<<

. 24
( 155 .)



>>

Kingdom (1984) 7 EHRR 14). Following this ruling the Government brought
forward legislation to provide a ˜comprehensive framework™ for the interception
of communications (Interception of Communications Act 1985; see now the
Regulation of Investigatory Powers Act 2000). The rights conferred by Article 8
of the Convention have since been given domestic legal e¬ect by the Human
Rights Act 1998.
According to the principle a¬rmed by Sir Robert Megarry in the Malone case,
the act of a public authority will be upheld if it was ˜in accordance with law™ in
the sense that it did not infringe any law. In this respect the administration is
treated like a private individual, who is free to do whatever the law does not pro-
hibit. Is it not, however, a rather dubious constitutional principle that places
government, with the great resources at its command and its responsibility for
the public interest, on the same footing as the private citizen? As Tony Prosser
remarks ((1996) 44 Political Studies 473, 476), if government is able:

to avail itself of the same legal rights and privileges as the private citizen . . . this leaves no
room for constraints on power based explicitly on responsibilities to the broader public inter-
est or for rights owed by the state through its status as an institution transcending the chaos
of particular interests.
82 British Government and the Constitution


The licence allowed to the state by the Malone principle was countered by Laws
J in R v Somerset County Council, ex p Fewings [1995] 1 All ER 513, 524, in
saying:

For private persons, the rule is that you may do anything you choose which the law not does
prohibit. . . . But for public bodies the rule is opposite, and so of another character altogether.
It is that any action to be taken must be justified by positive law. . . . The rule is necessary
in order to protect the people from arbitrary interference by those set in power over them.

Surely the view of Laws J is to be preferred over that of Sir Robert Megarry in the
Malone case, both on principle and as the more accurate distillation of the law.
(Although for a di¬erent view, see Harris, ˜The “third source” of authority for
government action™ (1992) 108 LQR 626; see further Cohn, ˜Medieval chains,
invisible inks: on non-statutory powers of the executive™ (2005) 25 OJLS 97.)
In at least the limited sense that executive action must not contravene the law,
the rule of law is a part of British law. This is not to say that the principle is
always scrupulously observed by public authorities, and the rule of law is most
at risk of violation in times of crisis or danger to the community. A notorious
instance of disregard of the rule of law was the o¬cially authorised but unlaw-
ful physical ill-treatment applied to detainees in Northern Ireland in 1971. (See
the Compton and Parker Reports, Cmnd 4823/1971 and Cmnd 4901/1972;
Brownlie (1972) 35 MLR 501; Ireland v United Kingdom (1978) 2 EHRR 25
(ECtHR).) The con¬‚ict in Northern Ireland was again to raise concern for the
rule of law when allegations of the gravest nature were made that a ˜shoot to kill™
policy had been applied by the security forces in the 1970s and 1980s. An
inquiry by Mr John Stalker, Deputy Chief Constable of Greater Manchester,
into the circumstances in which seven persons were shot by members of the
Royal Ulster Constabulary, met with obstruction and Mr Stalker was suspended
from duty before his inquiry was completed. The facts of these and other shoot-
ing incidents, and of Mr Stalker™s suspension, remained in a fog of obscurity.
(See further A Jennings (ed), Justice Under Fire (1988), ch 5; K Ewing and
C Gearty, Freedom Under Thatcher (1990), pp 230“5; McKerr v United Kingdom
(2002) 34 EHRR 553.)
Subsequently the murders of the Belfast solicitor Patrick Finucane and of
a number of other persons by loyalist paramilitary organisations led to
allegations that members of the security forces had colluded in the murders.
These allegations were investigated by Sir John Stevens, the Metropolitan
Police Commissioner, who concluded that there had been collusion in the
murders of Finucane and one other victim (Stevens Enquiry, Overview and
Recommendations, 17 April 2003). An additional investigation was carried out,
at the request of the British and Irish Governments, by Justice Peter Cory,
a retired member of the Canadian Supreme Court, who found ˜strong evidence
that collusive acts were committed™ by the Army, the Special Branch of the Royal
Ulster Constabulary and the Security Service, and urged that a public inquiry
83 The ideas of the constitution


should be held (Cory Collusion Inquiry Report: Patrick Finucane, HC 470 of
2003“04). The Government responded by announcing that public inquiries
would be established to investigate the issues raised by the Stevens and Cory
reports (HC Deb vol 419, cols 1755“7, 1 April 2004). The inquiry into the
murder of Patrick Finucane is to be conducted under the Inquiries Act 2005:
concern has been expressed (by Amnesty International, Lord Saville of
Newdigate and others) as to whether the procedures established by this Act can
assure a properly independent and rigorous investigation.
The police, in their zeal to secure convictions, have sometimes resorted to
fabrication of evidence and other malpractices, contributing to a series of grave
miscarriages of justice in cases such as the ˜Guildford Four™, the ˜Birmingham
Six™, the ˜Bridgewater Three™ and the ˜Tottenham Three™. (See respectively
the May Report, The Guildford and Woolwich Bombings, HC 449 of 1993“4;
R v McIlkenny [1992] 2 All ER 417, The Times, 31 July 1997, p 4; J Gri¬th, The
Politics of the Judiciary (5th edn 1997), p 211.)
In interrogating servicemen in Cyprus in 1984, the service police were found
to have acted in good faith but to have committed illegalities in their concern to
protect the national interest. Mr David Calcutt QC said in his Report (Cmnd
9781/1986):

In our society, it is for Parliament and not for investigators, however genuinely and well moti-
vated, to decide if and when, and in what circumstances, the interests of an individual should
be subordinated to the interests of society as a whole.

Again, political demonstrations, industrial action and other forms of militant
activism have on occasion provoked reactions from authority going beyond
what is proper or legal. (See eg, S McCabe and P Wallington, The Police, Public
Order and Civil Liberties: Legacies of the Miners™ Strike (1988).)
The rule of law is undermined if the state exercises its powers in such a way
as to make it impossible, or even very di¬cult, for persons a¬ected to chal-
lenge the legality of the state™s action. In R (Karas) v Secretary of State for the
Home Department [2006] EWHC 747 (Admin) immigration o¬cers detained
a husband and his pregnant wife at 8.30pm with a view to their being
deported at 7.45am the following day. The husband and wife had no idea,
prior to this time, that they were to be deported at all. They had been regu-
larly reporting, as required, to the immigration authorities, who had not pre-
viously mentioned it to them. Munby J held that the Home O¬ce™s action was
˜deliberately planned with a view to . . . the spiriting away of the claimants
from the jurisdiction before there was likely to be time for them to obtain
and act upon legal advice or apply to the court™. Damages were awarded to the
husband and wife. Munby J added that the case revealed ˜at best an unaccept-
able disregard by the Home O¬ce of the rule of law, at worst an unacceptable
disdain by the Home O¬ce for the rule of law, which is as depressing as it
ought to be concerning™.
84 British Government and the Constitution


The rule of law is also undermined when the state commits or connives
at breaches of the law. In 1984 the Home O¬ce issued guidelines which
purported to authorise the police to install listening devices in homes and
other private premises in speci¬ed circumstances in the investigation of
serious crimes. There was no legal basis for such authorisation and the
installation of the devices by the police with Home O¬ce approval involved
unlawful acts of civil trespass and damage to property. (See R v Khan [1997]
AC 558.) Legal authority to enter property and plant listening devices (or seize
documents) was eventually provided by Part III of the Police Act 1997.
Authorisations to interfere with property may be given by a senior police
o¬cer but are subject to supervision by a judicial Commissioner. (See also
the Intelligence Services Act 1994, ss 5“7 and Part II of the Regulation of
Investigatory Powers Act 2000.) In R v Loosely [2001] UKHL 53, [2001] 1 WLR
2060 the House of Lords reconsidered the law of entrapment. A prosecution
founded on entrapment is an abuse of the court™s process. The House of
Lords ruled that police conduct which brings about state-created crime is
unacceptable and improper, and to prosecute in such circumstances is an
a¬ront to the public conscience. Lord Nicholls commenced his opinion with
the following remarks:

Every court has an inherent power and duty to prevent abuse of its process. This is a funda-
mental principle of the rule of law. By recourse to this principle courts ensure that executive
agents of the state do not misuse the coercive, law enforcement functions of the courts and
thereby oppress citizens of the state. Entrapment, with which these two appeals are con-
cerned, is an instance where such misuse may occur. It is simply not acceptable that the state
through its agents should lure its citizens into committing acts forbidden by the law and then
seek to prosecute them for doing so. That would be entrapment. That would be a misuse of
state power, and an abuse of the process of the courts. The unattractive consequences, fright-
ening and sinister in extreme cases, which state conduct of this nature could have are
obvious. The role of the courts is to stand between the state and its citizens and make sure
this does not happen.
These propositions, I apprehend, are not controversial. The difficulty lies in identifying
conduct which is caught by such imprecise words as lure or incite or entice or instigate. If
police officers acted only as detectives and passive observers, there would be little problem
in identifying the boundary between permissible and impermissible police conduct. But that
would not be a satisfactory place for the boundary line. Detection and prosecution of con-
sensual crimes committed in private would be extremely difficult. Trafficking in drugs is one
instance. With such crimes there is usually no victim to report the matter to the police. And
sometimes victims or witnesses are unwilling to give evidence.
Moreover, and importantly, in some instances a degree of active involvement by the police
in the commission of a crime is generally regarded as acceptable.

In the following case the rule of law was strongly vindicated, and was held to
prevail over the public interest in the prosecution and punishment of crime.
85 The ideas of the constitution


R v Horseferry Road Magistrates™ Court, ex p Bennett [1994]
1 AC 42 (HL)
Bennett, a New Zealand citizen, was wanted for criminal o¬ences allegedly
committed by him in the United Kingdom. He was discovered to be in South
Africa but proceedings for his extradition to this country were not instituted.
He was, however, arrested by South African police and placed, handcu¬ed to the
seat, on a ¬‚ight to Heathrow, where he was arrested by English police o¬cers
and subsequently committed by a magistrate for trial in the Crown Court.
Bennett applied for judicial review of his committal. He contended that he
had been unlawfully removed from South Africa, at the request of and in collu-
sion with the English police, on the pretext that he was being deported to New
Zealand via Heathrow.
The question that was tried as a preliminary issue was whether, on the
assumption that the facts asserted by Bennett were true, he could lawfully be put
on trial in England for the o¬ences he was alleged to have committed in this
country. The Divisional Court held that the courts™ concern was only that
a defendant should have a fair trial: there was no legal authority for the propo-
sition that a court could prevent a prosecution because of the methods by which
the police had secured the defendant™s presence within the jurisdiction.
This decision was reversed by the House of Lords (Lord Oliver dissenting).

Lord Griffiths: . . . Your Lordships have been urged by the respondents to uphold the deci-
sion of the Divisional Court and the nub of their submission is that the role of the judge is
confined to the forensic process. The judge, it is said, is concerned to see that the accused
has a fair trial and that the process of the court is not manipulated to his disadvantage so
that the trial itself is unfair: but the wider issues of the rule of law and the behaviour of
those charged with its enforcement, be they police or prosecuting authority, are not the
concern of the judiciary unless they impinge directly on the trial process.

Lord Gri¬ths considered the cases in which the courts had exercised a jurisdic-
tion to prevent abuse of process and continued:

Your Lordships are now invited to extend the concept of abuse of process a stage further. In
the present case there is no suggestion that the appellant cannot have a fair trial, nor could
it be suggested that it would have been unfair to try him if he had been returned to this
country through extradition procedures. If the court is to have the power to interfere with
the prosecution in the present circumstances it must be because the judiciary accept
a responsibility for the maintenance of the rule of law that embraces a willingness to oversee
executive action and to refuse to countenance behaviour that threatens either basic human
rights or the rule of law.
My Lords, I have no doubt that the judiciary should accept this responsibility in the field
of criminal law. The great growth of administrative law during the latter half of this century
86 British Government and the Constitution


has occurred because of the recognition by the judiciary and Parliament alike that it is the
function of the High Court to ensure that executive action is exercised responsibly and as
Parliament intended. So also should it be in the field of criminal law and if it comes to the
attention of the court that there has been a serious abuse of power it should, in my view,
express its disapproval by refusing to act upon it. . . .
In my view your Lordships should now declare that where process of law is available to
return an accused to this country through extradition procedures our courts will refuse to try
him if he has been forcibly brought within our jurisdiction in disregard of those procedures
by a process to which our own police, prosecuting or other executive authorities have been
a knowing party.

Lord Bridge of Harwich: . . . There is, I think, no principle more basic to any proper system of
law than the maintenance of the rule of law itself. When it is shown that the law enforcement
agency responsible for bringing a prosecution has only been enabled to do so by participating
in violations of international law and of the laws of another state in order to secure the
presence of the accused within the territorial jurisdiction of the court, I think that respect for
the rule of law demands that the court take cognisance of that circumstance. To hold that the
court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdic-
tion is, to my mind, an insular and unacceptable view. Having then taken cognisance of the
lawlessness it would again appear to me to be a wholly inadequate response for the court to
hold that the only remedy lies in civil proceedings at the suit of the defendant or in discipli-
nary or criminal proceedings against the individual officers of the law enforcement agency who
were concerned in the illegal action taken. Since the prosecution could never have been
brought if the defendant had not been illegally abducted, the whole proceeding is tainted.


The matter was remitted to the Divisional Court to determine whether
Bennett™s factual allegations were well-founded. In R v Horseferry Road
Magistrates™ Court, ex p Bennett (No 4) [1995] 1 Cr App Rep 147 the Divisional
Court was not satis¬ed that Bennett had been properly available for arrest at
Heathrow and quashed the order committing him for trial. (See also R v Grant
[2005] EWCA Crim 1089, [52]“[58].)
The government and other public authorities cannot always be relied upon
to respect the law and observe its constraints. A state can therefore only claim
to uphold the rule of law if it provides e¬ective means for the prevention
and redress of illegal action by those who wield public powers. Accordingly it is
a further requirement of the rule of law that there should be independent courts
or other agencies which will check and control the actions of public authorities
to ensure their compliance with the law. Lord Irvine of Lairg LC emphasised this
in Boddington v British Transport Police [1999] 2 AC 143, 161, in saying that:

It is well recognized to be important for the maintenance of the rule of law and the preser-
vation of liberty that individuals affected by legal measures promulgated by executive public
bodies should have a fair opportunity to challenge these measures and to vindicate their
rights in court proceedings.
87 The ideas of the constitution


(This is also a demand of the separation of powers: see below.)
It is a cardinal requirement of the rule of law that the government should
comply with judgments of the courts given against it. In particular it would not
be consistent with the rule of law for a government to resort to retrospective leg-
islation in order to nullify those judgments which it preferred not to obey. In
Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 the Burmah Oil Company
claimed compensation for the wartime destruction of its installations in
Burmah, which had been ordered by the British military authorities to prevent
their falling into the hands of advancing Japanese forces. The destruction had
been a lawful exercise of the war prerogative of the Crown, but the House of
Lords held that the use of the prerogative in these circumstances imported an
obligation to pay compensation. In a dissenting speech Lord Radcli¬e observed
that in no previous case had a court of law awarded compensation for a taking
or destruction of property under the war prerogative, and that there was no

<<

. 24
( 155 .)



>>