Case Notes

Topics: Human rights, Law, Common law Pages: 6 (1778 words) Published: November 17, 2010

The Rule of Law and the Separation of Powers

Entick v Carrington (1765) 19 St Tr 1030
• Two of the King’s messengers acting under a general warrant issued by the Secretary of State broke into the Claimant’s house and seized his papers. • The Claimant sued for trespass.
• The Secretary of State claimed that the powers to issue such warrants were essential to government, ‘the only means of quieting clamours and sedition’. • The Court held that as these warrants were not authorised by statute or judicial precedence they were illegal. The case demonstrates the right of individuals to be free from unlawful interference from the executive and that the executive cannot act without authority – exclusion of arbitrary power.

Waddington v Miah [1974] 1 WLR 683 (HL)
• In interpreting the Immigration Act 1971 the Court stated that the Act did not make conduct which was not a crime when it was committed punishable by criminal sanctions at a later date i.e. a statute should not be interpreted retrospectively (unless unavoidable). • Lord Reid ‘…it is hardly credible that any government department would promote or that Parliament would pass retrospective criminal legislation. The case demonstrates that the courts are not prepared to punish someone unless the law has been breached and will construe legislation as not imposing retrospective criminal offences.

Burmah Oil Co. v Lord Advocate [1965] AC 75 (HL)
• During the Japanese invasion of Burma the British Army Commander ordered the destruction of oil installations around Rangoon in order to prevent them falling into enemy hands. The actions were carried out under prerogative powers. There was no argument that the actions were not lawful. The owners of the oil installations sought compensation after the war. • The Court held that there was a legal right to some compensation where the destruction of property was part of a deliberate long-term strategy. Compensation was awarded. Before compensation was paid Parliament passed the War Damages Act 1965 which stated that no person was entitled to receive compensation for the destruction of property by acts of the Crown. The Statute was retrospective and therefore the statute overruled the judicial decision and the Claimants did not get any compensation. This case shows that Parliament is sovereign and even though it might pass legislation contrary to the rule of law the legislation is still legal. R v R [1991] 3 WLR 767 (HL)

• R was convicted of raping his wife.
• In mid 18th C Sir Matthew Hale wrote in his History of pleas of the Crown – that a man could not be guilty of raping his wife because on marriage she consented to sexual intercourse – which she could not retract – idea that wife was subservient chattel of husband. • HL Upheld conviction of rape and stated that Hale’s proposition was unacceptable in modern society and common law was capable of evolving in light of social, economic and cultural developments Note that this decision was challenged under Article 7 retrospective law criminal in European Court of Human Rights (SW v UK and C v UK (1995) 21 EHRR 404) The ECtHR found no breach of Article 7)

M v Home Office [1993] 4 All ER 97 (CA)
• A from Zaire sought political asylum in the UK.
• Before he was due to be removed he made a further application for judicial review of his case. • The Home Secretary undertook that A would not be removed prior to the judge considering A’s application • A was sent back to Zaire.

• The Judge ordered the Home Secretary to organise his return. • Home Secretary, taking legal advice, informed officials not to obey the court order as the judge had no power to make an injunction against the Crown • Held the Home Secretary was in contempt of court for not obeying a judge’s order.

R v Inland Revenue Commissioner ex p...
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