The editor could plead defence of ‘innocent publication’ under Section 3(1) of the Contempt of Court Act 1981 if he could show that he did not know and had no reason to believe that the proceedings were active at the time of publication. However, since the article stated “Let’s hope the jury see sense” a defence under this section in unlikely as it is clear the editor knew about the ongoing proceedings.
Since the Human Rights Act 1998 came into force the courts at all levels are now obliged to interpret Acts compatibly with Convention rights so far as possible. Article 10 of the Act states that “everyone has the right to the freedom of expression”, which include the right to “receive and impart information without interference by public authority and regardless of frontiers”. In the case of The Sunday Times v UK (1979) 2 EHRR 245, the court recognised the right for the public to be informed in cases concerning sensitive matters. However, Article 10(2) allows limitations on the rights to freedom of expression which are “prescribed by law and necessary in a democratic society” where there is a need to safeguard public health, national security and the independence of the Judiciary. The state will have to show that any restriction is lawful, proportional to the interest served and there is a pressing social need for the interference.
Within the scenario given the editor of Grayton Gazette may try and rely on Article 10, however previous cases involving conflict between Freedom of expression and the administration of justice, show that the courts will attempt to find a balance in individual cases. This was also stated in the case of AG v Times Newspapers Ltd (1974), by Lord Reid.
(592 words)
Q2
Judicial review is not a right of appeal or a re-hearing, it is concerned with a procedure of an official or body rather than with the merits of the decision. Only where there is a serious breach of human rights, the court may take the approach as in the case of R(Wilkinson) v RMO Broadmoor and the Mental Health Act Commission (2002) 1 WLR 419 where the merits of the evidence were examined.
Judicial review is governed by the Supreme Court Act 1981 and the Rules of the Supreme Court Order 53. One must seek leave to apply for judicial review and the granting of such leave depends on the following:
- the applicant who must have “standing”, meaning “sufficient interest” in the matter (Supreme Court Act 1981). The interest must be personal, or that of a “victim” under the Human Rights Act 1998, but the courts will consider applications by individuals or groups in the “public interest”.
- the matter must be of a public, not private, law nature.
- the decision being reviewed is that of a public body.
To determine whether a body is a public one, the court will examine the functions that it performs and whether they have public law consequences.
- the matter must be capable of being decided by a court as a matter of public policy.
- applications must be made within three months of the challenged action, or within other time periods as specified by clauses in relevant statutes.
- the applicant must be seeking judicial review on the basis of illegality, irrationality or procedural impropriety as per Lord Diplock in Council of Civil Service Unions v Minister for Civil Service 1984 otherwise knows as GCHQ.
Illegality means that the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it. Failure to do so will deem the action “illegal”. Example: a case of Bromley Council v Greater London Council (1983) 1 AC 768, where a public body introduced legislation which was beyond their powers. This is also known as acting ‘ultra vires’.
Irrationality applies to a decision which is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person” would have arrived at that decision. (Lord Diplock) Irrationality was applied in the case of R v Derbyshire v County Council, ex parte The Times (1990)
Procedural impropriety is failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. Examples: Ridge v Baldwin (1964) AC 40 and Bradbury v Enfield LBC (1967) 1 WLR 1311.
Before Lord Diplocks New Approach the use of "ultra vires" doctrine as a basis for review has resulted in problems as not all government power is derived from statute. Some important areas of government activity are regulated by the Royal Prerogative and could not be controlled by the "ultra vires" doctrine.
A number of approaches to judicial review have been adopted and adapted allowing administrative law to evolve and develop. First is Jurisdictional Fact Approach. The courts draw a distinction between facts which are within the tribunal's jurisdiction and those outside its jurisdiction. The problem is, it is difficult to distinguish between jurisdictional facts and facts within the jurisdiction. This severely restricts judicial review, as it does not allow any review regarding abuse of power.
The second approach is known as Anisminic Approach. This came from the case Anisminic v Foreign Compensation Commission HL (1968) 2 AC 147. In this case it was stated that jurisdiction is conditional upon its proper exercise. Even if the tribunal is entitled to enter into the enquiry, it can lose power by the way that power is exercised.
Then what is known as A New Approach has been adopted where Lord Diplock simplified the grounds on which decisions might be subject to judicial review into the three categories mentioned above (illegality, Irrationality, Procedural Impropriety).
- the application must not be precluded by a clear and unambiguous statutory clause.
- all other remedies must have been exhausted.
The available remedies in Judicial Review are: Quashing Order, which overturns an existing decision, Prohibiting Order which prevents a decision being made, Mandatory Order which orders a public body to take specific action. Declaration, Injunction and Damages are also available remedies.
Within the provided scenario it is very likely that Zak would be able to apply for Judicial Review. He would likely be deemed to have sufficient interest, therefore he would have standing. The matter which he is asking Judicial Review for is of public law nature. The Grayton Street Licensing Committee would be classed as a public body.
Zac could rely on the grounds of Procedural impropriety when challenging the decision to withdraw his licence. He could argue that because his licence was revoked with immediate effect, rather than with 14 days notice as stated in the fictitious Street Activity Act 2005, there was a breach of procedure. He could argue that because he was given no notice he was treated unfairly as he was not provided with a hearing in which he could present his representations. Also there is no appeal procedure in which he could try and get the decision reversed.
Zak could also possibly rely on the grounds of illegality. He could argue that the Street Activity Act 2005 allows a licence to be revoked only where the holder has failed to abide by the attached conditions. Zac has always abided by the terms of his licence, therefore he could say that GSLC acted outside their decision making power.
Whether Zak could rely on the grounds of Irrationality is unclear, as one cannot say with a certainty that decision was so unreasonable that no reasonable body could have come to it.
Within the given scenario Zak is likely to apply for a quashing order to overturn the decision which revoked his licence.
(989 words)
Bibliography
- W201 Assessment Guide, Milton Keynes, The Open University, pp. 55-57
- Units 9-15, W201 Law: the individual & the state, Milton Keynes, The Open University
- Constitutional and Administrative Law, Seventh Edition, Hilaire Barnett, Routledge-Cavendish, Milton Keynes, The Open University
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Cases and Materials on Constitutional & Administrative Law, 9th Edition, Michael Allen & Brian Thompson, Oxford University Press, Milton Keynes, The Open University
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- Study notes
