Engish Legal System PDF

CHAPTER 1
ENGLISH 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 OF THE M ANUAL
Chapter 1: Introduction. The Syllabus. The Nature of the English Legal
System. The Legal Profession in England.
Chapter 2: The Court Structure
Chapter 3: Judges and Judicial Reasoning: The Judiciary and its Tasks
Chapter 4: Judges and Judicial Reasoning: The Doctrine of Precedent
Chapter 5: Judges and Judicial Reasoning: Statutory Interpretation
Chapter 6: The Criminal Process
Chapter 7: The Criminal Process: The Jury System
Chapter 8: Legal Services: Legal Aid
Chapter 9: The Civil Process
Chapter 10: The Appellate Process

CONTENTS OF CHAPTER 1
Introduction ............................................................................. 1
The Nature of the English Legal System .................................... 10
The Legal Profession ............................................................... 13

Chapter 1
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 Queen’s Bench Division
County courts and small claims
Enforcement of judgements (in outline only)
Tribunals: representation and adjudication
(e) The appellate process

Civil and criminal appeals
(f) 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 University’s 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 1

Chapter 1
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 & Kelly’s ‘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:
씰 Cases and Materials on the English Legal System (8th

edition 1999)
씰 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

Chapter 1
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
University’s 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:
씰 the structure of legal institutions
씰 legal reasoning
씰 the culture of English law
씰 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.

Chapter 1
CONSILIO
An additional source of up to date material is SPR’s 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 Walker’s
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 University’s 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.

Chapter 1
Page 5 of the University’s guide mentions the Lord

Chancellor’s Department’s 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 University’s
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.

Chapter 1
READING LISTS
The University’s 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
씰 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:
씰 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. Manchester’s
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 & Kelly’s 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

Chapter 1
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. Review the contents of your textbooks so that you have
an overview of the course.
2. Do the same with each specific topic that you have

selected for revision. Follow your own selection of topics
covered in the textbooks.
3. Examine one topic at a time and digest it.
4. Look where the author has highlighted points.
5. Read each leading passage and case carefully and try to

understand what is being said (re-read the notes you
have already made as they are always a useful learning
device).
6. 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:
씰 Does this passage link with other areas, cases and

interpretations?
씰 How is it similar?
씰 How does it differ from other points already known?

Chapter 1
씰 Do I understand this part of the law? If your answer

is ‘no’, then read it over again
8. Test your understanding by working through any self-

examination questions by memory only.
9. Mark your self-assessments by checking through the 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. Don’t attempt to answer a question
until you are satisfied that you fully understand the passage.

Chapter 1
Consider the following questions:
A What is this section/question all about?
B What areas of law does it cover?
C What are the relevant laws and academic legal arguments,

and what are the related statutes and cases, 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 don’t overdo it! You
will need to allocate your final revision time carefully.
Prepare a revision programme:
씰 Prepare for yourself your own schedule of topics to be

covered during the revision period.
씰 Allow time for emergencies that may occur during this

critical time.
Plan your time carefully:
씰 Think about how you are going to use your time. It is a

good idea to do 40 to 45 minutes intensive study and

Chapter 1
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.
씰 Make sure that you will not be disturbed.
2. THE NATURE OF THE

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:

Chapter 1
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 “King’s
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 Chancellor’s 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:
씰 the European Court of Justice and its satellites in Brussels
씰 the Council of Europe, in Strasbourg, together with:
씰 the Council of Ministers,
씰 the European Commission and
씰 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.

Chapter 1
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

Chapter 1
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

Chapter 1
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 barrister’s
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 barrister’s practice, or the barrister is
unavailable. This means even legal aid (i.e. publicly funded)
work, remunerated at rates less than the barrister’s 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 Bar’s
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.

Chapter 1
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 Lincoln’s Inn

(though there are some in the Temple and Grays Inn)
Common lawyers practice in the Temple or Gray’s Inn.
Commercial lawyers are to be found in all the Inns. It 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

Chapter 1
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.

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.

Chapter 1
S ELF-ASSESSMENT QUESTIONS
All the answers can be found in the recommended materials
or the above summaries.
1. Distinguish between:
씰 common law and civil law
씰 civil law and criminal law
씰 public law and private law
씰 common law and equity
2. What are the sources of English law?
3. Distinguish between:
씰 barristers and solicitors
씰 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)

CHAPTER 2
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.
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:
씰 the Magistrates Courts
씰 the County Court
씰 the High Court of Justice (with its Divisions and

Divisional Courts)
씰 the Court of Appeal, Civil Division, and
씰 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 Queen’s 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:
씰 licensing
씰 certain civil debts
씰 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 court’s jurisdiction is governed by:
씰 the County Courts Act 1984
씰 the Courts and Legal Services Act 1990
씰 the High Court and County Courts Jurisdiction Order

1991 and
씰 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:
씰 Queen’s Bench Division (Lord Chief Justice, now Lord

Woolf, LCJ)
씰 Chancery Division (theoretically the Lord Chancellor, in

practice the Vice-Chancellor, now Lord Morritt, V-C)
씰 Family Division (President of the Family Division, now

Lady Justice Butler-Sloss, P).
The Queen’s Bench Division is the largest of the Divisions,

and deals with contract and tort. It also has specialist courts,
such as the Admiralty Court, which deals with claims for
injury and loss due to collisions at sea, and the Commercial
Court, which deals with insurance, banking, agency and
negotiable instruments.
The Queen’s Bench Division also has civil appellate

jurisdiction from:
씰 certain tribunals and arbitrators (by a single judge)

Chapter 2
씰 certain civil functions, e.g. Solicitors Disciplinary Tribunal

(by two judges in the Divisional Court)
씰 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:
씰 marriage, nullity, divorce, judicial separation, including
financial matters following any decrees relating to these
matters
씰 domestic violence and family property disputes outside

divorce, etc. and not in the Chancery Division
씰 legitimacy, adoption, wardship
씰 all applications under the Children Act 1989
씰 artificial reproduction
he Family Division has an appellate jurisdiction (two High

Court judges of the Family Division) from:
씰 county courts
씰 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:
씰 the three divisions of the High Court, and their divisional

courts
씰 the county courts
씰 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:
씰 Coroners courts (inquests into deaths, inquiries into

treasure trove, etc.)
and …
씰 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 Woolf’s
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 Workmen’s
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 Council’s 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
Chancellor’s 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:
씰 VAT Tribunals
씰 Employment Tribunals (formerly called Industrial

Tribunals)
씰 Social Security Tribunals
씰 Rent Assessment and Leasehold Valuation Tribunals
씰 Mental Health, Medical and Disability Benefits Tribunals
씰 Vaccine Damage
씰 Registered Home
씰 National Health Service
씰 Special Educational Needs, and
씰 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 :
씰 informality (no rules of procedure and evidence beyond
natural justice)
씰 perceived impartiality duty to hear both sides of the case
씰 independence (nemo judex in causa sua)
씰 speed in comparison to the courts (though delays still

occur due to lack of sufficient administrative support)
씰 flexibility
씰 cheaper cost (but costs not normally awarded, so not

recoverable by the winner
씰 specialism and expertise (often lacked by the courts)
씰 hearings usually public though some are private.

Chapter 2
D ISADVANTAGES OF TRIBUNALS:
씰 lack of representation (unless the applicant/respondent
wishes to pay for it)
씰 potentially inadequate appeal provisions
씰 other tribunals decisions and those of appellate tribunals

are persuasive)
씰 potential bias (usually now addressed by a register of

interests kept by the tribunal president)
씰 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:
씰 Should the Council on Tribunals be given extended

powers?
씰 Should its composition be altered and its resources

increased?
씰 Should it have a political base, such as a select committee

in Parliament?
씰 Should tribunals have a more formalised method of

operation?

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 arbitrator’s 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:
씰 privacy
씰 speed
씰 cost
씰 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 arbitrator’s

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 arbitrator’s 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.

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.

Chapter 2
All the answers can be found in the recommended materials,
your reading list or the above summaries.
1. How is work now allocated between the High Court and

County Court?
2. What, if any, is the relationship between courts and

tribunals? Could this be improved in any way?
3. What is an Inquiry?
4. How does the use of ADR relate to the remainder of the

civil justice process? Could better use be made of ADR?
5. What do you think are the objectives of a “good” civil

justice system?

LLB_ELS_Ch02(08/01)

CHAPTER 3
JUDGES AND JUDICIAL REASONING :

THE JUDICIARY AND ITS TASKS

www.spr-law.com
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:
Slapper & Kelly, Chapter 6
Smith & Bailey, Chapter 4
Zander, The Law-Making Process. Chapter 7 – the nature of

the judicial role in law-making
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
judiciary’s 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 father’s 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 II’s
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 timer’s
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 Montesquieu’s 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 HANCELLOR’S 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 Chancellor’s 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:

Chapter 3
“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 non-
active 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
authority’s 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 defendant’s 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 arbitrator’s 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 Hoffmann’s 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 Hoffman’s 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 OF THE
JUDICIARY
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 THE
JUDICIARY
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

Commission’s 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.

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?

Chapter 3
the reading list or the above summaries.
1. What is meant by the independence of the judiciary? Is

this independence important?
2. How does independence differ from impartiality?
3. 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?
4. What criticisms have been made of the selection and

appointment of the judiciary?
5. 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?

LLB_ELS_Ch03(08/01)

CHAPTER 4

THE DOCTRINE OF PRECEDENT

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CONTENTS
The Common Law System – Stare Decisis................................... 1
The House of Lords and the Court of Appeal ............................ 3

Chapter 4
THE DOCTRINE OF PRECEDENT

R EADING PATH:
Zander, The Law-Making Process. Chapter 4 (page 194

onwards) and Chapter 6 (page 259 onwards)
Soundfile: The Doctrine of Precedent
Lecture Notes: Introduction
Lecture Notes: Sources of law (1) Judicial precedent
1. THE COMMON LAW SYSTEM

– STARE DECISIS
The basis of the common law is the doctrine of stare decisis
(basically letting past decisions stand as a norm). This 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 judge’s task will include:
씰 finding the facts (or records them if there is a jury as fact

finder)
씰 stating the legal principles applicable to the factual issues

in the case
씰 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:
씰 certainty (disadvantage is rigidity)
씰 consistency (disadvantage is that it is backward looking)
씰 logical rather than creative (but can be individualistic)
씰 adaptable (but any creativity leads to uncertainty)
씰 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.

Chapter 4
The Continental system of civil law is:
씰 not based on precedent but on a Code of principles
씰 recognises only very limited case law
씰 expects the judge to look forward to develop the widely

framed law as necessary to fit the case.
This makes the civil law system:
씰 less certain (but not rigid)
씰 potentially less consistent (but forward looking)
씰 to some extent creative (but still potentially individualistic)
씰 possibly not ultimately precise (less cases, but principles

clear).
The civil law system nevertheless works for the following

reasons:
씰 there is a career judiciary
씰 lawyers and judges are familiar with the principles of the

Code
씰 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 d’etre 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:
씰 where there are conflicting Court of Appeal decisions the

court can follow either
씰 where a decision was given per incuriam (in ignorance or

forgetfulness of some conflicting authority)
씰 decisions impliedly if not expressly overruled by the

House of Lords.
These rules may be departed from:
씰 where the Court of Appeal decision is inconsistent with a

House of Lords
씰 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
Denning’s views, he though adherence to precedent to be
“no bad thing”: see the judgment of Lord Simon of Glaisdale,
in DAVIS v JOHNSON [1979], AC 264, at p.344 online now. 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?
3. What is the rationale for the doctrine of precedent? Do

you think it is being fulfilled?
4. Do you think the House of Lords should make greater

use of the Practice Direction?

LLB_ELS_Ch04(08/01)

CHAPTER 5

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:
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.
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 code-

based 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 Kingdom’s 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 Zander’s 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 Parliament’s
intention. See GREY v PEARSON (1857) 6 HL Cas 61 .
THE MISCHIEF R ULE

Also called the Rule in HEYDON’S CASE (1584) 3 Co Rep 7a,
which defined it. Sometimes it is said to be an extension of 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 Irvine’s 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 judiciary’s approach to statutory interpretation?

Chapter 5
reading lists or the above summaries.
1. What types of problems may be encountered when

interpreting statutes and how do English judges address
these?
2. 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?
3. Which of the rules allows the judges more creativity in

interpretation of statutes?
4. Which offers the most restraint on the powers of the

judiciary to be creative when interpreting statutes?
5. When interpreting statutes, to what extent may the

judiciary refer to dictionaries, Law Commission reports
and Parliamentary reports?

LLB_ELS_Ch05(08/01)

CHAPTER 6
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:
Smith & Bailey, Chapters 13 and 14
Blackstone’s Criminal Practice 2001
Zander: Cases and Materials, Chapter 3 at page 111 onwards
Zander: PACE – see his preface to the main work
Ashworth – Sentencing and Criminal Justice
Soundfile: Criminal Justice
1. THE CRIMINAL COURTS

The courts exercising criminal jurisdiction are as follows:
씰 Magistrates’ Courts
씰 Crown Court
씰 Queens Bench Divisional Court (appeals),
씰 Court of Appeal (Criminal Division)
씰 House of Lords.
M AGISTRATES’ COURTS
More than 97% of criminal cases are dealt with by the
magistrates, who try the following:
씰 summary offences, without a jury, e.g. petty motoring

offences, common assault etc.
씰 “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 accused’s choice in some cases
although two Government Bills have been rejected by the
House of Lords during 2000-2001.)
씰 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 Division…from the
Divisional Court direct to the House of Lords…and 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:
씰 Tier 1: Class 1 offences (murder, treason etc.) are tried

by a High Court (usually Queens Bench Division) judge
씰 Tier 2: Class 2 offences (rape, manslaughter etc.) are

tried by High Court or circuit judges

Chapter 6
씰 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 General’s 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 General’s 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.

Chapter 6
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 Woolf’s 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.

Chapter 6
The following Articles of the Convention are of importance in

relation to the criminal justice process:
씰 Article 3 (Torture and inhuman and degrading treatment)
씰 Article 5 (Unlawful detention)
씰 Article 6 (Fair trial)
씰 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:
씰 objection to the issue of a summons for a common law

offence
씰 a motion to quash an indictment for a common law

offence
씰 a substantive defence to a common law charge
씰 an aid to construction of a statutory offence so that it is

not inconsistent with a Convention right
씰 an application for a declaration of incompatibility by the

High Court or Court of Appeal
씰 the court’s powers to exclude evidence under ss.76 and

78 of PACE and common law
씰 the court’s powers to allow a submission of no case to

answer
씰 a conviction following a trial in which the appellant’s

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:
씰 offensive weapons
씰 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.
씰 Misuse of Drugs Act 1971
씰 Firearms Act 1968
씰 Aviation Security Act 1982
씰 Crossbows Act 1987
씰 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:
씰 it is not reasonably practicable to contact any person

who could give permission to enter the premises, or
씰 such a person had unreasonably refused to allow the

police to enter the premises or to hand over the
evidence, and

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씰 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:
씰 an offence for which the sentence is fixed by law, e.g.

murder for which the penalty is life imprisonment
씰 an offence carrying a maximum of 5 years imprisonment

or more
씰 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
씰 any attempt to commit any of the above.
These categories can be extended by s.116 if:

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씰 if there is serious harm to state security or public order
씰 serious interference with the administration of justice in a

particular case
씰 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:
씰 the name of the suspect must be unknown or unable to

be discerned, or
씰 there must be reasonable grounds for believing that the

arrest is necessary to protect the suspect from
씰 causing physical harm to himself or others
씰 suffering physical injury
씰 causing unlawful obstruction of the highway
씰 causing loss or damage to property
씰 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

Chapter 6
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:
씰 of the reason for arrest
씰 of the right to inform someone of his/her arrest
씰 of the rights existing under PACE (including to legal

advice)
씰 of the right to consult the PACE Codes of Practice.

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The custody officer, who is the guardian of the suspect’s

rights while in custody. must be independent of the
investigation and must also:
씰 open a custody record
씰 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:
씰 is detained for a serious arrestable offence
씰 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 suspect’s 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 Code’s regime in respect of meals, refreshment and rest
breaks applies throughout.

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The time limits are:
씰 24 hours unless a serious arrestable offence has been

committed
씰 36 hours if a superintendent decides it is necessary to

secure or preserve evidence
씰 up to 60 hours if the limit is extended by a magistrate

before whom the suspect is brought
씰 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:
씰 the death of any person
씰 serious financial loss (on an objective test)
씰 serious financial gain (on a subjective test) or is likely to

lead to such consequences,
or …
씰 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:
씰 first review – 6 hours from detention
씰 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:
씰 a juvenile
씰 blind
씰 mentally handicapped
씰 unable to read.

Chapter 6
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 detainee’s 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 defendant’s 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 suspect’s 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

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 Board’s 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.

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
suspect’s 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 Blackstone’s Criminal Practice 2001).

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:
씰 fail to surrender to custody
씰 commit an offence while on bail
씰 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.

Chapter 6
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. When can a person leave the police station?
3. What is an interview?
4. Which PACE Codes regulate:
(a) stop and search
(b) detention
(c) identification
(d) search and seizure
(e) recording of interviews?
5. On what basis can bail be refused?

LLB_ELS_Ch06(08/01)

CHAPTER 7
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:
Slapper & Kelly, Chapter10
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 king’s 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 jury’s
importance by portraying the ‘right’ to jury trial as

Chapter 7
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:
씰 The Administration of Justice Act 1933 limited the use of

juries in civil cases
씰 The 1986 Roskill Report advocated the abolition of the

right to trial by jury in complex fraud cases
씰 Lord Denning argued that some jurors are not

adequately suited to the task required of them
씰 Amendments to the Criminal Damage Act 1971 have

taken certain cases away from the jury, making them
summary offences
씰 Part V of the Criminal Justice Act 1988 removed the right

to jury trial for other offences, including driving whilst
disqualified
씰 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.
씰 In civil cases the use of the jury has almost disappeared
씰 The Coroners’ Court has also been modified by the

Criminal Law Act 1977
씰 The Northern Ireland (Emergency Provisions) Act 1991

has taken away the right to jury trial for defendants in
serious criminal cases
씰 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 Diplock’s 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
Zedner’s 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.
씰 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-General’s
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
situation’s arising again.
씰 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
judge’s 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:
씰 members of the judiciary, barristers, solicitors, the clergy

and the mentally ill
Certain persons are excused:

Chapter 7
씰 MPs, members of the armed forces and medical and legal

professions
씰 (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:
씰 is not qualified
씰 is biased
씰 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:
씰 if the jury check shows information supporting the

exercise of this right
씰 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 Crown’s 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.

Chapter 7
5. THE CASE FOR THE JURY

FOR…
The arguments for retaining the jury are as follows:
씰 the members should reflect society
씰 the jury is central to protecting our liberties
씰 the existence of the jury checks any abuse of judicial

power
씰 jurors have no legal training and import common sense
씰 juries are a barometer of public feeling
씰 jurors are not “prosecution minded” (better chance of

acquittal before them than before magistrates)
씰 any bias can be overcome – there are 12 jurors.
AGAINST…
The arguments against retaining the jury are:
씰 they have no legal training (not even a basic knowledge

of the law usually)
씰 they are sometimes not intellectually equipped to follow a

complex case (e.g. fraud, clinical negligence)
씰 they can be influenced by outside forces
씰 they are sometimes actually prejudiced as well as

ignorant
씰 a good lawyer can sway them
씰 they are said to acquit too many people
씰 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:
씰 The Contempt of Court Act 1981, s.8 to be repealed to

allow research into the jury.
씰 Changes in selection and disqualification of jurors.
씰 More checks to be made of jurors to ensure they are not

related to one another or the accused.

Chapter 7
씰 A more balanced panel with at least three members from

ethnic minority groups.
씰 One member reflecting the ethnic origins of the accused.
씰 Protection of juries from outside influences during

proceedings.
씰 More flexible trial scheduling to allow jurors to go to

work especially during long trials.
씰 The abolition of the defendant’s 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 judge’s 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.

Chapter 7
reading lists or the above summaries.
1. What evidence is there that the jury is an outmoded

institution.
2. What did the Roskill Report, examining alternatives for

complex fraud trials, suggest instead? Would these
suggestions assist in other complex trials?
3. Do juries have the opportunity to assess the truth of a

case?

LLB_ELS_Ch07(08/01)

CHAPTER 8
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:
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)
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 authority’s functions are the
establishment, maintenance and distribution of:
씰 the Community Legal Service (CLS) which replaces the old

civil legal aid scheme; and
씰 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

Chapter 8
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 pre-
war 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 litigant’s 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 Board’s 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:
씰 Legal Advice and Assistance (“The Green Form Scheme”)
씰 Civil Legal Aid
씰 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.

Chapter 8
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 applicant’s 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 client’s 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:
씰 would be likely to be deprived of his liberty on

conviction, or
씰 had some form of mental or physical impediment, or
씰 was incapable of comprehending the proceedings

because he could not speak English, or
씰 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:
씰 strategic management
씰 service plans
씰 management of information
씰 personnel management
씰 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 child’s legal aid eligibility was
based solely on the child’s mean calculated by completing a
simplified statement of means.

Chapter 8
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:
씰 Legal Advice Centres,
씰 Citizens Advice Bureaux
씰 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
Council’s 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

Chapter 8
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:
씰 educate the public in their rights and duties under the

law, and
씰 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:
씰 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
씰 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.

Chapter 8
Go online now!
Access the Lord Chancellor’s 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:

Chapter 8
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.

Chapter 8
All answers can be found in the recommended materials, the
reading list, the websites or the above summaries.
1. What are the objectives of the new system of providing

legal help in place of the old legal aid system?
2. 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?
3. What were the main drawbacks of the old legal aid

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

LLB_ELS_Ch08(08/01)

CHAPTER 9
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:
Slapper & Kelly, Chapters 3, 6, 7 and 8
Smith & Bailey, Chapters 11 and 14
Zander: Cases and Materials, Chapter 2
Soundfile: Civil Justice
1. WOOLF: THE REASONS FOR

REFORM
Prior to Lord Woolf’s 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 OOLF’S 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:
씰 articulated an overriding objective, explicitly making the

rules “a code to enable the court to deal with cases
justly”
씰 set out to simplify complexities both of law and

procedure.
Examples:
씰 the different forms by which to start an action were all

replaced by a single “claim”.
씰 the RSC and CCR were replaced by a single set of rules:

the new Civil Procedure Rules, or “CPR”
씰 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
씰 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
씰 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)
씰 reformed the delivery of expert evidence
씰 created timetables which had to be met
씰 generated a new culture of openness
씰 set up and invoked costs sanctions for non-compliance
씰 fixed costs in certain cases
씰 simplified English with less emphasis on Latin usage
and

Chapter 9
씰 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.

Chapter 9
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 claimant’s

claim, which is included in the same proceedings as the
claimant’s claim.
Cross-examination (and see “evidence in chief”)
A claim brought by a defendant in response to the claimant’s

claim, which is included in the same proceedings as the
claimant’s 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 defendant’s objectionable behaviour.
Exemplary damages
Damages which go beyond compensating for actual loss and

are awarded to show the court’s disapproval of the
defendant’s behaviour.
Defence of tender before claim
A defence that, before the claimant started proceedings, the

defendant unconditionally offered to the claimant the amount

Chapter 9
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.

Chapter 9
Service
Steps required by rules of court to bring documents used in

court proceedings to a person’s 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 Blackstone’s 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?

Chapter 9
All answers can be found in the recommended materials, the
reading list, Blackstone or the above summaries.
1. Do you think that, given Lord Woolf’s stated support of

ADR, (Alternative Dispute Resolution) has been given a
sufficiently high profile within the new systems?
2. What is the role of the protocols?
3. What sanctions exist to apply against those who do not

follow the rules?
4. How has the role of experts changed following Lord

Woolf’s reforms?

LLB_ELS_Ch09(08/01)

CHAPTER 10
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

Chapter 10
THE APPELLATE PROCESS

R EADING PATH:
Zander: Cases and Materials, Chapter 7 (page 545)
Blackstone’s Criminal Practice 2001
Blackstone’s Civil Practice 2001
Soundfiles: Appeals and Miscarriages of Justice
1. THE APPELLATE COURTS

There are separate civil and criminal appeal routes.
In criminal cases this is regulated by the Criminal Appeals 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 Appeal’s
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 Division’s 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
씰 to the Crown Court, where a judge sits with two to four

lay magistrates and the hearing is de novo, or
씰 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 Secretary’s 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 Secretary’s 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 CCRC’s 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?

Chapter 10
4. CIVIL APPEALS: THE

PRACTICE DIRECTION TO
PART 52 CPR
Under the Civil Procedure Rules, Part 52, there is reference
now to the main Practice Direction (PD) which you can read
in full in Blackstone’s 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.
2.2 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.
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) in a claim allocated to the multi-track under rules 12.7, 14.8 or

26.5; or
(b) 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) is made at the conclusion of part of a hearing or trial which has

been split into parts; and
(b) 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) on a summary or detailed assessment of costs; or
(b) on an application to enforce a final decision is not a “final decision”

and any appeal from such an order will follow the appeal routes 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.
(b) 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.
(see also paragraph 10.1)
GROUNDS FOR APPEAL
3.1 Rule 52.11(3)(a) and (b) sets out the circumstances in which the appeal
court will allow an appeal.
3.2 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 Rule 52.3 sets out the circumstances when permission to appeal is
required.
4.2 The permission of-
(a) the Court of Appeal; or

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(b) where the lower court’s rules allow, the lower court is required 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) disclosure
(2) filing of witness statements or experts reports
(3) directions about the timetable of the claim
(4) adding a party to a claim
(5) security for costs
4.5 Where the application is for permission to appeal from a case

management decision , the court dealing with the application may take
into account whether:
(1) the issue is of sufficient significance to justify the costs of an

appeal;
(2) the procedural consequences of an appeal (eg loss of trial date)

outweigh the significance of the case management decision ;
(3) it would be more convenient to determine the issue at or after

trial.
Court to which permission to appeal application should be made
4.6 An application for permission should be made orally at the hearing at

which the decision to be appealed against is made.
4.7 Where:
(a) no application for permission to appeal is made at the hearing; or
(b) the lower court refuses permission to appeal, an application 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
appellant’s 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 court’s 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 court’s 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.
APPELLANT’S NOTICE
5.1 An appellant’s 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 appellant’s 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 appellant’s notice
5.2 If an appellant requires an extension of time for filing his notice the
application must be made in the appellant’s notice. The notice should
state the reason for the delay and the steps taken prior to the
application being made.
5.3 Where the appellant’s 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 appellant’s bundle. However, a respondent
who unreasonably opposes an extension of time runs the risk of being
ordered to pay the appellant’s costs of that application.
5.4 If an extension of time is given following such an application the

procedure at paragraphs 6.1 to 6.6 applies.
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 appellant’s
notice in every case except where the appellant’s notice relates to a
refusal of permission to apply for judicial review (see paragraph 15.3
below):
(1) one additional copy of the appellant’s notice for the appeal court;
and
(2) one copy of the appellant’s notice for each of the respondents ;
(3) one copy of any skeleton argument (see paragraph 5.9)
(4) a sealed copy of the order being appealed;
(5) any order giving or refusing permission to appeal, together with a

copy of the reasons for that decision;
(6) any witness statements or affidavits in support of any application

included in the appellant’s notice; and
(7) 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) a suitable record of the reasons for judgment of the lower

court (see paragraph 5.12);
(c) where permission to appeal has been given or permission is

not required; any relevant transcript or note of evidence (see
paragraph 5.15 below)
(d) statements of case,
(e) any application notice (or case management documentation)

relevant to the subject of the appeal,
(f) in cases where the decision appealed was itself made on

appeal, the first order, the reasons given and the appellant’s
notice of appeal from that order,
(g) in cases where the appeal is from a Tribunal, a copy of the

Tribunal’s reasons for the decision, a copy of the decision
reviewed by the Tribunal and the reasons for the original
decision
(h) in the case of judicial review or a statutory appeal, the

original decision which was the subject of the application to
the lower court
(i) relevant affidavits, witness statements, summaries, experts’

reports and exhibits;
(j) any skeleton arguments relied on in the lower court; and
(k) such other documents as the court may direct.
5.7 Where it is not possible to file all the above documents, the appellant
must indicate which documents have not yet been filed and the reasons
why they are not currently available.
5.8 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.
Small claims
5.8A Where the appeal relates to a claim allocated to the small claims track,
the appellant must file the following documents with his appellant’s
notice.
(1) a sealed copy of the order being appealed;
(2) any order giving or refusing permission to appeal, together with a

copy of the reasons for that decision; and
(3) a suitable record of the reasons for judgment of the lower court
(see paragraph 5.12 below).
5.8B The appellant may file any other document listed in paragraph 5.6 in
addition to the documents referred to in paragraph 5.8A.
Skeleton arguments
5.9
(1) The appellant’s notice must, subject to (2) and (3) below, be
accompanied by a skeleton argument. Alternatively the skeleton
argument may be included in the appellant’s 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 appellant’s skeleton argument to

accompany the appellant’s notice it must be lodged and served on
all respondents within 14 days of filing the notice.
(3) 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.
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
appellant’s 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 judge’s signature.
Note of judgment
(2) When judgment was not officially recorded or made in writing a note of
the judgment (agreed between the appellant’s and respondent’s
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 Tribunal’s reasons for the decision.
5.13 An appellant may not be able to obtain an official transcript or other

suitable record of the lower court’s decision within the time within
which the appellant’s notice must be filed. In such cases the appellant’s
notice must still be completed to the best of the appellant’s 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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Advocate’s notes of judgments
5.14 Advocates’ brief (or, where appropriate, refresher) fee includes:
(1) remuneration for taking a note of the judgment of the court;
(2) having the note transcribed accurately;
(3) attempting to agree the note with the other side if represented;
(4) submitting the note to the judge for approval where appropriate;
(5) revising it if so requested by the judge, and
(6) providing any copies required for the appeal court, instructing
solicitors and lay client; and
(7) providing a copy of his note to an unrepresented appellant.
Transcripts or notes of evidence
5.15 When the evidence is relevant to the appeal an official transcript of 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 judge’s notes of evidence must be obtained.
Transcripts at public expense
5.17 Where the lower court or the appeal court is satisfied that 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 appellant’s notice
5.19 Rule 52.4 sets out the procedure and time limits for filing and serving an
appellant’s notice. The appellant must file the appellant’s 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 appellant’s 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
appellant’s notice at the appeal court that takes this into account.
5.21 Except where the appeal court orders otherwise a sealed copy of the
appellant’s 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 appellant’s 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

appellant’s 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 appellant’s notice.
(Paragraph 5.6 provides for certain documents to be filed with an

appellant’s 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) permission to appeal is given by the appeal court; or
(2) the appellant’s notice is filed in the appeal court and-
(a) permission was given by the lower court; or
(b) permission is not required.
6.2 If the appeal court gives permission to appeal, copies of all 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) the date of the hearing or the period of time (the “listing
window”) during which the appeal is likely to be heard; and
(b) in the Court of Appeal, the date by which the appeal will be
heard (the “hear by date”);
(2) where permission is granted by the appeal court a copy of the

order giving permission to appeal; and
(3) any other directions given by the court.
Appeal Questionnaire in the Court of Appeal

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6.4 The Court of Appeal will send an Appeal Questionnaire to the appellant
when it notifies him of the matters referred to in paragraph 6.3.
6.5 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) if the appellant is legally represented, the advocate’s time estimate

for the hearing of the appeal;
(2) where a transcript of evidence is relevant to the appeal,

confirmation that a transcript of evidence has been ordered where
this is not already in the bundle of documents;
(3) 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
(4) confirmation that copies of the Appeal Questionnaire and the

appeal bundle have been served on the respondents and the date
of that service;
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.
7.2 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).
7.3 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 respondent’s
notice.
7.3A Paragraphs 5.1A and 5.1B of this practice direction also apply to a
respondent and a respondent’s notice.
Time limits
7.4 The time limits for filing a respondent’s notice are set out in rule 52.5 (4)
and (5).
7.5 Where an extension of time is required the extension must be requested

in the respondent’s notice and the reasons why the respondent failed to
act within the specified time must be included.
Respondent’s 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 respondent’s skeleton argument may be
included within a respondent’s notice. Where a skeleton argument is

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included within a respondent’s notice it will not form part of the notice
for the purposes of rule 52.8.
7.7 Where the skeleton argument is not included within a respondent’s

notice it should be lodged and served no later than 21 days after the
respondent receives the appellant’s 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 respondent’s
notice)
Content of skeleton arguments
7.8 A respondent’s 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
appellant’s skeleton argument.
Applications within respondent’s notices
7.9 A respondent may include an application within a respondent’s notice in

accordance with paragraph 5.5 above.
Filing respondent’s notices and skeleton arguments
7.10 The respondent must lodge the following documents with his
respondent’s notice in every case:
(1) two additional copies of the respondent’s notice for the appeal
court
(2) one copy each for the appellant and any other respondents; and
(3) two copies of any skeleton arguments.
7.11 If the respondent does not file a respondent’s notice, he will not 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 respondent’s notice. He must serve a copy
of the supplemental bundle at the same time as serving the respondent’s
notice on the persons required to be served in accordance with rule
52.5(6).
7.13 The respondent’s 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 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.
8.2 The following table sets out the following venues for each Circuit–
(a) Appeal centres – court centres where appeals to which this

paragraph applies may be managed and heard.
(b) 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 appellant’s 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.
8.4 The appeal court may transfer an appeal to another appeal centre
(whether or not on the same Circuit). In deciding whether to do so 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
appellant’s 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.
8.5 Directions may be given for–
(a) an appeal to be heard at a hearing only centre; or
(c) an application in an appeal to be heard at any other venue
instead of at the appeal centre managing the appeal.
8.6 Unless a direction has been made under 8.5, any application in the
appeal must be made at the appeal centre where the appeal is being
managed.
8.7 A respondent’s notice must be filed at the appeal centre where the
appellant’s notice was filed unless the appeal has been transferred to
another appeal centre, in which case it must be filed at that appeal
centre.
8.8 The appeal court may adopt all or any part of the procedure set out in
paragraphs 6.4 to 6.6.
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;
(2) 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.
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) did not hold a hearing to come to that decision; or
(b) 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) one additional copy of the application notice for the appeal court
and one copy for each of the respondents;
(2) where applicable a sealed copy of the order which is the subject of
the main appeal;
(3) a bundle of documents in support which should include:
(a) the Part 23 application notice
(b) any witness statements and affidavits filed in support of the

application notice
(c) the documents specified in paragraph 5.6 (6)[5.6 (7)]above in

so far as they have not already been filed with the appellant’s
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 court’s 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) contested directions hearings;
(2) applications for permission to appeal at which the respondent is

present;
(3) dismissal list hearings in the Court of Appeal at which the

respondent is present;
(4) appeals from case management decisions; and
(5) appeals listed for less than one day.
14.2 Parties attending any of the hearings referred to in paragraph 13.1

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 appellant’s notice:
(1) one additional copy of the appellant’s notice for the Court of
Appeal
(2) one copy of the appellant’s notice for each of the respondents to
be sealed and returned
(3) the order refusing permission to apply for judicial review
(4) Form 86A;
(5) a copy of the original decision which is the subject of the

application to the High Court
(6) any witness statements or affidavits in support of any application

included in the appellant’s notice;
(7) a copy of the bundle of documents used in the High Court
(8) the skeleton argument relied on in the High Court; and
(9) a transcript of the judgment.
15.5 The time for filing an appellant’s notice in these circumstances is set 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.

Chapter 10
· 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 day’s 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 party’s 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

Chapter 10
apply. While every effort would be made to accommodate counsel’s

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
appellant’s 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

Chapter 10
reading list or the above summaries.
1. What are the risks of a sentence being increased if a

defendant appeals?
2. 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?
3. Can the prosecution appeal against an acquittal in (1) the

magistrates court? (2) the Crown Court?
4. 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?

LLB_ELS_Ch10(08/01)

CHAPTER 11
LOCAL G OVERNMENT ; DELEGATED LEGISLATION;

OTHER INSTITUTIONS OF ADMINISTRATIVE LAW ;
REFORM OF ADMINISTRATIVE LAW
Semple Piggot Rochez • 173B Cowley Road• Oxford OX4 1UT

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

Chapter 11
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:
씰 it has provided a huge amount of new law and litigation
씰 it illustrates the centralising nature of our unitary

constitution, i.e. all power resides in Parliament
씰 it raises the issue of central versus local administration (or

government)
씰 it raises questions as to the proper role and function of

local authorities
씰 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 Commission’s Report has
recommended rather fewer boundary changes than expected.

Chapter 11
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 re-
allocated 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

Chapter 11
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 10–15 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 Government’s 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:
씰 the county council is responsible for the preparation of the
structure plan and for county matters such as mineral

Chapter 11
development, development inconsistent with the

fundamental provisions of the structure plan and
development affecting certain principal roads
씰 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).

Chapter 11
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:
씰 council tax (replacing the unpopular ‘Poll Tax’)
씰 grants from central government
and
씰 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

Chapter 11
ensuring that local government borrowing is consistent with

the central government’s 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.

Chapter 11
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

Chapter 11
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.
씰 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

Chapter 11
(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.
씰 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.
씰 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.
씰 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.
씰 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.
씰 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

Chapter 11
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

Chapter 11
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).

Chapter 11
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 bye-
laws ‘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 bye-
laws. 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 bye-
law, to be valid, must:
씰 be within the statutory power under which it is made
씰 be certain in its terms

Chapter 11
씰 not be repugnant to general statute or common law

beyond that contemplated or authorised by the enabling
statute
and
씰 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 OF DELEGATED
LEGISLATION
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:
씰 Orders in Council made under the authority of a statute
씰 ministerial rules, regulations, orders or directions which the
enabling statute states are to be made by statutory
instrument

Chapter 11
씰 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
씰 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.
씰 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.
씰 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).
씰 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.
씰 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.

Chapter 11
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 parliament’s powers.
T HE REASONS FOR DELEGATED

LEGISLATION
씰 Pressure on parliamentary time.
씰 The two Houses are not competent to deal with the details
and technicalities to be found in most delegated legislation.
씰 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.
씰 The need for the government to be able to deal with

emergency situations in war-time and peace-time.
씰 Administrative convenience.
씰 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
Majesty’s 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 minister’s
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

Chapter 11
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.
씰 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.
씰 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.

Chapter 11
– 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.
씰 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
Parliament’s 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.

Chapter 11
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.
씰 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 non-
compliance 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.
씰 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. Today’s criticisms are not usually as forceful as Lord
Hewart’s 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 government’s 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:
씰 the sheer bulk of delegated legislation makes it difficult to be

aware of regulations
씰 individual officials are being given more power to make

decisions since, increasingly, appeals are to administrative
tribunals rather than to courts
씰 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.:
씰 ministerial circulars
씰 codes of practice such as those on labour relations and

health and safety at work
씰 extra-statutory concessions made by the Inland Revenue

and the Customs and Excise
씰 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.
씰 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.
씰 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.
씰 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.
씰 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.
씰 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.
씰 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.
씰 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.

Chapter 11
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
씰 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.
씰 The need for a cheap, speedy settlement of disputes,

cheap both for people using the tribunals and for the state.
씰 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.
씰 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.
씰 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 Committee’s
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 Minister’s 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.
씰 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.
씰 Tribunals should be regarded as part of the machinery of

justice rather than of the machinery of administration.
씰 Tribunals should have three basic characteristics:

openness, fairness and impartiality.
씰 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 Committee’s
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 pre-
conceived 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 Chancellor’s 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.

Chapter 11
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:
씰 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
씰 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
씰 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.

Chapter 11
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 Council’s 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?

Chapter 11
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.
씰 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.
씰 Inquiries into objections made to a minister’s order

designating land as the site of a new town under the New
Towns Act 1965.
씰 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.
씰 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
씰 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.
씰 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.
씰 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.
씰 It must be consulted by the Lord Chancellor before he

makes procedural rules for statutory inquiries.
씰 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.
씰 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:
씰 the Edmund-Davies Tribunal into the Aberfan disaster

(1966–67)
씰 the Scarman Tribunal into events in Northern Ireland in

August 1969 (1969–72)
씰 the James Tribunal into the collapse of the Vehicle and

General Insurance Company (1971–72)

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씰 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.
씰 It is not a court of law. It is an inquisitorial, investigative

body. There is no precise dispute and the tribunal’s
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.
씰 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.
씰 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.

Chapter 11
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 Commissioner’s

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
Commissioner’s 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 Commissioner’s 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.

Chapter 11
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.

Chapter 11
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:
씰 the narrowness of the concept of ‘maladministration’ – it

should be replaced by the term ‘unreasonable, unjust or
oppressive’
씰 the MP-filter deters some complainants
씰 the preponderance of ex-civil servants in the

Commissioner's staff was unhealthy
씰 there should be more use of the press and publicity
씰 the Commissioner’s 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
씰 the Commissioner should be able to suggest legislative

reforms
씰 lack of effective enforcement.

Chapter 11
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.
씰 The Report of the JUSTICE /All Souls Committee

Administrative Justice: Some necessary reforms (Oxford
University Press, 1988)
씰 Woolf, Sir Harry Protection of the Public: The New

Challenge (Hamlyn Lectures, 1989)
씰 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
O’REILLY 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

Chapter 11
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:
씰 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
씰 machinery to overcome difficulties of discovery and

opportunities to cross-examine witnesses
씰 integration of the courts, tribunals and Commissioner by a

system of cross-referrals (Woolf)
씰 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

Chapter 11
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 Diplock’s 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

Chapter 11
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 Self-
assessment 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.

Chapter 11
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
O’REILLY 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

Self-assessment Test
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 ELF-

ASSESSMENT 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 Government’s
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 Commission’s 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
GLC’s ‘fares fair’ policy was ruled ultra vires. Most recently, in
R v SOMERSET EX PARTE FEWINGS AND OTHERS the local
authority’s 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 war-
time 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

(09/02)

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
Chapter 12
INTERNATIONAL CONVENTIONS
GENERAL INTRODUCTION TO
CIVIL LIBERTIES
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 person’s
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

Chapter 12
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.
Article 2: Right to life.
Article 3: No-one to be subject to torture or to inhuman or

degrading treatment or punishment.
Article 4: Concerning slavery.
Article 5: Right to liberty and security of person.
Article 6: Right to fair and public hearing of criminal charge.
Article 7: On retrospective criminal legislation.

Chapter 12
Article 8: Right to respect for private and family life, home

and correspondence.
Article 9: 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

Chapter 12
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:
씰 they must have exhausted all national remedies
씰 they must bring the action within six months
씰 it must concern a breach by the state or public body
and
씰 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

Chapter 12
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?

Chapter 12
Some of the landmark cases involving the UK are the

following:
씰 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.
씰 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.
씰 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

Chapter 12
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.
씰 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 applicant’s 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 self-
incrimination 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 defendant’s 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 government’s 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

Chapter 12
overruling the Court of Appeal’s 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

government’s authorisation of night flights from London’s
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 law’s prohibition on
assisted suicide. But the Court, unlike the UK’s 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.
(ii) List any statutes passed in the last year which you
think have lessened protection for human rights in
the past year.
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
government’s obligations under the Convention.

Chapter 12
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 UK’s Community membership.
In an Opinion of the European Court of Justice (Opinion 2/94)

issued under Art 228(b) (now Art 300) of the EC Treaty 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:
씰 the competence of the Community to conclude such an

agreement, and
씰 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

Chapter 12
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:
씰 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.
씰 The process of invoking the Convention is expensive and

lengthy.
씰 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:

Chapter 12
씰 Labour is not to be regarded as a commodity.
씰 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.
씰 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:
씰 collective bargaining
씰 rights of workers and employers to establish

organisations,
씰 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 Europe’s
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.

Chapter 12
Think Point 3
What arguments did the United Kingdom Government
advance to explain why it did not sign the European
Social Chapter?
Revision
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 19
Marston and Ward, Chapters 6, 7

Chapter 12

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

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 SELF-

ASSESSMENT TEST
First, give a brief outline of:
씰 the history of the Convention itself
씰 the procedure that must be followed to bring a case before
the Court in Strasbourg
씰 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 can’t 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 UK’s having

ratified the ECHR:
씰 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)
씰 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
씰 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.

(10/02)

CHAPTER 13
THE HUMAN RIGHTS ACT 1998

www.spr-law.com
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

Chapter 13
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 UK’s 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”

Chapter 13
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
Parliament’s 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 UK’s 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.79–99 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’.”

Chapter 13
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

Chapter 13
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 court’s 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:
씰 existing common law safeguards have failed
씰 the discussion on implementation has the beneficial effect

of raising public awareness of the issues
씰 judges will be constrained to follow principles which were

generally agreed
씰 many issues which are of general human concern will be

removed from constant change precipitated by party
politics
씰 the United Kingdom will be following the example of many

other countries who have found it valuable to implement a
bill of rights
씰 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’
씰 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:
씰 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

Chapter 13
씰 the judges will interpret the Bill too narrowly and will have
increased power to impose their class-based views of
rights
씰 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
씰 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
씰 the Act will encourage too much litigation
씰 legislative change will be continually delayed by

constitutional conflict – as has happened in Canada for
example
씰 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
씰 the Act is against the pragmatic British approach to

problems
씰 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 friend’s girlfriend. His
defence was that intercourse had taken place with the
complainant’s 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 complainant’s
dignity and protecting her from humiliating questioning, s.41
was to be understood as allowing the defendant’s cross-
examination 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 defendant’s 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.

Chapter 13
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

Chapter 13
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 P’s 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

Chapter 13
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 1998’s 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

Chapter 13
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 8’s 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

Chapter 13
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 Crown’s 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
Parliament’s 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 Justiciary’s 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.

Chapter 13
Revision
A DDITIONAL READING
Jowell & Oliver (4th ed. 2000), Chapter 4.

QUESTION
To what extent should there be a constitutional right to die?

SPECIMEN ANSWER TO SELF-

ASSESSMENT TEST
First, outline the human rights involved:
씰 Article 2 – right to life, but in its terms does not include a
right to commit suicide
씰 Article 3 – right not to be subject to inhuman or degrading
treatment, but traditionally limited to practices related to
torture or punishment
씰 Article 5 – right to liberty, but traditionally understood as
freedom from restraint rather than liberty to do something
씰 Article 8 – right to privacy
씰 Article 9 – freedom of conscience and religion
씰 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
person’s 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?

(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

Chapter 14
POLICE ACCOUNTABILITY AND

POWERS
A person’s 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 Secretary’s concurrence, he may decline to supply
information if its disclosure would be contrary to the public
interest or unnecessary for the discharge of the Authority’s
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 Board’s 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 Trader’s 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 1984–5.
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:
씰 he makes the Police Regulations which deal with

establishments, discipline, pay, pensions, allowances,
training, duties, leave, housing, uniforms and equipment
씰 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
씰 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
씰 he can issue circulars and orders of practice
씰 he has a general power to call for reports from Chief

Constables on the policing of their areas
씰 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
씰 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
씰 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 AND CONTROL

OF THE POLICE
COMPLAINTS
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.66–83, 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:
씰 the continued responsibility of the police themselves

(rather than an independent body) for the investigations
씰 allegations of unreasonable pressure being put by police

on complainants to settle by the ‘informal resolution
process’
씰 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
씰 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.
씰 the secrecy of the hearings
씰 the use made by the police of a complainant’s 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 Queen’s 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 suspect’s privacy and other human rights before
being permitted.

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ARREST
Arrest is a deprivation of a person’s freedom of movement. It
consists of the seizure or touching of a person’s body with a
view to his restraint. Words may be sufficient if they are
calculated to bring, and do bring, to a person’s 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:
씰 warrants are normally issued only to police officers

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씰 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
씰 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:
씰 two categories of offence
and
씰 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:
씰 offences for which the sentence is fixed by law (e.g.

murder, treason)
씰 offences for which a person of twenty-one or over (not

previously convicted) may be sentenced to imprisonment
for a term of five years
씰 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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씰 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:
씰 anyone who is, or who is reasonably suspected to be, in

the act of committing an arrestable offence: s.24(4)
씰 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 ‘citizen’s

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):
씰 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)
씰 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:
씰 a breach of the peace is committed in the presence of the

person making the arrest
씰 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
씰 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 board’s 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.
씰 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.
씰 The test of reasonableness is objective, i.e. it cannot

depend only on the arrestor’s state of mind.
씰 In HOLGATE-MOHAMMED v DUKE [1984] 1 All ER 1054 the

House of Lords applied Lord Greene MR’s 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 officer’s 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 company’s
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:
씰 executing a warrant of arrest issued in connection with or

arising out of criminal proceedings
씰 arresting a person for an arrestable offence
씰 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
person’s 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 officer’s 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 accused’s
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 accused’s 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 Suspect must fail to account
for objects, substances or for presence.
marks.
Silence cannot be used as His failure to so account can His failure to so account can
part of primary case against be used as part of the be used as part of the
suspect. primary case against him. 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:
씰 serious harm to the security of the state or public order

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씰 serious interference with the administration of justice or

with the investigation of offences or a particular offence
씰 the death of any person
씰 serious injury to any person
씰 substantial financial gain
씰 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 non-
statutory 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:
씰 interference with, or harm to, evidence
or
씰 interference with, or physical injury to, other persons
or
씰 alerting of other persons suspected of having committed

such an offence but not yet arrested for it
or
씰 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:
씰 to make a complaint, which may lead to disciplinary action

against the police
씰 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 non-

confession evidence.
Section 76(2)
This section provides that, if it is alleged that a confession was

obtained:
씰 by (a) oppression
or
씰 (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 judge’s
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 lover’s confession. The ‘something said or
done’ was the lover’s confession, while the ‘circumstances’
were the defendant’s 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 self-
inflicted 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
appellant’s 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.

Chapter 14
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.

Chapter 14
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 officer’s 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 complainant’s 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’?

Chapter 14
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 road-
check 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.
씰 Entry with the express or implied consent of the occupier.

For the police this is numerically the most common
authority.
씰 Entry by a constable to effect an arrest: s.17 (above).

Chapter 14
씰 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.
씰 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).
씰 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.
씰 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.
씰 Entry by a constable to deal with or prevent a breach of

the peace: s.17(6). Based on an old common law power.
씰 Rights of entry available to ordinary citizens are still based

on old and uncertain common law powers.
씰 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.

Chapter 14
씰 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.
씰 Section 20 of the 1984 Act extends the powers of seizure

to computerised information.
씰 Section 21 provides for access to and copying of material

seized by the police.
씰 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

Chapter 14
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. non-
confidential 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
Marston and Ward, Chapters 17, 18

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

Chapter 14
* 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

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 anti-
Mordor 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.
Cyril’s 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 ELF-

ASSESSMENT 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 Cyril’s 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 Cyril’s 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 Y’s 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 X’s 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 person’s 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 Office’s 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 thirty-
six 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
FREEDOM OF SPEECH; OPEN AND CLOSED

G OVERNMENT; FREEDOM OF INFORMATION

www.spr-law.com
CONTENTS
Freedom of speech .................................................................. 1
Open and closed government ................................................ 15
Freedom of information .......................................................... 18

Chapter 14
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 Kingdom’s 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:
씰 prevent expression by imposing restraints before the

communication is made
or
씰 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

Chapter 14
[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 non-
statutory 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 D-
notice 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.

Chapter 14
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 BBFC’s decisions,
it cannot abdicate its own responsibilities by deciding to follow
the Board’s decisions in all cases. This would be an invalid
fetter on the licensing authority’s 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

Chapter 14
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 BBC’s

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 BBC’s 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.

Chapter 14
THE THEATRE
The Lord Chamberlain’s 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:
씰 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).
씰 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.
씰 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 State’s directive
issued under the Broadcasting Act 1981 (now the 1990
Act) and the 1981 Licence Agreement between the Home
Secretary and the BBC.

Chapter 14
Think Point 1
씰 Which statutes regulate broadcasting?
씰 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

Chapter 14
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:
씰 ARGYLL v ARGYLL [1967] Ch 302; [1965] 1 All ER 611 (marriage

confidences)
씰 ATTORNEY-GENERAL v JONATHAN CAPE LTD AND TIMES
NEWSPAPERS LTD [1976] QB 752; [1975] 3 All ER 484 (Cabinet
proceedings)
씰 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)
씰 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.)
But, after a long series of cases, the House of Lords, in

ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS LTD AND
OTHERS (No 2) [1988] 3 WLR 776, refused to issue a final
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

Chapter 14
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:
씰 maintaining the authority of the judiciary
and
씰 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. 261–2). The expression
contempt of court covers numerous possible acts and
includes the following.
씰 Deliberate or accidental interference with the outcome of

particular judicial proceedings by prejudicial publications,

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e.g. disclosure of an accused’s 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).
씰 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.
씰 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.

Chapter 14
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

Chapter 14
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
Down’s Syndrome baby. In ATTORNEY-GENERAL v GUARDIAN
NEWSPAPERS AND ANOTHER [1992] (No 3) 1 WLR 874, the court
considered the Attorney-General’s 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:
씰 that a publisher could rely on s.10 even when an owner

made a proprietary claim for the return of his property
and
씰 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 newspaper’s
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.

Chapter 14
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 jury’s
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 ATTORNEY-
GENERAL 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 Guardian-
Observer 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

Chapter 14
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 victim’s 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.

Chapter 14
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
Christian’s 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

Chapter 14
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.

Chapter 14
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 people’s
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.

Chapter 14
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

Chapter 14
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

Chapter 14
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 Committee’s
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.
씰 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.
씰 The second category of protected material is that

disclosed by a Crown servant or government contractor
relating to defence.
씰 Third, Crown servants or government contractors commit

an offence if they disclose information relating to
international relations.
씰 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.

Chapter 14
씰 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 Secretary’s 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.

Chapter 14
Think Point 3
What significant cases led to:
씰 the reform of the law relating to contempt?
씰 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:
씰 official information is accessible to the public
씰 access is supervised by a body independent of

government
and
씰 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:
씰 increase in litigation by members of the public against

official bodies

Chapter 14
씰 a moderation of the doctrine of public interest immunity
씰 consequent caution and delay in administrative decision-

making
씰 more robust action by the legislature to check the

executive – especially true in the United States
씰 strengthening of pressure groups.
M OVES TOWARDS GREATER ACCESS

Changes include:
씰 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
씰 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
씰 the Parliamentary Commissioner being given a right of

access to all official files except Cabinet papers
씰 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
씰 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.
씰 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

Chapter 14
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:
씰 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.
씰 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.
씰 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.
씰 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.
씰 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.
씰 “Information” is broadly defined to include information

held in electronic form as well as documents.
씰 A wide range of public bodies is included.
씰 Personal information is exempt if it is personal information

about the applicant or disclosure would contravene data
protection principles.
씰 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.

Chapter 14
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:
씰 serious crimes by the police
씰 serious drugs offences by the Customs and Excise
and
씰 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.

Chapter 14
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:
씰 national security
씰 preventing or detecting serious crime
씰 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 tribunal’s 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’.

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:
씰 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
씰 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
씰 ministers leak information selectively when it suits their

political purposes, thus managing the flow of news to their
own, and not necessarily to the public’s, advantage.
Defenders of the present set-up argue that:
씰 ministerial responsibility would be undermined if civil

servants were forced to be more open
씰 ’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

Chapter 14

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

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 patient’s 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 SELF -

ASSESSMENT TEST
QUESTION 1
Introduction
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.
(ii) 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.
(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, Citizen’s Charter initiatives
and Waldegrave’s 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 A–G v TIMES NEWSPAPERS LTD
{1991} and A–G 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 Sport’s 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.
Kiljoy’s 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 court’s 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

Chapter 16
FREEDOM OF ASSOCIATION;
FREEDOM OF 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

Chapter 16
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
person’s 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.

Chapter 16
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 re-
pass 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 Queen’s
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.

Chapter 16
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 appellant’s 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 obstructor’s 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 officer’s 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

Chapter 16
injunction was awarded to stop picketing outside an estate

agent’s 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:
씰 serious public disorder
씰 serious damage to property
씰 serious damage to the life of the community or
씰 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 68–71 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 70–76 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

Chapter 16
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 Chancellor’s
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
씰 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.
씰 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:
씰 to demonstrate support for, or opposition to, views or

actions of any person or body of persons
씰 to publicise a cause or campaign
씰 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.
씰 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).
씰 Section 13 of the Act provides that a public procession

may be banned if the chief officer of police reasonably

Chapter 16
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 63–67 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

Chapter 16
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
씰 public meetings?
씰 pickets?
씰 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:
씰 one of twelve or more persons together in a public or
private place
씰 using or threatening unlawful violence against a person or
property

Chapter 16
씰 for a common purpose (which may be inferred from

conduct)
and
씰 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
씰 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:
씰 three or more persons present together in a public or

private place
씰 use or threaten unlawful violence against a person or

property
씰 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.

Chapter 16
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
magistrate’s 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

Chapter 16
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, O’CONNELL and O’KEEFE [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 1 2 3 4 4A 5
Offence Riot Violent Affray Fear/ Intentional Disorderly
disorder provoking of disorder conduct
violence
Minimum 12 3 1 1 1 1
numbers
Points to Using or threatening violence so as to Uses/displays, threatening, abusive,
prove cause person of reasonable firmness to fear insulting words, behaviour etc. towards
for his personal safety (such a person need another:
not be present):
Group has Using of Using or Intended or With intent Within
common threatening threatening likely to to cause hearing or
purpose and violence violence to cause that harassment sight of
individual against person. If person to etc. and person likely
uses property or group, their anticipate or causing to be caused
violence person (s.8). conduct to provoke harassment harassment,
against taken use of etc. alarm or
property or together. immediate distress.
person (s.8). violence.
Place Private or public place. Public or private unless insulter and insulted
both in private.
Power of Arrestable. Arrestable. PC may arrest without warrant if reasonably PC must first
arrest Max 10 Max 5 years. suspects offence is being committed. warn, then
years. 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.

Chapter 16
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 O’KELLY 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

Chapter 16
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.’

Chapter 16
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 9–15 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
Marston and Ward, Chapter 18.

Chapter 16

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, O’CONNELL and O’KEEFE 1992
CHARGE TO THE BRISTOL GRAND JURY 1832
R v PINNEY 1832
R v BROWN 1841
BEATTY v GILLBANKS 1882
HUMPHRIES v CONNOR 1864
O’KELLY v HARVEY 1883
LANSBURY v RILEY 1914
WISE v DUNNING 1902
DUNCAN v JONES 1936
MOSS v Mc LACHLAN 1985

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 SELF -

ASSESSMENT TEST
QUESTION 1
MEA March and MMM March
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.2–4 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); O’KELLY 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.

(09/02)

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CHAPTER 1

ENGLISH LEGAL SYSTEM

INTRODUCTION . THE SYLLABUS

Semple Piggot Rochez • 173B Cowley Road • Oxford OX4 1UT

Chapter 2: The Court Structure

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

Chapter 5: Judges and Judicial Reasoning: Statutory Interpretation

Chapter 6: The Criminal Process

Chapter 7: The Criminal Process: The Jury System

Chapter 8: Legal Services: Legal Aid

Chapter 9: The Civil Process

Chapter 10: The Appellate Process

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

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

English Legal System

(a) The court structure

(b) Judges and judicial reasoning

(c) The criminal process

(d) The civil process

(e) The appellate process

(f) Legal Services

SEMPLE PIGGOT ROCHEZ 1

separated in a slightly different way. Where possible, there is

This manual aims to provide that background and then to

S LAPPER AND K ELLY – E NGLISH

씰 Cases and Materials on the English Legal System (8th

씰 The Law-Making Process (5th edition)

Pay special attention to the footnotes which accompany the

SEMPLE PIGGOT ROCHEZ 2

manual, I have referred specifically to Zander as the ‘gloss’ on

HOW DO YOU STUDY THE

The introduction draws attention to the need for the student

씰 the structure of legal institutions

씰 the culture of English law

씰 the techniques for analysing texts from which legal rules

LAW AS A ‘LIVING ’ S UBJECT

SEMPLE PIGGOT ROCHEZ 3

ELS: T HE P ROBLEM WITH RULES

The University subject guide mentions this dilemma, noting

T HE EFFECT OF LAW REFORM

SEMPLE PIGGOT ROCHEZ 4

Page 5 of the University’s guide mentions the Lord

The pace and extent of recent reform in the law may be

Whilst European Law is not part of the ELS syllabus, an

LEARNING HOW TO A NSWER

SEMPLE PIGGOT ROCHEZ 5

While this is the basic textbook, a second basic book

씰 Smith, Bailey and Gunn on the Modern English Legal

At least one supplementary book would be useful for

An additional sourcebook is Slapper & Kelly’s Sourcebook of

The ELS subject page also contains a series of lecture notes to

SEMPLE PIGGOT ROCHEZ 6

legal system as a whole. It is useful to download and print off

An early study should be made of the lecture notes to read

GENERAL H ANDY H INTS

Legal principles have been laid down both by statute and in

Some paragraphs are highlighted for effect in many of the

Ten guidelines to help you with your revision.

2. Do the same with each specific topic that you have

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

4. Look where the author has highlighted points.

5. Read each leading passage and case carefully and try to

6. Make a determined effort to remember: