University of the West Indies

Faculty of Law

Constitutional Law

Worksheet 4

Rule of Law

Case Notes

THE RULE OF LAW INCORPORATED IN THE “DUE PROCESS OF LAW” 2

Thomas v. Baptiste [1999] 3 W.L.R. 249.......................................2

NO ONE IS ABOVE THE LAW......................................................4

Hochoy v Nuge and Others (1964) 7 WIR 174..............................4

OUSTER CLAUSES......................................................................9

Re Alva Bain H.C.A. 3260 of 1990................................................9

INSURRECTIONISTS...................................................................9

Phillip v. D.P.P. (P.C.) [1992] 2 W.L.R. 211..................................9

Lasalle Shah Lai Leung Noray Guy v R (1972) 20 WIR 361.......10

CONVICTED KILLERS................................................................12

Pratt v. A.-G. for Jamaica (P.C.) [1993] 3 W.L.R. 995.................12

THE RULE OF LAW AND LEGAL CERTAINTY.........................13

Lewis v. A.-G of Jamaica [2000] 3 W.L.R.1785.........................13

THE RULE OF LAW AND UNCLEAR STATUTORY PROHIBITIONS 14

Regina v K [2001] 3 WLR 471, at pg. 482, per Lord Bingham of Cornhill 14

Merkur Island Corpn. v. Laughton [1983] 2 W.L.R. 778..............15

Sabapathee v. The State [1999] 1 W.L.R. 1836..........................16

FASHIONING REMEDIES TO VINDICATE THE RULE OF LAW18

Kuddus v Chief Constable of Leicestershire Constabulary [2001] 2 WLR 1789 18

Reg. v. Horseferry Rd. Magistrates' Ct., Ex p. Bennett [1993] 3 W.L.R. 90 18

THE RULE OF LAW AND THE PUBLIC INTEREST IN LAW AND ORDER 20

Regina v A (No 2) [2001] 2 WLR 1546.......................................20

Brown v Stott [2001] 2 WLR 817...............................................22

REFERENCE RE LANGUAGE RIGHTS UNDER THE MANITOBA ACT, 1870 24

THE RULE OF LAW AND ACCESS TO COURT........................27

Regina (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389
.....................................................................................................27

Johnson v Gore Wood & Co (a firm) [2001] 2 WLR 72...............29

Regina v. Lord Chancellor, Ex parte Lightfoot [1999] 2 W.L.R.1126 29

Boddington v. British Transport Police [1998] 2 W.L.R. 639.......29

Burris v. Azadani [1995] 1 W.L.R. 1372......................................30

Guerra (Lincoln) and Wallen (Brian) v The State (No 2) (1994) 45 WIR 400 31

Wallen and Another v Baptiste and Others (No 2) (1994) 45 WIR 405 33

Reckley v. Minister of Public Safety and Immigration [1995] 3 W.L.R. 390 34

THE RULE OF LAW AND THE LEGALITY OF STATE ACTION36

R v Health Secretary, Ex p Imperial Tobacco Ltd [2001] 1 WLR 127 36

Jaroo v Attorney General of Trinidad and Tobago (2002) UKPC 536

Reg. v. Home Secretary, Ex p. Muboyayi [1991] 3 W.L.R. 442..37

THE RULE OF LAW AND BROAD DISCRETIONARY POWERS37

Re Man Power Citizens Association (1964) 8 WIR 52................37

Reg. v. Environment Sec., Ex p. Spath Holme Ltd. (C.A.) [2000] 3 W.L.R. 152 38

Oliver Ashworth Ltd. v. Ballard Ltd. [1999] 3 W.L.R. 57..............38

Reg. v. Home Secretary, Ex p. Venables [1997] 3 W.L.R. 23.....38

THE RULE OF LAW AND EQUALITY BEFORE THE LAW........40

Fitzpatrick v. Sterling Housing Association [1998] 2 W.L.R. 225.40

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THE RULE OF LAW AND RETROACTIVITY..............................42

Reg. v. Home Sec., Ex p. Pierson [1997] 3 W.L.R. 492..............42

THE RULE OF LAW AND OBEDIENCE TO COURT ORDERS. 43

M. v. Home Office [1993] 3 W.L.R. 433.......................................43

In re Supply of Ready Mixed Concrete [1991] 3 W.L.R.707........45

THE RULE OF LAW AND CONSCIENTIOUS OBJECTORS.....45

X Ltd. v. Morgan-Grampian Plc. [1990] 2 W.L.R. 1000...............45

excessive pre-trial delay. Although the second

applicant had lodged a petition before the instructions
had been published the commission did not accept it
until afterwards as it could not be entertained by the
The rule of law incorporated in the commission before his domestic remedies had been
“due process of law” exhausted. The commission failed to act within the
time prescribed in the instructions, and so after
consideration of both cases by the Advisory
Committee on the Power of Pardon a warrant for his
Thomas v. Baptiste [1999] 3 W.L.R. execution was read to each applicant. The first
249 applicant had then been in custody for two years and
seven months since his conviction, making a total of
five years and three months. The second applicant
The applicants were charged with murder. The first had been in custody for three years and two months
applicant spent two years and eight months in after his conviction, making a total of seven years
custody and the second applicant four years and three and five months. Both were detained, in breach of the
months before being brought to trial. They were Prison Rules, in cramped foul-smelling cells,
convicted and sentenced to death. Their appeals deprived for long periods of exercise or open air
against conviction were dismissed by the Court of access, and they were handcuffed when allowed to
Appeal of Trinidad and Tobago, and the Judicial exercise outside. Each applicant applied to the High
Committee of the Privy Council dismissed their Court for redress under section 14(1) of the
applications for special leave to appeal. In October Constitution of the Republic of Trinidad and
1997 the Government of Trinidad and Tobago Tobago1 seeking, inter alia, a declaration that
published "Instructions relating to applications from execution of the death sentence would contravene his
persons under sentence of death" prescribing time right not to be deprived of life except by due process
limits, after which executions would not be further of law guaranteed to him by section 4(a) and would
postponed, for each stage of such applications to the be cruel and unusual punishment contrary to section
Inter-American Commission on Human Rights, 5(2)(b). The judge acceded to the first applicant's
whose competence to entertain petitions from motion and ordered the sentence of death to be
individuals complaining of violations of the vacated. Another judge dismissed the second
American Convention on Human Rights (1969) and applicant's motion. The Court of Appeal allowed the
to make reports and recommendations in relation respondents' appeal in the first case and set aside the
thereto had been recognised when the government judge's order, thereby restoring the death sentence,
had ratified the Convention in 1991, and to the and dismissed the second applicant's appeal.
United Nations Human Rights Committee. After
publication of the instructions the first applicant On the applicants' appeals to the Judicial Committee:
lodged a petition with the commission alleging that -
his human rights had been violated, inter alia, by

3
liberty or property by act of the legislature alone.
immunity from liability of officers of state in the due
Madison had the same object in 1791 when he
performance of acts of a political character, they have
drafted what became the Fifth Amendment to the
never conceded that any such officer may be immune
Constitution of the United States of America. The
from suit. The reason is that immunity from suit is
due process clauses in the Fifth and Fourteenth
personal to the Sovereign and stems directly from the
Amendments underpin the doctrine of the separation
ancient doctrine that no lord could be compelled to
of powers in the United States and serve as a
answer in his own court. Thus, in Holdsworth’s
cornerstone of the constitutional protection afforded
History of English Law, Vol 3 at p 456, it is recorded
to its citizens. Transplanted to the Constitution of
that the Sovereign’s
Trinidad and Tobago, the due process clause
excludes legislative as well as executive interference
‘incapacity to be ... sued had been a
with the judicial process.
recognised principle of English Law since
Bracton’s days, but this is no peculiar privilege,
But the clause plainly does more than this. It
for no feudal lord could be sued in his own
deliberately employs different language from that
court.’
found in the corresponding provisions of the
Universal Declaration of Human Rights and the
And in Blackstone’s Commentaries (12th Edn) Vol 1
European Convention on Human Rights. They speak
at p 242, it is explained that
merely of "the sentence of a court of competent
jurisdiction." The due process clause requires the
‘no suit or action can be brought against the
process to be judicial; but it also requires it to be
King, even in civil matters, because no court
"due." In their Lordships' view "due process of law"
can have jurisdiction over him. For all
is a compendious expression in which the word "law"
jurisdiction implies superiority of power:
does not refer to any particular law and is not a
authority to try would be vain and idle, without
synonym for common law or statute. Rather it
an authority to redress, and the sentence of a
invokes the concept of the rule of law itself and the
court would be contemptible, unless that court
universally accepted standards of justice observed by
had power to command the execution of it: but
civilised nations which observe the rule of law: see
who, says Finch, shall command the King?’.
the illuminating judgment of Phillips J.A. in Lassalle
v. Attorney-General (1971) 18 W.I.R. 379 from
Accordingly, as Blackstone’s Commentaries further
which their Lordships have derived much assistance.
explain, it was because the subject had no way to
oblige the Sovereign to give him his due that he was
The clause thus gives constitutional protection to the
afforded a means to persuade by petition of right.
concept of procedural fairness. Their Lordships
But, it should be observed, the Sovereign’s immunity
respectfully adopt the observation of Holmes J. in
from suit is not to be confused with the allied
Frank v. Mangum (1915) 237 U.S. 309, 347:
doctrine Rex non potest peccare which came into
"Whatever disagreement there may be as to the scope
being later in point of time. In the progressive
of the phrase 'due process of law,' there can be no
application of this doctrine the concept of Rex
doubt that it embraces the fundamental concept of a
became so closely identified with the State as to be
fair trial, with opportunity to be heard." Whether
wholly distinguishable from the personality of the
alone or in conjunction with section 5(2) their
Sovereign. Hence, no doubt, when the doctrine was
Lordships have no doubt that the clause extends to
ousted in England by the Crown Proceedings Act,
the appellate process as well as the trial itself. In
1947, the Sovereign’s immunity was nevertheless
particular it includes the right of a condemned man to
expressly preserved: see s 40 (1) of the Act.
be allowed to complete any appellate or analogous
legal process that is capable of resulting in a
That the Sovereign’s immunity is essentially personal
reduction or commutation of his sentence before the
there ought then to be no doubt. The courts are the
process is rendered nugatory by executive action.
Queen’s, they are not the courts of her representative,
which the Governor-General is here. Hence, in Hill v
Bigge (Hill v Bigge, 3 MooPC 465), Lord Brougham
delivering the opinion of the Privy Council dissented
from the dictum of Lord Mansfield in Mostyn v
Fabrigas ((1775), 1 Comp 161, 98 ER 1021, sub nom
Fabrigas v Mostyn, 20 State Tr 81, 226, 38 Digest
(Repl) 84, 573) that:

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 ‘A governor is in the nature of a viceroy, which it had expressed through Lord Brougham in
and therefore locally, during his government, no Hill v Bigge (Hill v Bigge, 3 MooPC 465), and the
civil or criminal action will lie against him, the Board was not called upon to pass judgment on the
reason is, because upon process he would be suability of a governor-general or a viceroy, there is
subject to imprisonment.’ in my opinion no mystique about any of the titles of
governor, governor-general, lord lieutenant or
It is true that, as Lord Brougham said, the question viceroy. What matters for the point in issue on these
for decision in Hill v Bigge (Hill v Bigge, 3 MooPC appeals is the nature and extent of the powers with
465) was “ whether an action will lie against the which the holder of any such title is clothed. The
Governor of a Colony, in the courts of that Colony, same principle which was invoked in the Pulido case
while he is such Governor, for a cause of action ((1879), 5 App Cas 102) will therefore apply, mutatis
wholly unconnected with his official capacity, and mutandis, in the case of a governor-general. That
accruing out of the Colony before his government principle was expressed as follows:
commenced”, but it nevertheless affirmed what I
regard to be a fundamental principle, namely, that: ‘Let it be granted that for acts of power done
by a governor under and within the limits of his
‘they who maintain the exemption of any commission he is protected, because in doing
person from the law, by which all the King’s them he is the servant of the crown and is
subjects are bound, or, what is the same thing, exercising its sovereign authority, the like
from the jurisdiction of the courts which protection cannot be extended to acts which are
administer that law to all besides, are bound to wholly beyond the authority confided to him.
show some reason or authority, leaving no Such acts, though the governor may assume to
doubt upon the point.’ do them as governor, cannot be considered as
done on behalf of the crown, nor to be in any
To the same intent is the statement in Dicey’s “ the proper sense acts of state. When questions of
law of the constitution”(10th Edn), at p 193, that the this kind arise, it must necessarily be within the
meaning of the “ rule of law” includes: province of municipal courts to determine the
true character of the acts done by a governor,
‘not only that with us no man is above the though it may be that, when it is established that
law, but (what is a different thing) that here the particular act in question is really an act of
every man, whatever be his rank or condition, is state policy done under the authority of the
subject to the ordinary law of the realm and crown, the defence is complete, and the courts
amenable to the jurisdiction of the ordinary can take no further cognisance of it.’
tribunals.... The idea of legal equality, or of the
universal subjection of all classes to one law I hold then that when questions arise as to the quality
administered by the ordinary courts, has been and validity of an act done by the appellant on the
pushed to its utmost limit. With us every assumption that it is within his powers as Governor-
official, from the Prime Minister down to a General, it is within the province of the courts to
constable or a collector of taxes, is under the determine its true character and his competence to do
same responsibility for every act done without it.
legal justification as any other citizen. The So holding would suffice to dispose of the appeals.
reports abound with cases in which officials But I think it right that I should refer to one matter
have been brought before the courts, and made, further. The challenge which the respondents are
in their personal capacity, liable to punishment, seeking to make by the actions which they have
or to the payment of damages, for acts done in brought is not to an act done by the appellant in the
their official character but in excess of their exercise or purported exercise of any prerogative
lawful authority. A colonial governor, a power, but rather to one which was expressly stated
secretary of state, a military officer,...are as to have been done in the exercise of a statutory
responsible for any act which the law does not power. In my opinion, there is a clear distinction
authorise as is any private and unofficial between the two. The distinction was noted by
person.” Swinfen Eady, MR in De Keyser’s Royal Hotel v R
([1919] 2 Ch 197,[1920] AC 508)([1919] 2 Ch 197,
Accordingly, although in Musgrave v Pulido ((1879), at p 216) and was quoted with approval by Lord
5 App Cas 102) the Privy Council rejected the Atkinson when the case went to the House of Lords.
contention that the governor of a colony is in the It was as follows ([1920] AC at p 538):
nature of a viceroy, thereby reaffirming the dissent

5
 ‘Those powers which the executive overstep the limitations imposed, it must be
exercises without parliamentary authority are competent for the courts at the suit of a person
comprised under the comprehensive term of the aggrieved to determine and declare whether in any
prerogative. Where, however, parliament has given case he has exceeded the power or not.
intervened and has provided by statute for
powers, previously within the prerogative, Per Hyatali JA at pgs. 182-183:
being exercised in a particular manner and
subject to the limitations and provisions …….the Solicitor-General maintained that the
contained in the statutes they can only be so appellant as the Queen’s representative is immune
exercised.’ from suit in the courts of the State. Expressed more
graphically, his proposition is that the Governor-
That distinction is very relevant here. It has always General, like the Queen, can do no wrong.
been within the power of the executive, that is to say,
within the prerogative power, to appoint commissions There is a fallacy in this proposition, which proceeds
of inquiry. But no commission so appointed could I think, from a misconception of the true meaning
compel the attendance of witnesses, the giving of and significance of the doctrine that the Queen can do
testimony, the production of documents or the no wrong. Let me endeavour therefore, to put it in its
compliance with any directions which it might issue: proper perspective. The doctrine in its present form
see Clough v Leahy ((1904), 2 CLR 139), Cock v developed from the ancient feudal principle that no
Attorney-General ((1909), 28 NZLR 405), and lord could be compelled to answer in his own court.
McGuinness v Attorney-General ((1940), 63 CLR In its constant application to the King as head of the
73). As elsewhere, therefore, the legislature in this kingdom, however, it acquired a special meaning and
country intervened and provided by the Ordinance, significance; for not only did the common law in the
which was enacted in 1892, for the exercise of a course of its evolution and development clothe the
statutory power of appointing commissions of inquiry King’s person with inviolability, perfection,
in a particular manner and subject to the limitations sovereignty and pre-eminence, but by many statutes
and provisions in the Ordinance contained. he was declared to be “ the supreme head of the
Originally, this power was made exercisable by the realm in matters both spiritual and ecclesiastical,
Governor but, on the attainment of independence, it inferior to no man, dependent on no man and
was provided by s 3 of the Existing Laws accountable in his proper person to none save only to
Amendment Order, 1962 [T], that any reference in God, either within or without the realm.” See 1
any existing law to the Governor shall be read and Blackstone Commentaries (12th Edn) pp 241-2 and
construed as a reference to the Governor-General. 245; and 7 Halsbury’s Laws (3rd Edn) p 222 at paras
Accordingly, the power became and is exercisable by 468-470. From the association of this concept of
the appellant as Governor-General. perfection with the inability of his subjects to compel
him to answer in any of his courts, the doctrine that
It is appropriate, I think, to examine at this stage the the King could do no wrong was born and became
precise nature of the appellant’s authority to act in his securely entrenched thereafter in the British
official capacity, as he purported to do, in the instant Constitution as the pre-rogative of perfection…..
case. By s 19 of the Trinidad and Tobago
(Constitution) Order in Council 1962, he is Her ……..the prerogative of perfection, as it came to be
Majesty’s representative in Trinidad and Tobago, and known, is a peculiar privilege of the Queen and
by s 56 he exercises on Her behalf the executive adheres to her in both her political and personal
authority which by the same section is vested in Her. capacities. In its proper signification, therefore, it
But s 63 (3) recognises that the Governor-General’s means and implies that she cannot be sued in either
powers include not only such as are required for the capacity for any supposed wrong done or authorised
due exercise of the executive authority, but also any by her. This doctrine remains in full force and effect
other powers conferred on him, by virtue of his in the State. Accordingly, the appellant who is no
office, by the Constitution or by any other law. In more than an officer, albeit a high official, appointed
my judgment, therefore, the power given him by the by the Queen, and who holds the office of Governor-
Ordinance is a grant to a persona designata and it is General during her pleasure and owes allegiance to
not in any real sense a grant of executive power. And her, can lay no claim to a privilege which is personal
since it would be quite meaningless for the legislature and peculiar to her. And as there is nothing in the
to impose limitations upon the exercise by the constitutional instruments or in any other enactment
persona designata of the power granted to him by the which confers on the appellant the immunity for
Ordinance if he were nevertheless to be free to which the Solicitor-General contended, I must reject

6
the notion that he cannot be sued personally, or that procedural step leading to the cabinet's decision; and
as Governor-General he is, like the Queen, incapable that, accordingly, the proceedings against the
of wrong. minister had properly been struck out.

(2) Allowing the appeal as against the Attorney-

Williams Construction Ltd. v. Blackman [1995] 1 General, that in deciding to accept the tender of the
W.L.R. 102 other tenderer the cabinet had not been exercising its
prerogative power but the specific statutory function
Section 64(1) of the Constitution of Barbados conferred on it by rule 148 of the Rules of 1971; that
provided that there should be a cabinet for Barbados, the exercise of that function was an "administrative
which by subsection (2) was charged with the general act" by the cabinet within section 2 of the
direction and control of the government of Barbados Administrative Justice Act since even if it was not
and was collectively responsible therefor to collectively the act of a minister it was the act of an
Parliament. In accordance with Part XII of the "other authority of the Government of Barbados" for
Financial Administration and Audit (Financial) Rules the purposes of that section and was therefore subject
1971,1 made by the cabinet under section 39(1) of to judicial review to the same extent and on the same
the Financial Administration and Audit Act,2 the grounds as it would have been had it been conferred
Ministry of Transport and Works invited tenders for on a minister instead of on the cabinet.
highway improvement works. The applicant
submitted a tender which was lower than that of the Per Lord Bridge of Harwich at pg. 108:
only other tenderer. The special tenders committee
recommended acceptance of the applicant's tender. The fact that the cabinet has the very broad function
The matter was considered by the cabinet and it conferred upon it by section 64(2) of the Constitution
decided under rule 148 of the Rules of 1971 to award of Barbados, in respect of which it may be immune
the contract to the other tenderer, recommended by from judicial review, seems to their Lordships for
the Minister of Transport and Works, who was a present purposes to be quite irrelevant. When the
member of the cabinet. The applicant applied for cabinet exercises a specific statutory function which,
judicial review under section 3(1) of the had it been conferred on a minister instead of the
Administrative Justice Act3 against the minister and cabinet, would unquestionably have been subject to
against the Attorney-General of Barbados judicial review, their Lordships can see no reason in
representing the cabinet. The applicant relied on principle why the cabinet's exercise of the function
grounds specified in section 4 and sought, under should not be subject to judicial review to the same
section 5(2), a declaration that the decision or extent and on the same grounds as the minister's
administrative act by the minister and/or the cabinet would have been.
in recommending the award of the contract and/or in
awarding it was invalid, and damages. On an Rees v. Crane [1994] 2 W.L.R. 476
application by the respondents for an order striking
out the proceedings as disclosing no reasonable cause The respondent, a judge of the High Court of
of action, Williams C.J. struck out the proceedings Trinidad and Tobago, held office subject to the
against the minister but not against the Attorney- fundamental right to the protection of the law
General. The Court of Appeal of Barbados upheld recognised by section 4(b) of the Constitution of the
the decision in relation to the proceedings against the Republic of Trinidad and Tobago 19761 and he could
minister and also struck out the proceedings against only be removed from office for inability to perform
the Attorney-General. the functions of his office, whether from infirmity of
mind or body or any other cause, or for
On the applicant's appeal to the Judicial Committee: - misbehaviour, in accordance with the provisions of
section 137(1). After receiving complaints about the
Held, (1) dismissing the appeal as against the respondent the Chief Justice of Trinidad and Tobago
minister, that since the Minister of Transport and decided not to include him on the roster of judges
Works had no statutory power with regard to the who were to sit in court for the following term. The
award of the contract there had been no Judicial and Legal Service Commission, of which the
"administrative act or omission" by him within the Chief Justice was ex officio a member, agreed with
meaning of section 2 of the Administrative Justice that decision. The respondent was eventually
Act in respect of which relief under that Act could be informed that it had been decided that he should
granted to the applicant against him, either as a cease to preside in court until further notice. Without
member of the cabinet or in relation to any notifying the respondent the commission met to

7
consider whether to make a representation to the impose and which could not be corrected
President under section 137(3) that the question of retrospectively by the order of suspension made by
removing the respondent from office ought to be the President under section 137(4); that in purporting
investigated. After the commission had requested to confirm the Chief Justice's decision or to suspend
further information the Chief Justice supplied it with the respondent themselves the commission had also
statistics and records relating to the respondent's acted ultra vires, and those decisions of the Chief
performance in court and thereafter ceased to Justice and the commission were unlawful and had
participate in the commission's deliberations. The properly been quashed.
respondent was not told the complaints against him
or given an opportunity to answer them. The (2) That although in preliminary or initiating
commission made a representation to the President proceedings the person concerned generally had no
under section 137(3) that the question of removing right to be heard, particularly if he was entitled to be
the respondent from office for inability to perform heard at a later stage, that was not a rigid rule; that,
the functions thereof due to bodily infirmity and/or notwithstanding that the procedure for removing a
misbehaviour ought to be investigated. In accordance judge from office under section 137 had three stages
with section 137(3) the President appointed a tribunal only the first of which was before the commission
to inquire into the matter, report on the facts and and at the two later stages the judge had a right to
recommend to him whether he should refer the know of and to answer the complaints made against
question of removal of the respondent from office to him, the commission had a duty to act fairly in
the Judicial Committee of the Privy Council, and deciding whether a complaint had prima facie
pursuant to section 137(4) the President suspended sufficient basis in fact and was serious enough to
the respondent from performing the functions of his warrant making a representation to the President;
office. The respondent commenced proceedings that, in view of the seriousness of the allegations and
against the appellants, who were the three members the suspicions both for the present and the future
of the tribunal, the Chief Justice and the other four raised by a decision to suspend a judge which a
members of the commission, and the Attorney- subsequent revocation of the suspension would not
General of Trinidad and Tobago, seeking judicial necessarily dissipate and in all the circumstances, the
review and redress for alleged infringements of his commission had not treated the respondent fairly in
constitutional rights. Blackman J. dismissed both the failing to inform him at that stage of the allegations
application for judicial review and the constitutional made against him or to give him a chance to reply to
motion. The Court of Appeal by a majority allowed them in such a way as was appropriate, albeit not
the respondent's appeal in part and quashed the Chief necessarily by an oral hearing; and that, accordingly,
Justice's decision to exclude the respondent from the the commission had acted in breach of the principles
roster and the commission's representation to the of natural justice and had contravened the
President, directed the tribunal not to inquire into the respondent's right to the protection of the law,
matter and ordered damages to be assessed, but including the right to natural justice, afforded by
allegations of bias against the Chief Justice and the section 4(b) of the Constitution, and the Court of
commission were rejected. Appeal had correctly quashed the commission's
decision to represent that the question of the
On the appellants' appeal and the respondent's cross- respondent's removal from office ought to be
appeal to the Judicial Committee: - investigated, and the consequential appointment of
the tribunal, and he was entitled to damages the
Held, dismissing the appeal, (1) that although the assessment of which would be remitted to the High
Chief Justice of Trinidad and Tobago as head of Court in accordance with the order of the Court of
judicial administration there had power to organise Appeal.
the procedures and sittings of the courts, including
arranging that for a temporary period a particular
judge did not sit in court, a judge could only be
suspended or removed from office in accordance with
the procedure prescribed by section 137; that the
decision of the Chief Justice to exclude the Ouster clauses
respondent from the roster, with no indication when
he would be permitted to sit in court again, was not
merely an administrative arrangement within the Re Alva Bain H.C.A. 3260 of 1990
Chief Justice's competence but constituted an
indefinite suspension which he had no power to

8
 their detention and imprisonment on charges relating
to offences covered thereby unlawful, and it was for
the Commissioner of Prisons and the Attorney-
Insurrectionists General to justify the detention; that, accordingly, the
applicants were entitled to a writ of habeas corpus as
of right so that the lawfulness of their imprisonment
could be immediately determined, and at that hearing
Phillip v. D.P.P. (P.C.) [1992] 2 the court would have jurisdiction to inquire into the
W.L.R. 211 validity of the pardon even though, if the applicants
were not released, they would be entitled under
section 32 of the Criminal Procedure Act to assert the
During an insurrection in Trinidad by a group of pardon again as a special plea in bar to the indictment
which the 114 applicants were members, the Prime when they were arraigned; and that, therefore, all the
Minister, certain Members of Parliament and other applicants would be granted leave to issue a writ of
persons were held captive. In order to secure their habeas corpus.
release the Acting President granted a pardon in the
form of a general amnesty to all those involved in (2) That, despite the provisions of section 32 of the
acts of insurrection. The captives were eventually Criminal Procedure Act, the High Court had
released and the applicants surrendered. They were jurisdiction to entertain the application for redress
arrested and detained in custody. They were charged pursuant to section 14 of the Constitution since the
with treason, murder and other offences alleged to applicants could before arraignment rely on the pre-
have been committed while they were involved in the trial pardon as a ground for alleging that their
insurrection. They applied to the High Court for detention and prosecution for offences in relation to
redress by way of originating motion pursuant to the insurrection infringed their rights under section
section 14(1) of the Constitution1 alleging that since 4(a) and (b) of the Constitution; and that the
they were the beneficiaries of a valid pardon their constitutional proceedings and the habeas corpus
detention and prosecution for offences in respect of proceedings would therefore be consolidated so that
which the pardon had been granted infringed their the validity of the pardon could be determined.
right to liberty and security of the person and the
right not to be deprived thereof except by due process Per Lord Ackner at pgs 222-223:
of law afforded by section 4(a) of the Constitution,
and their right under section 4(b) to the protection of “Mr. Newman takes the further point, viz., that if it
the law. Eight of the applicants also applied to the were decided in the habeas corpus proceedings that
High Court for leave to issue a writ of habeas corpus the pardon was an invalid one, this would not
directing the Commissioner of Prisons to show cause disentitle the applicants from raising the pardon as a
why they should not be released immediately, plea in bar, as provided for by section 32 of the
alleging that by reason of the pardon their detention Criminal Procedure Act, when some years hence they
was illegal. The judge held that a person who relied are arraigned. He submits that two bites of this cherry
on a pardon could only raise it as a plea in bar on could prove highly inconvenient and should not be
arraignment in accordance with section 32 of the permitted. Their Lordships have no hesitation in
Criminal Procedure Act2, and that, therefore, since saying that it is in the overall interest of justice that
no infringement of the Constitution was disclosed, there should be the earliest possible decision as to the
the court had no jurisdiction to entertain the motion. validity of the pardon, if it is to be challenged. If the
In the habeas corpus proceedings the applicants were pardon remains unchallenged or is held to be valid,
refused leave by a different judge, who held that such the unlawful imprisonment of the applicants will then
proceedings could not be brought on the basis of a cease. The injustice of the applicants remaining in
pardon, which could only be relied on by an accused prison, if they are the beneficiaries of a valid pardon,
on arraignment. The Court of Appeal upheld both heavily outweighs the inconvenience of their raising
decisions. again the pardon as a plea in bar at the trial, assuming
they have not previously regained their liberty. If the
On the applicants' appeals to the Judicial Committee: pardon has been determined to be invalid, then so far
- as the law is concerned, this will no doubt facilitate
the directions which the trial judge will give to the
Held, allowing the appeals, (1) that the applicants had jury, leaving them to concentrate on such facts as
established prima facie that they were the remain in issue.
beneficiaries of a valid pardon which would render

9
It is unfortunate that the application for habeas Col Serrette was promoted to the rank of Colonel and
corpus did not receive the painstaking consideration appointed Officer Commanding the Regiment.
given to the constitutional appeal. If this application
had been taken first it might have been more readily At the court-martial the two lieutenants and a private
appreciated that the applicants had made out a clear pleaded the issue of condonation in bar of trial by
prima facie case that they were unlawfully virtue of s 122 of the Defence Act which provides:
imprisoned and therefore entitled to the writ as of
right. The court has no discretion to refuse it. A “122,(1) Where a person subject to military law
prima facie case having been established that the under this Act...
applicants were unlawfully detained, it was clearly
for the respondents to make a return justifying the (c) has had an offence condoned by his commanding
detention. The applicants are not to be deprived of officer he is not liable in respect of that offence to be
this fundamental right by the existence of some tried by court-martial or to have the case dealt with
alternative, but in the circumstances, wholly summarily by his commanding officer or the
unsatisfactory remedy. No civilised system of law appropriate superior authority.
should tolerate the years of delay contemplated by 361
the courts below, before the lawfulness of this
imprisonment could be effectively challenged.” (2) For the purposes of this section–

(d) an offence shall be deemed to have been

condoned by the commanding officer of a person
alleged to have committed the offence if, and only if,
that officer or any officer authorised by him to act in
Lasalle Shah Lai Leung Noray Guy v relation to the alleged offence has with knowledge of
R (1972) 20 WIR 361 all relevant circumstances informed him that he will
not be charged herewith;...
On 21 April 1970, a mutiny occurred in the 1st
Battalion of the Trinidad and Tobago Regiment at (4) Subject to this section proceedings for an offence
Teteron Bay where the army encampment was against this Act (whether before a commanding
established. It was organised by Lts Lasalle and officer or appropriate superior authority or before a
Shah with the assistance of a Lt Bazie; and a number court-martial) shall not be barred on the ground of
of junior non-commissioned officers and privates condonation.”
participated. The senior officer in command at
Teteron, Major Christopher, was imprisoned and the The allegations in support of the plea of condonation
mutineers took control of the arsenal and the Teteron were that it was through the actions of the lieutenants
Camp. Negotiations between representatives of the that Lt Col Serrette was provided with the
government and representatives of the mutineers took opportunity of securing his re-appointment to the
place. It was alleged that the dissident soldiers regiment and, having been fully informed by them of
proposed, among other things, the reappointment of all the facts and circumstances of the mutiny on 21
Lt Col Serrette as the commanding officer of the April he condoned their offences by (i) promoting
regiment. Lt Col Serrette had been formerly the them to the rank of company commander;(ii) telling
commanding officer until 1968 when he was relieved them that he would not charge them for any military
of duty. On the afternoon of 23 April when the camp offence; and (iii) telling them that he would not take
and the battalion were under the control of Lts any disciplinary action against them.
Lasalle and Shah, Lt Col Serrette was dispatched as
an emissary of the Prime Minister to visit the camp The court-martial heard evidence separately on the
with a view to restoring law and order. He arrived at pleas in bar of trial by each of the three appellants
the camp in the late afternoon of 23 April and as he who raised it. The pleas were rejected and, after a
reached the gate of the camp the old bugle call “here trial on the general issue, all the appellants were
comes the devil” was sounded. He addressed the convicted of mutiny and other offences and sentenced
battalion. During that night, with the co-operation of to terms of imprisonment.
the two lieutenants, he secured the release of Major
Christopher and other officers and ranks and, as well, On appeal it was submitted, inter alia, that the trial of
the civilian personnel who had been detained by the the plea of condonation was unfair and that a
mutineers. On the following day, 24 April 1970, Lt substantial miscarriage of justice had occurred for the

10
reason that the court-martial and the judge-advocate (vii) that since the appellant, Noray, denied that he
committed the following errors: had committed any military offences he could not
rely on the plea of condonation notwithstanding the
(1) the court-martial wrongly adjudicated separately errors committed by the court-martial and the judge-
on the pleas of condonation in bar of trial instead of advocate. In any event Noray had led no evidence in
jointly hearing all the evidence in respect of all the support of his plea of condonation, nor was there
pleas before adjudicating; otherwise any evidence in support thereof.

(2) the judge-advocate failed to sum up in open court Per Fraser J.A. at pgs 406-407:
on the evidence and to give directions on the law
respecting the pleas of condonation and, specifically, “It is perhaps the acme of irony that the two men who
with regard to the standard of proof required of an boldly and brazenly proclaimed themselves to be the
accused on a plea of condonation; leaders of a mutiny in the regiment and whose plans
and purposes were aimed at disruptive and dangerous
(3) the court-martial misdirected itself in that it failed courses should escape punishment for their actions.
to direct itself properly on the question whether the But the law must take its proper course. I can find
requisite standard of proof devolving on the nothing to commend either of them. Their behaviour
appellants was proof beyond a reasonable doubt or on 21 April 1970, was reprehensible in the extreme;
proof on the balance of probabilities; but in military affairs the law, as it now stands, gives
a commanding officer power to condone military
(4) the court-martial wrongly exercised its discretion offences, including mutiny, and such condonation is a
when it disallowed an application to call Flora Henry bar to trial by a court-martial. The hearing of the
as a witness for the appellant Shah after his case was plea of condonation was not a fair hearing. The
closed but before the decision was given; principles of natural justice were cast aside for no
apparent reason; and the Act does not provide the
(5) the court-martial and the judge-advocate unjustly alternative of a re-trial. Where there is a substantial
restricted cross-examination of Brigadier Serrette. miscarriage of justice the Act demands that the
conviction be quashed. I do not desire to say any
Held: (i) that the pleas in bar of trial on the ground of more about the chronicle of irregularities which
condonation should have been heard jointly; and that attended the trial of the pleas in bar of trial made by
the separation of the trials of the applicants’ pleas Lasalle and Shah; I wish to say only that the
was likely to result in prejudice; Constitution of this country recognises that men and
institutions remain free only when freedom is
(ii) that the judge-advocate erred in failing to sum up founded upon respect for moral and spiritual values
in open court on the evidence and to give directions and for the rule of law. As a judge of this court, I am
on the law respecting the plea of condonation and in duty bound to uphold the rule of law at all times.
also with regard to the standard of proof required; In obedience to that rule and for the reasons given I
am constrained to say that I also would allow the
(iii) that the standard of proof where the burden is on appeals of the appellants Lasalle and Shah and quash
the accused is proof on the balance of probabilities; their convictions.”

(iv) that the right to cross-examine a prosecution

witness as fully as the law permits is basic to the
administration of justice; consequently the restriction Convicted killers
of the cross-examination of Brigadier Serrette was
wrong;
Pratt v. A.-G. for Jamaica (P.C.) [1993] 3
(v) that the refusal by the court-martial to admit the W.L.R. 995
evidence of Flora Henry was an unreasonable
exercise of its judicial discretion; The applicants were convicted of murder in January
1979 and sentenced to death. They immediately
(vi) that a substantial miscarriage of justice had applied for leave to appeal but were not granted legal
occurred in the course of the hearing of the pleas of aid until May 1980. In December the Court of Appeal
Lts Lasalle and Shah in bar of trial on the ground of of Jamaica dismissed their application for reasons to
condonation; be given later. The Governor-General failed to refer

11
their case to the Jamaican Privy Council for advice be imposed by the court and did not prevent the
on whether the applicants should be executed or circumstances in which the executive intended to
reprieved, in accordance with sections 90 and 91 of carrying out the sentence from infringing section
the Constitution.1 The first applicant petitioned the 17(1); that execution should follow as swiftly as
Inter-American Commission on Human Rights practicable after sentence of death, subject to
("I.A.C.H.R.") in 1981, although the Jamaican allowance of a reasonable time for appeal and
Government was not aware of that until 1983. In consideration of a reprieve, and an appellate
September 1984, following a further request, the procedure that permitted prolonged delay, for taking
Court of Appeal gave its reasons for dismissing the advantage of which no fault could be attributed to a
application for leave to appeal. In October the defendant, was incompatible with capital
I.A.C.H.R. rejected the first applicant's submission punishment; that since the applications for special
but recommended that the death sentence be leave to appeal to the Judicial Committee and the
commuted. In January 1986 he petitioned the United petitions to the I.A.C.H.R. and the U.N.H.R.C. could
Nations Human Rights Committee ("U.N.H.R.C.") not be categorised as frivolous the whole period of
under the International Covenant on Civil and delay had to be taken into account; and that,
Political Rights. The applicants lodged notice of accordingly, since to carry out executions after a
intention to petition for special leave to appeal to the delay of 14 years would constitute inhuman
Judicial Committee of the Privy Council in March, punishment contrary to section 17(1), their sentences
and special leave was refused in July. In November would be commuted to life imprisonment pursuant to
the Jamaican Privy Council considered the applicants' section 25(1).
case for the first time but did not accede to a request
from the U.N.H.R.C. for a stay of execution. A (2) That although the reasons of the Court of Appeal
warrant for the execution of the sentences passed on were necessary in order to identify the point of law or
the applicants was issued in February 1987. They serious miscarriage of justice alleged in an
were transferred to special condemned cells adjacent application for special leave to appeal, the
to the gallows, but the Governor-General issued a availability of the reasons was not a condition
stay of execution. In July the I.A.C.H.R. informed the precedent to lodging the application.
government that the applicants had suffered a denial
of justice and requested that their sentences be Catholic Commission for Justice and Peace in
commuted. The Jamaican Privy Council reconsidered Zimbabwe v Attorney General (1993) 2 LRC 280
the matter in October 1987 and in February 1988 a
second warrant of execution was issued. The In this case, which predated Pratt and Morgan, the
applicants were again transferred to the condemned Zimbabwean Supreme Court held that a long delayed
cells, but a stay was granted. In March 1988 the execution could violate the right not to be subjected
U.N.H.R.C. decided that the case was admissible, and to cruel and unusual treatment or punishment.
in April 1989 held that certain articles of the
International Covenant had been violated and Per Gubbay CJ, at pg 314:
recommended commutation of the sentences. After
reconsideration by the Jamaican Privy Council in “In making this value judgment it has been necessary
September 1990 a third warrant of execution was to remain uninfluenced by the fact that the demand
issued in February 1991, and they were again moved for humane and civilized treatment is made on behalf
to the condemned cells. They applied to the Supreme of those who showed no mercy to their victims but
Court for redress under section 25 of the subjected them to extreme cruelty and brutality.
Constitution, and execution was stayed. The Full
Court of the Supreme Court dismissed the application Because retribution has no place in the scheme of
and the Court of Appeal of Jamaica upheld that civilized jurisprudence, one cannot turn a deaf ear to
decision. the plea made for the enforcement of constitutional
rights. Humaneness and dignity of the individual are
On the applicants' appeal to the Judicial Committee: - the hallmarks of civilized laws. Justice must be done
dispassionately and in accordance with constitutional
Held, allowing the appeal, (1) that prior to Jamaican mandates. The question is not whether this court
independence the legality of a long delayed execution condones the evils committed by the four condemned
could have been questioned and, applying English prisoners, for certainly it does not. It is whether the
common law, execution stayed as an abuse of acute mental suffering and brooding horror of being
process; that section 17(2) of the Constitution merely hanged which has haunted them in their condemned
authorised descriptions of punishment which could cells over the long lapse of time since the passing of

12
the sentence of death, is consistent with the guarantee remnant of abandoned doctrine," or whether facts
against inhuman, or degrading punishment or have changed "or come to be seen so differently, as to
treatment.” have robbed the old rule of significant application or
justification." In the absence of such grounds, p. 864:

“the court could not pretend to be re-examining the

prior law with any justification beyond a present
The rule of law and legal certainty doctrinal disposition to come out differently from the
court of 1973. To overrule prior law for no other
reason than that would run counter to the view
repeated in our cases, that a decision to overrule
Lewis v. A.-G of Jamaica [2000] 3 should rest on some special reason over and above
W.L.R.1785 the belief that a prior case was wrongly decided.”

Per Lord Hoffman, pgs 1815-1817: The opinion went on to cite Stewart J. in Mitchell v.
W. T. Grant Co. (1974) 416 U.S. 600, 636:
I entirely accept that the Board is not, as a matter of
law, bound by its previous decisions. And I respect “A basic change in the law upon a ground no firmer
the conviction of the majority that this is an occasion than a change in our membership invites the popular
to exercise the Board's power to overrule the earlier misconception that this institution is little different
cases. But I think it is a mistake. The fact that the from the two political branches of the government.
Board has the power to depart from earlier decisions No misconception could do more lasting injury to
does not mean that there are no principles which this court and to the system of law which it is our
should guide it in deciding whether to do so. abiding mission to serve.”

Some assistance can be obtained from the practice of Stewart J.'s reference to changes in the membership
the Supreme Court of the United States. That court of the court prompts another reason why it is
has never considered itself rigidly bound by particularly important for this Board to be very
precedent. In Brown v. Board of Education of careful in departing from precedent. The fact that the
Topeka (1954) 347 U.S. 483 it famously overruled its Supreme Court of the United States sits in banc
previous decision that racial segregation was lawful. means that, subject to infrequent changes in
But in Planned Parenthood of Southeastern membership, there is a natural continuity in its views.
Pennsylvania v. Casey (1992) 505 U.S. 833 the court But the Board hearing an appeal consists of five
discussed the grounds upon which it would depart members drawn from the 12 Law Lords, occasional
from precedent and why it would not overrule its visiting judges from Commonwealth countries
equally controversial decision on abortion in Roe v. (though regrettably seldom from the Caribbean) and a
Wade (1973) 410 U.S. 113. O'Connor, Kennedy and number of retired Lords Justices of Appeal. It is
Souter JJ., speaking for the court, said, at p. 854: possible for a Board to be constituted without anyone
who was party to a recent governing precedent or to
“no judicial system could do society's work if it eyed be composed largely of members who were
each issue afresh in every case that raised it ... previously in dissenting minorities.
Indeed, the very concept of the rule of law underlying
our own Constitution requires such continuity over Macaulay said of the Constitution of the United
time that a respect for precedent is, by definition, States that it was "all sail and no anchor." I think that
indispensable.” history has proved him wrong. But the power of final
interpretation of a constitution must be handled with
The judgment of the court in deciding whether to care. If the Board feels able to depart from a previous
overrule a previous decision was "customarily decision simply because its members on a given
informed by a series of prudential and pragmatic occasion have a "doctrinal disposition to come out
considerations designed to test the consistency of differently," the rule of law itself will be damaged
overruling a prior decision with the ideal of the rule and there will be no stability in the administration of
of law," such as whether the previous rule is justice in the Caribbean.
intolerable because not in practice workable, or
whether, at p. 855, related principles of law have
developed "as to have left the old rule no more than a

13
The rule of law and unclear characterised as most regrettably lacking in the
requisite degree of clarity.”
statutory prohibitions
Per Sir John Donaldson M.R. in the Court of Appeal
[1983] 2 W.L.R. 45, at pgs. 66-67:
Regina v K [2001] 3 WLR 471, at pg.
“At the beginning of this judgment I said that whilst I
482, per Lord Bingham of Cornhill had reached the conclusion that the law was tolerably
clear, the same could not be said of the way in which
“The rule of law is not well served if a crime is it was expressed. The efficacy and maintenance of
defined in terms wide enough to cover conduct which the rule of law, which is the foundation of any
is not regarded as criminal and it is then left to the parliamentary democracy, has at least two pre-
prosecuting authorities to exercise a blanket requisites. First, people must understand that it is in
discretion not to prosecute to avoid injustice.” their interests, as well as in that of the community as
a whole, that they should live their lives in
accordance with the rules and all the rules. Second,
they must know what those rules are. Both are
Merkur Island Corpn. v. Laughton equally important and it is the second aspect of the
[1983] 2 W.L.R. 778 rule of law which has caused me concern in the
present case, the I.T.F. having disavowed any
intention to break the law.
Per Lord Diplock, at pg. 790
In industrial relations it is of vital importance that the
“My Lords, the Act of 1974 and the Act of 1980, to worker on the shop floor, the shop steward, the local
which must now be added the Employment Act 1982, union official, the district officer and the equivalent
deal with industrial relations. They lay down what levels in management should know what is and what
can and what cannot lawfully be done in connection is not "offside." And they must be able to find this
with industrial disputes, not only as a result of out for themselves by reading plain and simple words
decisions that are taken by the controlling body or the of guidance. The judges of this court are all skilled
top officials of large trade unions or federations of lawyers of very considerable experience, yet it has
trade unions like I.T.F. with ready and immediate taken use hours to ascertain what is and what is not
access to expert legal advice, but also as a result of "offside," even with the assistance of highly
decisions taken by the shop steward on the shop floor experienced counsel. This cannot be right.
in circumstances of urgency and under pressure from
his fellow workers. I see no reason for doubting that We have had to look at three Acts of Parliament,
those upon whom the responsibility for deciding none intelligible without the other. We have had to
whether and if so what industrial action shall be taken consider section 17 of the Act of 1980, which adopts
in any given circumstances wish to obey the law, the "flow" method of Parliamentary draftsmanship,
even though it be a law which they themselves dislike without the benefit of a flow diagram. We have
and hope will be changed through the operation of furthermore been faced with the additional
this country's constitutional system of parliamentary complication that subsection (6) of section 17
democracy. But what the law is, particularly in the contains definitions which distort the natural meaning
field of industrial relations, ought to be plain. It of the words in the operative subsections. It was not
should be expressed in terms that can be easily always like this. If you doubt me, look at the
understood by those who have to apply it even at comparative simplicity and clarity of Sir Mackenzie
shop floor level. I echo everything that the Master of Chalmers's Sale of Goods Act 1893, his Bills of
the Rolls has said in the last three paragraphs of his Exchange Act 1882, and his Marine Insurance Act
judgment in this case. Absence of clarity is 1906. But I do not criticise the draftsman. His
destructive of the rule of law; it is unfair to those who instructions may well have left him no option. My
wish to preserve the rule of law; it encourages those plea is that Parliament, when legislating in respect of
who wish to undermine it. The statutory provisions circumstances which directly affect the "man or
which it became necessary to piece together into a woman in the street" or the "man or woman on the
coherent whole in order to decide the stage 3 point shop floor" should give as high a priority to clarity
are drafted in a manner which, having regard to their and simplicity of expression as to refinements of
subject matter and the persons who will be called policy. Where possible, statutes, or complete parts of
upon to apply them, can in my view, only be statutes, should not be amended but re-enacted in an

14
amended form so that those concerned can read the trial judge and the Court of Appeal had applied the
rules in a single document. When formulating policy, correct standard of proof and had been satisfied
ministers, of whatever political persuasion, should at beyond a reasonable doubt that the appellant had
all times be asking themselves and asking been engaged in trafficking.
parliamentary counsel: "Is this concept too refined to
be capable of expression in basic English? If so, is (2) That there was a clear distinction between
there some way in which we can modify the policy so handling drugs for personal use and buying and
that it can be so expressed?" Having to ask such selling them; that "trafficking" was a familiar
questions would no doubt be frustrating for ministers expression in the context of transactions which were
and the legislature generally, but in my judgment this tainted with immorality or illegality; that,
is part of the price which has to be paid if the rule of consequently, section 38(2) did not offend against the
law is to be maintained.” principle that a criminal offence must be defined with
sufficient clarity to enable a person to judge whether
or not his acts would render him liable to
prosecution; and that, accordingly, on the facts, the
Sabapathee v. The State [1999] 1 judge had been entitled to draw the inference that the
W.L.R. 1836 appellant had been engaged in "trafficking" within
the ordinary meaning of the word and the appellant
could not have been in any doubt that his conduct
Following the arrest of the appellant's co-defendant a was of that character.
search was executed at the appellant's house. A
package was found which contained 35 sealed plastic (3) That there was a distinction between aggravation
sachets containing heroin and 50 empty plastic bags. of an offence which formed part of the facts
The appellant was charged with various offences constituting the offence, in which case the
under the Dangerous Drugs Act 19861 in respect of aggravation had to be alleged in the information and
which it was alleged that, pursuant to section 38, it proved as part of the case against the defendant
could be reasonably inferred that he had been relating to his guilt of the offence, and aggravation
engaged in trafficking drugs when he committed the which was independent of those facts, in which case
offences. The co-defendant pleaded guilty to two the aggravation had to be laid before the judge after
offences of importing heroin into Mauritius. The conviction when sentence was being considered; that
appellant was tried by a judge without a jury and did section 38(3) laid down a statutory aggravation of the
not give evidence in his own defence. He was drugs offences listed in subsection (1) rendering the
convicted of knowingly having in his possession 395 defendant liable to a more severe penalty and did not
grams of heroin and wilfully offering to buy heroin. create a separate and distinct offence; that such
Without giving the appellant any further opportunity aggravation was a question of fact which had to be
to give evidence the judge went on to make a finding established at the trial at the same time as the
that the appellant had been engaged in trafficking question whether the defendant was guilty of the
drugs when he committed the offences. As a basic offence and, consequently, if a defendant
consequence of that decision the appellant became wished to challenge the allegation that he was a
liable to a more severe penalty. The appellant's trafficker in drugs he had to do so during the course
appeal to the Court of Appeal was dismissed and he of the trial; that such a requirement did not infringe
obtained leave to appeal to the Privy Council against his constitutional right to silence but if he chose to
the judge's finding that he had been engaged in remain silent he took the risk that the court would
trafficking. make a finding of trafficking against him; and that,
accordingly, the judge had been entitled to make a
On the appeal: - finding of trafficking against the appellant without
first having given him an opportunity to give
Held, dismissing the appeal, (1) that there was evidence on that issue following the findings of guilt
nothing in the language of section 38(2) to indicate a of the basic offences.
parliamentary intention to depart from the ordinary
common law rule that where direct evidence was not Per Lord Hope of Craighead, at pgs. 1841-1843:
available to prove any fact the court could find that
fact established by reasonable inference from other Mr. Ollivry's next point was that the expression
facts which had been proved: that the standard of "trafficking" was too vague. The fact that it was not
proof for the inference remained proof beyond a defined in the Act, when taken with the provision that
reasonable doubt; and that it was clear that both the trafficking could be established by the drawing of

15
reasonable inferences, was likely to lead to decisions quite properly wish to prescribe as criminal may best
which were arbitrary and unfair. No yardstick had be described by reference to the nature of the activity
been given in regard to matters such as the quantity rather than to particular methods of committing it. It
of the drugs which would justify the inference of may be impossible to predict all these methods with
trafficking, or whether the expression was intended to absolute certainty, or there may be good grounds for
cover the supply of the drugs to a friend in thinking that attempts to do so would lead to
circumstances which lacked any commercial element. undesirable rigidity. In such situations a description
He referred in support of his argument to the of the nature of the activity which is to be penalised
principle of legality which is embodied in section will provide sufficient notice to the individual that
10(4) of the Constitution. He said that section 38(2) any conduct falling within that description is to be
was in breach of that principle, because it did not regarded as criminal. The application of that
define with sufficient precision the conduct which description to the various situations as they arise will
was liable to attract the severe penalties which that then be a matter for the courts to decide in the light of
section prescribes for drug trafficking. experience. In this way the law as explained by its
operation in practice through case law will offer the
There is no difficulty in understanding what is meant citizen the guidance which he requires to avoid
by the word "trafficking." It is a familiar expression engaging in conduct which is likely to be held to be
in the context of transactions which are tainted by criminal.
immorality or illegality. It has the same meaning as Against this background their Lordships are not
"dealing" or "trading," except that it has a pejorative persuaded that the wording of section 38(2) offends
element. The essence of the complaint is that the against the principle of legality. Experience has
statute has failed to define with sufficient clarity the shown that trafficking in drugs takes many forms,
transactions which fall within, and those that fall which vary according to the nature and quality of the
outside, the ordinary meaning of the expression drug and the market in which the trafficker seeks to
which the section has used to describe the nature of operate. Attempts to penalise the activity by
the activity. reference to such yardsticks as value or quantity may
be counterproductive, or at least ineffective, as
The principle of legality requires that an offence individual transactions can be so easily adjusted to
against the criminal law must be defined with avoid the penalty. In any event, it is artificial to set
sufficient clarity to enable a person to judge whether limits on an activity which is infinitely variable. The
his acts or omissions will fall within it and render policy of Parliament in enacting section 38 was to
him liable to prosecution on the ground that they are strike at the heart of the problem by penalising the act
criminal. But the jurisprudence of the European of dealing in dangerous drugs, whatever form this
Court of Human Rights shows that the requirement might take and whatever the quantities. This is a
for clarity must be seen in the light of what is legitimate approach, as there is a clear distinction
practicable, and that it is permissible to take into between the handling of drugs for personal use and
account the way in which a statutory provision is trading in drugs by buying and selling them, which is
being applied and interpreted in deciding whether or the essence of trafficking. In the Board's view the
not the principle has been breached……. Court of Appeal put the matter correctly in its
judgment in the present case when it said:
As the Board held in Ahnee v. Director of Public
Prosecutions [1999] 2 W.L.R. 1305 there is to be “As we have already adverted to, the term
implied in section 10(4) the requirement that in 'trafficking' cannot be defined with any degree of
criminal matters any law must be formulated with precision. The multifarious forms which trafficking
sufficient precision to enable the citizen to regulate can take, can be measured only by the degree of
his conduct. So the principle of legality applies, and human ingenuity which, as yet, is unfathomable. No
legislation which is hopelessly vague must be struck exhaustive list of instances of trafficking can be
down as unconstitutional. But the precision which is enumerated, or defined, so that the legislator has left
needed to avoid that result will necessarily vary it to the good sense of the courts to decide what
according to the subject matter. The fact that a law is amounts to trafficking in a given set of facts.”
expressed in broad terms does not mean that it must
be held to have failed to reach the required standard.
In an ideal world it ought to be possible to define a
crime in terms which identified the precise dividing
line between conduct which was, and that which was
not, criminal. But some conduct which the law may

16
Fashioning remedies to vindicate the passage from his work on Vicarious Liability
(1967) cited by Lord Scott of Foscote in his speech.
the rule of law Moreover in some circumstances where one of a
group of soldiers or police officers commits some
outrageous act in the course of a confused and violent
Kuddus v Chief Constable of confrontation it may be very difficult to identify the
individual wrongdoer so that criminal proceedings
Leicestershire Constabulary [2001] 2 may be brought against him to punish and deter such
WLR 1789 conduct, whereas an award of exemplary damages to
mark the court's condemnation of the conduct can be
The plaintiff reported to the police that property had made against the Minister of Defence or the Chief
been stolen from his flat. A police constable assured Constable under the principle of vicarious liability
him that the matter would be investigated, but even if the individual at fault cannot be identified.
subsequently the constable forged the plaintiff's
signature on a statement purporting to be a
withdrawal by the plaintiff of his complaint. The
investigation accordingly ceased. The plaintiff
brought an action against the defendant chief officer Reg. v. Horseferry Rd. Magistrates'
of police on the ground of his vicarious liability for
the constable's misfeasance in public office. He Ct., Ex p. Bennett [1993] 3 W.L.R. 90
claimed damages, aggravated damages and
exemplary damages. The defendant, who admitted The defendant, a citizen of New Zealand who was
the forgery by the constable and that it amounted to alleged to have committed criminal offences in
misfeasance in public office, applied for the England, was traced to South Africa by the English
plaintiff's claim of exemplary damages to be struck police and forcibly returned to England. There was
out on the ground that exemplary damages were not no extradition treaty between the two countries, and
recoverable for the tort of misfeasance in public although special arrangements could be made for
office. The recorder so ordered. The Court of extradition in a particular case under section 15 of the
Appeal by a majority dismissed an appeal by the Extradition Act 1989 no such proceedings were
plaintiff. taken. The defendant claimed that he had been
On appeal by the plaintiff kidnapped from the Republic of South Africa as a
result of collusion between the South African and
Held, allowing the appeal, that whether exemplary British police and returned to England, where he was
damages could be awarded on the ground of arrested and brought before a magistrates' court to be
oppressive, arbitrary or unconstitutional action by a committed to the Crown Court for trial. The
public officer depended on the features of the defendant sought an adjournment to enable him to
officer's behaviour rather than on the precise cause of challenge the court's jurisdiction. The application was
action sued on and the fact that misfeasance in public refused and he was committed for trial. He sought
office was not a cause of action that had been judicial review of the magistrates' court's decision.
accepted before 1964 as justifying an award of The Divisional Court of the Queen's Bench, refusing
exemplary damages did not preclude the plaintiff's the application, held that the English court had no
claim. power to inquire into the circumstances under which
a person appearing before it had been brought within
Per Lord Hutton at pg 1811: the jurisdiction.

In my opinion the power to award exemplary On appeal by the defendant: -

damages in such cases serves to uphold and vindicate
the rule of law because it makes clear that the courts Held, allowing the appeal (Lord Oliver of Aylmerton
will not tolerate such conduct. It serves to deter such dissenting), (1) that where a defendant in a criminal
actions in future as such awards will bring home to matter had been brought back to the United Kingdom
officers in command of individual units that in disregard of available extradition process and in
discipline must be maintained at all times. In my breach of international law and the laws of the state
respectful opinion the view is not fanciful, as my where the defendant had been found, the courts in the
noble and learned friend Lord Scott of Foscote United Kingdom should take cognisance of those
suggests, that such awards have a deterrent effect and circumstances and refuse to try the defendant; and
such an effect is recognised by Professor Atiyah in that, accordingly, the High Court, in the exercise of

17
its supervisory jurisdiction, had power to inquire into prosecution process and is the illegal foundation on
the circumstances by which a person had been which it rests. It is apt, in my view, to describe these
brought within the jurisdiction and, if satisfied that circumstances, in the language used by Woodhouse J.
there had been a disregard of extradition procedures, in Moevao v. Department of Labour [1980] 1
it might stay the prosecution as an abuse of process N.Z.L.R. 464, 476, as an "abuse of the criminal
and order the release of the defendant. jurisdiction in general" or indeed, in the language of
Mansfield J. in United States v. Toscanino, 500 F.2d
Per Lord Griffiths at pg 104: 267, as a "degradation" of the court's criminal
process. To hold that in these circumstances the
“Your Lordships are now invited to extend the court may decline to exercise its jurisdiction on the
concept of abuse of process a stage further. In the ground that its process has been abused may be an
present case there is no suggestion that the appellant extension of the doctrine of abuse of process but is, in
cannot have a fair trial, nor could it be suggested that my view, a wholly proper and necessary one.”
it would have been unfair to try him if he had been
returned to this country through extradition Per Lord Lowry, at pgs.117-118:
procedures. If the court is to have the power to
interfere with the prosecution in the present “The philosophy which inspires the proposition that a
circumstances it must be because the judiciary accept court may stay proceedings brought against a person
a responsibility for the maintenance of the rule of law who has been unlawfully abducted in a foreign
that embraces a willingness to oversee executive country is expressed, so far as existing authority is
action and to refuse to countenance behaviour that concerned, in the passages cited by my noble and
threatens either basic human rights or the rule of learned friend, Lord Bridge of Harwich. The view
law.” there expressed is that the court, in order to protect its
own process from being degraded and misused, must
Per Lord Bridge of Harwich, at pgs. 109-110: have the power to stay proceedings which have come
before it and have only been made possible by acts
“There is, I think, no principle more basic to any which offend the court's conscience as being contrary
proper system of law than the maintenance of the rule to the rule of law. Those acts by providing a morally
of law itself. When it is shown that the law unacceptable foundation for the exercise of
enforcement agency responsible for bringing a jurisdiction over the suspect taint the proposed trial
prosecution has only been enabled to do so by and, if tolerated, will mean that the court's process
participating in violations of international law and of has been abused. Therefore, although the power of
the laws of another state in order to secure the the court is rightly confined to its inherent power to
presence of the accused within the territorial protect itself against the abuse of its own process, I
jurisdiction of the court, I think that respect for the respectfully cannot agree that the facts relied on in
rule of law demands that the court take cognisance of cases such as the present case (as alleged) "have
that circumstance. To hold that the court may turn a nothing to do with that process" just because they are
blind eye to executive lawlessness beyond the not part of the process. They are the indispensable
frontiers of its own jurisdiction is, to my mind, an foundation for the holding of the trial.
insular and unacceptable view. Having then taken
cognisance of the lawlessness it would again appear The implications for international law, as represented
to me to be a wholly inadequate response for the by extradition treaties, are significant. If a suspect is
court to hold that the only remedy lies in civil extradited from a foreign country to this country he
proceedings at the suit of the defendant or in cannot be tried for an offence which is different from
disciplinary or criminal proceedings against the that specified in the warrant and, subject always to
individual officers of the law enforcement agency the treaty's express provisions, cannot be tried for a
who were concerned in the illegal action taken. political offence. But, if he is kidnapped in the
Since the prosecution could never have been brought foreign country and brought here, he may be charged
if the defendant had not been illegally abducted, the with any offence, including a political offence. If
whole proceeding is tainted. If a resident in another British officialdom at any level has participated in or
country is properly extradited here, the time when the encouraged the kidnapping, it seems to represent a
prosecution commences is the time when the grave contravention of international law, the comity
authorities here set the extradition process in motion. of nations and the rule of law generally if our courts
By parity of reasoning, if the authorities, instead of allow themselves to be used by the executive to try
proceeding by way of extradition, have resorted to an offence which the courts would not be dealing
abduction, that is the effective commencement of the with if the rule of law had prevailed.

18
 The rule of law and the public
It may be said that a guilty accused finding himself in
the circumstances predicated is not deserving of interest in law and order
much sympathy, but the principle involved goes
beyond the scope of such a pragmatic observation
and even beyond the rights of those victims who are Regina v A (No 2) [2001] 2 WLR
or may be innocent. It affects the proper
administration of justice according to the rule of law 1546
and with respect to international law. For a
comparison of public and private interests in the The defendant was charged with rape. By his
criminal arena I refer to an observation of Lord defence he claimed that the complainant had
Reading C.J. in a different context in Rex v. Lee Kun consented to the sexual intercourse which formed the
[1916] 1 K.B. 337, 341: subject matter of the charge. At a preparatory
hearing he sought leave under section 41 of the
“the trial of a person for a criminal offence is not a Youth Justice and Criminal Evidence Act 19991 to
contest of private interests in which the rights of adduce evidence and to ask questions relating to an
parties can be waived at pleasure. The prosecution of alleged consensual sexual relationship between
criminals and the administration of the criminal law himself and the complainant over the preceding three
are matters which concern the State.” weeks, the most recent act of sexual intercourse
having occurred one week before the alleged offence.
If proceedings are stayed when wrongful conduct is He also claimed that the complainant had engaged in
proved, the result will not only be a sign of judicial sexual intercourse with his friend shortly before the
disapproval but will discourage similar conduct in incident. The judge ruled that the complainant could
future and thus will tend to maintain the purity of the be cross-examined with regard to the incident with
stream of justice. No "floodgates" argument applies the defendant's friend since it had allegedly occurred
because the executive can stop the flood at source by "at or about the same time as the event which is the
refraining from impropriety. subject matter of the charge" within the meaning of
section 41(3)(b) of the 1999 Act, but that evidence as
I regard it as essential to the rule of law that the court to any prior consensual sexual relationship with the
should not have to make available its process and defendant would not be admissible under section
thereby endorse (on what I am confident will be a 41(3)(b) or at all. In giving leave to appeal the judge
very few occasions) unworthy conduct when it is observed that his ruling would prima facie result in a
proved against the executive or its agents, however breach of article 6 of the Convention for the
humble in rank. And, remembering that it is not Protection of Human Rights and Fundamental
jurisdiction which is in issue but the exercise of a Freedoms as scheduled to the Human Rights Act
discretion to stay proceedings, while speaking of 1998. Allowing the appeal the Court of Appeal
"unworthy conduct," reversed the judge's ruling relating to the friend's
activity with the complainant and, on the Crown's
I would not expect a court to stay the proceedings of concession, ruled that evidence and questioning as to
every trial which has been preceded by a venial the defendant's alleged previous sexual experience
irregularity. If it be objected that my preferred with the complainant were relevant to his belief in
solution replaces certainty by uncertainty, the latter her consent and might be admitted under section
quality is inseparable from judicial discretion. And, 41(3)(a) but that such material was inadmissible on
if the principles are clear and, as I trust, the cases the issue of consent. The Court of Appeal gave leave
few, the prospect is not really daunting. Nor do I to the Director of Public Prosecutions as the
consider that your Lordships ought to be deterred prosecuting authority to appeal to the House of
from deciding in favour of discretion by the Lords. The defendant indicated that on the
difficulty, which may sometimes arise, of proving the prospective appeal he would invite the House to
necessary facts.” construe section 41 in accordance with its
interpretative duty under section 3 of the Human
Rights Act 19982 so as to achieve compatibility with
article 6 and that he would otherwise seek a
declaration of incompatibility under section 4 of that
Act. Accordingly on the petition of the Secretary of
State the House of Lords joined him as a party to the
appeal.

19
 rights which are set out in absolute terms in the
On the appeal-- article it is open, in principle, to modification or
restriction so long as this is not incompatible with the
Held, (1) that, although the legislature had pursued a absolute right to a fair trial in article 6(1). The test of
legitimate objective in enacting section 41 of the compatibility which is to be applied where it is
1999 Act, namely to protect complainants in sexual contended that those rights which are not absolute
offence cases from indignity and humiliating should be restricted or modified will not be satisfied
questioning and to correct the twin assumptions that a if the modification or limitation "does not pursue a
woman who had had previous sexual intercourse was legitimate aim and if there is not reasonable
more likely to consent on the occasion in question proportionality between the means employed and the
and in any event was less credible, a prior consensual aim sought to be achieved": Ashingdane v United
sexual relationship between a complainant and the Kingdom (1985) 7 EHRR 528, 547, para 57. A fair
defendant might, in the circumstances of an balance must be struck "between the demands of the
individual case, be relevant to the issue of consent; general interest of the community and the
that, although in giving effect to the defendant's requirements of the protection of the individual's
rights under article 6 account might also be taken of fundamental rights": Sporrong and LÖnnroth v
the interests of the complainant and of society in Sweden (1982) 5 EHRR 35, 52, para 69. The general
general, his right under article 6(1) to a fair trial, principles described in the Ashingdane case were
assessed by reference to the overall fairness of the restated in Lithgow v United Kingdom (1986) 8
proceedings, was absolute and fundamental and EHRR 329, 393, para 194 and again in Fayed v
would be infringed if he were denied the admission United Kingdom (1994) 18 EHRR 393, 429, para 65;
of relevant evidence where its absence led to his see also Brown v Stott [2001] 2 WLR 817, 851. The
unjust conviction. question whether a legitimate aim is being pursued
enables account to be taken of the public interest in
(2) That the temporal restriction in section 41(3)(b) the rule of law. The principle of proportionality
could not be construed as permitting evidence or directs attention to the question whether a fair
questioning other than in respect of acts which were balance has been struck between the general interest
really contemporaneous with the incident charged; of the community and the protection of the
but that under section 41(3)(c), construed where individual.
necessary by applying the interpretative obligation
under section 3, and always giving due regard to the In my opinion the placing of restrictions on evidence
importance of protecting the complainant from or questions about the sexual behaviour of
indignity and humiliating questioning, the test of complainants in proceedings for sexual offences
admissibility was whether the evidential material was serves a legitimate aim. The prevalence of sexual
nevertheless so relevant to the issue of consent that to offences, especially those involving rape, which are
exclude it would endanger the fairness of the trial not reported to the prosecuting authorities indicates a
under article 6; and that where that test was satisfied marked reluctance on the part of complainants to
the evidence should not be excluded. submit to the process of giving evidence at any trial.
The rule of law requires that those who commit
(3) Dismissing the appeal, that since the evidential criminal acts should be brought to justice. Its
material which the defendant sought to be admitted enforcement is impaired if the system which the law
related to the bare assertion of his previous sexual provides for bringing such cases to trial does not
relationship with the complainant there was protect the essential witnesses from unnecessary
insufficient material on which to assess whether it humiliation or distress.
fell within the ambit of section 41(3)(c); and that,
accordingly, the matter should be remitted to the It seems to me that the critical question, so far as the
judge in the Crown Court for such inquiry as was accused's right to a fair trial is concerned, is that of
necessary in the event of any further application by proportionality. The points of particular concern
the defendant for leave under section 41 of the 1999 which I have identified in my analysis of section 41
Act. are (a) the exclusion by section 41(4) of evidence and
questions for the purpose of impugning the credibility
Per Lord Hope of Craighead, at pgs 1577-1578: of the complainant as a witness (see paragraph 76,
ante) and (b) the requirement in section 41(3) that
“But article 6 does not give the accused an absolute any similarity cannot reasonably be explained as a
and unqualified right to put whatever questions he coincidence (see paragraph 83, ante). The impact of
chooses to the witnesses. As this is not one of the these provisions on the right to a fair trial is

20
highlighted by the fact that they are binding on the Convention for the Protection of Human Rights and
trial judge. They are mandatory. He has no Fundamental Freedoms (1953)3 for the procurator
discretion to admit the evidence or to allow the fiscal to rely, at her trial, on the defendant's
questioning if he thinks that it is in the interests of admission compulsorily obtained under section
justice to do so. 172(2)(a). The sheriff held that no devolution issue
arose but the High Court of Justiciary allowed the
The question is whether these provisions have defendant's appeal and declared that the procurator
achieved a fair balance. This will be achieved if they fiscal had no power to lead and rely on the admission
do not go beyond what is necessary to accomplish which the defendant had been compelled to make.
their objective. That is the essence, in this context, of
principle of proportionality. Furthermore, to ask On appeal by the procurator fiscal and the Advocate
oneself whether they are fair to the defendant is to General
address one side of the balance only. On the other
side there is the public interest in the rule of law. The Held, (1) that in setting up the devolved system of
law fails in its purpose if those who commit sexual government under the Scotland Act 1998 Parliament
offences are not brought to trial because the had chosen to legislate in a way which ensured that
protection which it provides against unnecessary the Scottish Parliament and the Scottish Executive
distress and humiliation of witnesses is inadequate. acted in a way which was compatible with
So too if evidence or questions are permitted at the Convention rights and that questions as to whether
trial which lie so close to the margin between what is any act or proposed act was incompatible with the
relevant and permissible and what is irrelevant and Convention might be resolved as devolution issues
impermissible as to risk deflecting juries from the under the system laid down in Schedule 6; that one of
true issues in the case. The high rate of acquittals in the devolved matters was the system of criminal
rape cases before section 41 was introduced suggests prosecution for which the Lord Advocate, a member
that juries are not immune from temptation, and that of the Scottish Executive, was responsible and it was
they are quite likely to draw inferences from clear that it was the intention of Parliament that acts
evidence about a complainant's sexual behaviour on of the Lord Advocate in prosecuting offences should
occasions other than that of the alleged rape which be subject to judicial control under the devolved
the law now recognises they should not draw.” system; that it was sufficient to satisfy the test for
whether a devolution issue had arisen within the
meaning of paragraph 1 of Schedule 6 to the 1998
Act for there to be a question as to whether or not a
Brown v Stott [2001] 2 WLR 817 purported or proposed exercise of a function by a
member of the Scottish Executive was
"incompatible" with a Convention right and there was
The staff of a superstore suspected that the defendant no need to inquire whether some other person or
had stolen a bottle of gin and called the police. On public authority, such as the court, also had
arrival the police noticed that the defendant appeared responsibility for giving effect to the same
to have been drinking alcohol and asked her how she Convention right; and that, accordingly, the
had come to the store. She said she had travelled by defendant had raised a devolution issue.
car and pointed to a car which she said was hers. She
was charged with theft and taken to the police station (2) Allowing the appeal, that the right to a fair trial
where, pursuant to section 172(2)(a) of the Road under article 6 of the Convention was absolute and
Traffic Act 19881, she was required to say who had could not be compromised, but the privilege against
been driving the car at the time when she would have self-incrimination, being a right implied from article
travelled in it to the superstore. She admitted that she 6, was not absolute; that where necessary to achieve a
had been the driver. The defendant was then required legitimate aim within the public interest the privilege
to provide a specimen of breath for analysis. The test could be subject to limited qualifications; that any
was positive and the defendant was charged with such qualification had to be proportionate to
driving while her breath alcohol level was above the achieving its aim; that the high incidence of death
prescribed limit contrary to section 5(1)(a) of the and injury on the roads caused by the misuse of
1988 Act. The defendant gave notice that she motor vehicles was a serious social problem and
intended to raise a devolution issue, pursuant to there was a clear public interest in the enforcement of
Schedule 6 to the Scotland Act 19982, as to whether road traffic legislation enacted to address that
it would be incompatible with her right to a fair problem; that section 172 of the Road Traffic Act
hearing under article 6(1) of the European 1988 allowed for the putting of one simple question,

21
the answer to which did not in itself incriminate the one could scarcely conceive of the rule of law
person to whom it was put, improper coercion could without there being a possibility of access to the
not be used to obtain an answer, the trial judge would courts. These statements assert the right of the
exclude any evidence so obtained and the penalty for individual to the protection of the rule of law against
refusing to provide the information was moderate and the state. But the other side of the balance, which
non-custodial; that consequently section 172, respects the public interest in the rule of law and the
properly applied, did not represent a disproportionate general interest of the community, was also
legislative response to the problem of maintaining recognised by the court in Salabiaku. It said in
road safety; and that, accordingly, it would not be paragraph 28 of its judgment in that case that the
incompatible with the defendant's rights under article Convention did not prohibit presumptions of fact or
6 for the procurator fiscal to lead and rely on of law in principle, and that they were not
evidence of her admission obtained under incompatible with article 6(2) so long as they were
compulsion pursuant to section 172(2)(a) that she had confined within reasonable limits which take account
been the driver of the motor vehicle of what is at stake and maintain the rights of the
defence. In Pullar v United Kingdom (1996) 22
per Lord Hope of Craighead, at pg 850 EHRR 391, 403, para 32, the court said that the
principle that a tribunal is to be presumed to be free
“As these provisions show, and as the judges have of personal prejudice or partiality unless there is
repeatedly emphasised in the common law context, evidence to the contrary reflects "an important
the common law principle of fairness has always to element of the rule of law", which is that verdicts of a
be reconciled with the interests of society in the tribunal should be final and binding unless set aside
detection and punishment of crime: Lawrie v Muir by a superior court on the basis of irregularity or
1950 JC 19, 26 per Lord Justice General Cooper; HM unfairness. A similar approach to the function of the
Advocate v Hepper 1958 JC 39, 40 per Lord rule of law can be seen in the fact that the court has
Guthrie. The rule of law requires that every person consistently recognised that, while the right to a fair
be protected from invasion by the authorities of his trial is absolute in its terms and the public interest can
rights and liberties. But the preservation of law and never be invoked to deny that right to anybody under
order, on which the rule of law also depends, requires any circumstances, the rights which it has read into
that those protections should not be framed in such a article 6 are neither absolute nor inflexible.
way as to make it impractical to bring those who are
accused of crime to justice. The benefits of the rule It is important therefore to distinguish between those
of law must be extended to the public at large and to Convention rights which are to be regarded as
victims of crime also. absolute and those which are not. The scheme of
article 6, as Starmer, European Human Rights Law
Now that the common law rights of the accused have (1999), pp 118-119, para 3.88, has explained, is that
been reinforced by the right under article 6(1) of the the rights listed in articles 6(2) and 6(3) which are
Convention to a fair trial it is necessary to re-examine supplementary to article 6(1) are not intended to be
and revise these principles. The scheme of the article an exhaustive list of the requirements of fairness in
involves the application of different tests at each criminal proceedings. Those which are listed in
stage of the inquiry from those applied by the article 6(3) are described as minimum rights. Once
common law. It requires that a more structured the meaning of those rights has been determined,
approach be taken when the overriding test of there is no room in their case for any implied
fairness is applied to the facts. But it is important to modifications or restrictions. But the European Court
recognise nevertheless that the rule of law lies at the and the European Commission have interpreted the
heart of the Convention. article broadly by reading into it a variety of other
rights to which the accused person is entitled in the
The final indent of the preamble to the Convention criminal context. Their purpose is to give effect, in a
refers to the common heritage of the European practical way, to the fundamental and absolute right
countries whose governments were signatory thereto to a fair trial. They include the right to silence and
of "political traditions, ideals, freedom and the rule of the right against self-incrimination with which this
law". In Salabiaku v France 13 EHRR 379, 388, para case is concerned. As these other rights are not set
28 the European Court of Human Rights said that out in absolute terms in the article they are open, in
article 6, by protecting the right to a fair trial, was principle, to modification or restriction so long as this
intended to enshrine "the fundamental principle of the is not incompatible with the absolute right to a fair
rule of law". In Golder v United Kingdom 1 EHRR trial. As Starmer, European Human Rights Law, p
524, 536, para 35 the court said that in civil matters 182, para 4.75, has observed, where express

22
restrictions are provided for by the Convention there
is no room for implied restrictions. But where the
European Court has read implied rights into the
Convention, it has also read in implied restrictions on
those rights. REFERENCE RE LANGUAGE
The test of compatibility with article 6(1) which is to RIGHTS UNDER THE MANITOBA
be applied where it is contended that those rights ACT, 1870
which are not absolute should be restricted or (1985) 19 D.L.R. (4th) 1
modified will not be satisfied if the modification or
limitation "does not pursue a legitimate aim and if Per the Supreme Court of Canada, at pgs 21-
there is not a reasonable relationship of
proportionality between the means employed and the The Rule of Law
aim sought to be achieved": Ashingdane v United
Kingdom 7 EHRR 528, 547, para 57. In Sporrong 1. The principle
and Lonnroth v Sweden 5 EHRR 35, 52, para 69 the
court referred to the striking of a fair balance The difficulty with the fact that the unilingual Acts of
"between the demands of the general interest of the the Legislature of Manitoba must be declared invalid
community and the requirements of the protection of and of no force or effect is that, without going
the individual's fundamental rights". As that case and further, a legal vacuum will be created with
Salabiaku v France 13 EHRR 379 both demonstrate, consequent legal chaos in the Province of Manitoba.
that approach has been used to support the view that, The Manitoba Legislature has, since 1890, enacted
although the presumption of innocence in article 6(2) nearly all of its laws in English only. Thus, to find
is stated in absolute terms, it is not to be regarded as that the unilingual laws of Manitoba are invalid and
prohibiting the use of reverse onus clauses so long as of no force or effect would mean that only laws
they are confined within reasonable limits which enacted in both French and English before 1890
strike a fair balance between these competing would continue to be valid, and would still be in
demands and requirements. The relevant principles force even if the law had purportedly been repealed
described in Ashingdane were restated by the court in or amended by a post-1890 unilingual statute; matters
Lithgow v United Kingdom (1986) 8 EHRR 329, that were not regulated by laws enacted before 1890
393, para 194 and again in Fayed v United Kingdom would now be unregulated by law, unless a pre-
18 EHRR 393, 429, para 65. confederation law or the common law provided a
rule.
I would hold therefore that the jurisprudence of the
European Court tells us that the questions that should The situation of the various institutions of provincial
be addressed when issues are raised about an alleged government would be as follows: the courts,
incompatibility with a right under article 6 of the administrative tribunals, public officials, municipal
Convention are the following: (1) is the right which is corporations, school boards, professional governing
in question an absolute right, or is it a right which is bodies, and all other bodies created by law, to the
open to modification or restriction because it is not extent that they derive their existence from or purport
absolute? (2) if it is not absolute, does the to exercise powers conferred by Manitoba laws
modification or restriction which is contended for enacted since 1890 in English only, would be acting
have a legitimate aim in the public interest? (3) if so, without legal authority…..
is there a reasonable relationship of proportionality
between the means employed and the aim sought to In the present case, declaring the Acts of the
be realised? The answer to the question whether the Legislature of Manitoba invalid and of no force or
right is or is not absolute is to be found by examining effect would, without more, undermine the principle
the terms of the article in the light of the judgments of the rule of law. The rule of law, a fundamental
of the court. The question whether a legitimate aim principle of our Constitution, must mean at least two
is being pursued enables account to be taken of the things. First, that the law is supreme over officials of
public interest in the rule of law. The principle of the government as well as private individuals, and
proportionality directs attention to the question thereby preclusive of the influence of arbitrary
whether a fair balance has been struck between the power. Indeed, it is because of the supremacy of law
general interest of the community in the realisation of over the government, as established in s. 23 of the
that aim and the protection of the fundamental rights Manitoba Act, 1870, and s. 52 of the Constitution
of the individual.”

23
Act, 1982, that this court must find the (1979), at pp. 212-3. The rule of law simply cannot
unconstitutional laws of Manitoba to be invalid and be fulfilled in a province that has no positive law.
of no force and effect.
The constitutional status of the rule of law is beyond
Second, the rule of law requires the creation and question. The preamble to the Constitution Act, 1982
maintenance of an actual order of positive laws states:
which preserves and embodies the more general ‘Whereas Canada is founded upon principles that
principle of normative order. Law and order are recognize the supremacy of God and the rule of law:’
indispensable elements of civilized life. "The Rule of
Law in this sense implies ... simply the existence of This is explicit recognition that "the rule of law [is] a
public order." (I. Jennings, The Law and the fundamental postulate of our constitutional
Constitution, 5th ed. (1959), at p. 43.) As John Locke structure": per Rand J. in Roncarelli v. Duplessis
once said, "A government without laws is, I suppose, (1959), 16 D.L.R. (2d) 689 at p. 707, [1959] S.C.R.
a mystery in politics, inconceivable to human 121 at p. 142. The rule of law has always been
capacity and inconsistent with human society" understood as the very basis of the English
(quoted by Lord Wilberforce in Carl Zeiss-Stiftung v. Constitution characterising the political institutions of
Rayner & Keeler Ltd., [1966] 2 All E.R. 536 (H.L.) England from the time of the Norman Conquest: A.
at p. 577). According to Wade and Phillips, V. Dicey, The Law of the Constitution, 10th ed.
Constitutional Administrative Law, 9th ed. (1977), at (1959), at p. 183. It becomes a postulate of our own
p. 89: constitutional order by way of the preamble to the
‘... the rule of law expresses a preference for law and Constitution Act, 1982, and its implicit inclusion in
order within a community rather than anarchy, the preamble to the Constitution Act, 1867, by virtue
warfare and constant strife. In this sense, the rule of of the words "with a Constitution similar in principle
law is a philosophical view of society which in the to that of the United Kingdom".
Western tradition is linked with basic democratic
notions.’ Additional to the inclusion of the rule of law in the
preambles of the Constitution Acts of 1867 and 1982,
It is this second aspect of the rule of law that is of the principle is clearly implicit in the very nature of a
concern in the present situation. The conclusion that constitution. The Constitution, as the supreme law,
the Acts of the Legislature of Manitoba are invalid must be understood as a purposive ordering of social
and of no force or effect means that the positive legal relations providing a basis upon which an actual
order which has purportedly regulated the affairs of order of positive laws can be brought into existence.
the citizens of Manitoba since 1890 will be destroyed The founders of this nation must have intended, as
and the rights, obligations and other effects arising one of the basic principles of nation building, that
under these laws will be invalid and unenforceable. Canada be a society of legal order and normative
As for the future, since it is reasonable to assume that structure: one governed by rule of law. While this is
it will be impossible for the Legislature of Manitoba not set out in a specific provision, the principle of the
to rectify instantaneously the constitutional defect, rule of law is clearly a principle of our Constitution.
the Acts of the Manitoba Legislature will be invalid
and of no force or effect until they are translated, re- This court cannot take a narrow and literal approach
enacted, printed and published in both languages. to constitutional interpretation. The jurisprudence of
the court evidences a willingness to supplement
Such results would certainly offend the rule of law. textual analysis with historical, contextual and
As we stated in the Patriation Reference, supra, at p. purposive interpretation in order to ascertain the
46 D.L.R., pp. 805-6 S.C.R.: intent of the makers of our Constitution…..

‘The "rule of law" is a highly textured expression ... In other words, in the process of constitutional
conveying, for example, a sense of orderliness, of adjudication, the Court may have regard to unwritten
subjection to known legal rules and of executive postulates which form the very foundation of the
accountability to legal authority.’ Constitution of Canada. In the case of the Patriation
Reference this unwritten postulate was the principle
Dr. Raz has said: "'The rule of law' means literally of federalism. In the present case it is the principle of
what it says: the rule of the law ... It has two aspects: rule of law.
(1) that people should be ruled by the law and obey
it, and (2) that the law should be such that people will 2. Application of the principle of the rule of law
be able to be guided by it": The Authority of Law

24
It is clear from the above that: (i) the law as stated in would be faced with chaos and anarchy if the legal
s. 23 of the Manitoba Act, 1870 and s. 52 of the rights, obligations and other effects which have been
Constitution Act, 1982, requires that the unilingual relied upon by the people of Manitoba since 1890
Acts of the Manitoba Legislature be declared to be were suddenly open to challenge. The constitutional
invalid and of no force or effect, and (ii) without guarantee of rule of law will not tolerate such chaos
more, such a result would violate the rule of law. The and anarchy.
task the court faces is to recognize the
unconstitutionality of Manitoba's unilingual laws and Nor will the constitutional guarantee of rule of law
the Legislature's duty to comply with the "supreme tolerate the Province of Manitoba being without a
law" of this country, while avoiding a legal vacuum valid and effectual legal system for the present and
in Manitoba and ensuring the continuity of the rule of future. Thus, it will be necessary to deem temporarily
law… valid and effective the unilingual Acts of the
Legislature of Manitoba which would be currently in
The only appropriate resolution to this Reference is force, were it not for their constitutional defect, for
for the court to fulfil its duty under s. 52 of the the period of time during which it would be
Constitution Act, 1982 and declare all the unilingual impossible for the Manitoba Legislature to fulfil its
Acts of the Legislature of Manitoba to be invalid and constitutional duty. Since this temporary validation
of no force and effect and then to take such steps as will include the legislation under which the Manitoba
will ensure the rule of law in the Province of Legislature is presently constituted, it will be legally
Manitoba. able to re-enact, print and publish its laws in
conformity with the dictates of the Constitution once
There is no question that it would be impossible for they have been translated.
all the Acts of the Manitoba Legislature to be
translated, re-enacted, printed and published
overnight. There will necessarily be a period of time
during which it would not be possible for the
Manitoba Legislature to comply with its The rule of law and access to court
constitutional duty under s. 23 of the Manitoba Act,
1870.

The vexing question, however, is what will be the Regina (Alconbury Developments
legal situation in the Province of Manitoba for the Ltd and others) v Secretary of State
duration of this period. The difficulties faced by the
Province of Manitoba are two-fold: first, all of the for the Environment, Transport and
rights, obligations and other effects which have the Regions [2001] 2 WLR 1389
arisen under the repealed, spent and current Acts of
the Manitoba Legislature will be open to challenge, In the first case a company agreed that, if planning
since the laws under which they purportedly arise are permission were granted, it would develop a disused
invalid and of no force or effect; and, second, the airfield owned by the Ministry of Defence into a
Province of Manitoba has an invalid and therefore national distribution centre. Applications were made
ineffectual legal system until the Legislature is able to the district and county councils for relevant
to translate, re-enact, print and publish its current planning permissions and to the Secretary of State for
Acts….. the Environment, Transport and the Regions, under
the Transport and Works Act 1992, for permission to
The only appropriate solution for preserving the build a rail connection. When the district council
rights, obligations and other effects which have refused and the county council failed to determine the
arisen under invalid Acts of the Legislature of applications made to them the Secretary of State
Manitoba and which are not saved by the de facto or recovered the applications for determination by him
other doctrines is to declare that, in order to uphold under paragraph 3 of Schedule 6 to the Town and
the rule of law, these rights, obligations and other Country Planning Act 1990. Groups of local
effects have, and will continue to have, the same objectors claimed that determination by the Secretary
force and effect they would have had if they had of State of the applications under both the 1990 and
arisen under valid enactments, for that period of time 1992 Acts was contrary to the right to have civil
during which it would be impossible for Manitoba to rights and obligations determined by an independent
comply with its constitutional duty under s. 23 of the and impartial tribunal guaranteed by article 6(1) of
Manitoba Act, 1870. The Province of Manitoba

25
the European Convention for the Protection of and ultimately to the electorate would be profoundly
Human Rights and Fundamental Freedoms1. The undemocratic; that the power of the High Court in
company applied for judicial review of the Secretary judicial review proceedings to review the legality of
of State's decision to entertain the applications. the decision and the procedures followed was
sufficient to ensure compatibility with article 6(1);
In the second case a company applied for planning and that, accordingly, the impugned powers of the
permission to use land as a depot for wrecked cars. Secretary of State were not incompatible with article
The Health and Safety Executive objected because 6(1).
the development was near to gas storage facilities.
The local planning authority resolved to grant Per Lord Hofffman, pg 1410-
planning permission but the Secretary of State called
in the application for determination by him pursuant “My Lords, the issue in these three appeals is
to section 77 of the 1990 Act. The company applied whether it is compatible with the Human Rights Act
for judicial review of that decision on the grounds of 1998 for Parliament to confer upon the Secretary of
incompatibility with article 6(1). State the power to make decisions which affect
people's rights to the ownership, use or enjoyment of
In the third case the Highways Agency, a branch of land. The Divisional Court has decided that article 6
the Secretary of State's department, proposed an of the European Convention requires such decisions
improvement scheme to a major road junction, the to be made by independent and impartial tribunals.
construction of which would involve the compulsory This would mean radical amendment to the system
purchase of land belonging to a company. The by which such decisions have been made for many
Highways Act 1980 and the Acquisition of Land Act years……
1981 provided that the Secretary of State was the
decision maker who would approve the scheme and Democracy and the rule of law
the draft compulsory purchase order. At the
invitation of the company the Secretary of State In a democratic country, decisions as to what the
sought a ruling as to the compatibility of the general interest requires are made by democratically
procedure with article 6(1). elected bodies or persons accountable to them.
Sometimes the subject matter is such that Parliament
The Divisional Court declared, pursuant to section 4 can itself lay down general rules for enforcement by
of the Human Rights Act 1998, that all the impugned the courts. Taxation is a good example: Parliament
powers of the Secretary of State were incompatible decides on grounds of general interest what taxation
with the provisions of article 6(1) but that the is required and the rules according to which it should
Secretary of State would not be acting unlawfully in be levied. The application of those rules, to
exercising those powers under section 6(1) of that determine the liability of a particular person, is then a
Act because section 6(2) applied. matter for independent and impartial tribunals such as
the general or special commissioners or the courts.
On appeal by the Secretary of State to the House of On the other hand, sometimes one cannot formulate
Lords general rules and the question of what the general
interest requires has to be determined on a case by
Held, allowing the appeals, that, having regard to the case basis. Town and country planning or road
jurisprudence of the European Court of Human construction, in which every decision is in some
Rights, the disputes concerned involved the respects different, are archetypal examples. In such
determination of "civil rights" within the meaning of cases Parliament may delegate the decision-making
article 6(1) of the Convention; that, although the power to local democratically elected bodies or to
Secretary of State was not himself an independent ministers of the Crown responsible to Parliament. In
and impartial tribunal, decisions taken by him were that way the democratic principle is preserved.
not incompatible with article 6(1) provided they were
subject to review by an independent and impartial There is no conflict between human rights and the
tribunal which had full jurisdiction to deal with the democratic principle. Respect for human rights
case as the nature of the decision required; that when requires that certain basic rights of individuals should
the decision at issue was one of administrative policy not be capable in any circumstances of being
the reviewing body was not required to have full overridden by the majority, even if they think that the
power to redetermine the merits of the decision and public interest so requires. Other rights should be
any review by a court of the merits of such a policy capable of being overridden only in very restricted
decision taken by a minister answerable to Parliament circumstances. These are rights which belong to

26
individuals simply by virtue of their humanity, requirement in article 1 of the First Protocol that a
independently of any utilitarian calculation. The taking of property must be "subject to the conditions
protection of these basic rights from majority provided for by law". The principles of judicial
decision requires that independent and impartial review give effect to the rule of law. They ensure
tribunals should have the power to decide whether that administrative decisions will be taken rationally,
legislation infringes them and either (as in the United in accordance with a fair procedure and within the
States) to declare such legislation invalid or (as in the powers conferred by Parliament. But this is not the
United Kingdom) to declare that it is incompatible occasion upon which to discuss the limits of judicial
with the governing human rights instrument. But review. The only issue in this case is whether the
outside these basic rights, there are many decisions Secretary of State is disqualified as a decision maker
which have to be made every day (for example, about because he will give effect to policies with which, ex
the allocation of resources) in which the only fair hypothesi, the courts will not interfere.
method of decision is by some person or body
accountable to the electorate. The question of principle

All democratic societies recognise that while there My Lords, these basic principles are the background
are certain basic rights which attach to the ownership to the interpretation of article 6(1): "In the
of property, they are heavily qualified by determination of his civil rights and obligations ...
considerations of the public interest. This is reflected everyone is entitled to a fair and public hearing
in the terms of article 1 of Protocol 1 to the within a reasonable time by an independent and
Convention: impartial tribunal established by law." Apart from
authority, I would have said that a decision as to what
“Every natural or legal person is entitled to the the public interest requires is not a "determination" of
peaceful enjoyment of his possessions. No one shall civil rights and obligations. It may affect civil rights
be deprived of his possessions except in the public and obligations but it is not, and ought not to be, a
interest and subject to the conditions provided for by judicial act such as article 6 has in contemplation.
law and by the general principles of international The reason is not simply that it involves the exercise
law.” of a discretion, taking many factors into account,
which does not give any person affected by the
“The preceding provisions shall not, however, in any decision the right to any particular outcome. There
way impair the right of a state to enforce such laws as are many such decisions made by courts (especially
it deems necessary to control the use of property in in family law) of which the same can be said. Such
accordance with the general interest or to secure the decisions may nevertheless be determinations of an
payment of taxes or other contributions or penalties.” individual's civil rights (such as access to his child:
compare W v United Kingdom (1987) 10 EHRR 29)
Thus, under the first paragraph, property may be and should be made by independent and impartial
taken by the state, on payment of compensation, if tribunals. But a decision as to the public interest
the public interest so requires. And, under the second (what I shall call for short a "policy decision") is
paragraph, the use of property may be restricted quite different from a determination of right. The
without compensation on similar grounds. administrator may have a duty, in accordance with
Importantly, the question of what the public interest the rule of law, to behave fairly ("quasi-judicially") in
requires for the purpose of article 1 of the First the decision-making procedure. But the decision
Protocol can, and in my opinion should, be itself is not a judicial or quasi-judicial act. It does not
determined according to the democratic principle by involve deciding between the rights or interests of
elected local or central bodies or by ministers particular persons. It is the exercise of a power
accountable to them. There is no principle of human delegated by the people as a whole to decide what the
rights which requires such decisions to be made by public interest requires.”
independent and impartial tribunals.

There is however another relevant principle which

must exist in a democratic society. That is the rule of
law. When ministers or officials make decisions Johnson v Gore Wood & Co (a firm)
affecting the rights of individuals, they must do so in [2001] 2 WLR 72
accordance with the law. The legality of what they
do must be subject to review by independent and
impartial tribunals. This is reflected in the Per Lord Bingham of Cornhill at pg 81

27
The rule of law depends upon the existence and
availability of courts and tribunals to which citizens
may resort for the determination of differences Boddington v. British Transport
between them which they cannot otherwise resolve.
Litigants are not without scrupulous examination of Police [1998] 2 W.L.R. 639
all the circumstances to be denied the right to bring a
genuine subject of litigation before the court. Per Lord Irvine of Lairg L.C., at pg. 652:

However, in approaching the issue of statutory

construction the courts proceed from a strong
appreciation that ours is a country subject to the rule
Regina v. Lord Chancellor, Ex parte of law. This means that it is well recognised to be
important for the maintenance of the rule of law and
Lightfoot [1999] 2 W.L.R.1126 the preservation of liberty that individuals affected by
legal measures promulgated by executive public
The applicant, who had debts of nearly £60,000 and bodies should have a fair opportunity to challenge
no significant assets, wished to present a debtor's these measures and to vindicate their rights in court
petition for bankruptcy under section 272 of the proceedings. There is a strong presumption that
Insolvency Act 1986 but could not afford to pay to Parliament will not legislate to prevent individuals
the court the deposit of £250 required under articles from doing so: "It is a principle not by any means to
8(1) and 9(b) of the Insolvency Fees Order 1986,1 as be whittled down that the subject's recourse to Her
amended, as security for the fee to be paid to the Majesty's courts for the determination of his rights is
official receiver for the performance of his duties on not to be excluded except by clear words.
the making of the bankruptcy order. She applied for a
declaration that the Order of 1986 was unlawful to
the extent that it precluded the exercise of any
discretion to waive, reduce or remit the deposit in the
case of a debtor wholly without means to pay. Burris v. Azadani [1995] 1 W.L.R. 1372
On the application: -
The defendant persistently threatened and harassed
Held, dismissing the application, that, although the plaintiff, in particular by making uninvited
access to justice was a fundamental requirement of nocturnal visits to her home. The plaintiff began
the rule of law, it did not follow that every case proceedings in the county court for nuisance and
where access to court procedures was envisaged by obtained an interlocutory injunction under section 37
statute gave rise to a constitutional right; that articles of the Supreme Court Act 19811 and section 38 of
8(1) and 9(b) of the Insolvency Fees Order 1986 were the County Courts Act 19842 restraining the
part of a self-standing scheme under the Insolvency defendant from, inter alia, assaulting, harassing or
Act 1986 which was not concerned with the threatening her or communicating with her and
adjudication of general disputes but constituted a prohibiting him from entering or remaining within
benign administrative system for the relief of debtors 250 yards of her home. The defendant did not seek
and the fair treatment of their undisputed creditors; to challenge or vary the terms of the order but
that there could be no constitutional objection to repeatedly acted in breach of it so that, in committal
requiring a petitioner to contribute to the cost of proceedings brought by the plaintiff, a suspended
administration of the scheme; and that, accordingly, custodial sentence was imposed on him. On two
articles 8(1) and 9(b) infringed no constitutional right subsequent occasions he cycled along the road past
and were not unlawful. the plaintiff's home in breach of the order. In fresh
committal proceedings the judge rejected the
Per Laws J. at pg 1135: defendant's contention that the county court had no
jurisdiction to impose the term excluding him from
Access to justice is a fundamental requirement of the the vicinity of the plaintiff's home. The judge
rule of law. Its imperative rests upon the need for directed that the defendant immediately serve the
objective and independent adjudication of disputes suspended sentence and imposed an additional
between man and man, and between man and state. custodial sentence in respect of each of the two
subsequent breaches.

28
 In such a situation the court may properly judge that
On the defendant's appeal: - in the plaintiff's interest - and also, but indirectly, the
defendant's - a wider measure of restraint is called
Held, varying the judge's order, that, since the county for.”
court had jurisdiction under section 38 of the County
Courts Act 1984, as substituted, and section 37 of the
Supreme Court Act 1981 to grant interlocutory Guerra (Lincoln) and Wallen (Brian)
injunctive relief and since the court's power was not
limited to restraining conduct which was in itself v The State (No 2) (1994) 45 WIR 400
tortious or otherwise unlawful, an exclusion zone
order might be made so long as such restraint of a JUDICIAL COMMITTEE OF THE PRIVY
defendant's conduct was judged necessary to protect a COUNCIL
plaintiff's legitimate interest; that, since the defendant LORD GOFF OF CHIEVELEY, LORD LLOYD OF
had not sought to challenge or modify the injunction, BERWICK AND LORD NOLAN
he was bound by its terms; that his breaches of the 25, 26 JULY 1994
exclusion zone term were deliberate and
contumacious but that, since he had not repeated his The petitioners, who had been convicted of murder
earlier breaches of other parts of the injunction, the and sentenced to death, applied to the High Court by
judge's order activating the suspended sentence constitutional motion challenging the validity of the
would be set aside. execution of their death sentences. The motion was
dismissed and they appealed to the Court of Appeal.
Pending the determination of their appeal, the Court
Per Sir Thomas Bingham M.R., at pgs 1380-1381: of Appeal made a conservatory order directing that
the sentence of death should not be carried out until
“Neither statute nor authority in my view precludes after the determination of their appeal to that court.
the making of an "exclusion zone" order. But that The Court of Appeal reserved its judgment on the
does not mean that such orders should be made at all appeal. The petitioners unsuccessfully sought an
readily, or without very good reason. There are two undertaking from the Attorney-General that the
interests to be reconciled. One is that of the sentences would not be executed until all appellate
defendant. His liberty must be respected up to the procedures had been exhausted. They then petitioned
point at which his conduct infringes, or threatens to the Judicial Committee for a conservatory order to
infringe, the rights of the plaintiff. No restraint prevent the execution of their sentences pending an
should be placed on him which is not judged to be appeal to the Judicial Committee, in the event that the
necessary to protect the rights of the plaintiff. But Court of Appeal dismissed their appeal and itself
the plaintiff has an interest which the court must be declined to make such a conservatory order.
astute to protect. The rule of law requires that those
whose rights are infringed should seek the aid of the Held that the Privy Council would not encroach upon
court, and respect for the legal process can only the jurisdiction of the Court of Appeal, but (in order
suffer if those who need protection fail to get it. to ensure that the jurisdiction of the Judicial
That, in part at least, is why disobedience to orders of Committee as the final appellate tribunal under the
the court has always earned severe punishment. Constitution should be protected) a conservatory
Respect for the freedom of the aggressor should order would be made directing that the sentences of
never lead the court to deny necessary protection to death should not be carried out on the petitioners
the victim. until after the determination of their appeal to the
Judicial Committee; however, the conservatory order
Ordinarily, the victim will be adequately protected by would only take effect in the event that the Court of
an injunction which restrains the tort which has been Appeal dismissed the petitioners’ appeals and
or is likely to be committed, whether trespass to the declined to make such conservatory order and was
person or to land, interference with goods, dependent upon an undertaking by the petitioners as
harassment, intimidation or as the case may be. But to the due processing of their appeal to the Judicial
it may be clear on the facts that if the defendant Committee.
approaches the vicinity of the plaintiff's home he will
succumb to the temptation to enter it, or to abuse or Their lordships reserved their reasons.
harass the plaintiff; or that he may loiter outside the
house, watching and besetting it, in a manner which
might be highly stressful and disturbing to a plaintiff.

29
26 July 1994. The following judgment was execution granted by Hosein JA On reading a faxed
delivered. copy of the order of the Judicial Committee, the
Court of Appeal adjourned the Attorney-General’s
Lord Goff of Chieveley delivered the reasons of the application until 28 March. On 28 March, the
Board. On 18 May 1989 the two petitioners, Brian Judicial Committee adjourned the petitioners’
Wallen and Lincoln Guerra, were convicted of application for leave to appeal from the order of
murder at Port-of-Spain assizes and were sentenced Hosein JA until 25 April, and extended the
to death. On 7 June 1989 notices of appeal against conservatory order until after the determination of the
their convictions were lodged. Their appeals were petition on 25 April.
dismissed by the Court of Appeal on 2 November
1993 (see page 370, ante). On 21 March 1994 On 31 March the Court of Appeal gave judgment on
petitions by both petitioners for special leave to the Attorney-General’s application (see page 392,
appeal against conviction were dismissed by the ante). They concluded that Hosein JA had erred in
Judicial Committee of the Privy Council. On the granting leave to the petitioners to appeal to the
same day, attorneys acting for the petitioners wrote to Judicial Committee without recourse to the full Court
the Inter-American Commission of Human Rights, of Appeal, but decided, since the Judicial Committee
and to the United Nations Human Rights Committee, was already seized of the matter, not to set aside the
complaining of violations of their human rights. order of Hosein JA.

At 14.00 hours on 24 March 1994 warrants were read On 18 April, Jones J dismissed the petitioners’
to the two petitioners for their execution at 07.00 constitutional motion, and refused a stay of execution
hours the following morning, 25 March. On the same pending the exercise by the petitioners of their right
day, 24 March, constitutional motions were filed on to appeal to the Court of Appeal. On 25 April, the
behalf of both petitioners at the Registry of the High stay granted by the Judicial Committee lapsed, but
Court in Trinidad, claiming that the carrying out of the Attorney-General undertook that no execution
the executions pursuant to the warrants would would take place until the hearing of an application to
constitute a violation of their constitutional rights. the Court of Appeal for a stay; and on 29 April the
Their lordships understand that this was on the basis Court of Appeal by consent granted a conservatory
of the decision of the Judicial Committee in Pratt v order directing the sentence of death be not carried
Attorney-General (1993) 43 WIR 340, in which it out until after the determination of the appeal to the
was held that an execution following a very long Court of Appeal. Attempts made on behalf of the
delay could constitute inhuman punishment and so petitioners to obtain an undertaking from the
would be unlawful under the Constitution of Jamaica, Attorney-General that no execution would take place
a similar provision being contained in the pending any appeal to the Judicial Committee proved
Constitution of Trinidad and Tobago. to be unsuccessful.

A summons was immediately filed on behalf of the On 9 June, the Court of Appeal reserved judgment on
petitioners asking for a conservatory order staying the the petitioners’ constitutional motion. Following the
execution of the petitioners pending the execution of Glen Ashby on 14 July, the petitioners
determination of their constitutional motions. At on 19 July again sought an undertaking from the
22.00 hours on 24 March the summons was heard by Attorney-General that no executions would be carried
Lucky J, who refused to grant a 401 conservatory out pending the determination of all appellate
order. Notice of appeal to the Court of Appeal was proceedings, including an appeal to the Judicial
filed immediately. The appeal was heard at 01.00 Committee; but such an undertaking was refused.
hours on 25 March by Hosein JA, sitting as a single
judge of the Court of Appeal. At 03.25 hours, Hosein Judgment by the Court of Appeal on the petitioners’
JA dismissed the appeal, but gave leave to appeal to constitutional motion is now scheduled to be given in
the Judicial Committee of the Privy Council, and the near future. On the information available to their
granted a conservatory order for 48 hours pending an lordships, it appears probable that it will be given at
appeal to the Judicial Committee. At 05.25 hours 09.30 hours today, 26 July 1994; but it is possible
(10.25 hours British summer time) the Judicial that it may not be given until the same time on 27
Committee granted a conservatory order staying July.
execution for four days pending an appeal to the
Judicial Committee. At about 06.00 hours the It is against this background that counsel for the
Attorney-General moved the full Court of Appeal on petitioners came before the Judicial Committee
an application to set aside the 48-hour stay of yesterday, 25 July, asking for a conservatory order

30
402 directed to preventing their execution pending before them such argument as he thought fit that an
the determination of an appeal from the Court of order in the form asked for by the petitioners was
Appeal, in the event that the Court of Appeal should beyond the jurisdiction of their lordships; but it
dismiss their appeal and should then itself not grant transpired that, while counsel was instructed not to
such a conservatory order. consent to such a course being taken, he had no
instructions to oppose it with reasoned argument.
If the Court of Appeal should dismiss the petitioners’
appeal, they are entitled to appeal to the Judicial In these circumstances their lordships had to
Committee as of right. However, in the light of consider, without the benefit of argument from the
recent decisions of the courts of Trinidad, it does not Attorney-General, whether it was within the
appear to be the normal practice for a court to grant a jurisdiction of the Board to make the order asked for.
stay of execution pending an appeal to a higher court, They first considered 403 whether sufficient
even where the appellant is under a sentence of death. jurisdiction had been vested in them by virtue of the
In these circumstances, and particularly having leave to appeal to the Judicial Committee granted by
regard to the recent execution of Glen Ashby, their Hosein JA. It seemed quite possible that this was so;
lordships were much concerned that, if the but unfortunately, since a copy of the order of Hosein
petitioners’ appeal to the Court of Appeal were to be JA was not available for the Board, the point was not
dismissed, the petitioners might be executed before sufficiently clear for the Board to proceed on that
they had an opportunity to exercise their right of basis. However they concluded that, if the order was
appeal to the Judicial Committee. Their lordships so expressed as not to take effect until after the Court
therefore considered what steps were open to them to of Appeal had itself declined to exercise its
secure that such an event, which would plainly jurisdiction to grant a conservatory order, such an
constitute the gravest breach of the petitioners’ order by the Board could not constitute any
constitutional rights, and would frustrate the exercise encroachment upon the jurisdiction of the Court of
by the Judicial Committee of its appellate Appeal. It was, as their lordships have already
jurisdiction, should not occur. stressed, a matter of great anxiety to them that no
such encroachment should take place, and only when
Naturally their lordships were most concerned, as they were satisfied that it would not do so did they
they were in the case of Ashby, that any order they decide that they were free to accede to the
should make would be within their jurisdiction, and petitioners’ application for a conservatory order in
would not in any way trespass upon the jurisdiction the form asked for by them. But in any event, as has
of the Court of Appeal, for whose judges they already been explained, only when it became plain
entertain great respect. However, first of all, since that no other course was open to them to ensure that
the Attorney-General was represented before them by the jurisdiction of the Judicial Committee, as the final
counsel, they inquired about his position with regard Court of Appeal under the Constitution of Trinidad
to the application by the petitioners for a and Tobago, should be protected in this matter and
conservatory order. Since it then transpired that the available for the enforcement of the petitioners’
Attorney-General opposed the making of such an rights under the Constitution, did they decide to take
order, their lordships next inquired whether the that course.
Attorney-General was prepared to solve the problem
by giving an undertaking not to carry out the It was for these reasons that, at the conclusion of the
executions; but it was made plain to their lordships hearing yesterday, they announced their decision as
that no such undertaking would be forthcoming. follows:
Their lordships next considered whether it would be (a) in the event of the Court of Appeal
practicable to wait until after the Court of Appeal had dismissing the petitioners’ appeal and not granting
given its decision, both on the petitioners’ appeal immediately thereupon the petitioners’ application
and, if that was dismissed, on the petitioners’ dated 25 July 1994 for a conservatory order staying
inevitable application for a stay of execution; but their execution; and
having regard to the circumstances in which Ashby (b) on the petitioners undertaking by counsel in
had been executed (which showed in particular that such an event to appeal to the Judicial Committee of
executions may now be carried out in Trinidad at the Privy Council against the order dismissing their
short notice) and the difficulties of communication appeal and to file all relevant documents in
which became apparent in that case, they regretfully accordance with the time limits set out in the relevant
concluded that it would not be safe so to wait before rules,
themselves making a conservatory order. They a conservatory order be granted directing that the
invited counsel for the Attorney-General to place sentence of death be not carried out on the petitioners

31
until after determination of such appeal by the he does not do so this court will. A judge or any
Judicial Committee of the Privy Council. court for that matter must be trusted to act judicially
and properly.
Order accordingly.
To pre-empt the jurisdiction of this court by
proceeding to make the application to the Privy
Council before this court has had an opportunity to
Wallen and Another v Baptiste and consider a similar application is, to say the lease,
improper conduct on the part of attorneys for the
Others (No 2) (1994) 45 WIR 405 appellants. Such conduct, unfortunately gives the
unmistakable impression that this court should not be
COURT OF APPEAL OF TRINIDAD AND trusted to deal with such matters on its own. This
TOBAGO court has always performed its judicial functions
BERNARD CJ, HAMEL-SMITH AND impartially and in accordance with the law and
GOPEESINGH JJA should be trusted to continue to do so. Attorneys’
27 JULY 1994 conduct can only be viewed as a determined effort to
undermine and erode public confidence in the very
445 institution, the jurisdiction of which they have
After dismissing Guerra’s appeal their Lordships sought to invoke for the protection of the appellants’
made the following remarks: rights.

Addendum: Motion for leave to appeal to the Privy It is indeed unfortunate that their lordships did not
Council and for a conservatory order staying the appear to consider the full implications of their order
execution before embarking on this course of action. This court
is patently aware that the appellants have a right of
The court has been asked to grant leave to appeal to appeal to the Privy Council. Such a right is clearly
the Judicial Committee of the Privy Council (‘the set out in the Constitution of this country and for a
Privy Council’) and to grant a conservatory order court, more so the highest court of this land,
staying the execution of the appellants pending such unwittingly (we trust) to convey the impression that
an appeal. We have been informed by counsel for the this court is not capable of or cannot be trusted to
respondents that there already exists an order from ensure that that right is respected is certainly a sad
the Privy Council which indicates that a conservatory day for the administration of justice in this country.
order staying the execution of the appellants will
automatically come into force should this court not There is no way of ascertaining precisely what
grant such an order (Guerra and Wallen v The State impression was conveyed to their lordships by
No 2 page 400, ante) and, counsel submits, to accede attorneys representing the appellants when the
to the request for a stay in the circumstances would petition was presented on 25 July but, if their
be an exercise in futility. lordships’ declaration of extreme anxiety about
trespassing on this court’s jurisdiction is any
This court has had the opportunity to read the said indication of that impression, it is clear that their
order and the reasons for the Privy Council making lordships recognised that jurisdiction did not vest in
the said order. them until an adjudication thereon had been made by
the full Court of Appeal. It is unfortunate that their
While their lordships have expressed anxiety not to lordships preferred to ‘assume’ jurisdiction in the
encroach on this court’s jurisdiction and have sought manner in which they have sought to do rather than
to found such jurisdiction by making a contingent await this court’s ruling.
order, the effect of same is to pre-empt this court’s
exercise of its discretion in relation to this particular We think that it would be futile to purport to exercise
application. In other words, this court has been any discretion in this matter in view of the subsisting
mandated to exercise its discretion in a particular order of the Privy Council.
manner. That a court should be compelled to so do is
incomprehensible. This court cannot in similar In the circumstances we would grant leave to appeal
circumstances imagine itself assuming jurisdiction to to the Privy Council and accordingly we make an
order a judge of the High Court to exercise his order in terms of paragraph 1 of the notice of motion
discretion in a particular way by directing him that if dated and filed on 25 July 1994.

32
 bound to fail; that if a court refused a stay of
execution of a death sentence until final
determination of a constitutional motion it should
Reckley v. Minister of Public Safety nevertheless grant a short stay of a few days to enable
an appeal to be brought against that refusal; that the
and Immigration [1995] 3 W.L.R. 390 allegation in the petitioner's motion that the delay in
1995 June 8; 13 carrying out the death sentence constituted inhuman
or degrading treatment or punishment contrary to
article 17(1) of the Constitution was plainly hopeless
The petitioner was convicted of murder and since neither the legal system nor the government
sentenced to death in November 1990. The Court of was to blame for any delay which had occurred and
Appeal of The Bahamas in 1991 dismissed his appeal his case had properly not been referred to the
against conviction and sentence. His application for advisory committee until after determination of the
special leave to appeal against conviction was proceedings which might have affected its decision;
dismissed by the Judicial Committee of the Privy but that whether the ground relating to the advisory
Council in 1992. Since the legality of carrying out committee was arguable depended upon the decision
death sentences in The Bahamas was being of the Judicial Committee in another appeal yet to be
challenged in other proceedings before the Privy heard; and that, accordingly, a conservatory order
Council and the Attorney-General had undertaken would be granted directing that the sentence of death
that no executions would take place before those be not carried out on the petitioner until seven days
proceedings had been determined, the petitioner's after the determination of that appeal, and further
case was not referred to the Advisory Committee on hearing of the petition would be stood over until after
the Prerogative of Mercy pursuant to article 92(1) of the decision in that case.
the Constitution of the Commonwealth of The
Bahamas1 until April 1995, after the Judicial Per Lord Goff at pgs. 393 & 395:
Committee had held that it was lawful to carry out
death sentences there. In May a warrant for the The petitioner's case, both before the courts in The
execution of the petitioner's sentence was issued. He Bahamas and before their Lordships, has been based
applied by originating motion to the Supreme Court on the fact that article 28 of the Constitution gives
under article 28(1) of the Constitution of The him a constitutional right to bring proceedings in the
Bahamas for redress alleging that carrying out the Supreme Court alleging infringement of the basic
sentence would be unconstitutional on the grounds rights assured to him by articles 16 to 27 of the
that to execute him 4 years after he had been Constitution and a constitutional right of appeal in
sentenced to death would contravene his rights under such cases, if necessary to the Privy Council. It is
article 17, and that he should have been informed of argued that in death penalty cases it must follow that
the material placed before the advisory committee a stay of execution must be granted pending the
and allowed to make representations before it had disposal of the constitutional motion (including all
tendered its advice to the minister. The petitioner rights of appeal) since otherwise the constitutional
applied for a stay of execution until final right is rendered nugatory.
determination of his constitutional motion, but the
judge refused to grant a stay and that decision was Their Lordships accept that, if the constitutional
upheld by the Court of Appeal. motion raises a real issue for determination, it must
be right for the courts to grant a stay prohibiting the
On the petitioner's petition to the Judicial Committee carrying out of a sentence of death pending the
for a stay of execution: - determination of the constitutional motion. But it
does not follow that there is an automatic right to a
Held, adjourning the petition, that a stay of execution stay in all cases. If it is demonstrated that the
prohibiting the carrying out of a sentence of death constitutional motion is plainly and obviously bound
should be granted pending the determination of a to fail, those proceedings will be vexatious and could
constitutional motion which raised a real issue, even be struck out. If it can be demonstrated to the court
if the court from which the stay was sought from whom a stay of execution is sought that the
considered that the motion was ultimately likely to be constitutional motion is vexatious as being plainly
dismissed, but there was no automatic right to a stay and obviously ill-founded, then in their Lordships'
even in death penalty cases and the court should view it is right for the court to refuse a stay even in
refuse a stay if it were satisfied that the constitutional death penalty cases. Since the decision of their
motion was plainly and obviously misconceived and Lordships in Pratt v. Attorney-General for Jamaica

33
[1994] 2 A.C. 1 the postponement of the carrying out Per Lord Millet, at pg 142:
of the death penalty can have a profound effect on the
question whether it would be inhuman or degrading The second is a matter of our own domestic law. I
treatment or punishment to execute the convicted wish to express my profound disagreement with some
man given the lapse of time since conviction and of the observations made by the Court of Appeal in
sentence. As Pratt v. Attorney-General for Jamaica regard to what they saw as an impermissible attempt
itself makes clear, delay caused by "frivolous and to interfere with the government's legislative
time wasting resort to legal proceedings" by the programme. This raised an important constitutional
accused provides no ground for saying that execution issue concerning the relationship between the
after such delay infringes the constitutional right: see executive and the judiciary. The relevant
pp. 29-30. However, their Lordships would constitutional doctrine is encapsulated in a passage
emphasise that a refusal of a stay in a death penalty from Dworkin's Law's Empire (1998), p 9:
case is only proper where it is plain and obvious that
the constitutional motion must fail. In cases where “The rule of law requires that state coercion shall
the motion raises a fairly arguable point, even if the always be backed by law. The state's force must not
court hearing the application for a stay considers the be used or withheld, no matter how useful that would
motion is ultimately likely to fail, the case is not be to the ends in view, no matter how beneficial those
appropriate to be decided under the pressures of time ends, except as licensed or required by lawi e by
which always attends applications for a stay of valid legislation or decisions of the courts having the
execution….. effect of making law.”

Finally, their Lordships would add a word as to the It is the responsibility of the judges to ensure that this
procedure to be adopted in cases where application is principle is observed and to inquire into the validity
made for a stay of execution in a death penalty case. of any law which is invoked by the state to support its
If the first instance judge or the Court of Appeal actions.”
reach the view that the constitutional motion is so
hopeless that no stay should be granted, it does not
follow that it is inappropriate to grant a short stay to
enable their decision to be challenged on appeal. In
the present case, great difficulty was encountered by
the petitioner in convening a Court of Appeal in The Jaroo v Attorney General of
Bahamas and a Board of the Privy Council with Trinidad and Tobago (2002) UKPC 5
sufficient speed to deal with the appeals in the short
time available before the time fixed for execution. In “As for the meaning of the expression “due process”,
the view of their Lordships, even if a court decides in in Boodram v Attorney General of Trinidad and
such a case not to grant a full stay until determination Tobago [1996] AC 842, 854 Lord Mustill said that it
of the constitutional motion itself, the court should had two elements which were relevant to that case,
grant a short stay (a matter of days) to enable its where the appellant was asserting his constitutional
decision to be tested on appeal. Execution of a death right to a fair trial. First, there was the fairness of the
warrant is an uniquely irreversible process. It is trial itself. Secondly, there was the availability of the
neither just nor seemly that a man's life should mechanisms which enable the trial court to protect
depend upon whether an appellate court can be the fairness of the trial from invasion by outside
convened in the limited time available. influences. In the present context, a broader meaning
is appropriate. Here too it has two aspects. First,
there is the right to protection against the abuse of
power. Secondly, there is the requirement that when
powers are exercised by the State against the
The rule of law and the legality of individual they must be exercised lawfully and not
arbitrarily.
state action
In their dissenting judgment in Thomas v Baptiste
[2000] 2 AC 1; Lord Goff of Chieveley and Lord
R v Health Secretary, Ex p Imperial Hobhouse of Woodborough explained at p 32 that the
Tobacco Ltd [2001] 1 WLR 127 phrase “due process of law” was derived from the
Magna Carta. They pointed out that it came to be

34
used in English law as a synonym for “law of the Reg. v. Home Secretary, Ex p.
land”, and that these two phrases were treated by
Coke in his Institutes (1628), Pt II, vol 1 as Muboyayi [1991] 3 W.L.R. 442
interchangeable. They added these observations at
pp 32-33: Per Lord Donaldson of Lymington M.R., at pg. 449:
“It is the law of the land which gives the “Chapters 39 and 40 of Magna Carta provide:
concept of due process its broader meaning
– for example, the principles of natural “No freeman shall be arrested or imprisoned or
justice, burden of proof etc (Holden v Hardy disseised or outlawed or exiled or in any way
(1898) 169 US 366) – and shows that it does destroyed, neither will we set forth against him or
not necessarily preclude reference in cross- send against him, except by the lawful judgment of
examination to previous convictions: his peers and by the law of the land.
Adamson v California (1947) 332 US 46. To no one will we sell, to no one will we refuse or
This approach of the courts of the United delay right or justice.”
States is fully consistent with the approach
adopted by the Constitution of the Republic The duty of the courts is to uphold this classic
and those of other Caribbean countries. The statement of the rule of law and if, in particular
due process of law provision fulfils the basic circumstances, a writ of habeas corpus is the
function of preventing the arbitrary exercise appropriate procedure for doing so, it is wholly
of executive power and places the exercise immaterial that the practical effect may be the same
of that power under the control of the as enjoining the Crown.”
judicature … The authorities show that the
requirement is that rights and liabilities,
criminal and civil, be determined in
accordance with the law of the land as a
matter of both substance and procedure.”
The rule of law and broad
The police have extensive powers in relation to the discretionary powers
seizure and detention of property. But enshrined in
the requirement of due process is a declaration of the
fundamental guarantee afforded under the Re Man Power Citizens Association
constitution to each and every individual that the (1964) 8 WIR 52
powers of the police must be exercised lawfully and
not arbitrarily. They exist to protect the interests of Per Crane J. at pgs 62-63:
society, but their exercise must respect the rights of
the individual. Where these interests come into “Paragraph 3 of the summons asks for an order that
conflict the question is ultimately one of balance, to the Registrar has wrongly or mistakenly cancelled the
be determined according to the common law of union’s registration, meaning impliedly, that the
Trinidad and Tobago. As Lord Nicholls of Registrar has been guilty of error of law in thinking
Birkenhead put it in Alleyne-Forte v Attorney he could do so when there was no evidence on which
General of Trinidad and Tobago [1998] 1 WLR 68, he could act. As I have observed earlier, it is plain
71-72: that the Registrar has crept into error when he issued
“The right of property recognised in section his first notice that he could cancel the registration
4(a) calls for a balancing exercise. A court when the only evidence before him was a mere
investigating an alleged infringement of this failure to comply under s 35. The result is that he
right is concerned to see whether in the misconstrued the law and came to a wrong
particular case a fair balance was struck conclusion, and the court will interfere in such a case.
between the requirements of the general
interest of the community and the I have pointed out that such errors are remediable by
requirements of the protection of the the court; but it has been pressed upon me that the act
fundamental rights of the individual.” of cancellation being administrative and
discretionary, I ought not on principle to interfere by
substituting my own discretion, and that I ought not
to go behind the Registrar’s statement in para 8 of his
further affidavit in reply, that he was personally

35
satisfied that the Man Power Citizens Association Per Stuart-Smith L.J., at pgs 151-152:
had wilfully and after due notice violated the
provisions of s 35 (1) of the Trades Unions Statutory power conferred for public purposes is
Ordinance, Cap 113. In giving the short answer to conferred as it were upon trust, not absolutely - that is
this, I would only say that it is a contention that has to say, it can validly be used only in the right and
neither principle nor authority in support of it, for to proper way which Parliament, when conferring it, is
accept without question any such proposition, would presumed to have intended. Although the Crown's
be a serious inroad on the Rule of Law in a lawyers have argued in numerous cases that
democratic society. unrestricted permissive language confers unfettered
discretion, the truth is that, in a system based on the
It is well known that a discretion is not to be rule of law, unfettered governmental discretion is a
exercised in a capricious and arbitrary manner, but in contradiction in terms: Reg. v. Tower Hamlets
a disciplined and responsible way. A quasi-judicial London Borough Council, Ex parte Chetnik
discretion requires that the matter shall not be a chose Developments Ltd. [1988] A.C. 858, 872B-D.
jugee, but shall be approached with an open mind.
The case in hand must be looked at on its merits and The minister exceeds his jurisdiction where: (1) he
not determined without investigation by the light of acts outside the powers which, upon the true
some pre-conceived opinion on the subject. The construction of the enabling Act, are expressly or
person who exercises it must apply his mind to the impliedly conferred as to the terms of the subordinate
case and endeavour to use his judgment in coming to legislation; (2) he seeks to achieve a purpose which,
a decision. He must not approach the matter with his upon the true construction of the enabling Act, is
mind made up. This is the very first condition outside the express or implied object of the power;
imposed on its exercise. In theory, his discretion (3) he takes irrelevant considerations, or does not
represents a compromise between the idea that he take relevant considerations, into account in the
who possesses power should be given a free hand and exercise of the power.
not tied down by narrow formulae, and the
compelling consideration that some contingent
control must be retained over him in case he acts in
an unreasonable way. I will content myself by
adopting the observations of Denning LJ, in Lee’s v Oliver Ashworth Ltd. v. Ballard Ltd.
Showmen’s Guild of Great Britain, case ([1952] 1 All [1999] 3 W.L.R. 57
ER 1175,[1952] 2 QB 329,[1952] 1 TLR 1115, 96
Sol Jo 296, CA 3rd Digest Supp), and like that
learned judge, pose and answer these questions: Per Laws L.J., at pgs. 75-76:

‘Is the Registrar of Trades Unions the sole Cases where a question arises as to the intended
judge of what constitutes wilful violation under scope of enacting words may in particular be found in
s 27 (1)(b)? Supposing he is wrong in his the public law field, where statute confers a
interpretation of it by misconstruing the section, discretionary power upon a minister or other public
and violating the principle of natural justice, authority. The discretion may be given in apparently
ought the secretary whom the Ordinance unqualified terms: "The minister may, if he thinks
recognises, and upon whom it has conferred fit . . ." But it is trite law that the grantee of a
duties to be deprived of his legal right to come statutory discretion may only use the power given
here and seek a declaration on the construction him so as to further the policy and the objects of the
of the sections?’ Act, and their objective ascertainment is always a
matter of law for the court: see Padfield v. Minister
I think not. He certainly has that right.” of Agriculture, Fisheries and Food [1968] A.C. 997.
Sometimes the statute's policy and objects are
expressed in terms; sometimes the minister's power is
made subject to the existence of a precedent fact or
facts, whose nature plainly shows the purpose for
which the power is to be exercised. But it may be that
Reg. v. Environment Sec., Ex p. neither of these features is present. In that case the
Spath Holme Ltd. (C.A.) [2000] 3 W.L.R. court will gather the statute's policy and objects from
152 a consideration of the Act's whole subject matter and
will by judicial review hold the minister to account if

36
he exceeds them. It is not a matter of implying words section 53(1) of the Act of 1933, as substituted, and
into the enacting provision which confers the quashed the decisions. The Court of Appeal
discretion. The underlying principle rests on the rule dismissed an appeal by the Secretary of State and
of law; it is that the exercise of statutory power given cross-appeals by the applicants.
by the legislature must be condemned as arbitrary
and capricious if it is done for a purpose which the On appeals by the Secretary of State and cross-
legislature did not intend, and for that reason must be appeals by the applicants:
taken to be unauthorised.
Held, (1) allowing the applicants' cross-appeals (Lord
Goff of Chieveley and Lord Lloyd of Berwick
dissenting), that a sentence of detention during Her
Majesty's pleasure passed on a young offender under
Reg. v. Home Secretary, Ex p. section 53(1) of the Children and Young Persons Act
1933 was not properly to be equated with a
Venables [1997] 3 W.L.R. 23 mandatory sentence of life imprisonment imposed on
an adult convicted of murder and Parliament in the
The applicants were convicted of the murder of a Criminal Justice Act 1991 had not intended to
young child, committed when they were both 10, and assimilate those sentences; that a sentence under
sentenced to be detained during Her Majesty's section 53(1) required the Secretary of State to
pleasure pursuant to section 53(1) of the Children and consider from time to time whether the continued
Young Persons Act 1933, as substituted.1 Following detention of the young offender was justified and,
sentence, the trial judge, in a report to the Secretary while he might in his discretion set a provisional and
of State, stated that in his view the minimum period reviewable tariff as to the period of detention to be
of detention necessary to satisfy the requirements of served by a young offender by way of punishment
retribution and deterrence was, given their youth, and deterrence, the policy adopted by him in 1993
eight years. The Lord Chief Justice, agreeing that a whereby that period would in no circumstances be
shorter period was appropriate than that for an adult, varied by reason of matters occurring subsequently to
recommended a tariff of 10 years. The Secretary of the commission of the offence was unlawful and (per
State, in the exercise of his powers under section 35 Lord Browne-Wilkinson and Lord Hope of
of the Criminal Justice Act 1991,2 as applied by Craighead) contrary to the requirement of section
sections 43 and 51, and in accordance with a policy 44(1) of the Act of 1933 that the welfare of the child
statement made by him in July 1993, informed the be taken into account; and that the decision of the
applicants of the judicial recommendations and Secretary of State in pursuance of that unlawful
invited representations as to the appropriate length of policy to fix a tariff of 15 years in the cases of the
the tariff. He informed them of extensive material applicants had been inconsistent with his duty to keep
that he had received from members of the public by their detention under continuous review and should
way of petitions and correspondence, together with be quashed.
similar expressions of opinion supplied by a national
newspaper, in support of a long or whole-life tariff. (2) Dismissing the Secretary of State's appeals (per
In July 1994, he informed each applicant that he had Lord Goff of Chieveley, Lord Steyn and Lord Hope
fixed a tariff of 15 years as appropriate to satisfy the of Craighead, Lord Lloyd of Berwick dissenting),
requirements of retribution and deterrence. In that the Secretary of State in fixing a tariff in respect
accordance with his policy, it followed that the first of the period of detention to be served by an offender
review date for each applicant would take place after by way of punishment and deterrence was exercising
12 years' detention. In proceedings by way of judicial a function comparable to that of a sentencing judge;
review the applicants sought orders of certiorari to that, while a sentencing judge might take into account
quash the decisions. They further sought declaratory general considerations of public confidence in the
relief that their sentences under section 53(1) of the administration of justice, natural justice would
Act of 1933, as substituted, were not punitive but require him to ignore as irrelevant public petitions or
reformatory and preventative in character and that in public opinion as expressed in the media; and that in
any event the Secretary of State's decisions were giving weight to public protests about the level of the
vitiated by unfairness. The Divisional Court, tariff to be fixed to the detriment of the applicants the
declining to grant declaratory relief, concluded that a Secretary of State had misdirected himself and his
tariff based on the policy adopted in the case of an exercise of discretion had been unlawful.
adult mandatory life prisoner could not be applied to
a child detained during Her Majesty's pleasure under Per Lord Steyn, at pgs. 74-75:

37
 approach. I would therefore hold that public protests
For my part the matter can be decided on a twofold about the level of a tariff to be fixed in a particular
basis. First, the material in fact taken into account by case are legally irrelevant and may not be taken into
the Home Secretary was worthless and incapable of account by the Home Secretary in fixing the tariff. I
informing him in a meaningful way of the true state conclude that the Home Secretary misdirected
of informed public opinion in respect of the tariff to himself in giving weight to irrelevant considerations.
be set in the cases of Venables and Thompson. By It influenced his decisions. And it did so to the
"informed public opinion" I mean public opinion detriment of Venables and Thompson.
formed in the knowledge of all the material facts of
the case. Plainly, the "evidence" to which the Home For this further reason I conclude that his decisions
Secretary referred did not measure up to his standard. were unlawful.
It was therefore irrelevant. But the Home Secretary
was influenced by it. He gave weight to it. On this
ground his decision is unlawful. But the objection to
the course adopted by the Home Secretary is more
fundamental. The starting-point must be to inquire The rule of law and equality before
into the nature of the power to fix a tariff which the
Home Secretary exercised. Writing on behalf of the the law
Home Secretary the Home Office explained in
correspondence placed before us that: "[The Home Fitzpatrick v. Sterling Housing
Secretary] must ensure that, at all times, he acts with
the same dispassionate sense of fairness as a Association [1998] 2 W.L.R. 225
sentencing judge." The comparison between the
position of the Home Secretary, when he fixes a tariff The plaintiff had lived with the protected tenant of a
representing the punitive element of the sentence, and flat of which the defendant was the landlord, in a
the position of a sentencing judge is correct. In fixing stable and permanent homosexual relationship since
a tariff the Home Secretary is carrying out, contrary 1976. On the tenant's death in 1994 the plaintiff
to the constitutional principle of separation of applied to take over the tenancy but the defendant,
powers, a classic judicial function: see Lord although willing to provide smaller accommodation,
Diplock's explanation of the importance of the refused. The plaintiff's application to the county court
separation of powers between the executive and the for a determination that he was entitled to succeed to
judiciary in Hinds v. The Queen [1977] A.C. 195, the tenancy was dismissed on the grounds that the
212; and Dupont Steels Ltd. v. Sirs [1980] 1 W.L.R. plaintiff had not lived with the original tenant "as
142, 157. Parliament entrusted the underlying his . . . wife or husband" within paragraph 2(2) of
statutory power, which entailed a discretion to adopt Schedule 1 to the Rent Act 19771 and that the
a policy of fixing a tariff, to the Home Secretary. But plaintiff was not "a member of the original tenant's
the power to fix a tariff is nevertheless equivalent to a family" within paragraph 3(1).
judge's sentencing power. Parliament must be
assumed to have entrusted the power to the Home On appeal by the plaintiff: -
Secretary on the supposition that, like a sentencing
judge, the Home Secretary would not act contrary to Held, dismissing the appeal (Ward L.J. dissenting),
fundamental principles governing the administration that the phrase "living with the original tenant as his
of justice. Plainly a sentencing judge must ignore a or her wife or husband" in paragraph 2(2) of
newspaper campaign designed to encourage him to Schedule 1 to the Rent Act 1977 applied only to a
increase a particular sentence. It would be an heterosexual relationship; that the term "family" in
abdication of the rule of law for a judge to take into paragraph 3(1) was to be construed in its popular
account such matters. The same reasoning must apply contemporary meaning, taking into account
to the Home Secretary when he is exercising a prevailing social attitudes and the current needs and
sentencing function. He ought to concentrate on the views of society, and meant an entity which was
facts of the case and balance considerations of public bound together by ties of kinship, including adoptive
interest against the dictates of justice. Like a judge status and step connection, marriage or a relationship
the Home Secretary ought not to be guided by a involving persons of the opposite sex cohabiting as
disposition to consult how popular a particular man and wife; that, therefore, the plaintiff had not
decision might be. He ought to ignore the high- lived with the tenant "as his . . . wife or husband"
voltage atmosphere of a newspaper campaign. The within paragraph 2(2) nor was he "a member of the
power given to him requires, above all, a detached original tenant's family" within paragraph 3(1); and

38
that, accordingly, the plaintiff could not succeed to from suit was appropriate; that none of the reasons
the tenant's protected tenancy as a statutory tenant. said to justify the immunity, viz. the "cab rank" rule,
the analogy with the immunities of witnesses and
Per Ward L.J. (dissenting), at pg. 256: others involved in legal proceedings, the duty of the
advocate to the court and the public policy against
We do not have (or should I say we do not yet have?) relitigating a decision of a court of competent
the equivalent of the Canadian Charter Rights which jurisdiction, had sufficient weight to sustain the
enables the judges to strike down offensive immunity in relation to civil proceedings; that the
discriminatory legislation. I must, therefore, be principles of res judicata, issue estoppel and abuse of
faithful to Parliament's sovereign will. Nevertheless, I process were sufficient to prevent any action being
am entitled to presume that Parliament always maintained which would be unfair or bring the
intends to conform to the rule of law as a administration of justice into disrepute; that the
constitutional principle and accordingly to respect the obstacle of proving that a better standard of advocacy
constitutional rights of the individual to enjoy would have produced a different outcome and the
equality under the law. I agree with the majority of ability of the court to strike out unsustainable claims
the Canadian Supreme Court in Egan v. Canada, 124 under C.P.R., r. 24.2 would restrict the ability of
D.L.R. (4th) 609, 631 where L'Heureux-Dubé J. said: clients to bring unmeritorious and vexatious claims
against advocates should the immunity be removed;
“Equality, as that concept is enshrined as a and that, accordingly, the public interest in the
fundamental human right within section 15 of the administration of justice no longer required that
Charter, means nothing if it does not represent a advocates enjoy immunity from suit for alleged
commitment to recognising each person's equal worth negligence in the conduct of civil proceedings.
as a human being, regardless of individual
differences. Equality means that our society cannot Per Lord Hoffman at pg. 560:
tolerate legislative distinctions that treat certain
people as second-class citizens, that demean them, “The principle of equal treatment
that treat them as less capable for no good reason, or
that otherwise offend fundamental human dignity.” My Lords, my point of departure is that in general
English law provides a remedy in damages for a
If, therefore, there is doubt about the ordinary person who has suffered injury as a result of
meaning of the words of the statute, I would strain to professional negligence. The landmark cases by
place upon them that construction which produces a which this principle was developed are Hedley Byrne
dignified result consistent with the purpose of the & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465,
Act. to which I have already referred, and Henderson v.
Merrett Syndicates Ltd. [1995] 2 A.C. 145. It
Note that the decision of the Court of Appeal in follows that any exception which denies such a
this case was overturned on appeal to the House of remedy requires a sound justification. Otherwise your
Lords. See [1999] 3 W.L.R. 1113. Lordships would fail to observe the fundamental
principle of justice which requires that people should
Arthur J.S. Hall & Co. v. Simons [2000] 3 W.L.R. be treated equally and like cases treated alike.
543
In considering whether such a justification still exists,
In this case the judge at first instance concluded that your Lordships cannot ignore the fact that you are
solicitors enjoyed an advocate's immunity from suit yourselves members of the legal profession.
and struck out the client's claims against them in Members of other professions, and the public in
negligence as an abuse of process of the court. The general, are bound to view with some scepticism the
Court of Appeal, having heard the cases together, claims of lawyers that the public interest requires
ruled that in none of the cases were the solicitors them to have a special immunity from liability for
immune from suit and restored the clients' claims. negligence. If your Lordships are convinced that
there are compelling arguments for such an
On appeals by the solicitors:- immunity, you should not of course be deterred from
saying so by fear of unfounded accusations of
Held, (1) that in the light of changes in the law of collective self-interest. But those arguments need to
negligence, the functioning of the legal profession, be strong enough to convince a fair-minded member
the administration of justice and public perceptions of the public. They cannot be based merely upon
reconsideration of the issue of advocates' immunity intuitions. This is a case in which what Professor

39
Peter Cane has described as an "empathy heuristic"
will not do. (See Oxford Essays in Jurisprudence, On appeal by the applicant:
edited by Jeremy Horder, 4th series (2000), p. 56,
footnote 35.)” Held, allowing the appeal (Lord Browne-Wilkinson
and Lord Lloyd of Berwick dissenting), that, since
the Secretary of State had accepted that the
applicant's crime had not been premeditated and had
been part of a single incident, his decision to
The rule of law and retroactivity maintain the 20-year period previously fixed as being
the minimum period to be served by the applicant to
satisfy the requirements of retribution and deterrence
had in effect amounted to an increase in the period;
Reg. v. Home Sec., Ex p. Pierson that (per Lord Goff of Chieveley) the Secretary of
[1997] 3 W.L.R. 492 State according to the 1987 policy applicable in the
case of the applicant had only been entitled to
In 1985 the applicant, then aged 21, was convicted of increase the period in the exceptional circumstance
the murder of his parents whom he had shot at home specified, not material in the applicant's case; that
at close range during the night when at least one of (per Lord Steyn and Lord Hope of Craighead) the
them was asleep. He was sentenced to two mandatory Secretary of State had no general power to increase a
life sentences to be served concurrently. In 1988, period fixed and communicated to a prisoner and (per
under the regime then in operation, the Secretary of Lord Steyn) to that extent his policy declared in 1993
State fixed a penal element of 20 years as the was unlawful; and that, accordingly, the Secretary of
minimum period to satisfy the requirements of State's decision in the case of the applicant had been
retribution and deterrence before the applicant's unlawful and should be quashed.
release on licence could be considered and declined
to adopt the 15-year period recommended by the trial Per Lord Steyn, at pgs. 521-522:
judge and the Lord Chief Justice. In July 1993 the
Secretary of State announced changes to the regime “Counsel for the Home Secretary then approached
whereby a mandatory life sentence prisoner would be the matter from a different angle. He said that the
informed at the outset of his sentence of the length of only possible complaint a mandatory life sentence
the penal element, of the substance of the judicial prisoner could have about the increase of his tariff
recommendations and of the Secretary of State's would be on the basis of the infringement of his
reasons for any departure from them and would be legitimate expectations. But, he said, this doctrine has
invited to make prior representations if no substantive effect: it merely gives protection
"exceptionally" the Secretary of State proposed to against procedural unfairness. This is a controversial
increase the penal element. In August 1993 the question. Counsel is not necessarily right: see de
applicant was informed that, although the judicial Smith, Woolf and Jowell, Judicial Review of
recommendations of 15 years would have been Administrative Action, 5th ed. (1995), pp. 570-574,
appropriate to a single premeditated offence, he had paras. 13-029-13-030; P.P. Craig, "Substantive
committed a double murder requiring the longer Legitimate Expectations in Domestic and Community
period, and he was invited to make representations Law" [1996] C.L.J. 289. This issue was only briefly
regarding the penal element. In May 1994, in mentioned in argument. It is unnecessary to express a
response to his representations, the Secretary of State view on it. I will assume that counsel for the Home
accepted that the murders had been part of a single Secretary's proposition about the doctrine of
unpremeditated offence but concluded that 20 years legitimate expectations is correct. But counsel
was the appropriate period. In proceedings by way of addressed the wrong target. The correct analysis of
judicial review the applicant sought an order of this case is in terms of the rule of law. The rule of
certiorari to quash the Secretary of State's decision on law in its wider sense has procedural and substantive
the ground that it was irrational to maintain the effect. While Dicey's description of the rule of law
original period of 20 years in the absence of the (Law of the Constitution, p. 203) is nowadays
aggravating features earlier considered and unlawful regarded as neither exhaustive nor entirely accurate
to increase the period save in exceptional even for his own time, there is much of enduring
circumstances. The judge granted the application, but value in the work of this great lawyer. Dicey's
the Court of Appeal allowed an appeal by the famous third meaning of the rule of law is apposite.
Secretary of State. He said, at p. 203:

40
“The 'rule of law,' lastly, may be used as a formula
for expressing the fact that with us the law of
constitution, the rules which in foreign countries
naturally form part of a constitutional code, are not The rule of law and obedience to
the source but the consequence of the rights of
individuals, as defined and enforced by the courts; court orders
that, in short, the principles of private law have with
us been by the action of the courts and Parliament so
extended as to determine the position of the Crown M. v. Home Office [1993] 3 W.L.R. 433
and its servants; thus the constitution is the result of
the ordinary law of the land.”
The applicant, a citizen of Zaire, came to the United
This was the pivot of Dicey's discussion of rights to Kingdom in September 1990 seeking political
personal freedom, and to freedom of association and asylum. His claim was rejected by the Secretary of
of public meeting, at pp. 206-283. It is clear therefore State, and in March 1991 his application for leave to
that in the relevant sense Dicey regarded the rule of move for judicial review of that decision was refused.
law as having both procedural and substantive effect. He was notified that he would be removed to Zaire
In a valuable essay Professor Jeffrey Jowell has re- on the evening of 1 May 1991, and on that day,
examined Dicey's theme: "The Rule of Law Today," shortly before the time at which his removal was due
in Jowell and Oliver, The Changing Constitution, 3rd to be effected, he made a renewed application to the
ed. (1994), pp. 74-77. Relying on striking modern Court of Appeal for leave to move. Immediately
illustrations Professor Jowell concluded that the rule following the dismissal of the renewed application,
of law has substantive content: see Hall & Co. Ltd v. fresh solicitors and counsel acting for him applied to
Shoreham-by-Sea Urban District Council [1964] 1 the High Court for leave to move for judicial review
W.L.R. 240; Congreve v. Home Office [1976] Q.B. on allegedly fresh grounds. Garland J. indicated that
629 and Wheeler v. Leicester City Council [1985] he wished the applicant's departure to be postponed
A.C. 1054, per Lord Templeman with whom Lord pending consideration of the application, and he
Bridge of Harwich, Lord Brightman and Lord understood counsel for the Secretary of State to have
Griffiths agreed. Wade, Administrative Law, 7th ed. given an undertaking to that effect. Counsel had no
(1994), pp. 24 et seq. and de Smith and Brazier, such instructions and did not appreciate that he had
Constitutional and Administrative Law, 7th ed. conveyed such an effect to the judge. Home Office
(1994), p. 18, are to the same effect. Unless there is officials concerned with the applicant's departure
the clearest provision to the contrary, Parliament failed to disembark him or to intercept his onward
must be presumed not to legislate contrary to the rule flight from Paris to Zaire. During the night of 1 May,
of law. And the rule of law enforces minimum the judge, being informed of the applicant's removal,
standards of fairness, both substantive and made an ex parte order requiring the Secretary of
procedural. I therefore approach the problem in the State forthwith to procure the applicant's return to the
present case on this basis. jurisdiction of the High Court and to ensure his safety
pending such return. The order gave the Secretary of
It is true that the principle of legality only has prima State liberty to apply to the judge on the morning of 2
facie force. But in enacting section 35(2) of the Act May to vary or discharge the order. On notice of the
of 1991, with its very wide power to release order, Home Office officials made arrangements for
prisoners, Parliament left untouched the fundamental the return of the applicant later that day. During the
principle that a sentence lawfully passed should not afternoon, the Secretary of State was informed of the
retrospectively be increased. Parliament must situation. Being satisfied that the underlying decision
therefore be presumed to have enacted legislation as to asylum was correct, and in reliance on legal
wide enough to enable the Home Secretary to make advice that the judge's order, being a mandatory
decisions on punishment on the basis that he would interim injunction against an officer of the Crown,
observe the normal constraint governing that had been made without jurisdiction so that, rather
function. Instead the Home Secretary has asserted a than complying with it, he might apply for its
general power to increase tariffs duly fixed. discharge as soon as possible, he cancelled the return
Parliament did not confer such a power on the Home arrangements. On his application on 3 May, the
Secretary. judge set the order aside. In committal proceedings
instituted by the applicant against the Home Office
It follows that the Home Secretary did not have the and the Secretary of State in respect of breaches of
power to increase a tariff lawfully fixed.” the undertaking not to remove him and of the order

41
requiring his return, Simon Brown J. held that, since as being the person against whom the finding of
the Crown's immunity from injunction was preserved contempt was made.
by section 21 of the Crown Proceedings Act 1947,
neither it nor its departments, ministers or officials Per Lord Templeman, at pg. 437-438:
acting in the course of their duties could be
impleaded for contempt of court. He accordingly “My Lords, Parliament makes the law, the executive
dismissed the motion. The Court of Appeal by a carry the law into effect and the judiciary enforce the
majority allowed in part an appeal by the applicant, law. The expression "the Crown" has two meanings;
holding that the Secretary of State personally, had namely the monarch and the executive. In the 17th
been guilty of contempt. century Parliament established its supremacy over the
Crown as monarch, over the executive and over the
On appeal by the Secretary of State and cross-appeal judiciary. Parliamentary supremacy over the Crown
by the applicant in respect of his application against as monarch stems from the fact that the monarch
the Home Office: - must accept the advice of a Prime Minister who is
supported by a majority of Parliament. Parliamentary
Held, dismissing the appeal and cross-appeal subject supremacy over the Crown as executive stems from
to variation of the order made by the Court of the fact that Parliament maintains in office the Prime
Appeal, (1) that even prior to the Crown Proceedings Minister who appoints the ministers in charge of the
Act 1947 an action could be brought against an executive. Parliamentary supremacy over the
officer of the Crown personally in respect of a tort judiciary is only exercisable by statute. The judiciary
committed or authorised by him although he had enforce the law against individuals, against
been acting in his official capacity, and he had not institutions and against the executive. The judges
been entitled to plead Crown immunity; that cannot enforce the law against the Crown as monarch
injunctions, including interlocutory injunctions, could because the Crown as monarch can do no wrong but
be granted and that section 21 of the Act of 1947 did judges enforce the law against the Crown as
not prevent an injunction being granted in a situation executive and against the individuals who from time
in which it could have been granted prior to the Act; to time represent the Crown. A litigant complaining
that, historically, orders of prohibition and mandamus of a breach of the law by the executive can sue the
had regularly been granted against the Crown or Crown as executive bringing his action against the
officers of the Crown acting in their official capacity minister who is responsible for the department of
and that section 31(2) of the Supreme Court Act state involved, in the present case the Secretary of
1981, on its natural interpretation, gave jurisdiction to State for Home Affairs. To enforce the law the
the court on applications for judicial review to grant courts have power to grant remedies including
injunctions, including interim injunctions, against injunctions against a minister in his official capacity.
ministers and other officers of the Crown, though that If the minister has personally broken the law, the
jurisdiction should only be exercised in limited litigant can sue the minister, in this case Mr. Kenneth
circumstances; and that, accordingly, Garland J.'s Baker, in his personal capacity. For the purpose of
order granting an interim injunction against the enforcing the law against all persons and institutions,
Secretary of State had been properly made. including ministers in their official capacity and in
their personal capacity, the courts are armed with
(2) That although a finding of contempt of court coercive powers exercisable in proceedings for
could not be made against the Crown directly, such a contempt of court.
finding could be made against a government
department or a minister of the Crown in his official In the present case, counsel for the Secretary of State
capacity; that the finding should accord with the body argued that the judge could not enforce the law by
against which the order breached had been made, injunction or contempt proceedings against the
which in the case of judicial review would normally minister in his official capacity. Counsel also argued
be the minister; that, while a finding of contempt that in his personal capacity Mr. Kenneth Baker the
could be made against a minister personally where Secretary of State for Home Affairs had not been
the contempt related to his own default, the guilty of contempt.
injunction had appropriately been granted against the
minister in his official capacity as Secretary of State My Lords, the argument that there is no power to
for the Home Department and it was the department enforce the law by injunction or contempt
for which he was responsible that had been guilty of proceedings against a minister in his official capacity
contempt; and that, accordingly, the Secretary of would, if upheld, establish the proposition that the
State for the Home Department should be substituted executive obey the law as a matter of grace and not as

42
a matter of necessity, a proposition which would publishing the information so disclosed, and to
reverse the result of the Civil War. For the reasons require them to deliver up notes made by G. which,
given by my noble and learned friend, Lord Woolf, they hoped, would reveal the identity of the
and on principle, I am satisfied that injunctions and informant and enable them to recover the missing
contempt proceedings may be brought against the document. The judge granted the orders sought. The
minister in his official capacity and that in the present first and second defendants, while complying with
case the Home Office for which the Secretary of the orders in so far as they were able, resisted the
State was responsible was in contempt. I am also disclosure order in reliance on section 10 of the
satisfied that Mr. Baker was throughout acting in his Contempt of Court Act 19811. G. indicated that he
official capacity, on advice which he was entitled to was unwilling to comply with the disclosure order
accept and under a mistaken view as to the law. In and on his application for a stay pending appeal, the
these circumstances I do not consider that Mr. Baker Court of Appeal varied the order to enable him, if he
personally was guilty of contempt. I would therefore preferred, to lodge the notes, with appropriate
dismiss this appeal substituting the Secretary of State verification, with the court in a sealed envelope until
for Home Affairs as being the person against whom final determination of his appeal. G., after
the finding of contempt was made.” consultation with officials of the National Union of
Journalists to which he belonged, and considering
himself under a professional obligation to protect the
confidentiality of his source pursuant to rule 7 of the
union's code of conduct, refused to comply with the
In re Supply of Ready Mixed order either in its original form or as varied. On the
plaintiffs' motion for his committal, the judge found
Concrete [1991] 3 W.L.R.707 him guilty of contempt of court. On the defendants'
appeals against the order for disclosure the Court of
Per Lord Donaldson of Lymington M.R., at pg. 726: Appeal held that in view of G.'s refusal to comply
with the court's order and his rejection of its
“The fundamental purpose of the contempt authority, the court would, while not dismissing his
jurisdiction of the court in the context of appeal in limine, exercise its discretion so as to refuse
disobedience of court orders is to uphold the to hear argument in support of it. The Court of
supremacy of the rule of law and the court's authority Appeal dismissed the defendants' appeals.
to administer it. It is punitive in character. That it
may provide an enforcement remedy for third parties On appeal by the defendants: -
is incidental.”
Held, (1) that although the court had a discretion to
decline to hear a litigant's appeal where he had
wilfully and contumaciously failed to comply with an
order of the court, since argument on behalf of G.
The rule of law and conscientious would have been adduced by the first and second
defendants in any event, since the plaintiffs did not
objectors oppose G. being heard, and since his appeal was
grounded on an alleged lack of jurisdiction to make
the order at all, a proper exercise of discretion
X Ltd. v. Morgan-Grampian Plc. favoured the hearing of argument on behalf of G.;
and the Court of Appeal had accordingly erred in
[1990] 2 W.L.R. 1000
refusing to hear him.
A confidential document concerning the financial (2) Allowing the appeal, that since the defendants
affairs of the plaintiffs, two private companies, was were already subject to the court's jurisdiction as
wrongfully removed from their premises and its parties properly impleaded in claims for quia timet
contents disclosed to G., a journalist, who promised injunctions to restrain them from publishing
not to reveal the identity of his informant. In order to information given in breach of confidence, the court
take action against the informant and to prevent had power to order discovery of G.'s notes for the
further disclosure the plaintiffs sought injunctive purposes of that litigation, notwithstanding that the
relief to restrain the third defendant, G., and the first plaintiffs' primary purpose in seeking disclosure was
and second defendants, the publishers of the journal to identify the source of the information; and that
on which he worked and his employers, from further, in any event, the defendants could be

43
required to make disclosure by virtue of having come twin foundations: the sovereignty of the Queen in
into possession, whether innocently or not, of Parliament in making the law and the sovereignty of
confidential information tortiously obtained and the Queen's courts in interpreting and applying the
imparted to them which had facilitated the tortious law. While no one doubts the importance of
acts of another. protecting journalists' sources, no one, I think,
seriously advocates an absolute privilege against
(3) That in considering the applicability of the disclosure admitting of no exceptions. Since the
statutory privilege against disclosure afforded to enactment of section 10 of the Act of 1981 both the
journalists by section 10 of the Contempt of Court protection of journalists' sources and the limited
Act 1981 in cases where reliance was placed on grounds on which it may exceptionally be necessary
disclosure being necessary in the interests of justice, to override that protection have been laid down by
the importance of enabling justice to be attained by Parliament. I have not heard of any campaign in the
the party seeking to exercise legal rights, whether or media suggesting that the law itself is unjust or that
not by way of legal proceedings, had to be balanced the exceptions to the protection are too widely drawn.
against the public interest in the protection of But if there were such a campaign, it should be
journalists' sources; that that public interest could fought in a democratic society by persuasion, not by
only be overridden if the judge was satisfied that disobedience to the law. Given the law as laid down
disclosure in the interests of justice was of such by section 10, who, if not the courts, is to interpret it
preponderating importance as to become a necessity; and to decide in the circumstances of any given case
but that since the potential damage to the plaintiffs' whether the protection is to prevail or whether the
business was very substantial and there remained a case is brought within one of the exceptions? The
risk of further dissemination of the plaintiffs' journalist cannot be left to be judge in his own cause
confidential information, without any and decide whether or not to make disclosure. This
counterbalancing public interest in publication, the would be an abdication of the role of Parliament and
necessity for the disclosure of G.'s notes had been the courts in the matter and in practice would be
established. tantamount to conferring an absolute privilege. Of
course the courts, like other human institutions, are
Per curiam. (i) It is the courts who are to interpret fallible and a journalist ordered to disclose his source
section 10 of the Act of 1981 and to decide in the may, like other disappointed litigants, feel that the
circumstances of any given case whether the court's decision was wrong. But to contend that the
protection is to prevail. The journalist cannot be left individual litigant, be he a journalist or anyone else,
to be judge in his own cause and decide whether or has a right of "conscientious objection" which entitles
not to make disclosure. There is no right of him to set himself above the law if he does not agree
"conscientious objection" which entitles him to set with the court's decision, is a doctrine which directly
himself above the law; and any rule of professional undermines the rule of law and is wholly
conduct enjoining a journalist to protect his unacceptable in a democratic society. Any rule of
confidential sources must impliedly be subject to professional conduct enjoining a journalist to protect
whatever exception is necessary to enable the his confidential sources must, impliedly if not
journalist to obey the orders of the court. expressly, be subject to whatever exception is
necessary to enable the journalist to obey the orders
(ii) To confine "justice" in section 10 of the Act 1981 of a court of competent jurisdiction. Freedom of
to "the technical sense of the administration of justice speech is itself a right which is dependent on the rule
in the course of legal proceedings in a court of law" is of law for its protection and it is paradoxical that a
too narrow. It is "in the interests of justice," in the serious challenge to the rule of law should be
sense in which the phrase is used in section 10, that mounted by responsible journalists.”
persons should be enabled to exercise important legal
rights and to protect themselves from serious legal Per Lord Donaldson of Lymington M.R. in the Court
wrongs whether or not resort to legal proceedings in a of Appeal [1990] 2 W.L.R. 421, at pgs. 429-432:
court of law will be necessary to attain these
objectives. “The constitutional position is clear. Parliament
makes the law and it is the duty of the courts to
Per Lord Bridge of Harwich, at pgs. 1013-1014: enforce that law, whether or not they agree with it.
Every citizen, every corporate body and every
“The maintenance of the rule of law is in every way authority, whether national or local, is entitled to
as important in a free society as the democratic campaign to change the law, but until the law is
franchise. In our society the rule of law rests upon changed it is their duty to obey it. That is what

44
parliamentary democracy and the rule of law is all duty as a citizen, which is to accept the authority of
about. Each one of us surrenders a part of his Parliament to decide in general terms the
personal freedom of action and choice and in return is circumstances in which he, as a journalist, should
protected by the law from the consequences of others divulge information given to him in confidence and
seeking to exercise an unfettered freedom of action to accept the authority of the courts, derived from
and choice. Parliament, to give effect to the will of Parliament in
individual cases. If this undertaking was to be
The law and the courts have long recognised that implied from the fact that he was a journalist, this
there is a public interest in newspapers being able to implication can only arise if the profession as a whole
obtain and publish information which in some is perceived to regard the authority of Parliament and
circumstances overrides the public interest in the the courts as subordinate to that of individual
maintenance of confidentiality. Parliament journalists. In other words, journalistic ethics are
recognised this by section 10 of the Contempt of known to be at variance with the rule of law in this
Court Act 1981 which protects journalists from a particular respect……..
requirement to reveal their sources of information,
save in exceptional circumstances. The scope of two ….The journalists' claim to be bound in honour to
of the exceptions falls to be considered in this appeal, protect their sources is of very long standing. It is
but that is not the point for present purposes. That also unique amongst the professions. Doctors, whose
point is that from time to time situations will arise in relationship with patients has a much greater claim to
which someone has to decide whether or not those confidentiality, accept without reservation that in
exceptional circumstances exist. Is that someone to exceptional circumstances the courts may require
be the courts or is it to be the newspapers, the N.U.J. them to break this confidence: see paragraph 81(f) of
or individual journalists? If the rule of law has any the code of professional conduct, Professional
meaning, the answer must be the courts. Conduct and Discipline: Fitness to Practise, March
1989 ed. Bankers, who are at least as professional as
Mr. Goodwin has said that he does not believe that journalists, accept the same qualification: see
the information was supplied to him pursuant to some Tournier v. National Provincial and Union Bank of
criminal enterprise or competitor-inspired England [1924] 1 K.B. 461. Why are journalists
malevolence towards the plaintiffs. This suggests different?
that, if he had reached a contrary conclusion, he
would, or at least might, have felt free to identify his The journalists' claim is said to be grounded upon a
source. But this raises the same question. Is it for the true appreciation of where the public interest lies,
journalist to determine this issue or is it for the notwithstanding that it may march hand in hand with
courts? the commercial interests of the media. So be it. But
surely the final arbiter of the public interest can only
On the facts as known to me at present, I find it very be Parliament. Parliament considered the matter in
difficult to reach any conclusion other than that the 1981 and section 10 of the Contempt of Court Act is
revelation of such obviously commercially sensitive Parliament's answer. Journalists may not agree with
information, culled from a document which was that section, the victims of leaks may not agree with
clearly in the highest degree confidential and must it, judges may not agree with it, but it is society's
have been known to the source to be such, was answer given through the mouth of Parliament and
inspired either by personal or by competitor who are journalists, victims or judges to set
malevolence. What the source was seeking to achieve themselves up as knowing better? In a parliamentary
was not the imparting of the information to Mr. democracy personal and professional honour surely
Goodwin as an individual, although that would have equates with the acceptance of, and obedience to, the
been quite unjustifiable, but its general dissemination rule of law…….
through "The Engineer" or some other such
publication. The source's objective can only have Last, but by no means least, it is often said that
been to revenge a personal grudge or to assist disobedience to the law is an honourable course if it
competitors or both. Next, he says that the is dictated by conscience and is accompanied by a
information was provided to him pursuant to an willingness to pay the penalty exacted by the law.
undertaking that he should not divulge the name of This raises two quite different issues. The first
the contact, but he does not say whether this concerns the true nature of conscientious objection.
undertaking was express or implied. If it was express The second concerns a willingness to pay the penalty.
and extended to disobeying court orders, Mr.
Goodwin was thereby in very serious breach of his

45
It is perhaps one of the hallmarks of parliamentary Again, I make no apology for repeating myself. But I
democracy that it recognises that individuals are not will elaborate the point. I believe that Lord Hailsham
just units which in the aggregate constitute the nation. once said that "the rule of law is a confidence trick."
On the contrary, the nation is merely a collective What he meant was that the rule of law depends upon
term for millions of individuals and it is individuals public confidence and public acceptance of the
who count. Consistently with this, Parliament from system whereby Parliament makes the laws, the
time to time legislates for individuals' conscientious courts enforce them and the vast majority of citizens
objections. The classic example is the man or woman accept them until they can get them changed. The
who is unable to take up arms for the nation. stance of the journalists' profession in relation to this
Parliament provides for alternative forms of service. particular law, of which it happens to disapprove,
An up to the minute example is provided by clause threatens this confidence and acceptance. This,
33 of the Human Fertilisation and Embryology Bill surely, is contrary to the highest possible public
1989. But the key characteristic of this and, I believe interest. Any widespread refusal to obey the orders of
all, forms of conscientious objection is that it profits the courts is a threat to the authority of the courts
the objector nothing. which is not any the less such a threat, because it is
coupled with an acceptance that there will be a
I had to consider this point in Francome v. Mirror penalty to be paid. This is important in terms of the
Group Newspapers Ltd. [1984] 1 W.L.R. 892, 897 public interest, but what is much more important is
and make no apology for repeating myself. I said: that it is also a threat to the authority of Parliament,
whose servants are the courts.”
“in very rare circumstances, a situation can arise in
which the citizen is faced with a conflict between Douglas L Mendes
what is, in effect, two inconsistent laws. The first law February 20, 2002
is the law of the land. The second is a moral
imperative, usually, but not always, religious in
origin. An obvious example is the priest's obligation
of silence in relation to the confessional, but others
can be given. In conducting the business of the
courts, judges seek to avoid any such conflict, but
occasionally it is unavoidable. Yielding to the moral
imperative does not excuse a breach of the law of the
land, but it is understandable and in some
circumstances may even be praiseworthy. However, I
cannot over-emphasise the rarity of the moral
imperative. Furthermore, it is almost unheard of for
compliance with the moral imperative to be in the
financial or other best interests of the person
concerned. Anyone who conceives himself to be
morally obliged to break the law, should also ask
himself whether such a course furthers his own
interests. If it does, he would be well advised to re-
examine his conscience.”

I commend that view to the journalists' profession.

I turn now to the second point - a willingness to pay
the penalty. This too arose in Francome's case. I said,
at p. 897:

“It is sometimes said . . . that all are free to break the

law if they are prepared to pay the penalty. This is
pernicious nonsense. The right to disobey the law is
not obtainable by the payment of a penalty or licence
fee. It is not obtainable at all in a parliamentary
democracy, although different considerations arise
under a totalitarian regime.”

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