Constitutional and Administrative Law - Case Study Example

The events in question, i.e, the protest, occurred on the 15th of April, when the members of Street Clear demonstrated outside the Grayton town hall.In this connection, one of the members, i.e., Billy was also arrested and was in court awaiting trial when on 18th April, the Grayton Gazette published the article which specifically discusses Billy’s behaviour. In examining whether or not criminal charges can be brought against the editor of Grayton Gazette for the publication of such material, the most important aspect to be considered is that Billy is awaiting trial, hence the matter is sub judice and publication of materials such as newspapers that have wide access to members of the public could compromise the course of justice, especially if the judges or jury also happen to read the article when the matter is yet to be decided. In this connection, Section 2(2) of the Contempt of Court Act of 1981 states as follows: where any publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, contempt of court will be found1. There are three separate elements that must be established before the issue of contempt of court arises. Firstly, there must be a publication, secondly this publication must be related to the court proceedings which are taking place and lastly, the nature of the publication must be such that it could seriously impede the course of justice through prejudice. The above mentioned article in the Grayton Gazette appears to substantiate all of the above. Firstly, it is a publication, i.e, an article in the local newspaper. Secondly, it is related to the court proceedings because Billy is awaiting trial in connection with the events of 15th April and the antics of Street Clear and the article is specifically about Billy and his earlier activities with Street Clear. This article also fulfils the third criterion because it does seriously prejudice the case, because it mentions that Billy has been involved in fights before – he has been involved in demonstrations which have turned nasty because he looks for trouble. Moreover the article specifically states: “let’s hope the jury sees sense”, which directly creates a substantial risk of serious prejudice, because being a news article, it is quite likely to come to the attention of a potential jury member and the timing of publication of the article coincides almost exactly with the trial procedures. On this basis, it appears that there would be excellent grounds for criminal charges to be filed against the editor of the Grayson Gazette for the article which appeared in the paper. The only basis that the editor might have to appeal his case could be by invoking the provisions of the Human Rights Act of 1998. At the outset, it is important to note that the purpose for which the contempt of court act of 1981 was introduced was to promote freedom of speech, therefore instituting criminal charges against the editor of a public newspaper by invoking the provisions of the Contempt of Court Act appear to be contradicting its very purpose of existence. It could be argued that the writer of the article and Grayton Gazette as the publisher of the article were within the scope of their rights as spelt out under the Human Rights Act of 1998, which protects individual rights and freedoms, including the freedom of expression2. Section 12 of the Human Rights Act provides for freedom of expression3, and under this provision, when Courts are considering the granting of any kind of relief to one party that might interfere with the freedom of expression of another, “no such relief is to be granted so as to restrain publication before trial” unless there are compelling reasons which can be established.4 This may not hold valid though, because the timing of publication of the article and its contents do prejudice the case. Ans 2: In the case of Zak, there are several aspects that must be noted. Firstly, he has not been in breach of the law, but has been faithfully abiding by the terms of his license. There is a specific clause in the license which states that it can only be withdrawn with 14 days notice “if the holder fails to abide by the attached conditions”. Since Zak has not failed to abide by the conditions, the actions of the Grayton Street Licensing Committee is unfounded and may give rise to grounds for judicial review. As Sedley J stated in R v Somerset CC ex parte Dixon5 “Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power.” When there is such an abuse of public power, a case arises for judicial review. In bringing a successful case for judicial review, the appellant must show that (a) the public authority is unlawfully failing to carry out a required legal duty or (b)the public authority is acting ultra vires. Both of these can be applied in Zak’s case, because firstly, the action being bought is against a public body. The case of O’Reilly v Mackman6 is significant in that it is considered an anomaly of the common law in establishing a strict exclusionary rule, whereby it would be deemed an abuse of the process of law for a plaintiff who seeks action against a public body for infringement of his rights to initiate proceedings by any means other than a judicial review. In this case, a convict brought action against the prison parole board but pursued action through a Writ. Lord Diplock held that judicial review was the only way in which action could be brought to test public law rights, therefore in effect the O’Reilly decision established the strict exclusionary rule in judicial review procedure of decisions of public bodies and it could be followed only where no remedy exists in private law or where other alternative remedies cannot be found. Where Zak is concerned, no other remedy exists that he can follow, because it is only the public body that can issue the license. The O’Reilly decision set a precedent in that it resulted in a locking of the remedies of injunction and the declaration that had entered the realm of public domain by Common law, permanently into that domain. This does not appear to have been the original intent behind Lord Diplock’s judgment, for he has clearly stated that the “Order 53 does not expressly provide that procedure by way of application for judicial review shall be the exclusive procedure available” for obtaining remedy by injunction or declaration for infringement of rights under public law7. However, the fact that in the O’Reilly case, the invocation of a Writ was deemed to be an abuse of the process of the Court resulted in the subsequent position in law that only through the invoking of public law procedure could the remedies of declaration and injunction be obtained under judicial review. Similarly, in Zak’s case, judicial review may be the only option because it might be the only route to secure a decision against the public body and an injunction against the public body to refrain from withdrawing the license. Since Zak has not been acting in contravention of his license, the public authority is failing to carry out its legal duty to continue providing the license to Zak and is trying to revoke it arbitrarily without justifiable reasons; hence judicial review is indicated. Zak’s case would also qualify for judicial review on the grounds that the Licensing authority acted ultra vires, i.e., outside the scope of its powers. By suddenly introducing an arbitrary withdrawal of the license, it could be argued that the public body is acting outside the scope of its powers. The orthodox approach to judicial review is based upon the absolute and indivisible sovereignty of the British Parliament8. The O’Reilly case also established that if the nature of the claim that is being made is that the public body acted ultra vires or outside the scope of its statutory powers, then this is a matter for judicial review. The ultra vires doctrine is based on the principle that all legal duties are created by Parliament9 therefore the judicial function extends to the scope of controlling of exercise of such statutory powers. However Elliot10 highlights the conflict between ultra vires theory and common law theory which acknowledges the Court’s responsibility for the rule of law. He proposes a modified ultra vires doctrine in which there is no link between judicial review and the implicit intention of Parliament, rather “the courts are fulfilling the intention of Parliament which legislates for a constitutional order in which the rule of law is fundamental.”11 Bamforth and Craig however have contested Elliot’s modified doctrine and emphasized the common law theories that assign constitutional responsibility upon the Courts for the rule of law and thereby a different standard of judicial review on legality is supported by this view.12 Others such as T.R.S. Elliot have argued that the debate over the ultra vires doctrine is unimportant in the context of determining the foundations of judicial review, since such an analysis must explore the interrelation between Parliamentary sovereignty and the rule of law13. In Zak’s case, the ultra vires argument can apply because it would not have been the intent of Parliament to allow such an arbitrary exercise of statutory powers. In the case of CCSU v Minister of State for Civil service14, Lord Diplock set out three grounds for review (a) illegality – When a decision is to be challenged on the grounds of illegality, there must be a sufficient number in a group to bring a case, in order to establish that they have the standing to file a suit15. (b) Irrationality – in that the decision of the public body should be of such an unreasonable nature that no reasonable authority could have reached it and (c) Procedural impropriety. In Zak’s case, the grounds of irrationality would apply, because there is not enough justification in terms of destruction of cafes or similar instances, top withdraw licenses. In the case of UNECTEF v Heylens16 has imposed a duty upon public administrative bodies to state the reasons upon which their decisions are based. The Grayton Licensing authority has provided no reasons to Zak for the withdrawal of the license. Craig also points out that bodies that are challenged for their decisions are required to provide reasons for them, but this general duty is based on substance, not form17, therefore they can only assess the legality of administrative action. Moreover the Courts may also independently assess the compatibility of domestic legislation with Convention rights, and even prior to the Human Rights Act, British Judges have independently assessed Government actions in the areas impacting upon fundamental rights and where necessary, invalidated such infringing Government actions.18 Therefore Zak may also have grounds for judicial review on grounds of requiring the public authority to state reasons for its actions. Bibliography Allan, T.R.S., 2002. “The Constitutional Foundations of Judicial review: conceptual conundrum or interpretative enquiry?” The Cambridge Law Journal, 61:87-125 Austin, J, 1954. “The province of jurisprudence determined.” London: Weidenfield and Nicholson Bamforth, N and Craig, P, 2001. “Constitutional Analysis, Constitutional principle and Judicial review.” Public Law, 763. Barnett. Hilaire, 2004. “Constitutional and administrative law”, Cavendish Publishing Limited. Craig, P.P., 1991. Administrative Law 3rd edn. Sweet and Maxwell Elliot, Mark, 2001. The Constitutional Foundations of Judicial review, Oxford: Hart Publishing Walker, Neil, 1999. Setting English Judges to Rights Oxford Journal of Legal Studies, 133 Cases cited: CCSU v Minister of State for Civil Service (1985) AC 374 Heylens (222/86 UNECTEF v Heylens [1987] ECR 4097 R (Tucker) v the Director General of the National Crime Squad [2003] EWCA Civ 57 Legislation cited: Contempt of Court Act 1981. Retrieved May 24, 2010 from: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1981/cukpga_19810049_en_1 Human Rights Act of 1998. Retrieved May 24, 2010 from: http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_1 Read More