The Police and Criminal Evidence Act 1984 (PACE) was an innovative and controversial attempt to regulate the investigation of crime. Two decades on, it now operates in a very different context than in the mid-1980s. Whilst legal advice has become established as a basic right of those arrested and detained by the police, the police service has become increasingly professionalised but also increasingly driven by government objectives and targets. The Crown Prosecution Service, originally established to separate prosecution from investigation,is now becoming involved in the investigative process with the power to make charge decisions.
Although the basic structure of PACE has survived, almost continual revision and amendment has resulted in a markedly different creature than that which was originally enacted. In 2007 the government embarked on a further review of PACE, promising to 're-focus the investigation and evidence gathering processes [to deliver] 21st century policing powers to meet the demands of 21st century crime'.
This collection brings together some of the leading academic experts, police officers and defence lawyers who have a wealth of experience of researching and working with the PACE provisions. They examine the critical questions and issues surrounding PACE, providing unique and exciting insights into the demands and challenges of the regulation of policing.
Contributors
David Dixon, Professor of Law, University of New South Wales - 'Authorise and Regulate: A Comparative Perspective on the Rise and Fall of a Regulatory Strategy'.
Andrew Sanders, Professor of Criminal Law and Criminology, University of Manchester. 'Can Coercive Powers be Effectively Controlled or Regulated?'.
John Coppen, Police Federation spokesperson on police custody issues. 'PACE: A View From the Custody Suite'.
John Long, Assistant Chief Constable, Avon and Somerset Constabulary 'Keeping PACE? Some Front Line Policing Perspectives'.
Barbara Wilding, Chief Constable, South Wales Police.
'Tipping the Scales of Justice? A Review of the Impact of PACE on the Police, Due Process and the Search for the Truth 1984-2006'.
Richard Young, Professor of Law and Policy Research, University of Bristol. 'Street Policing After PACE: The Drift to Summary Justice'.
Ed Cape, Professor of Criminal Law and Practice, University of the West of England. 'PACE Then and Now: 21 Years of "Re-balancing"'.
Anthony Edwards, Leading criminal defence solicitor. 'The Role of Defence Lawyers in a "Re-balanced" System'.
John Jackson, Professor of Public Law, Queen's University, Belfast. 'Police and Prosecutors after PACE: The Road from Case Construction to Case Disposal'.
The Editors
Richard Young is co-author of Criminal Justice (3rd edn, OUP, 2007), and has conducted research into various aspects of the criminal process, including legal aid decision-making, restorative justice and police complaints.
Ed Cape is author of Defending Suspects at Police Stations (5th edn, LAG, 2006), and recent research includes an evaluation of the Public Defender Service in England and Wales, and effective criminal defence in Europe.
Contents
1. Introduction 1
Ed Cape and Richard Young
2. Authorise and Regulate: A Comparative Perspective
on the Rise and Fall of a Regulatory Strategy
David Dixon
3. Can Coercive Powers be Effectively Controlled or
Regulated?: The Case for Anchored Pluralism Andrew Sanders
4. PACE: A View from the Custody Suite John Coppen
5. Keeping PACE? Some Front Line Policing Perspectives John Long
6. Tipping the Scales of Justice?: A Review of the Impact of PACE on the Police, Due Process and the Search forTruth 1984-2006 Barbara Wilding
7. Street Policing after PACE: The Drift to Summary Justice Richard Young
8. PACE Then and Now: Twenty-one Years of 'Re-balancing'Ed Cape
9. The Role of Defence Lawyers in a 'Re-balanced' System
10. Police and Prosecutors after PACE: The Road from Case Construction to Case Disposal John Jackson
Index
Case Management in the Crown Court
Edition: Criminal Law Library
Format: Paperback
Author: HH Judge Roderick Denyer QC
ISBN: 9781841137858
Publishers: Hart Publishing
Price: Ł30
Publication Date: August 2008
Publisher's Title Information
This book is not intended as an academic treatise on criminal law nor the law of evidence. It is designed instead to assist all those who work in the Crown Court in dealing with the day-to-day practical problems that arise both before and during trial. In particular it is deals with all the problems that pre-trial case management can pose as well as those management type problems that can arise during the course of a trial such as problems with jurors, witnesses and absent defendants. It deals with all the main applications such as bad character disclosure and abuse of process. As such it will be an invaluable ready reference small enough to carry about for barristers and solicitors appearing in the Crown Court, officers of the Court, Circuit judges, members of the CPS whose work brings them into daily contact with the Court and students on the BVC.
Contents
Table of Cases
Table of Legal Instruments
1. Case Management and the Criminal Procedure Rules
2. Non-Compliance with Procedural Orders and the Sanctions Available to the Court
3. The Plea and Case Management Hearing (PCMH)
4. Bad Character and Proof of Previous Convictions
5. Hearsay
6. Applications in Respect of the Previous Sexual History of a Complainant
7. Vulnerable WitnessesCompetence and Special Measures
8. Expert Evidence
9. Disclosure
10. Abuse of Process Applications
11. Changing a Plea of Guilty
12. Indications of SentenceGoodyear
13. Adjournment
14. Trial in the Absence of the Defendant
15. The Reluctant Witness
16. Contempt
17. The Jury
18. Submission of No Case to Answer
Index
The Author
Roderick Denyer started life as an academic and then practised at the common law bar for many years, taking silk in 1990. Since 2002 he has been a circuit judge based at Cardiff Crown Court. He has been a member of The Criminal Procedure Rules Committee since its inception.
Reviewer
Wanted
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Hearsay Evidence in Criminal Proceedings
Criminal Law Library
Edition: 1st
Format: Paperback
Author: JR Spencer
ISBN: 9781841138121
Publishers: Hart Publishing
Price: Ł30
Publication Date: May 2008
Publisher's Title Information
The Criminal Justice Act 2003 re-wrote the hearsay evidence rule for the purpose of criminal proceedings, enacting the recommendations of the Law Commission together with some proposals from the Auld Review. Since the new provisions came into force a body of case-law has interpreted them and, in particular, given guidance as to how the new "inclusionary discretion" should be exercised. Following the style of his earlier book about the new law on bad character evidence, the central part of Professor Spencer's book on hearsay evidence consists of section-by-section commentary on the relevant provisions of the Act. The commentary is preceded by chapters on the history of the hearsay rule, and the requirements of Article 6(3)(d) of the European Convention on Human Rights. It is followed by an appendix containing the text of the statutory provisions and a selection of the leading cases.
The Author
JR Spencer QC is Professor of Law in the University of Cambridge and a Fellow of Selwyn College. He is also the author of Evidence of Bad Character (Hart Publishing, 2006).
The Author's Preface
In 1994, the Law Commission were kind enough to engage me as a consultant on their project on the hearsay rule in criminal proceedings, and a year later I saw my input reflected in the sections of the resulting Consultation Paper where the rule was examined, the justifications for it were analysed together with the problems that it causes, the Strasbourg case law was analysed, and where readers were shown how the underlying issues are handled by the courts in France and Germany. We did not see eye to eye about the way in which the law ought to be reformed, however, and at that point we parted company. For the rest of the project, which culminated in the publication of a Report in 1997, the role of academic consultant was taken by my friend and respected colleague Professor Di Birch, of the Law Faculty at Nottingham.
The government announced that it accepted the recommendations contained in the Law Commission's hearsay Report, but then failed to implement them. In 2000, I was invited by Lord Justice Auld to be one of his consultants on the project which led to his Review of the Criminal Courts the following year. In this capacity I helped him to formulate a number of his proposals, including those for reforming the hearsay rule. On this his ideas were much more radical than those of the Law Commission four years before, favouring the abolition of the existing hearsay rule and its system of exceptions in favour of a broader 'best evidence' approach.
In his Review Auld LJ argued for a revision of the hearsay rule in the context of long-term overhaul of the whole law of criminal evidence. The Government, however, opted instead for an instant revision of parts of it: namely evidence of bad character, and the hearsay rule, major changes to both of which were made by Part 11 of the Criminal Justice Act 2003. The reforms to the hearsay rule were, in essence, the proposals of the Law Commission, but with some adaptations to incorporate some, but not all, of the proposals formulated by Auld LJ: a solution Professor Birch, in her commentary in the Criminal Law Review, described as `dishing up the Law Commission's very traditional repast with a dollop of Auld's best evidence on top'.
To cope with this new Act, the Judicial Studies Board organised a period of intense training for the judges, which took place during the first three months of 2005. Together with a number of academic colleagues, I was recruited to help with this. My part was to prepare a commentary on the new rules relating to evidence of bad character. For the reforms of hearsay evidence, this task was undertaken by two academic colleagues, Professor Di Birch and Professor David Ormerod.
It was on the crest of a wave of enthusiasm generated by this training programme that I wrote a commentary on the new law on bad character evidence, which Hart Publishing produced in the spring of 2006. SEE http://www.rjerrard.co.uk/law/hart/hart.htm#bad It was generally well received, and that encouraged me to write this companion volume on the new law on hearsay as well. As with the earlier book, much is owed to a group of friends and colleagues with whom I have discussed this area of the law, and from whose thoughts I have greatly profited. A particular word of thanks is owed to HH Judge David Radford and his brethren at Snaresbrook Crown Court, who invited me there to talk with them, and to HH Judge John Phillips, who was kind enough to read the last chapter in draft and offer many helpful comments.
The book on bad character evidence ended with an Appendix in which the leading cases interpreting the new law were reproduced. Though castigated by one academic reviewer as a waste of paper, reviewers who were practitioners said this feature made the book more useful, and so in this new book I have therefore done the same. As readers will see, the collection begins with the decision in Sellick. This was decided under the earlier law, but the statements of principle that it contains are highly relevant to the new law too, and for this reason (as well as the quality of the reasoning) I believe it deserves to stand at the head of the collection.
On the face of it, the new law on hearsay that results from Part 11 of the Criminal Justice Act 2003 is very conservative. Eight years earlier, the Civil Evidence Act 1995 completely abolished the hearsay rule for the purpose of civil proceedings. But the Criminal Justice Act 2003, by contrast, retains the rule excluding hearsay, together with its half-brother, the 'rule against narrative', and to each a list of detailed exceptions is prescribed. The Law Commission's reason for adopting this conservative approach rather than the sort of simple and radical reform later proposed by Auld LJ was, in part, 'the change of attitude that this option would require on the part of practitioners and judges'. However, the new scheme includes a general inclusionary discretion', which a court can invoke to admit any piece of hearsay evidence which falls outside the list of prescribed exceptions, if it is satisfied that the interests of justice so require. This discretionary power was envisaged by the Law Commission for use as a last resort: a 'safety-valve', as they described it. However, the emerging case law suggests that the courts are only too glad to use it; and in consequence the new law on hearsay is much more radical in practice than the narrow drafting of the main provisions might suggest. Paradoxically, it looks as if the main effect of the reform has been to produce the change of attitude which, 10 years ago, the Law Commission believed to be impossible.
JR Spencer Cambridge, November 2007
Victims' Rights, Human Rights and Criminal Justice
Reconceiving the Role of Third Parties
Edition: 1st
Format: Paperback
Author: Jonathan Doak
ISBN:1841136035
Publishers: Hart
Price: Ł30
Publication Date: April 2008
Publisher's Title Information
In recent times, the idea of 'victims' rights' has come to feature prominently in political, criminological and legal discourse, as well as being subject to regular media comment. The concept nevertheless remains inherently elusive, and there is still considerable ambiguity as to the origin and substance of such rights. This monograph deconstructs the nature and scope of the rights of victims of crime against the backdrop of an emerging international consensus on how victims ought to be treated and the role they ought to play. The essence of such rights is ascertained not only by surveying the plethora of international standards which deal specifically with crime victims, but also by considering the potential cross-applicability of standards relating to victims of abuse of power, with whom they have much in common. In this book Jonathan Doak considers the parameters of a number of key rights which international standards suggest victims ought to be entitled to. He then proceeds to ask whether victims are able to rely upon such rights within a domestic criminal justice system characterised by structures, processes and values which are inherently exclusionary, adversarial and punitive in nature.
Sexual Assault and the Justice Gap
A Question of Attitude
Edition: 1st
Format: Paperback
Authors: Jennifer Temkin and Barbara Krahé
ISBN: 9781841136707
Publishers: Hart Publishing
Price: Ł30
Publication Date: 2008
Publisher's Title Information
This book is set against the background of the 'justice gap' in sexual assault cases - the dramatic gap between the number of offences recorded by the police and the number of convictions. It seeks to examine the attitudinal problems which bedevil this area of law and possible strategies for addressing them. Written by a professor of law and a professor of psychology, it reviews evidence from socio-legal and social cognition research and presents new data drawn both from interviews with judges and barristers and from studies with prospective lawyers and members of the public. In the final part, it considers possible steps which could be taken to improve rape trials and change public attitudes towards sexual assault.
These include:
Improving the enforcement of laws that provide legal protection for the complainant;
Changing the law to permit evidence of the good character of the complainant;
Screening jurors with a view to deciding whether those who are likely to be implacably biased against the complainant or the defendant should serve;
Introducing expert evidence in the courtroom to educate jurors and the public about rape;
Improving the training of judges and barristers;
Education of the public to dispel misconceptions about rape.
The Authors
Jennifer Temkin is a Professor of Law at the University of Sussex. Called to the Bar in 1971, she lectured at the London School of Economics before joining the University of Sussex. Professor Temkin was a member of the External Reference Group, Home Office Sex Offences Review, 1999-2000.
Barbara Krahé is a Professor of Social Psychology at the University of Potsdam in Germany. She has been researching sexual violence over the past 25 years. Professor Krahé also has a long connection with the Department of Psychology at Sussex.
Contents
Part I The Background
1 The Justice Gap In Sexual Assault Cases
1.1 The Problem Of Attrition
1.2 The Legal Background
1.3 Summary And Conclusions
2 Stereotypes, Myths And Heuristics In The Perception Of Sexual Assault
2.1 The 'Real Rape' Stereotype
2.2 Rape Myths And Negative Attitudes About Rape Victims
2.3 Rape Stereotypes And Police Responses To Rape Complaints
2.4 The Attribution Of Blame To Victims Of Rape
2.5 Heuristics In The Process Of Decision-Making About Sexual Assault
2.6 Summary And Conclusions
3 The Problem Of The Jury In Sexual Assault Trials
3.1 The Methodology Of Jury Studies
3.2 Dealing With The Evidence
3.3 The Role Of Expert Testimony
3.4 The Judge's Summing-Up And Non-Verbal Cues
3.5 Reaching A Verdict
3.6 Summary And Conclusions
Part II New Evidence
4 A Question Of Attitude: Prospective Lawyers
4.1 Study 1: Undergraduate Law Students And The Real Rape Stereotype
4.2 Study 2: Schematic Processing By Vocational Law Students
5 A Question Of Attitude: The General Public
5.1 Study 3: Exploring Schematic Processing By Members Of The Public
5.2 Study 3: Evaluating A Rape-Awareness Poster Campaign
5.3 General Discussion And Conclusions From The Three Studies
6 Rape, Rape Trials And The Justice Gap: Some Views From The Bench And Bar
6.1 Methodology Of The Interview Study
6.2 The Perceived Problems
6.3 Attitudes Towards Rape And The Justice Gap
6.4 Summary And Conclusions
7 Judges, Barristers And The Evidential Law In Action In Rape Cases
7.1 Corroboration
7.2 Sexual History
7.3 Third Party Disclosure
7.4 Summary And Conclusions
Part III Some Possible Solutions
8 Law Reform
8.1 Evidential Issues
8.2 Consent And Intoxication
8.3 Summary And Conclusions
9 Improving Rape Trials
9.1 Abolishing The Jury In Sexual Assault Cases
9.2 Screening And Selecting Jurors
9.3 Assisting The Jury
9.4 Making The Jury Accountable
9.5 Educating Legal Professionals
9.6 Appointment Of More Female Judges?
9.7 Summary And Conclusions
10 Changing Public Attitudes
10.1 Rape Prevention Programmes For College Students
10.2 School-Based Interventions
10.3 Educating The General Public About Rape: Using The Media
10.4 Changing Norms About Sexual Aggression
10.5 Summary And Conclusions
11 Conclusion
Homicide Law in Comparative Perspective
Criminal Law Library - No. 6
Edition: 1st
Format: Hardback
Author: Edited by Jeremy
Horder
ISBN: 9781841136967
Publishers: Hart Publishing
Price: Ł45
Publication Date: Dec 2007
Publisher's Title
Information
A number of jurisdictions
world-wide have changed or are considering changing their homicide laws.
Important changes have now been recommended for England and Wales, and these
changes are an important focus in the book, which brings together leading
experts from jurisdictions across the globe (England and Wales; France;
Germany; Scotland; Australia; The United States of America; Canada; Singapore
and Malaysia) to examine key aspects of the law of homicide.
Key areas examined include the structure of the law of homicide and the
meaning of fault elements. For example, the definition of murder, or its
equivalent, is very different in France and Germany from the definition used
in England and Wales. French law, like the law in a number of American
states, ties the definition of murder to the presence or absence of
premeditation, unlike the law in England and Wales. Unlike most other
jurisdictions, German law makes the killer's motive, such as a sadistic
sexual motive, relevant to whether or not he or she committed the worst kind
of homicide. England and Wales is in a minority of English-speaking
jurisdictions in that it does not employ the concept of 'wicked'
recklessness, or of extreme indifference, as a fault element in homicide.
Understanding these often subtle differences between the approaches of
different jurisdictions to the definition of homicide is an essential aspect
of the law reform process, and of legal study and scholarship in the criminal
law. Every jurisdiction tries to learn from the experience of others, and
this book seeks to make a contribution to that process, as well as providing
a lively and informative resource for scholars and students.
The Author
Jeremy Horder is Professor
of Criminal Law at the University of Oxford, Porjes Foundation Fellow and Tutor
in Law, Worcester College, Oxford, Chairman of the Faculty of Law, University
of Oxford, 1998-2000 and currently Law Commissioner for England and Wales,
2005.
Part of
the Preface
This Volume emerges from the
work that was done by the contributors towards the writing of the Law Commission's final report on the law of homicide in England and Wales, Murder,Manslaughter and Infanticide. The Law Commission, Murder, Manslaughter and Infanticide(Law Com No 304, 2006)A number of jurisdictions world-wide have been reviewing or revising their homicide
laws, and each has engaged in comparative analysis. An important new contribution to this process can be made by compiling a detailed scholarly analysis of the law in a range of jurisdictions (both recently reformed and unreformed). In addition, Chapter 2 provides an
overview of how the Law Commission for England and Wales justified its conclusions as to how the law of homicide should be reformed.
Key
questions, answered in different ways in different jurisdictions, confront
would-be reformers of the law of homicide. For example: Should 'murder'
be the most serious homicide offence? Alternatively, should there be aggravated versions of murder, above murder
itself? In England and Wales, as in a number of former common law
countries, the first question is answered 'yes' whereas in France and Germany, by way
of contrast, 'yes' is the answer to the second question.
Should
murder be confined to an intention to kill? Once again (broadly speaking), in
France and Germany the answer is 'yes', whereas in Scotland and in England and Wales, as in Australian states,
the answer is 'no'. Although the
answer is also 'no' under American state codes, under Canadian law and under
the Singaporean penal code, the approach in the latter jurisdictions is more
highly sophisticated (which is not necessarily to say that it is better).
These
essays explore these and many other issues where different jurisdictions have
taken a diverse range of approaches to key issues in the law of homicide. The essays
are not so regimented as to ensure that each author explores precisely the same issues in the same depth. Authors have been
given scope to develop their contributions in a way that brings out important
or pressing issues within the jurisdiction under consideration. This will
enable those engaged in comparative analysis, for the purposes of law reform,
to gauge where they are most likely to find material and discussion more
detailed and advanced in some jurisdictions than in others.
When speaking of comparisons
between legal systems, and of homicide trials in particular, Sir James Stephen
once wrote, 'The whole temper and spirit of the French and the English differ
so widely, that it would be rash for an Englishmen to speak of trials in France
as they actually are'. (Sir James
Stephen, History of the Criminal Law of England (London, 1883), i at 77.) In this volume, the contributors have not taken such a gloomy view
of attempts to understand 'foreign' laws of homicide. They are right not to
have done so.
Review
Homicide Law in Comparative Perspective is a collection of essays that explore how different jurisdictions throughout the world handle important issues related to homicide law. Many jurisdictions worldwide are in the process of reviewing and changing their homicide laws. In accordance with this, book aims to provide a detailed scholarly account of the issues that many jurisdictions face, how these relate to the issues of other jurisdictions, and what strategies and changes are being implemented to handle these issues.
The editor of the text, Jeremy Horder, is a Law Commissioner for England and Wales, and Professor of Criminal Law at the University of Oxford. The various authors of the text are leading experts in homicide law from around the world including: England, Scotland, Australia, the United States of America, Canada, and Singapore. By employing experts from around the world, the text avoids many of the potential pitfalls of having one legal scholar provide a comparative analysis of their own legal system to a variety of others, where the various nuances and cultural underpinnings of each jurisdiction might be unclear or unknown to the scholar.
The text begins with an overview of how similar issues of homicide law have been dealt with across different jurisdictions. The focus of the chapter is on the Law Commission's recommendations for the law of homicide in England and Wales compared to the provisions currently used in many other jurisdictions. One central topic examined in this chapter is the concern over mitigating motives, as opposed to aggravating ones when determining premeditation, as well as how these factors should be considered in determining sentences. Other issues comparatively examined include the definition of murder as a singular offences as opposed to one of varying degrees, the extent to which different degrees should exist, and the determining factors of these degrees.
Building on this discussion, the England and Wales Law Commission's recommendations for a three-tier structure for homicide are then detailed. The structure of this system is similar in terminology to that of the American system in that it includes first degree murder, second degree murder, and manslaughter; however, nuances do exist between the recommended English system and the current American system. This three-tier system would replace the two-tier system of murder and manslaughter that England has traditionally had, as the current system provides less specificity of partial defences among other reasons.
The third chapter explores the French legal system with particular attention to laws relating to intentional killings, which refer to all killings with intent to kill and do nothing less than to cause death. French legal doctrine does not contain a definition of what intention means, nor do they impose a mandatory life sentence for intentional homicide, as is done in England and many other countries that no longer have capital punishment. The punishments attached to intentional killings are variable and at the discretion of a jury. There are also a range of general defences often used in the French legal system that limit the amount of killings that are considered to be intended. Such a system is consistent with those being proposed by many liberal legal reformers in England.
The remainder of the book continues to explore the homicide laws of different jurisdictions in a similar fashion to the previous chapter. The countries examined include: Germany, the United States of America, Canada, Australia, Scotland, and Singapore. Among these countries several interesting distinctions in the legal handling of homicide exist. In Germany, the severity of the murder charge is determined by a catalogue of qualifying factors. The United States of America still continues to use capital punishment, or the death penalty, as punishment for certain severities of murder. The Canadian homicide laws are described as “badly organised, tortuous and tautologous” and “barnacle-encrusted” (p. 142) suggesting a need for major reform. The Australian legal system is comprised of several relatively distinct jurisdictions with slight variations in their interpretations and handlings of homicide. In Scotland, two forms of killing are recognized including murder and culpable homicide, which is similar to the English system of murder and manslaughter. Unlike other sentencing in Scotland, murder carriers both a minimum and maximum sentence reducing the flexibility and discretionary power of judges to rule on varying degrees of homicide. The Singaporean Penal Code, built on Indian legal structure and case law, is based on determining fault, which allows for several degrees of murder with attached mandatory, minimum or maximum sentences.
While previous generations of legal scholars may have sought to reveal the apparent superiority of their own legal system over all others, this text provides interesting comparative analysis of homicide law in different jurisdictions by a group of scholars working in locations around the world. The aim is not to prove that the laws of their own country are better, but to help make the laws of their country better. This book should be of particular interest to anyone involved in making legal policy decisions related to homicide law in any jurisdiction around the world. It should also be of interest to students and scholars of homicide law of any of the particular jurisdictions discussed in the book, as well as for those interested in comparative analysis of different legal systems.
Curtis Fogel
Judicial Review in Northern
Ireland
Edition: HB
Author: Gordon Anthony
ISBN:9781841136172
Publishers: Hart Publishing
Price: Ł50.00
Publication Date: January 2008
Publisher's Title Information
This is the first book to
be written on the principle and practice of judicial review in Northern
Ireland. It collates and discusses the ever-burgeoning body of Northern
Ireland case law and divides into eight chapters that consider the purposes
of judicial review; the nature of the public-private divide in Northern Ireland
law; the judicial review procedure; the grounds for review; and remedies.
Much of the case law here is unique to Northern Ireland, and the book
identifies actual and potential differences between Northern Ireland case law
and that of England and Wales. The book also integrates Human Rights Act 1998
jurisprudence as has been developed by the Northern Ireland courts and by the
House of Lords; and it situates much of that case law within wider debates
about judicial review as play out in related practitioner and/or academic
journals.
The book has been written primarily for practitioners of judicial review and
uses numbered paragraphs for ease of reference. The book is, however, of a
wider interest and it will be a valuable resource for academics and students
too. Much of the Northern Ireland case law has been concerned with
contentious political issues, and the courts have had to consider difficult
questions of the constitutional limits to the judicial role in review
proceedings. The book should therefore be of use not just to practitioners
but also to those involved in the study of judicial reasoning in different
jurisdictions (both within the UK and elsewhere).
From the Foreword by Rt Hon Sir Brian Kerr, Lord Chief Justice of Northern
Ireland
"This important new work by Gordon Anthony will be of inestimable
assistance to practitioners and academic commentators alike. It provides a
magisterial review of developments in the field of judicial review in this
jurisdiction, particularly since the coming into force in October 2000 of the
Human Rights Act 1998...(this and other topics are] handled with great
authority and clarity...it is certain that this will become an indispensable
reference text for those practising in judicial review in this jurisdiction and
elsewhere."
Contents
Foreword vii
Preface ix
Acknowledgements xv
Table of Cases xxiii
Table of Statutes xlvii
Table of Statutory Rules and Statutory
Instruments lv
Table of International Treaties lviii
Abbreviations lxi
1.
Judicial Review in Northern Ireland: Purposes, Sources of Law, and
Constitutional
Context
[1.01]
Introduction 1
[1.04]
What is Judicial Review, and What are its Purposes? 2
[1.11]
Sources of Law 6
[1.12]
Statute Law 6
[1.14]
The Common Law 8
[1.16]
EU Law 9
[1.20]
The ECHR 11
[1.23]
Unincorporated International Treaties and Customary International Law 13
[1.25]
Statutory Interpretation 14
[1.28]
‘Constitutional Statutes’ 16
[1.29]
The European Communities Act 1972 17
[1.30]
The Human Rights Act 1998 18
[1.33]
The Northern Ireland Act 1998 20
[1.35]
Conclusion 21
2.
When is the Judicial Review Procedure Used? The Public/Private Divide and
Effective
Alternative Remedies
[2.01]
Introduction 23
[2.03]
The Problem of the Province of Judicial Review 23
[2.06]
Tests for Issues Amenable to Judicial Review 25
[2.07]
The ‘Source of Power’ Test: Statute 25
[2.10]
The ‘Nature of the Issue’ Test and Public Sector Employment Disputes 37
[2.14]
The ‘Public Interest’ Test 40
[2.18]
‘Public Functions’ and ‘Emanations of the State’ 42
[2.22]
Section 6 of the Human Rights Act 1998 44
[2.26]
The Northern Ireland Act 1998; and the Freedom of Information
Act
2000 47
[2.28]
Procedural Exclusivity and Effective Alternative Remedies 47
[2.30]
Procedural Exclusivity and the ‘Anti-technicality’ Provision 48
(A)
Anthony Prelims 19/12/07 10:47 Page xvii
[2.34]
Effective Alternative Remedies 50
[2.36]
Satellite Litigation 52
[2.37]
Conclusion 52
3.
The Judicial Review Procedure
[3.01]
Introduction 55
[3.04]
Deciding to Proceed 56
[3.05]
Is there a Decision, Act, Failure to Act, or Other Measure? 56
[3.09]
Does the Decision or Other Measure Sound in Public Law? 59
[3.10]
Would Review Proceedings be Appropriate? 59
[3.14]
Pre-Action Protocol 61
[3.17]
The Leave Stage 63
[3.18]
Making the Application 63
[3.21]
Criminal Causes 64
[3.22]
The Human Rights Act 1998; and ‘Devolution Issues’ 65
[3.24]
The Onus of Proof and the ‘Arguable Case’ Threshold 67
[3.27]
Delay 68
[3.30]
Standing 70
[3.31]
Urgent Cases 71
[3.32]
Where Leave is Granted 71
[3.34]
Costs 72
[3.36]
Notice Parties 74
[3.38]
Third Party Interveners 74
[3.40]
Where Leave is Refused: Appeals 76
[3.42]
Interim Matters 76
[3.42]
Remedies 76
[3.42]
Stays, Interim Declarations, and
Interim Injunctions 76
[3.45]
The European Communities Act 1972
and EU Law 78
[3.47]
The Human Rights Act 1998 79
[3.48]
Discovery 80
[3.48]
The General Position 80
[3.53]
The Human Rights Act 1998 82
[3.55]
Public Interest Immunity 83
[3.56]
The Freedom of Information Act 2000 84
[3.59]
Cross-examination and Interrogatories 86
[3.61]
The Substantive Hearing 87
[3.61]
Papers for the Hearing 87
[3.63]
The Grounds for Review 87
[3.64]
Standing 88
[3.64]
The General Position 88
[3.67]
Section 7 of the Human Rights Act
1998 89
[3.71]
Third Party Interveners 92
[3.72]
Remedies 92
[3.73]
The Range of Remedies 93
[3.74]
The Judicature (Northern Ireland)
Act 1978 and RSC Order 53:
The Prerogative Orders, Declarations, and
Injunctions 93
xviii
Contents
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[3.75]
The Judicature (Northern Ireland)
Act 1978 and RSC Order 53: Damages 94
[3.76]
The Judicature (Northern Ireland)
Act 1978 and RSC Order 53:
Other Disposals 94
[3.77]
The European Communities Act 1972
and EU Law 95
[3.79]
The Human Rights Act 1998 and the
ECHR 96
[3.81]
The Prerogative orders, Declarations, and Injunctions: Their
Discretionary
Nature 97
[3.82]
Utility 97
[3.84]
Conduct of Applicant 98
[3.85]
Delay 98
[3.86]
Alternative Remedies 99
[3.88]
Appeals 100
[3.91]
Costs 101
[3.93]
Conclusion 101
4.
The Grounds for Review Introduced
[4.01]
Introduction 103
[4.03]
The Constitutional Purposes of, and the Limits to, the Grounds for
Review
104
[4.04]
‘Root Concepts’ of the Common Law and the ‘Rule of Law’ 104
[4.06]
Non-statutory Power and the Rule of
Law: The Royal Prerogative 105
[4.09]
The Rule of Law and Parliamentary
Sovereignty 108
[4.10]
Ouster Clauses and Time-limits 108
[4.14]
Context-sensitivity: Justiciability, Reviewability, and Deference 111
[4.18]
National Security 112
[4.20]
Law, Politics, and ‘Soft-edged’
Review 114
[4.22]
Powers, Duties, and Discretion 115
[4.23]
Powers and Duties 116
[4.26]
Duties and Discretion 118
[4.29]
Errors of Law and Errors of Fact 120
[4.30]
Errors of Law 121
[4.30]
The Anisminic Principle 121
[4.32]
Courts of Law 122
[4.35]
‘Domestic’ Decision-makers 124
[4.36]
Errors of Fact 124
[4.38]
Precedent Fact 125
[4.40]
Relevancy 126
[4.42]
‘No Evidence’ 127
[4.43]
Error of Material Fact 127
[4.45]
Conclusion 128
5.
Illegality
[5.01]
Introduction 131
[5.04]
‘Constitutional Statutes’ and Illegality 132
[5.06]
The European Communities Act 1972 133
[5.11]
The Human Rights Act 1998 136
Contents xix
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[5.12]
Primary Legislation 136
[5.15]
Subordinate Legislation 138
[5.17]
Public Authorities 139
[5.21]
The Northern Ireland Act 1998 142
[5.23]
Acts of the Assembly/Orders in
Council 143
[5.25]
Statutory Rules 145
[5.27]
Public Authorities 146
[5.31]
Subordinate Legislation and Illegality 148
[5.38]
Discretion and Illegality 152
[5.40]
Relevancy 153
[5.44]
Purposes 155
[5.47]
Bad Faith 157
[5.49]
Delegation 157
[5.52]
Fettering of Discretion 159
[5.55]
Conclusion 160
