higher judiciary comes from the Bar, though there is an occasional solicitor appointment to the High Court, usually as a Deputy High Court judge or of a solicitor who is promoted from the Circuit Bench, to which the appointment may have been made from the District Bench. There are numerous solicitor appointments lower down the scale, however, on the District Bench and amongst the Masters and Registrars.
N EW INITIATIVES
The present Lord Chancellor has, however, taken initiatives to improve chances of selection from these non-traditional sources, including encouraging work shadowing in a pilot scheme amongst District Judges, road shows in which his Department takes a group of officials from the judicial selection units around the country to explain the new and improving methods of selection and provision of feedback to those not appointed, and the qualifications and qualities sought. The statutory qualifications as set out in the Courts and Legal Services Act 1990 are clearly emphasised in the information packs issued by the Department, but some confusion undoubtedly still exists amongst those who are not appointed as to what qualities are in practice looked for.
THE PEACH R EPORT

In 1999 Sir Leonard Peach conducted a survey and wrote a report for the Lord Chancellor on contemporary systems for selection of the judiciary which broadly approved the current methods, and so far the appointment of a Judicial Appointments Commission, pressed for by many over a period, has not occurred. However, it is felt that this must come and that if we are to pay more than lip service to equal opportunity 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 of public scrutiny of judicial appointees appears to be welcomed here, even if no one can actually come up with a blueprint for the future. Further progress has however been made in widening the field of lawyers from whom the minor judiciary can now be selected. It has been formally recognised that experience of advocacy might not in all cases be essential. Lord Mackay was the first to take such a step when he appointed some academics as recorders a decade ago, on the basis that while lacking advocacy experience, they might compensate by displaying other essential judicial qualities to a higher degree, such as the good sound judgment based upon knowledge of the law; willingness to study all sides of an argument with an acceptable degree of openness, and an ability to reach a firm
Chapter 3
conclusion and to articulate clearly the reasons for the conclusion. Amongst these appointments was Professor Brenda Hoggett who 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 serious practice at the Bar although she had her name on the door of a set of Chambers for a period.
W OMEN IN THE JUDICIARY

The lack of suitable women appointees nonetheless remains a problem, however. There is still no female Law Lord, only three women in the Court of Appeal, and one female Head of Division. There are however a number of women on the Circuit Bench, and many women sitting on tribunals. Women are also fairly well represented in the lay magistracy. Consider this issue for discussion: What else could be done to widen the pool from which appointments could be made to address the perceived corporate bias problem? Should the Lord Chancellor go on appointing the judiciary? Or should there be a Judicial Appointments Commission?
THE M AGISTRACY H OW TO QUALIFY

Lay justices, justices of the peace (JPs) sit only in magistrates courts although on appeals from magistrates courts which go to the Crown Court two lay justices sit with a Crown Court judge. They are unpaid and receive only expenses. They try the majority of minor criminal cases, over 97%. They have provided a cheap and quick source of local justice since the 14th century. They have always been said to be vital to the legal system for this very reason, but there is now much debate about abolishing them altogether in favour of a wholly professional magistracy, as research has shown that a professional magistrate can dispose of cases much faster and more efficiently. Anyone over 21 and under 60 can be appointed, if living or working in the commission area of the court to which appointments are to be made: the magistrates operate on a regional basis corresponding to the 45l police forces around the country. Unlike judges, magistrates do not have to be independent, e.g. local councillors can be found on their local benches. Although the essence of the lay magistracy is that the justices are not legally qualified, they do now receive training from the Judicial Studies Board. Questions of law are decided for them by their clerk, who is a qualified, usually a barrister or solicitor. Stipendiary magistrates sit in the busier courts where the workload is heavy. They sit alone, and do not need legal
Chapter 3
advice from their clerks as they are legally qualified themselves.
4.
TRAINING OF JUDICIARY
THE
This has come on by leaps and bounds in recent years. The former view that judges knew how to judge automatically, through having been previously advocates, has now been overtaken by a significant expansion of the Judicial Studies Board (the JSB). In 1998-9 significant training was provided for the judiciary, full and part time, on the Woolf reforms and the CPR prior to their implementation in April 1999. In 1999-2000 the emphasis has been on training for the Human Rights Act 1998 which came into force in October 2000. Whereas the CPR training was restricted to the courts as such which the CPR would affect, the Human Rights training has been universal, including every tribunal as well as the courts. This has been supplemented by racial awareness and equal opportunities training, with a Bench Book being produced to record the norms expected together with much useful background information for judges of all types and ranks now sitting in a multiracial and multi-cultural society where most women now apparently habitually expect to have a career whether married or not. One area where training is obviously still required is for those sitting on criminal cases, because many appear to have little or no previous criminal experience. Unless civil and criminal judicial work is to be separated and allocated appropriately to those with the relevant experience, as has often been advocated, this deficiency clearly still needs addressing. This explosion in training partly stems from the Runciman Commissions recommendations in 1993, but has also possibly been brought on by the positive results of successive training schemes. Success may be breeding success here. The JSB had a 1.6m. budget for Human Rights training.
THE JUDICIAL TASK

Judges may either finders of both fact and law, or while examining, sifting and admitting (or declining to admit) the evidence for a jury to find the facts, may merely be concerned with the law: criminal judges have a jury to find the facts, in which case the judge will deal only with the law. Civil judges are usually finders of both facts and law, except in those cases where a jury is still used, e.g. defamation. Judges tasks will therefore be partly control of admission of evidence and of court procedure, but more importantly statutory interpretation and application of the law in maintaining and establishing precedent.
10
Chapter 3
Tribunals are mostly finders of both fact and law, and are usually masters of their own procedure with no or few rules of evidence. Lay magistrates find only fact and their clerk advises them of the law which they must apply, and also controls procedure. Consider these discussion points: Now that advocacy no longer appears to be an essential prerequisite for appointment to the Bench, is there a case for a judicial college and separate judicial career to be made available for the provision of English judges? Would this permit experts in fields other than law to be appointed as judges?
11
Chapter 3
All the answers can be found in the recommended materials, the reading list or the above summaries. 1. 2. 3. What is meant by the independence of the judiciary? Is this independence important? How does independence differ from impartiality? Is it important for the judiciary to be representative of society? Is so, why? Does this also apply to magistrates? How could the judiciary and/or the magistracy be made more representative of society in general? What criticisms have been made of the selection and appointment of the judiciary? What are the advantages and disadvantages of the system of lay magistrates? Do you think they should be replaced with a national system of stipendiary magistrates?
4. 5.

LLB_ELS_Ch03(08/01)
12
ENGLISH
JUDGES AND JUDICIAL REASONING : THE DOCTRINE OF PRECEDENT

www.spr-law.com
CONTENTS
The Common Law System Stare Decisis................................... 1 The House of Lords and the Court of Appeal ............................ 3
Chapter 4
THE DOCTRINE
R EADING PATH:
OF
PRECEDENT
University of London ELS subject guide, Chapter 4 Slapper & Kelly, Chapter 5 Smith & Bailey, Chapter 7 Zander, The Law-Making Process. Chapter 4 (page 194 onwards) and Chapter 6 (page 259 onwards) From the website subject page: 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 means that a judge must look to previous decisions in order to make a decision on a case consistent with previous cases which are binding at that level of court. He must then base the legal and factual reasoning for the decision on one or more of the issues before the court.
W HAT DO WE MEAN BY RATIO DECIDENDI?

Ratio decidendi is the principle on which a decision is made. The system of common law evolved from statute, custom and case law, although in fact, common law is case law. The wealth of cases started to accumulate as early as the Middle Ages or even earlier when case decisions were first recorded. Applying common law principles, the judges task will include:

finding the facts (or records them if there is a jury as fact finder) stating the legal principles applicable to the factual issues in the case applying the latter to the former.
The resultant ratio decidendi, if in a superior court, is a binding precedent in lower courts, usually of persuasive
Chapter 4
authority at the same level of court. However, ratio decidendi does not bind courts higher than the level at which it was made, except that in the case of the Court of Appeal, all Court of Appeal cases bind the Court of Appeal: CASSELL v BROOME [1972] AC 1027 and those of the Divisional Court usually bind the rest of the High Court: HUDDERSFIELD POLICE AUTHORITY v WATSON [1947] AC 743 and R v GREATER MANCHESTER
CORONER EX P TAL [1985] QB 67.
The House of Lords is not bound by itself: see the Practice Statement (Judicial Precedent) of Lord Gardiner, LC [1966] 1
WLR 1234.
Note that the ratio decidendi must be a statement of law, not of fact: QUALCAST WOLVERHAMPTON LTD v HAYNES [1959] AC
743.
W HAT DO WE MEAN BY OBITER DICTA?

Any other significant judicial statements not based firmly in the ratio decidendi, are called obiter dicta (things stated incidentally) and are not binding but may be persuasive depending on the reputation of the judge and level of court in the House of Lords they would be very significant, and might be from the mouth of a respected Court of Appeal judge, or even a High Court judge with a reputation for knowledgeable specialism. Where there is no direct authority in English law, caselaw from other common law countries can be highly persuasive. The only way to get round a precedent which is binding because it was decided by a court higher up the scale than that in which the judge wishing to disregard it is sitting it to distinguish it. This means finding it is not on all fours with the case in which it is cited, for some fundamental reason. If the precedent is unwelcome in a higher court than that in which the decision was made, there is no problem as the higher court can overrule it. The hierarchy of the courts is set out in a helpful diagram in the Lecture Notes Introduction to English and EU law already referred to in Chapter 1. Advantages and disadvantages of the common law system of precedent:

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 of interpretation in continental European countries, which is inquisitorial. Again, certain advantages and disadvantages of an inquisitorial system are revealed.
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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 widely framed 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 principles clear).
The civil law system nevertheless works for the following reasons:

there is a career judiciary lawyers and judges are familiar with the principles of the Code their teleological (also called schematic or purposive) approach looks at the context of the case in relation to the Code.
The English and continental civil law approaches are moving closer together especially where English judges have to interpret a statute which has given effect to EU law, where an English precedent may be abandoned if it no longer fits the context.
2.
THE HOUSE OF LORDS AND THE COURT OF APPEAL : THE DOCTRINE OF PRECEDENT
One Court has to be at the top of the hierarchy to give certainty to the law. This was the reason for the House of Lords practice direction of 1966, although the House made it clear 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 earlier decision in RE DOWLING [1967] 1 AC 944 on this ground, even though three members of the 7 member court acknowledged that the law stated in RE DOWLING was wrong. They did use the Practice Direction to overrule their own decision in ANNS v MERTON BOROUGH COUNCIL by their decision in MURPHY v BRENTWOOD DISTRICT COUNCIL [1990] 3 WLR 414 on the grounds that the former case had departed from established principle and it was necessary to restore certainty to the law, and this encapsulates the raison detre of
Chapter 4
the House of Lords as the final appeal court. Russell LJ emphasised the importance of certainty in the law in the case of GALLIE v LEE [1969] 2 Ch 17. The House Judicial Committee makes about 100 decisions a year in which it is usually necessary to review the authorities and properly to clarify the law. Sometimes it will overrule itself very quickly, as in R v SHIVPURI [1987] AC 1 which overruled the case of ANDERTON v RYAN [1985] AC 560 only about a year before, and nine months after that in R v HOWE [1987] AC 417 they overruled DPP for NORTHERN IRELAND v LYNCH [1975] AC 653 although in that case the arguments for overruling were weaker than those in SHIVPURI . The Court of Appeal, on the other hand, despite attempts to secure acceptance of the contrary when Lord Denning was Master of the Rolls, is only able to depart from its own earlier decisions in strictly defined cases: YOUNG v BRISTOL
AEROPLANE CO LTD [1944] KB 718.
These are:

where there are conflicting Court of Appeal decisions the court can follow either where a decision was given per incuriam (in ignorance or forgetfulness of some conflicting authority) decisions impliedly if not expressly overruled by the House of Lords.
These rules may be departed from:

where the Court of Appeal decision is inconsistent with a House of Lords possibly where it is inconsistent with a Privy Council decision though this is seen as a Denning argument as the Privy Council is in theory only a persuasive authority.
R v GOULD [1986] 2 QB 65 sets out when the Court of Appeal
Criminal Division may refuse to follow its own precedents (i.e. when they think the earlier decision is wrong: traditionally precedent has not been so rigidly followed in the criminal division of the court).
D EPARTING FROM OWN PREVIOUS D ECISIONS C OURT OF APPEAL

This subject continues to be a popular examination area. The arguments for the Court of Appeal to depart from its own previous decisions outside YOUNG v BRISTOL AEROPLANE situations are not strong, given that the Court of Appeal delivers ten times as many decisions annually as the House of Lords, and there are numerous Lords Justices so that Lord Simon of Glaisdale said that, while he had sympathy with Lord Dennings 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. He pointed 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 appeal under the Administration of Justice Act 1969. He also suggested that when the court gave leave to appeal from a decision made because the court considered it was bound by its own precedent, they should be able to order that the appeal be paid for out of public funds, which would resolve the argument that sometimes people cannot afford to appeal, and it might therefore be a long time before the House got around to changing binding decisions of the Court of Appeal which were thought to be wrong. Consider this type of question which is often asked: Would codification provide a solution to the problems currently presented by the doctrine of precedent?
M ODERN C ASE LAW A R ELIABLE S OURCE OF PRECEDENT

Since the Incorporated Council of Law Reporting was set up in 1865, reports of cases are reliable and can relied upon. Cases older than that date depend for their reliability on the reputation of the reporter. For example in the old English reports, the reporter Espinasse had the reputation of hearing half the case and reporting the other half. The story goes that a judge at the time commented acidly that he did not want to hear any report of Espinasse, or any other ass. How fortunate for justice that times have changed.
Chapter 4
All the answers can be found in the recommended materials or 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 from an apparently binding precedent? Do you think that this provides adequate flexibility? What is the rationale for the doctrine of precedent? Do you think it is being fulfilled? Do you think the House of Lords should make greater use of the Practice Direction?
3. 4.

LLB_ELS_Ch04(08/01)
ENGLISH
JUDGES AND JUDICIAL REASONING : STATUTORY INTERPRETATION

www.spr-law.com
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
R EADING PATH:
University of London ELS subject guide, Chapter 4 Slapper & Kelly, Chapter 5 Smith & Bailey, Chapter 6 Zander, The Law-Making Process. Chapter 3, page 106 you should read this in detail because they contain much useful research to cover the examination question in this area. From the website subject page: Soundfile: Statutory Interpretation Lecture Notes: Sources of Law - Statutory Interpretation Lecture Notes: Direct and Indirect Effect Lecture Notes: Introduction to the Law of the Single Market (1) and (2) Lecture Notes: Jurisdiction of the Court of Justice Lecture Notes: Enforcement of EU law
1.
INTERPRETATION OF STATUTES : A KEY JUDICIAL TASK
Most recent, or newer law is statute based. Therefore, the interpretation of statutes is a key judicial task, particularly as modern statutes are complex. However, in the busy context in which legislation is produced, even the most detailed carefully draughted statutes are likely to have gaps and ambiguities. Traditionally English judges have followed specific rules of statutory interpretation. But in the contemporary European context in which continental codified civil law impacts upon the jurisdiction of England and Wales, these traditionally rigid rules have had to be relaxed. There is no specific Act of Parliament which guides judges in interpreting statutes although the Interpretation Act 1978 is of some broad assistance. Where European law has been the source of a statutory provision, judges can look to European sources: read LISTER v FORTH DRY DOCK [1989] 2 WLR 634 online now. When interpreting European law, the courts must interpret the relevant Treaties which created it in line with the European Court of Justice.
Chapter 5
It will be recalled that European courts use European codebased civil law systems which state broad principles to be applied in wider contexts. They do not examine words in detail, and therefore do not apply the literal interpretations. Therefore the importance of European law lies in the actual principles and not in the wording of a decision. This is the main difference of approach between continental European and English law. See H P BULMER v J BOLLINGER SA [1974] Ch 401, and R v REGISTRAR-GENERAL EX P SMITH which discusses the effect of the United Kingdoms membership of the European Community on English rules and approaches to statutory 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 statute is ambiguous and the literal rule would lead to absurdity. It is also useful to read online the case of INCO EUROPE LTD AND OTHERS v FIRST CHOICE DISTRIBUTION (A FIRM) AND OTHERS [2000] 2 All ER 109, and Professor Zanders article [2000] NLJ 1 December at p.1790.
2.
THE TRADITIONAL RULES
These are three main rules of judicial interpretation and are fully covered in all the main textbooks in detail, which may be described as follows:
THE LITERAL R ULE

Basically, this means that ordinary words should be given their obvious everyday meaning by the court. See THE SUSSEX
PEERAGE CASE (1844) 11 Cl & Fin 85.
THE GOLDEN R ULE

This rule supplements the literal rule, giving the words of a statute an interpretation which best delivers Parliaments intention. See GREY v PEARSON (1857) 6 HL Cas 61 .
THE MISCHIEF R ULE

Also called the Rule in HEYDONS CASE (1584) 3 Co Rep 7a, which defined it. Sometimes it is said to be an extension of the golden rule, although there are some conflicts. It looks to the purpose of the Act so as to fulfil that purpose.
3.
MAXIMS OF INTERPRETATION
There are various maxims which also aid interpretation within the above rules. The most common are ejusdem generis, expressio unius exclusio alterus and noscitur a sociis, described as follows:
Chapter 5
W HAT DO WE MEAN BY EJUSDEM G ENERIS?

This is a classification rule. Categories of words and classes of person to be understood as included are restricted to those of the general classification referred to: see ALLEN v
EMMERSON (1944) KB 362.
EXPRESSIO U NIUS E XCLUSIO ALTERUS

This is a similar rule which excludes other members of a class if a specific member of it is mentioned.
N OSCITUR A S OCIIS
This is a rule which recognises words by their associates, and interprets a word according to its context.
4.
INTRINSIC AIDS TO INTERPRETATION
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 long title, e.g. An Act for the purpose of ..) and the headings of the sections. However the latter can sometimes be misleading since when a Bill is amended during its various stages of passage through Parliament, sometimes the headings remain and 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 of statutes, confirmed in RE ATHLUMNY [1898] 2 QB 547, R v ALLEN [1985] AC 1029 and BLACK CLAWSON INTERNATIONAL v PAPIERWERK WALDOF-ASCHAFFENBURG [1985] AC 1029. This case also discussed the proper objectives of the judiciary when interpreting statutes. Download now! Download from the website the soundfile on statutory interpretation recorded by Lord Justice Brooke. The soundfile can 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 on Human Rights and Fundamental Freedoms. For the second time in a quarter of a century, it brings with it a greater emphasis on the purposive approach of European civil law judges and extends that influence on the approach of English judges to statutory interpretation under our traditional rules, although precisely how is not yet clear. What is clear is that
Chapter 5
the present Lord Chancellor, Lord Irvines comment that the Human Rights Act 1998 will completely change the way in which judges work. In his soundfile mentioned above, Lord Justice Brooke considers that the Act has already had for some time, an influence and an effect on the way judges work and confirms that he does not think that judges interpret statutes with their noses in a book. Certainly there have been numerous influences on English judges over the past few years, which have made it difficult to sustain the formerly restrictive English approach, despite any negative commentary on the part of the academics. Since October, 2000 when the Human Rights Act came into force, any survey or monitoring of law reports will almost inevitably show indications of change in the way statutes are interpreted. Consider this issue for discussion: How do you think membership of the European Union and the implementation of the Human Rights Act 1998 has affected the judiciarys approach to statutory interpretation?
Chapter 5
All the answers can be found in the recommended materials, reading lists or the above summaries. 1. What types of problems may be encountered when interpreting statutes and how do English judges address these? When interpreting statutes, are the judges endeavouring to follow the intention of Parliament or the meaning of the words used? Is there a difference between these objectives? Which of the rules allows the judges more creativity in interpretation of statutes? Which offers the most restraint on the powers of the judiciary to be creative when interpreting statutes? When interpreting statutes, to what extent may the judiciary refer to dictionaries, Law Commission reports and Parliamentary reports?
2.
3. 4. 5.

LLB_ELS_Ch05(08/01)
ENGLISH
THE CRIMINAL PROCESS

www.spr-law.com
CONTENTS
The Criminal Courts .................................................................. 1 The Investigative Path ............................................................... 4 Arrest ...................................................................................... 7 Detention without Charge Time Limits ................................... 11 The Role of Bail ....................................................................... 15
Chapter 6
THE CRIMINAL PROCESS

R EADING PATH:
University of London ELS subject guide, Chapter 5 Slapper & Kelly, Chapters 4, 9 and 10 Smith & Bailey, Chapters 13 and 14 Blackstones 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 From the website subject page: Soundfile: Criminal Justice
1.

THE CRIMINAL COURTS

Magistrates Courts Crown Court Queens Bench Divisional Court (appeals), Court of Appeal (Criminal Division) House of Lords.
The courts exercising criminal jurisdiction are as follows:
M AGISTRATES COURTS
More than 97% of criminal cases are dealt with by the magistrates, who try the following:

summary offences, without a jury, e.g. petty motoring offences, common assault etc. either way offences, i.e. indictable offences which following mode of trial hearings, are triable summarily if the magistrates are prepared to offer summary trial and the accused accepts it. (Note that this system may well change to remove the accuseds choice in some cases although two Government Bills have been rejected by the House of Lords during 2000-2001.) committal proceedings, i.e. immediate transfer of indictable offences for trial in the Crown Court without a preliminary hearing and preliminary hearings to
Chapter 6
investigate indictable offences so as to decide if there is a case to answer. If there is, the case can be transferred to the Crown Court for trial. The magistrates can also commit to the Crown Court, for sentence only, and this is usually done in appropriate cases where they find their powers of sentence inadequate.
THE CROWN COURT

The Crown Court then tries those cases committed to it for trial, usually by magistrates. Appeals Appeals lie from the magistrates to the Crown Court or the Divisional Court of the Queens Bench Divisionfrom the Divisional Court direct to the House of Lordsand from the Crown Court to the Court of Appeal (Criminal Division), from which there is also appeal to the House of Lords. Further information about appeals is listed in the last chapter.
S TRUCTURE OF M AGISTRATES C OURTS

Magistrates court benches usually consist of two to seven lay justices, or a single stipendiary magistrate now known as a district judge criminal courts (or magistrates courts). Magistrates have the power to imprison a convicted person for six months and can also impose fines up to 5,000. They also impose various community service orders. As previously mentioned, if magistrates powers are inadequate in the context of the seriousness of an offence, they can commit for sentence to the Crown Court. The magistrates also sit, separately from the adult court, as a Youth Court for the purpose of dealing with young offenders between the ages of 10 and 17. The court used to be termed the Juvenile Court but a new regime was created by the Criminal Justice Act 1991, which was designed to draw practical distinctions and boundaries between adult and youth justice. Magistrates nonetheless have to use the same building for both types of court.
THE CROWN COURT : STRUCTURE

Created by the Courts Act 1971, the Crown Court is part of the Supreme Court of Judicature, of which the other members are the High Court and the Court of Appeal, both Civil and Criminal Divisions. For the practical purpose of assigning the appropriate level of judge to match the seriousness of the offences to be tried, the work of the Crown Court is divided into three tiers:

Tier 1: Class 1 offences (murder, treason etc.) are tried by a High Court (usually Queens Bench Division) judge Tier 2: Class 2 offences (rape, manslaughter etc.) are tried by High Court or circuit judges
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Tier 3: Class 3 offences (the less serious offences) are tried by circuit judges or recorders (i.e. part time judges, usually practitioners but occasionally very able academics, appointed on a temporary basis at the start of their judicial experience)
The court also hears appeals from the magistrates court, in which case a judge will sit with two to four lay magistrates. This is by way of a trial de novo and only the defendant can use this route of appeal.
APPEALS TO THE D IVISIONAL C OURTS OF QUEENS BENCH D IVISION

Appeals go to this court from both the magistrates and the Crown Court on either a point of law or because the magistrates have exceeded their jurisdiction. This may be done by way of a case stated for the opinion of the High Court. If an appeal goes directly from the magistrates to the Divisional Court in this way, the right to appeal to the Crown Court, as above, is lost, so the appellant must choose which route to use when convicted in the magistrates court. This route is available both to prosecution and defence. Cases can go by way of case stated from the Crown Court also, when the Crown Court has heard an appeal from the magistrates. The Divisional Court usually has two judges, one of them a Lord Justice of Appeal from the Court of Appeal, but the Access to Justice Act 1999.
C OURT OF APPEAL , CRIMINAL D IVISION

In this court, criminal appeals by the defendant may be on questions of law or fact, against conviction and/or sentence, and by the prosecution on points of law where the accused has been acquitted. This latter appeal is made under the Attorney Generals reference pursuant to s.36 of the Criminal Justice Act 1972 in order to clarify a point of law for the future. It does not affect the acquittal which generates it.
R EDRESS AGAINST LENIENT SENTENCES

There is a further Attorney Generals reference pursuant to Part IV of the Criminal Justice Act 1988 whereby the Attorney may refer an unduly lenient sentence to the Court of Appeal (Criminal Division), which may vary, including increasing the sentence. The object of this is to address under sentencing in manifestly problematic cases which would otherwise undermine pubic confidence, outrage the victim, demoralise the police, or otherwise adversely affect sentencing policy. Judges of this court include the Lord Chief Justice, Lords Justices of Appeal and puisne judges of the High Court. Pursuant to the Criminal Appeal Act 1995, all appeals to the Court of Appeal (Criminal Division) now required leave.
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HOUSE OF L ORDS
This function is carried out by the Judicial Committee comprising 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.
C OURTS M ARTIAL
Outside the mainstream system, courts martial deal with offences committed by those serving in the Armed Forces.
R EVIEW OF C RIMINAL JUSTICE; T HE AULD R EPORT

Lord Justice Auld has concluded his review of criminal justice in his report due to be published in late 2001 Similar in its terms of reference to Lord Woolfs inquiry into civil justice, the Auld Report recommends certain reforms of the criminal justice system. One possible reform is the abolition of lay justices and their replacement by stipendiaries, or alternatively a much increased role for the magistrates legally qualified clerk. The Magistrates Association and the Justices Clerks are expected to submit evidence to the Auld Inquiry supporting their obviously divergent views in this regard.
2.
THE INVESTIGATIVE PATH
The criminal justice system should be seen as a continuous process from suspicion of crime, to investigation and arrest of suspects through to the actual trial. Following extensive legislation to protect the civil rights of the individual, not least the incorporation of the European Convention on Human Rights and Fundamental Freedoms by the Human Rights Act 1998 which came into force in 2000, evidential considerations now arise at the very earliest stage in an investigation. A series of legislative changes has also threatened the liberty of the subject in this process. The police are therefore required to comply with procedure set out in the Police and Criminal Evidence Act 1984 (called PACE) and the Codes made thereunder in order to protect these liberties, whether they are stopping and searching suspects, seizing evidence, detaining a suspect, seeking to effect an identification by witnesses or recording interrogations. The Act also serves to some extent to protect them against claims of abuse. The Codes, made under ss.60 and 66 of the Act, are an important part of the regime, and they lay down good 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 in relation 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 common law offence were insufficiently clear to enable an accused to 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 law and criminal procedure at all levels of courts. Points can be taken at the magistrates court, Crown Court, Divisional Court, Court of Appeal and House of Lords, as well as at courts martial. The mechanisms used are those already existing, namely:

objection to the issue of a summons for a common law offence a motion to quash an indictment for a common law offence a substantive defence to a common law charge an aid to construction of a statutory offence so that it is not inconsistent with a Convention right an application for a declaration of incompatibility by the High Court or Court of Appeal the courts powers to exclude evidence under ss.76 and 78 of PACE and common law the courts powers to allow a submission of no case to answer a conviction following a trial in which the appellants Article 6 rights have been violated will be deemed unsafe within the meaning of s.2(1) of the Criminal Appeal Act 1968 (see Chapter 9).
R EMEDIES
The Act does not create new remedies as such. The House of Lords in R v DPP ex p Kebilene and others, The Times, 2 November 1999, HL, has specifically refused to extend the area of judicial review to criminal cases. In particular a decision of the DPP (in the absence of dishonesty, mala fedes or exceptional circumstances) to give consent to a particular prosecution is not subject to judicial review. Challenges under the Human Rights Act are all to take place in the criminal trial in question or on appeal and not in satellite litigation. The Lord Chief Justice has issued a Practice Direction on Abuse of Process, but human rights lawyers are already discussing whether this itself breaches Article 6!
Chapter 6
S TOP AND S EARCH

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

offensive weapons articles made or adapted for use in an offence such as burglary, theft, taking of a motor vehicle, or obtaining property by deception.
There are other statutes besides PACE which gives police these powers, e.g.

Misuse of Drugs Act 1971 Firearms Act 1968 Aviation Security Act 1982 Crossbows Act 1987 Prevention of Terrorism (Temporary Provisions) Act 1989.
By s.2 safeguards are provided by the suspect and the section makes clear the extent to which an officer can search in a public place. Reasonable force is permitted by s.117.
M OTOR VEHICLES
A motor vehicle may be stopped pursuant to s.163 of the Road Traffic Act 1988. These powers will now need to be interpreted to require reasonable suspicion if the Act in question does not expressly say so, for example, a Prevention of Terrorism (Temporary Provisions) Act.
E NTRY, SEARCH AND S EIZURE

S EARCH W ARRANTS
There is a general power for magistrates to issue search warrants to the police in the event that there are reasonable grounds for believing that a serious arrestable offence has been committed, and the police has reasonable grounds for believing that evidence of the offence will be found on the premises and also that:

it is not reasonably practicable to contact any person who could give permission to enter the premises, or such a person had unreasonably refused to allow the police to enter the premises or to hand over the evidence, and
Chapter 6
evidence would be hidden, removed or destroyed if the police sought access without a warrant.
Certain articles (e.g. those subject to legal privilege such as solicitor and own client communications) cannot be seized. Other such items include personal and medical records, and certain journalistic material held in confidence. The police are supposed to be very clear what they are looking for and why, and how it would help an investigation An arrestable offence is one where a constable has a power of summary arrest, i.e. immediate detention.
S EARCH WITHOUT A W ARRANT

It is possible to enter and search without warrant pursuant to s.18 of PACE 1984. This is permitted after arrest for an arrestable offence of a person who occupies or controls the premises so that further evidence connected with the offence may be obtained. By s.32 police may enter a search premises if a suspect is arrested away from the police station and was at those premises on or prior to arrest, in order to search for evidence of the offence committed. The same human rights considerations will apply here as above.
3.
ARREST
A RREST WITHOUT W ARRANT R E: A RRESTABLE OFFENCE

A constable ( or a police officer of any rank) can arrest without warrant if there is a reasonable ground for believing that an arrestable offence has been or is about to be committed, or when general arrest provisions exist. Under s.24 of PACE the police have wide powers of arrest without warrant. An arrestable offence has a technical meaning and is:

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 imprisonment or more any offences listed in s.24(2) of the Act, e.g. Customs and Excuse offences, taking a motor vehicle, going equipped 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 a particular 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 than reasonable ground for believing in the commission of an arrestable offence is required: the offence must actually be committed.
NON ARRESTABLE O FFENCES

If the offence is non-arrestable, different considerations apply. Only the police have this power, and they need to rely on the general arrest conditions in s.25(3) of the Act:

the name of the suspect must be unknown or unable to be discerned, or there must be reasonable grounds for believing that the arrest 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.
C OMMON LAW P OWER OF ARREST

There is also a common law power of arrest for breach of the peace. Any person can make such an arrest where the breach of the pace is actually taking place, and a constable can arrest anyone who is obstructing him in the execution of his duty and may call upon the general public to assist him, using reasonable force if necessary. The arrestee will not be able to claim false imprisonment even if not charged with any offence afterwards: MOHAMMED-HOLGATE v DUKE [1983] 2 WLR 660,
CA.
Moreover the police can enter any premises to deal with breach of the peace: McCONNELL v CHIEF CONSTABLE OF
GREATER MANCHESTER[1990] 1 WLR 364, CA, R v HOWELL [1981] 3 WLR 501, CA. However, arrests for behaviour likely to cause
a breach of the peace may violate Article 11 (freedom of assembly) if the law is not sufficiently clear: STEEL v UK , The
Times, 1 October 1998.
R EASONABLE S USPICION
As far as all arrests go, there must at least be reasonable suspicion which has been held by the ECHR to mean the existence of facts or information which would satisfy an objective observer that the person concerned may have
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committed the offence: FOX, CAMPBELL AND HARLEY v UK, 13

EHRR 157.
A RREST UNDER W ARRANT

If the arrest is under a warrant, the warrant will usually have provisions included as whether bail should be granted and this will have been decided by the magistrate issuing the warrant.
ARREST PROCEDURES
When an arrest is made, the arresting officer must make it clear to the individual that he is being arrested and state the reasons for the arrest. If this is not possible. Then the person arrested should be informed as soon as practicable s.28, PACE 1984. If this is not done the arrest will be unlawful. The ECHR has also been of influence here: see FOX, CAMPBELL AND HARLEY v UK , above, where it was held that the person must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest so as to be able, if he sees fit, to apply to a court to challenge its lawfulness.
IN THE POLICE STATION

Where the person is already in the police station, s.29 applies to require the police formally to make an arrest if they want to stop the suspect leaving, although they have no duty to tell such a person that it is not necessary to stay unless an arrest is made. If not already there, then pursuant to s.30 the person must be taken to a police station as soon as possible, and by s.36 that station must have a designated custody officer normally above the rank of sergeant, who will decide whether to detain the person. The police must actually arrest a person whom they want to detain, unless the person is willing to go voluntarily: R v LEMSATEF [1977] 1 WLR 812, CA. Contrary to what is read in the newspapers, the police have no power short of arrest to require anyone to help them with their enquiries.
DUTIES OF THE C USTODY OFFICER

The custody officer has well defined duties and must inform the suspect:

of the reason for arrest of the right to inform someone of his/her arrest of the rights existing under PACE (including to legal advice) of the right to consult the PACE Codes of Practice.
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The custody officer, who is the guardian of the suspects rights while in custody. must be independent of the investigation 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 of superintendent (actual or acting): R v ALLADICE [1988] 138 NLJ 347, CA, if the suspect:

is detained for a serious arrestable offence could obstruct the recovery of property obtained in the offence if the usual rights are exercised, and/or
it might lead to an interference with or harm to evidence connected with a serious arrestable offence. If there is to be a delay, this must be communicated to the suspect and recorded in the custody record, and the end of the delay must also be communicated to the suspect: R v
WALSH [1989] 91 Cr App R 166, CA.
The grounds for delay must be specific, e.g. it is not enough that an accomplice is still at large and may be alerted, especially if the arrest was made in a public place: R v ALLADICE , above.
INDEPENDENCE OF THE C USTODY OFFICER

In practice it is difficult for the custody officer to be independent as has been shown by cases such as R v ABSOLAM [1988] 88 Crim App R 332, CA , but the court will still usually quash convictions where the suspects rights are infringed. The custody officer searches the suspect and records the property found, usually allowing personal items to be retained but not money or valuables, or any items which might cause injury to the suspect or others.
BODY S EARCHES
Intimate body searches are possible but permission will be required from a superintendent or higher ranking officer, and such searches for drugs or harmful objects should be undertaken by a nurse or doctor, or an officer of the same sex, using reasonable force: s.117.
4.
DETENTION WITHOUT CHARGE TIME LIMITS
Detention may be without charge but is subject to time limits. The Codes regime in respect of meals, refreshment and rest breaks applies throughout.
10
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The time limits are:

24 hours unless a serious arrestable offence has been committed 36 hours if a superintendent decides it is necessary to secure or preserve evidence up to 60 hours if the limit is extended by a magistrate before whom the suspect is brought there is provision for further extension by magistrates.
S ERIOUS ARRESTABLE OFFENCE

A serious arrestable offence is one that has led to serious consequences, 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 to lead to such consequences,
or
where there is likely to be serious interference with the administration of justice or the investigation of the offence. The police may have to decide on the spot whether an offence is or is not a serious arrestable offence, if necessary by a perusal of the Act.
If the suspect is not charged, there must be regular reviews conducted by an officer of at least the rank of inspector. The reviews 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 an arrested person to be brought before a judge or other judicial officer promptly after an arrest.
V ULNERABLE SUSPECTS
Vulnerable suspects have their own regime, requiring an appropriate adult (not a police employee) during interview if they are:

a juvenile blind mentally handicapped unable to read.
11
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APPROPRIATE ADULT
The vulnerable person can object to an appropriate adult being present: DPP v BLAKE [1989] 1 WLR 432 , where the objection was made to the detainees estranged father, but if the vulnerable person makes a confession without the presence of an appropriate adult, the confession may be excluded at trial, or if it is not excluded, the judge may give a warning to the jury of the danger of convicting on the basis of the confession.
M EDICAL TREATMENT AND FITNESS FOR INTERVIEW

The custody officer must arrange for medical treatment if a suspect requires it. If a doctor deems a suspect to be unfit to be interviewed then a further examination should be undertaken before any interview takes place. Failure to do this is not a breach of the Code itself: R v
TRUSSLER [1988] Crim L R 446.
Failure to observe these principles may make any confession inadmissible in evidence: R v EVERETT [1988] CRIM LR 826, DPP v BLAKE, above.
L IMITATION OR D ELAY OF L EGAL ADVICE AT THE POLICE STATION

Legal advice cannot be denied nor delayed without very good cause: PACE s.58, R Samuel [1988] and certainly not as access to a solicitor may prejudice police inquiries, because such advice is one of the most important and fundamental rights of a citizen. Limitation on this right, e.g. delay for good cause, is permitted by the Convention if in the public interest: see BONZI v SWITZERLAND (1978) 12 D & R 185 online, so the s.58 restrictions are likely to be Convention compliant, though substantial delay on any ground, even if authorised by statute, may violate Article 6(3) by breaching the right to a fair trial, particularly if adverse inferences are subsequently drawn from the defendants failure to answer questions in an interview: MURRAY v UK, 22 EHRR 29. By s.58(1) such consultation shall be in private, so there might be a breach of Convention rights if, e.g. the duty solicitor were overheard at the telephone or there were no proper interviewing facilities. The solicitor can be the duty solicitor or the suspects own. The Law Society encourages solicitors to take a courteous but proactive role in protecting their clients, which in the past they did not always do, often taking instead a somewhat passive role.
THE D UTY S OLICITOR

The Duty Solicitor Scheme should be able to provide legal advice at any time of the day or night. There is a rota, a panel solicitor should be permitted to provide direct telephone advice if not able to attend personally, and this should not be prevented unless the suspect is intoxicated or violent. An
12
Chapter 6
interview should not begin before the solicitor arrives at the station, unless there is some extraordinary urgency or the suspect has said that legal advice is not needed, in which case this should be recorded in writing. The service is free for one attendance, after which legal aid or private funding will be required. The Scheme was originally set up in the 1980s as a result of the increase in police powers enactment culminating in PACE 1984 and regulated by the Legal Aid Boards Duty Solicitor Arrangements.
ADMISSIBILITY OF CONFESSIONS
If the suspect has not been cautioned first, including after any break in interrogation. confessions are generally useless as evidence especially so since the so called abolition of the right to silence by ss.34-38 of the Criminal Justice and Public Order Act 1994. In fact if there is a good reason why a suspect should not answer at the particular stage a question is asked, it is still possible to refuse remain silent without inferences being drawn, especially on appropriate legal advice, e.g. if there is insufficient evidence disclosed by the police for the suspect to have a case to answer at that point, as pursuant to Articles 5(2) and 6(3)(a) the accused must be informed of the nature of the charge against him, and the material facts on which it is based, but not necessarily the evidence in support: BROZICEK v ITALY, 12
EHRR 371.
GROUNDS FOR EXCLUSION OF A

CONFESSION
Even if there has been a caution, if there has also been other misbehaviour by the police, or the suspect has also been refused legal advice any confession will be likely to be excluded either under s.76 (which covers confessions obtained by oppressive conduct or inducements) or s.78 of PACE (which allows unfair evidence to be excluded) or both.
INTERVIEWS
There is now a definition of an interview which takes place once an officer suspects, reasonably or not, that a person has committed an offence: thereafter any resulting question is an interview. An interview is the questioning of a person regarding his involvement in a criminal offence which by virtue of para 10.1 of Code C would required to be carried out under caution: Code C para 11.1A. this has swept away a voluminous case law on the subject. An interview should be recorded contemporaneously unless there is a reason, and in this case a record must be made as soon as possible including of why it was impossible to record the interview at the proper time: R v DELANEY [1988] 88 Cr App R 338, CA. The record of the interview is to be shown to the suspect if the suspect is still in custody at the completion of the record.
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Chapter 6
ENTRAPMENT
For some time there has been no clear guidance in English case law on the status of evidence secured following entrapment by the police, but the court has always been highly likely to take any such conduct into account when applying s.78. However the ECHR is clear that if police officers go beyond an essentially passive investigation of a suspects criminal activities and have exercised an influence such as to incite the commission of an offence then the right to a fair trial has been violated: TEIXEIRA DE CASTRO v PORTUGAL, 9 June 1998, unreported. This case was followed by the Divisional Court in
NOTTINGHAM CITY COUNCIL v AMIN, 2 December 1999, DC,
when the Court decided that in exercising their discretion to exclude under s.78, judges should have regard to the Convention. This was a case of plain clothes officers stopping a cab whose sign was not illuminated. The driver, whose licence was for a different area, agreed to take them as a fare. The court decided there was no pressure to commit an offence, merely an opportunity afforded to do so, so there had been no basis for the magistrate exercising discretion to exclude the evidence under s.78, as the circumstances did not make the prosecution unfair. Basically, there has never been automatic restriction in the UK on admissibility of unfairly or illegally obtained evidence (sometimes called the fruits of the poison tree) unlike in the USA. Nor is there any absolute requirement under the Convention to exclude illegally obtained evidence, but the use of such evidence may give rise to unfairness on the facts of a particular case: see SCHENCK v SWITZERLAND 13 EHRR 242, at paras 46-48. In R v KHAN (SULTAN) [1997] AC 558, HL, the House of Lords indicated that this was a matter for discretion under s.78, as the discretionary powers of the trial judge to exclude evidence march hand in hand with Article 6.1: per Lord Nicholls of Birkenhead at p.583. In this case the judge had allowed secretly taped evidence at trial when the installation of the listening device was not in accordance with the law, violating both Article 8 (privacy) and Article 13 (because the police were not an independent body able to protect abuse of authority) but the illegally obtained evidence, although the sole evidence against the accused, was very strong, thus proportionately reducing the need for supporting evidence. When the case went to Strasbourg, the ECHR decided that the issue was fairness, as in Schenck, and as the accused had had the opportunity to challenge admissibility under s.78 at all stages right up to the House of Lords, there had 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 lost pursuant to the 1994 Act? Consider this as a result of your general reading of this subject. Remember that any problem question in the examination may well involve PACE (see Zander and Blackstones Criminal Practice 2001).
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Chapter 6
THE RIGHT TO I DENTIFICATION PARADES

The general principle is that if the suspect wants an identification parade to take place it must be done unless it is impracticable to do so. The police must ensure that the parade is fairly conducted in accordance with the Code. Breaches are likely 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 Act 1976 as amended. Under s.4 there is a right to bail unless the case falls within one of the exceptions in Schedule 1. If the accused is charged with an imprisonable offence, the court does not have to grant bail if it is reasonably believed that the accused will:

fail to surrender to custody commit an offence while on bail interfere with witnesses or otherwise obstruct the course of justice.
Bail can be granted at the police station or by the court before which the accused appears when charged and brought to court by the police. If there was no warrant, the police must act in accordance with PACE 1984, and must decide if bail should be granted.
R ESTRICTIONS
The Criminal Justice and Public Order Act 1994 restricts the granting of bail if the accused committed another offence while already out on bail.
APPEALS
It is possible to appeal against the refusal to grant bail, either to a High Court judge (technically a civil application) or to the Crown Court. With one exception no longer applicable, English law on bail has always been in accordance with the Convention. Article 5(3) allows the imposition of reasonable bail conditions.
S ENTENCING
For a general outline of sentencing policy you should be familiar with the leading authority of Ashworth on Sentencing and Criminal Justice. Also be aware of the considerable debate which surrounds current sentencing policy and the proposals for change to be outlined in the Criminal Justice Bill 2001/2 and the Police Bill 2001/2.
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Chapter 6
All the answers can be found in the recommended materials, reading lists or the above summaries. Do keep up to date with changes. 1. What is: (a) an arrestable offence (b) a serious arrestable offence? How can you tell? 2. 3. 4. When can a person leave the police station? What is an interview? 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?

LLB_ELS_Ch06(08/01)
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ENGLISH
THE CRIMINAL PROCESS: THE JURY SYSTEM

www.spr-law.com
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

R EADING PATH:
University of London ELS subject guide, Chapter 5 Slapper & Kelly, Chapter10 Smith & Bailey, Chapter 16 Zander: Cases and Materials, Chapter 5
1.
THE INSTITUTION OF THE JURY
Old as the common law itself, the jury system is believed to have been the element in the justice system which made the law common, that is available and applicable to all. The jury of 12 good men and true (which of course includes women) is a fact finding body, introducing the common element process, a fundamental safeguard to our liberty. See Zander for a full history and research some of his interesting footnotes. It was one of the fundamental demands of Magna Carta, 1215, that the Barons who sought constitutional assurances from King John that they should be tried by their peers and not by that unpredictable kings arbitrary decision. However, there has been much criticism of the jury in recent years and there are a number of ongoing proposals to alter or abolish its functions. The Royal Commission on Criminal Justice has put forward proposals to reduce the role of the jury in criminal trials, and the present Labour government is introducing legislation to restrict 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 made by Penny Darbyshire in The Lamp That Shows That Freedom Lives Is It Worth a Candle? Her aim was: to question the traditional qualifications used in praise and defence of the jury, suggesting that some of them are conceptually unsound [to] argue that jury defenders inflate the jurys importance by portraying the right to jury trial as
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central to the criminal justice system and as a guardian of due process and civil liberties. She criticises the traditional romantic view of the jury and many commentators emphasis on tit mystery, in particular because they are not a representative sample of the population, but tend to be comprised of jurors who happen to be available, calling the result: an antidemocratic, irrational and haphazard legislator, whose erratic and secret decisions run counter to the rule of law. There are, however, few in depth studies of the jury, as the Contempt of Court Act 1981, s.8, forbids the really essential research, which is obviously into how the jury actually functions once in the jury room. This not only preserves the romantic view but is detrimental to change in the justice system. If Penny Darbyshire is right, it plays such a small role in the minority of cases that its passing would not be cause for lament, but without research to back this suggestion it is impossible to decide this point one way or the other, since others 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 of juries in civil cases The 1986 Roskill Report advocated the abolition of the right to trial by jury in complex fraud cases Lord Denning argued that some jurors are not adequately suited to the task required of them Amendments to the Criminal Damage Act 1971 have taken certain cases away from the jury, making them summary offences Part V of the Criminal Justice Act 1988 removed the right to jury trial for other offences, including driving whilst disqualified The James Committee in its 1975 study The Distribution of Criminal Business between the Crown Court and the Magistrates Courts recommended that minor thefts and similar 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 the Criminal Law Act 1977 The Northern Ireland (Emergency Provisions) Act 1991 has taken away the right to jury trial for defendants in serious criminal cases The right to jury trial in Northern Ireland was taken away in most serious cases (not exclusively relating to
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terrorism) following Lord Diplocks report on intimidation of jurors as long ago as 1973. The Royal Commission did undertake some studies of pre trial procedures in continental countries which suggested that the jury should be reformed along similar lines: see Leigh and Zedners 1992 Report on the Administration of Criminal Justice 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 who rely on their common sense to assess the accused and the evidence against the accused in order to reach a verdict. If the verdict is an acquittal there is no appeal, and once an accused is acquitted s/he cannot be charged with the same offence again (a situation which has been particularly criticised) although s.36 of the Criminal Justice Act 1972 does provide in the Attorney-Generals reference a procedure whereby such cases can be referred to the Court of Appeal for that Court to clarify the law in such a case with a view to preventing such a situations arising again. the judge explains the law to the jury so the jury can reach their verdict. This is principally done in the summing up of the evidence before the jury retires to consider its verdict. The judge has no power to instruct a jury to convict an accused.
This system generally appears to work tolerably well, with jury taking its responsibilities seriously and following the judges directions, e.g. Baldwin and McConville in Jury Trials (1979) established evidence to suggest that juries acquitted 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 the rules for selecting a jury, and the Criminal Justice Act 1987 which excuses those over 65 as of right. This leaves anyone listed on the electoral register between the ages of 18 and 70, who has been resident in the UK for at least 5 years since the age of 13. Certain persons are ineligible:
members of the judiciary, barristers, solicitors, the clergy and the mentally ill
Certain persons are excused:
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MPs, members of the armed forces and medical and legal professions (by administrative discretion) any person who has served on a jury in the past 2 years, any person with good reason to be excused: s.120, Criminal Justice Act 1988.
C HALLENGING INCLUSION OF J URORS

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

is not qualified is biased may be reasonably suspected of bias against the defendant.
The prosecution and the defence both have a right to challenge. The prosecution also has the right to ask a juror to stand by for the Crown. The Attorney General has laid down guidelines as to when the prosecution can exercise this right:

if the jury check shows information supporting the exercise of this right if the person to be sworn as a juror is unsuitable and the defence agree: Practice Statement 1988.
ABOLITION OF PRE -EMPTORY CHALLENGE

Note: the defence no longer has the right to pre-emptory challenge of up to 3 jurors without giving reasons. This was abolished by the Criminal Justice Act 1988, s.118.
VETTING THE JURY

The panel is selected a random and any party to the proceedings can inspect the panel from which the jurors will be chosen. Their backgrounds are investigated as to determine whether they are suitable for jury service, a practice called jury settling which came to public notice during a 1978 trial under the Official Secrets Act 1911, and again in two cases in 1980. In practice only the prosecution has the resources to do this type of investigation, as they have access to police records. The constitutional position of this procedure is therefore much in doubt, although the Court of Appeal has recognised the legitimacy of the Crowns right to stand by potential jurors. There is some regulation of the practice: the Attorney General issued a Practice Note in 1988 together with a statement confirming the previous guidelines.
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5.
FOR
THE CASE FOR THE JURY
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 judicial power jurors have no legal training and import common sense juries are a barometer of public feeling jurors are not prosecution minded (better chance of acquittal 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 knowledge of the law usually) they are sometimes not intellectually equipped to follow a complex case (e.g. fraud, clinical negligence) they can be influenced by outside forces they are sometimes actually prejudiced as well as ignorant a good lawyer can sway them they are said to acquit too many people they often bring in perverse verdicts.
6.
THE RUNCIMAN C OMMISSION: RECOMMENDATIONS
The Royal Commission on Criminal Justice HAS made recommendations to improve the jury system, including the following:

The Contempt of Court Act 1981, s.8 to be repealed to allow research into the jury. Changes in selection and disqualification of jurors. More checks to be made of jurors to ensure they are not related to one another or the accused.
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A more balanced panel with at least three members from ethnic minority groups. One member reflecting the ethnic origins of the accused. Protection of juries from outside influences during proceedings. More flexible trial scheduling to allow jurors to go to work especially during long trials. The abolition of the defendants right to elect for jury trial in either way cases, the decision to be vested instead in the magistrates (this is the subject of current controversial legislation).
While it is argued that this would produce a more rational distribution of cases, some commentators are deeply critical and consider that the right to jury trial should remain in cases which would have serious implications for a defendant. See e.g. McConville: A Comedy of Errors writing in Legal Action in 1993, was totally opposed to truncating the right to jury trial.
7.
HUMAN RIGHTS AND THE JURY: THE SANDER CASE
Article 6 (fair trial) obviously requires the institution of an impartial jury. The case of SANDER v UK The Times, 12 May 2000, ECHR, shows the inherent problems in a multi-cultural society where racial imbalance on the jury cannot be corrected automatically. The judges redirection of the jury to stress the importance of avoiding racial prejudice was held to be inadequate. There were three letters from the jury. The first complained that two fellow jurors were making racist remarks and jokes. The second was from the whole jury, refuting the allegations in the first letter. The third was from one of the alleged racist jurors who denied any racial bias. The Court held that racial bias does not go away overnight, and that the jury should have been discharged, due to the violation of Article 6.
THE EXAMINATION
There is often a question about the jury system. Consider this: Do you think that the present system of selection, exclusion, exemption and challenge procedures does anything to ensure that juries are representative of the pubic conscience? If not, do you think that the retention of the jury is dictated by emotion or are there good reasons for keeping it? If so, explain. For your own research, see the Grobbelaar case (2001) TLR CA which is possibly going on a further appeal to the House of Lords.
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All the answers can be found in the recommended materials, reading lists or the above summaries. 1. 2. What evidence is there that the jury is an outmoded institution. What did the Roskill Report, examining alternatives for complex fraud trials, suggest instead? Would these suggestions assist in other complex trials? Do juries have the opportunity to assess the truth of a case?
3.

LLB_ELS_Ch07(08/01)
ENGLISH
LEGAL SERVICES : LEGAL AID

www.spr-law.com
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

R EADING PATH:
University of London ELS subject guide, Chapter 6 Slapper & Kelly, Chapter12 Smith & Bailey, Chapters 8, 9 and 11 Zander: Cases and Materials, Chapter 6 (this information would now appear to be in need of amendment) From the website subject page: Soundfile: Legal aid
1.
THE CONCEPT OF ACCESS TO JUSTICE
The concept of access to justice for all is seen as being central to our notion of the Rule of Law. Litigation, however, is expensive, hence the establishment of what became known as legal aid. The syllabus still refers to the public funding of litigation as legal aid so I will use this term. Note that the Legal Aid Board has now been superseded by the Legal Services Commission under s.1 of the Access to Justice Act 1999 which is now in force. The authoritys functions are the establishment, maintenance and distribution of:

the Community Legal Service (CLS) which replaces the old civil legal aid scheme; and the Criminal Defence Service (CDS) which will replace the criminal legal aid scheme.
The CLS was launched on the internet in April 2000: see www.justask.org.uk. The Lord Chancellor sees it as a strategically important part of the public funding of legal information and advice. Note also that conditional fee agreements (CFAs) are seen as an important part of the strategy to control public spending on legal services.
T HE DEVELOPMENT OF LEGAL AID

Until after World War II, Legal aid was not available at all. Therefore, individuals needing legal advice had to depend on pro bono work. There was a Poor Prisoners Defence Act as early as 1903, which provided a limited scheme for lawyers to be paid from public funds. However a comprehensive state system of legal aid was not created until the Legal Aid Act 1949. This immediately gave a boost to limited reforms to
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divorce law because it enabled women, normally entirely dependent on their husbands, to afford lawyers so as to petition for divorce on the same footing as their husbands. Legal aid was therefore initially part of the post-war welfare state which in theory attempted to reconstruct the country in a way which enabled all classes to participate in the victory. The war had swept much of the social framework of the prewar period away. Women who had replaced men at work during the war years, did not expect to return to their former domestic subservience. The government held out the hope of full employment and along with the other benefits of the welfare state, legal aid was expected to meet all legal needs for those who could not afford to pay, which was interpreted as everyone but the rich. In the 1950s and early 1960s, 80% of the population qualified for legal aid.
THE RISING C OSTS OF L EGAL AID

When a state-wide system of legal aid was first implemented, it appeared that no thought was given either to setting a realistic budget for a demand-led system or even controlling it. The cost of the scheme got out of hand in the 80s and continued to rise until the mid 90s. In 1986, the Legal Aid Scrutiny Report recommended a number of proposals to help cut costs in the administration of the scheme and some of these proposals were implemented in the Legal Aid Act 1988. In the late 80s and early 90s the then Lord Chancellor, Lord Mackay of Clashfern, identified a number of proposals to alter the funding such as reduced interest bank loans, contingency fees and legal insurance, besides at the same time setting out to modernise the legal profession so that the cost of litigating would itself also fall, To accomplish this, Green Papers in 1989 were followed in 1990 by the Courts and Legal Services Act, which began the process of widening rights of access to the higher courts so that solicitors could if they wished handle more of their own advocacy, thus restricting the need for incurring the fees of a professional advocate from the Bar in on top of their own. Indeed it was Lord Mackay who appears finally to have realised, and brought home to the government of 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 were easy enough to see: an increased crime rate was a main contributory cause.
C UTTING COST: T HE FIRST ATTEMPTS

The first approach was to cut legal aid costs by decreasing eligibility. Legal aid limits were set at the same level as the main welfare benefit - supplementary benefit - in 1974 and therefore only marginally increased each year in line. By 1979 it was estimated that more than 11 million people had lost their access to civil legal aid as a result, a result which concerned 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 cost cutting, and no root and branch reappraisal, was adopted at this stage. A new Legal Aid Act in 1988 set up the system which endured until April 2000. This enabled an applicant to qualify automatically for legal aid if in support of any of the main welfare benefits ( income support, family credit or incapacity benefit) but otherwise it was means tested. The means test took into account savings, and items of value, to assess a qualifying capital level, as well as a qualifying income level. Above the automatic qualifying level but below the ceiling, an applicant would have to make a contribution, but above the ceiling legal aid would not b available at all. The statutory charge was introduced to restrict access further, making legal aid a loan rather than a gift, as any money or property recovered or preserved was earmarked for immediate or eventual repayment of the litigants share of the cost of the litigation, if necessary when the property was ultimately sold. This kept the costs down in funding of divorces, as mostly divorcing spouses obtained a decree relatively cheaply, but ran up large bills over ancillary relief.
2.
THE LEGAL AID ACT 1988
Under this scheme, legal aid was administered by the Legal Aid Board, established under s.3 of the 1988 Act, to succeed the Law Society in control of funding. The Boards chairman was a lay person and the members were chosen for their knowledge of the legal system and fiscal issues. Pursuant to s.4 the Board advised the Lord Chancellor on policy issues regarding 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, covered practical assistance from a solicitor who would advise, write letter or negotiate for the client, and could consult a barrister. It covered all legal services up to but not including representation at court, which was further provided for if the client met the necessary qualifying criteria. Civil Legal Aid was available for proceedings in all civil courts and at some tribunals, to assist with the cost of all pre-court work, including representation in court. Besides satisfying the financial eligibility criteria, the assisted person also had to satisfy the Board that s/he had reasonable grounds for legal aid to be granted, and the second limb of this second qualifying condition was linked with the paying client test, i.e. would a party who had to pay privately be likely to think it worth doing so: if this was not likely, legal aid out of public funds would not be appropriate.
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Criminal Legal Aid was available in all courts trying criminal cases, and the courts had the power to grant it where it was in the interests of justice. The initial application would be made to the magistrates on an applicants first appearance before them, and would be dealt with by the clerk. The level of legal aid granted at this stage was representation by a solicitor and preparation of the clients case. The merits test which regulated whether criminal legal aid should 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 on conviction, or had some form of mental or physical impediment, or was incapable of comprehending the proceedings because he could not speak English, or if the case involved a point of law.
In the 1990s standard fees for legal aid work in magistrates courts 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 aid decisions to firms of solicitors to whom a franchise had been granted in effect to take all the decisions that were normally taken by the Board through its Area management. Certain standards were demanded of such firms including under the following 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 new source of potential clients: children. The Children Act 1989 gave children a greater say in how they were treated by the courts, particularly if the child had a sufficient age and understanding, which was called being GILLICK competent. This term came from the case of GILLICK v WEST NORFOLK AND WISBECH AREA HEALTH AUTHORITY [1986] AC 112 which you should read online. Rule 9.2(A) (1) of the Family Proceedings Rules 1991 formally recognised the welfare principle embodied in the 1989 Act which entitled children to make their own applications in family proceedings, and from 1989 a childs legal aid eligibility was based solely on the childs mean calculated by completing a simplified statement of means.
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L EGAL N EEDS UNMET

Vast areas of law, some with considerable importance in respect of individual rights, still remained uncovered by the legal aid scheme. Research showed that lawyers were used only by a small social group, and then only for a small proportion of the areas which needed to be covered. Many who would have benefited from the services of a lawyer did not take advantage of the service. The Marre Report recommended that lawyers should promote more public education and awareness of the legal profession, that they should attempt to be more approachable to help reduce public fear of lawyers, particularly with regard to ethnic minority groups who often feel intimidated by the legal profession.
THE FIRST R EFORMS

In 1995, Lord Mackay, the then Lord Chancellor, spoke of the grave need to reform the legal aid system to stem the still spiralling costs. For the first time in the Green Paper Targeting Need (1995) emphasis was placed on replacing the existing demand-led system with its apparently ineffective cuts and controls with a cash limited budget, similar to that on the basis of which a decade before the Department of Social Security had replaced single payments in the welfare benefits scheme with the cash limited Social Fund. The concept of a fixed annual amount for legal aid work was thus born, leading to block contracting and franchised fundholders, similar to the system pioneered in the National Health Service. In 1995 the Conditional Fee Agreements (CFA) Order led the way in making such arrangements available for personal injury work and cases before the European Court of Human Rights: this system provides funding for the running of the case with no bill for the client if the case is won, and an uplift for the lawyer if it is won. At the same time, insurance cover for legal costs began to increase in popularity, and is now gathering prominence with many household policies providing such cover. During the same period, alternative legal services began to be developed, the three most important being:

Legal Advice Centres, Citizens Advice Bureaux Law Centres
Legal Advice Centres provided free advice, in universities and other law schools, charitable social service centres and within some Citizens Advice Bureaux. An extension of this is the Bar Councils Free Representation Unit (FRU), staffed by Bar students, which provides advocates for tribunals. The Bar Council also operates a pro bono unit whereby members of the Bar, including QCs, make themselves available to undertake legal work, including advocacy, for no fee. Citizens Advice Bureaux are voluntary general advice centres found in high streets, sometimes linked to public libraries, or
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court centres. That in the Royal Courts of Justice in the Strand in London is one of the busiest. They give general advice on a wide range of problems which affect the citizen, including legal problems. Law Centres were initially established in 1968 by the Society of Labour Lawyers and the first opened in 1970, much opposed by the Law Society. Their initial remit was to:

educate the public in their rights and duties under the law, and specialise in specific areas of law seen as appropriate to poorer sections of the community, such as landlord and tenant, employment law and social security law.
3.
M ODERNISING JUSTICE : THE POST -APRIL 2000 D ISPENSATION
In the autumn of 1998, the present Lord Chancellor, Lord Irvine, announced a package of fundamental reforms of legal aid His White Paper Modernising Justice unveiled a replacement for the Legal Aid Board to be called the Legal Services Commission, which, following the Access to Justice Act 1999 setting up the new system, began work in April 2000: s. 4 of the Act provided for the Commission to set up a Community Legal Service to replace legal aid in family and other civil cases where assistance remains available, and for a Criminal Defence Service to buy legal services for the public in a controlled way. The Criminal Defence Service, inaugurated in April 2001 will replace criminal legal aid under the arrangements pursuant to the Legal Aid Act 1988. The Lord Chancellor now budgets annually for these services, and the Act further explicitly imposes a statutory duty to obtain value for money: AJA 1999 s.5. pursuant to s.10 it is intended that legal aid shall become more of a loan than a means tested grant, and the Legal Services Commission is developing its own quality assurance system, called Quality Mark, for the lawyers who it will use under the new regime. There are two CLS Quality Mark points of contact for the public, sources of:
information (which comprise a wide range of distribution points, including charities and local information services of all kinds as well as lawyers, who will give out information 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 Chancellor also pointed out that those who wanted to litigate paying privately would also find good value if using those lawyers who had the CLS Quality mark.
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Go online now! Access the Lord Chancellors website, www.open.gov.uk/lcd, and download the latest information on the Legal Services Commission, the Community Legal Service and the Criminal Defence Service. It is also useful to look at the Legal Services Commission press notices which are also posted on the web.
4.
LEGAL AID AND H UMAN RIGHTS
Article 6 of the Human Rights Act (fair trial) is clearly relevant to the issue of genuine access to justice through the provision of legal help where necessary. Is the new cash limited system in breach of Article 6? The answer to date appears to be No. See PROCURATOR
FISCAL, FORT WILLIAM v McLEAN AND ANOTHER The Times, 11 August 2000 . In this case, the High Court of Justiciary, sitting as
the Court of Criminal Appeal, so held in a case where the appellant claimed that it was an abuse of his human rights for the Crown to prosecute him for a crime while restricting to 550 the fee they were prepared to pay to his lawyer to defend him. The Convention is already in force in Scotland, having been incorporated into Scottish law by the Scotland Act 1998. Lord Prosser, giving the judgment of the court, held that there had been no actual prejudice in the case before the court (a prosecution for assault and breach of the peace where there was no suggestion that the solicitor acting for the defendant had been pressured in any way and had therefore allowed his professional standards to drop) and that there was also no breach in general terms on the basis that a financial restriction would be bound to prejudice a fair trial.
5.
LEGAL EXPENSES INSURANCE
Many will have heard recently of organisation such as Claims Direct and other specific private sector companies offering a no win no fee arrangement. Such arrangements are common in personal injury actions and students can view the detailed arrangements through Butterworths PI online service. Whilst you should be aware of the changes currently taking place, it is doubtful whether a specific examination question will appear in this area. Do monitor the publicity (mainly bad publicity) surrounding organisations such as Claims Direct in the media. At present, large amounts of money owed to clients remain still to be paid to them. It can be seen therefore that the problems surrounding the introduction of CFAs and the concept of no win no fee are far from settled. Students should also note the strict provisions for such arrangements involving solicitors and their clients, and solicitors and counsel. For the actual examination it is difficult to predict what type of question may be asked at the present time. One which springs to mind is:
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Is the Legal Services Commission the solution to the problems that have dogged legal aid for the past few decades, or is it all too good to be true? You may like to consider this discussion in the light of the difficulties surrounding the Criminal Defence Service.
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All answers can be found in the recommended materials, the reading list, the websites or the above summaries. 1. 2. What are the objectives of the new system of providing legal help in place of the old legal aid system? What is a contingency fee? What was the objective of the introduction of contingency fees? When can a solicitor charge a client under this system? What were the main drawbacks of the old legal aid system? Explain the merits test for the grant of criminal legal aid.
3. 4.

LLB_ELS_Ch08(08/01)
ENGLISH
THE CIVIL PROCESS

www.spr-law.com
CONTENTS
The Civil Process....................................................................... 1 Woolf: The Reasons for Reform ................................................ 1
Chapter 9
THE CIVIL PROCESS

R EADING PATH:
University of London ELS subject guide, Chapter 7 Slapper & Kelly, Chapters 3, 6, 7 and 8 Smith & Bailey, Chapters 11 and 14 Zander: Cases and Materials, Chapter 2 From the website subject page: Soundfile: Civil Justice
1.
WOOLF: THE REASONS REFORM
FOR
Prior to Lord Woolfs review of civil justice, litigation was controlled almost entirely by the parties, and the rules of court were contained in two weighty tomes: The Rules of the Supreme Court, or RSC (the White Book) and the County Court rules (CCR) or (the Green Book). Together with the Supreme Court Act 1981 the RSC regulated all aspects of the High Court, and where the CCR did not provide, recourse could be had to the RSC to fill the gaps. Much out of date terminology was used (e.g. the initial claim was usually a writ, although lack of uniformity, due to the antecedent history of the Divisions of the High Court and the statute-created County Court meant that these documents had different names in different courts). These historical arrangements were further impeded by arcane terms of reference liberally sprinkled with Latin. There were furthermore, fewer and fewer distinctions between High Court and County Court litigation. Confusion between the two proliferated to such an extent that an overhaul was obviously desirable. First aid was put in place, such as the Civil Justice Review and the Courts and Legal Services Act which implemented some of its recommendations. The High Court and County Court Jurisdiction Order of 1991 had had limited beneficial effect, but costs soared and delay and overload multiplied. Alternative dispute resolution was frequently mentioned as a likely help in moving the civil process along, as were contingency fees. But trials moved no faster nor was there an increase in settlements. Complexity seemed entrenched amid frequently heard complaints about lack of access to justice.
Chapter 9
LORD W OOLFS REPORT : T HE IMPACT

There were two Woolf reports, the Interim Report (1995) and the Final Report a year later, which identified delay, cost, complexity and problematical access to justice as the four main problems of the old system, which were traced to a common cause identified as excessive adversarialism. We now move to what is termed the new landscape. In addressing these problems, Lord Woolf:
articulated an overriding objective, explicitly making the rules a code to enable the court to deal with cases justly set out to simplify complexities both of law and procedure.
Examples:

the different forms by which to start an action were all replaced 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 an alternative to the courts at any stage at which a dispute might still be settled. Example: the creating of pre-action to be complied with before any litigation could be started, thus cutting the court workload built in efficiency. For example, case management was put into the hands of the judges, who were required to exert hands-on proactive management instead of leaving the 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 the work of the entire system.
These recommendations were implemented in the Civil Procedure Act 1997 and the Civil Procedure Rules 1998. They were brought into force from 26th April 1999. Sir Richard Scott (Vice-Chancellor of the Chancery Division) was created Head of Civil Justice.
R EACTIONS TO W OOLF
Bearing in mind the radical nature of the reforms, reaction to them has been positive, from both judges and those who use the courts, including lawyers and clients. Seem as a particularly effective innovation is the partnership between the new government agency the Court Service and the presiding judges at Civil Trial Centres, (which now group county courts together in a satellite framework) and in the High Court. Information Technology which could much assist court processes and management, is apparently not yet entirely up to the standard required, but doubtless will be further developed. Voice recognition software is eventually likely to save judges the task of taking notes of proceedings so as to enable them to concentrate more closely on the conduct of the hearing. This in itself might further speed up processing of the caseload.
THE POST-W OOLF L ANDSCAPE

Lord Woolf has now moved on to become Lord Chief Justice. The new Master of the Rolls, is Lord Phillips of Worth Maltravers, who is well known for his then innovative case management techniques in the trial of the Maxwell brothers. Meanwhile, the team which drafted the CPR is now assisting Lord Justice Auld in the review of criminal justice which will report in late 2001. Basically the new systems are perceived to be working equally well in the County Courts and High Court and the Court of Appeal. However, those who are either knowledgeable or wish to appear so, predict that once Lord Phillips is able to get into the driving seat on the Civil Justice Council and to familiarise himself with the reforms to the Court of Appeal, there will be further refinements. A review of Tribunals under Sir Andrew Leggatt, a retired Court of Appeal judge, may also offload further work onto their sector, freeing up more judicial resources in both County Court and High Court.
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The glossary set out below will give some indication of the terminology used within the English Legal System
GLOSSARY
Scope This glossary is a guide to the meaning of certain legal expressions as used in these Rules, but it does not give the expressions any meaning in the Rules which they do not otherwise have in the law. Affidavit A written, sworn statement of evidence. Alternative dispute resolution Collective description of methods of resolving disputes otherwise than through the normal trial process. Base rate The interest rate set by the Bank of England which is used as the basis for other banks rates. Contribution A right of someone to recover from a third person all or part of the amount which he himself is liable to pay. Counterclaim A claim brought by a defendant in response to the claimants claim, which is included in the same proceedings as the claimants claim. Cross-examination (and see evidence in chief) A claim brought by a defendant in response to the claimants claim, which is included in the same proceedings as the claimants claim. Damages A sum of money awarded by the court as compensation to the claimant. Aggravated damages Additional damages which the court may award as compensation for the defendants objectionable behaviour. Exemplary damages Damages which go beyond compensating for actual loss and are awarded to show the courts disapproval of the defendants behaviour. Defence of tender before claim A defence that, before the claimant started proceedings, the defendant unconditionally offered to the claimant the amount
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due or, if no specified amount is claimed, an amount sufficient to 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 whole amount which he himself is liable to pay. Injunction A court order prohibiting a person from doing something or requiring a person to do something. Joint liability (and see several liability) Parties who are jointly liable share a single liability and each party can be held liable for the whole of it. Limitation period The period within which a person who has a right to claim against another person must start court proceedings to establish that right. The expiry of the period may be a defence to the claim. List Cases are allocated to different lists depending on the subject matter of the case. The lists are used for administrative purposes and may also have their own procedures and judges. Official copy A copy of an official document, supplied and marked as such by the office which issued the original. Practice form Form to be used for a particular purpose in proceedings, the form and purpose being specified by a practice direction. Pre-action protocol Statements of understanding between legal practitioners and others about pre-action practice and which are approved by a relevant practice direction. Privilege The right of a party to refuse to disclose a document or produce a document or to refuse to answer questions on the ground of some special interest recognised by law. Seal A seal is a mark which the court puts on a document to indicate that the document has been issued by the court.
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Service Steps required by rules of court to bring documents used in court proceedings to a persons attention. Set aside Cancelling a judgment or order or a step taken by a party in the proceedings. Several liability (and see joint liability) A person who is severally liable with others may remain liable for the whole claim even where judgment has been obtained against the others. Stay A stay imposes a halt on proceedings, apart from taking any steps 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 be deleted 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 in which the content of those negotiations may be revealed to the court are very restricted.
The examination questions here are somewhat sparse but it is suspected that, at some future date, students will be asked to consider the effectiveness of the Woolf reforms. One of the easiest books to read on the subject is Blackstones Civil Practice 2001 read the first two chapters in detail and become familiar with the Civil Procedure Law Reports which are now being published. Consider also this question: what do you think should be the objectives of a good system of civil justice? Has Lord Woolf designed such a system in your view? Or (as predicted by sceptics such as Professor Michael Zander) has he merely significantly changed the legal landscape?
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All answers can be found in the recommended materials, the reading list, Blackstone or the above summaries. 1. Do you think that, given Lord Woolfs stated support of ADR, (Alternative Dispute Resolution) has been given a sufficiently high profile within the new systems? What is the role of the protocols? What sanctions exist to apply against those who do not follow the rules? How has the role of experts changed following Lord Woolfs reforms?
2. 3. 4.

LLB_ELS_Ch09(08/01)
ENGLISH
THE APPELLATE PROCESS

www.spr-law.com
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

R EADING PATH:
University of London ELS subject guide, Chapter 8 Slapper & Kelly, Chapters 3, 4 and 7 Smith & Bailey, Chapter 17 Zander: Cases and Materials, Chapter 7 (page 545) Blackstones Criminal Practice 2001 Blackstones Civil Practice 2001 From the website subject page: 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 Act 1968, the Criminal Appeal Act 1995 and the Magistrates Courts Act 1980. The latter deals with appeals from the magistrates courts. The first two lay down the routes of appeal, procedure and powers on appeal in criminal cases above the magistrates courts level. For a detailed account of the criminal court structure see Chapter 6. In civil cases the County Courts Act 1984 and the Supreme Court Act 1981 lay down the routes of appeal, grounds and procedure in civil cases. For a detailed account of the civil court structure refresh your memory above and look at the study guide again in detail. In both cases there is an appeal above the Supreme Court level to the House of Lords Additionally, there is another appeal tier beyond the routine appeal structure in the case of criminal cases. The Royal Commission on Criminal Justice 1993 recommended the establishment of a Criminal Cases Review Authority, which reviews cases which have exhausted other appeal routes and where there may be a miscarriage of justice.
RIGHTS OF APPEAL
There was never any common law right of appeal from a superior court. As a result the appeal system is entirely statutory. Appeals really began in the 19th century when the judges began meeting informally to discuss difficult cases, but
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the statutory origin of the present Court of Appeal is the Judicature Acts 1873-5, the latter of which added the House of Lords at the top of the appeal tiers. Both criminal and civil appeal systems have become overloaded in recent years so that measure have been taken to restrict the right of appeal, the levels at which appeals should be heard, so as to conserve superior judicial resources for the cases which really needed them.
2.
THE COURT OF APPEAL
The court has two divisions, civil and criminal. The work of the Court of Appeal (Criminal Division) was significantly revamped by the Criminal Appeal Act 1995, and that of the civil division has received the attention of Sir Jeffrey Bowman, whose Report in 1998 made many recommendations towards bringing the Court of Appeal into line with the Woolf reforms which have taken effect in civil justice in the High Court and County Courts.
THE BOWMAN R EFORMS

The Access to Justice Act 1999, giving effect to some of the Bowman recommendations, brought the Court of Appeal into line with the theory behind the new Civil Procedure Rules, so as to save for the Court of Appeal the work that the Court of Appeal really needed to do. The Act utilises judicial case management to fast track those cases directly to the Court of Appeal. The key to this has been to restrict rights of appeal by requiring leave for all appeals with very few exceptions: AJA 1999 s.54. Alongside this move, efforts have been made to give more accurate information to appellants so that cases are better prepared for those hearings that cannot be avoided, and to encourage appellants whose disputes might be settled in that way to go to ADR. However there has not been a great welcome extended to ADR in Britain, unlike in many overseas jurisdictions, and in particular the Court of Appeals customers have shown a very low take up rate: only 7% of those offered ADR by the Court of Appeal have responded positively to the suggestion. Some of the Bowman recommendations now being put into force pursuant to ss 54-59 are controversial, e.g. in cutting the numbers of Lords Justice sitting on a case one judge instead of two or three in some cases which may raise again the question of whether efficiency is now being sought at the expense of quality justice, especially as s.59 allows the Master of the Rolls to delegate this decision itself to one Lord Justice of Appeal. Appeals are also to be restricted to one level only, the lowest most appropriate level, instead of up the whole ladder: AJA 1999 s.55.
THE CRIMINAL APPEAL ACT 1995

Reform of the Criminal Divisions work was effected by this statute. Pursuant to s.1, leave is now needed for all appeals, whether on point of law, fact or mixed law and fact. According to
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Hansard this was necessary to provide a filter mechanism for appeals without merit. Pursuant to s.2 of the Act, the ground on which appeals were allowed was also changed from where the conviction was unsafe and unsatisfactory to where it was unsafe. This led to debate in and outside Parliament as to whether this narrowed the ground of appeal, although the Lord Chief Justice of the time, Lord Taylor, was of the view that it merely restated the current practice of the Court of Appeal Criminal Divisions. Acceptance of fresh evidence was also redefined by s.4, again putting into statutory form what was thought to be the contemporary practice of the Court of Appeal Criminal Division, i.e. to admit fresh evidence if it was capable of belief, might afford a ground of appeal and would have been admissible at trial, provided there was an explanation for its omission at the trial.
THE ATTORNEY GENERAL S R EFERENCES

These remain, and were undisturbed by the 1995 reforms, permitting a references (1) where an acquittal gives rise to a query about the law, pursuant to s.26 Criminal Justice Act 1972 and it is desirable that the law be clarified for future cases without disturbing the acquittal in question, and (2) where a particularly lenient sentence is referred to the Court of Appeal, Criminal Division, which may increase it pursuant to ss.35 and 36 Criminal Justice Act 1988, the purpose of this reference being to ensure consistency in sentencing.
3.
M AGISTRATES COURTS APPEALS
The two routes of appeal from the magistrates courts are either

to the Crown Court, where a judge sits with two to four lay magistrates and the hearing is de novo, or to the Divisional Court of the Queens Bench Division by case stated, where the appeal is herd by 2 judges, one usually a Lord Justice of Appeal and the other a High Court judge. Either side may appeal by this route but only on point of law, and any further appeal is direct to the House of Lords provided a point of law of general public importance is certified by the Divisional Court and leave to appeal is given.
In the case of appeal to the Crown Court, only the defendant can appeal, either against conviction or against both conviction and sentence, but only against sentence if there was a plea of guilty below, unless that guilty plea was equivocal.
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M ISCARRIAGES OF JUSTICE
The former Home Secretarys reference for review of potential miscarriages of justice has been replaced by the creation of a Criminal Cases Review Commission, an independent review body set up under the Criminal Appeal Act 1995. While the theory is that the other provisions of the 1995 Act should now catch future potential miscarriages of justice, there is a residue of cases which successive Home Secretarys were reluctant to return to the Court of Appeal for reconsideration, which the CCRC now reviews and refers to the Court if appropriate, where there may still be historic mistakes in the administration of justice, often due to the manner in which the offences in question were investigated. Some cases have turned up some unpleasant instances of corruption in the police. The Report of the Runciman Commission urged that the Court of Appeal be given new powers to investigate the events leading up to a conviction. It is possible that the Auld review of criminal justice now in process may look at this aspect of potential miscarriages of justice. Mainly cases which have been successfully reviewed have been high profile ones, and there is concern that there may be others that simply do not come to the CCRCs attention. The CCRC is not able however to remedy injustice. Some cases of murder where the wrongly convicted person was hanged, e.g. Derek Bentley, are particularly disturbing, as although Bentley received a posthumous pardon, limited to sentence only, under the Royal prerogative of mercy in 1993, it was not until 1998 that the Lord Chief Justice, reconsidering the conviction in the Court of Appeal Criminal Division, was able to say that he had been denied a fair trial, the birthright of every British citizen, besides which Bentley had already been hanged in 1953. Other notorious cases include the Bridgewater Four, who had spent 18 years in prison during which one of them (convicted on a fabricated confession after days of oppressive questioning without legal advice) had already died, and the Guildford Four, one of whom (convicted on circumstantial evidence which turned out to be wrong while other exonerating evidence was concealed) had also died in prison before the conviction was quashed. Over 250 cases were handed over from the Home Office when the CCRC started work in 1997, and there is concern that their work is hampered by insufficient administrative support. This is a concern when research by Dr Kate Malleson at the London School of Economics has shown that by far the most common cause of wrongful conviction is judicial mistake. Do consider the most recent annual report of the CCRC on the following website: www.ccre.gov.uk Now consider this question: does the present system of appeals now make sufficient provision for catching miscarriages of justice during the routine appeal stages?
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4.
CIVIL APPEALS: THE PRACTICE DIRECTION PART 52 CPR
TO
Under the Civil Procedure Rules, Part 52, there is reference now to the main Practice Direction (PD) which you can read in full in Blackstones Civil Practice 2001. To give you a flavour of the PD, I attach part one which you should read carefully in order to see how the new regime works. This will also give you an opportunity to consolidate all your knowledge of the civil process together with its somewhat detailed terminology. Do read online the case of TANFERN LTD
v CAMERON-McDONALD AND ANOTHER [2000] 2 All ER 801 CA
and specifically the judgment of Brooke LJ who has reviewed and summarised the changes to civil appeals.
C ONTENTS OF THIS PRACTICE D IRECTION

1.1 This practice direction is divided into three sections: Section I General provisions about appeals Section II General provisions about statutory appeals and appeals 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 applies except where specific provision is made for appeals to the Court of Appeal. For the purpose only of appeals to the Court of Appeal from cases in family proceedings this Practice Direction will apply with such modifications as may be required.
2.2
ROUTES OF APPEAL 2A.1 Subject to paragraph 2A.2, the following table sets out to which court or judge an appeal is to be made (subject to obtaining any necessary permission): 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) (b) in a claim allocated to the multi-track under rules 12.7, 14.8 or 26.5; or made in specialist proceedings (to which rule 49(2) refers) the appeal is to be made to the Court of Appeal (subject to obtaining any 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 entire proceedings 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 of appeal purposes where it: (a) (b) is made at the conclusion of part of a hearing or trial which has been split into parts; and would, if it had been made at the conclusion of that hearing or trial, have been a final decision.
2A.5 An order made: (a) (b) on a summary or detailed assessment of costs; or 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 set out 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 the Access to Justice Act 1999 (Destination of Appeals) Order 2000 set out the provisions governing routes of appeal) 2A.6 (a) Where the decision to be appealed is a final decision in a Part 8 claim treated as allocated to the multi-track under rule 8.9(c) the court to which the permission application is made should, if permission is given, and unless the appeal would lie to the Court of Appeal in any event, consider whether to order the appeal to be transferred to the Court of Appeal under rule 52.14. An appeal against a final decision on a point of law in a case which did not involve any substantial dispute of fact would normally be a suitable appeal to be so transferred.
(b)
(see also paragraph 10.1) GROUNDS FOR APPEAL 3.1 3.2 Rule 52.11(3)(a) and (b) sets out the circumstances in which the appeal court will allow an appeal. The grounds of appeal should set out clearly the reasons why rule 52.11(3)(a) or (b) is said to apply.
PERMISSION TO APPEAL 4.1 4.2 Rule 52.3 sets out the circumstances when permission to appeal is required. The permission of(a) the Court of Appeal; or
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(b)
where the lower courts rules allow, the lower court is required for all appeals to the Court of Appeal except as provided for by statute or rule 52.3
(The requirement of permission to appeal may be imposed by a practice direction see rule 52.3(b)) 4.3 Where the rules of the lower court or any other enactment do not provide for the giving of permission to appeal, the lower court may give an 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) (2) (3) (4) (5) 4.5 disclosure filing of witness statements or experts reports directions about the timetable of the claim adding a party to a claim security for costs
Where the application is for permission to appeal from a case management decision , the court dealing with the application may take into account whether: (1) (2) (3) the issue is of sufficient significance to justify the costs of an appeal; the procedural consequences of an appeal (eg loss of trial date) outweigh the significance of the case management decision ; it would be more convenient to determine the issue at or after trial.
Court to which permission to appeal application should be made 4.6 4.7 An application for permission should be made orally at the hearing at which the decision to be appealed against is made. Where: (a) (b) no application for permission to appeal is made at the hearing; or the lower court refuses permission to appeal, an application for permission to appeal may be made to the appeal court in accordance with rules 52.3(2) and (3).
4.8
There is no appeal from a decision of the appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court. See section 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 High Court or a county court which was itself made on appeal must be made to the Court of Appeal.
4.10 If permission to appeal is granted the appeal will be heard by the Court of Appeal. Consideration of permission without a hearing 4.11 Applications for permission to appeal may be considered by the appeal court without a hearing.
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4.12 If permission is granted without a hearing the parties will be notified of that decision and the procedure in paragraphs 6.1 to 6.7 [6.6] will then apply. 4.13 If permission is refused without a hearing the parties will be notified of that decision with the reasons for it. The decision is subject to the appellants right to have it reconsidered at an oral hearing. This may be before the same judge. 4.14 A request for the decision to be reconsidered at an oral hearing must be filed at the appeal court within 7 days after service of the notice that permission has been refused. A copy of the request must be served by the appellant on the respondent at the same time. If no request is made for the decision to be reconsidered, it will become final after the time limit for making the request has expired. Permission hearing 4.15 Notice of the hearing need not be given to the respondent unless the court so directs. The appeal court will usually so direct if the appellant is asking for a remedy against the respondent pending the appeal. 4.16 f notice of the hearing is to be given to the respondent, the appellant must supply the respondent with a copy of the bundle (see paragraph 5.6) within 7 days of being notified, or such other period as the court may direct. The costs of providing that bundle shall be borne by the appellant initially, but will form part of the costs of the permission application. Appellants in receipt of services funded by the Legal Services Commission applying for permission to appeal 4.17 Where the appellant is in receipt of services funded by the Legal Services Commission (or legally aided) and permission to appeal has been refused without a hearing, the appellant must send a copy of the reasons the appeal court gave for refusing permission to the relevant office of the Legal Services Commission as soon as it has been received from the court. The court will require confirmation that this has been done if a hearing 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 issues only, it should expressly refuse permission on any remaining issues. Those other issues may only be raised at the hearing of the appeal with the appeal courts permission. The court and the respondent should be informed of any intention to raise such an issue as soon as practicable after notification of the courts order. 4.19 An application to raise a remaining issue will normally be dealt with at the outset of the appeal unless the court otherwise directs. APPELLANTS NOTICE 5.1 An appellants notice (N161) must be filed and served in all cases. Where an application for permission to appeal is made to the appeal court it must be applied for in the appellants notice.
Human rights 5.1A Where the appellant is seeking to rely on any issue under the Human Rights Act 1998, or seeks a remedy available under that Act, for the first time in an appeal he must include in his appeal notice the information required by paragraph 16.1 of the practice direction to CPR Part 16. Paragraph 16.2 of that practice direction also applies as if references to statement of case were to appeal notice.
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5.1B CPR rule 19.4A and the practice direction supplementing it shall apply as if references to the case management conference were to the application for permission to appeal.(The practice direction to Part 19 provides for notice to be given and parties joined in certain circumstances to which this paragraph applies) Extension of time for filing appellants notice 5.2 If an appellant requires an extension of time for filing his notice the application must be made in the appellants notice. The notice should state the reason for the delay and the steps taken prior to the application being made. Where the appellants notice includes an application for an extension of time and permission to appeal has been given or is not required the respondent has the right to be heard on that application. He must be served with a copy of the appellants bundle. However, a respondent who unreasonably opposes an extension of time runs the risk of being ordered to pay the appellants costs of that application. If an extension of time is given following such an application the procedure at paragraphs 6.1 to 6.6 applies.
5.3
5.4
Applications 5.5 Notice of an application to be made to the appeal court for a remedy incidental to the appeal (eg an interim remedy under rule 25.1 or an order for security for costs) may be included in the appeal notice or in a Part 23 application notice. (Rule 25.15 deals with security for costs of an appeal) (Paragraph 10 [11] of this practice direction contains other provisions relating to applications) Documents 5.6 The appellant must lodge the following documents with his appellants notice in every case except where the appellants notice relates to a refusal of permission to apply for judicial review (see paragraph 15.3 below): (1) (2) (3) (4) (5) (6) (7) one additional copy of the appellants notice for the appeal court; and one copy of the appellants notice for each of the respondents ; one copy of any skeleton argument (see paragraph 5.9) a sealed copy of the order being appealed; any order giving or refusing permission to appeal, together with a copy of the reasons for that decision; any witness statements or affidavits in support of any application included in the appellants notice; and a bundle of documents in support of the appeal this should include copies of the documents referred to in paragraphs (1) to (6) and any other documents which the appellant reasonably considers necessary to enable the appeal court to reach its decision on the hearing of the application or appeal. Documents which are extraneous to the issues to be considered should be excluded. The other documents will, subject to paragraph 5.7, include: (a) any affidavit or witness statement filed in support of the application for permission to appeal or the appeal,
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(b) (c)
a suitable record of the reasons for judgment of the lower court (see paragraph 5.12); where permission to appeal has been given or permission is not required; any relevant transcript or note of evidence (see paragraph 5.15 below) statements of case, any application notice (or case management documentation) relevant to the subject of the appeal, in cases where the decision appealed was itself made on appeal, the first order, the reasons given and the appellants notice of appeal from that order, in cases where the appeal is from a Tribunal, a copy of the Tribunals reasons for the decision, a copy of the decision reviewed by the Tribunal and the reasons for the original decision in the case of judicial review or a statutory appeal, the original decision which was the subject of the application to the lower court relevant affidavits, witness statements, summaries, experts reports and exhibits; any skeleton arguments relied on in the lower court; and such other documents as the court may direct.
(d) (e) (f)
(g)
(h)
(i) (j) (k) 5.7
Where it is not possible to file all the above documents, the appellant must indicate which documents have not yet been filed and the reasons why they are not currently available. Where bundles comprise more than 150 pages excluding transcripts of judgment and other transcripts of the proceedings in the lower court only those documents which the court may reasonably be expected to pre-read should be included. A full set of documents should then be brought to the hearing for reference.
5.8
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 appellants notice. (1) (2) (3) a sealed copy of the order being appealed; any order giving or refusing permission to appeal, together with a copy of the reasons for that decision; and 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 in addition to the documents referred to in paragraph 5.8A. Skeleton arguments 5.9 (1) The appellants notice must, subject to (2) and (3) below, be accompanied by a skeleton argument. Alternatively the skeleton argument may be included in the appellants notice. Where the skeleton argument is so included it will not form part of the notice for the purposes of rule 52.8.
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(2)
Where it is impracticable for the appellants skeleton argument to accompany the appellants notice it must be lodged and served on all respondents within 14 days of filing the notice. An appellant who is not represented need not lodge a skeleton argument but is encouraged to do so since this will be helpful to the court.
(3)
Content of skeleton arguments 5.10 Skeleton arguments for the appeal court should contain a numbered list of points stated in no more than a few sentences which should both define and confine the areas of controversy. Each point should be followed by references to any documentation on which the appellant proposes to rely. 5.11 The appellant should consider what other information the appeal court will need. This may include a list of persons who feature in the case or glossaries of technical terms. A chronology of relevant events will be necessary in most appeals. In the case of points of law, authorities relied on should be cited with reference to the particular pages where the principle concerned is set out. Suitable record of the judgment 5.12 Where the judgment to be appealed has been officially recorded by the court, an approved transcript of that record should accompany the appellants notice. Photocopies will not be accepted for this purpose. However, where there is no officially recorded judgment, the following documents will be acceptable: Written judgments (1) Where the judgment was made in writing a copy of that judgment endorsed with the judges signature.
Note of judgment (2) When judgment was not officially recorded or made in writing a note of the judgment (agreed between the appellants and respondents advocates) should be submitted for approval to the judge whose decision is being appealed. If the parties cannot agree on a single note of the judgment, both versions should be provided to that judge with an explanatory letter. For the purpose of an application for permission to appeal the note need not be approved by the respondent or the lower court judge.
Advocates notes of judgments where the appellant is unrepresented (3) When the appellant was unrepresented in the lower court it is the duty of any advocate for the respondent to make his/her note of judgment promptly available, free of charge to the appellant where there is no officially recorded judgment or if the court so directs. Where the appellant was represented in the lower court it is the duty of his/her own former 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 Tribunals reasons for the decision.
5.13 An appellant may not be able to obtain an official transcript or other suitable record of the lower courts decision within the time within which the appellants notice must be filed. In such cases the appellants notice must still be completed to the best of the appellants ability on the basis of the documentation available. However it may be amended subsequently with the permission of the appeal court.
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Advocates notes of judgments 5.14 Advocates brief (or, where appropriate, refresher) fee includes: (1) (2) (3) (4) (5) (6) (7) remuneration for taking a note of the judgment of the court; having the note transcribed accurately; attempting to agree the note with the other side if represented; submitting the note to the judge for approval where appropriate; revising it if so requested by the judge, and providing any copies required for the appeal court, instructing solicitors and lay client; and 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 the relevant evidence must be obtained. Transcripts or notes of evidence are generally not needed for the purpose of determining an application for permission to appeal. Notes of evidence 5.16 If evidence relevant to the appeal was not officially recorded, a typed version of the judges notes of evidence must be obtained. Transcripts at public expense 5.17 Where the lower court or the appeal court is satisfied that an unrepresented appellant is in such poor financial circumstances that the cost of a transcript would be an excessive burden the court may certify that the cost of obtaining one official transcript should be borne at public expense. 5.18 In the case of a request for an official transcript of evidence or proceedings to be paid for at public expense, the court must also be satisfied that there are reasonable grounds for appeal. Whenever possible a request for a transcript at public expense should be made to the lower court when asking for permission to appeal. Filing and service of appellants notice 5.19 Rule 52.4 sets out the procedure and time limits for filing and serving an appellants notice. The appellant must file the appellants notice at the appeal court within such period as may be directed by the lower court which should not normally exceed 28 days or, where the lower court directs no such period, within 14 days of the date of the decision that the appellant wishes to appeal. Skeleton arguments must be filed with the appellants notice whether they are included within the notice or accompany it except as provided by 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 the reasons for his judgment or order until a later date, he should, in the exercise of powers under rule 52.4(2)(a), fix a period for filing the appellants notice at the appeal court that takes this into account. 5.21 Except where the appeal court orders otherwise a sealed copy of the appellants notice, including any skeleton arguments must be served on all 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 by paragraph 5.9(2) in which case the skeleton argument should be served as soon as it is lodged. 5.22 Unless the court otherwise directs a respondent need not take any action when served with an appellants notice until such time as notification is given to him that permission to appeal has been given. 5.23 The court may dispense with the requirement for service of the notice on a respondent. Any application notice seeking an order under rule 6.9 to dispense with service should set out the reasons relied on and be verified by a statement of truth.
5.24 Where the appellant is applying for permission to appeal in his appellants notice, there is no requirement at this stage for copies of the documents referred to at paragraph 5.6 to be served on the respondents. However, if permission has been given by the lower court or permission is not required, copies of all the documents must be served on the respondents with the appellants notice. (Paragraph 5.6 provides for certain documents to be filed with an appellants notice.) Amendment of appeal notice 5.25 An appeal notice may be amended with permission. Such an application to amend and any application in opposition will normally be dealt with at the hearing unless that course would cause unnecessary expense or delay in which case a request should be made for the application to amend to be heard in advance. PROCEDURE AFTER PERMISSION IS OBTAINED 6.1 This paragraph sets out the procedure where: (1) (2) permission to appeal is given by the appeal court; or the appellants notice is filed in the appeal court and(a) (b) 6.2 permission was given by the lower court; or permission is not required.
If the appeal court gives permission to appeal, copies of all the documents referred to at paragraph 5.6 must be served on the respondents within 7 days of receiving the order giving permission to appeal. (Part 6 (service of documents) provides rules on service.)
6.3
The appeal court will send the parties(1) notification of: (a) (b) (2) (3) the date of the hearing or the period of time (the listing window) during which the appeal is likely to be heard; and in the Court of Appeal, the date by which the appeal will be heard (the hear by date);
where permission is granted by the appeal court a copy of the order giving permission to appeal; and any other directions given by the court.
Appeal Questionnaire in the Court of Appeal
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6.4 6.5
The Court of Appeal will send an Appeal Questionnaire to the appellant when it notifies him of the matters referred to in paragraph 6.3. The appellant must complete and lodge the Appeal Questionnaire within 14 days of the date of the letter of notification of the matters in paragraph 6.3. The Listing Questionaire must contain: (1) (2) if the appellant is legally represented, the advocates time estimate for the hearing of the appeal; where a transcript of evidence is relevant to the appeal, confirmation that a transcript of evidence has been ordered where this is not already in the bundle of documents; confirmation that copies of the appeal bundle are being prepared and will be held ready for the use of the Court of Appeal and an undertaking that they will be supplied to the court on request. For the purpose of these bundles photocopies of the transcripts will be accepted confirmation that copies of the Appeal Questionnaire and the appeal bundle have been served on the respondents and the date of that service;
(3)
(4)
Time estimates 6.6 The time estimate included in an Appeal Questionnaire must be that of the advocate who will argue the appeal. It should exclude the time required by the court to give judgment. If the respondent disagrees with the time estimate, the respondent must inform the court within 7 days of receipt of the Appeal Questionnaire . In the absence of such notification the respondent will be deemed to have accepted the estimate proposed on behalf of the appellant.
RESPONDENT 7.1 A respondent who wishes to ask the appeal court to vary the order of the lower court in any way must appeal and permission will be required on the same basis as for an appellant. A respondent who wishes only to request that the appeal court upholds the judgment or order of the lower court whether for the reasons given in the lower court or otherwise does not make an appeal and does not therefore require permission to appeal in accordance with rule 52.3(1). A respondent who wishes to appeal or who wishes to ask the appeal court to uphold the order of the lower court for reasons different from or additional to those given by the lower court must file a respondents notice.
7.2
7.3
7.3A Paragraphs 5.1A and 5.1B of this practice direction also apply to a respondent and a respondents notice. Time limits 7.4 7.5 The time limits for filing a respondents notice are set out in rule 52.5 (4) and (5). Where an extension of time is required the extension must be requested in the respondents notice and the reasons why the respondent failed to act within the specified time must be included.
Respondents skeleton argument 7.6 Except where paragraph 7.7A applies, the respondent must provide a skeleton argument for the court where he proposes to address arguments to the court. The respondents skeleton argument may be included within a respondents notice. Where a skeleton argument is
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included within a respondents notice it will not form part of the notice for the purposes of rule 52.8. 7.7 Where the skeleton argument is not included within a respondents notice it should be lodged and served no later than 21 days after the respondent receives the appellants skeleton argument.
7.7A Where the appeal relates to a claim allocated to the small claims track the respondent may provide a skeleton argument but is not required to do so. (Rule 52.5(4) sets out the period for filing and serving a respondents notice) Content of skeleton arguments 7.8 A respondents skeleton argument must conform to the directions at paragraphs 5.10 and 5.11 above with any necessary modifications. It should, where appropriate, answer the arguments set out in the appellants skeleton argument.
Applications within respondents notices 7.9 A respondent may include an application within a respondents notice in accordance with paragraph 5.5 above.
Filing respondents notices and skeleton arguments 7.10 The respondent must lodge the following documents with his respondents notice in every case: (1) (2) (3) two additional copies of the respondents notice for the appeal court one copy each for the appellant and any other respondents; and two copies of any skeleton arguments.
7.11 If the respondent does not file a respondents notice, he will not be entitled, except with the permission of the court, to rely on any ground not relied on in the lower court. 7.12 If the respondent wishes to rely on any documents in addition to those filed by the appellant he must prepare a supplemental bundle and lodge it at the appeal court with his respondents notice. He must serve a copy of the supplemental bundle at the same time as serving the respondents notice on the persons required to be served in accordance with rule 52.5(6). 7.13 The respondents notice and any skeleton argument must be served in accordance 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 8.2 This paragraph applies where an appeal lies to a High Court judge from the decision of a county court or a district judge of the High Court. The following table sets out the following venues for each Circuit (a) (b) Appeal centres court centres where appeals to which this paragraph applies may be managed and heard. Hearing only centres court centres where appeals to which this paragraph 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 appellants notice must be filed in the District Registry at an appeal centre on the Circuit in which the lower court is situated. Unless the appeal court otherwise orders the appeal will be managed and heard at that appeal centre. The appeal court may transfer an appeal to another appeal centre (whether or not on the same Circuit). In deciding whether to do so the court will have regard to the criteria in rule 30.3 (criteria for a transfer order). The appeal court may do so either on application by a party or of its own initiative. Where an appeal is transferred under this paragraph, notice of transfer must be served on every person on whom the appellants notice has been served. An appeal may not be transferred to an appeal centre on another Circuit, either for management or hearing, unless the consent of a Presiding Judge of that Circuit has been obtained. Directions may be given for (a) (c) an appeal to be heard at a hearing only centre; or an application in an appeal to be heard at any other venue
8.4
8.5
instead of at the appeal centre managing the appeal. 8.6 Unless a direction has been made under 8.5, any application in the appeal must be made at the appeal centre where the appeal is being managed. A respondents notice must be filed at the appeal centre where the appellants notice was filed unless the appeal has been transferred to another appeal centre, in which case it must be filed at that appeal centre. The appeal court may adopt all or any part of the procedure set out in paragraphs 6.4 to 6.6.
8.7
8.8 8.9
(1)
Appeals and applications for permission to appeal will be heard by a 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 Act 1981 to act as a judge of the High Court; Other applications in the appeal may be heard and directions in the appeal may be given either by a High Court Judge or by any person authorised under section 9 (1) of the Supreme Court Act 1981 to act as a judge of the High Court.
(2)
Appeals to a judge of a county court from a district judge 8A.1 The Designated Civil Judge in Consultation with his Presiding Judges has responsibility for allocating appeals from decisions of district judges to Circuit judges
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Re-hearings 9.1 The hearing of an appeal will be a re-hearing (as opposed to a review of the decision of the lower court) if the appeal is from the decision of a minister, person or other body and the minister, person or other body (a) (b) did not hold a hearing to come to that decision; or held a hearing to come to that decision, but the procedure adopted 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 52.14 the Court of Appeal may give such additional directions as are considered appropriate. Applications 11.1 Where a party to an appeal makes an application whether in an appeal notice or by Part 23 application notice, the provisions of Part 23 will apply. 11.2 The applicant must file the following documents with the notice (1) (2) (3) one additional copy of the application notice for the appeal court and one copy for each of the respondents; where applicable a sealed copy of the order which is the subject of the main appeal; a bundle of documents in support which should include: (a) (b) (c) the Part 23 application notice any witness statements and affidavits filed in support of the application notice the documents specified in paragraph 5.6 (6)[5.6 (7)]above in so far as they have not already been filed with the appellants notice.
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 a child 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 or appeal be dismissed. Such a request must contain a statement that the appellant is not a child or patient. If such a request is granted it will usually be on the basis that the appellant pays the costs of the application or appeal. 12.3 If the appellant wishes to have the application or appeal dismissed without costs, his request must be accompanied by a consent signed by the respondent or his legal representative stating that the respondent is not a child or patient and consents to the dismissal of the application or appeal without costs. 12.4 Where a settlement has been reached disposing of the application or appeal, the parties may make a joint request to the court stating that none of them is a child or patient, and asking that the application or appeal be dismissed by consent. If the request is granted the application or 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 or appeal unless satisfied that the decision of the lower court was wrong. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should state that none of the parties is a child or patient and set out the relevant history of the proceedings and the matters relied on as justifying the proposed order and be accompanied by a copy of the proposed order. Procedure for structured settlements and consent orders involving a child or patient 13.2 Settlements relating to appeals and applications where one of the parties is a child or a patient; and structured settlements which are agreed upon at the appeal stage require the courts approval. Child 13.3 In cases involving a child a copy of the proposed order signed by the parties solicitors should be sent to the appeal court, together with an opinion 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 the documents filed should also include any relevant reports prepared for the Court of Protection and a document evidencing formal approval by that court where required. Structured settlements 13.5 Where a structured settlement has been negotiated in a case which is under appeal the documents filed should include those which would be required in the case of a structured settlement dealt with at first instance. Details can be found in the Practice Direction which supplements CPR Part 40. SUMMARY ASSESSMENT OF COSTS 14.1 Costs are likely to be assessed by way of summary assessment at the following hearings: (1) (2) (3) (4) (5) contested directions hearings; applications for permission to appeal at which the respondent is present; dismissal list hearings in the Court of Appeal at which the respondent is present; appeals from case management decisions; and appeals listed for less than one day.
14.2 Parties attending any of the hearings referred to in paragraph 13.1 should 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 service is required by the CPR or this practice direction it must be effected by the parties.
Master in the Court of Appeal, Civil Division 15.2 When the Head of the Civil Appeals Office acts in a judicial capacity pursuant to rule 52.16, he shall be known as Master. Other eligible officers may also be designated by the Master of the Rolls to exercise judicial authority under rule 52.16 and shall then be known as Deputy Masters. Judicial Review Appeals 15.3 Where the Court of appeal gives permission to apply for judicial review under rule 52.15(3) the court may, hear the application for judicial review. This will be rare, but may be appropriate where, for example, the High Court is bound by authority or for some other reason, an appeal to the Court of Appeal will be inevitable. 15.4 Paragraphs 5.6 and 5.19 above do not apply to cases where the appeal notice seeks permission to appeal a refusal to give permission to apply for judicial review. In such cases the following documents must be filed with the appellants notice: (1) (2) (3) (4) (5) (6) (7) (8) (9) one additional copy of the appellants notice for the Court of Appeal one copy of the appellants notice for each of the respondents to be sealed and returned the order refusing permission to apply for judicial review Form 86A; a copy of the original decision which is the subject of the application to the High Court any witness statements or affidavits in support of any application included in the appellants notice; a copy of the bundle of documents used in the High Court the skeleton argument relied on in the High Court; and a transcript of the judgment.
15.5 The time for filing an appellants notice in these circumstances is set out in rule 52.15(1). The arrangements for service on the respondent in paragraph 5.24 apply. 15.6 Where it is not possible to file all these documents, the appellant must indicate which documents have not yet been filed and the reasons why they are not currently available. Listing and hear-by dates 15.7 The management of the list will be dealt with by the listing officer under the 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 and other applications. The appeals list appeals where permission to appeal has been given or where an appeal lies without permission being required.
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The expedited list appeals or applications where the Court of Appeal has directed an expedited hearing. The current practice of the Court of Appeal is summarised in Unilever plc v Chefaro Proprietaries 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 by judicial direction. The fixtures list where a hearing date for the appeal is fixed in advance. The second fixtures list if an appeal is designated as a second fixture it means that a hearing date is arranged in advance on the express basis that the list is fully booked for the period in question and therefore the case will be heard only if a suitable gap occurs in the list. The short-warned list appeals which the court considers may be prepared for the hearing by an advocate other than the one originally instructed with a half days notice, or, if the court so directs, 48 hours notice.
15.9 Once an appeal is listed for hearing from the short warned list it becomes the immediate professional duty of the advocate instructed in the appeal, if he is unable to appear at the hearing, to take all practicable measures to ensure that his lay client is represented at the hearing by an advocate who is fully instructed and able to argue the appeal. 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 the Special Fixtures List in the Court of Appeal. Reference should be made to the terms of the Practice Note (Court of Appeal, Civil Division: Short Warned List and Special Fixtures List) (2001) Times, 27 February itself but the attention of practitioners is drawn to the following provisions in particular. Short Warned List Where an appeal had been assigned to the Short Warned List the time for filing any outstanding bundles might be abridged. It is the duty of solicitors to inform both their advocate and their client that the appeal has been assigned to the Short Warned List, as soon as notification is received from the Civil Appeals Office. Any application for the appeal to be removed from the Short Warned List had to be made in writing within 14 days of notification. A supervising Lord Justice, or the Master, would consider any such application, which would be granted only for the most compelling reasons. When an appeal is called for hearing and any partys advocate of first choice is not available, a substitute advocate had to be instructed immediately. Once the appeal was listed, under these arrangements, it became the immediate professional duty of the advocate instructed in the appeal, if he was unable to appear at the hearing, to take all practical measures to ensure that his lay client was represented at the hearing, by an advocate who was fully instructed and 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 require special listing arrangements, such as the need to list a number of cases before the same constitution, in a particular order, during a particular period or at a given 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 counsels availability, where such special arrangements were engaged, the special requirements of the court would necessarily prevail. Requests for directions 15.10 To ensure that all requests for directions are centrally monitored and correctly allocated, all requests for directions or rulings (whether relating to listing or any other matters) should be made to the Civil Appeals Office. Those seeking directions or rulings must not approach the supervising 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 the appellants advocate shall file, after consulting his opponent, for the purpose of pre-reading by the court, one bundle containing photocopies of the principal authorities upon which each side will rely at the hearing, with the relevant passages marked. There will in general be no need to include authorities for propositions not in dispute. This bundle should be made available 28 days before the hearing, unless the period of notice of the hearing is less than 28 days in which case the bundle should be filed immediately. Such bundles should not normally contain more than 10 authorities. If any party intends, during the hearing to refer to other authorities these may be included in a second agreed bundle to be filed by the parties at the hearing. Alternatively, and in place of the second bundle only, a list of authorities and text may be delivered to the office of the Head Usher of the Court of Appeal no later than 5.30pm on the last working day before the hearing is to commence. NOTES CPR PD 52 [4] Decisions on applications for permission by appeal are at best only of persuasive authority and the court does not encourage reference to such cases: Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752,[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 be made available to the parties legal advisers by 4 p.m. on the second working day before judgment is due to be pronounced on the condition that the contents are not communicated to the parties themselves until one hour before the listed time for pronouncement of judgment. 15.13 The judgment is made available to legal advisers primarily to enable them to consider the judgment and decide what consequential orders they should seek. The condition is imposed to prevent the outcome of the case being publicly reported before judgment is given, since the judgment is confidential until then. Every page of the judgment will be marked Unapproved judgment: No permission is given to copy or use in court. These words carry the authority of the court. 15.14 Where a party is not legally represented a copy of the judgment will be made available to him at the same time as to legal advisers. It must be treated 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. 2. What are the risks of a sentence being increased if a defendant appeals? If a person who has been convicted in the magistrates court is dissatisfied with the decision of the Crown court or Divisional Court is there any further right of appeal? Can the prosecution appeal against an acquittal in (1) the magistrates court? (2) the Crown Court? Is it possible to appeal directly to the House of Lords bypassing the Court of Appeal, and if so on what grounds? Is this as of right?
3. 4.

LLB_ELS_Ch10(08/01)
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LOCAL G OVERNMENT ; DELEGATED LEGISLATION; OTHER INSTITUTIONS OF ADMINISTRATIVE LAW ; REFORM OF ADMINISTRATIVE LAW

www.spr-law.com
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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C ONSTITUTIONAL
AND
A DMINISTRATIVE L AW
LOCAL G OVERNMENT ; D ELEGATED LEGISLATION; OTHER INSTITUTIONS OF ADMINISTRATIVE LAW ; REFORM OF ADMINISTRATIVE LAW INTRODUCTION
Local government has been described by one (presumably over-enthusiastic!) commentator as the constitutional issue of the 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 unitary constitution, i.e. all power resides in Parliament it raises the issue of central versus local administration (or government) it raises questions as to the proper role and function of local authorities it raises questions as to the value of elections after all, local government is the only elected body other than Parliament. Local government has been subject to major changes since 1979 and this trend is likely to continue as the Local Government Act 1992 has established the Local Government Commission with the duty to review and report to the Secretary of State on the structure, boundaries and electorate of local government. The Commission has just reported after a full scale review of the boundaries and structure of local government. The government has made it clear that it will act on the advice of the Commission, but equally that it expects an increasing move to so-called unitary authorities one body dealing with all local functions, as in the metropolitan areas. These reviews and proposals have been controversial, with little agreement on the proposed models. They have also varied considerably with area with some areas retaining a two-tier structure. The Commissions Report has recommended rather fewer boundary changes than expected.
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THE STRUCTURE OF LOCAL

GOVERNMENT
The structure of local government in England and Wales is the result of three Acts of Parliament: the London Government Act 1963 and the Local Government Acts 1972 and 1985.
T HE AUTHORITIES
The Local Government Act 1972, which came into effect in April 1974, abolished the existing county councils, borough councils, urban and rural district councils in England and Wales, and all parishes in Wales. The only survivals from the old system of local government, which had been established in the late nineteenth century, are the rural parishes in England with their parish councils or parish meetings. The 1972 Act divided England (outside Greater London) into thirty-nine administrative county councils. The thirty-nine counties are divided into 296 district councils. The Act permits the Crown to grant a Charter conferring on a district the status of a borough. A district authority may, therefore, be referred to as a district council or a borough council or, if granted city status, a city council. This varying terminology makes no difference, other than in some purely ceremonial matters, to the constitution and functioning of these district authorities. The 1972 Act also created six metropolitan county councils to cover the conurbations of Greater Manchester, Merseyside, South Yorkshire, West Yorkshire, Tyne and Wear, and the West Midlands. These six metropolitan counties were divided into thirty-six metropolitan district councils. However, the Local Government Act 1985 abolished the six metropolitan county councils (and the Greater London Council) and reallocated most of their functions to the metropolitan district councils. In the six metropolitan areas of England, and in Greater London, there is now, therefore, only one level of local government, unlike the position elsewhere in England. In Wales there are eight county councils and thirty-seven district councils. The Act abolished parishes in Wales and instead introduced a system of communities in each district, each community having a community meeting and some having a community council. In England the rural parishes were not abolished and continued to exist after 1 April 1974, and the Act contains powers by which new parishes may be created in former borough and urban district areas where the parish did not exist as a local government unit before 1974. Local government in London is the result of the London Government Act 1963 which created the Greater London Council and the thirty-two London borough councils, and the Local Government Act 1985 which abolished the Greater London Council, leaving the thirty-two borough councils as the single tier of local government in the Greater London area. Within the Greater London area, the City of London still remains a separate and distinct local government area with its
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own ancient and elaborate constitution of Lord Mayor, Court of Aldermen and elected Court of Common Council. Under earlier legislation, the initiative in proposing boundary changes to local government areas lay primarily in the hands of local authorities. The 1972 Act changed this by creating Local Government Boundary Commissions for England and Wales with the duty to keep the situation under constant review. The Commissioners make recommendations on boundary changes to the Home Secretary or the Secretary of State for Wales, who can give effect to them by Order. The Local Government Act 1992 abolished the Local Government Boundary Commission and replaced it by the Local Government Commission. It makes periodic reviews of electoral boundaries every 1015 years in order to reflect changing communities and to ensure effective and convenient local government. It was held in R v SECRETARY OF STATE FOR THE ENVIRONMENT EX P LANCASHIRE AND DERBYSHIRE CC that the Governments guidance to the Local Government Commissioners favouring unitary authorities (i.e. abolishing one tier) was ultra vires. In the event the proposals from the Commission are less radical than expected with single tier authorities only proposed in areas where they are likely to be less controversial. Local government in Scotland was not affected by the 1972 Act. In May 1975 a new system of nine regional councils and fifty-three district councils came into existence under the provisions of the Local Government (Scotland) Act 1975.
THE WORK OF LOCAL

GOVERNMENT
The functions of local government have changed dramatically in the last decade in that local authorities have increasingly been required, for example by The Local Government Act 1988 not to provide a service themselves, but through outside contractors tendering to do the work: the authorities are seen more as facilitators or regulators for example, the council house sales programme and the cuts in further and higher education. The county council is responsible for services which require large-scale planning over the whole of the county area (such as education, social services, highways, police, the fire service, libraries and refuse disposal). The district council is responsible for services which can be planned in greater detail for a smaller area (such as housing, public health and refuse collection). There is shared responsibility for museums, art galleries, parks and recreational facilities. Planning is a responsibility for both county and district council: the county council is responsible for the preparation of the structure plan and for county matters such as mineral
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development, development inconsistent with the fundamental provisions of the structure plan and development affecting certain principal roads the district council prepares the local plan for its area and deals with applications for planning permission except where they involve county matters. Even before the abolition of the six metropolitan county councils in 1986 it was the metropolitan district councils which were responsible in their areas for education, social services and libraries. Most of the other functions of the abolished county councils have been given to the metropolitan district councils, for example, functions connected with town and country planning, highways and road traffic and refuse disposal. Joint authorities consisting of councillors from the district councils have been established in each metropolitan area to provide such services as police, fire, civil defence and transport. In Greater London broadly the same pattern is followed, with the borough councils inheriting most of the functions of the abolished GLC. There is one major exception which is that the Police Authority for the Greater London (i.e. metropolitan) police area is not a joint authority made up of district councillors and magistrates but is a Minister of the Crown (the Home Secretary).
Think Point 1
Could the services now performed by local government be better performed by some other body? What advantages and disadvantages would there be in the event of such a change?
STATUS
All local authorities, with the exception of the City of London Corporation which is still a common law corporation, are statutory corporations, each with its own separate and distinct legal existence and capacity. They can act only within the express 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 legally sovereign Parliament, local authorities are subject to the will of Parliament expressed in legislation on all matters, such as their existence, composition, powers and functions.
LOCAL
GOVERNMENT FINANCE
Much of the legislative change and litigation over the last decade 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 and limit the amount charged if he considers that the new charge is excessive, a process introduced by the rate-capping measures of the Rates Act 1984.
C ENTRAL GOVERNMENT GRANTS

The revenue received by local authorities from the locality meets less than half of their expenditure. Approximately 56 per cent of local government expenditure is provided for by grants from the central government. Some grants are made for specific services such as the police, housing, roads, development schemes and re-location of population. However, most of the money provided by the central government is in the form of a general grant, known as the revenue support grant, which can be spent as the local authority chooses. The main structure is now in the Local Government and Housing Act 1989. As local government expenditure is so large, and so much of it is provided through central government grants, it is perhaps inevitable that a certain tension between local and central government is created as the latter seeks to ensure that the level of local government expenditure is consistent with its overall economic policy.
B ORROWING
Local taxation and general grants jointly provide current revenue. Local authorities also require money to purchase capital assets. If the asset is one with a long life, it would be unfair to place the entire burden on current revenue. Such revenue might also be simply inadequate without placing unacceptable demands upon the existing Charge-payers, and so borrowing is a regular method of financing new projects. Central control of such borrowing is not new, but the emphasis has changed from merely ensuring that a local authority has not entered upon excessive commitments, to
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ensuring that local government borrowing is consistent with the central governments overall management of the economy. Control over capital expenditure must now be seen in the light of Part VIII of the Local Government and Housing Act 1989. The money for capital expenditure may be obtained by issuing loan stock or by borrowing from the Public Works Loan Board.
E XPENDITURE
Local authorities are now statutory authorities, with the sole exception of the City of London, and they therefore have power to spend money only for such purposes as are authorised by Parliament. However, these purposes include what is reasonably incidental as well as what is expressly provided for: s.111 Local Government Act 1972, as amended by the Local Government and Housing Act 1989. Section 151 of the Act requires every local authority to make arrangements for the proper administration of its financial affairs and to make one of its officers responsible for the administration of those affairs. Whether this officer is called the treasurer or the director of finance he is not an ordinary servant of the council. Farwell J in ATTORNEY-GENERAL v WINTON [1906] 2 Ch 106 said that he owes a duty and stands in a fiduciary relationship to ratepayers. He cannot, therefore, plead the orders of the council as an excuse for an illegal expenditure of money.
T HE AUDIT SYSTEM
The system of auditing the accounts of local authorities is of special importance not only in local government itself but also in administrative law, as the audit is one of the mechanisms of judicial review. ROBERTS v HOPWOOD was only one case which arose from the audit of accounts. The audit system is the means whereby improper expenditure can not only be exposed, but charged personally to the councillors or officers responsible. The system of district audit and the office of district auditor date back to 1844. The Local Government Finance Act 1982 repealed the existing provisions relating to district audit (then found in the Local Government Act 1972). The 1982 Act established the Audit Commission to be responsible for auditing the accounts of a large number of public bodies, including local authorities. The Audit Commission is a body independent of the central government. It appoints the district auditor who will audit the accounts of a local authority. The auditor will be either an officer of the Commission or a firm of private accountants. The Commission is also responsible for studies into the economy, efficiency and effectiveness of local authority services and the impact thereon of statutory provisions and initiatives by the central government.
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An audit may be a normal, regular audit or it may be an extraordinary audit which the Audit Commission has power to order under s.22 of the 1982 Act. Section 17 of the Act provides that the accounts of a local authority at an ordinary audit are open to inspection, and any local government elector for the area may appear before the auditor, question him and make objections. If the auditor fails or declines to take the action available to him under ss.19 and 20, described below, the local government elector may take the matter to court himself. Section 19 empowers the auditor, where it appears to him that any 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 the Secretary of State. If the court grants the declaration it may also order those responsible for the expenditure to repay it to the council and, if the expenditure exceeds 2,000 and the person responsible is a councillor, order him to be disqualified from membership of a council for a stated period. But repayment or disqualification must not be ordered if the court is satisfied that he acted reasonably or in the belief that the expenditure was authorised by law. Section 20 provides that, where it appears to the auditor: (a) that a person has failed to bring into account any sum which should have been included and the failure has not been sanctioned by the Secretary of State, or (b) that a loss or deficiency has been incurred or caused by the wilful misconduct of any person, the auditor shall certify to that effect and the local authority may recover the amount certified. There is a right of appeal to the High Court for any person aggrieved in the circumstances of s.20. The court has a wide power to confirm, vary, or quash the certificate or give any certificate which the auditor could have given. A district auditor has to comply with a Code of Audit Practice drawn up by the Audit Commission and approved by Parliament (s.2(14)) of the 1982 Act but otherwise he performs an independent and quasi-judicial function. This means that the district auditor must act fairly, for example, by giving the affected members an opportunity to make representations before issuing a certificate under s.20. But in LLOYD v McMAHON [1987] 1 All ER 1118 (the case which arose from the refusal of Liverpool City Council to set a legal rate in 1985) the House of Lords held that the auditor was not obliged in every case to offer the affected members the opportunity for making oral representations. Since the auditor had given the appellants adequate notice of the case they had to 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 of Westminster City Council illustrates the work of the audit
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system. The report involved allegations about misspending large amounts of money in the sale of council homes in certain parts of the city. The report is controversial and may involve legal challenges before, or if, any application is made by the auditor to the court.
Think Point 2
Why has there been so much conflict between central and local government over the finance of local government?
CONTROL OF LOCAL AUTHORITIES

F INANCIAL CONTROL
As we have just seen, this is by audit.
M INISTERIAL CONTROL
The preceding pages have indicated a number of important central government controls over local authorities in the financial area over grants and local revenue raising and thus over expenditure. Non-financial controls take many forms, some of which are described now. The general provisions of statutes relating to local government services may vest general responsibility in a Minister of the Crown: the Education Reform Act 1988, for example, provides that the responsibility for promoting the education of the people of England and Wales and for ensuring the effective execution by local authorities of the national policy for providing a varied and comprehensive
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(i.e. wide) educational service in every area is vested in the Secretary of State. A statute may also provide that local authorities must submit proposals to the minister explaining how they will perform their statutory functions and obtain ministerial approval of these plans. Bye-laws made by a local authority have to be submitted to the minister for approval. The minister may have the power to make regulations which are binding on the local authority, for example, the power to prescribe standards for school buildings under the Education Reform Act 1988. Circulars distributed to local authorities by government departments perform a number of functions in the relationship of central and local government. They may be intended to impart technical information or to explain a statutory instrument more fully. Circulars may be used in place of delegated legislation. They may be a means by which the government department explains its policy to local authorities. The language used in circulars also varies. Some request, some invite and some clearly indicate what the government department expects local authorities to do. Circulars are important in most areas of local government activity, particularly so in town and country planning. Inspection of local government services by officials of the central government may take place. The practice dates back to the supervision by inspectors of the activities of the Boards of Guardians under the Poor Law Amendment Act 1834. The services now subject to regular inspection are fire, police, education and child welfare. Inspection serves two functions: to ensure the maintenance of standards and to give advice. Default powers are to be found in many standards and provide that a minister can himself take over the performance of a certain function, or direct another authority to undertake it, if he considers that the local authority is failing to perform its duties. The cost is charged to the defaulting authority. Clearly such powers will only be used as a last resort. Examples of default powers are to be seen in the Education Reform Act 1988 and the Housing Act 1980 in a number of forms but all with the same general effect. A statute may confer decision-making powers upon a minister. In town and country planning, a disappointed applicant for planning permission can appeal from the decision of the local planning authority to the Secretary of State. Objections made to a compulsory purchase order served by a local authority will go to a government department which will decide whether the order is to be confirmed or not. Statutes may give the central government control over the appointment, conditions and dismissal of local government officers. Although police officers are not strictly employees or officers of a local authority, the police service is a locally-based service and the Police Act 1964 as amended by the Police and Magistrates Courts Act 1994, provides
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notable examples of such central government control over the activities of Police Authorities in such matters.
P OLITICAL CONTROL
This, of course, is achieved through local elections.
JUDICIAL CONTROL
The courts have always played a part in the control of local authorities. The courts reviewed the administrative functions of the Justices of the Peace before the creation of local authorities in the nineteenth century and have continued to hear cases both by way of judicial review and on appeal. Statutes provide for appeals on many matters. The grounds of review and the remedies available will be covered in later Chapters. The courts, in reviewing the decisions of local authorities, consider the existence of legal authority, the correctness of the manner in which discretionary powers are exercised, and procedural correctness, which includes the rules of natural justice. In a series of cases the courts have entered as McEldowney puts it in a sensitive area of having to adjudicate between central and local government over matters involving the fundamental role of local authorities. In R v SECRETARY OF
STATE FOR THE ENVIRONMENT EX P NOTTINGHAMSHIRE COUNTY COUNCIL [1986] 2 WLR 1 the House of Lords were
reluctant to interfere in the discretion of the Secretary of State who was exercising his political judgement over the allocation of rate support grants. By contrast in BROMLEY LBC v GLC [1983] 1 AC 768 their Lordships held that the subsidy of the GLC to London Transport was unlawful. In HAMMERSMITH
AND FULHAM v SECRETARY OF STATE FOR THE ENVIRONMENT [1990] 3 All ER 589 the House of Lords considered whether the
poll-tax capping rules were lawful. It decided that the Secretary of State was free to set his own criteria even though differences between authorities based on political considerations might apply. Local authorities are also, of course, affected by the law of contract and tort.
T HE OMBUDSMAN PRINCIPLE IN
LOCAL GOVERNMENT
Part III of the Local Government Act 1974 established, from April 1974, a complaints system for local government in England and Wales. A Commission for Local Administration investigates complaints of maladministration by local authorities in England (with a separate Commission for Wales). The basis of this scheme is that a citizen who believes himself to be the victim of maladministration by local government authorities should enjoy the same right to have his complaint independently scrutinised as he already enjoys through the Parliamentary Commissioner in respect of alleged
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maladministration by central government. Scotland has its own Commission for Local Administration established by the Local Government (Scotland) Act 1975. The English Commission is an independent statutory body consisting of three Local Commissioners, each responsible for an area of England. (In Wales and Scotland there are single Commissioners.) The Commissioners are appointed by the Crown but are financed by local authorities and were responsible, not to Parliament, but to a body representative of local government in each country, to which they report. This body has now been abolished by the Local Government and Housing Act 1989. Formerly, complaints first had to be sent to a Local Councillor; since the 1989 amendments to the 1974 Act, most complaints are now sent directly to the Local Commissioners. The Local Commissioners can deal with complaints against any local authority (including its committees, members and officers), except a parish council, and also joint boards of local authorities. The complaint must be made in writing to the Commission stating the action alleged to constitute maladministration: s.26(2) 1974 Act. Like the Parliamentary Commissioner (see below), the Local Commissioners appear to accept many cases where there would be legal remedies where councillors with personal interests deal with planning applications, for example. Personnel matters and contractual and commercial transactions are excluded. Also excluded are complaints about the conduct, curriculum, internal organisation, management and discipline of schools and colleges maintained by a local education authority. Complaints could be considered of maladministration in other educational matters such as choice of school, medical and dental inspections or school transport.
JUSTICE published a review of the work of the Local
Commission in 1980 and was generally favourably impressed by the quality of the investigations, concluding that the system was functioning effectively. A number of improvements were suggested, including an extension of jurisdiction to cover commercial and contractual matters, allowing complaints to be made directly as well as through a councillor, and a recommendation that the findings of the Local Commissioner be made enforceable through the courts at the suit of the complainant, thereby providing a really effective remedy. The principle of direct access was supported by the Commissioners and is now available since the Local Government and Housing Act 1989, but they are not enthusiastic about legal enforcement because it might damage the atmosphere of confidence and goodwill with local authorities which the Commissions find invaluable. They prefer to rely on this goodwill and on the influence of public opinion. A Local Commissioner is subject to scrutiny by the courts (see
R v LOCAL COMMISSIONER EX PARTE EASTLEIGH BOROUGH COUNCIL [1988] QB 855 where the Commissioner had acted
without jurisdiction in questioning the merits of Council policy).
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BYE-LAWS
The power to make bye-laws is a form of delegated legislation and therefore depends upon statutory provision. Section 235 Local Government Act 1972 gives a general power to the councils of districts and of London boroughs to make byelaws for the good rule and government of the whole or any part of the district or borough ... and for the prevention and suppression of nuisances thereon. Power to make bye-laws is also found in statutes dealing with particular local government services such as the Public Health Act 1936 and the Highways Act 1980. Where there is such a specific bye-law-making power the general power given by the Local Government Act cannot be used. It is a residuary power only. The procedure for making bye-laws under the Local Government Act is set out in s.236. The main features of this procedure are that at least one month before application is made to the Home Secretary for confirmation of the bye-laws, notice of the intention to apply for confirmation must be given in one or more local newspapers and, for that month, a copy of the bye-laws must be deposited at the offices of the authority and be open to public inspection. The Home Office may confirm, or refuse to confirm, any byelaws. In practice, bye-laws will have been submitted in draft and informal discussions will probably have taken place between the local authority and the government department. The Home Office issues sets of model bye-laws on particular topics. Confirmation is not usually given to those which depart from them unless strong local reasons can justify the variation. A bye-law is not effective until confirmed. Section 226 provides that a copy of the bye-laws, when confirmed, must be printed and deposited at the offices of the authority and be open to public inspection. Copies of the bye-laws may be purchased.
VALIDITY OF BYE -LAWS

Bye-laws may provide that persons contravening them shall be liable on summary conviction to a fine not exceeding 20 and a further fine not exceeding 5 a day for a continuing offence (or the sums fixed by the particular statute). It is open to any person to institute proceedings for breach of a bye-law unless the statute under which it is made restricts the right to prosecute. An injunction may be sought to restrain a breach of the bye-laws. This may be particularly important where the specified penalties do not discourage a continuing disregard of them. If a person is prosecuted for a breach of a bye-law he may argue its invalidity as a defence. In addition to having been made in the manner prescribed by the enabling statute, a byelaw, 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 law beyond that contemplated or authorised by the enabling statute and be reasonable.
CONCLUSION
As a result of the changes we have seen in the functions, finance, audit, and central government control of local government even to the extent of abolishing a tier of local government it is suggested that there has been a fundamental shift in the relationship between central and local government. The current proposals of the Local Government Commission relating to unitary authorities are likely to lead, it is claimed by commentators, to more quangos, joint authorities and commissions appointed by central government. This again raises questions as to local accountability. These changes illustrate the problems with such a relationship within our constitutional framework, and raise further questions as to the value and work of local authorities, especially within the context of the developing role of the European Union. The constitutional position of local government is further affected by the devolution of legislative power to a Scottish Parliament and administrative power to a Welsh Assembly. In addition the Northern Ireland Assembly is being established.
D EFINITION
LEGISLATION
OF DELEGATED
Because all the necessary rules which must have the force of law cannot be made in Parliament, powers of legislation are conferred by Parliament upon other bodies, e.g. Ministers of the Crown, local authorities, nationalised industries and professional bodies. The term delegated, or subordinate, legislation is used to describe legislation made by a body other than 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 be used interchangeably. This delegation of power to make rules which have the force of law has a long history and the special feature of twentieth-century delegated legislation is its volume and 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, but the most important type of delegated legislation is the statutory instrument made by the Queen in Council or by a Minister of the Crown. Section 1 of the Statutory Instruments Act 1946 defines statutory instruments as being: Orders in Council made under the authority of a statute ministerial rules, regulations, orders or directions which the enabling statute states are to be made by statutory instrument
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rules to be made in the future under the authority of statutes passed before 1948 and to which the Rules Publication Act 1893 applied. Section 2 of the 1946 Act provides for the numbering of statutory instruments and for their publication and sale. Section 4(1) provides that where an instrument must be laid before Parliament after being made, it must be laid before it comes into operation. However, if it is essential for the instrument to become operative at once, the reason must be notified forthwith to the Lord Chancellor and to the Speaker. Section 4(2) provides that every statutory instrument must bear on its face a date on which the instrument came, or will come, into effect.
T HE USES OF DELEGATED
LEGISLATION
To provide the technical regulations necessary for the fulfilment of schemes the general principles of which are contained in the parent Act, e.g. the Public Health Act 1961 and the building regulations made thereunder; the Road Traffic Act 1972 and regulations for the use of motor vehicles on the road, their construction and equipment made thereunder. To allow the government to respond to a changing situation, such as the introduction of new manufacturing techniques or the production of a new product, without having to seek new legislative powers in a statute every time the situation changes. For example, the Control of Pollution Act 1974 gives authority for regulations to be made to limit noise from plant and machinery. The minister, therefore, has the power to respond to such changes as the invention of new machines and to technological advances in noise reduction technique without having to introduce a new bill into Parliament. Delegated legislation enables future developments, which may be foreseen but are not definable at the time of the passing of the empowering Act, to be dealt with at the appropriate time in the future. To confer extensive powers upon the government to deal with 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 a convenient time or to continue the life of an Act which would otherwise have expired. To adapt or modify existing Acts of Parliament. Such a provision is known as a Henry VIII clause and is now usually used only to enable the detailed provisions of statutes 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 of a Henry VIII clause which is not confined to details.
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The Deregulation Act 1994 gives wide powers to ministers to repeal many regulatory measures without primary legislation, a proposal which has been much criticised as a further limitation on parliaments powers.
T HE REASONS FOR DELEGATED

LEGISLATION
Pressure on parliamentary time. The two Houses are not competent to deal with the details and technicalities to be found in most delegated legislation. The need for a government department to be able to adapt with necessary speed and flexibility to new situations such as changes in products and manufacturing or in economic circumstances. The need for the government to be able to deal with emergency situations in war-time and peace-time. Administrative convenience. Local conditions vary, and local government bye-laws are able to take account of this.
T HE SCRUTINY OF STATUTORY
INSTRUMENTS PUBLICATION
Statutory instruments are published and sold by Her Majestys Stationery Office. Collected volumes of statutory instruments are published annually.
C ONSULTATION
When consultation works well it solves many of the problems associated with delegated legislation, in that Parliament concerns itself with the general principles while the details are left to government departments and the interests affected. Consultation is in many cases a political necessity and some bodies 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 was held not to amount to a breach of natural justice. The Lord Chancellor held that many of those affected by the legislation are never consulted in the process of enacting; yet they have no remedy. There may also be a statutory requirement to consult contained in the enabling Act. The requirement may be to consult a specified body or to consult at the ministers discretion or both, e.g. s.9 of the Public Health Act 1961 requires that the minister shall consult the Building Regulations Advisory Committee and other such bodies as appear to him to be representative of the interests concerned when making
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building regulations. There is no general requirement to give advance notice of the making of statutory instruments as there was when the Rules Publication Act was in force between 1893 and 1946.
PARLIAMENTARY SCRUTINY
Here there is a problem of balance: the scrutiny must be neither too heavy (this would defeat the purpose of delegated legislation) not too light (which might lead to abuse). There are three forms of parliamentary scrutiny. Examination of the nature and scope of the legislative power to be delegated when the parent Act is a bill and is proceeding through Parliament. Usually the enabling Act provides for the statutory instrument to be laid before Parliament in one of the following four ways: to be laid subject to annulment within forty days the negative resolution procedure Under the negative resolution procedure the instrument becomes effective either when made or on the date specified, but may be objected to by means of a prayer. If the House accepts the prayer the instrument will be withdrawn. Because of the pressure on parliamentary time, few prayers against statutory instruments are actually debated in the Commons. Provision has, therefore, been made for statutory instruments against which a negative resolution has been moved to be debated on their merits by a standing committee of the House of Commons. After this consideration a vote on the prayer for annulment may be taken in the whole House without further debate. This procedure can only be invoked at the instance of a minister and can be blocked if twenty or more MPs object. A recent example of a major change introduced by the negative resolution procedure was the decision not to allow an annual parliamentary debate on the Civil List. On 24 July, 1990 Prime Minister Thatcher made a statement in the Commons that a 10-year agreement had been made on Royal salary levels and that details of future spending will be kept secret until 2001, unless the monarchy needs more money in the meantime. The move went through Parliament by a statutory instrument on a negative resolution, with the result that MPs did not debate it (Guardian, 10 July 1992). to be laid subject to an affirmative resolution The affirmative resolution procedure is reserved for the most important instruments. Either the statutory instrument will become effective only when approved by both Houses or it may become effective when made, or on a specified date, but will have to be approved within a specified period or else cease to have further effect.
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to be laid in draft The draft may either have to be affirmatively approved or 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 terms of the enabling Act. Sometimes there is no mention of a laying requirement. The third form of parliamentary scrutiny is through parliamentary committees. The House of Lords had a Special Orders Committee (established 1925) which examined those instruments which were subject to affirmative resolution. In 1944 the House of Commons established its Select Committee on Statutory Instruments whose terms of reference required it to consider instruments laid or laid in draft before the House and to draw the attention of the House to instruments on any of the following grounds: that it imposes a tax or charge that it is made in pursuance of an enactment containing specific provisions excluding it from challenge in the courts that it purports to have retrospective effect where the enabling Act confers no express authority so to provide that its form or content call for elucidation that there has been unjustifiable delay in its publication or in its laying before Parliament or in sending notification to the Speaker when the instrument comes into effect before it is laid that it gives rise to doubts whether it is intra vires or it appears to make unusual or unexpected use of the powers 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 was established, having the terms of reference and the functions of the two existing committees. The Joint Select Committee has seven members from each House and its chairman is an Opposition MP. Before drawing Parliaments attention to a statutory instrument on any of the above grounds the Committee must give an opportunity to the department concerned to give an explanation orally or in writing. The Joint Committee is not concerned with policies or with the merits of the instruments but is confined to technicalities. The mere existence of the Joint Committee is a potential check, particularly as it has the power to call for explanations from the department with which it has established good relations. The Joint Committee makes an annual report to Parliament and a special report where necessary.
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JUDICIAL SCRUTINY
The courts are not confined to the interpretation of delegated legislation when it comes before them. The purported exercise of statutory power will be void if it is ultra vires (beyond the powers) the person who exercises it and in this there is a fundamental difference between an Act of Parliament and a piece of delegated legislation. There are two grounds on which the courts may hold delegated legislation to be void: the procedural and the substantive. Procedural ultra vires Where the enabling Act requires a certain procedure to be followed in the making of delegated legislation, the delegated legislation may be held void, wholly or in part, if that procedure is not followed. But not all procedural errors will invalidate a regulation, as there is a distinction between requirements which are mandatory, i.e. which must be followed, and requirements which are directory, i.e. which ought to be followed but failure to do so will not be fatal to the validity of the instrument. For example, where a statute states that a minister, before making a statutory instrument, is required to consult unnamed groups or organisations appearing to him to be representative of the interests affected, the minister has discretion in whom to consult, discretion which he must exercise in good faith. If he does decide to consult a group, effective consultation with that group will be mandatory. Further, in some circumstances (e.g. a statutory scheme giving local authorities responsibility for day-to-day administration coupled with the existence of obvious representative bodies such as the associations of local authorities) consultation will be mandatory even if no specific group is named. Publication of a statutory instrument as required by the Statutory Instruments Act 1946 appears to be directory only because s.3(2) of the Act makes non-publication of the instrument a defence if someone is prosecuted for noncompliance with the instrument: see R v SHEER METALCRAFT [1954] 1 QB 586. (The prosecution can still succeed if it can establish that, in the absence of publication, reasonable steps were taken to publicise the existence of the instrument.) The general opinion is that a failure to lay an instrument before Parliament is a directory mistake only, e.g. where the 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 of statutory 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 what amounted to a tax on the company.
CRITICISM OF DELEGATED
LEGISLATION
Although the inevitability of delegated legislation is generally accepted, critics are concerned with the effectiveness of scrutiny. Todays criticisms are not usually as forceful as Lord Hewarts in The New Despotism published in 1929. His attack on its constitutional propriety led to the establishment of the Committee of Ministers Powers (Donoughmore) in 1929. Although the Committee did not find any abuse of the system of delegated legislation it made a number of important recommendations, some of which were implemented by the Statutory Instruments Act 1946. Critics today claim there is a tendency to introduce regulations rather than statutes. For example, the Child Support Act 1991 contains 100 regulation-making powers in its 58 sections, although only 12 are subject to the affirmative resolution procedure which at least has the merit of a guaranteed vote on the floor of the House on the substance of the matter. In a Lords debate on the governments legislative programme Lord Simon of Glaisdale saw a tendency for aggrandisement of the executive at the expense of both Parliament and individual rights (Hansard Col. 747, 22 December 1991). Specific criticisms are as follows: the sheer bulk of delegated legislation makes it difficult to be aware of regulations individual officials are being given more power to make decisions since, increasingly, appeals are to administrative tribunals rather than to courts a tendency for statutory instruments to become general in character thus leaving details to be filled in later by departmental circulars this negates the principle that Parliament should supervise matters of policy and principle. Consider also the growing influence of documents not technically having the force or character of law, but which do have a considerable effect on how central and local government administration actually works and may also affect private businesses and individuals, e.g.: ministerial circulars codes of practice such as those on labour relations and health and safety at work extra-statutory concessions made by the Inland Revenue and the Customs and Excise administrative rules such as the Immigration Rules made under the Immigration Act 1971 but not contained in a statutory instrument.
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THE
SECONDARY LEGISLATION OF THE EUROPEAN C OMMUNITIES
The directly applicable law of the European Communities made in the form of regulations cannot be regarded as delegated legislation for the reasons listed below. It is made in Brussels by the Council of Ministers and the Commission and, when made, is automatically incorporated into the domestic law of the member states without any national process of adoption or incorporation. The European Communities Act 1972, which provides for the reception in the United Kingdom of directly applicable law, makes no provision for parliamentary scrutiny of such law. The European Court of Justice in Luxembourg has called this directly applicable law autonomous legislation, deriving from the treaties which established the Communities and not from the legislation of any member state. The Court of Justice has emphasised in many cases that EC law must take precedence over the domestic law of the member states when the two come into conflict so that Community law is the same throughout the Community. The European Communities Act provides that the courts in the United Kingdom have to follow the decisions and principles of the Court of Justice on matters of Community law such as the validity and meaning of Community regulations and directives. The courts in the United Kingdom, therefore, do not have a free hand to determine their validity as they do with British delegated legislation, because Community secondary legislation is to be judged by principles of Community law and not of domestic law. The non-directly applicable Community law made in the form of directives, which state an objective to be attained while leaving the member states to make their own arrangements for implementing the directive, is applied in the United Kingdom through statutory instruments as provided for in s.2(2) of the European Communities Act.
TRIBUNALS
INTRODUCTION
The establishment of a large number of administrative tribunals by statute has been a parallel development to the increased use of delegated legislation. Both are consequences of the growth of government activity in economic and social policy. The tribunals vary considerably in composition, function and procedure. Most tribunals deal with disagreements which arise between an individual and an officer of a government department, for example:
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disputes about such matters as entitlement to unemployment benefit, industrial injuries benefit, or income support are resolved by the Social Security Appeal Tribunals established by the Health and Social Services and Social Security Adjudication Act 1983 to combine the work previously performed by the National Insurance Tribunals and the Supplementary Benefit Appeal Tribunals in their respective fields. (The Social Security Appeal Tribunals are local and hear appeals from the decisions of adjudication officers.) disputes about an assessment of tax are resolved by the Income Tax Tribunals, i.e. the General Commissioners, and the Special Commissioners, for income tax disputes about the adequacy of compensation for the compulsory purchase of property are resolved by the Lands Tribunal. Some tribunals deal with disagreements between private individuals, for example: disputes between landlord and tenant about the rent of rented accommodation are determined by rent assessment committees and by rent tribunals industrial tribunals deal with a wide range of disagreements between employer and employee, including entitlement to redundancy payment and to compensation for unfair dismissal. Although the parties before these tribunals may be private parties, the disagreements arise out of statutory schemes or out of matters, such as housing, in which the government has a strong interest. There are a small number of tribunals which have regulatory functions and are as much administrative bodies as adjudicating tribunals, e.g. the licensing authorities for public service vehicles and goods vehicles. Note: We are not dealing here with tribunals of a private character, i.e. domestic tribunals: the disciplinary committees of trade unions, professional bodies, clubs, and sporting organisations such as the Football Association or the Jockey Club.
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COURTS AND TRIBUNALS

There is no clear distinction between them. Both have a permanent existence and both hear and determine a dispute. Both come to an independent decision after establishing the facts and applying the relevant law. A few tribunals are, however, policy oriented which means that they are required to take government policy into account and may be given guidance or direction by the government. The Civil Aviation Authority is a notable example of this exceptional type of tribunal. The courts, although now established on a statutory basis, have a long historical tradition behind them while tribunals are all of recent statutory origin. Another distinction may be that the tribunals are specialised bodies dealing with a restricted subject matter while courts deal with a wide range of legal matters. This is true, but the idea of specialisation is not unknown to the High Court. Probably the most significant distinction to be drawn is the fact that a court will be presided over by a judge while a tribunal will be made up of laymen with a legally-qualified person as chairman. The Restrictive Practices Court is, and the National Industrial Relations Court was, a statutory body with a very specialised jurisdiction. When they were established, in 1956 and 1972 respectively, they were called courts rather than tribunals because of the presence of a High Court judge. On the other hand, the Employment Appeal Tribunal, established in 1976 to replace the National Industrial Relations Court, is called a tribunal although it is presided over by a High Court judge and performs many of the functions of its predecessor, e.g. hearing appeals on points of law from the industrial tribunals.
REASONS FOR THE ESTABLISHMENT OF TRIBUNALS

The need for an independent adjudication of disputes while preserving the close connection between the work of the tribunal and the work of a government department. Hence the 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 or cheapness, and formality might discourage people from taking their cases to the tribunals. Doubts as to the suitability of the ordinary courts. Apart from the second and third points above, these doubts included the suitability of the judicial methods of statutory interpretation and the judicial system of precedent. The number of cases decided would be too many for the ordinary courts to handle. This is decisive. Tribunals deal
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with approximately 200,000 cases annually. The great majority are decided on their own facts and few cases involve the consideration of a difficult point of law. To have a highly trained, expensive judge to deal with these cases would be a waste of resources.
Think Point 3
List the main differences between courts and tribunals.
T HE COMMITTEE ON A DMINISTRATIVE TRIBUNALS AND INQUIRIES

This Committee, under the chairmanship of Sir Oliver Franks (now Lord Franks) was established in 1955 as a result of the Crichel Down affair, although Crichel Down was not concerned with either tribunals or inquiries. The Committees terms of reference required it to consider and make recommendations on (a) The constitution and working of tribunals other than the ordinary courts of law, constituted under any Act of Parliament by a Minister of the Crown for the purpose of a Ministers functions. In addition to a number of detailed recommendations, the Committee reached the following general conclusions about the tribunal system which, in the years prior to the establishment of the Committee, had been much criticised. The Committee acknowledged the merits of tribunals and the contribution made to the preservation of the ordinary judicial system. It did not recommend any general transfer
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of functions from tribunals to the courts, but did think that a decision should be entrusted to a court rather than to a tribunal in the absence of special considerations which make a tribunal more suitable. These special considerations would be the reasons examined above. Tribunals should be regarded as part of the machinery of justice 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 the constitution and working of tribunals under constant review. The Franks Committee produced its report in 1957 and this was quickly followed by the Tribunals and Inquiries Act 1958 which implemented many, but not all, of the Committees detailed recommendations. The 1958 Act and the Tribunals and Inquiries Act 1966 were consolidated in 1971 in the Tribunals and Inquiries Act of that year; all are now consolidated in the Tribunals and Inquiries Act 1992.
T HE OPERATION OF TRIBUNALS
Tribunals have not been established in accordance with a preconceived grand design. They have been set up ad hoc to deal with particular classes of issues which it is thought undesirable or unnecessary to confide either to the ordinary courts or to the organs of central or local government. The common feature of tribunals is that they make their decisions independently and are free from political influence.
APPOINTMENT OF MEMBERS
Members of tribunals are usually lay people who are providing a form of public service. The Franks Committee found that the quality of members was, on the whole, satisfactory. The members are appointed by the minister responsible for the scheme with which the tribunal is concerned. As far as is possible the chairman of a tribunal will be legally-qualified and chairmen are appointed by the minister from a list drawn up by the Lord Chancellor. There are some chairmen and members of tribunals who are full-time or part-time members and are paid a salary.
PUBLIC HEARINGS
Most tribunals are open to the public. The Franks Committee accepted that there are circumstances when this general rule must be modified, such as when the tribunal is considering intimate personal details of finances or of health.
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PROCEDURAL
Procedural rules for tribunals are made by the appropriate minister after consulting the Council on Tribunals. Generally, tribunals are influenced by and follow the adversary mode of procedure, but some, e.g. rent assessment committees and Medical Appeal Tribunals, may have to carry out an investigation and apply their own knowledge and impressions if they find the expert evidence unsatisfactory.
L EGAL REPRESENTATION
Before the Franks Report the procedural rules of a number of tribunals excluded the right to legal representation in the interests of informal, cheap and speedy proceedings. This has now been changed and legal representation is permitted before all tribunals. In the service committees of Family Practitioner Committees in the National Health Service, which deal with complaints against NHS practitioners, paid advocates are barred, but an unpaid barrister or solicitor can assist in the capacity of a friend.
L EGAL AID
The Franks Committee was of the opinion that legal aid, which is obviously linked to the availability of legal representation, should be extended to the more important tribunals and especially to the appellate tribunals. This opinion has since been endorsed, at various times, by the Law Society, the Council on Tribunals, the Lord Chancellors Advisory Committee on Legal Aid and by the 1979 report of the Royal Commission on Legal Services. But the only tribunals where legal aid for advocacy (as opposed to legal advice and assistance) is available are the Lands Tribunal and the Commons Commissioners. The Lord Chancellor announced in May 1995 that a pilot scheme would be introduced to consider the application of legal aid to tribunals.
R ULES OF EVIDENCE
The strict rules of evidence are not usually followed in tribunals and the Franks Committee thought that it would be a mistake to introduce strict rules as applied in a court. The Committee thought that the presence of a legally-qualified chairman should enable the tribunal members to attach proper weight to the evidence before them.
R EASONS FOR DECISIONS

Before 1958 reasons did not have to be given for tribunal decisions. Section 12 of the 1958 Act (which is s.10 of the Tribunals and Inquiries Act 1992) stated that where a tribunal named in Schedule 1 to the Act gave a decision, it must give a written or oral statement of the reasons for the decision if requested to do so on or before the giving or notification of the decision. The reasons must be proper, adequate and intelligible, and must deal with the substantive points raised.
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The Act does not require that parties be told of their right to ask for reasons.
APPEALS
No right of appeal exists unless one is provided by Act of Parliament. Parliament has created many appellate procedures from tribunal decisions, but has not followed a consistent pattern so that the form of appeal varies from tribunal to tribunal. An appeal may lie from a tribunal to a minister, or to an appellate tribunal with, or without, a further appeal to a court of law. An appeal may lie directly from a tribunal to a court of law. The appeal may be on questions of fact or law or both, and may be with or without leave. To reach the High Court 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 Service Tribunal, the Betting Levy Appeal Tribunal. The decisions of such bodies may be subject to review by the High Court on grounds of lack of, or excess of, jurisdiction or breach of the rules of natural justice. Some statutes preclude the right of appeal. For example, the Social Security Act 1986, introducing the new Social Fund, removed the right of appeal to a tribunal and provided instead a Social Fund Commissioner both to appoint Social Fund Inspectors and check their work, his responsibility being directly to the Secretary of State. Furthermore, the Parliamentary ombudsman was no longer to enjoy jurisdiction in that area.
T HE COUNCIL ON T RIBUNALS
The Franks Committee recommended two councils on tribunals. One of these was established (with a Scottish committee). It is made up of part-time members who are appointed by the Lord Chancellor. The Parliamentary Commissioner for Administration is an ex officio member of the Council. There is some overlap between his jurisdiction and that of the Council. Its functions are: to supervise the working of tribunals generally and to receive complaints about their working the Council is neither an appeal body nor an executive body to consider such matters as the Lord Chancellor may refer to it concerning tribunals, e.g. the degree of privilege to be conferred on witnesses; whether tribunals should be able to subpoena witnesses to consider procedural rules which a minister is preparing for tribunals this is an advisory function and the advice need not be taken by a minister. In addition, the Council is consulted by departments when legislation which will establish new tribunals or extend the jurisdiction of existing tribunals is in preparation.
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The Council publishes an annual report on its work. In its report for 1986, for example, it criticised the lack of appeals procedure for claimants to the Social Fund created by the Social Security Act 1986. Also the Council has drawn attention to the low proportion of women serving on tribunals. Other matters referred to in Council reports include the retirement age for chairmen of industrial tribunals; whether legal rules of evidence need to be observed before tribunals; whether it is right to make an exception to the principle of right to legal representation in the case of the National Health Service committees. The Council on Tribunals is regarded as a worthy body which performs a useful function in reviewing many of the problems of administrative justice. Its weaknesses lie in its part-time character and its lack of legal resources. The annual reports of the Council recognise the absence of powers to conduct effective inquiries, even into the relatively small number of complaints received from the public about tribunals and inquiries. The government refuses to increase its powers. For example, the Council had wanted to act as an advisory body over the whole area of administrative adjudication in the tribunals, and also to be consulted on draft legislation. The Councils effectiveness is also impaired by a widespread ignorance of its existence. The Council compares unfavourably with the Parliamentary Commissioner for Administration, who has access to the records of government departments and who is supported by a select committee of the House of Commons. The Parliamentary Commissioner has an authority which the Council on Tribunals does not have and the existence of the Parliamentary Commissioner probably accounts for the reduction in the number of complaints about the working of tribunals and enquiries which has been reaching 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 of government activity and of the extension of government responsibility. Inquiries collect information and make recommendations to a Minister of the Crown which he is free to accept or reject as he thinks fit. Many inquiries are discretionary inquiries in that the Minister is under no legal obligation to establish them, but some inquiries must be set up by the minister. These statutory inquiries, i.e. those which a minister must hold, include the following. Inquiries into objections to a compulsory purchase order made under the authority of an Act of Parliament and to which the procedure specified in the Acquisition of Land (Authorisation Procedure) Act 1981 applies, or made under a statute which itself prescribes a similar procedure for compulsory purchase. Inquiries into objections made to a ministers order designating land as the site of a new town under the New Towns Act 1965. Inquiries into objections made by local authorities, through whose area the line runs, to the line of a motorway fixed by a minister under the Highways Act 1959. Inquiries into appeals made against the refusal of a local planning authority to grant planning permission to a person or into appeals against unacceptable conditions attached to the grant of planning permission.
T RIBUNALS AND INQUIRIES

COMPARED
A tribunal will have a defined jurisdiction within which it will decide disputes. It will give a definite and binding decision, subject perhaps to appeal or review, on the facts and the law of the matter before it. An inquiry is an investigating body which ends with the person who conducted the inquiry (the inspector) making a report to the minister containing his findings of fact and his recommendations. The final decision will then be taken by the minister or by a senior 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 with information before he makes his decision and to allow objectors and appellants to state their case. The four types of inquiry listed above are all concerned with land and the use of land. These are matters for which a minister (currently the Secretary of State for the Environment) is responsible to Parliament. Decisions taken by the department following such an inquiry may well be based on policy considerations and are not considered suitable for determination by an independent tribunal. A tribunal will be composed of members who are not civil servants. An inquiry of the type considered above will
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usually be conducted by an inspector who is an official of a government department.
P ROCEDURE FOR THE INQUIRY

Detailed statutory procedural rules have been made for inquiries which ministers are under an obligation to hold if objections or appeals are made, e.g. the Compulsory Purchase by Public Authorities (Inquiries Procedure) Rules 1976 and the Town and Country Planning (Inquiries Procedure) Rules 1974.
T HE COUNCIL ON T RIBUNALS
The Council has functions in respect of inquiries as well as tribunals. It must be consulted by the Lord Chancellor before he makes procedural rules for statutory inquiries. It may undertake ad hoc investigations into particular aspects of inquiries or inquiry procedure. The Tribunals and Inquiries Act enables the Council to consider and report on such matters as the Council may determine to be of special importance in respect of statutory inquiries. The Council may be asked to consider and report on such matters relating to inquiries as may be referred to it by the Lord Chancellor.
T RIBUNALS OF INQUIRY
Under the Tribunals of Inquiry (Evidence) Act 1921 a tribunal of inquiry may be set up by resolution of both Houses to inquire into a definite matter of urgent public importance. The matters to be investigated by such tribunals are matters which cause public concern and which require investigation in order to allay public anxiety but which cannot be dealt with by ordinary civil or criminal processes. Other types of inquiry, such as a Royal Commission, a select parliamentary committee of inquiry, an inquiry of the type carried out by Lord Denning in the Profumo case or more recently the Scott Inquiry into the Arms for Iraq affair, are for various reasons considered unsuitable for the purpose, and are outside the remit of the 1992 or 1921 Acts. A Royal Commission on Tribunals of Inquiry, under the chairmanship of Lord Justice Salmon, recommended in 1966 that tribunals of inquiry be set up as sparingly as possible. It has been estimated that these have been set up on less than 20 occasions including: the Edmund-Davies Tribunal into the Aberfan disaster (196667) the Scarman Tribunal into events in Northern Ireland in August 1969 (196972) the James Tribunal into the collapse of the Vehicle and General Insurance Company (197172)
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the Widgery Tribunal into events in Londonderry in January 1972 (1972). A tribunal of inquiry usually has a judge as chairman, with two other members. The tribunal has all the powers of the High Court in enforcing the attendance of witnesses and compelling the production of documents. A refusal to answer questions may lead to committal to prison for contempt. A tribunal of inquiry will sit in public unless it judges that it is not in the public interest to do so. It cannot impose penalties of any kind but reports to the appropriate minister.
D IFFICULTIES ASSOCIATED WITH TRIBUNALS OF INQUIRY

There are a number of difficulties associated with a tribunal of inquiry. It is not a court of law. It is an inquisitorial, investigative body. There is no precise dispute and the tribunals activities will be general. Therefore there is always the danger of a person becoming involved without being fully aware of the possible consequences and subsequently being prejudiced by the report of the tribunal without having had a full opportunity of knowing or answering a charge against him. Because of the wide powers of punishing for contempt possessed by a tribunal of inquiry there is a danger that public comment on a matter of national importance may be stifled by the establishment of such a tribunal, e.g. the misgivings expressed at the time of the Aberfan disaster. The role of the Attorney-General before a tribunal of inquiry means that he may be put in the difficult position of having to question his colleagues in the government. He therefore has to balance very carefully his role as the representative of the public interest seeking the truth, with his loyalty to his ministerial colleagues. Because of these difficulties there have been a number of instances where inquiries without statutory powers have been used. A current example is the Scott Inquiry into the Matrix Churchill trial.
PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION

So far, we have been considering legal remedies for administrative errors. To obtain a legal remedy a breach of the law must be established. To provide a remedy where no breach of the law may have taken place but where, nevertheless, there may have been administrative mistakes, delays or insensitivity, the Parliamentary Commissioner Act 1967 established the office of Parliamentary Commissioner for Administration, 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 and the Comptroller and Auditor-General. The purpose of the Commissioner is to supplement the existing political means for the redress of grievances which result from administrative action or inaction. The Commissioner has a staff of sixty to assist him and he makes an annual report to Parliament and special reports when necessary. The government departments subject to the Commissioners jurisdiction are listed in Schedule 2 to the Act. Schedule 3 excludes from his jurisdiction certain types of activity undertaken by the departments and agencies listed in the second schedule, e.g. granting of honours, personnel matters in the military and civil services, external relations, action by an Embassy or High Commission official overseas, the prerogative of mercy, conduct or commencement of civil or criminal proceedings, contractual and commercial matters, action taken by nationalised industries, National Health Service bodies, the police, or local government (see below). The complaint ought to come to the Commissioner through an MP and must be a complaint of injustice in consequence of maladministration. Neither injustice nor maladministration is defined in the Act. Initially the Commissioner confined himself to 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 of possible maladministration in procedure so as to enable him to investigate. When investigating a complaint, the Commissioners staff is able to examine departmental files and take written or oral evidence (which the MP cannot do). The Commissioner reports on each complaint investigated to the complainant and the MP through whom the complaint came and, if injustice caused by maladministration is established, the Commissioner may recommend financial compensation where this is appropriate. There is nothing to compel acquiescence with his recommendations except the Commissioners moral authority and the strength of parliamentary and public opinion. Many complaints must be rejected by the Commissioner because they are outside his jurisdiction, usually because the complaint does not concern administrative matters, or concerns personnel matters in the civil service or armed forces, or concerns authorities which are not covered by Schedule 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 justified and to be partly justified in another 20 per cent of cases. Besides recommending compensation for individuals found to be victims of injustice caused by maladministration, the Commissioner recommends changes in administrative procedures in order to improve administration generally and prevent a repetition of the maladministration. Every annual report contains examples of such general recommendations.
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OTHER C OMMISSIONERS FOR A DMINISTRATION

The Parliamentary Commissioner has established himself over the years since the introduction of the office. The ombudsman principle has been extended to authorities other than government departments and new ombudsman offices have been created. The National Health Service Reorganisation Act 1973 created two offices of Health Service Commissioner, one for England and one for Wales with separate legislation providing Scotland with its Health Service Commissioner. The statutory provisions are now to be found in the Health Services Commissioner Act 1993 which consolidates earlier legislation. The person who is Parliamentary Commissioner controls the office of Health Service Commissioner in all three countries. The Health Service Commissioner in each country will investigate complaints against regional and district hospital authorities and family practitioner committees that injustice has been caused by maladministration or through failure to provide care and attention (but the Commissioner cannot concern himself with the particular medical treatment of a patient, or the exercise by a doctor of his clinical judgement). The Commissioner for Complaints Act (Northern Ireland) 1969 set up the office of Commissioner to investigate complaints of injustice caused by maladministration by public bodies in the province. Under the Act, a complainant has direct access to the Commissioner whose decisions are enforceable in the county court. The complainant can apply for an injunction, damages, and other orders that may be appropriate. The Prisons Ombudsman was appointed in 1994 to hear complaints on disciplinary proceedings. This post was not established by Act of Parliament. An even less legalistic system of redressing wrongs is the Citizens Charter programme announced by the Government in 1991. So far it has concentrated on providing public information leaflets on a variety of public services. Responsibility for the programme lies with the Office of Public Service and Science. In his 1993 Report the Parliamentary Commissioner announced that he was using the performance targets of the Charter sets for public services to help him take account of administrative failings. A number of private sector Ombudsmen have recently been created in areas such as banking and insurance. These are not state officials.
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Think Point 5
What extensions have been made to the ombudsman principle?
CRITICISM OF THE OMBUDSMAN

In 1977 JUSTICE produced a report entitled Our Fettered Ombudsman, which criticised the existing system on several grounds: the narrowness of the concept of maladministration it should be replaced by the term unreasonable, unjust or oppressive the MP-filter deters some complainants the preponderance of ex-civil servants in the Commissioner's staff was unhealthy there should be more use of the press and publicity the Commissioners jurisdiction should be extended for example to cover government contracts and the nationalised industries and there have also been suggestions that delegated legislation should be included the Commissioner should be able to suggest legislative reforms lack of effective enforcement.
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Other proposals for reform have been made, for example, by Carol Harlow who suggests that the Parliamentary Commissioner should have power to investigate on his own initiative. She is not in favour of direct access and stresses that the task should be to improve administrative decision-making systems rather than redress individual grievances.
OUTLINE
CRITIQUE OF ADMINISTRATIVE LAW
REPORTS AND STUDIES

The rapid growth of administrative law in the past decade has prompted ongoing reviews of its efficacy. Important studies are now listed. The Report of the JUSTICE /All Souls Committee Administrative Justice: Some necessary reforms (Oxford University Press, 1988) Woolf, Sir Harry Protection of the Public: The New Challenge (Hamlyn Lectures, 1989) The Law Commission announced in July 1991 that it was setting up a major inquiry into procedures for judicial review: Law Commission Fifth Programme of Law Reform. Its proposals were published in October 1994.
P ROCEDURAL REFORMS
Perhaps in no other area of law is procedure so important, and breach of it so fatal, to an application. Criticism has centred on the following issues.
THE REQUIREMENT OF LEAVE

Defenders, including the Law Commission and Lord Woolf, call it a safeguard for administrators; opponents, who include Wade, call it a constitutional outrage. The JUSTICE All Souls Report considered that it was inequitable to discriminate against public law applications by the use of a leave requirement.
THE PUBLIC/ PRIVATE LAW DIVIDE

You will remember the issues arising out of the decision in OREILLY v MACKMAN 1983 and the difficulties of applying the distinction 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 proceedings are not in form judicial review proceedings but at this stage the technicality can be ignored because the legal issues raised in these proceedings cannot be allowed to remain unanswered. The Law Commission questions whether the exclusivity principle should be abolished, leaving litigants with the
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possibility of seeking injunctions and declarations against public bodies by converting from Order 53 procedure to a writ action.
TIME LIMITS
We are referring here to the effect of the requirement to act promptly and in any event within three months. The Law Commission would retain this.
R ULES ON STANDING
Following the R v SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTE ROSE THEATRE TRUST CO 1990, Lord Woolf recommended that the office of Director of Civil Proceedings be created to take over the role of the Attorney-General in relation to civil proceedings. The new Director would be responsible for the development of the law generally and would be able to refer cases to the Court of Appeal and the House of Lords to assist the public to have access to the courts. The Law Commission approved the practice of granting standing to pressure groups and individuals acting in the public interest.
O THER PROPOSALS FOR REFORM

Other proposals for reform include: extension of availability of interim relief particularly in light of the decision in R v SECRETARY OF STATE FOR TRANSPORT
EX PARTE FACTORTAME LTD AND OTHERS 1989
machinery to overcome difficulties of discovery and opportunities to cross-examine witnesses integration of the courts, tribunals and Commissioner by a system of cross-referrals (Woolf) extending legal aid and reducing costs, including the option of an entirely written procedure for applications for judicial review.
REFORM OF GROUNDS
PROPORTIONALITY AS A FURTHER
GROUND
This concept is of European origin and has been used as a general principle of law to interpret the provisions of the European Convention on Human Rights. But, as Jowell and Lester point out in Jowell and Oliver (1988): In the absence of explicit guarantees of positive rights or a codified set of administrative law principles, English law has traditionally preferred to deal in remedies rather than
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principles. Our judges have been reluctant to express basic notions of fairness as fundamental principles of law. However, the authors do find examples of the use of the concepts of proportionality in decided cases. Thus: At the heart of both Congreve and Wheeler was the refusal of the court to countenance the achievement of a legitimate end (the raising of revenue in Congreve and the promotion of good race relations in Wheeler) by disproportionate means, punishing in each case where the individual had done no legal wrong. Jowell and Lester, and other commentators, recommend proportionality as a more comprehensible and just concept than WEDNESBURY unreasonableness. On the other hand, such an approach is getting very close to judging the merits of a decision.
C ODIFICATION OF GROUNDS
This has been attempted by statute in Australia, and is recommended by those, such as Griffith, who see the courts as encroaching too often on what are deemed political issues.
AN ACKNOWLEDGEMENT OF THE DUTY

TO 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 beneficial improvement which could be made to English administrative law I would unhesitatingly reply that it would be the introduction of a general requirement that reasons should normally 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 justice required that the Board give outline reasons sufficient to establish whether its decisions were lawful. The House of Lords held in R v SECRETARY OF STATE FOR HOME DEPARTMENT, EX P DOODY (1993) 3 WLR 154 that procedural fairness may require a duty to give reasons.
JUDICIAL TRAINING
Woolf has recommended training for judges involved in judicial review, and that the courts do more to develop English law in line with that of the European Community. He also demands that principles of good administration be laid down.
CONCLUSION
In Lord Diplocks view, progress towards a comprehensive system of review in administrative law is the greatest achievement of the courts in his judicial lifetime. There is, however, a great deal of disagreement over the ultimate form that this review should take. The government has apparently
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been worried, and in fact produced a leaflet for government departments entitled The Judge over your Shoulder warning civil servants of the danger of laying ministers open to challenge in the courts. It has been suggested that the reason why the Education Reform Act (to cite one example) contains very broadly drafted powers for the Secretary of State is to avoid legal challenge. A major area of controversy is how far can the courts be prevented from reviewing administrative actions if the relevant Statute precludes it. The doctrine of Parliamentary supremacy means that the courts are limited in the extent to which they can control executive action. Paradoxically then, it is for Parliament to protect the courts role by ensuring that ouster clauses are limited. The courts have, in ANISMINIC LTD v FOREIGN for example, shown how they will find a way out of the apparent impasse of an attempt to preclude review, but this approach was refined in R v SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTE OSTLER [1977] QB 122 where the setting of a six-week limit in which review was allowed moved the court to refuse an application which was out of time. It is the uncertainty about the principles upon which review is based that increases political criticism of the judiciary. Calls for the judges to take a more interventionist position are made by those who see the powers of central government, unrestrained by a written constitution, as omnipotent. Furthermore, the convention of ministerial responsibility often flounders when faced with the huge scope for public officials to abuse their power. The debate on judicial review is closely allied to that on the codification of rights. At the time of the nadir of judicial subservience to the executive in LIVERSIDGE v ANDERSON, the dissenting judge, Lord Atkin opined: Bacon, I think, once said the judges were lions under the throne, but the House of Lords has reduced us to mice squeaking under a chair. For the potential impact of the Human Rights Act on judicial review see Chapter 16.
Revision
When you have revised the chapter and done the additional reading, you should attempt the Selfassessment Test which follows. You should not send your answer to your tutor but compare it with the specimen answer provided. You should attempt Assignment C after this chapter. Send your answers to your tutor. You will receive specimen answers with your marked script.
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A DDITIONAL READING
Bradley and Ewing, Chapters 27 and 28 Jowell, J. and Oliver, D. (eds), New Directions in Judicial Review (Stevens, 1988), Chapters 2, 3, 5
CASES REFERRED TO IN THIS

CHAPTER
R v SECRETARY OF STATE FOR ENVIRONMENT EX P LANCASHIRE AND DERBY CCs ATTORNEY-GENERAL v WINTON 1906 ROBERTS v HOPWOOD LLOYD v McMAHON 1987 R v SECRETARY OF STATE FOR ENVIRONMENT EX P NOTTINGHAMSHIRE CC 1986 BROMLEY v GLC 1983 HAMMERSMITH AND FULHAM v SECRETARY OF STATE FOR ENVIRONMENT 1990 R v COMMISSIONER FOR LOCAL ADMINISTRATION EX PARTE EASTLEIGH BOROUGH COUNCIL 1988 BATES v LORD HAILSHAM OF ST MARYLEBONE 1982 R v SHEER METALCRAFT 1954 ATTORNEY-GENERAL v WILTS UNITED DAIRIES 1921 OREILLY v MACKMAN 1983 GILLICK v DEPARTMENT OF HEALTH AND SOCIAL SECURITY 1986 R v SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTE ROSE THEATRE TRUST CO 1990 R v SECRETARY OF STATE FOR TRANSPORT EX PARTE FACTORTAME LTD AND OTHERS 1989 R v CIVIL SERVICE APPEAL BOARD EX PARTE CUNNINGHAM 1991 R v SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTE OSTLER 1977 ANISMINIC LTD v FOREIGN COMPENSATION COMMISSION 1969 LIVERSIDGE v ANDERSON 1942 R v SECRETARY OF STATE FOR HOME DEPARTMENT, EX P DOODY 1993
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Self-assessment Test
C ONSTITUTIONAL
AND
S ELF-ASSESSMENT TEST
QUESTION 1
The powers and duties of local government have been eroded of late, showing the weakness of the constitutional position. Discuss.
QUESTION 2
What are the justifications for delegated legislation?
S PECIMEN ANSWERS TO S ELFASSESSMENT T EST

QUESTION 1
The system of local government developed during the nineteenth century and steadily grew until the 1970s. Since then, the autonomy of local authorities has been whittled away. The structure of local authorities set up by the Local Government Act 1972 was perhaps the high point of local government. Most important was the establishment of the metropolitan authorities with a strategic role for each metropolitan region. The model, the Greater London Council, with its subordinate and yet powerful second-tier borough councils, had actually been set up earlier, in 1967. The county councils remained, but instead of the mixture of the boroughs, urban districts and rural districts, a system of larger district councils was set up as the second-tier authorities. It was perhaps the activities of these new authorities, with their propensity to borrow for large-scale capital projects including grand new offices for themselves, which led to central government wishing to cut down their autonomy in the 1980s. By the Local Government Act of 1985 the GLC and the other metropolitan authorities were abolished and the second-tier councils took over. This meant that there was no local authority to take a look at the needs of each metropolitan area as a whole. Local government was divided and weakened. The system of county councils and district councils remained but, in 1992, the Local Government Commission was set up to review the structure of local government with specific instructions to favour the establishment of unitary authorities based on the metropolitan area pattern. However, in the midst of the deliberations of the Local Government Commission came the courts decision in R v
SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTE LANCASHIRE AND DERBYSHIRE CCs that the Governments
guidance to the Local Government Commission favouring unitary authorities was ultra vires. In the event, the proposals which have now gone to the Government from the LGC are far from radical with unitary authorities only proposed for areas where they are likely to be uncontroversial. So the process of weakening local government by structure has been temporarily halted, if not reversed. The reopening of the debate on devolution for Scotland and Wales may provoke a reawakening of interest in local government for England. The functions of local government have been transformed in nature so that local authorities have changed from being providers of services to being purchasers of services. First came the right to buy policy which diminished the stock of local authority housing and thus local authority discretion over the allocation of homes. The Government then said that local authority housing estates could become self-governing
taking them away from direct local authority management. Then the Government withheld capital and borrowing capacity from local authorities so that they could not build council housing. Instead, housing associations were given grants to build and manage housing. Local authorities were not even allowed to use the proceeds of sale of council homes. Then the Government said that schools could opt out of local authority council thus diminishing the role of local education authorities. Changes to the structure and financing of polytechnic and further education colleges have made further inroads into local education authorities powers. Finally, the policy that local authorities should contract out services, from street cleaning, through rubbish collection and road maintenance, to legal services, has further diminished the size, scope and influence of local authorities. The Government gives guidance on how local authorities should carry out their functions by statute, by circulars and by inspections. Most significant of all have been the changes in the way government controls local government finance. In the 1970s local government finance was widely regarded as being out of control as local authorities could raise money in the financial markets to finance capital projects. They also had discretion over the levels of domestic and business rates. The only control the government exercised was over the level of rate support grant which was and is now about 56 per cent of local authority expenditure. The result was that the Government could not control the money supply and thence the rate of inflation. Rate-capping was the first measure to strike at the heart of local government autonomy. The introduction of the Community Charge was matched by setting up a Uniform Business Rate so that the level of local taxes on commercial property was set by central government. The Community Charge has been replaced by the Council Tax which is locally determined by accounts for less than 20 per cent of local authority revenue. Even then, the Government can limit the level of council tax if it considers that it is too high. As far as borrowing is concerned there is now strict control over the level of borrowing by local authorities in order to bring borrowing by local authorities within the targets for overall public sector borrowing. There is also power for the Government to cap local authority spending levels. Thus, the local authorities operate on tramlines as far as spending is concerned. The means of auditing local government spending was also reformed in the Local Government Finance Act 1982 which set up the Audit Commission which appoints the district auditors to audit local authority accounts and carry out special audits. The recent enquiry into Westminster City Council is an example of the Audit Commissions special enquiries. The courts may also be involved in the way in which local authorities carry out their functions. In BROMLEY LB v GLC the GLCs fares fair policy was ruled ultra vires. Most recently, in R v SOMERSET EX PARTE FEWINGS AND OTHERS the local authoritys decision to ban staghunting was ruled ultra vires on the grounds that it was outwith its statutory powers. Changes in the structure, functions and financing of local authorities have all conspired to weaken their influence. But it
may be too soon to write off local government. First, the Local Government Commission has not recommended the wholesale introduction of unitary authorities and, secondly, the current changes implementing devolution have the effect of reawakening interest in local government in England.
QUESTION 2
By delegated legislation is meant legislation which is made by a body other than Parliament under the authority of an Act of Parliament. Parliament has delegated its law-making powers. The most important recipients of such delegated legislative powers are Ministers of the Crown, who may be given the power to make regulations having the force of law, and the Queen in Council who may be given the power to make Orders in Council having the force of law. Such regulations and orders will be known as statutory instruments and will generally be subject to the provisions of the Statutory Instruments Act 1946 unless the enabling, or parent, Act provides otherwise. Other delegates may be local authorities, with power to make bye-laws; the Rules Committees of the High Court and the County Courts with power to make the procedural rules for those courts; the Church of England, with power to make measures for the government of the Church; and public corporations which may also have the power to make bye-laws. Parliament may also confer legislative effect upon a resolution of the House of Commons alone as in the case of the Budget resolutions. Delegated legislation is necessary because the rules and regulations made by the delegates are of a very detailed and technical nature. The Act of Parliament will contain the general principles and a minister may then be given power to complete the details by making the necessary provisions through a statutory instrument. Parliament does not have the time, or usually the interest, to wish to examine these details. The building regulations, made under the authority of the Public Health Act 1961, are a good example of this. Further, a government frequently wishes to possess legal powers to deal with future developments which, although anticipated, cannot be precisely catered for in the statute. A new product may be introduced, or a change in manufacturing technique occur, which requires an adjustment of legal rules. Rather than have to go to the lengths of steering a new Act through Parliament, a minister will wish to be able to react as quickly as is necessary by using the powers delegated to him in an Act of Parliament. Delegated legislation is used to deal with emergencies. The Emergency Powers (Defence) Acts 1939 and 1940 conferred enormous powers upon ministers to deal with the war-time emergency. These statutes have lapsed, but the Emergency Powers Act 1920 is still on the statute book and can be activated by the government to give itself wide powers of dealing with a peace-time emergency such as a threat to the supply of the essentials of life. These peace-time emergency powers, though wide, are far more restricted than their wartime equivalents.
Bye-laws have the advantage of allowing a local authority to make laws for the good rule and order of its area and so can be related to the nature of the particular area. Lastly, there is the all-important advantage of the administrative convenience of delegated legislation. An Act may receive the Royal Assent but its immediate implementation may be impossible or undesirable. A power may therefore be given in the Act to allow a minister to choose the most convenient time for bringing the remainder of the Act into effect. A government may wish to have stand-by powers, hoping perhaps not to have to use them but having the means of implementing the Act and activating the powers when necessary. Other legislation may be restricted in its effect to a period of one year but may be continued from year to year by statutory instrument. Occasionally a minister is given power to amend other Acts of Parliament by statutory instrument or even power to amend the enabling Act itself by statutory instrument, thereby saving himself the need to introduce a new amending bill.
Copyright Semple Piggot Rochez Ltd, 2002

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CHAPTER 12
INTERNATIONAL CONVENTIONS

www.spr-law.com
CONTENTS
General Introduction to Civil Liberties........................................ 1 The European Convention for the Protection of Human Rights and Fundamental Freedoms .......................... 1
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C ONSTITUTIONAL
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INTERNATIONAL CONVENTIONS GENERAL INTRODUCTION CIVIL LIBERTIES

TO
The next five chapters will be concerned with selected aspects of civil liberties. Since the enactment of the Human Rights Act 1998, which entered into force on 2 October 2000, civil liberties have become the most exciting and fast-paced area of public law in the United Kingdom. Every week brings a new case exploring some aspect of human rights and it is important to try to keep up to date with the case law coming from the courts. As will be seen, the 1998 Act gave further effect in the United Kingdom to the European Convention on Human Rights. It is not correct to say that the Act implemented or incorporated the Convention, since the rights guaranteed in the Convention only have that effect in English law which the Act gives them. In other words, the terms of the Act have to be the starting point of any discussion of the meaning and effect of the Convention rights in this country. But there can be no doubt that the Act, together with the Convention rights it guarantees, amount to a Bill of Rights for the UK. The long debate about whether or not to incorporate the Convention into domestic law, and what the pros and cons of doing so would be, mean that the decision finally to do so was of the greatest constitutional significance. Of course, the Act and the Convention rights do not exhaust the subject of civil liberties. Important human rights are also safeguarded by other statutes, such as the Data Protection Act 1998 and the Freedom of Information Act 2000, and also by EU law and by the common law. Indeed, the traditional approach of the common law, namely, that everything is permitted which is not expressly prohibited, sometimes referred to as negative liberty, remains a corner stone of the British constitution. If the government wish to limit a persons liberty, they must find express powers authorising them to do so. For an example of this principle see R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE PIERSON [1998] AC 539. The great contribution of the Human Rights Act 1998 is that it supplements this approach, by allowing the courts to measure the standards of the common law and statute by the higher norms of the Convention rights. It is impossible to study this area without having some appreciation 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 make political assumptions about what direction the law ought to take. It is important that you question these assumptions and consider whether you share them. The law is applied generally
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on the basis that respect for individual liberty, the hallmark of the liberal democracies, is a universal good. But its application involves difficult choices about the need to balance this with other objectives such as the respect for the properties of others. In each of the areas we are examining you will have to consider whether in your opinion the law has achieved an appropriate balance.
THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
The Council of Europe drew up this Convention in 1950. The United Kingdom ratified the Convention in 1951 and, since 1966, has allowed individuals to petition the European Commission on Human Rights in Strasbourg. This means that an individual may petition the Commission claiming to be the victim of a violation in the United Kingdom of the rights set forth in the Convention. The United Kingdom had, in the Convention, agreed to accept the final decisions of the Committee of Ministers or the Court of Human Rights as binding upon it. Further, the United Kingdom is obliged by Art 13 to provide an effective remedy before a national authority for everyone whose rights and freedoms have been violated. By Art 13 the United Kingdom is committed in international law to bringing it about that the substantive provisions of the Convention are made part of its law. The significance of this is that United Kingdom legislation (and common law) may be examined by an independent and impartial international body to determine whether it is consistent with the treaty obligations accepted by the United Kingdom. An adverse decision in Strasbourg does not itself strike down a United Kingdom statute, but there will be an international obligation upon the United Kingdom government to change the law so that it is consistent with the provisions of the Convention. The Articles of the Convention cover the following matters: Article 1: Contracting parties to secure for everyone within their jurisdiction the rights and freedoms defined in the Convention. Right to life. No-one to be subject to torture or to inhuman or degrading treatment or punishment. Concerning slavery. Right to liberty and security of person. Right to fair and public hearing of criminal charge. On retrospective criminal legislation.
Article 2: Article 3: Article 4: Article 5: Article 6: Article 7:
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Article 8: Article 9:
Right to respect for private and family life, home and correspondence. Right to freedom of thought, conscience and religion.
Article 10: Right to freedom of expression. Article 11: Right to freedom of peaceful assembly and association. 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 time of war or public emergency. No derogation from Art 2 except in respect of deaths resulting from lawful 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 right where his or her ultimate aim is the destruction or limitation of Convention rights. The Convention has long been used as a guide to statutory interpretation. In WADDINGTON v MIAH [1974] 2 All ER 377 Lord Reid quoted Art 7 of the Convention, which prohibits retrospective criminal legislation, and went on to say: So it is hardly credible that any government department would promote or that Parliament would pass retrospective criminal legislation. The need to take the Convention into account was emphasised strongly by the Court of Appeal in DERBYSHIRE
COUNTY COUNCIL v TIMES NEWSPAPERS LTD (1992) 3 WLR 28
when it ruled that a county council could not sue for libel. Butler-Sloss LJ said that where there is an ambiguity, or the law is otherwise unclear or so far undeclared by an appellate court the English court is not only entitled but obliged to consider the implications of Art 10. The House of Lords however considered that in this particular instance the common law could determine the issues in favour of freedom of speech and that recourse to the Convention was not necessary. The United Kingdom courts have shown increasing willingness to cite the Convention in cases involving human rights. Thus in R v SECRETARY OF STATE FOR THE HOME DEPARTMENT AND
ANOTHER EX PARTE NORNEY AND OTHERS (1995) The Times, 6 October , the declaration was granted that the decision of the
Home Secretary not to refer the cases of the applicants, IRA life sentence prisoners, to the Parole Board until after the expiry of the tariff period of the sentences flouted the principles of the common law and Art 5(4) of the European Convention on Human Rights. The Home Secretary should have referred the applicants cases to the Parole Board at such a time as would have ensured as far as possible that they would be heard immediately after expiry of the tariff period. A
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broad approach to natural justice was adopted by the Privy Council in GUERRA v BAPTISTE (1995) The Times Law Report, 8 November when it held that delay in passing sentence of execution in the Republic of Trinidad and Tobago was a violation of fundamental rights. There had been a delay of nearly five years between sentence and the time it was to be carried out. Here the Convention was not cited but it is arguable that in cases such as this United Kingdom judges have given an indication how they might operate if the European Convention was incorporated. However, although in R v SECRETARY OF STATE FOR DEFENCE EX PARTE SMITH AND OTHERS (1995) The Times, Law Report 6 November the Master of the Rolls indicated that where human rights were at issue the courts might be more willing to declare in judicial review cases that the threshold of irrationality had been breached, the Court of Appeal showed it was unwilling to put that consideration before public policy. Thus the ban on homosexuals in the armed forces did not violate WEDNESBURY principles of irrationality. It is important to note that in terms of the Convention, in order for a complaint to be brought to the Court of Human Rights in Strasbourg, 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 the Convention and its Protocols. Since November 1998, Protocol 11 to the European Convention has been effective. This protocol introduces a radical change to the procedure for enforcing the Convention, abolishes the Commission and puts in place a full-time permanent Court of Human Rights which itself decides whether or not the complaint is admissible. Also, the right to apply to the new Court is now mandatory in the sense that all states ratifying the Convention must accept the jurisdiction of the Court and the right of individuals to make a complaint to it. More than 60 cases involving the United Kingdom and Islands have to date been determined by the Court of Human Rights in Strasbourg. The procedure before the Strasbourg court is governed by the Convention, the procedural aspects of which were radically amended by Protocol 11 to the Convention (in force since 1/11/1998). Before this Protocol, the supervision and enforcement of the Convention lay in the hands of two bodies, the European Commission on Human Rights and the European Court of Human Rights, both located in Strasbourg. Protocol 11 abolishes the Commission and creates a permanent court, which is exclusively responsible for interpreting and applying the Convention rights. The Convention now requires all members of the Council of Europe to ratify the Convention and accept the jurisdiction of the Court of Human Rights, including the right of individuals to petition 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 the complaint. For example, it is necessary to establish that all domestic remedies have been exhausted, that the complaint is against a Council of Europe state and that the person bringing the complaint is a victim of a violation of human rights. If a complaint is found to be admissible, the Court will then consider the merits of the case and decide whether the violation of Convention rights is made out. When dealing with an application, the Court normally consists of chambers of three judges for ruling on admissibility matters and of seven judges when disposing of the merits of a complaint. One of the judges will be the judge nominated by the state against which the complaint has been made. If either the complainant or the state wishes to appeal the final decision of a chamber, provision is made for an appeal to be heard by a Grand Chamber of the Court, consisting of 17 judges. Early cases involving the United Kingdom included matters arising out of the Obscene Publications Acts, contempt of court, birching in the Isle of Man, the Prison Rules which prevented a prisoner communicating with a person outside in connection with legal or other business without official permission techniques of interrogation used by the security forces in Northern Ireland, the closed shop in British Rail, corporal punishment in Scottish schools, the Northern Ireland laws prohibiting homosexual activities between males, detention in Broadmoor Hospital, telephone tapping, and the different treatment of the sexes in the Immigration Rules.
Think Point 1
Read DERBYSHIRE CC v TIMES NEWSPAPERS LTD AND OTHERS [1993]. Does it convince you that the common law adequately protects human rights?
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Some of the landmark cases involving the UK are the following: SUNDAY TIMES v UNITED KINGDOM E Ct HRR A 30 (1979): the injunction issued by the House of Lords in 1972 to restrain the publication of an article on the thalidomide case in The Sunday Times was held by the Court of Human Rights to be a breach of Art 10 of the Convention which guarantees freedom of expression, subject to qualifications. One of those qualifications, in Art 19(2), is the necessity of maintaining the authority of the judiciary. In the particular circumstances of this case the injunction issued had not been, in the opinion of the Court of Human Rights, necessary to maintain the authority of the judiciary. The court did not consider what the petitioners argued was the generality and lack of precision of the law of contempt as a whole. As a result of this case the Contempt of Court Act 1981 was passed, making changes to the law of contempt of court. MALONE v UNITED KINGDOM 7 EHRR 14 (1985): the Court of Human Rights held that the law in the United Kingdom did not indicate with sufficient clarity the scope and manner of exercise of the discretionary power of the government to authorise the interception of communication (e.g. telephone tapping). Nor did it indicate the minimum degree of legal protection against abuse which individual citizens were entitled to expect under the rule of law. The right to respect for private life, home and correspondence guaranteed by Art 8 had been violated. As a result of this case the Interception of Communications Act 1985 was passed, making clear the legal authority on which interception of communications is based. Both these statutes will be examined later in the course. In BROGAN v UK [1988] The Times, 30 November, the court held that Art 5(3) of the Convention on Human Rights had been violated by detention under the Prevention of Terrorism Act 1984 for seven days. Art 5(3) required suspects to be brought promptly 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 of Terrorism Act or make its continued application illegal in the United Kingdom. But, in international law, there is an obligation on the government in international law either to change the law in the United Kingdom or to seek derogation from these provisions of the Convention under Art 15 on the ground of a grave public emergency i.e. the special problems caused by terrorism in the United Kingdom. The latter position was recently adopted. The SPYCATCHER litigation in the UK resulted in a decision by the Court of Human Rights in Strasbourg (see SUNDAY TIMES v UNITED KINGDOM [1991] The Times, 27 November. It decided that there was no breach of Art 10 (freedom of expression) by the government imposing injunctions on
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the press to prevent publication of extracts of the book on the grounds of breach of confidence. However, once the book was in the public domain having been published abroad and freely available in the UK it was from that time onwards a breach of Art 10 to continue the injunctions. The case of R v SECRETARY OF STATE FOR THE HOME OFFICE EX PARTE BRIND [1991] 2 WLR 588 concerning the banning of the IRA from the broadcast media by the Home Secretary should be noted. The House of Lords upheld the ban and refused to consider the ECHR because, as noted earlier, the Convention was not part of the UK law. The Commission itself decided the applicants case was inadmissible under Art 10 as such constraint was necessary in a democratic society. In McCANN v UNITED KINGDOM [1995] The Times, October 9 the Court considered an application from the parents of three IRA terrorists killed in a military operation aimed at preventing a bomb attack in Gibraltar. The application claimed the killings constituted a violation of Art 2 of the European Convention on Human Rights which protects the right to life. The complaint was upheld by a majority of 10 to nine. The Court held that Art 2 was a fundamental provision which required strict interpretation when considering whether the force used in the defence of persons from unlawful violence was more than absolutely necessary. The United Kingdom authorities had made an incomplete hypothesis that there was a suspect car bomb, but had conveyed this as a positive identification to the soldiers involved in the anti-terrorist operation who believed shooting was necessary to prevent detonation of the bomb. Although there was no premeditated plan to kill the suspects there had been a breach of Art 2 of the Convention as the authorities had shown lack of appropriate care and control in carrying out the operation by instructing the soldiers to act on their intelligence assessments which failed to account for a possible margin of error and which were in the event erroneous. In JOHN MURRAY v UK (Case No. 41/1994/488/570) [1996] The Times, 6 February the ECHR determined that the right to remain silent under police questioning and the privilege against selfincrimination were generally recognised international standards which lay at the heart of the notion of fair procedure. But these immunities were not absolutes and the presumption of innocence had not been infringed by the drawing of inferences from the defendants silence. The Court however, determined on the facts that denial of access to legal advice for 48 hours did infringe Art 6 of the European Convention of Human Rights. In HALFORD v UNITED KINGDOM [1997] The Times, 3 July, the Court held the Merseyside Police Authority had violated Articles 8 and 13 in intercepting the telephone calls of an assistant chief constable. In LUSTIG-PREAN v UK (2000) 29 EHRR 548 , the Court held that the UK governments policy of excluding homosexuals from the armed forces constituted a violation of Article 8 of the Convention (right to privacy). In effect, this amounted to
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overruling the Court of Appeals decision in SMITH v MINISTRY OF DEFENCE [1996] QB 517. The Court was also doubtful if judicial review on the ground of irrationality was a sufficient remedy for the complainants. In OSMAN v UK (2000) 29 EHRR 245, the Court held that the procedural device of striking out an action could amount to a violation of Article 6 of the Convention. In effect the case challenged the immunity of the police from liability for negligence, decided in HILL v CHIEF CONSTABLE OF WEST YORKSHIRE [1988] 2 WLR 1049. This decision has proved to be very controversial in England: see Lord Hoffmann, Human Rights and the House of Lords, (1999) 62 MLR 159. Arguably, the Court has retreated from Osman in the more recent case of Z v UK (2002) 34 EHRR 97. In V & T v UK (2000) 30 EHRR 121 , arising out of the trials of the child murderers of the baby James Bulger in 1993, the Court held that the English procedure for trying very young defendants charged with serious crimes did not meet several rights guaranteed by Article 5 of the Convention. In HATTON v UK (2002) 34 EHRR 1, the Court decided that the governments authorisation of night flights from Londons Heathrow airport constituted a violation of local home owners Convention rights to privacy and property. Interestingly, the UK government decided to appeal this decision to a Grand Chamber of the Court and the appeal decision is awaited. In PRETTY v UK, Application No 2346/02 , decision of April 29th 2002, the complainant lost her complaint that her rights to life and privacy were violated by English laws prohibition on assisted suicide. But the Court, unlike the UKs House of Lords, accepted that the right to privacy was relevant to the claim.
Think Point 2
(i) List any statutes passed in the last year which you think have increased protection for human rights in the United Kingdom. List any statutes passed in the last year which you think have lessened protection for human rights in the past year.
(ii)
In most of the cases involving the United Kingdom before the Court of Human Rights the law (or practice, as in the interrogation, birching and corporal punishment cases) has been adjusted in accordance with the United Kingdom governments obligations under the Convention.
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CONCLUSION ON ECHR
It is perhaps of interest to note that the UK has (arguably) the worst record for the number of complaints upheld for breaches of the Convention. It is also important to note that, as we saw when looking at EC law, the ECJ has indicated a number of times that it regards the Convention as a source of guidance in its development of the general principles of law, and will always seek to interpret EC law in accordance with the Convention. This principle has been put on a firmer legal basis by the Treaty on European Union. It is clear therefore that the impact of the ECHR will grow and could be said to be increasingly a part of UK law through the influence of the UKs 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 the Court considered the following question from the Council of the European Union: Would the accession of the European Community to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November (hereinafter the Convention) be compatible with the Treaty establishing the European Community? The Court considered that accession by the Community to the Convention presented two main problems: the competence of the Community to conclude such an agreement, and its compatibility with the provisions of the Treaty, in particular those relating to the jurisdiction of the Court. With regard to the first question, the Court noted that no Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in the field. It also noted that the importance of respect for human rights was emphasised in various declarations of the Member States and of Community institutions. Reference is also made to respect for human rights in the preamble to the Single European Act and in the preamble to and in Articles of the Treaty on European Union. It was well settled that fundamental rights form an integral part of the general principles of law whose observance the Court ensures. Respect for human rights is therefore a condition of the lawfulness of Community acts. Accession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order. Such a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Art 235 (now Art 308). That provision provides that if any action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the
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objectives of the community and the Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures. But that provision could not serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and in particular by those that define the tasks and activities of the Community. The necessary modification to allow accession to the Convention could be brought about only by way of Treaty amendment. As Community law now stands, the Community, in the opinion of the Court, has no competence to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. On the question of whether accession by the Community to the Convention would be compatible with the rules of the Treaty the Court did not consider it had sufficient information regarding the arrangements by which the Community envisaged submitting to the present and future judicial control machinery established by the Convention.
CONSIDERATION
Consideration of the efficacy of the Convention is closely related to the discussion on a Bill of Rights. Debate has centred on the following issues: The Convention is concerned with individual civil rights rather than economic and social rights. Sedley LJ has referred to its basis in nineteenth-century concepts which are not appropriate to the modern world. The process of invoking the Convention is expensive and lengthy. Incorporation of the Convention into UK law would raise the dilemma of entrenchment as a threat to parliamentary supremacy. Many of these issues have now been resolved by the enactment of the Human Rights Act 1998 (see Chapter 13).
S OCIAL AND E CONOMIC R IGHTS IN INTERNATIONAL LAW

The preamble to the Charter of the United Nations refers to the determination of the member states to promote social progress and better standards of life and in order to achieve this to employ international machinery for the promotion of the economic and social advancement of all peoples. The most important of the specialist agencies carrying out this work is the International Labour Organisation (ILO). This originated in 1919 and its mission is to advance social justice on the basis that universal and lasting peace can only be established if it is based upon social justice. In 1944 the ILO General Conference adopted a Declaration of Aims and Purposes. Its tenets 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 material well-being and spiritual development in conditions of freedom and dignity, economic security and equal opportunity without discrimination on grounds of race, creed or sex. Programmes should be implemented to achieve (inter alia) full employment, rising standards of living, a minimum living wage, recognition of the rights of free collective bargaining, provision of adequate nutrition, housing and facilities for recreation and culture. To carry out its functions, the ILO has adopted a number of Conventions including those on: collective bargaining rights of workers and employers to establish organisations, equal remuneration for work of equal value without discrimination on grounds of sex. The United Kingdom has been found to be in violation of these Conventions on a number of occasions including the denial of union membership to workers at the Government Communications Headquarters (GCHQ). The Council of Europe and the European Community have pursued similar activity to the ILO. In 1961 the member states of the Council of Europe signed the European Social Charter which came into force in 1965. This includes a list of rights similar to that proclaimed by the ILO. There is however no enforcement procedure similar to that under the European Convention on Human Rights. The Charter like the ILO Conventions imposes obligations on the state which take effect in international law but does not confer enforceable rights on individuals. Alongside these developments the Social Chapter of the Treaty of Rome was expanded by an Agreement between eleven of the twelve member states (the twelfth being the United Kingdom) as part of the Final Act at the Maastricht Conference in 1991. This empowers the EC Council of Ministers to adopt Directives to advance the objectives of dialogue between management and labour, high employment and improved living and working conditions. The EC Social Chapter does not extend to all the rights covered by the Council of Europes European Social Charter. After the Treaty of Amsterdam in 1997, the UK adhered to the Social Chapter of the EC Treaty in full and abandoned its opt out.
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Think Point 3
What arguments did the United Kingdom Government advance to explain why it did not sign the European Social Chapter?
Revision
When you have revised the chapter and done the additional reading, you should attempt the Selfassessment Test which follows. Do not send your answers to your tutor, but compare them with the specimen answers provided.
A DDITIONAL READING
Bradley and Ewing, Chapter 19 Marston and Ward, Chapters 6, 7
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CASES REFERRED TO IN THIS CHAPTER

WADDINGTON v MIAH 1974 R v SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE NORNEY AND OTHERS 1995 GUERRA v BAPTISTE 1995 R v SECRETARY OF STATE FOR DEFENCE EX PARTE SMITH AND OTHERS 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 PARTE BRIND 1991 McCANN v UK 1995 JOHN MURRAY v UK 1996 HALFORD v UK 1997 R v SECRETARY OF STATE FOR THE HOPE DEPARTMENT, EX P PIERSON [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
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C ONSTITUTIONAL
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SELF-ASSESSMENT TEST
QUESTION
What was the significance of the European Convention on Human Rights in English law before the Human Rights Act 1998 ?
SPECIMEN ANSWER TO SELFASSESSMENT TEST

First, give a brief outline of: the history of the Convention itself the procedure that must be followed to bring a case before the Court in Strasbourg criticisms of the above. You should then point out that, although the ECHR has been ratified by the UK, it had not been enacted by the UK Parliament and so the Convention was not formally a part of UK law. However, the Human Rights Act 1998 has the effect of making the Convention a principle of statutory interpretation. Next explain the implications of this: that it cant be used directly in the UK courts a point which had been re-affirmed in EX PARTE BRIND (1990) . Go on to point out the positive aspects of the UKs having ratified the ECHR: it does have influence, in that the UK is obliged to alter its law when the Court of Human Rights finds that UK law is in breach of the ECHR (give examples such as the MALONE and THE SUNDAY TIMES (Thalidomide) cases) it seems clear that the UK courts do have regard to the ECHR when interpreting UK law you could use DERBYSHIRE CC as an example here the UK is unlikely to pass new law which is in breach of the ECHR. Note the restrictive view of the right to silence taken in JOHN MURRAY v UK . Note also that the Convention concentrates very much on individual as opposed to collective rights (see GCHG case). You should make the point that the ECJ has made it clear that it has regard to the Convention when interpreting the law of the European Communities and, as European law is becoming increasingly important in the UK, the ECHR is bound also to have a greater impact, especially with the ratification of the Treaty on European Union. You should refer to the points on the Human Rights Act covered in Chapter 16. It is important to stress that now the judiciary will have an obligation to interpret legislation in light of the Convention. The Act will not have the effect of simply incorporating the Convention into English law so it becomes in effect a statute. Thus the Act does not present a set of entrenched rights. Nevertheless it marks a profound shift towards the notion of positive rights covered in Chapter 13. Copyright Semple Piggot Rochez Ltd, 2002
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CHAPTER 13
THE HUMAN RIGHTS ACT 1998

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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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C ONSTITUTIONAL
AND
THE HUMAN RIGHTS ACT 1998 INTRODUCTION

There has been a long running debate in the UK over whether a bill of rights should be adopted and what form it should take. Over the years various committees have reported on the subject but no consensus was reached. Inevitably, the matter was influenced by politics but the left/right distinctions were not so marked because of the complex issues which entrenching a bill of rights raises. The constitutional issues presented by the bill of rights debate are easy to state and impossible to resolve. In favour of a bill of rights are the arguments from counter-majoritarianism, namely, that fundamental human rights must be enshrined in constitutional law so as to be above and beyond repeal or erosion by passing political majorities. On this approach , a bill of rights requires a supreme court the decisions of which cannot be overturned by the legislature. In addition, the bill of rights and decisions made under it must be immune from amendment or at least subject to a special procedure for amendment. The model for a bill of rights along these lines is the US bill of rights, that is, the First through Fourteenth amendments to the US Constitution. But in one form or another, most legal systems now have a fundamental law incorporating protection of human rights which are ultimately safeguarded by a supreme court. In contrast, the UKs constitutional tradition is majoritarian, with the fundamental rule being parliamentary supremacy. On this approach, the highest form of law known to the legal system is an Act of Parliament and these have equal status among 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 by Parliament. Judicial power is limited to the interpretation of statutes and recognises no power to review the legality of statutes or invalidate them if they infringe fundamental norms. While this traditional approach has needed to be qualified by the imperatives of EC law, it remains the orthodox constitutional position for most purposes. The twin difficulties which a UK bill of rights has faced are the implications of the sovereignty of Parliament and concern about the power of the judiciary under a bill of rights. The first focuses on the difficulty of entrenching laws in light of the rule that no Parliament can bind its successors and the doctrine of implied repeal, while the second raises issues about the appointment of judges. Implicitly this focuses on the political attitudes and disposition of the people who become judges, most notably discussed by Professor JAG Griffith in Politics of the Judiciary. The basic point here is that if the judges continue to 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 to entrench established power structures and the privileges of elites. The ability of a political majority to secure radical reforms will be frustrated by the courts, which will always be able to find some human rights interest superior to Parliaments will. Eventually, the advocates of a bill of rights or more correctly, a version of one prevailed. In October 1997, the new Labour government published a White Paper entitled Bringing Rights Home, which set out its plans to give effect in UK law to the European Convention on Human Rights. Subsequently, the Human Rights Act 1998 was enacted and entered force on October 2nd 2000. For the present at least, the Act amounts to a Bill of Rights for the UK. Its provisions strike a balance between the counter-majoritarian arguments for an entrenched bill of rights and the British constitutional tradition of the supremacy or sovereignty of Parliament. In the last two years, UK courts have decided a growing number of cases on the 1998 Act and the Convention rights it guarantees. Some of the decisions have undoubtedly been radical and embraced the spirit of the new Act, treating it as opening a new constitutional chapter in the UKs legal history which calls for a new approach to constitutional litigation. Other decisions have been less radical and some might say pay 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 tension between liberal and conservative approaches to interpretation of constitutional documents which is present in all systems with a written constitution. The nature of human rights litigation is that there are rarely easy answers and always more than one answer to the questions raised. The Human Rights Act 1998 has brought the traditional difficulties of constitutional human rights litigation directly to the UK.
HUMAN RIGHTS A CT 1998

The Act received Royal Assent on 9 September 1998. The purpose of the Act is to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights. In essence the Act requires all public officials to respect the rights of individuals as set out in the European Convention on Human Rights but it is important to stress that the Convention rights themselves do not become part of substantive law. As Ewing has put it (62 Modern Law Review 1999 The Human Rights Act and Parliamentary Democracy, pp.7999 at p.84): The Human Rights Act 1998 does not incorporate the ECHR into domestic law in the way that the European Communities Act 1972 incorporates the EC Treaty. Rather what it does is to give effect to certain provisions of the Convention and some of its protocols by providing that these so called Convention rights are to have a defined status in English law. A major omission is Article 13 of the Convention which provides that Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority.
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Section 2 provides for a court or tribunal in determining a question which has arisen in connection with a Convention right to take into account judgments of the European Court of Human Rights. Thus the jurisprudence from Strasbourg is not made binding. Section 3 provides that so far as possible to do so both primary and delegated legislation are to be read and given effect to in a way which is compatible with Convention rights. Under s.4 a court which is satisfied that a provision is incompatible with Convention rights has to make a declaration of that incompatibility. This applies to the higher courts only, namely the House of Lords, Privy Council, the Court of Appeal and the High Court. The declaration does not affect the validity of the provision in question. If the question of a declaration of incompatibility is raised in proceedings to which the Crown is not party the Crown is entitled to notice of such a declaration being made and may be joined as a party to the proceedings (s.5). Section 6 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority is defined as a court, a tribunal which exercises functions in relation to legal proceedings and any person certain of whose functions are functions of a public nature. In relation to litigation not involving a public authority Ewing comments: Convention rights may be relied upon in litigation between private parties but cannot themselves be the basis of a cause of action. The definition excludes both Houses of Parliament or persons exercising functions in connection with proceedings in Parliament. Section 7 provides for proceedings, including judicial review, to be brought in the appropriate court or tribunal where there is a claim that a public authority has acted or proposes to act in a way which is made unlawful by s.6. The rule as to standing is narrower than that for judicial review since only victims of the alleged unlawful action may bring proceedings. Section 8 provides for each court in respect of an act by a public authority which it finds unlawful to give a remedy which is appropriate to that court. Parliamentary sovereignty in the legal sense is preserved by the stipulation that it is for Parliament to decide what action to take as a result of a declaration of incompatibility. Section 10 and Schedule 2 regulate remedial action and remedial orders. Primary legislation can only be amended or repealed by primary legislation although s.10 empowers a minister to take remedial action to amend primary legislation by order where there are compelling reasons for doing so. Sections 14 to 17 regulate derogations and reservations. The Act makes provision to ensure that new legislation is compatible with Convention rights. Section 19 provides that the Minister in charge of a Bill in either House of Parliament must make a statement to the effect that in his view its provisions are compatible with Convention rights. (Note that provision is also made that ministers must take into account obligations arising under the ECHR in preparing business for the Cabinet. See Ministerial Code: A Code of Conduct and Guidance on Procedure for Ministers, Cabinet Office 1997.) The Press were concerned that the guarantee of the right to privacy might affect freedom of expression. As a result, s.12 applies where a court is considering whether to grant any relief which might affect the exercise of the right to freedom of
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expression primarily though not exclusively in interlocutory proceedings. The concern of the Churches that by being treated as public bodies they might lose privileges in relation to the exercise of faith was addressed by s.13 which provides that if a courts determination of any question arising under the Act might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion it must have regard to the importance of that right. It is clear that the Act strikes a balance between judicial review on human rights grounds and the orthodox approach to the UK 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 interpretation provided by s.3 of the Act. If primary legislation cannot be interpreted to be compatible with Convention rights, s.4 permits a court with jurisdiction to issue a declaration of incompatibility against the impugned provision. However, such a declaration will not affect the continuing force and effect of the legislation and the case may have to be decided according to the challenged rule. It is left to Parliament to decide whether to repeal the legislation and, if so, what effect this should have on the instant case. Finally, ss.6 and 7 create a new cause of action against public bodies, including some private bodies certain of whose functions are of a public nature for violation of human rights. But only a victim, defined in accordance with the Convention understanding of the term, can raise the action. The fact that the Human Rights Act 1998 has not radically altered the balances in the UK constitution has been made clear by the enactment of the Anti-Terrorism, Crime and Security Act 2001, passed in the wake of September 11 2001. Part 4 of this Act provides for indefinite detention of terrorist suspects who are not UK nationals. So as to be immune from challenge under the Human Rights Act 1998, the UK government has lodged a derogation from Article 5 of the Convention with the Council of Europe: see Human Rights Act 1998 (Amendment No.2) Order 2001, SI 2001/4032, inserting a new Part I in Schd. 3 to the 1998 Act. Yet, there is no doubt that the UK is not facing a public emergency threatening the life of the nation, which is the requirement provided in Article 15 of the Convention for derogations from Convention rights in times of public emergency. Only time will tell how the courts, no doubt eventually including the European Court, will approach the new anti-terrorism legislation and the validity of the derogation from Convention rights which it requires. Returning to s.3 of the Human Rights Act 1998, the utility of a general rule of interpretation applying to all legislation is apparent from the experience with EC law and, in particular, s.2(4) of the European Communities Act 1972. In the cases on s.3 of the Human Rights Act 1998 so far, it is clear that most judges are prepared to apply s.3 as a strong rule of interpretation, requiring where necessary that words in a statute are to be made to have a Convention consistent meaning, if at all possible: see especially the speech of Lord Steyn in R v A [2001] 3 All ER 1 (quoted below). The problem is what scope this leaves for s.4: if interpretation can always remedy the difficulty, there will be little need for a s.4
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declaration, which means that criteria for resorting to and applying s.4 will be slow in coming. Greater problems surround the new cause of action for breach of Convention rights. The first difficulty is the scope of the action, which requires an assessment of how far the Convention rights reach into the private sector. This issue has been a source of much debate since the Act was passed. One view is that the Act only binds public bodies, courts and tribunals, and other persons certain of whose functions are of a public nature known as defined public bodies: see s.6(3) of the 1998 Act. Any other approach which meant that all private persons are bound by the Convention rights would render meaningless s.6(5) of the Act, which expressly excludes the private acts of defined public bodies. The alternative view, the leading proponent of which is Professor Sir William Wade, is that since public bodies are defined by s.6(3) as including courts and tribunals, every case which a court decides, including cases involving only two private persons, is affected by the Convention rights. On this view, every court decision amounts to an act for the purposes of s.6 of the Human Rights Act 1998. So far, the courts have not ruled definitively on the scope of the Convention rights. It is certainly arguable that some decisions lean against the Act applying to purely private persons: see, for example, POPLAR HOUSING & REGENERATION COMMUNITY LTD v DONOGHUE [2001] 4 All ER 604. On the other hand, there are cases in which the Convention rights have been applied, or at least interpreted, in cases between two private parties where only the common law governs: see DOUGLAS v HELLO! LTD [2001] 2 All ER 289. In any event, two points appear to be clear. First, the Convention rights are relevant when courts are developing the common law. At the least, this is one effect of the courts being defined as public bodies for the purposes of s.6 of the Human Rights Act 1998. Secondly, where legislation applies to a case between two private parties, the Convention rights apply by virtue of s.3 of the Act. Such a case does not present any problem about the Convention rights applying to private persons since the real issue will be the compatibility of legislation rather than the act of a private party per se. Furthermore, even if the Act and therefore the Convention rights within the UK do not affect the private acts of private persons, there remains the possibility that the UK will still be in breach of the Convention. This is because the European Court may consider that the UK government has failed to act to protect the Convention rights of private persons between themselves. What scope there is for a UK court to reach a similar conclusion in terms of s.6 of the Act, while possible, is still unclear. Another difficulty posed by s.6 of the Human Rights Act 1998 is the relationship between the new cause of action and other remedies, notably judicial review. This is most apparent in relation to the time limit for judicial review, which is traditionally understood as three months. But the time limit for raising a human 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 in judicial review, proceedings must be raised promptly and in any event within 3 months, questions could arise about whether a complaint should have been brought through judicial 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 pros and cons of the Human Rights Act 1998 as it stands must be addressed. In considering these, it is important to recall why the 1998 Act takes the form it does and to ask whether a stronger, more entrenched bill of rights is likely or even meritorious.
IN FAVOUR OF THE H UMAN RIGHTS A CT

Not all the protagonists would agree with each point, but the principal arguments are that: existing common law safeguards have failed the discussion on implementation has the beneficial effect of raising public awareness of the issues judges will be constrained to follow principles which were generally agreed many issues which are of general human concern will be removed from constant change precipitated by party politics the United Kingdom will be following the example of many other countries who have found it valuable to implement a bill of rights strict party discipline means that Parliament will not act independently to check the executive, so the Act is needed to deal with what Lord Hailsham called an elective dictatorship recourse is already available to Strasbourg, and it will simplify matters for litigants if there was a national court capable of dealing with these issues.
A GAINST THE HUMAN RIGHTS A CT

Here again, it would be untrue to say that every member of the anti- camp agreed with every point, but the main arguments are that: its content is too general and vague, and there will be a constant battle over what should be included for example, controversial matters such as the right to picket
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the judges will interpret the Bill too narrowly and will have increased power to impose their class-based views of rights society is based on a conflict of interests and, on the whole, it would be impossible to satisfy these impartially: it is 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 for concern; collective as opposed to individual rights are badly protected the Act will encourage too much litigation legislative change will be continually delayed by constitutional conflict as has happened in Canada for example human rights are already well protected in the UK: contrast this with other countries, such as the former USSR, where a Bill of Rights or its equivalent did not prevent gross abuse the Act is against the pragmatic British approach to problems the Common Law adequately protects human rights and accepts the principles enshrined in the European Convention, see, for example, DERBYSHIRE v TIMES NEWSPAPERS [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 decisions considering its terms and the meaning and implications of the Convention rights. The more important cases to note are the following:
R v A [2002] 3 All ER 1 leading case on s.3 of the HRA 1998: a
defendant was charged with rape of his friends girlfriend. His defence was that intercourse had taken place with the complainants consent and that he had had a sexual relationship with her for about three weeks prior to the alleged rape. He wished to cross-examine her about their alleged prior relationship but the judge ruled that s.41 of the Youth Justice and Criminal Evidence Act 1999 prevented him from doing so. On appeal, the House of Lords held that s.3 of the HRA 1998 and Article 6 of the Convention (right to fair trial) meant that, subject always to regard being had to the complainants dignity and protecting her from humiliating questioning, s.41 was to be understood as allowing the defendants crossexamination of the complainant if the evidence to be sought is so relevant to the issue of consent that to exclude it would endanger the fairness of the defendants trial. On the effect of s.3 of the HRA 1998 and its interaction with s.41, Lord Steyn said (at paragraphs 44 and 45 of his speech):
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(T)he interpretative obligation under s.3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature: R v DIRECTOR
OF PUBLIC PROSECUTIONS, EX P KEBILENE [ 2000] 2 AC 326, per Lord Cooke of Thorndon, at p 373F; and my
judgment, at p 366B. The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the Convention into account in resolving 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 had before him the slightly weaker model in s.6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: s.3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: s.3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it: compare, for example, articles 31 to 33 of the Vienna Convention on the Law of Treaties (1980). Section 3 qualifies this general principle because it requires a court to find an interpretation compatible with Convention rights if it is possible to do so. In the progress of the Bill through Parliament the Lord Chancellor observed that "in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility" and the Home Secretary said "We expect that, in almost all cases, the courts will be able to interpret the legislation compatibility with the Convention": Hansard (HL Debates), 5 February 1998, col 840 (3rd Reading) and Hansard (HC Debates), 16 February 1998, col 778 (2nd Reading). For reasons which I explained in a recent paper, this is at least relevant as an aid to the interpretation of s.3 against the executive: "PEPPER v HART : A re-examination" (2001) 21 Oxford Journal of Legal Studies 59. In accordance with the will of Parliament as reflected in s.3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: R v SECRETARY OF STATE FOR THE
HOME DEPARTMENT, EX P SIMMS [2000] 2 AC 115, 132A-B
per Lord Hoffmann. There is, however, no limitation of such a nature in the present case.
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45. In my view s.3 requires the court to subordinate the niceties of the language of s.41(3)(c), and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and common sense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under s.3 to read s.41, and in particular s.41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible. The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under s.41(3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, eg an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges. On this basis a declaration of incompatibility can be avoided. If this approach is adopted, s.41 will have achieved a major part of its objective but its excessive reach will have been attenuated in accordance with the will of Parliament as reflected in s.3 of the 1998 Act. That is the approach which I would adopt. This passage is worth setting out in full because it captures the radical effect s.3 of the HRA 1998 has on statutory interpretation and it explains one important view of the proper relationship between s.3 and s.4 of the HRA 1998. It is so far the leading statement of the House of Lords on s.3 of the HRA 1998.
WILSON v FIRST COUNTY TRUST LTD (NO 2) [2001] 3 All ER 229 declaration of incompatibility under s.4: W obtained a loan from F, a pawnbroker, and gave as security her car. W did not repay the loan and raised proceedings against F claiming that the agreement was unenforceable against her by virtue of s.127(3) of the Consumer Credit Act 1974 because the agreement did not comply with the minimum requirements for consumer credit agreements provided by the 1974 Act. At trial, the judge refused to find the agreement void and W appealed. A question then arose whether s.127 of the 1974 Act was compatible with the HRA 1998 if its effect as against F could be to render the agreement void. Held, the provisions of s.127(3) of the 1974 Act were incompatible with the rights guaranteed by Protocol 1 Art.1 (right to property) and Art.6(1) (right to fair trial) of the Convention since the absolute bar to enforcement of a regulated agreement that did not contain the terms prescribed by the 1974 Act was a disproportionate restriction on the rights of a lender. Accordingly, a declaration of incompatibility was issued against s.127(3) of the 1974 Act. Note that this decision is presently under appeal to the House of Lords. POPLAR HOUSING & REGENERATION COMMUNITY LTD v DONOGHUE [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 a local authority which had a statutory duty to house her. In accordance with central government policy, the local authority transferred its housing responsibilities to P, an association. Subsequently, the local authority determined that D had made herself intentionally homeless and P issued on her a notice to quit. At the repossession hearing, a question arose whether P was a body bound by s.6 of the HRA 1998. Held, as against D, in principle P was a body bound by s.6 of the Act. Lord Woolf CJ observed: The purpose of s.6(3)(b) [persons certain of whose functions are of a public nature] is to deal with hybrid bodies which have both public and private functions. It is not to make a body, which does not have responsibilities to the public, a public body merely because it performs acts on behalf of a public body which would constitute public functions were such acts to be performed by the public body itself. An act can remain of a private nature even though it is performed because another body is under a public duty to ensure that it is performed.What can make an act, which would otherwise be private, public, is a feature or a combination of features which impose a public character or stamp on the act. Statutory authority for what is done can at least help to mark the act as being public; so can the extent of control over the function exercised by another body which is a public authority. The more closely the acts that could be of a private nature are enmeshed in the activities of a public body, the more likely that they are to be public. However, the fact that the acts are supervised by a public regulatory body does not necessarily indicate that they are of a public nature.Taking into account all the circumstances, we have come to the conclusion that while activities of housing associations need not involve the performance of public functions, in this case, in providing accommodation for D and then seeking possession, the role of P is so closely assimilated to that of [the local authority] that it was performing public and not private functions. P therefore is a functional public authority, at least to that extent. The Court of Appeal stressed that not all of Ps functions will necessarily 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 and private bodies, see also R (HEATHER) v LEONARD CHESHIRE
FOUNDATION [2002] 2 All ER 936.
Before turning to consider some cases interpreting and applying the Convention rights, mention must be made of the problem which has arisen about the potential retrospective effect of the HRA 1998. While this is a sunset problem, the way in which the courts have approached it provides an interesting insight into judicial decision-making. The HRA 1998 entered force on October 2nd 2000, but sections 7(1)(b) and 22(4) of the Act in effect allowed its provisions 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 authority had acted inconsistently with Convention rights before the Act entered force. In other words, the Convention rights could only be used as a sword after October 2nd 2000 but could be used as a shield with respect to acts of a public authority occurring before that date. Apparently straightforward, this left several matters open to doubt, notably whether a person convicted before October 2nd 2000 could rely on the Convention rights in an appeal after that date where some violation of Convention rights was alleged at or before the trial. In R v LAMBERT [2001] 3 All ER 577 , the House of Lords by a majority of 4:1 held that the HRA 1998 could not be relied on in an appeal from a conviction obtained before the Act entered force, that is, October 2nd 2000, where it was an act of the trial court which was impugned. The HRA 1998 was clear as to the limited retrospective effect it was to have and this did not permit a convicted person to impugn a trial taking place before the Act entered force. However, in R v KANSAL (NO 2) [2002] 1 All ER 257, a slightly differently constituted appellate committee of the House held by a majority of 3:2 that the HRA 1998 did have retrospective effect so as to permit a convicted person to complain about acts of the prosecuting authorities (including the police) occurring before the HRA 1998 entered force. But all of their Lordships considered themselves bound by the recent decision in LAMBERT that the HRA did not have retrospective effect so as to apply to trials occurring before the Act entered force. The three judges in the majority who considered LAMBERT wrong gave three different reasons for applying it nonetheless. Lord Lloyd considered that LAMBERT was inconsistent with a previous House of Lords decision (namely
R v DIRECTOR OF PUBLIC PROSECUTIONS, EX P KEBILENE [2000] 2 AC ) and that the whole matter should be referred to a panel
of 7 Law Lords for a final ruling; in the meantime, though, the rule in LAMBERT remained arguably valid and there was no compelling reason to overrule so recent a decision. Lord Steyn, who had dissented in LAMBERT , considered himself bound by the majority decision in that case on the grounds famously set forth by Lord Reid in R v KNULLER [1973] AC 435, at 455 (in particular, that a supreme court should be careful when departing from its previous decisions and only do so when some very good reason justifies it). Lord Hope considered that LAMBERT should still apply because in the present case the prosecutor had not acted unlawfully, but in accordance with a statutory provision which at the time the evidence was coerced could not have been read differently. It follows from all of this that LAMBERT continues to govern and that the HRA 1998 does not have retrospective effect except to the limited extent of being a shield against actions raised by a public authority. But a criminal prosecution is not considered to be an action raised by a public authority. More generally, the way the House of Lords has handled the issue of the HRA 1998s retrospectivity is far from ideal. Basically, the rule in LAMBERT survived and was applied in KANSAL not because a majority of the House in the latter case considered it correct but because of a commitment to stare
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decisis. To what extent can a rigid subscription to stare decisis justify continuing application of legal rules which are thought to violate human rights? Turning to some of the developments concerning the meaning and effect of the Convention rights themselves, there are several decisions to note. The House of Lords decision in R (PRETTY) v DPP [2002] 1 All ER 1 concerned Articles 2 (right to life), 3 (right not to be subject to inhumane and degrading treatment), 8 (privacy) and 9 (freedom of conscience), in the context of an asserted right to assisted suicide. Mrs. Pretty suffered from an incurable disease and was too ill to commit suicide herself. She wished her husband to assist her in ending her life. This engaged s.2(1) of the Suicide Act 1961, which made it a criminal offence for anyone to assist another to commit suicide. She therefore sought a declaration that her husband would not be prosecuted and asserted Articles 2,3,8 and 9 of the Convention in support. Held, none of the Convention rights could be interpreted so as to allow the appellant a right to die. There was therefore no inconsistency with Convention rights presented by the Suicide Act 1961 in the present case. Interestingly, only one of the judges (Lord Hope) considered Article 8s right to privacy relevant at all. When Mrs Pretty took her case to the European Court of Human Rights in Strasbourg, it concluded that the right to privacy, in the sense of a right to personal autonomy, was relevant to her claim. But none of her rights had been violated by UK law, mainly because of the wide margin of appreciation extended by the Convention and the Court to states in the area of morals and because there was no consensus among the Convention states on euthanasia (see PRETTY v UK, ECHR Judgment of 29/4/2002). The PRETTY decision raises the issue of whether and to what extent the Convention rights allow challenge to the substance or quality of laws. There is a long running debate in many constitutional systems about whether human rights only protect process values such as a trial which is procedurally fair, the right to vote, etc or also substantive values, such as fundamental justice, fairness in a substantive sense, liberty in the sense of freedom of choice, privacy in the sense of respect for human dignity and a protected sphere of personal autonomy, and so on. This mirrors a debate about the meaning of the rule of law whether it is just about the existence of positive laws or incorporates a value system which allows laws to be measured for their inherent justice and fairness. The House of Lords decision in PRETTY is not encouraging in this regard. Most of their Lordships did not engage with the Article 2 or Article 8 rights beyond a rather narrow, textual approach to their interpretation. There was nothing like the approach of the majority in the US Supreme Court in ROE v WADE 410 US 113 (1973), in which the rights to liberty and due process of law were interpreted to include protected concepts of privacy and personal autonomy. Equally, in MATHEWS v MINISTRY 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 of the Convention did not protect any substantive values against which statutory provisions could be measured. In that case, M claimed against the MOD for injuries sustained through exposure to asbestos in the 1960s while serving in the military. Section 10 of the Crown Proceedings Act 1947 continued the Crowns immunity from suit in actions brought by serving or former members of the armed forces. This immunity had been removed by statute in 1987, but only prospectively, so M was not affected by the change. M argued that 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 and after that date, s.10 of he 1947 Act provided a rule of substantive law. Article 6 only extended to procedural matters. It was clear that Article 6 did not go so far as to determine what rules of substantive law a state was required to have. More recently, in ADAMS v LORD ADVOCATE, The Times, 8/8/02 , the Scottish Court of Session held that the Scottish Parliaments prohibition of fox hunting in Scotland did not infringe the rights to privacy and property guaranteed by Article 8 of the Convention and Article 1 of Protocol 1 to the Convention. Emphasis was placed on the limited nature of these rights under the Convention and the need to defer to democratically elected legislatures in regard to the merits and contents of particular laws. The courts have, however, been more activist in protecting the right to a fair trial as guaranteed by Article 6 of the Convention. Matters got off to an inspired start with the Scottish High Court of Justiciarys decision in STARRS v RUXTON (2000) JC 208, where it was held that part-time judges, appointed on renewable one year contracts, did not provide an independent and impartial tribunal to hear a criminal prosecution for the purposes of Article 6 of the Convention. However, it is reverse onus clauses which have been the source of most difficulty. To what extent does a statutory provision reversing the onus of proof by placing it on the defence, conflict with the right to a fair trial and the presumption of innocence guaranteed by Article 6? The two leading cases are R v LAMBERT [2001] 3 All ER 577 and BROWN v STOTT [2001] 2 WLR 817. In BROWN , it was found that the test for considering the validity of limitations on Convention rights always involves a form of proportionality analysis. This requires consideration of the importance of the purpose pursued by a measure, the rationality of the measure in light of its purpose, whether the measure is strictly necessary and whether it strikes a balance with the importance of the purpose it pursues. On this basis, for example, a provision which requires a person to explain that his possession of a certain quantity of drugs is not for the purposes of supply will be lawful in light of the important social policy of deterring drug dealing.
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Revision
A DDITIONAL READING
Jowell & Oliver (4th ed. 2000), Chapter 4.
14
C ONSTITUTIONAL
AND
QUESTION
To what extent should there be a constitutional right to die?
SPECIMEN ANSWER TO SELFASSESSMENT TEST

First, outline the human rights involved: Article 2 right to life, but in its terms does not include a right to commit suicide Article 3 right not to be subject to inhuman or degrading treatment, but traditionally limited to practices related to torture or punishment Article 5 right to liberty, but traditionally understood as freedom 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 1998 provides that the Convention rights are not the limit of a persons rights. This means that there are human rights beyond the Convention rights. Secondly, briefly survey the policy reasons for and against euthanasia. These include the sanctity of human life and the dangers involved in allowing individuals an unfettered right to when and how to end their lives. Even if only the very ill are to be given the right, there are great difficulties in deciding what is meant by very ill and what if any process should be involved in approving the decision to end life. On the other hand, any meaningful concept of privacy includes a right to make the most personal and intimate decisions free from state interference. Every civilized society must respect a sphere of personal autonomy which is protected from state regulation. Thirdly, review the House of Lords and ECHR decisions in PRETTY. This requires an outline of the leading judgments and an assessment of whether they answered the question posed. To say that the appellant was asserting a right to die arguably misses the point: she was claiming a constitutional right to autonomy which includes a right to make the most personal decisions for oneself. It is necessary to acknowledge the great difficulties associated with a constitutional right to die. Bit it is also necessary to question whether the House of Lords is approaching the Convention rights as a ceiling or a floor for human rights protection in the UK. Section 2 of the 1998 Act provides that UK courts must have regard to decisions of the ECHR when deciding cases, but that they are not bound by them. If so, it is possible for courts here to go beyond the limits which Convention rights have presently reached in Strasbourg. UK courts are not restrained by the international element in Strasbourg decision-making. Is there a danger that in hiding behind the restraints of the Strasbourg case law, courts here are avoiding making the most difficult value judgments that human rights require? Copyright Semple Piggot Rochez Ltd, 2002
(09/02)
CHAPTER 14
POLICE ACCOUNTABILITY
AND
POWERS

www.spr-law.com
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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C ONSTITUTIONAL
AND
POLICE ACCOUNTABILITY POWERS
AND
A persons freedom can be seriously invaded by unwarranted interference with liberty and property. The police are given wide powers to enforce the law and these include powers of arrest, detention, search of person and property and seizure of goods. As the Royal Commission on Criminal Procedure which reported in 1981 put it, the law must achieve a balance between the interests of the community in bringing offenders to justice and the rights and liberties of persons suspected or accused of crime. Two major statutes, the Police and Criminal Evidence Act 1984 (PACE), and the Criminal Justice and Public Order Act 1994 (CJPOA) deal with the law in this area but we will also be looking at other statutes and various common law provisions. The law relating to the management and organisation of the police forces has been consolidated into the Police Act 1996.
ORGANISATION OF THE POLICE SERVICE IN E NGLAND AND W ALES

There is no national police force. Before the creation of professional police forces in the nineteenth century, police work was performed by the parish constable under the supervision of the Justices of the Peace. The recent tendency has been to reduce the number of local forces in the interests of co-ordination and efficiency. There are now forty-three police forces in England and Wales. The Police Act 1996 contains the statutory rules relating to the police service consolidating the Police Act 1964, Part IX of the Police and Criminal Evidence Act 1984 and Chapter 1 of Part 1 of the Police and Magistrates Courts Act 1994.
P OLICE AUTHORITIES
A police area is based on the area of an administrative county council (e.g. Lancashire, Nottinghamshire, Sussex) or of a number of county councils (e.g. Avon and Somerset, Devon and Cornwall, Thames Valley). The Police Authority in each police area is a committee known as the police committee formerly composed of local county councillors who comprised two-thirds of the membership and magistrates who comprised one-third. Following the new and controversial provisions in the PMCA the composition of the police authorities has been changed mainly by the addition of independent members, approved by the Home Secretary, who comprise a third of the membership. In the Metropolitan Police District of London the arrangements are different. The Police Authority is not a committee but is the
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Home Secretary, and the local authorities within the Metropolitan Police District have no statutory role to play in the maintenance of the police force (other than contributing 50 per cent of the cost). The Police Authority has responsibility for maintaining an adequate and efficient force, determining its establishment and providing it with its equipment. It appoints the Chief Constable, a Deputy Chief Constable and Assistant Chief Constables subject to the approval of the Home Secretary. The Police Authority may, with the approval of the Home Secretary, retire these officers compulsorily in the interests of efficiency.
OFFICE OF C HIEF C ONSTABLE

Operational control of the force is vested in the Chief Constable. The Chief Constable responsible for the day-to-day policing of the area and gives him direction and control of the police force. The Chief Constable presents an annual report to the Police Authority on the policing of the area and he may be requested to give other reports from time to time but, with the Home Secretarys concurrence, he may decline to supply information if its disclosure would be contrary to the public interest or unnecessary for the discharge of the Authoritys functions. It seems that the Police Authority may give the Chief Constable advice, but it cannot instruct him on whether or how to comply with his duty to enforce the criminal law. In R v METROPOLITAN POLICE COMMISSIONER EX PARTE BLACKBURN [1968] 1 All ER 763, Lord Denning defined the unique constitutional position of the office of Chief Constable: No Minister of the Crown can tell him that he must or must not keep observation on this place or that; or that he must not prosecute this man or that one. Nor can any Police Authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. But the scope given to chief officers of police is very wide and a court would be reluctant to intervene if the chief officer is able to point to good grounds for a policy decision not to apply the law in a particular case, as is indicated by R v CHIEF
CONSTABLE OF DEVON AND CORNWALL EX PARTE CENTRAL ELECTRICITY GENERATING BOARD [1981] 3 All ER 826. In this
case the Court of Appeal declined to order the Chief Constable to remove passive objectors who were unlawfully obstructing the Boards survey of a prospective site for a nuclear power station. In R v CHIEF CONSTABLE OF SUSSEX EX PARTE INTERNATIONAL TRADERS FERRY LIMITED [1998] 3 WLR 1260 the House of Lords dismissed an appeal by International Traders Ferry against a ruling of the Court of Appeal upholding the legality of the decision of the Chief Constable of Sussex to reduce the level of policing at Shoreham-by-the-Sea. The appellants had argued that the Chief Constable had an overriding duty to make it possible for the lawful activity of exporting live animals to proceed in the face of violent demonstrations. The decision
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maintains the position that a Chief Constable has a wide discretion to determine how the law will be enforced. In recent years concern has been expressed that the increasing professionalism of the police and their increasing use of sophisticated equipment has meant that they have become rather detached from the communities they serve, especially in London. For example, Lord Scarman in his report on the Brixton disorders (Cmnd. 8429 (1981)) identified the lack of any formal liaison between the police and the local community as a contributory cause of the disorders since it led to policing without the consent of the local population. He felt that the police did not consult sufficiently, that this adversely affected their efficiency and that they were not sufficiently accountable. Section 96 of the Police Act 1996 seeks to meet the need for liaison by providing that arrangements shall be made by each Police Authority for obtaining the views of people in that area concerning policing and obtaining their co-operation in preventing crime in the area. In the Metropolitan Police District the arrangements are made by the Metropolitan Police Commissioner after consulting local authorities within the district and receiving guidance from the Home Secretary. Outside the metropolis the arrangements are made by the Police Authority after consulting the Chief Constable. The Chief Constable appoints constables below the rank of Assistant Chief Constable and he is responsible for their discipline. Local control and organisation of the police force should be contrasted with the fear of a national police force which raises the spectre of officers acting at the behest of politicians. Lately, however, there have been increasing signs of centralising tendencies, particularly through the Association of Chief Police Officers (ACPO) which is a powerful pressure group representing the views of Chief Constables. The president of the ACPO has some control over the National Reporting Centre which helps co-ordinate mutual assistance. This body engaged in a high degree of co-operation during the miners strike 19845.
P OSITION OF HOME SECRETARY

In addition to his responsibilities as the Police Authority for the metropolitan area, the Home Secretary has a general responsibility for promoting the efficiency of the police service in the rest of England and Wales. He must ensure that both the Police Authority and the Chief Constable are enabled to exercise their powers and that they in fact do so. This he can do in a number of ways: he makes the Police Regulations which deal with establishments, discipline, pay, pensions, allowances, training, duties, leave, housing, uniforms and equipment he has powers of inspecting local forces through the Inspectorate of Constabulary the payment of the annual grant 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 the receipt of a favourable report from the inspectors he can impose a compulsory scheme for the amalgamation of police forces by statutory instrument after holding a local inquiry if the local forces are unable or unwilling to produce an acceptable voluntary scheme he can issue circulars and orders of practice he has a general power to call for reports from Chief Constables on the policing of their areas he can conduct an ad hoc inquiry into the conduct of a police force for example, the inquiry by Lord Scarman, in 1981, into the policing of the Brixton area he approves the appointment of senior constables and is an appeal body when serious disciplinary action is taken against a Chief Constable, Deputy Chief Constable and Assistant Chief Constable by the Police Authority, and against other constables by the Chief Constable he can, by virtue of the Police and Magistrates Courts Act (PMCA), set objectives for police authorities; these include performance targets. The above powers of the Home Secretary are derived from statute. In addition he is, as was held in R v HOME SECRETARY
EX 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 the approval or consent of the local Police Authority, where the equipment (plastic baton rounds and CS gas in that case) is necessary to deal with either an actual or apprehended breach of the peace.
S TATUS OF A POLICE OFFICER

A police constable has a special common law status as a public officer. A constable, when acting as a peace officer, is not exercising a delegated authority, i.e. he does not obtain his legal authority from the orders of a superior officer or from the Police Authority or Home Secretary. The police service is characterised by strict discipline and hierarchy of rank, but the common law principle is important because it contains the justification for the exercise of independent judgement, particularly by the Chief Constable in his dealings with the Police Authority or Home Secretary. It aims to ensure that the police are not used as an arm of government and that political expediency will not influence the operational independence and status of Chief Constables. On appointment a constable declares that he will well and truly serve the Queen and his responsibilities for the maintenance of law and order and the preservation of the peace 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 or indirectly by the Crown. A police constable does not,
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therefore, satisfy the requirements of what constitutes a Crown servant specified in s.2(6) Crown Proceedings Act. In 1919, following police strikes in London and Liverpool over pay, it was made illegal for police officers to go on strike. Nor can they join a trade union. The Police Federation of Great Britain is analogous to a trade union and all police officers up to and including the rank of chief inspector are automatically members. More recently, police dissatisfaction with work and conditions has led to calls for restoration of the right to strike. Inevitably, prohibition of this right raises human rights issues, including possible violation of the rights to force expression and freedom of association guaranteed by Articles 10 and 11 of the European Convention.
ACCOUNTABILITY OF THE POLICE

COMPLAINTS
AND
CONTROL
Since 1964, a statutory system for receiving and investigating complaints from members of the public concerning the conduct of police officers has existed. Such a complaint may lead to disciplinary procedures or criminal prosecution. The recurrent criticisms of the system have concerned the confidentiality of the proceedings and the absence of any independent element: before 1964 complaints about the conduct of police officers were investigated by other police officers. The Police Act 1976 established the Police Complaints Board to provide an element of independent supervision of the investigation of complaints, but was heavily criticised for its lack of independence. The Police and Criminal Evidence Act 1984 replaced the Police Complaints Board with the Police Complaints Authority which has greater powers. The procedure for lodging complaints was also changed (see now ss.6683, Police Act 1996). Complaints must still be formally recorded and investigated. The Act introduced a new aspect of procedure, known as an informal resolution, which depends on the consent of the complainant and is applicable only to minor complaints which would not result in a criminal or disciplinary charge. If an informal resolution is not suitable, or if the procedure fails to resolve the complaint, the Chief Constable must arrange for it to be formally investigated by an officer from his own force or from another force. In all cases where the report indicates that a criminal offence may have been committed, the Chief Constable must send the report to the Director of Public Prosecutions who will decide whether a criminal prosecution should be brought against the officer concerned.
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If no criminal proceedings are taken, disciplinary proceedings may be instituted which will involve a hearing at which the officer may be legally represented. The possible punishments include dismissal, being required to resign, reduction in rank, and a caution. The officer has a right of appeal to the Home Secretary. A copy of the report on the complaint is sent to the Police Complaints Authority which may require that the report to be sent to the DPP or that a disciplinary charge be brought. Serious complaints, i.e. complaints that police conduct has led to death or serious injury, must be referred to the Police Complaints Authority which has power to supervise the investigation and give instructions as to its conduct. The Authority has power to veto the appointment of the officer conducting the investigation, and will receive the report and certify whether it is satisfied with the investigation. The Authority will also supervise the investigation of complaints specified in regulations made by the Home Secretary. It has the power to require any complaint or matter to be referred to it if it considers that it is in the public interest to do so. The Chief Constable of a police force or the Police Authority (in the case of complaints against a Chief Constable or a Deputy or Assistant Chief Constable) have a discretion to refer complaints, which they are not obliged to refer, to the Police Complaints Authority. Continuing public concern is expressed about the efficacy and independence of the Police Complaints Authority. Interestingly, while civil suits against the police are on the increase, the number of complaints has fallen, suggesting lack of 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 police on complainants to settle by the informal resolution process the better than 50 per cent chance of success rule applied by the Crown Prosecution Service when considering whether to prosecute officers this is very difficult to satisfy since evidence of police malpractice is hard to obtain the application of the criminal standard of proof in disciplinary proceedings in almost all other employment contexts the civil standard is applied. However, this is now under review. the secrecy of the hearings the use made by the police of a complainants file for example, in defending civil or criminal proceedings, in a libel 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 a constable in the course of his duty?
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CIVIL REMEDIES
A plaintiff may sue in negligence but, if the action or omission complained of is a policy decision, the courts are unlikely to recognise a private duty of care: see HILL v CHIEF CONSTABLE OF WEST YORKSHIRE [1988] 2 All ER 238. Other possible suits are false imprisonment, trespass and assault. Following R v CHIEF
CONSTABLE OF WEST MIDLANDS EX P WILEY [1995] 1 AC 274
there is less risk that in such litigation that police documents which plaintiff may need to call in evidence are protected by public interest immunity.
JUDICIAL REVIEW
Chief Constables are public officers and therefore theoretically subject to control by the courts. In practice this hardly ever happens: see BLACKBURN (above).
HABEAS CORPUS
The famous prerogative writ of habeas corpus may be sought to challenge the legality of detention and to secure release from illegal detention. It applies to criminal and to civil detention and may be sought through an ex parte application supported by an affidavit to the Queens Bench Division of the High Court by the person detained or by a person on his behalf if access to the prisoner is denied.
POLICE POWERS AND INDIVIDUAL F REEDOM

Note: Section numbers refer to the Police and Criminal Evidence Act 1984 (PACE). The law on police powers has long been associated with uncertainty and anomaly. It was based on common law principles (established in many cases before the establishment of professional police forces) and was developed by ad hoc statutory additions as well as by judicial interpretation. Police practice, in addition, might not follow the letter of the law. PACE followed the report in 1981 of the Royal Commission on Criminal Procedure which was set up following concern over serious miscarriages of justice. It aimed to clarify police powers, extending them where necessary, but also providing clear safeguards for individuals against misuse of the powers by making clear the procedures to be followed and the limits of the powers as well as their extent. Difficulties with the operation of PACE led to the passing of the new statute, CJPOA, in 1994. More recently, the Police Act 1997 and the Regulation of Investigatory Powers Act 2000 have put police powers of surveillance on a statutory basis. Surveillance must now be authorised by an empowered police officer and must take account of a suspects privacy and other human rights before being permitted.
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ARREST
Arrest is a deprivation of a persons freedom of movement. It consists of the seizure or touching of a persons body with a view to his restraint. Words may be sufficient if they are calculated to bring, and do bring, to a persons attention the fact that he is under restraint and he then submits.
ALDERSON v BOOTH [1969] 2 All ER 271 illustrates the
importance of making clear that someone is under arrest. Instead of saying I arrest you, PC Booth said, I shall have to ask you to come to the police station for further tests. While these words were polite, they were not sufficiently clear to bring home to the appellant the fact that he was under arrest. Although the officer had intended to make an arrest, no arrest had occurred in the circumstances. In R v INWOOD [1973] 2 All ER 643, where the defendant had gone voluntarily to a police station to help the police with their enquiries and had not been told that he was under arrest, a conviction of assaulting a police officer in the execution of his duty when the defendant attempted to leave the station was set aside. Stephenson LJ said, there is no formula to suit every case different procedures might have to be followed with different persons, depending upon their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is only the obligation on the police to make it plain to the person that he is no longer a free man. In ALDERSON v BOOTH Lord Parker CJ said that the simplest and clearest form of words to use was I arrest you. The principle that a person must be informed of the fact of arrest is given statutory effect by s.28(1) PACE: when a person is arrested otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as practicable after his arrest. This applies even if the fact of the arrest is obvious, but does not apply if it was not reasonably practicable for him to be so informed because of his having escaped from arrest before the information could be given. Arrest is a step in the process of bringing criminals to justice and can only be effected with lawful authority.
A RREST WITH WARRANT

A police officer who believes that a specified person has committed a crime may make a sworn statement to a magistrate, who is empowered to issue a written warrant for arrest. Any arrest of the specified person made on the authority 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 without naming a specific individual was held illegal in LEACH v
MONEY (1765) 19 St Tr 1001
the warrant for arrest on a criminal matter need not be in the possession of the arresting officer.
A RREST WITHOUT A WARRANT

The powers of both private persons and constables to effect an arrest without a warrant were based on the common law, but s.2 of the Criminal Law Act 1967 created statutory powers of arrest without warrant for both private persons and constables, in connection with what the act termed arrestable offences. In addition, over the years powers of arrest without warrant have been conferred piecemeal by numerous Acts of Parliament in connection with specific offences. The Royal Commission on Criminal Procedure 1981 criticised the lack of clarity and the confused nature of the law relating to summary arrest. The intention of Part III of PACE was to simplify and clarify the law. It does this by repealing almost all the existing statutory powers of arrest without a warrant. Instead, the majority of police powers to arrest without a warrant are contained in the Act and there is potentially a power of arrest for every criminal offence. But matters are complicated by the creation of: two categories of offence and three categories of power of arrest. There is also the common law power of arrest without a warrant in connection with a breach of the peace.
THE ARRESTABLE OFFENCE

The arrestable offence was originally created by s.2 of the Criminal Law Act 1967. That section is now repealed by s.24 of PACE which contains a wider definition of arrestable offence for which an arrest may be made summarily, i.e. without a warrant. 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 (not previously convicted) may be sentenced to imprisonment for a term of five years the offences listed in paragraphs (a) to (e) of s.24(2) (which are offences which are not punishable by five years imprisonment but which are considered to be serious enough to be arrestable offences, e.g. indecent assault on a woman, going equipped for stealing)
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attempts to commit arrestable offences and conspiring, inviting, aiding, abetting, counselling and procuring such offences 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, in the act of committing an arrestable offence: s.24(4) where an arrestable offence has been committed, anyone who is guilty, or is reasonably suspected of being guilty, of the offence: s.24(5). Section 24(4) and (5) provide what are described as citizens arrest powers, but they are available to police officers as well as citizens. Police officers, however, also have the wider powers provided by s.24(6) and (7): where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence: s.24(6) a constable may arrest without a warrant anyone who is about to commit, or whom he reasonably suspects to be about to commit, an arrestable offence: s.24(7). The difference between s.24(5) and s.24(6) is illustrated by WALTERS v WH SMITH [1914] 1 KB 595: a bookstall manager reasonably suspected that W had stolen a particular book from his stall and arrested him under the common law power which is now s.24(5). Other books had been stolen, but not this particular book, therefore no arrestable offence (felony in 1914) had been committed. W obtained damages for false imprisonment. The arrest would have been lawful had it been effected by a constable.
GENERAL OFFENCES
These include all offences which are not arrestable offences or the subject of a specific statutory power of arrest without warrant, i.e. all offences which are tried summarily, including offences such as driving without lights and depositing litter. Section 25(1) provides that, where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted, or is being committed or attempted, he may arrest the relevant person if it appears to him that service of a summons is impracticable or inappropriate because one or more of the general arrest conditions set out in s.25(3) paragraphs (a) to (e) is satisfied, e.g. that the name of the person is unknown to and cannot be readily ascertained by the constable; that the person has failed to provide a satisfactory address for service of a summons.
S TATUTORY POWERS OF ARREST

WITHOUT WARRANT
Section 26(1) provides that any such statutory powers shall cease to have effect, but this is subject to s.26(2) which
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preserves the statutory powers of arrest specified in Schedule 2 of the Act. Schedule 2 lists the Acts of Parliament which contain powers authorising a constable to arrest without a warrant or a court order, each of which is preserved because there is believed to be a need for powers of arrest unfettered by the general arrest conditions of s.25 in respect of offences which are not sufficiently serious to be categorised as arrestable offences, or in order to preserve powers of arrest in respect of persons who have not committed criminal offences but must be detained either for their own safety or because they are illegally at large. The Public Order Act 1986 contains many such sections. Section 26(1) repeals only those statutory powers which enable a constable to arrest without warrant. Consequently, powers of arrest given to citizens (e.g. s.41 Sexual Offences Act 1956, which permits citizens to arrest any man found persistently soliciting in a public place for immoral purposes and persons found committing the offence of living on the earnings of male prostitution), to immigration officers, customs and excise officers, and others, are unaffected by the repeal.
C OMMON LAW POWER OF ARREST

WITHOUT WARRANT
The one remaining common law power of arrest is unaffected by PACE. The Court of Appeal in R v HOWELL [1981] 3 All ER 383; [1982] QB 416 held that the power to arrest is available to a constable and a private citizen where: a breach of the peace is committed in the presence of the person making the arrest the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach a breach of the peace has been committed and it is reasonably believed that a renewal of it is threatened. In HOWELL, Watkins LJ explained the meaning of breach of the peace. There is a breach of the peace whenever harm is actually done or is likely to be done to a person or, in his presence, to his property, or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance. Violence, therefore, actual or apprehended, is an essential ingredient of breach of the peace. Loud noise or boisterous behaviour is not, without more, a breach of the peace. In R v
CHIEF CONSTABLE OF DEVON AND CORNWALL EX PARTE CENTRAL ELECTRICITY GENERATING BOARD [1981] 3 All ER 826
Lord Denning MR, in the context of a demonstration against the possible choice of a site for a nuclear power station which took the form of obstruction of the boards workers, included unlawful passive resistance in the definition: There is a breach of the peace whenever a person who was lawfully carrying
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out his work was unlawfully and physically prevented by another from doing it. The House of Lords in ALBERT v LAVIN [1982] AC 465 held that the common law allows a person to temporarily detain and restrain a person breaking or threatening to break the peace without arresting him. If he desists or ceases to threaten a breach of the peace he may be released. If he persists he may be arrested. Resistance to such restraint is unlawful. Lord Diplock pointed out that it is not only the right of a citizen to take reasonable steps to stop or prevent a breach of the peace, it is also his duty. Such a duty normally falls upon police constables. In MOSS v McLACHLAN (1984) 149 JP 167 the Divisional Court held that the police had reasonable grounds for apprehending an imminent breach of the peace when they arrested four defendants after stopping a convoy of striking miners on the M1 in Nottinghamshire preventing them from continuing on to join a main picket at collieries nearby. The police had, therefore, been engaged in the execution of their duty at the time of the arrests and the defendants had been rightly convicted of wilful obstruction of a police officer in the execution of his duty contrary to s.51(3) Police Act 1964.
Think Point 2
List the circumstances in which a police officer may arrest without warrant.
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A SPECTS OF ARREST
R EASONABLE CAUSE TO SUSPECT
This phrase underlies most of the powers of arrest without warrant. As might be expected, it has not been given a full judicial interpretation as the reasonable suspicion must ultimately be judged on the facts as they appeared at the time of the particular arrest. But judicial guidance has been given. It does not have to amount to a prima facie case against the arrested person. In HUSSIEN v CHONG FOOK KAM [1970] AC 942; [1969] 3 All ER 1626 Lord Devlin said that suspicion was a state of conjecture or surmise where proof was lacking. Suspicion arises at or near the starting point of an investigation of which obtaining prima facie proof is the end. Where prima facie proof is obtained, the police case is complete. The matter is ready to pass on to the next, the judicial, stage. The test of reasonableness is objective, i.e. it cannot depend only on the arrestors state of mind. In HOLGATE-MOHAMMED v DUKE [1984] 1 All ER 1054 the House of Lords applied Lord Greene MRs principles set out in ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION [1948] 1 KB 223 (CA) and applicable to the exercise of an executive discretion by a public official. The constable must act in good faith, exercise the power of arrest for a proper purpose, and irrelevant matters must be excluded from consideration. The police officer, investigating a theft, had suspicions about the plaintiff and believed that there was a greater likelihood that she would respond truthfully to questions at the police station than at home. He arrested her for the purpose of taking her to the police station for questioning. The House of Lords held that the officers belief was not irrelevant and that the discretion to arrest had been exercised properly. The courts have allowed the police much leeway to arrest where suspicion is at a low level. In
CASTORINA v CHIEF CONSTABLE OF SURREY (1988) NLJ 180
detectives were investigating a burglary of a companys premises and came to the conclusion that it was an inside job. They then arrested a dismissed employee, a middle aged woman with no criminal record. She was detained and released without charge. She sued unsuccessfully for false imprisonment. The Court of Appeal held that where an unlawful arrest is alleged two questions must be answered: firstly did the arresting officer suspect the person to be guilty (a subjective test), secondly was there a reasonable cause for suspicion (an objective test). If the answer to both was yes then the officer had discretion to make an arrest.
ENTRY ON TO PRIVATE PREMISES TO MAKE AN ARREST

PACE replaces the previous statutory and common law powers possessed by constables to enter premises to make
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an arrest. Section 17(1) confers upon a constable power to enter and search any premises for the purpose of: executing a warrant of arrest issued in connection with or arising out of criminal proceedings arresting a person for an arrestable offence arresting a person for specified offences under the Public Order Act 1936 (political uniforms, offensive weapons at public meetings, offensive conduct conducive to a breach of the peace) and Criminal Law Act 1977 (offences relating to entering and remaining on property, i.e. squatting offences). The constable must have reasonable grounds for believing that the person he is seeking is on the premises: s.17(2)(a). For the lawful exercise on private premises of a specific power of arrest without warrant conferred by an Act of Parliament included in Schedule 2 of PACE (preserved powers of arrest the third category of arrest without warrant powers referred to above) the statute must authorise the entry as, for example, do ss.5 and 7 of the Road Traffic Act 1972 as amended by the Transport Act 1981.
USE OF FORCE TO EFFECT AN ARREST

Section 3(1) of the Criminal Law Act 1967 provides that a person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. This applies generally, not only to arrest, and applies to any person 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 to use reasonable force, if necessary, in the exercise of powers conferred by the Act, e.g. the powers of arrest conferred.
R EASONS FOR ARREST

The common law principle, stated by the House of Lords in CHRISTIE v LEACHINSKY [1947] AC 573 , is that a person who is arrested without a warrant must be informed of the true ground of arrest. Otherwise the arrest will be unlawful, as it was in CHRISTIE v LEACHINSKY when L was told that he was being arrested for unlawful possession of a bale of cloth contrary to the Liverpool Corporation Act 1921. The police had no power to arrest without warrant under the Act because the Act only permitted such arrest where the persons name and address were unknown. L was eventually charged with larceny and was acquitted. He sued the police officers for damages for false imprisonment. The officers argued that at the time of the arrest they reasonably suspected L of having stolen or having feloniously received the cloth. The House of Lords held that, as L had not been told the real reason 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, he was entitled to damages. In ABBASSY AND OTHERS v NEWMAN AND OTHERS [1990] 1 All ER 193 the Court of Appeal held that the trial judge in a civil action against the police for unlawful arrest and other matters had been wrong to hold that the reason given for the arrest, namely unlawful possession was necessarily insufficient as reason for an arrest for the subsequent charges of theft, or receiving, or illegally taking and driving away, a motor vehicle. Section 28 incorporates the common law rule of CHRISTIE v LEACHINSKY : no arrest will be lawful unless the person arrested is informed of the ground of arrest at the time of, or as soon as is practicable after, the arrest. Where a person is arrested by a constable this applies even if the ground of arrest is obvious: s.28(4). In DPP v HAWKINS [1988] All ER 673, a police officer arresting a person did not act outside the execution of his duty if during an arrest it was not practicable to give the reason for the arrest because the accused physically resisted arrest, and when it became practicable later he did not do so. An assault on the officer was an assault on him in the execution of his duty. However, in EDWARDS v DPP 1991 Crim.L.R. 45 CA where the reason given for the arrest was incorrect, the arrest was unlawful: giving the correct information for the arrest was held to be of the utmost constitutional significance.
D ETENTION FOR QUESTIONING BEFORE

ARREST
The police, in the execution of their duty to keep the peace, prevent crime and bring criminals to justice, may make reasonable enquiries and ask questions of the public: RICE v CONNOLLY [1966] 2 QB 414; 2 All ER 649.
RICE v CONNOLLY also established that a person is under no legal obligation to answer such questions, and refusal to answer does not in itself constitute the offence of wilful obstruction of a constable in the execution of his duty contrary to s.89 Police Act 1996. Lord Parker CJ said that the duty to help the police was social or moral in character and not legal. Rice had declined to give his full name and address to police officers. His conviction of wilful obstruction of the officers was quashed.
It might be different if the refusal to answer police questions about an alleged offence is accompanied by hostile and abusive behaviour, as in RICKETTS v COX (1982) 74 Cr App Rep
298.
These are common law principles. Some Acts of Parliament do impose a legal duty to answer police questions in the specified circumstances, e.g. Prevention of Terrorism (s.11 Temporary Provisions) Act 1984, s.6 Official Secrets Act 1920. Under s.159 of the Road Traffic Act a constable in uniform has power to require a person driving a motor vehicle on the road to stop and, under s.161, a constable (whether in uniform or not) 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 a road. The common law power of a constable to ask questions does not carry with it a power to detain a person for questioning. There are also numerous cases concerned with whether an assault on a police officer arising out of the officers attempt to detain in order to ask questions is an assault on the officer in the 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 All ER 987 is distinguished because there the officer merely tapped a 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 (see above) held that where there was reasonable suspicion that a person had committed an arrestable offence it was permissible for a constable to arrest in order to take the suspect to a police station where there was a greater likelihood that the suspect would respond truthfully to questions than at home. There is no common law power to detain for questioning without a formal arrest. PACE does not confer any such power on the police. Where a person has voluntarily attended or accompanied a police officer to a police station, s.29 of the Act states that he shall be entitled to leave at will unless he is placed under arrest and is informed of that fact at once. A person must be cautioned upon arrest for an offence unless it is impracticable to do so. Here it is important to refer to the Codes of Practice which may be issued by the Home Secretary, laid in draft form before Parliament and brought into effect by statutory instrument. These were last revised in 1995. Code C deals with detention, treatment and questioning of persons by police officers. Following changes introduced in the CJPOA the new words of the caution are given in the revised Code C: You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence. This provision must be read in conjunction with the stipulation in the Code that interviewing should take place at the designated police station however there may be exceptions to this requirement, for example if there is a risk of harm to evidence. An interview is the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offences. It is crucial to decide whether an exchange is an interview or not because, if it is, various safeguards for the suspect come into play. The new statute makes several inroads to what is generally known as the right to silence and it appears that this applies both on arrest and during questioning at the police station. Thus under CJPOA s.34 the effect of the accuseds failure to mention facts when questioned or charged which are subsequently 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 be drawn from the accuseds failure or refusal to account for objects, substances or marks, or for his presence at a particular place. Guidance on appropriate inferences to be
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drawn from silence at trial is given in R v COWAN [1995] 3 WLR 818 . Under the provision of paragraph 11.2A of the Code, the interviewing officer at the police station may put to the suspect any significant statement or silence which occurred before his arrival at the police station. The Court of Appeal has now held that legal advice not to answer questions at police interview will not in itself amount to sufficient reason for not mentioning relevant matters which the defendant may later rely on (R v CONDON 1997 1 WLR 827) . See also R v DANIEL [1998] The Times, 10 April.
D ISPOSITION 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 trial Suspect must have been arrested and given the special must offer explanation which warning (Code C paras 10.5 A and B). might reasonably have been given earlier (s.34(1)) Suspect must be interviewed at police station unless the special conditions of Code C para 11.1 apply, e.g. danger of interferene with evidence. Arrested suspect at interview Suspect should be given opportunity at start of interview to should be given opportunity confirm/deny earlier failure to account outside police station. to confirm/deny earlier silence outside police station. Suspect must fail to account for objects, substances or marks. Silence cannot be used as part of primary case against suspect. His failure to so account can be used as part of the primary case against him. Suspect must fail to account for presence. His failure to so account can be used as part of the primary case against him.
Suspect shall not be committed for trial or be convicted solely on silence, failure or refusal to account (s.38(4)). Note: Code C issued under Police and Criminal Evidence Act 1984.
Where an arrest warrant has been issued, police officers must comply with the terms of the warrant, which will require either production of the arrested person in court straightaway or his release on bail. Where a private person arrests without a warrant he should take the arrested person to a police officer or magistrate as soon as is reasonably possible. Section 30(1) provides that, where a person is arrested by a constable for an offence, or is taken into custody by a
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constable after being arrested for an offence by a person other than a constable at any place other than a police station, he shall be taken to a police station as soon as is practicable after the arrest. Normally this would be a designated police station, i.e. one used for the purpose of detaining arrested persons and having the necessary facilities. Section 30(10) allows a delay if the presence of the arrested person is necessary elsewhere in order to carry out immediate investigations. Such delay must be recorded on arrival at the police station. Before PACE came into effect it was most uncertain as to how much time the police had at their disposal to question an arrested person and further pursue their enquiries before formally charging him with an offence and producing him before a court. Research conducted for the Royal Commission on Criminal Procedure 1981 indicated that 75 per cent of suspects are formally charged or released within six hours and 95 per cent within twenty-four hours. But there was no specified time limit, and in some cases suspects were held by the police for periods of up to five days (seven days in R v MACINTOSH [1982] The Times, 8 October ) before a charge was made. Part IV of PACE gives much clearer and more specific statutory rules relating to the duration of police detention. Each designated police station must have a custody officer to review the continued applicability of the grounds for detention of a person and to ensure that the duties imposed by the Act and the Code of Practice (revised in 1995) relating to reviews of detention and the keeping of records are complied with. Section 40 of the Act provides for periodic reviews by the police of the detention of each person, the first review being normally after six hours with subsequent reviews at nine-hour intervals. Section 41 provides that a person shall not be kept in police detention for more than twenty-four hours without being charged with an offence. The relevant time from which the twenty-four hours is to run is explained in s.41(2) to (6) and is normally the time of arrival of the detained person at the relevant police station, i.e. the first police station to which he is taken in the police area in which his arrest was sought. A person who has not been charged at the end of twenty-four hours shall be released (unless s.42 or s.43 applies) either on bail or without bail: s.41(7). Section 42 deals with the situation where a person is under arrest in connection with a serious arrestable offence as defined in s.116 and Schedule 5. This phrase occurs several times in PACE. Serious arrestable offences must be distinguished from arrestable offences. The list includes offences which are obviously serious, such as murder and manslaughter, but it also specifies that other offences can become 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 or with 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, if he has reasonable grounds for believing that the detention of the person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, authorise keeping that person in police detention for up to thirty-six hours after the relevant time. The detained person, or a solicitor representing him, shall be given an opportunity to make representations to the officer about the detention: s.42(6). Section 43 provides that if the police, in a case covered by s.42, wish to detain a person without charge for longer than thirty-six hours, they must apply to a magistrates court, normally before the expiry of the thirty-six hours, and satisfy the court that there are reasonable grounds for believing that further detention is justified. The court may issue a warrant of further detention authorising the keeping of the person in police detention for such period as the court thinks fit, but for no longer than thirty-six hours. The person detained must be informed of this application to the magistrates court and must be brought before the court where he will be entitled to legal representation: s.42(2) and (3). Under s.44 the police may apply to the court for an extension of a warrant of further detention which can be for no longer than another thirty-six hours. In all, detention without charge cannot exceed ninety-six hours after the relevant time. Section 46 provides that where a person is charged with an offence and is then kept in police detention he shall be brought before a magistrates court as soon as is practicable and in any 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 detain persons reasonably suspected to be involved in offences under the Act for up to forty-eight hours and for a further five days with the consent of the Home Secretary.
QUESTIONING OF SUSPECTS IN POLICE

DETENTION
From 1912 this was governed by the Judges Rules, a nonstatutory code of practice, drafted by the judges, which the police were expected to follow. The Rules dealt with the giving of cautions to suspected offenders at specified times during an investigation and with the reception and use of admissions
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and confessions as evidence. Once a person was formally charged with an offence, the right of the police to continue to question him was severely restricted by the Judges Rules. The Judges Rules have been replaced by the Codes of Practice relating to the detention, treatment, questioning and identification of persons by the police.
QUESTIONING OF SUSPECTS AND THE

RIGHT TO LEGAL ADVICE
PACE gives all persons arrested and held at a police station a right to have someone informed of the fact and place of their detention. By s.58 they are, in most cases, to be allowed access to a solicitor, delay being allowed only in the case of a serious arrestable offence and if an officer of at least the rank of superintendent authorises it. He may authorise delay if he has reasonable grounds for believing that the exercise of the right 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 committed such an offence but not yet arrested for it or hindering of the recovery of any property obtained as a result of such an offence. The conduct of the interrogation is covered in detail by The Code of Practice, revised in 1995. They cover such matters as the administering of the caution, the amount of rest which suspects must be allowed and recording of the interviews. A major problem with the Act is that there is no enforcement procedure: breaches of the Code or statute do not in themselves constitute civil or criminal wrongs. The options open to the suspect who has suffered a breach of the Code are: to make a complaint, which may lead to disciplinary action against the police to attempt at the trial to have any evidence obtained as a result of the breach of procedure declared inadmissible. Much contest revolves around confessions which the suspect wants to retract. Because of the risk of a confession being made for a number of reasons other than guilt for example, fear, intimidation, or other psychological compulsion the rules of evidence have been developed to protect vulnerable suspects. These are now to be found in three sections of PACE 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 confession evidence s.76(20)(b) Reliability test applies only to confession evidence s.78 Fairness test applies to confession and nonconfession evidence.
Section 76(2) This section provides that, if it is alleged that a confession was obtained: by (a) oppression or (b) in consequence of anything said or done that was likely to render any confession unreliable the confession will not be admitted unless the prosecution can prove beyond reasonable doubt that it was not so obtained. Section 76(2)(a) Here, oppression includes torture but is much wider. The leading case on s.76(2)(a) is R v FULLING [1987] 2 All ER 65 where it was defined as the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment of subjects inferiors etc. the imposition of unreasonable or unjust burdens. In this case the defendant Ruth Fulling was arrested in connection with a burglary. A convicted criminal had given information leading to the arrest. Initially Fulling remained silent but then one of the officers told her that her boyfriend had been having an affair with another woman who was in the next cell. Upon hearing this, Fulling became very upset and confessed, since she could not bear to be in the cell any more. She later argued that the confession should be excluded on the grounds that it was obtained by oppression. The Court of Appeal upheld the trial judges ruling, refusing to exclude the confession. It was held that oppression would usually involve deliberate impropriety on the part of the interrogator. The definition of oppression in FULLING was applied in R v MILLER (reported sub nom R v PARIS, ABDULLAH and MILLER (1993) 97 Cr App R 99). The Court of Appeal quashed the convictions for murder of a Cardiff prostitute because the confessions were obtained by oppression. Miller had been interviewed for 13 hours in total and had denied being at the scene over 300 times before he began to make admissions. The interviews were tape recorded. The Court of Appeal found that Miller was bullied and hectored such that short of physical violence it was hard to conceive of a more intimidating approach by officers to a suspect. These techniques were regarded as oppressive. It did not help the police to argue that there was a solicitor present who failed to intervene. In R v HUGHES (1988) Crim LR 442 it was held that denial of access to a solicitor which was not due to bad faith on the part 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 to whether the facts existing at the time the confession was made would be likely to render it unreliable is objective. It is not necessary under this test to show that there has been any misconduct on the part of the police. In R v HARVEY (1988) CRIM LR 241 the defendant, a mentally ill woman of low intelligence, may have been induced to confess to murder after hearing her lesbian lovers confession. The something said or done was the lovers confession, while the circumstances were the defendants low intelligence and her mental state. It is necessary therefore to find some special factor in the situation such as the mental condition of the defendant in order to involve s.76(2)(b). In R v CANALE (1990) 2 All ER 187 there was breach of the recording provisions and, it was alleged, a trick played by the police to obtain a confession. The court held that exclusion under this section was inappropriate because the defendant had been in the Parachute Regiment and was not so weak-minded as to be influenced by the trick. But in R v
SILCOTT, BRAITHWAITE, RAGHIP (1992), The Times, 9 December
there was a need to overturn the convictions inter alia, out of consideration of the mental condition of one of the defendants when he made the confession. In R v GOLDENBERG (1988) 88 Cr App R 285 the Court of Appeal held that something said or done canot be something selfinflicted by the defendant. Section 78 This section provides that: in any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. This is the discretionary fairness test which was designed to safeguard the fairness of the trial rather than discipline the police for malpractice. The case law shows that where there is bad faith on the part of the police for example in deliberately 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 allowing access to a solicitor led to the confession being ruled inadmissible. Here the defendant was not able to handle the interview without legal advice. But in R v ALLADICE (1988) 87 Crim App Rep, delay was held not to render the confession inadmissible. Lord Lane stated that the only difference the presence of a solicitor would have made would have been to provide additional advice to the appellants right to say nothing a right which he knew and understood and indeed at times during the interview exercised. There was no causal connection between the delay and the confession.
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In R v MASON [1988] 1 WLR 139 the police tricked the defendant into confessing by falsely claiming to have his fingerprints on an incriminating article. The deceit both of the police and of the solicitor led to the confession being ruled inadmissible. It seems that s.78 will be applied if there is deliberate bad faith on the part of the police or a significant and substantial impropriety not accompanied by bad faith. Bear in mind that if there are several interviews, breaches in one may render even properly conducted subsequent interviews inadmissible since the suspect may reckon he has nothing to lose, R v McGOVERN [1991] Crim LR 124 . Section 82(3) Section 82(3) preserves the common law discretion of the judge to rule any piece of evidence inadmissible, but in practice is not invoked because of the prevalence of the other tests. The importance of this rule is much diminished by the scope of s.78 of PACE which is normally relied on.
IMPROPERLY OBTAINED EVIDENCE OTHER THAN CONFESSIONS

Under the common law the discretion to exclude improperly obtained evidence other than confessions was rarely exercised. In JEFFREY v BLACK [1978] 1 All ER 555 , Lord Widgery CJ said: I have not the least doubt that an irregularity in obtaining evidence does not render the evidence inadmissible. Whether or not the evidence is admissible depends on whether or not it is relevant to the issues in respect of which it is called. In R v SANG [1980] AC 402, a case involving an agent provocateur, it was held that there was no defence of entrapment in English law. The House of Lords appeared also to maintain that it is arguable that the common law exclusionary power is limited to confessions, and evidence obtained from the accused after the commission of the offence. Section 78 of PACE applies to any evidence and its application was considered in R v CHRISTOU and R v WRIGHT [1992] 3 WLR 228. In this case, in order to deal with a spate of burglaries the police set up a shop run by two officers who pretended to be jewellers prepared to buy stolen goods. The two defendants were filmed offering stolen goods for sale. They appealed on two grounds: firstly that the police trick deprived them of their privilege against self-incrimination and secondly that the conversations with the police were interviews and therefore Code C was breached. The appeals were rejected. The court acknowledged that there was a discretion to exclude evidence under PACE and at common law and that criterion of unfairness was the test; the trial judge had not acted unreasonably in the exercise of the discretion. They also held Code C did not apply because the defendants were not being questioned by the undercover police in their capacity as police officers.
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In R v SMURTHWAITE (1994) Crim LR the Court of Appeal considered the application of s.78 to evidence obtained with the assistance of entrapment. Smurthwaite had made inquiries for a contract killer and was approached by an undercover police officer. Smurthwaite was convicted of solicitation to murder and on appeal argued that the evidence of the undercover officer should have been excluded. The court upheld the conviction. It was held that s.78 has not changed the substantive rule of law that entrapment or use of an agent provocateur does not per se afford a defence in law to a criminal charge. However, evidence obtained by entrapment can be excluded under s.78 if the trial judge concludes that the obtaining of the evidence in that way would have the adverse effect described in the Act. The court should consider whether the officer was acting in such a way as to entice the defendant to commit an offence he would otherwise not commit. The court should consider the nature of the entrapment and the nature of the officers role in it. Each case turned on its own facts. In R v KHAN [1996] 3 WLR 162 the House of Lords upheld a conviction where evidence had been obtained by unlawful installation by the police of an electronic listening device in a private house. However, in the same case before the European Court of Human rights (KHAN v UK [2001] 31 EHRR 1016 ), it was held that the complainants right to privacy under Article 8 of the Convention had been breached. Even so, the Court also held that admission of the unlawfully obtained evidence did not constitute 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

N ECESSITY OF AN ARREST
At common law the power of a police officer to search a person 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 a place other than a police station a constable may, if he has reasonable grounds for believing that the arrested person may present a danger to himself or others, search an arrested person. An arrested person may also be searched for anything which might help him to escape or which might be evidence of an offence. The constable may seize and retain anything he finds which he has reasonable grounds for believing the arrestee might use to cause physical injury to self or another, or to escape. If the search is in public, only outer clothing should be removed. Items relevant to evidence of any offence may also be seized. The premises where the arrested person was when, or immediately before, he was arrested may be entered and searched for evidence of the offence for which he was arrested by virtue of s.32(6) and (7). Reasonable grounds for believing that such items may be concealed must exist. Seizure and retention of articles found are covered by s.32(8) and (9). Sections 54 and 55 of the Act provide for the search of persons arrested at a police station and of persons detained following an arrest elsewhere. The custody officer at a police station must ascertain and record everything which such a person has with him, but clothes and personal effects may only be seized in the prescribed circumstances. Section 55 is concerned with searches of intimate parts of the body. These are authorised only in the special circumstances prescribed by s.55.
S TOP AND SEARCH

The common law did not permit a constable to stop a person for the purpose of searching him. The stopping of a person without his consent was technically a false imprisonment and the search was an assault. However, the Metropolitan Police Act 1839 gave the police in London power to stop and search persons and vehicles reasonably suspected of having stolen property on them. The same power was adopted in local Acts for urban areas outside London. Fear that the notorious sus law had been abused thus leading to the Brixton riots in 1981 was one of the driving forces behind the regularisation of stop and search powers in PACE . A small number of public general Acts of Parliament have been passed to confer such a power of 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 on the police in England and Wales. Sections 1 and 2 empower the police to stop, detain and search persons and vehicles for stolen or prohibited articles as defined, e.g. offensive
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weapons, articles for use in burglary, theft, taking a motor vehicle without authority, and obtaining property by deception. The constable must have reasonable grounds for suspecting that he will find such articles. A Code of Practice on the Exercise of Stop and Search Powers, issued by the Home Office under s.66 seeks to explain and clarify the very wide term reasonable suspicion, e.g. reasonable suspicion can never rest solely on colour, dress or hairstyle. Other safeguards include the requirement that the constable must communicate the object of the search, his grounds for proposing to make it, and his name and police station: ss.2(2) and (3). A record in writing must be made unless it is impracticable to do so: s.3. The power to stop and search conferred by the Act is exercisable in any place to which the public or any section of the public has access for payment or otherwise, or to which people have ready access but which is not a dwelling e.g. the rear of a shop, works canteen: s.1(1). Section 4 of the Act enables a police officer of the rank of superintendent or above, in connection with a serious arrestable offence, to authorise the establishment of a roadcheck to ascertain whether a vehicle is carrying a person who has committed an offence (other than a road traffic offence) or a witness to such an offence or a person intending to commit such an offence or a person unlawfully at large. The police have the power under s.163 of the Road Traffic Act 1988 to stop individual vehicles. Section 4 confers the power to stop all vehicles if necessary. The police are entitled to detain the vehicle for a reasonable time so as to enable the police, if they suspect the vehicle to be stolen, to effect an arrest. However, s.163 does not provide a power to search the vehicle. Nor does s.4 of PACE . Searches must come within the provisions of s.1 or s.17 of PACE .
POWERS OF ENTRY ONTO PREMISES ; SEARCH AND SEIZURE

The common law principle is that nobody has the right to enter 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 the Act, premises is defined in s.23 as including any place and also any vehicle, vessel, aircraft, hovercraft, tent or moveable structure. Powers of entry are also possessed under various statutes by other public officials. The necessary authority to enter premises may come from the following. Entry with the express or implied consent of the occupier. For the police this is numerically the most common authority. 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 any premises in which the arrested person was when arrested or immediately before he was arrested for evidence relating to the offence for which he was arrested. The police must have reasonable grounds for believing that such 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 return later to search premises which could have been, but were not, searched at the time of arrest. Entry by a constable to search premises following an arrest: s.18. Where a person has already been arrested for an arrestable offence away from his own premises, police may enter and search any premises occupied or controlled by that person if there are reasonable grounds for suspecting that evidence is on the premises relating to that offence or to some other connected or similar offence. Under this section items connected with the arrestable offence for which the person was arrested, or another connected arrestable offence, may be seized. There is no need for the justification mentioned in s.19 (see below). An officer of inspector rank or above must authorise the search except where a constable may conduct a search before taking a person to police station if the search is necessary for the effective investigation of the offence: s.18(5). Entry by a constable to recapture a person who is unlawfully at large and whom he is pursuing: s.17(1)(d). Reasonable grounds must exist for believing that the person is on the premises. This replaces the ancient but uncertain position at common law. Entry by a constable to save life or limb or prevent serious damage to property: s.17(1)(e). Again this replaces an old but uncertain common law power. The police need not be searching for anyone and there is no requirement that the threat should concern the premises in question. Entry by a constable to deal with or prevent a breach of the peace: s.17(6). Based on an old common law power. Rights of entry available to ordinary citizens are still based on old and uncertain common law powers. Entry under the authority of specific statutory provision for public officials to inspect premises or to supervise activities, e.g. the Gaming Act 1968 allows a constable to enter premises without a warrant to examine whether terms of a gaming licence are being observed. Similar powers exist in relation to public houses, cinemas, theatres and knackers yards. Many other public officials have statutory 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 on officers who are lawfully on the premises. Under this section anything which the constable has reasonable grounds for believing is evidence of any offence may be seized if it is necessary to prevent it being concealed, lost, altered or destroyed. Section 20 of the 1984 Act extends the powers of seizure to computerised information. Section 21 provides for access to and copying of material seized by the police. Section 22 provides that anything seized or taken away by a constable under s.19 or s.20 may be retained so long as is necessary in the circumstances. The above powers cover situations where the police are lawfully on premises. Section 19(5) provides that, the powers conferred by this section are in addition to any power otherwise conferred. This arguably refers to common-law powers of seizure demonstrated in GHANI v JONES [1970] 1 QB 639 (see below) which cover trespassing constables.
E NTRY UNDER THE AUTHORITY

OF A SEARCH WARRANT TO SEARCH PREMISES
The only search warrant permitted by the common law was one to search for stolen goods. Numerous somewhat haphazard statutory powers exist for police to obtain a search warrant to enter and search for e.g. stolen goods, explosive substances, forgeries, firearms, prohibited drugs, obscene publications. Search warrants may also be obtained by inspectors of income tax, Value Added Tax, and customs and excise. A search warrant is usually issued after an information on oath has been laid before a magistrate. The extent of the statutory power conferred varies. Some warrants authorise search for and seizure of evidence of the commission or intended commission of an offence. Others are drafted more narrowly in terms of the specific articles to be searched for.
ENTICK v CARRINGTON (1765) 19 St Tr 1029 established the illegality of general search warrants. Following that decision, the judges allowed the common law on search warrants to be developed with some flexibility in order not to hinder the police in the investigation of crime. This culminated in GHANI v JONES in which Lord Denning MR said obiter that, where police officers enter premises by virtue of a search warrant or even where there is no warrant or arrest, they can take articles which they reasonably believe to be material evidence in relation to the crime for which they enter and also any other articles which show the occupier of the premises to be implicated in some other crime. In this case and in CHIC FASHIONS v JONES [1968] 2 QB 299 the
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Court of Appeal extended powers of seizure without statutory authority. With one minor exception, all the pre-existing search warrant powers 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 serious arrestable offence has been committed, to apply for a search warrant from a magistrate to authorise a search of premises where there is likely to be relevant evidence. This fills the gap in the previous law and enables the police to obtain a warrant to search for evidence of murder and kidnapping which was not previously covered by statute. Section 8 does not apply to legally-privileged material (as defined in s.10, e.g. a communication between a legal advisor and a client concerned with the giving of legal advice), which cannot be obtained by the police under any statutory power. Section 8 does not apply to excluded material (as defined in ss.11, 12 and 13, e.g. journalistic material held in confidence or personal records of a trade or business held in confidence), which cannot be obtained unless another statutory warrant power exists and the special procedure in Schedule 1 of PACE is followed. This involves an application to a circuit judge. The special procedure of Schedule 1 also applies to what is called special procedure material defined in s.14, e.g. nonconfidential journalistic material. The issue of a search warrant to a constable under any statutory enactment is subject to the safeguards contained in PACE. The applicant must state the reason for the search and the warrant must specify the name of the applicant, date of issue, empowering statute, premises to be searched and identify (so far as is practicable) the articles or person to be sought: s.15.
Revision
When you are satisfied that you have understood the material in the chapter, and have done the additional reading, try the Self-assessment Test which follows. Do not send your answers to your tutor, but compare them with the specimen answers provided.
A DDITIONAL READING
Bradley and Ewing, Chapter 21 Marston and Ward, Chapters 17, 18
30
Chapter 14

CHAPTER
* denotes most significant cases
R v METROPOLITAN POLICE COMMISSIONER EX PARTE BLACKBURN 1968 R v CHIEF CONSTABLE OF DEVON AND CORNWALL EX PARTE CENTRAL ELECTRICITY GENERATING BOARD 1981 R v CHIEF CONSTABLE OF SUSSEX EX PARTE INTERNATIONAL TRADERS FERRY LIMITED 1998 R v HOME SECRETARY EX PARTE NORTHUMBRIA POLICE AUTHORITY 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 WEDNESDAY CORPORATION 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
32
C ONSTITUTIONAL
AND
S ELF-ASSESSMENT TEST
QUESTION 1
Cyril was taking part in a protest demonstration in London against the policies of the Republic of Mordor. While the march was peacefully dispersing outside the Mordorian Embassy after the handing in of a petition of protest, Cyril was observed by two police officers still to be shouting antiMordor slogans and banging his banner on the ground. He was red in the face and looked very angry. The two officers approached Cyril and each took hold of an arm with the intention of moving Cyril away from the Embassy area in the hope he would calm down. However, Cyril resisted and struck one of the police officers and was then arrested for assaulting a police officer in the execution of his duty. Cyril was searched and the officers found an unauthorised firearm. Cyrils address indicated that he did not live far away so the officers took him to his flat, made him open the front door and then searched the flat where they found a number of expensive stolen goods. Cyril is now charged with assaulting a police officer in execution of his duty, possession of an unauthorised firearm and handling stolen goods. Discuss.
QUESTION 2
X is suspected by the police of having taken part in a number of 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 of arrest to the period of interviewing.
S PECIMEN ANSWERS TO S ELFASSESSMENT T EST

QUESTION 1
One of the fundamental duties of a police officer is to preserve the peace. To this end, although all other police powers of arrest without warrant are now authorised by statute, there still remains a common law power of arrest without warrant in connection with a breach of the peace. The Court of Appeal in R v HOWELL (1981) explained that the power of arrest did not exist only where a breach of the peace was actually committed. It also existed where a police officer, or a private citizen, reasonably believed that such breach would be committed in the immediate future by the person arrested although no breach had yet been committed. A breach 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) held that the common law allows a person to temporarily detain and restrain anyone breaking or threatening to break the peace without actually arresting him. If he persists he may then be arrested. Lord Diplock pointed out the duty of a citizen to take reasonable steps to prevent or stop a breach of the peace. This would appear to cover the circumstances described. ALBERT v LAVIN also held that resistance to temporary restraints in these circumstances is unlawful. When Cyril struck the officer he therefore committed the offence of wilfully assaulting a police officer in the execution of his duty contrary to s.89 of the Police Act 1996. The officers would have to tell Cyril that he was under arrest and the reason for the arrest as required by s.28 of the Police and Criminal Evidence Act 1984. At common law a police officer has a right to search an arrested person This common law power is put onto a statutory basis by s.32(1) of the Police and Criminal Evidence Act 1984, which provides that, where an arrest is made at a place other than a police station a constable may, if he has reasonable grounds for believing that the arrested person may present a danger to himself or others, search the arrested person. The search of Cyril appears reasonable in the circumstances and, therefore, legitimate. When the firearm is found Cyril would again have to be told of the fresh reason for his arrest. On the authority of JEFFREY v BLACK (1978) the subsequent search of Cyrils flat without his consent and without a search warrant would have been unlawful before the coming into effect of the Police and Criminal Evidence Act 1984. Section 18 of the Act allows the police, where a person has been arrested for an arrestable offence away from his own premises, to enter and search any premises occupied or controlled by that person. The police must have reasonable grounds for suspecting that evidence is on the premises
relating to that offence or to some other connected or similar offence. A constable may conduct such a search before taking the arrested person to the police station if the search is necessary in the effective investigation of the offence. The police found an unauthorised firearm when they searched Cyril. Possession of an unauthorised firearm is an arrestable offence as a person may be sentenced, on indictment, to a prison term of five years. A search of Cyrils flat would appear reasonable in the circumstances of the arrest, i.e. a political demonstration outside an Embassy and possession of an illegal firearm. Stolen goods, which the officers find during the search, could not be said to be a connected or similar offence to unauthorised possession of a firearm. But seizure and detention by the police of the stolen goods would be lawful under the provisions of s.19 of the Police and Criminal Evidence Act 1984. This section does not confer a power of entry onto premises but it does confer a power of seizure on a constable who is lawfully (as seems to be the case here) on premises. Even if the police are held to be unlawfully on the premises, arguably GHANI v JONES confers common law powers of seizure. The constable may seize anything on the premises if he has reasonable grounds for believing that it has been obtained in consequence of any offence and to prevent it from being concealed or destroyed. It therefore appears from the facts given that the police have acted lawfully and that the evidence of the firearm and the stolen goods can be used in a subsequent prosecution. Even where evidence has been obtained illegally it is only in extreme cases that a court would refuse to admit it if it is otherwise relevant to the prosecution. Section 78 of PACE rarely operates to exclude such evidence.
QUESTION 2
The police officers have exercised the power of arrest without warrant in connection with an arrestable offence conferred by s.24(6) of the Police and Criminal Evidence Act 1984. Section 28 of the Act requires certain information to be given to the arrested person. He must be informed that he is under arrest even if the fact of arrest is obvious and he must also be informed of the reason for the arrest at the time of the arrest or as soon as is practicable after the arrest. At common law, according to the principles stated by the House of Lords in CHRISTIE v LEACHINSKY (1947) the reason given does not have to be expressed in precise and technical terms so long as it is the 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 Evidence Act permits a constable, if he has reasonable grounds for believing that the arrested person may present a danger to himself or to others, to search the arrested person for anything which might help him to escape or which might be evidence of the offence for which he was arrested. Such a search would seem to be reasonable in the case of a person suspected of having been involved in armed robberies.
Section 32 also allows the premises where the arrested person was immediately before being arrested to be entered and searched for evidence of the offence for which the arrest was made. Reasonable grounds for believing that such items may be concealed must exist. If this is the case, under this provision the police may enter and search Ys house. Another power to enter and search premises following an arrest is conferred by s.18. Where a person has been arrested for an arrestable offence away from his own premises, the officers may enter and search any premises occupied or controlled by the arrested person if there are reasonable grounds for suspecting that evidence which relates to that offence or to some other connected or similar offence is on the premises. Normally an officer of inspector rank or above must authorise the search, but a constable may conduct such a search before taking the person to a police station if the search is necessary for the effective investigation of the offence. The officers, therefore, have the power to search Xs premises. Section 30 of the Act requires the arresting officers to take the arrested person to a police station as soon as is practicable after the arrest. Normally this would be to what the Act terms a designated police station, i.e. one used for the purpose of detaining arrested persons and having the necessary facilities. Section 30(10) allows a delay if the arrested persons presence is necessary elsewhere in order to carry out immediate investigations such as a search of his own premises. Any such delay must be recorded on arrival at the police station. When the arrested person arrives at the police station s.54 requires the custody officer to record everything which the arrested person has with him. Clothes and personal effects may only be seized if the custody officer believes that the arrested person may use them to injure himself or another person, damage property, interfere with evidence or help in escape, or if he has reasonable grounds for believing that they may be evidence relating to an offence. In special cases a search of the intimate parts of the body may be authorised by the detailed and careful provisions of s.55. Interrogation of a person in police custody is regulated by the Home Offices Code of Practice drawn up as required by s.66 PACE. The Code requires cautions to be given at specified stages of the investigation and does not normally permit questioning to continue after the arrested person has been formally charged with an offence or informed that he will be prosecuted. Normally the questioning must be conducted at the designated police station but there are circumstances in which it may take place outside the station. A caution as defined in Code C should be administered and the defendant is thus made aware that his silence or failure to mention facts he later relies on at the trial may lead to appropriate inferences being drawn under ss.34, 36 and 37 of Criminal Justice and Public Order Act 1994. Section 56 allows a detained person to have a relative or friend informed that he has been arrested and is being detained. Section 58 allows the detained person to consult a solicitor. Delay is permitted in both cases only in the case of a
serious arrestable offence, which is the case here (armed robbery), or on specified grounds and cannot exceed thirtysix hours. The Police and Criminal Evidence Act specifies the amount of time the police have to question arrested persons and collect evidence before bringing a formal charge. Section 41 provides that person shall not be kept in detention for more than twenty-four hours without being charged with an offence. The twenty-four hour period normally begins to run from the time when the arrested person arrives at the police station. Periodic reviews of the detention must be carried out by the police and records kept. Section 42 allows the detention of a suspect in a serious arrestable offence, such as armed robbery, to be detained for up to thirty-six hours. If the police wish to detain for longer than thirty-six hours they must apply to a magistrates court for an order of further detention: s.43. This may be for up to thirty-six hours and s.44 allows an application for an extension of an order of further detention. But the maximum permitted period of detention is ninety-six hours. At the end of ninety-six hours the arrested person must be charged or released. Section 46 provides that when a person is charged with an offence and is kept in detention he shall be brought before a magistrates court as soon as is practicable and in any event not later than the first sitting of the court after he is charged.

(09/02)
CHAPTER 15
OF G OVERNMENT;
FREEDOM
SPEECH; OPEN AND CLOSED FREEDOM OF INFORMATION

www.spr-law.com
CONTENTS
Freedom of speech .................................................................. 1 Open and closed government ................................................ 15 Freedom of information .......................................................... 18
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C ONSTITUTIONAL
AND
FREEDOM OF SPEECH; OPEN AND CLOSED G OVERNMENT ; FREEDOM OF INFORMATION FREEDOM

OF SPEECH
INTRODUCTION
Freedom of speech and expression is an important part of the United Kingdoms democratic traditions, but there is no constitutional declaration and guarantee of the right as there is in the United States, where the First Amendment to the Constitution states that Congress shall make no law ... abridging the freedom of speech or of the press. In the United Kingdom freedom of expression may be restricted by both the common law and by parliamentary legislation. However, the United Kingdom has signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and allows individuals to complain of a breach of the Convention to the European Commission on Human Rights in Strasbourg. Article 9 of the Convention recognises the right to freedom of thought, conscience and religion, while Art 10 recognises the right to freedom of expression. In the qualifications which are attached to the statement of the principle of freedom of expression, Art 10 of the Convention, like English law, recognises that the right of freedom of expression is subject to limitations. The exercise of the right to freedom of expression carries with it duties and responsibilities, as words can cause damage. The right can legitimately be limited by the demands of national security or public safety, the need to prevent crime, protect health or morals, protect the reputation or rights of others, prevent the disclosure of information received in confidence and the need to maintain the impartiality and authority of the judiciary. The law may either: prevent expression by imposing restraints before the communication is made or apply criminal or civil law sanctions to those who break the existing legal rules.
The importance of free speech has been underlined by the enactment of the Human Rights Act 1998 and the guarantee of the 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 to
protect the right to deface a US flag outside a US military house. A prosecution under s.5 of the Public Order Act was found to be a disproportionate and therefore unlawful restriction on the Article 10 right to free expression.
CENSORSHIP
THE PRINTED WORD
Legal censorship of the printed word ended when the system of licensing newspapers and other publications lapsed in 1695. It was briefly revived by the war-time defence regulations of 1914 and 1939. There exists a voluntary form of censorship which applies to the press (and broadcasting). This is the D- (Defence) notice system relating to defence and intelligence matters. A nonstatutory Services, Press and Broadcasting Committee, which consists of representatives from the three areas, approves the issue of D-notices by government departments to the media requesting that material should not be published because it would have an adverse effect on national defence or security. The Committee has no legal powers, and disregard of a Dnotice is not an offence, but it might, possibly, lead to a prosecution under the Official Secrets Acts or to a withholding of information in the future. The system has fallen into disrepute in recent years and ignoring of D-notices is common. The House of Commons Select Committee on Defence in 1980 recommended that the system be reformed to make the D-notices much more precise than they are. The lobby system of unattributable briefings allows ministers to brief selected journalists and thus, to this extent, manage the news. On a very practical level, every newspaper has its own censor, the editor, who decides what is to be printed. The influence of newspaper proprietors may be important (in 1936 they agreed not to publish stories about the relationship between King Edward VIII and Mrs Simpson). On some occasions in recent years the printing unions have refused to print articles, news items or cartoons, of which they disapproved. Historically, there was no right to privacy in English law and the press has been criticised for breaching good taste on occasion. To date, self-regulation operates through the Press Complaints Commission and legal restraints have not been imposed. But the effect of Article 8 of the ECHR is to create a right 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 have the statutory function under the Cinemas Act 1985 (consolidating the Cinematography Acts 1909 to 1982) of licensing cinemas. In many cases the local authorities have delegated this licensing function to justices. The licensing authority is empowered to grant licences subject to conditions and under such regulations as they think fit. Conditions imposed relate to public safety but they also restrict the admission of children and may prohibit the showing of films likely to be injurious to morality. In order to achieve a measure of consistency the film industry, in co-operation with the Home Office, established the British Board of Film Classification (BBFC). This is a non-statutory body which issues film certificates classifying films into categories. The Board may refuse a certificate, or grant one only if prescribed cuts are made. A condition commonly imposed by a local licensing authority upon a cinema is that no film will be shown unless it is approved by the BBFC. However, while a licensing authority can decide generally to follow the BBFCs decisions, it cannot abdicate its own responsibilities by deciding to follow the Boards decisions in all cases. This would be an invalid fetter on the licensing authoritys discretionary power. A local licensing authority may refuse to allow the showing of a film passed by the BBFC. Even if the film is certified by the Board and allowed by the local licensing authority, the exhibitor may still be prosecuted for the statutory offence of obscenity under the Obscene Publications Act 1959, although such a prosecution can be instituted only by, or with the consent of, the Director of Public Prosecutions. The Video Recordings Act 1984 extended the work of the BBFC to provide classification certificates for video recordings. It is an offence under the Act to supply or offer to supply an unclassified video recording or to possess such a recording for the purpose of supply.
BROADCASTING
There is no formal system of censorship in broadcasting. In the United Kingdom, broadcasting is not a function of government but is the responsibility of two public corporations, the British Broadcasting Corporation, and the Independent Television Commission which replaced the Independent Broadcasting Authority. The BBC is a public corporation established by Royal Charter in 1926 and headed by a Board of Governors appointed by the Crown on the advice of the Prime Minister. The BBC is a non-profit-making body financed by a grant from Parliament which is equal to the net revenue received by the BBC from licence fees fixed by the Home Secretary. The Corporation has a broadcasting licence under the Wireless Telegraphy Act 1949 under which it is required to broadcast an impartial account of daily proceedings in Parliament and to broadcast government announcements. The broadcasting licence also gives the Home Secretary power to order the Corporation not to broadcast
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any material or class of material specified by him in a written notice. If he does issue such a notice, the BBC has the right to announce that such a ban has been imposed. This is a wide power which could be used to ban programmes or topics of which the government disapproves indeed it has been used, if sparingly, in this way in recent years. The broadcasting licence enables the government to take over the BBC in an emergency. This power has never been used. The BBC accepts that it has a duty to ensure that as far as is possible programmes should not offend against good taste or decency, or be likely to encourage crime or disorder, or be offensive to public feeling. It also accepts a similar obligation to treat controversial subjects with due impartiality. These cannot be the subject of formal directives and the Home Secretary could not revoke the broadcasting licence for a breach of them. Censorship is, in fact, predominantly self-imposed by managers or the Director-General, or even the Board of Governors (appointed by the government) declining to broadcast contentious programmes. In R (PROLIFE ALLIANCE) v BBC [2002] 2 All ER 756, the BBCs decision not to broadcast a party political broadcast by the Alliance during a General Election on the grounds of taste and decency was held ultra vires. The Court affirmed the importance of political speed under the right to free expression and decided that the BBCs decision was a disproportionate limit on the Alliance to rights and therefore unlawful. As already referred to the Independent Television Commission replaced the Independent Broadcasting Authority as part of the de-regulation of the Broadcasting Act 1990. The Act constitutes a major restructuring of commercial TV and radio broadcasting. Under it, both the ITC and the Radio Authority have duties to ensure that nothing is included in programmes which offends against good taste or decency or is likely to encourage or incite to crime or lead to disorder or be offensive to public feeling. The ITC published its Programme Code in 1991 covering impartiality in matters of political or industrial controversy. The Code also deals with matters of good taste, decency and violence. The ITC does not have the power to monitor programmes prior to broadcast but the difficulty inherent in providing balance may deter the making of controversial programmes. The Act placed the Broadcasting Standards Council (BSC) on a statutory footing. An independent body appointed by the Home Secretary, the BSC has powers to initiate its own complaints as well as to adjudicate complaints made by members of the public. According to Geoffrey Robertson in his book Media Law the Council displayed both an ignorance of the nature of television and an intention to damage it as a medium for providing education, information and entertainment. To some extent the ITC and the BSC overlap in monitoring standards.
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THE THEATRE
The Lord Chamberlains censorship of stage plays was abolished by the Theatres Act 1968. The Act replaced censorship by applying the statutory laws against obscenity, incitement to racial hatred, conduct intended to or likely to cause a breach of the peace, to theatre productions. Prosecutions under the Theatres Act require the consent of the Attorney-General. Theatres have to be licensed but, unlike the cinema, the licensing is only concerned with matters of public health and safety.
G OVERNMENT INTERFERENCE
WITH THE MEDIA
Some examples: The banning by the BBC, in January 1987, of a programme about the Zircon spy satellite and the subsequent attempt by the government to prevent publication of a New Statesman article about the affair; the government also tried to injunct MPs from viewing the original programme in the House of Lords (a modified version was later shown by Channel 4). The vehement criticism by senior government ministers of the Death on the Rock programme broadcast by Thames TV about the shootings of IRA members by the Security Air Services in Gibraltar in March 1988. The broadcasting ban imposed in 1990 on statements by representatives of organisations proscribed by the Prevention of Terrorism or Emergency Powers legislation: see BRIND v SECRETARY OF STATE FOR THE HOME DEPARTMENT [1991] 1 All ER 720 in which the House of Lords upheld the decision of the Court of Appeal confirming the legality of the Secretary of States directive issued under the Broadcasting Act 1981 (now the 1990 Act) and the 1981 Licence Agreement between the Home Secretary and the BBC.
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Think Point 1
Which statutes regulate broadcasting?
Can you think of recent examples of self censorship by the BBC?
P OSSIBLE CIVIL AND CRIMINAL

LAW CONSEQUENCES OF A PUBLICATION
In the previous section, possible restraints on freedom of expression which operate before publication or broadcast were examined. In this section, the circumstances in which the civil and criminal law may affect existing publications are outlined.
D EFAMATION
Defamation is the publication, without legal justification, of a false statement concerning another person. A defamatory statement is one which tends to lower a person in the opinion of right-thinking persons generally. Some special provisions for the press were made in the Defamation Act 1952, e.g. in connection with unintended defamation, but the civil law of defamation generally remains a major headache for the press. In the United States, under the influence of the First Amendment to the Constitution, the press has much greater freedom to comment and to publish information. On a matter of public or general interest involving public officials or persons in the public eye the plaintiff must prove that the publication 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 its truth. By contrast, in England the burden of proof is on the defendant, who must prove that the statement is true. In the important recent case DERBYSHIRE COUNTY COUNCIL v TIMES NEWSPAPERS [1992] 1 QB 770 the House of Lords held that county councils could not sue for libel.
C ONFIDENTIALITY
There is no general law of privacy in England, but there is a developing law of confidentiality as exemplified by:
ARGYLL v ARGYLL [1967] Ch 302; [1965] 1 All ER 611 (marriage
confidences)
ATTORNEY-GENERAL v JONATHAN CAPE LTD AND TIMES NEWSPAPERS LTD [1976] QB 752; [1975] 3 All ER 484 (Cabinet
proceedings)
FRANCOME v MIRROR GROUP NEWSPAPERS LTD [1984] 2 All ER 408 (illegal telephone tapping a breach of right to
confidentiality in telephone conversations and injunction awarded)

SCHERING CHEMICALS LTD v FALKMAN LTD [1982] QB 1
(injunction granted to prevent showing of film about the drug 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 GUARDIAN NEWSPAPERS LTD [1986] The Times, 26 July, the Court of Appeal issued interlocutory injunctions against two national newspapers restraining them from publishing allegations relating to national security made by a former member of MI5. The injunctions were based on a breach of the duty of confidentiality owed by such a person to the Crown. At this stage of the proceedings in the case, the public interest in such confidentiality was held to outweigh the public interest in disclosure. These interlocutory injunctions were upheld by the House of Lords (ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS (No 1) [1987] 1 WLR 1248). (The injunctions did not cover reports of parliamentary or court proceedings in which such allegations might be repeated or discussed.)
ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS LTD AND OTHERS (No 2) [1988] 3 WLR 776, refused to issue a final
But, after a long series of cases, the House of Lords, in
injunction preventing newspapers from serialising, or discussing the issues raised by, a book which revealed confidential information acquired by a Crown servant in the course of his employment. Publication of the information by the newspapers would not be contrary to the public interest in the light of all the publicity generated by the book and its publication in other countries. The case illustrates the point that, even though it is accepted by the courts that a breach of confidence has occurred (as in the writing and publication of Spycatcher), a permanent
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injunction will not be issued if the element of confidentiality has been lost by extensive publication and debate, or if the public interest in freedom of the press outweighs (as it did here) the public interest in the confidentiality of government information. In the OBSERVER AND THE GUARDIAN v UNITED KINGDOM, THE
SUNDAY TIMES v UNITED KINGDOM [1991] The Times, 27 November , the European Court of Human Rights considered
the series of Spycatcher injunctions. The Court considered whether the injunctions were a breach of Art 10 of the Convention. The Court held that the injunctions were an interference with the newspapers freedom of expression but went on to consider whether the interference fell within one of the exceptions provided by para 2 of Art 10. The injunctions fell within two of the exceptions: maintaining the authority of the judiciary and protecting national security. However, the exceptions only apply if the injunctions were necessary in a democratic society because they correspond to a pressing social need and were proportionate to the aims pursued. With regard to the period 11 July 1986 to 30 July 1987, the Court held that the injunctions were necessary under these exceptions. However, the publication of Spycatcher in the United States changed the situation and therefore, as regards the period from 30 July 1987 to 30 October 1988, the injunctions were no longer necessary to protect national security or to maintain the authority of the judiciary. Article 10 was therefore violated by continuing the injunctions.
C ONTEMPT OF COURT
A publication may amount to a contempt of court. Here two conflicting interests may be at stake, namely those of free speech and protecting the administration of justice. As Geoffrey Robertson put it in his book Media Law: The rationale behind the contempt law is an abiding British fear of trial by newspaper of the sort that often disfigures major trials in America, where the First Amendment permits the press to comment directly on matters involved in litigation. Robertson argues that the power to punish for contempt could be justified by reference to Art 6 of the European Convention on Human Rights, which provides that: In the determination of his civil right and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Robertson points out that this is one of the rights of others that can justify a restriction on freedom of speech guaranteed by Art 10 if the restriction is prescribed by law and not disproportionate to the aim of securing a fair trial (pp. 2612). The expression contempt of court covers numerous possible acts and includes the following. Deliberate or accidental interference with the outcome of particular judicial proceedings by prejudicial publications,
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e.g. disclosure of an accuseds previous convictions which have been kept from the jury. This may include any attempt to bring pressure on a party to settle legal proceedings: ATTORNEY-GENERAL v TIMES NEWSPAPERS LTD [1974] AC 273; [1973] 3 All ER 54 (publication of The Sunday Times article on the thalidomide case). Interfering with the administration of justice as a continuing process even though no particular proceedings are at risk. The Socialist Worker was held to be in contempt for naming blackmail victims who had been referred to in court by letters only: R v SOCIALIST WORKER
PRINTERS AND PUBLISHERS LTD [1975] 1 All ER 142.
Scandalising the court. Criticism of a court or judges is not in itself contempt. It becomes so under an eighteenth century rule if it is seen as scurrilous abuse or if it attacks the integrity of the administration of justice. The Daily Worker was punished for contempt of this kind for describing Mr Justice Swift as a bewigged puppet exhibiting a strong class bias: R v WILKINSON [1930] The Times, 16 July. There is little recent authority.
(The above forms of contempt are criminal contempts relating to publications. Civil contempt is a refusal to do an act required by the court.)
S TATUTORY C ONTEMPT
Until the Contempt of Court Act 1981 the law of contempt of court was almost wholly governed by the common law. It was criticised for its vagueness, for the summary nature of its procedure and for its undue restriction on freedom of expression. The Contempt of Court Act 1981 resulted mainly from the judgment of the European Court of Human Rights in Strasbourg 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 thalidomide
litigation in 1972 because the article was a detailed examination of one of the issues in the litigation, i.e. whether the Distillers Co. had been negligent in putting the drug, thalidomide, on the market. All of their Lordships were opposed to trial by media and agreed that this prejudgement of the issue of negligence amounted to contempt of court because of the possible effect on the outcome of the proceedings. Further, the general administration of justice might be affected because prejudgement of this kind might dissuade potential litigants in other cases from pursuing or defending their cases and also because Distillers, in defending itself, had been held up to public obloquy. The Strasbourg Court held that the law of contempt generally, and the particular injunction, had a legitimate aim under Art 10(2), maintenance of the authority of the judiciary but on the facts the court decided, by a small majority, that the injunction against The Sunday Times was not necessary for maintaining the authority of the judiciary, and that there had been a violation of Art 10 of the Convention which sets out the principle of freedom of expression.
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The Contempt of Court Act 1981 deals mainly with interference with the outcome of particular judicial proceedings by prejudicial publications, what the Act calls the strict liability rule. This means that rule of law whereby a publication (a speech, writing, broadcast or communication in any form addressed to the public or a section of the public) may be treated as a contempt of court if it creates a substantial risk that the course of justice, in particular legal proceedings, will be seriously impeded or prejudiced: ss.1 and 2(1)(2). What is substantial or serious will depend upon the facts of cases. In criminal cases, the risk of committing a contempt by infringing the strict liability rule will begin with the arrest of the suspect or with the issue of an arrest warrant or a summons to appear in court. In civil actions, the risk of contempt will begin when the case is set down for trial (which may be some months before the trial actually begins). Under the old law, the risk of contempt in a civil action began when a writ was issued. Comment on the thalidomide case would not, therefore, have been banned had the Act been in operation in 1972, since the action against Distillers had not been set down for trial. The new law also ends the effectiveness of the gagging writ, a writ issued, usually in defamation actions, to stifle further public comment on a matter by means of the law of contempt rather than to bring the matter before a court. Section 3 of the Act allows a defence if the publisher did not know, and had no reason to suspect, that there were active proceedings to which the risk of contempt would apply. Section 4 provides that a fair and accurate report of legal proceedings held in public and published in good faith cannot amount to contempt under the strict liability rule. Section 4(2) of the Act gives the court power to order the postponement of reports of a trial when necessary to avoid a substantial risk of prejudice to the trial or other proceedings, while s.11 empowers the court to prohibit the publication of any name or matter which it had allowed to be withheld in court. Section 5 provides that a publication made in good faith in the course of a discussion on public affairs is not to be treated as a contempt under the strict liability rule if the risk of prejudice to particular legal proceedings is merely incidental to the discussion. The House of Lords has held that this does not actually constitute a defence, but means that the prosecution has to prove, first, the substantial risk referred to in s.2(2) and then, if the publication is part of a discussion of public affairs, that the risk of prejudice is not merely incidental to the discussion. Section 5 was intended to prevent bona fide discussion by the press of controversial matters of general public interest being stifled merely because there were legal proceedings in existence in which some particular instance of those controversial matters might be in issue, e.g. the treatment of
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handicapped babies: ATTORNEY-GENERAL v ENGLISH [1982] 2 All ER 903. The House of Lords allowed an appeal against a finding of contempt concerning an article published by the Daily Mail during the trial of Dr Leonard Arthur for the murder of a Downs Syndrome baby. In ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS AND ANOTHER [1992] (No 3) 1 WLR 874, the court considered the Attorney-Generals submission that an article in the Guardian entitled In big fraud cases, judges appear to be over-sensitive was strict liability contempt. The court held in relation to ss.1 and 2 that there had to be a practical, not a theoretical, substantial risk that the course of justice would be seriously impeded or prejudiced. In this instance the court was not so satisfied. Furthermore, the publication was made as a discussion in good faith on a matter of general public interest within the meaning of Section 5. Section 10 provides that no court may require a person to disclose the source of information contained in a publication for which he is responsible, unless it is established that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime. In SECRETARY OF STATE FOR DEFENCE v GUARDIAN NEWSPAPERS LTD [1984] 3 All ER 601 the House of Lords held: that a publisher could rely on s.10 even when an owner made a proprietary claim for the return of his property and that the onus for proving that the matter fell within one of the four exceptions lay on the party seeking disclosure.
In this case the court, on a three to two majority, held that the Crown had established that disclosure of the newspapers source was necessary in the interests of national security. In X LTD v MORGAN GRAMPIAN LTD [1991] AC 1 the House of Lords examined the balancing exercise to be carried out under s.10. A young journalist was fined after refusing to obey a court order to disclose his source for an article in the Engineer about the financial difficulties of a leading private company. It held that the interests of justice outweighed the presumption in favour of non-disclosure because the source had engaged in a grave breach of confidentiality, the information did not disclose iniquity and had no great public interest value. Furthermore the company might suffer great loss if it could not identify the informant. Robertson comments: The case illustrates how the judicial value accorded to property rights will tend to prevail over ethical claims by journalists in balancing exercises that require a subjective appreciation of competing public interests. (p.201). The European Court of Human Rights held in GOODWIN v UNITED KINGDOM [1996] The Times, 28 March that the Court order to disclose the soure violated Art 10 of the Convention. Proceedings for contempt of court under the strict liability rule of the Act can only be brought by or with the consent of the Attorney-General. Proceedings for other kinds of contempt may still be instituted without the need for such consent.
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The application of the strict liability rule to appellate proceedings was considered in RE LONRHO PLC [1990] 2 AC 154. It must be noted that cases in this area will now be affected by s.12 of the Human Rights Act 1998, which requires the Court to have regard to the right to freedom of expression and the public interest before granting any remedy which could interfere with the right. Among the other provisions of the 1981 Act is s.8, which makes it a contempt to obtain, disclose or solicit particulars of what happens in the jury room during the course of the jurys deliberations. In ATTORNEY-GENERAL v ASSOCIATED NEWSPAPERS and OTHERS [1994] 2 WLR 277 the House of Lords upheld the convictions under s.8 (1) of the Contempt of Court Act 1981 of the publisher, editor and a journalist of the Mail on Sunday which had published an article revealing the deliberations of a jury in a criminal trial. The article referred to accounts of three of the jurors as to how they had reached their decisions, contained comments by them on the evidence in issue at the trial and gave the opinion of one of them of a fellow juror. The journalist who wrote the article had been given the information by a third party who had been in direct contact with the jury members. Their Lordships held that in its ordinary meaning disclose was apt to describe both the revelation of jury deliberations by an individual juror and the further disclosure of those same deliberations by publication in a newspaper, provided that the publication amounted to a disclosure rather than a republication of already known facts. In addition to these provisions of the Contempt of Court Act 1981 , there are a number of other statutory provisions which restrict full reporting of judicial proceedings, including restrictions on the reporting of committal proceedings in magistrates courts, proceedings in juvenile cases, names in rape cases and indecent evidence in divorce proceedings.
C OMMON LAW C ONTEMPT

If proceedings are active the strict liability statutory rule applies. Common law contempt is preserved in s.6(c) of the 1981 Act. In these cases intent has to be proved. The leading cases are: ATTORNEY-GENERAL v TIMES NEWSPAPERS LTD [1991] 2 WLR 994 in relation to civil proceedings, and ATTORNEYGENERAL v NEWS GROUP NEWSPAPERS PLC [1988] 3 WLR 163 in relation to criminal proceedings. In the former case the Independent and two other newspapers published articles based on the memoirs of Peter Wright, a former officer in MI5, which appeared to be exactly what The Guardian and The Observer were prevented from doing by the injunctions issued in 1986 (above). The Attorney-General began proceedings for criminal contempt of court on the ground that the articles were calculated to prejudice the administration of justice because the GuardianObserver proceedings were still continuing. The House of Lords has now held that the newspapers were liable for contempt at common law as their conduct in publishing the articles constituted the actus reus of impeding the course of
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justice. The mens rea of contempt was conceded by the applications. Thus parties not subject to the original injunctions were bound by them. The second case concerned articles in the Sun accusing a Dr B of 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, but the court also held that where a publication was intended to interfere with justice and created a real risk of prejudice to proceedings, contempt proceedings could be taken, notwithstanding that proceedings were neither pending nor imminent. However, in the ATTORNEY-GENERAL v SPORT NEWSPAPERS LTD [1991] 1 WLR 1194, the Divisional Court was divided on this point. In this case, however, the requisite intention had not been proved. In these cases the test for intention to prejudice the administration of justice was established. It was held that it connotes specific intent and that recklessness is not enough. It has to be shown that the defendant either wished to prejudice proceedings, or foresaw that such prejudice was an inevitable consequence of publication. Thus the editor of the Sun was held to have the necessary intent, although he denied it. It was clear that he was knowingly campaigning for the conviction of the doctor and that conviction would have benefited the newspaper through increased sales resulting from the exclusive story of the alleged victims mother. Common law contempt does not have the public interest defence of s.5 of the 1981 Act; furthermore there is no right to trial by jury. The contempt of court laws, both at common law and under the Contempt of Court Act, are a major problem for the press because of the natural inclination of newspapers (and broadcasters) to publish details of, and comment on, matters in which the public is interested but which are, or might soon become, the subject of criminal or civil judicial proceedings.
Think Point 2
Summarise the main differences between common law and statutory contempt.
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C RIMINAL LIBEL
Defamation can amount to a crime if it is a libel which is particularly serious. The likelihood of a breach of the peace resulting from the libel is no longer an essential element in the offence, as the House of Lords explained in GLEAVES v DEAKIN [1980] AC 477; [1979] 2 All ER 497. Truth is not a defence to a prosecution, as it is to a civil action in defamation, unless the defence can convince the jury that publication is for the public benefit. The burden of proof in establishing that lies with the defence. There is no restriction on bringing a prosecution for criminal libel other than that contained in s.8 Law of Libel Amendment Act 1888 which provides that: no criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a judge in chambers first being obtained. Journalists, authors, book publishers and others may be prosecuted in the ordinary way. In the past, criminal libel was used to prosecute political opponents of the government, such as John Wilkes and Tom Paine in the eighteenth century. Today only a handful of charges are brought each year, and a few private prosecutions 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 consists of publishing contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, the Bible or the formularies of the Church of England as by law established. Prosecutions for blasphemy were numerous in the seventeenth and eighteenth centuries. In R v LEMON [1979] 1 All ER 898, the first prosecution for blasphemy since 1922, the House of Lords held that in order to secure a conviction for the crime of blasphemous libel it was sufficient for the prosecution to prove an intention to publish material which was in fact blasphemous, i.e. calculated to outrage and insult a Christians religious feelings, and it was not necessary for them to prove that the defendant intended to blaspheme. The intention to publish and the effect of the published material therefore constitute the crime of blasphemous libel.
O BSCENITY
The law of obscenity includes a range of common law offences, statutory offences and provisions for search, forfeiture and destruction. The law of obscenity is important because of its relevance to freedom of expression, and also because of its part in the debate on the relationship of law and morality. The common law offence of obscene libel has now
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been superseded by statute, but in SHAW v DPP [1962] AC 220 the House of Lords held that an obscene publication was also indictable as a common law conspiracy to corrupt public morals. In KNULLER v DPP [1973] AC 435 the House of Lords reaffirmed that proposition, and the majority were also of the opinion that a conspiracy to outrage public decency was also an offence. The defences provided by the Obscene Publications Act do not apply to such charges. Under the Obscene Publications Acts 1959 and 1964 it is an offence to publish an obscene article or to offer an obscene article for gain. The statutory test of obscenity is similar to the old common law test and reads: whether the effect is, taken as a whole, such as to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter. The prosecution must prove that the matter, taken as a whole, would tend to deprave and corrupt. Although it seems that a person may be convicted even if he had no intention to deprave or corrupt, it is a defence to prove that he had not examined the offending article and had no reasonable cause to believe that publication or possession would be an offence. It is also a statutory defence that the publication was for the public good in the interests of science, literature, art, or learning or other objects of general concern. Expert opinion as to the scientific, literary, or artistic merits of the book or article is admissible in evidence on both sides. But the House of Lords, in R v JORDAN [1976] 3 All ER 775, has held that the words or other objects of general concern falls within the same field as science, literature, art or learning and that it was therefore not admissible for the defence to produce evidence to the effect that pornography was for the public good because it might be of therapeutic benefit to persons with particular sexual problems. A prosecution under the Obscene Publications Acts may be brought only by the Director of Public Prosecutions. But a private individual may apply for a search warrant enabling a constable to search premises and seize articles, and he may institute proceedings for forfeiture and destruction of the articles. These proceedings are brought in a magistrates court with no jury.
INCITEMENT
The offence of incitement to racial hatred was created by statute in 1965 and is now governed by the Public Order Act 1986, Part III. It is an offence for any person either to publish or distribute written matter which is threatening, abusive, or insulting or to use in any public place or at a public meeting words which are threatening, abusive, or insulting where in either case hatred is likely to be stirred up against any racial group in Great Britain. Racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins.
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There are other statutory crimes of incitement which necessarily involve some interference with freedom of speech and which are not subject to a test of likelihood of causing public disorder. Incitement to disaffection among members of the armed forces is covered by statutes of 1797 and 1934 (see R v ARROWSMITH [1975] 1 All ER 463 ), while incitement to disaffection among the police is covered by s.53 Police Act 1964 .
PRIVACY
Historically, English law did not recognise a distinct law of privacy. Instead, privacy interests were protected by a range of legal rights and remedies, notably the tort of breach of confidence. Only when conduct amounted to a breach of some existing right such as confidence would a legal action lie. Accordingly, publication of photographs of a celebrity taken on a public beach violated no right and, all things being equal, gave rise to no remedy. In recent years, concern has increased about the activities of some sections of the media, particularly the tabloid press which has become more and more intrusive into peoples lives. This has lead to louder calls for a right to privacy but these have usually been resisted by the Press, which stoutly defends its right to freedom of expression. The establishment of the Press Complaints Commission and the voluntary Code of Conduct that it enforces was a compromise between the privacy interests of those in the public eye and unrestricted press freedom. The implementation of the Human Rights Act 1998 and the rights guaranteed by the European Convention, which includes both a right to privacy (Article 8) and a right to freedom of expression (Article 10), risked altering the existing legal position dramatically. The guarantee of both rights would require the courts to balance the competing interests of the press and those asserting privacy rights from case to case. As a result of press fears that their interests would be undermined, Parliament enacted s.12 of the Human Rights Act 1998. In effect, this requires the courts to have regard to the importance of freedom of expression whenever they are asked to grant remedies which would restrain publication of any material. In particular, the courts must have regard to the public interest in publication when considering whether or not to restrain publication: s.12(4). Since the Human Rights Act 1998 entered force, there have been several important cases dealing with the interaction of privacy and free expression rights. The first important decision is DOUGLAS v HELLO! LTD [2001] 2 All ER 289: photographs of the famous actors wedding were to be published in Hello! Magazine although an exclusive arrangement existed with a rival publication. The applicants sought to restrain publication on the grounds of breach of confidence and breach of privacy. The Court of Appeal held that although there was now an enforceable right to privacy in English law, it had not been violated here, mainly because the applicants had traded their privacy and anyone at the wedding could have taken photographs and sold them on.
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In FLITCROFT v MIRROR GROUP NEWSPAPERS LTD [2002] 2 All ER 545, two women with whom a minor footballer had been having affairs wished to publish their stories. He applied to restrain them on the grounds of his right to privacy and breach of confidence. Dismissing his application, the Court of Appeal extensively stated the issues which must be considered when balancing the right to privacy and the right to freedom of expression. On the narrow issue of the privacy of public figures, Lord Woolf CJ said (at pp553-554): Where an individuals is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion....In many situations, it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested 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 to get MGN to publish information and photographs of their liaison. He applied for an injunction to restrain her, on the grounds of his right to privacy. While he succeeded in restraining publication of the photographs, he failed to prevent publication of the story. One ground of the decision is that as a TV presenter of a programme watched in significant numbers by young people, there was a public interest in publication. In addition to the Convention right to privacy and common law remedies for breach of confidence, several other legal rules create privacy rights in particular contexts. Particularly important is the Data Protection Act 1998 (see below). This legislation confers rights in data held about a person. Misuse of this data, for example, without the consent of the person who it concerns, gives rise to a cause of action. It is worth noting that even where there is no breach of privacy in terms of the Convention, a remedy may arise under the Data Protection Act 1998. This was the case in NAOMI CAMPBELL v
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MIRROR GROUP NEWSPAPERS LTD [2002] EWHC 499, where the claimant failed on the privacy point but prevailed on a breach of the Data Protection Act 1998.
In conclusion, the right to privacy theoretically presents a restriction on freedom of expression. In practice, the two rights must be balanced and everything depends on context and circumstances. Section 12 of the Human Rights Act 1998 gives some priority to freedom of expression, particularly if what is sought is a pre-publication restraint. Balancing the respective priorities of privacy and freedom of expression often requires an assessment of where the public interest lies and this will change from case to case.
OPEN AND CLOSED G OVERNMENT

INTRODUCTION
It has often been remarked that the United Kingdom is obsessively secretive about the workings of government. Ruling parties of both political complexions have controlled the flow of information to the public or have released it selectively at politically opportune moments. Access to information is an important civil right either for personal private purposes or to aid public discussion and scrutiny of the political process. Clearly there might also be a countervailing public interest in suppressing disclosure, for example to protect national security.
OFFICIAL SECRECY
The Official Secrets Acts of 1911, 1920, 1939, 1989, contain drastic powers which can be used to prevent comment on matters of general public interest. The principal statute is the 1911 Act which passed all its stages in the House of Commons in one afternoon at the time of the Agadir crisis and following a period of spy mania. The purpose of the Acts is to prevent espionage and the communication of any information which may be calculated to prejudice the interests of the state. It is also intended to prevent unauthorised disclosure of information held by Crown servants in their official capacities, whether or not the information has any relevance to state security. It was considered necessary to draft the legislation very widely in order 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 prejudicial to the interests of the state. Prosecutions under s.1 have usually been concerned with espionage, but CHANDLER v DPP [1964] AC 763 arose out of an anti-nuclear-weapons demonstration. The accused were charged with conspiracy to commit a breach of s.1. In the absence of an overt act, the prejudicial purpose may be inferred from the circumstances. If information about a prohibited place is proved to have been
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obtained or communicated without lawful authority, then s.1(2) places the onus of proving that the purpose was not one prejudicial to the interests of the state upon the accused. Section 6 of the 1920 Act makes it an offence to refuse to supply information as to the commission of an offence under this section to a senior police officer. The much discredited s.2 of the 1911 Act created a number of offences with extensive ramifications for both state officials and other citizens. This has been repealed by the Official Secrets Act 1989. Following the unsuccessful prosecution under s.2 of the editor of The Sunday Telegraph and others, the government in 1971 set up a committee under the chairmanship of Lord Franks to review the operation of s.2 of the 1911 Act. The Committees report referred to the inevitable and increasing tension in a democracy between the need for a wide diffusion of information and the need to keep some matters secret for the safety of the state and the efficiency of government. It was of the opinion that the wide terminology of s.2 obscures the important distinction between espionage and leakage and should be replaced by new legislation which would apply the criminal law only to those who disclosed information which could seriously affect the interests of the country. The proposed statute would also protect certain information dealing with law and order, Cabinet business, the confidences of private citizens, and official information which could be used for the purposes of private gain. In 1979 the government introduced a Protection of Information Bill to replace s.2 of the 1911 Act. The bill met considerable criticism and was soon withdrawn by the government. The acquittal of Clive Ponting (R v PONTING [1985] Crim LR 318) prompted a new attempt to change the law. The Official Secrets Act 1989 replaces s.2 of the 1911 Act with a widely-drafted measure which defines six types of information which are to be protected. The first category makes it an offence for any member of the security and intelligence services to disclose any information relating to those matters which he or she has acquired by virtue of his or her position. It is also an offence for a person who is or has been a civil servant or a government contractor to make a damaging disclosure of any information on security or intelligence. The second category of protected material is that disclosed by a Crown servant or government contractor relating to defence. Third, Crown servants or government contractors commit an offence if they disclose information relating to international relations. The fourth and fifth categories of protected information relate to the commission of criminal offences, for example, escapes from legal custody or impeding the prevention or detection of offences or the arrest or prosecution of suspected offenders.
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Finally it is an offence to disclose information entrusted in confidence by the British government to other states or international organisations.
No proof of damage is required for categories one and six, although for categories two to five disclosure must be damaging for liability to be attracted. It should be noted that liability under the Act relates to any communication of unauthorised information by the press or members of Parliament, for example. Furthermore, the Act does not allow for defences such as prior publication or the public interest. Other significant legislation passed by the Conservative administration in this area includes the Security Services Act 1989 and the Intelligence Services Act 1994. MI5 is now on a statutory basis and its function shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means. Through this legislation, legal powers are granted to the Home Secretary to issue warrants authorising any form of interference with any private property. The Security Services Commissioner (a Law Lord) keeps under review the exercise of the Home Secretarys powers to grant warrants. The Commissioner reports annually to the Prime Minister who lays a copy of the report before each House of Parliament. An Interception of Communications Tribunal is established to investigate complaints. Under the 1994 Act, MI6 and GCHQ are also put on a legal basis and a parliamentary Committee was set up to monitor the services. Ministers and heads of the agencies, however, control information supplied to the Committee, whose members 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 are opened to public scrutiny after 30 years but some documents can be closed for longer, or even indefinitely.
FREEDOM
OF INFORMATION
Pressure has been growing for the introduction of a Freedom of Information Act along the lines of those existing in, for example, the United States, Australia, New Zealand or Sweden (where even income tax returns are publicly available). The main features of such legislation are that: official information is accessible to the public access is supervised by a body independent of government and there is a presumption of access with exempt categories for defence, national security, and confidential data etc.
The actual and prospective effects of such legislation have been studied by Rodney Austin. They include: increase in litigation by members of the public against official bodies
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a moderation of the doctrine of public interest immunity consequent caution and delay in administrative decisionmaking more robust action by the legislature to check the executive especially true in the United States strengthening of pressure groups.
M OVES TOWARDS GREATER ACCESS

Changes include: the Croham Directive 1977 an internal memorandum, with no sanctions attached, addressed to all Permanent Secretaries from the Head of the Home Civil Service instructing them to make more information publicly available the reform of the select committee system in 1979 with a capacity to call for official documents but no way of enforcing their production as we saw in the Westland Affair the Parliamentary Commissioner being given a right of access 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 to attend local authority meetings the Data Protection Act 1984 giving individuals access to the information which is held about them on computer files. This has now been replaced by the Data Protection Act 1998 extending the data protection regime to certain manual records described in the Act as relevant filing systems. Manual records will however have partial exemption until October 2007. The 1998 Act implemented an EC Directive. the institution in April 1994 of a Code of Practice in government departments under which they agree to respond to reasonable requests for information. The Code is enforced by the Parliamentary Ombudsman. There are a wide range of exceptions.
FREEDOM OF INFORMATION ACT 2000

The Labour Government promised a Freedom of Information (FOI) Bill as part of its manifesto in May 1997 and Dr David Clark, then Chancellor of the Duchy of Lancaster, published a White paper Your Right to Know in December 1997. The White paper proposed that disclosure of individual documents would be made on a contents rather than a class basis and that exemptions would be subject to both a public interest and a harm test, the latter would be a substantial harm test for all areas covered except for decision making and policy advice where a simple harm test would apply. A new Information Commissioner would be appointed to examine disputed documents and order disclosure. In July 1998 responsibility
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for (FOI) was transferred from the Chancellor of the Duchy of Lancaster to the Home Office. A draft FOI Bill was published in May 1999. Introducing the Bill, Jack Straw said in the House of Commons (HC deb, 24 May 1999, vol.332, col.21): Under the Bill for the first time everyone will have the right of access to information held by bodies across the public sector. There will be a duty on public authorities to adopt a scheme for the publication of information about their work; a positive duty on authorities, even where they are not obliged to provide such information, to consider disclosure on public interest grounds; and a new Information Commissioner, together with a new information tribunal to enforce the rights which have been created. However, the Act has been criticised as providing a less liberal scheme than that proposed in the White paper. The main features of the Act are as follows: The Data Protection Registrar and the Information Commissioner posts are merged and amendments are made to the 1998 Act. The Data Protection Tribunal is merged with the new information tribunal. The public interest test proposed in the White paper remains but becomes a test to be applied by public authorities. The Information Commissioner will only be able to require public authorities to consider the public interest in deciding on disclosure rather than allowing release of information on that ground herself. There are a number of class exemptions including those for decision making and policy making if disclosure would undermine the conventions of ministerial responsibility in the reasonable opinion of a minister. Ministerial certificates may be issued to exempt information relating to national security, the security services and special forces and GCHQ. It will be possible to appeal to a new tribunal against the certificates. Appeals will be possible from the decisions of the Commissioner to a new tribunal and then on a point of law to the High Court and ultimately to the House of Lords. Information is broadly defined to include information held in electronic form as well as documents. A wide range of public bodies is included. Personal information is exempt if it is personal information about the applicant or disclosure would contravene data protection principles. The substantial harm test proposed in the White paper has been replaced with a test which exempts information where disclosure would prejudice or would be likely to prejudice particular interests.
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INTERCEPTION OF
COMMUNICATIONS THE PRACTICE
As long ago as 1663 governments were authorising the secret interception and opening of postal communications. More recently this practice has been extended to tapping telephone conversations and metering telephones, i.e. compiling lists of calls dialled. Authorisation is in the form of a warrant issued under the hand of a Secretary of State usually the Home Secretary. About three hundred and fifty warrants are issued each year. The interception of communications is acknowledged to be an interference with personal freedom, but is justified by the fact that it takes place only on the personal warrant of the Home Secretary, 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 the security services.
In 1981 Lord Diplock, a Lord of Appeal in Ordinary, carried out the first of a continuous series of independent checks of the system. He reported (3 March 1981) that the interception of communications, and particularly telephone tapping, was an effective and essential weapon for the maintenance of law and order and the safety of the realm. He concluded that the established procedures were working satisfactorily and with minimum 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 the interception of communications has been recognised, but not specifically authorised, by a long series of Acts of Parliament from 1710 to 1981 dealing with the Post Office. The committee of three Privy Councillors under the chairmanship of Sir Norman Birkett, a Lord Justice of Appeal, which examined the matter in 1977, thought that the legal authority might be found in the Royal Prerogative. But when the legality of telephone tapping was challenged in court (MALONE v
METROPOLITAN POLICE COMMISSIONER (No 2) [1979] 2 All ER 620 ), no attempt was made to argue that the Crown possessed
a prerogative power to authorise the tapping of telephones. Even before the Court of Human Rights had come to its decision in the MALONE case, the Home Secretary had announced, in March 1984, that authority for the interception of communications would be put on a clear statutory basis.
24
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In 1985 Parliament enacted the Interception of Communications Act 1985, now consolidated in a new Act of 2000.
R EGULATION OF I NVESTIGATORY POWERS ACT 2000

All surveillance powers of the state, including interception of telecommunications, are regulated under this important Act. Section 1(1) creates a general offence of unlawful interception of communications. Sections 3 and 4 provide that a person shall not be guilty of this offence where the interception is in obedience to a warrant issued by a Secretary of State under s.7. Section 7 authorises a Secretary of State (in practice this is usually the Home Secretary in England and Wales or the Secretary of State for Scotland) to issue a warrant requiring the person to whom it is addressed to intercept the communications (telephone calls, letters, etc.) described in the warrant. The warrant must be considered necessary in the interests of: national security preventing or detecting serious crime safeguarding the economic well-being of the United Kingdom.
It must be noted that s.7 requires that a warrant shall normally be issued under the hand of the Secretary of State, i.e. by him or her personally. Part IV of the Act establishes an independent Tribunal (its constitution and procedure are set out in Schedule 3) to investigate complaints from persons who believe that their communications have been intercepted. The Tribunal will establish whether there is or has been a relevant warrant. If the answer is no, an offence will have been committed and it will be a police matter. If a warrant does exist the Tribunal will establish whether it was issued correctly. The Tribunal has power to quash an invalid warrant and to direct the Home Secretary to pay compensation. There is no appeal from a decision of the tribunal and judicial review of the tribunals decisions, even on grounds of jurisdiction, is also excluded: s.67(8). But the Act establishes the office of Communication Commissioner to oversee the exercise of surveillance power under the Act: see s.57. The Tribunal has no power to deal with tapping without a warrant. Taylor J, in R v HOME SECRETARY EX PARTE RUDDOCK [1987] 2 All ER 518, said obiter that judicial review of the warrant system had been possible (the evidence in the case not showing a misuse of power by the minister), but that under the 1985 Act the courts henceforth cease to have any supervisory or investigative function in the field of interceptions.
25
Chapter 14
Section 57 requires the Prime Minister to appoint a Commissioner, a senior judge or former senior judge, to carry out a continuous review of the working of the Act and to report 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 on the democratic process because: the public cannot participate fully in decision-making because they are ill-informed for example, in the 1983 election, one issue was whether the Polaris missiles needed updating, but the electorate was not told that work on Trident missiles had already begun consumers are unable to make informed choices about health, environmental needs etc. because the regulatory agencies do not provide sufficient information and are subject to government interference for example, news of the Windscale fire in 1957 was suppressed for three decades ministers leak information selectively when it suits their political purposes, thus managing the flow of news to their own, and not necessarily to the publics, advantage.
Defenders of the present set-up argue that: ministerial responsibility would be undermined if civil servants were forced to be more open goldfish-bowl decision-making would make for bad decisions because ministers etc. would not speak frankly for fear of an increasing tide of litigation against them.
Revision
A DDITIONAL READING
Bradley and Ewing, Chapters 22 and 24
26
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CHAPTER
BRIND 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 TIMES NEWSPAPERS 1976 FRANCOME v MIRROR GROUP NEWSPAPERS LTD 1984 SCHERING CHEMICALS LTD V FALKMAN LTD 1982 ATTORNEY-GENERAL v OBSERVER LTD AND GUARDIAN NEWSPAPERS LTD 1986 ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS (No 1) 1987 ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS LTD AND OTHERS (No 2) 1988 OBSERVER AND THE GUARDIAN v UK, THE SUNDAY TIMES v UK 1991 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 ANOTHER 1992 SECRETARY OF STATE FOR DEFENCE v GUARDIAN NEWSPAPERS LTD 1984 X LTD v MORGAN GRAMPIAN LTD 1991 GOODWIN v UNITED KINGDOM 1996 RE LONRHO 1990 ATTORNEY-GENERAL v ASSOCIATED NEWSPAPERS AND OTHERS 1994 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
27
C ONSTITUTIONAL
AND
QUESTION 1
The culture of secrecy in the United Kingdom has survived unscathed despite demands for change. Discuss.
QUESTION 2
The Daily Globe has published an article based on information sent by a hospital doctor giving details of dangerous conditions in a local hospital. The Area Health Authority demands details of the informant doctor because they wish to discipline him or her for breach of confidentiality. Subsequently a patient is found scalded in her bath. Two nurses have disappeared and the police indicate that they wish to question them. The Daily Globe intends to publish an article about them indicating they had been investigated and cleared in an earlier incident involving a patients death. The Globe also commissions a feature article by Kiljoy, a famous TV journalist, detailing his experiences in the hospital and complaining about staff attitudes. Advise the Daily Globe on its legal position in relation to the above articles and critically evaluate the current state of the law in this area.
SPECIMEN
ANSWERS TO ASSESSMENT TEST QUESTION 1

Introduction
SELF -
Question needs to examine current position in UK on access to information. Defence of lack of positive right is partly based on adverse impact change would have on decision-making process and on bedrock constitutional convention of ministerial responsibility. However essay will argue these reasons are erroneous as are other reasons advanced for maintaining secrecy. Proposals for change will be evaluated. Present position (i) Official Secrets Act 1989 not a liberalising measure as Douglas Hurd maintained. Effect is not to release information but to preclude criminal sanctions in some instances of unauthorised disclosure. Test of harm established, but some areas absolutely protected, e.g. information on international relations. Sanctions on journalists introduced. No public interest defence. Act paralleled by Security Services Act and Intelligence Services Act and prevents effective oversight of security services. Private law doctrine of confidentiality, elaborated in AG v JONATHAN CAPE and extended in Spycatcher saga. Note injunctions binding on third parties (TIMES NEWSPAPERS AND ANOTHER v AG (1991)). Power of contempt and confidence laws jointly to preclude dissemination of information by injunction procedure.
(ii)
(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 public inquiries e.g. over Channel Tunnel. (vii) Miscellaneous legislation e.g. Medicines Act 1988, presents release of information on why drugs approved or 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 anonymity are foundations of unwritten constitution and they would be undermined if minister could not be in charge of deciding which information should be disclosed to House
of Commons i.e. vital to preserve principle of neutral civil service. But modern reality bears little resemblance to the nineteenth century idea (Rodney Austin). Disclosure depends on ministerial goodwill, sheer volume of information makes system unworkable, and party discipline precludes penetrating parliamentary investigation. Further on the one hand many civil servants do routine work whose revelation would not prejudice political neutrality; and on other hand senior civil servants provide advice based on a general policy framework and it is a fiction that they offer imperially evaluated opinions, their advice should be subject to public scrutiny. Goldfish bowl decision-making perhaps would hamper discussion on politically delicate issues but this could be met by temporary postponement of access. (ii) Other reasons for opposition to positive right include common law pragmatic approach to disclosure rather than blanket positive rights. Statute and courts approach liberalising already cf. Data Protection Act, Local Government (Access to Meetings) Act, Land Registration Act 1988 (Anyone can obtain information from register about registered land title), select committees, ombudsman, green papers, Citizens Charter initiatives and Waldegraves ministerial post, and also role of courts in e.g. Matrix Churchill trial and minority judgments of Lords Bridge and Oliver in A-G v GUARDIAN NEWSPAPERS LTD [1987] 3 All ER 316. (iii) However note should also be taken of commercial considerations in opposition to disclosure e.g. under Environment and Safety Information Act 1988 risk of disclosure of trade secret may be referred to a minister; in March 1989 transport minister Portillo cited commercial confidentiality as a reason for refusal to identify seven passenger ferries which failed safety standards after Zeebrugge disaster. Arguments pro change more openness (i) Participatory democracy impossible without fuller knowledge in 1983 electorate not told decision to replace Polaris had already been taken although it was presented as election issue.
(ii) People need information to make decisions about own lives e.g. role of regulatory agencies. cf. Windscale fire 1957, news suppressed for 30 years. (iii) Parliamentary control of executive would be strengthened. (iv) Government would make better more rational decisions if policy options disclosed. (v) Experience of other countries e.g. USA shows value of availability of information in revealing government malpractice Watergate.
CONCLUSION
On balance case of Freedom of Information made but worth considering that any positive right would still leave let outs for sensitive areas e.g. national security and change may not make that much difference e.g. terms of Freedom of Information Bill and experience of ECHR in Spycatcher where court refused unqualified opposition to injunctions (OBSERVER AND GUARDIAN v UK, SUNDAY TIMES v UK 1991 ). Recent evidence to Scott Inquiry reveals extent of government emphasis on secrecy, 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 on secrecy, emphasis on strong executive, strict party discipline. Change towards openness probably only possible as part of overall constitutional changes. Note that Bill is criticised as proposing too many exemptions and an inadequate test for disclosure.
QUESTION 2
Demand for name of Doctor: Contempt of Court Act 1981 s.10. See X v MORGAN GRAMPIAN . Need to establish interests of justice, national security or prevention of disorder or crime. Here interests of justice involves considering, as Lord Bridge put it in Morgan Grampian, the balancing of interests. Lord Bridge rejected the view that the interests of justice encompassed only the technical matter of the administration of justice, so here the prospect of a civil suit in contract is not decisive. One important factor was the nature of the information received. Here the public interest in knowing about poor hospital conditions would seem weighty. Furthermore it was important in 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 Court Act. First of all it is necessary to determine if the article could have any effect on any particular proceedings. This is clearly the case since it refers to the connection between the nurses and the series of accidents. Furthermore proceedings must be active. Here we are not told there has been either a warrant or an arrest, therefore statute does not apply, s.2(3) and the relevant law is common law contempt. Under s.6(c) Nothing in the foregoing provisions of this Act restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice. Common law contempt committed by publication of an article which causes a real risk of prejudice to the due administration of justice if done with specific intent to cause such a risk to the administration of justice (see AG v SPORT NEWSPAPER LTD [1991]). Other leading cases are AG v TIMES NEWSPAPERS LTD {1991} and AG v NEWS GROUP PAPERS PLC [1989]. In the latter case Watkins LJ said that the circumstances in which a criminal contempt at common law may be committed are not confined
to those in which the proceedings are either pending or imminent. The need for a free press is axiomatic but the press cannot be allowed to charge about like a wild unbridled horse. In any case in that case it had been established that the proceedings were imminent. Intent to be distinguished from motive or desire. It can be inferred from the circumstances and need not be the sole intention of the contemnor. The Daily Sports editor escaped being found in contempt because he might have believed he was not liable before proceedings became active. However the Daily Globe cannot claim this defence because that advice is now available to him. Does the proposed article constitute contempt? Will it interfere with the course of justice. The test is whether a publication was calculated or likely to interfere with the course of justice or whether it created a real risk that the fair and proper trial of pending proceedings might be prejudiced. The test is less exacting than the statutory test which is that the article created a substantial risk of serious prejudice. Evidence of a previous acquittal is not generally admissible against a defendant in cross examination even when his character is in issue. So the newspaper will be putting before potential jurors material they will not normally have heard. Its impact is likely to be prejudicial, although the argument would be made that it cannot discredit the defendants since it is irrelevant to character. However the court would look to the actual impact of the article not its technical category. The Globe should withhold publication therefore of the material which indicates that the nurses have previously been investigated and cleared. Kiljoys Article: Seems to be no reason why it should not be published, unless the comments on staff attitudes are such that they suggest the two nurses are guilty of the scalding. Statutory contempt contains a public interest defence. This does not apply to common law contempt although as Robertson points out in his book Media Law, It may be that a form of public interest defence exists at common law in so far as the court may find that the public interest in freedom of expression outweighs in the instant case the public interest in the administration of justice ... It will be rare for a deliberate attempt to prejudice a trial to escape a contempt finding on this test although one example might be the right of a defendant to proclaim his innocence prior to his appearance in court (p. 286). There have been several cases of programmes or articles which were initiating campaigns over criminal proceedings, partly to sting authorities into action. Robertson suggests that this is not intentional contempt because to encourage the initiation of a prosecution is not prejudicial to the administration of justice. The state of the law in this area is controversial. In the SPORT case Bingham LJ held that common law contempt could cover proceedings which though not in existence were imminent. Hodgson J by contrast felt that the judges right to control proceedings should not be extended to proceedings which were imminent. Such matters should be dealt with by the
criminal law to be dealt with by for example a charge of perverting the course of justice. Robertson argues that The forces antagonistic to media freedom have sought to exploit the residual powers of the court to punish for intentional contempt at common law, citing the Spycatcher saga as an example. With regard to disclosure of journalists sources commentators such as David Pannick QC have argued that the courts power will hamper important investigative journalism. He cites cases such as the forced disclosure of Sarah Tisdall as an informant.

SPR92.140(9/99)
CHAPTER 16
FREEDOM OF ASSOCIATION; FREEDOM OF ASSEMBLY

www.spr-law.com
CONTENTS
Introduction............................................................................. 1 Freedom of association ............................................................ 1 Freedom of assembly ............................................................... 2
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C ONSTITUTIONAL
AND
FREEDOM FREEDOM
OF OF
ASSOCIATION; ASSEMBLY
INTRODUCTION
Freedom of speech and expression are closely connected with freedom of association and assembly, and here too the law is concerned with achieving a balance: between freedom of speech and assembly on the one hand, and the preservation of the public peace on the other. Article 11(1) of the European Convention for the Protection of Human Rights states that everyone has the right to freedom of peaceful assembly and to freedom of association with others ..., while Art 11(2) recognises that restrictions may be imposed upon these rights by law but only such as are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, or for the protection of the rights and freedoms of others. Freedom of association consists of the liberty of two or more persons to meet, e.g. to form political parties, trade unions, clubs, and to hold public meetings and processions, provided that they do not infringe any rule of common law or statute. As Stephen J said in 1884: the liberty of the subject always consists in doing something a man is not forbidden to do. There is no positive right to associate and with regard to assembly the emphasis has been on the policing aspects of public groupings. Since enactment of the Human Rights Act 1998, Article 11 of the Convention (freedom of association) has effect. Among recent cases on this article is GOUGH v CHIEF CONSTABLE OF DERBYSHIRE [2002] 2 All ER 985 , upholding the legality of football banning orders from challenge under the Convention of EU law on free movement of persons. The laws which apply to unruly political demonstrations are also applicable to the problems posed by football hooligans, mods and rockers, quarrelling neighbours, drunks, and rioters without any apparent political message. They are all viewed by the law as public order problems. Because of this problem of public order inroads into freedom of assembly have been easier to justify than those into freedom of speech.
FREEDOM
OF ASSOCIATION
There are very few restrictions on the right to associate. The justification for banning associations is generally that they are dangerous, criminal conspiracies or a threat to national security. Thus the Prevention of Terrorism Act proscribes the
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Irish Republican Army and the Irish Liberation Army. The Public Order Act 1936 (now largely replaced by the Public Order Act 1986, see below) was introduced to deal with the provocations of the British Union of Fascists in the East End of London. Section 1 of the 1936 Act still makes it an offence for a person to participate in the control, management, organisation or training of a body for the purposes of enabling it to usurp the functions of the police or army, or to use force in the promoting of any political object. Other restrictions on freedom of association include the ban on trade union membership at the Government Communication Headquarters. The unions challenged the ban by way of judicial review but the House of Lords in COUNCIL
OF CIVIL SERVICE UNIONS v MINISTER OF STATE FOR THE CIVIL SERVICE [1985] AC 374 held that, although the unions had a
legitimate expectation of consultation that had been breached, the national security implications justified the breach. The European Commission for Human Rights subsequently decided that the order was justified under the national security exception to Article 11 of the Convention. The rights of civil servants generally to participate in political activity are constrained by convention under the Civil Service Pay and Conditions of Service Code. Certain political activities by categories of civil servants are restricted. Local authority employees have had their political activities restricted by law. Under a highly controversial provision of the Local Government and Housing Act 1989 certain posts are identified as being politically sensitive and their holders are restricted from becoming elected councillors or Members of Parliament. Commenting on the section and its effect on these postholders, Feldman (at p. 576) writes: Furthermore the terms and conditions of their employment are deemed to contain provisions laid down centrally by the Secretary of State for the Environment by regulation. This opens the possibility that government might make it a breach of a persons contract of employment to take part in any political activity or to support certain parties. This is a dangerous power to leave in the hands of central government with only limited opportunities for parliamentary oversight. The prohibition of fox hunting could be challenged on the ground of limiting the right to freedom of association. But in ADAMS v LORD ADVOCATE (The Times, 8/8/02) the Scottish Court of Session stated that the right was not unlawfully limited by the Scottish ban on fox hunting.
FREEDOM
OF ASSEMBLY
The law in this area is covered by various criminal statutes particularly the Public Order Act 1986 and the Criminal Justice and Public Order Act 1994. Common law powers supplement these with both civil and criminal liability. Freedom of association will be examined here in relation to meetings, both indoor and out, and demonstrations.
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P UBLIC MEETINGS
A public meeting is a meeting for the purpose of discussing, or expressing, views on a matter of public interest and to which the public, or any section of the public, is invited or permitted to attend on payment or otherwise. A public meeting may be held in a private or in a public place.
PUBLIC MEETINGS IN PRIVATE PLACES

The exercise of liberty to hold a public meeting in a private place is embarrassed by the decision in THOMAS v SAWKINS [1935] 2 KB 249 that the police may enter and remain on private premises if they have reasonable grounds for believing that, if they were not present, seditious speeches would be made or a breach of the peace would occur or, in the opinion of Lord Hewart CJ, that any offence is imminent or likely to be committed. Because many public meetings are held in halls owned by a local authority and hired for the occasion, a group with unpopular views might find difficulty in obtaining a hall for their purpose. Candidates at elections are entitled to have access to locally-maintained schools and other public halls in order to hold campaign meetings, but otherwise the local authorities have a discretion whether to allow their premises to be used (s.95 Representation of the People Act 1983). Under s.43 of the Education No.2 Act 1986 the governing bodies of universities and publicly funded colleges must take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.
PUBLIC MEETINGS IN PUBLIC PLACES

As far as public meetings in public places are concerned, it has been held in a number of cases that there is no common law right to hold a public meeting on the foreshore, a common, in Hyde Park, or in Trafalgar Square. But a public meeting in such a place is not necessarily unlawful.
PUBLIC MEETINGS ON THE HIGHWAY

A public meeting on a highway may amount to a trespass against the private owner of adjoining land or the local authority which owns the surface of the highway because the right of the public to use the highway is a right to pass and repass on lawful occasions: HARRISON v DUKE OF RUTLAND
[1893] 1 QB 142.
A meeting on the highway may also cause an obstruction and form the basis of a prosecution for the common law offence of public nuisance, i.e. substantial annoyance to the Queens subjects, for example, by impeding them in the exercise of their right to use the highway. In R v CLARK (NO 2) [1964] 2 QB 315 a demonstration by an anti-nuclear weapons group in London was held to be not necessarily unreasonable.
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Section 137 Highways Act 1980 makes it a statutory offence for any person, without lawful authority or excuse, wilfully to obstruct the free passage of the highway in any way. A police constable may arrest offenders without a warrant. In ARROWSMITH v JENKINS [1963] 2 QB 561 it was held that the statutory offence may be committed although only part of the highway is obstructed and even though no nuisance is committed. The appellants conviction was upheld even though the area was frequently used for meetings and the police had been notified of the meeting. However, the reasonableness of the obstructors behaviour may provide lawful excuse as in NAGY v WESTON [1965] 1 WLR 280 and AGU
AND HIRST v CHIEF CONSTABLE OF WEST YORKSHIRE (1986) 85 Crim App R. 143 .
The Metropolitan Police Act 1839 empowers the Metropolitan Police Commissioner to direct that certain streets in London be kept clear of crowds, and local by-laws may require police permission for holding public meetings in certain places.
PICKETING
A picket is a form of public meeting on the highway. At civil law some immunity is granted to those who, in contemplation or furtherance of a trade dispute, attend a picket at their place of work to communicate information or persuade peacefully. The protection has been reduced by the legislation of the 1980s, but immunities are allowed in certain torts e.g. inducing a breach of contract. The law is now contained in the Trade Union and Labour Relations Consolidation Act 1992. Section 220(1) reads: It is lawful for a person in contemplation or furtherance of a trade dispute 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 work of a member of the union whom he is accompanying and whom he represents, for the purpose only of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working. The provision gives immunity from the offence of watching and besetting covered by s.241. At criminal law there is no immunity for other offences as may occur during a picket, e.g. trespass to the highway, affray, unlawful assembly, riot. Also, as it is a police officers duty to preserve the peace, resistance by picketers to the orders of the police may constitute the offence of wilful obstruction of a police officer in the execution of his duty: PIDDINGTON v
BATES [1960] 3 All ER 660.
Moreover, a mass picket may amount to a common law nuisance and also to a s.241 offence: THOMAS v NATIONAL
UNION OF MINEWORKERS (SOUTH WALES AREA) [1985] 2 All ER 1.
The law on picketing was considered in general terms by the House of Lords in BROOME v DPP [1974] 1 All ER 314 when they declined to interpret the law flexibly to protect a picket who held up a lorry for nine minutes. The Court of Appeal discussed picketing not arising out of a trade dispute, in the civil case of HUBBARD v PITT [1975] 3 All ER 1, where an
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injunction was awarded to stop picketing outside an estate agents premises. A picket may constitute a trespassory assembly under CJPOA (see below).
PUBLIC ASSEMBLIES
A public assembly is defined by the Public Order Act 1986 as a meeting of more than twenty persons in a public place wholly or partly in the open air. No advance notice of meetings (or static demonstrations) need be given to the police but s.14 Public Order Act 1986 gives a senior police officer power to impose conditions (relating e.g. to place of meeting, maximum duration, maximum number of persons) on the organisers of a public assembly if there is reasonable 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 condition imposed, and powers of arrest without warrant are conferred on police officers.
A GGRAVATED TRESPASS AND

TRESPASSORY ASSEMBLY
Sections 6871 CJPOA were directed particularly at two groups of people, namely, hunt saboteurs and gatherings at Stonehenge. However, some critics fear that they will be applied in a wide range of situations which Parliament did not originally intend. Sections 68 and 69 create a new offence of aggravated trespass for which police may arrest without warrant. The offence is committed where a person trespasses on land in the open air (highways are exempt) and does anything intended to have the effect of intimidating people from carrying out lawful activity on that land or adjoining land so as to deter them from engaging in that activity or disrupt or obstruct that activity. Sections 7076 created new sections of the Public Order Act 1986, 14A, B and C whereby a chief officer of police may apply to the district council for an order to prohibit all trespassory assemblies in the district if he reasonably believes that an assembly is intended to be held in any district at a place to which the public have no or limited right of access. He must reasonably believe that the assembly is likely to be held without the permission of the occupier of the land and may result either in serious disruption to the life of the community, or, where the land or building or monument is of historical, architectural or scientific importance, in significant damage to the land, building or monument. These measures apply to assemblies of 20 or more people. In the area of the metropolitan police commissioner or the City of London police commissioner the permission is sought of the Secretary 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 it is forbidden and to take part in it if the person knows of the banning order. A constable in uniform may arrest without warrant for these offences on reasonable suspicion. Finally, a constable in uniform may stop a person on his way to a prohibited assembly if he reasonably believes he is so doing. The House of Lords judgment in the case of DPP v JONES AND ANOTHER, The Times, 5 March 1999, concerned events of 1 June 1995 when a group stood on the roadside verge of the perimeter fence of Stonehenge with banners saying Free Stonehenge and were arrested for trespassory assembly. The House of Lords held that a peaceful non-obstructive assembly of 21 persons on the verge of the A344 at Stonehenge, found by the trial court to have been a reasonable use of the highway, had not been a trespassory assembly within the meaning of s.70 CJPOA 1994. The Lord Chancellors judgment was that the law should recognise that the public highway was a public place where all manner of reasonable activities might go on. Provided those activities were reasonable, did not involve the commission of public or private nuisance and did not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass they should not constitute a trespass. Subject to these qualifications there would be a right of peaceful assembly on the highway.
PUBLIC PROCESSIONS
Public processions are prima facie lawful (each individual exercising the right to pass along the highway), but the organisers may be subject to the civil law of trespass and to the criminal offences of public nuisance at common law and obstruction of the highway under s.137 of the Highways Act 1980. Section 11 of the Public Order Act 1986 introduces a general requirement (which had existed previously in particular areas under local legislation) that the organisers give 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 or actions 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.11 also provides the various defences to such a charge. Section 12 of the Public Order Act 1986 empowers a senior police officer to impose such conditions as appear to him necessary on the organiser of a procession in the same circumstances as set out in s.14 (above). Section 13 of the Act provides that a public procession may be banned if the chief officer of police reasonably
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believes that power to impose conditions will not be sufficient to prevent serious public disorder. The chief officer applies to the district council for the banning order (in London to the Home Secretary). The banning order prohibits the holding of all public processions (or any specified class of procession) in the area for a period not exceeding three months. The organisers of, and participants in, a banned march are guilty of a criminal offence and the police have powers of arrest without a warrant. Sections 12 and 13 replace similar provisions in s.3 of the Public Order Act 1936.
R EMOVING TRESPASSERS FROM LAND

Sections 61 and 62 CJPOA are directed particularly at what was seen as the problem of new age travellers travelling in vehicle convoys. A senior police officer present at the scene has the power to direct groups to leave land if he reasonably believes that there are more than two people who are trespassing on land, that they have a common purpose to reside there for any period and that reasonable steps have been taken on behalf of the occupier to ask them to leave. Furthermore, the officer must be reasonably satisfied that one of the following conditions is fulfilled: either that one or more persons have damaged land or property on the land or used threatening, abusive or insulting behaviour towards the occupier, a member of his family, his employee or agent, or that they have six or more vehicles on the land. The section applies to persons who did not enter as trespassers originally but have become so as long as the qualifying criteria arose after they had become trespassers. A person commits an offence if he fails to leave the land as soon as reasonably practicable or if he returns to the land as a trespasser within three months of the date he leaves. A constable may arrest without warrant anyone whom he has reasonable suspicion has committed an offence. These two sections extend powers that were contained in the Public Order Act 1986. The main changes are the reduction from 12 to six in the number of vehicles required and the application of the powers to people who were not originally trespassers.
R AVES
Sections 6367 CJPOA allow the police to give directions if a rave is taking place or being prepared. It is an offence not to comply with the directions. Among several provisions also covering seizure and confiscation of goods the police are given powers to remove people and to stop them from gathering. The rave must be taking place in the open air with 100 or more people with amplified music playing during the night or without intermission. The music must be such as to cause serious distress to the local inhabitants because of its loudness, duration or the time at which it is played. A person commits an offence for which he can be arrested by a constable if he fails to leave as soon as reasonably practicable
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without reasonable excuse or having left returns within seven days without reasonable excuse. The general effect of the new Act is to criminalise what had previously been a civil matter, namely trespass.
Think Point 1
Is advance notice required for public meetings?
pickets?
demonstrations?
CRIMINAL LAW RELATING TO

PUBLIC ORDER THE PUBLIC ORDER ACT 1986
This statute brought about a major revision of public order law. It abolished the old common law offences of unlawful assembly and affray, and replaced them with new statutory offences.
S ECTION 1: RIOT
The statutory offence has five elements. The accused is: one of twelve or more persons together in a public or private place using or threatening unlawful violence against a person or property
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for a common purpose (which may be inferred from conduct) and the conduct is such as would cause a person of reasonable firmness at the scene to fear for his personal safety (no such person need actually be present) and is using unlawful violence. The consent of the DPP is necessary for prosecution. It is an indictable offence with a maximum sentence of ten years. The mental element is defined in s.6(1): intention to use violence, or awareness that his conduct may be violent.
S ECTION 2: VIOLENT DISORDER

This is the successor to unlawful assembly, applicable both to major public disorders and minor group disturbances: three or more persons present together in a public or private place use or threaten unlawful violence against a person or property and cause a person of reasonable firmness at the scene to fear for his personal safety (as with riot, no such person need actually be present). Unlawful violence is an indictable offence with a maximum sentence of five years. The prosecution need establish no common purpose and the threat of violence is sufficient.
S ECTION 3: AFFRAY
This offence consists of persons using or threatening violence towards another so as to cause a person of reasonable firmness present at the scene to fear for his personal safety (again such a person may be hypothetical as no person need actually be present). The threat cannot be made by words alone. Affray is triable on indictment or summarily. The maximum sentence is three years. There is no numerical requirement, as there is for riot and for unlawful violence, and it may be committed in a public or private place. A constable has power of arrest without warrant. Affray has been, and is likely to continue to be, one of the most common of the public order offences.
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S ECTION 4: THREATENING ETC. WORDS

OR BEHAVIOUR
The offence consists of using threatening, abusive or insulting words or behaviour towards another person or the distribution 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 replaces s.5 of the Public Order Act 1936. It is a summary offence punishable 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. It is, therefore, a question of fact whether behaviour is insulting, etc. In R v HORSEFERRY ROAD METROPOLITAN MAGISTRATES EX PARTE SIADATAN [1991] 1 All ER 324 the court held that on a true construction of s.4(1) violence meant immediate unlawful violence. The applicant was seeking judicial review of the magistrates refusal to issue a summons against the publishers of Satanic Verses for violation of s.4 of the Act. The application was dismissed.
S ECTION 4A: INTENTIONAL HARASSMENT,

ALARM OR DISTRESS
Section 154 CJPOA creates a new s.4A of the Public Order Act 1986. The impetus for this offence was concern over incidents of racial violence but the offence is not limited to such incidents and in fact does not refer to race at all. It comes between ss.4 and 5 of the Public Order Act 1986 in the hierarchy of seriousness of offences and is based on the wording of both. However, its main feature is that it requires both that the offender intended to cause harassment, alarm or distress and proof that the victim did in fact suffer such consequences. There is no need for proof of such intent or for such consequences for s.5. The offence is created if the consequences are suffered by someone other than the person against whom they were directed. The offence can be committed in a public or a private place but there is no offence if the words or conduct are used inside a dwelling and the person who is harassed is also inside that dwelling. A constable may arrest without warrant anyone he reasonably suspects of committing an offence.
S ECTION 5: HARASSMENT, ALARM,

DISTRESS
The statute defines the offence as disorderly conduct, or use of threatening, abusive, or insulting words or behaviour (or display of such writings, signs, etc.) within hearing or sight of an actual (not hypothetical) person likely to be caused harassment, alarm, or distress. The offence can be committed in 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 not aware of the fact that those seeing a display of an aborted foetus might think it threatening, he cannot be convicted, see
DPP v CLARKE, LEWIS, OCONNELL and OKEEFE [1992] Crim LR 60.
This is a new concept of disorderly conduct and criticised by Feldman (at p.808) because it criminalises mere horseplay. It is a summary offence punishable with a fine.
TABLE : PUBLIC O RDER ACT 1986

Section Offence 1 Riot 2 Violent disorder 3 3 Affray 4 Fear/ provoking of violence 1 4A Intentional disorder 1 5 Disorderly conduct 1
Minimum numbers Points to prove
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Using or threatening violence so as to cause person of reasonable firmness to fear for his personal safety (such a person need not be present): Group has common purpose and individual uses violence against property or person (s.8). Using of threatening violence against property or person (s.8). Using or threatening violence to person. If group, their conduct taken together.
Uses/displays, threatening, abusive, insulting words, behaviour etc. towards another: Intended or likely to cause that person to anticipate or to provoke use of immediate violence. With intent to cause harassment etc. and causing harassment etc. Within hearing or sight of person likely to be caused harassment, alarm or distress.
Place Power of arrest
Private or public place. Arrestable. Max 10 years. Arrestable. Max 5 years.
Public or private unless insulter and insulted both in private. PC may arrest without warrant if reasonably PC must first suspects offence is being committed. warn, then may arrest if offence continues.
P REVENTIVE JUSTICE
In addition to the specific criminal offences contained in the Public Order Act 1986, the principle of preventive justice is well established. This enables action to be taken to prevent a demonstration or meeting degenerating into disorder. In his CHARGE TO THE BRISTOL GRAND JURY (1832) Tindall CJ referred to the lawful authority and duty of every person to suppress a riot by every means in his power. In R v PINNEY (1832), also concerned with the Bristol riots of 1831, Littledale J indicated that the main duty lay upon the local magistrates and the police. R v BROWN (1841) establishes that a private citizen is under a common law duty to go to the aid of a constable when called upon to assist in suppressing a breach of the peace.
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The overriding duty of the police and magistrates to preserve the peace has consistently been recognised by the courts and may justify preventive methods to avert disorder even if this means interfering with someone who is not about to commit a breach of the peace or do or join in any illegal act, but who is likely to be made an object of insult or injury by others who are about to break the peace. In BEATTY v GILLBANKS (1882) 9 QBD 308 the right of members of the Salvation Army to make a peaceful procession was upheld even though this provoked violent opposition from the Skeleton Army. Other cases however show that even peaceful demonstrators may be limited in their actions by the police if they reasonably fear a violent counter-demonstration. In HUMPHRIES v CONNOR (1864) an action for assault against a police officer, who had gently removed an orange lily from the plaintiff in an Irish town, failed as the officer was authorised to do everything necessary and proper to remove a provocation which might cause a breach of the peace. The plaintiff had caused a large and threatening crowd to gather. In OKELLY v HARVEY (1883) a magistrate anticipated that a meeting to be addressed by Parnell was likely to be broken up by Orangemen. His attempts to disperse the meeting were held not to amount to an unlawful assault even though the meeting was lawful in itself and its organisers had no intention of disturbing the peace. Magistrates, in the exercise of their preventive duty, also have power to bind a person over to keep the peace and be of good behaviour: Justices of the Peace Act 1361. Binding-over is an exercise of preventive justice and is not a conviction. A personal recognizance and sureties may also be required, as was the case with George Lansbury, the socialist politician, in LANSBURY v RILEY [1914] 3 KB 229 for inciting others to commit breaches of the peace (a speech encouraging suffragettes to continue their policy of militancy). A person may be sent to prison for six months for refusing to be bound over. He may also be imprisoned if he is unable to provide the recognizance and sureties. In WISE v DUNNING [1902] 1 KB 167 the Divisional Court held that the Liverpool stipendiary magistrate had properly ordered Pastor Wise to find sureties to keep the peace and be of good behaviour for twelve months. Wise had organised a Protestant crusade calculated to provoke Catholics to commit breaches of the peace. Wise had not himself committed a breach of the peace but had provoked others to do so, and the disorder was the natural and probable consequence of his conduct. Closely linked to preventive justice, but amounting to a criminal offence, is the wilful obstruction of a constable in the execution of his duty contrary to s.89 of the Police Act 1996. This is exemplified by the case of DUNCAN v JONES [1936] 1 KB 219 where it was held that the duty of the police to preserve the peace includes a duty to stop public gatherings where serious disorders occur or may be expected to occur. The police requested that Mrs Duncan hold her meeting on unemployment out of sight of a centre for the unemployed
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where disturbances had apparently occurred following an earlier meeting held by her. Her refusal to cooperate amounted to wilful obstruction. In MOSS v McLACHLAN [1985] IRLR 76 the police were held to have lawfully arrested for obstruction drivers and passengers in vehicles who ignored a request to turn back at a road block. The police feared that the pickets at collieries would lead to a breach of the peace.
Think Point 2
What is the difference between s.4A POA 1996 and s.5? List the elements of the two offences.
CONCLUSION
There is no absolute right to demonstrate and, as there is an impressive range of relevant criminal and civil offences, demonstrators may fall foul of the criminal and civil law in many ways. A balance is necessary between the interests of free assembly and expression of views on the one hand and the interests of public order on the other. Commenting on the state of the law in this area, Ewing and Gearty write: the residue of which Dicey was so proud has narrowed to the point of extinction. There may be freedom to protest but it exists only to the extent that it is permitted by the police.
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In the last resort, if the police are unable to control a public disturbance, the army may be called in to assist the civil power.
Revision
You should now carry out a comprehensive revision of the work we have done in Chapters 915 and complete Assignment D under examination conditions. Ideally, you should not refer to the texts when writing your answers. Specimen answers will be sent to you with your marked script.
A DDITIONAL READING
Bradley and Ewing, Chapter 23 Marston and Ward, Chapter 18.
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CASES REFERRED TO IN THIS CHAPTER

COUNCIL OF CIVIL SERVICE UNIONS v MINISTER OF STATE FOR THE 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 (SOUTH WALES) 1985 BROOME v DPP 1974 HUBBARD v PITT 1975 BRUTUS v COZENS 1973 DPP v JONES 1999 R v HORSEFERRY ROAD METROPOLITAN MAGISTRATES EX PARTE SIADATAN 1991 DPP v CLARKE, LEWIS, OCONNELL and OKEEFE 1992 CHARGE TO THE BRISTOL GRAND JURY 1832 R v PINNEY 1832 R v BROWN 1841 BEATTY v GILLBANKS 1882 HUMPHRIES v CONNOR 1864 OKELLY v HARVEY 1883 LANSBURY v RILEY 1914 WISE v DUNNING 1902 DUNCAN v JONES 1936 MOSS v Mc LACHLAN 1985
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C ONSTITUTIONAL
AND
QUESTION 1
Rolls and Royce, officers of the Middle England Alliance (MEA), propose to hold a demonstration, followed by a picket and speeches outside the Red Flag theatre in Islington. They intend to show their opposition to the production of a play advocating the abolition of the monarchy and depicting the Queen as a school dinner person. The Commissioner of the Metropolitan Police decides to impose conditions which require the march to be routed to avoid the noted Republican area of Camden High Street. As the march begins at Kings Cross a large group breaks free and begins to head towards Camden High Street. It includes some MEA members and also non-MEA marchers belonging to the Militant Monarchist Movement (MMM) which believes in violence to support its aims. At the Red Flag theatre a picket is staged and speeches made; the senior police officer present concludes that the mood of the crowd is so menacing as to pose a danger to public order. He shouts out instructions through a loud hailer but the demonstrators do not follow them. Groups of MMM members begin to throw missiles. Advise on possible breaches of the law committed in the above circumstances.
QUESTION 2
The League Against Team Sports hired a hall in London for a public meeting to be addressed by Jack Solo, a leading advocate of the case for legally banning team sports. The meeting is extensively advertised and a large attendance is anticipated. The police learn that a strong contingent from the Twickenham Pedestrians Rugby Football Club will attend the meeting. 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 meeting taking place or to terminate the meeting once it has begun?
SPECIMEN
ANSWERS TO ASSESSMENT TEST QUESTION 1

MEA March and MMM March
SELF -
Need for notice, unless not reasonably practicable to give any notice. March falls within one of the categories for which notice is required. POA 1986 s.11(1)(a). Commissioner may impose conditions under s.12 if one of four triggers applies. Arguably there is here reasonable fear that it may result in serious public disorder because of opposition from the Republicans in the area but there would have to have been some evidence that this had previously occurred. Breakaway marchers are committing a criminal offence if police instructions are reasonable. Organisers may have a defence under s.12(4) re: MEA marchers. Other possible criminal offences are those under s.137 Highways Act. See here need for non reasonable user, NAGY v WESTON , and the courts acknowledgement of freedom to demonstrate in HIRST AND AGU v CHIEF CONSTABLE OF WEST YORKS . Public nuisance is another possible criminal offence but march must amount to an unreasonable user of the highway (R v CLARKE 1964). Picket No need for notice. Not a trade dispute therefore no civil immunity. Police officer may impose conditions if one of four triggers applies, but only as to place, maximum duration, or maximum 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 are shouting are within scope of section. Knowing refusal to obey conditions is a criminal offence. Arguable that pickets did not hear instructions and, therefore, are not knowingly in breach. Police powers in relation to anticipated breach of the peace also need to be looked at. Consider BEATTY v GILLBANKS and WISE v DUNNING . Action may be taken against those acting lawfully if they are reasonably considered to provoke others to violence (DUNCAN v JONES). Could be a possible charge under the s.89 Police Act 1996. Civil liability may arise, in particular in torts of trespass, nuisance (see HUBBARD v PITT, THOMAS v NUM ). Possible criminal trespass under s.68 CJPOA 1994 if pickets on private land in open air and they intimidate people from carryng out lawful activity on that land or adjoining land. Throwing missiles Possible charge under s.1 POA if twelve or more can be shown to have a common purpose and they use violence. This would seem to be happening here. Consent of DPP needed for prosecution. Consider also ss.24 as possible
lesser offences: s.2 requires three or more to be using or threatening violence; s.3 charge more likely if action not premeditated but the latter may not be difficult to prove if throwers are members of MMM. (Note ss.1, 2, 3 are arrestable offences as are ss.12 and 14).
QUESTION 2
This question is concerned with the problem of reconciling freedom of speech with the need for public order. (a) A public meeting is a meeting for the purpose of discussing, or expressing views on, a matter of public interest and which the public is invited or permitted to attend on payment or otherwise. A public meeting may be held in a public or in a private place. As members of the public, police officers will be entitled to attend the meeting organised by the League Against Team Sports. But, beyond their status as members of the public, police officers will be entitled in law to attend the meeting under the authority of the decision of the Divisional Court in THOMAS v SAWKINS (1935) if they have reasonable grounds for believing that, if they were not present, seditious speeches would be made or a breach of the peace occur or, in the words of Lord Hewart CJ, that any offence is imminent or likely to be committed. In these circumstances the police may enter private premises and remain, even against the wishes of the occupier. In view of the boisterous reputation of rugby players, the subject matter of the meeting and the quoted remarks of the main speaker, the police might well wish to be present at the meeting in order to ensure the maintenance of public order. (b) It does not appear that the police have any legal power to stop the meeting assembling. Section 13 Public Order Act 1986, whereby a Chief Constable may seek a banning order, applies only to processions and not to public meetings. Section 14 of the 1986 Act, which enables a senior police officer to impose conditions relating to the place and duration of the meeting on the organisers of a public meeting if there is reasonable belief that it may result in serious public disorder, applies only where the meeting is wholly or partly in the open air which does not appear to be the case here. The power to ban trespassory assemblies under s.14B also applies to those in the open air but does not cover the highway. There is no reference in the question to any previous disorder associated with meetings of the League and such steps as binding-over to keep the peace and applying the principle in DUNCAN v JONES (1936) would appear to be out of place. An otherwise lawful meeting does not become unlawful simply because opponents are expected to cause a disturbance. A binding-over order could be made if Solo and the League could be accused of being flagrantly provocative, as in WISE v DUNNING (1902), and this does not appear to be the case here. As for DUNCAN v JONES (wilful obstruction of a constable in the execution of his duty), in which a police officer prevented a public
meeting taking place on a particular spot, one of the most important factors in the case was the disturbance which had occurred inside the nearby training centre for the unemployed when Mrs Duncan had held an earlier meeting on that same spot some fourteen months earlier. When the meeting has assembled, however, the police will be able to judge its temper and atmosphere and will have legal power to intervene to prevent disorder. Indeed a police officer will have a duty to prevent disorder, as one of the main responsibilities of a police officer is the maintenance of the peace. Should there be a reasonable threat of disorder, the police will be able to require the organisers to stop the meeting. Any refusal to comply would amount, on the authority of DUNCAN v JONES (1936), to the offence of wilfully obstructing a police officer in the execution of his duty. The police will also be able to intervene if they are of the opinion that Solo is using abusive, threatening, or insulting words or behaviour with an intent to provoke the immediate use of unlawful violence by others: s.4 Public Order Act 1986. The police have a power to arrest without a warrant anyone reasonably suspected of committing this Further, the police will be empowered to intervene under s.2 Public Order Act 1986 should they consider that three or more persons at the meeting are either using or merely threatening unlawful violence which would cause a person of reasonable firmness present at the scene to fear for his personal safety. The police have a statutory power of arrest without warrant in connection with this offence (violent disorder) which is the successor to the old common law offence of unlawful assembly. The police also have power under the Public Order Act 1986 to deal with affray: a person using or threatening violence towards another sufficient to cause a person of reasonable firmness to fear for his personal safety: s.3; and also to deal with a full-scale riot as defined in s.1 of the Act. Quite apart from the criminal offences mentioned above, which may be committed by either Solo or the rugby players or others in the audience, in an atmosphere of impending violence any reasonable action taken by a police officer to disperse the meeting would be protected, in the event of a criminal prosecution or civil action for assault which might be brought against the officer, by the legal duty of the officer to prevent a breach of the peace: HUMPHRIES v CONNOR (1864); OKELLY v HARVEY (1883). In the former case the defendant officer removed an orange lily from the plaintiff because he thought it might provoke violence and, in the latter case, the defendant magistrate dispersed a lawful meeting because he thought it would be attacked by political opponents.
In all cases, though, the rights to freedom of expression and freedom of association must now be considered and balanced against the public interest in law and order.

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