Public Law 2012-2013
Book Information
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Public Law and Human Rights Statutes 2012-2013
4th Edition
Author: Philip Jones
Publication date: 15th August 2012
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How to use this Book
A Statute Book can be of great assistance during your studies, and of invaluable help during your exams (if you are allowed to take it into the examination room). But there is also the danger of thinking that nothing can go wrong because you have the relevant documents in front of you. If you do not know how to use it, then just having the statute book will not help you very much. Here are a few things you have to consider — and guidance on how to deal with them.
- Not every instrument in your statute book has the same rank and position in the legal system. In Public Law in particular, it is very important to be aware of the various sources of the law and their differences. Revisit your lecture notes and your textbook on these points, if you are in doubt! Are international treaties immediately applicable? Where do Statutory Instruments feature in the hierarchy of norms? What about the Codes to the Police and Criminal Evidence Act?
- Not everything is regulated by statute law! That may seem obvious, but in areas which are well regulated through Acts of Parliament (e.g. police powers), it is easy to forget that common law powers exist as well. In other words, don't just rely on the words of the statute — make sure you understand the structure of the law, which your textbook on Public Law and your lecture notes should provide.
- There is usually more in a Statute than meets the eye. Many students focus on one particular section of a Statute at the expense of other relevant provisions, and lose valuable marks in the process.
Here is a tip: when you are looking up a section in your exam, make it a habit to read the five preceding and the five subsequent sections, too. Statutes are often arranged in a systematic manner, so the adjoining sections may contain useful information on the same subject.
Many Statutes also have an interpretation section: it explains how certain terms are understood by Parliament. You often find those at the very end or the very beginning of the Statute (or of the relevant chapter).
- Often enough, a problem cannot be solved by looking at just one Statute. Imagine a situation in which a police constable dissolves a peaceful public assembly. Depending on the way the question is phrased, you may have to consider Human Rights violations as well as police powers; you may have to check the Public Order Act 1986, the European Convention on Human Rights of 1950, and the Human Rights Act 1998. Confining yourself to just one of those might mean that you do not get enough credit to pass this question.
- Does your examiner understand what you are getting at? You may have found the right provision, but unless you direct your examiners to the exact location in the Act, they will not be able to follow you. Say, PC Fox is arresting Tom Squirrel, who is about to make off with a stolen mobile phone, and you are asked about the legal reasons for the arrest. A reference to s 24 of PACE (arrest without warrant) is simply not enough! The full reference to s 24(5)(c)(iii) of PACE has to feature in your answer — every sub-section, letter and Roman numeral. And you have to state which alternative of this provision is applicable (s 24(5)(c)(iii) of PACE mentions two: causing loss of property and causing damage to property)!
That sounds like a fair bit of work, but it is a matter of practice — after a while, you will get used to it. And it has its advantages. At a time when statute law occupies an ever increasing space in our legal system, those who know how to deal with it have an immediate advantage over their peers to whom this is still a strange and mysterious science.
Quizzes
Sources of the Constitution
Constitutional Principles
Devolution, Local Government
Parliament, Elections
The EU and the UK
Police Powers
State Security
Human Rights
The Judiciary, Judicial Review
Interpreting Statutes
Scenario 1
On 14 March 2011, National Health Sciences, a medical research company which regularly engages in experiments on animals, is given permission by Wolchester City Council to build a research facility on property that lies within the boundaries of Wolchester. By the end of March, several newspapers have reported that National Health Sciences intends to carry out animal experiments on a large scale in that facility.
Harriet reads about this in her local newspaper and is outraged. On 7 April 2011, she decides to start an application for judicial review of Wolchester City Council's decision of 14 March 2011. Harriet does not live in Wolchester or anywhere near the facility. She has no specific experience in the fields of medical research or animal experiments. Advise Harriet on the admissibility of her application.
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Statute
- Supreme Court Act 1981
Key terms to be included
- judicial review
- application
- sufficient interest
- High Court
- leave
Example Answer
Harry will find it difficult to show ‘sufficient interest’ (as required under s 31(3) of the Supreme Court Act 1981); note that the other admissibility criteria (time limit etc.) also need to be in place.
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Scenario 2
On 2 May 2011, the (fictitious) ‘Reputation (Protection) Act’ enters into force. Section 9 of that Act provides that it is an offence to publish printed material which is critical of the policies of the government of the United Kingdom, and that any such material can be confiscated by the police. The preamble to the Act makes clear that this statute was adopted for the “protection of morals” in the United Kingdom.
Rasheed, the owner of a publishing house, is concerned about this Act. He believes that it violates rights which are guaranteed under European Human Rights law. Advise Rasheed.
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Statute
- European Convention on Human Rights 1950
Key terms to be included
- freedom of expression
- information
- protection of health or morals
- prescribed by law
- necessary in a democratic society
Example Answer
Freedom of expression (Art 10 of the ECHR) can be restricted for the “protection of health or morals” — but difficult for the government to claim that here, and any such restriction must be “necessary in a democratic society” (proportionality).
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Scenario 3
In the evening of 7 May 2011, Police Constable Shakespeare walks down Stratford Road, where he spots one Jeff Chaucer in front of the window of Dickens & Co, a jeweller's shop. Mr Chaucer has not yet seen Shakespeare. Chaucer holds a brick in his hand and looks behind him furtively. He then lifts the brick in the air so that PC Shakespeare has the impression he is about to smash the window with it. Shakespeare decides to intervene. He calls on Mr Chaucer to stop and arrests him. Chaucer believes that Shakespeare has no right to arrest him without a warrant. Advise Chaucer.
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Statute
- Police and Criminal Evidence Act 1984
Key terms to be included
- arrest without a warrant
- about to commit an offence
- reasonable grounds for suspecting
- causing damage to property
- constable
Example Answer
Arrest without warrant is possible under s 24 of PACE in order to arrest a person whom the PC reasonably suspects is about to commit an offence (s 24(1)(c)) and if one of the reasons of sub-s 5 are in place (in this case, sub-s 5(c)(iii) — damage to property).
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Scenario 4
Lisa, Mary and Anne are passionate fans of FC Wanderville, their local football club. On 2 February 2011, FC Wanderville wins a decisive match against their arch rival Steadily United, and Lisa, Mary and Anne celebrate the victory in the Wanderville Arms, a pub in the middle of the town of Wanderville. When they leave the pub at 7pm, they are considerably under the influence of drink. They walk through the town centre, singing loudly and inviting strangers they meet to sing along with them.
PC Orderly feels that the three are guilty of violent disorder. Advise PC Orderly.
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Statute
- Public Order Act 1986
Key terms to be included
- 3 or more persons
- conduct
- person of reasonable firmness
- fear for his personal safety
- aware
Example Answer
The offence of violent disorder (s 2(1) of the POA 1986) requires a minimum of 3 persons; question here, if their conduct had been such as to cause a person of reasonable firmness to fear for his personal safety and also if the persons were at least aware that their conduct would threaten violence (s 6(2) of the POA).
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Scenario 5
Honeyside County Council is a principal council. Bill Cartier is a photo journalist who works for the ‘Honeyside Inquirer’. On 11 May 2011, Cartier turns up at the meeting of the council with his camera equipment. Cartier is allowed to attend the meeting but, when he tries to take pictures during the meeting, he is told to refrain from doing so. Cartier is outraged; he feels that transparency is an important part of democracy and that Honeyside County Council have no right to stop him from taking pictures. Advise Cartier.
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Statute
- Local Government Act 1972
Key terms to be included
- meeting of a principal council
- open to the public
- taking of photographs
Example Answer
While meetings of principal councils must as a general rule be open to the public (s 100A(1) of the Local Government Act 1972), a principal council may still refuse to allow the taking of photographs “of any proceedings” (s 100A(7) of the LGA 1972).
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Scenario 6
Wilma works for the non-governmental organisation ‘Rights Without Borders’. In April 2011, Wilma learns that the government is currently considering proposals which would make the use of ‘enhanced interrogation techniques’, including waterboarding, lawful in the United Kingdom. Wilma has been able to obtain the copy of a memorandum by a legal adviser to the government which states that “because of the ongoing danger of terrorist attacks which threatens our country, the government may have no choice but to adopt these methods”.
Wilma wants to know if the use of such techniques would be compatible with the UK's obligations under the European Human Rights law.
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Statute
- European Convention on Human Rights 1950
Key terms to be included
- torture
- inhuman
- degrading
- public emergency
- derogation
Example Answer
The ‘enhanced interrogation techniques’ described in the case are likely to constitute at least ‘inhuman or degrading treatment’ (Art 3 of the ECHR); note that no derogation from Art 3 of the ECHR is permitted (Art 15(2) of the ECHR.
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Scenario 7
Wulfric is a member of the ‘The Geese’ — a gang which has become known for its violent activities in the past few years. Every member of the ‘Geese’ wears a bandanna with the picture of a goose on it. From December 2010 to February 2011, seven members of the ‘The Geese’ were arrested for illegal possession of knives. On 2 March 2011, a burglary occurs in ‘Athelstan's Kitchen Emporium’ in which several hundred dangerous kitchen knives are stolen.
On 3 March 2011, PC Osric spots Wulfric, who is wearing his ‘The Geese’ bandanna, on a public street. Osric says to Wulfric: “Ah, you're one of those Geese types. Lets see if you have any knives on you”, and proceeds to search Wulfric. Wulfric believes that his membership of the ‘The Geese’ can hardly amount to ‘reasonable grounds for suspicion’, which would justify the search. Advise Wulfric.
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Statute
- Police and Criminal Evidence Act 1984, Code of Practice A
Key terms to be included
- public
- stolen or prohibited articles
- reasonable grounds for suspecting
- offensive weapon
- habitually carry knives unlawfully
- distinctive item of clothing
Example Answer
Section 1(2)(a)(i) and 1(3) of PACE give the PC the right to search Wulfric, if he has reasonable grounds for suspecting that he will find stolen or prohibited articles (see s 1(7)(a) and 1(9) of PACE ); note that identifying evidence of membership of a gang whose members habitually carry knives unlawfully can provide reasonable grounds to stop and search (notes 2.6 and 9 of PACE Code A).
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Scenario 8
Jackie is an undergraduate student studying for a Law degree at the University of Westborough. She is not clear about exactly what her fees are spent on and wishes to find out what the university spends upon what.
Advise Jackie
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Statute
- Freedom of Information Act 2000
Key terms to be included
- Public Authority
- Entitled to be informed if it holds information
- Entitled to have the information communicated to her
- Request for information
- Means of communication
- Time limit for compliance
- Means of communication
- Defence
- Exemptions
- Application to Information Commissioner
Example Answer
Sections 1, 8, 10, 11, 26-32, 34-36 and section 50
Jackie should apply for information pursuant to section 1 Freedom of Information Act 2000 which gives a right to know if the university, as a Public Authority under the Act, holds the information sought and if so to have it (not entire related documents but the specific data applied for); and then if not satisfied to apply to the Information Commissioner for a decision concerning non/compliance by the Public Authority.
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Scenario 9
Jim is employed by WindowGleam which has a government contract to clean windows of government buildings. Whilst cleaning an open window at a government installation near Cheltenham, the wind blows a piece of paper off a desk inside the building out through the window. Jim catches it and glances at it. It seems to Jim that what is written on it is someone's hand-written doodling. He screws it up and puts it in his pocket. When Jim gets home that night and empties his pockets as usual, he comes across the piece of paper. Before putting it in the bin he looks at what is written on it once more. He now finds that it sets out what looks like some sort of code detail with a heading ‘Saluko’. Thinking this to be a reference to the new conundrum game currently so popular across the world, Jim decide to try to make money from it. He decides to approach ‘The Daily Bugle’, a national newspaper with huge sales circulation that prints its own daily ‘Saluko’ puzzle (with answers the next day). He telephones them and the newspaper offers him £10,000. The next day, a contract is signed and the money and piece of paper are exchanged. The Daily Bugle then publishes a photograph of the writing on the piece of paper on its front page beneath the banner head-line “Illegal UK plot to kill terrorist chief Saluko” and alongside an article detailing the identity of MI6 agents working under-cover on the plot and the GCHQ code-breaking system used to track Saluko.
That evening Jim is arrested by the police on suspicion of “breach of the Official Secrets Acts”.
Advise Jim
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Statute
- Official Secrets Act 1989
Key terms to be included
- Government contractor
- Without lawful authority
- Damaging disclosure
- Any information, document or other article relating to security or intelligence
- Causes or likely to cause damage to the work of, or of any part of, the security and intelligence services
- Defence
- (i) Did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence, or (ii) that the disclosure would be damaging within the meaning of that subsection
Example Answer
Section 1(3), (4), (5) and section 12 of the Official Secrets Act 1989
An offence for a government contractor to make a ‘damaging disclosure’. Likely to be prosecuted on facts, evidence and gravity of consequence. On the face of it, a damaging disclosure though defence (ii) seems to apply
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Scenario 10
Ivitch is a dentist by day and an up-and-coming young stage actor by night. He is homosexual. He has hepatitis C. Somehow a national tabloid newspaper, The Daily News, has found out about his sexuality and illness and have published full details of both as well as his name, address, age, day job and current stage-work. The article appears under a photograph of him in a domestic setting dressed only in his underpants. The newspaper story claims that the illness resulted directly from his sex-life. Ivitch is furious, deeply upset and very worried about his day-job and acting career. Ivitch's instinct is that his human rights have been breached and he is determined to "make the 'paper pay" but does not know how to pursue a remedy.
Advise Ivitch
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Statute
- Human Rights Act 1998 (‘HRA’); European Convention on Human Rights 1950 (‘ECHR’)
Key terms to be included
- Public Authority
- Unlawful act
- Victim
- Appropriate court or tribunal
- Time limit
- Respect for private and family life, home and correspondence
- Protection of health or morals
- Protection of the rights and freedoms of others
- In accordance with law
- Necessary in a democratic society
- Remedy
Example Answer
HRA sections 6(1), (2), (6), 7(1), (2), (5), 8; ECHR Article 8 (1) and (2)
A clear invasion of privacy can be made out but will The Daily News find a defence in arguing protection of health (and morals?) and protection of the rights of others given the danger of blood-to-blood carriage of hepatitis C via dentistry. Was the information gained, the invasion of privacy, ‘in accordance with law’ and ‘necessary’ (proportionate to the legitimate aim being pursued’ and in furtherance of some pressing social need)?
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Useful Websites
http://www.parliament.uk
The official Westminster Parliament website giving comprehensive detail including the progress of Bills, amendments and debates in each House
http://www.direct.gov.uk/en/index.htm
The Government website which includes helpful explanatory information upon specific primary and secondary legislation
http://www.justice.gov.uk
http://www.homeoffice.gov.uk
The official websites of these two governments departments key to this field of law
http://www.legislation.gov.uk
A most thorough site for finding, cross-checking and tracking amendment and repeal of legislation.