Public Policy, Judicial Review

Question 1:

Taking each individual in turn, firstly Joy, the offences committed by Joy are probably a breach of the Official Secrets Act, as she provided private information for public dissemination. She also may have stolen the documents, thereby committing theft, although she may not have had intention to permanently deprive as she photocopied the forms. 1However, the case of Lloyd indicates borrowing the documents may not be termed as stealing, as they were returned. 2

The police officer involved could be charged with the murder or manslaughter of David, who was beaten to death in custody. The police officer probably had the mens rea to commit grievous bodily harm but perhaps not kill David.3 The test to see if the intent to murder was present is subjective according to the circumstances4; therefore more information is needed in order to give a concrete indication of whether it was murder or manslaughter. This may also depend upon which of the officers struck the fatal blow, and if the other officers present thought that there was a danger of death or had reason to believe the police officer would kill David. 5

Following the death of David, the Home Secretary had knowledge of the killing, and as he did not act upon it, could be charged with conspiracy under the Criminal Law Act 1977.6 The extent of the charge would depend upon an inquiry into the guilt The charge of conspiracy could also extend to all members of the police and the government who decided not to act following the death of David, and would thus fall under the Criminal Law Act 1977.

Malcolm could be charged with several things. The first charge would be of breaching the public order banning the demonstration. The second is inciting racial hatred7. The speech he made at the demonstration was clearly racially motivated and directed only at a particular element of the population. This would therefore be considered as racial hatred. He may also be guilty of Riot8 and possibly affray.9 This is because after he threatened and incited violence, which was racially motivated, it culminated in a riot.

Question 2:

1:In order to bring a claim for judicial review, criteria must be met. Vis-à-vis the actual legislation, it usually entails the courts having need for judicial review of a piece of legislation, which, if applied, would be a breach of the courts constitutional responsibility. Under EU law if a decision is reached against another person, the applicants will have standing to bring a claim before the ECJ if the decision "is of direct and individual concern to him or her.10" In the UK, any interested party can bring a claim for judicial review if they are directly affected by the claim. 11

2 (a):The policy is probably ultra vires because it was issued by the Department for Education and Employment, and not created by an Act of Parliament. This would be sufficient for it to be defined as an abuse of power as the department policy is beyond the power conferred onto it by Parliament. With regard to irrationality12 , the following extract clearly indicates the department policy would be seen as irrational. 13

" An irrational decision was defined as one "which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" (at p 410G) 14

2 (b):The policy would be considered as in contravention of Article 8 of the ECHR as the policy is based on knowledge of the individual's private life, the sexuality in this context, and is thus a breach as it does not respect private life and is an invasion of privacy. This principle is clearly evidenced by the Lustig-Prean case.15

2 (c):With regard to Article 3 of the EC Equal Treatment Directive, it is unlikely that the policy would be in contravention of this Directive. This is because the Directive deals only with sexual discrimination, on a gender basis, and does not concern the actual sexuality of the individual. If the policy affected men and not women, it would breach the Directive, but as both men and women can be homosexual, the policy does not discriminate on the basis of sex, but on sexuality.

Question 3

In a democratic society the existence of an un-elected upper house often results in criticism of its legitimacy. Its composition, of mainly extremely wealthy people, also would seem to represent the interests of an elite cadre of society. However, the role of the Upper House has been restricted over time, to the point now where the powers consist mainly of delay and limited vetoing of Bills. It can be argued that the UK Parliament should retain some semblance of an Upper House, or second level of legislative power, in order to prevent the Commons monopolising the legislative process.

This Upper House would have to be demographically representative and democratically elected in order to obtain some legitimacy for its functions. Its powers, which would consist of checking proposed legislation from the Commons, and possibly suggesting amendments, would have to be tempered with accountability and transparency. The principle of ministerial responsibility would also have to govern the MP's within the Upper House as well. It should be another part of the checks and balances inherent within the British constitution. The powers would therefore be to check legislation from the Commons to ensure that this legislation was in the public interest, rather than say business or political party interests.
The concept of democracy is founded upon the principle of the people as a whole being given a voice via the election of other persons by the people. If there were a section or chamber that has some legislative function or power, it would have to meet this criterion in order to be legitimate. " All fundamental political decisions must be taken in accordance with the majoritarian opinion." 16Without this, its powers may also be perceived as running counter to other democratic bodies, such as the House of Commons, whose decisions are taken in accordance with the majorities wishes, as the MP's in the Commons were elected.

Question 4

It is true that judges are, or at least try to be, free from political interference. This is shown by the recent outcry by judges over the Home Secretary's proposal regarding life for murderers, and also by the reaction of the judiciary, through Lord Taylor's press conference denouncing them, to Michael Howard's proposed sentencing reforms in the 1990's. Political neutrality is essential to the judiciary however.

"It is of most value to ensure that the appointments process does not give rise to a politically biased bench of judges, and that they are all free from political pressure." 17

The principal of judicial independence, in its most ideological form, means that the individual judge, when sentencing, is completely objective. In terms of political neutrality, the judge gives his sentence on the basis of the legal framework provided and should not be motivated by political or personal beliefs. The sentence should also be the most appropriate possible, and there should be no fear by the judge that he will suffer political ill will or ramifications for his sentence. However, it may be too fanciful to suggest that all judges are completely objective. There will inevitably be some who have certain feelings or conceptions and will give harsher or lighter sentences than the average judge, and these may be influenced by politics or political ideology. However, this probably only applies to a minority within the judiciary, and it has to be remembered that,

"(T)he overall responsibility for sentencing policy, as a sphere of public policy and social policy, is that of the legislature." 18

This shows that although some judges may apply differing sentences, they still have to operate within the sentencing structure delegated and created by Acts of Parliament.19 . It is perhaps worth noting that Barendt is of the view that the independence of judges is dubious as the Lord Chancellor, whose role arguably violates the separation of powers doctrine, appoints them, and the process has no transparency. Although this is a concern, any judges who were of an extreme political persuasion or had huge ties to a political party would not be appointed.
As far as accountability is concerned, this concept is created through the various appeals processes that can be utilised by an individual. This system results in decisions that have been perceived by some as too lenient or too harsh being scrutinised. This allows for judges to check the decisions of other judges. The judges are also largely dependant on Parliament for their power. Parliament delegates sentencing power to them, and if they abused it, Parliament could revoke the Judiciary's powers. Judges are therefore accountable in this way.

Additionally, various bodies exist to analyse and help judges with their sentencing decisions. For example the Judicial Studies Board aims to train and help judges understand and apply new legislation. This continual training ensures that judges are kept in touch with new laws and sentences, and is consequently seen as a method of accountability.

However, there is a lack of consistency in sentencing, and it is beyond the capacity of the Court of Appeal to hear every case. As such, due to the discretion given to judges, there may be a dearth of accountability in some areas, as the judges lack guidance and training and therefore feel they can apply the sentence they like.

"Whether training can conduce to consistency in sentencing depends partly on the amount of legislative and judicial guidance that is available - which for many everyday sentencing decisions is not great - and partly on the attitudes to sentencing they foster."20

Accountability is therefore increased with the scrutiny of continually training and analysing judges, but it is limited. Political neutrality is perhaps present to a great extent due to the media attention that sentences receive, and the uproar that would result from politically motivated sentencing by a judge.

  1. Theft Act 1968 section 1[^ Return]
  2. R. v. Lloyd [1985] Q.B. 829[^ Return]
  3. R v. Moloney [1985] A.C. 905 and R v. Woollin [1990] 1 Cr.App.R. 97[^ Return]
  4. R. v. Hyam [1975] A.C. 55 and Criminal Justice Act 1967 Section 8[^ Return]
  5. R. v. English [1997] 4 All E.R. 545[^ Return]
  6. Criminal Law Act 1977 Section 1 (b) and 2[^ Return]
  7. Public Order Act 1986 s 18 1 (a) and (b)[^ Return]
  8. Public Order Act 1986 s 1[^ Return]
  9. Public Order Act 1986 s 3[^ Return]
  10. Craig and De Burca 'EU Law; Text cases and materials' 2nd edition pp461[^ Return]
  11. Part 54 Judicial Review and Statutory Review Lord Chancellor's Department. /www.lcd.gov.uk[^ Return]
  12. See also R v. Minisrty of Defence ex parte Smith [1996] QB 517 (Applicants successful judicial review over discharging of serving homosexuals as it does not affect capacity to serve and is unrelated to national security)[^ Return]
  13. www.webjcli.ncl.ac.uk[^ Return]
  14. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374[^ Return]
  15. Lustig-Prean and Beckett v. United Kingdom European Court of Human Rights 1999[^ Return]
  16. Barendt 'An Introductiuon to Constitutional Law' pp 24[^ Return]
  17. Ibid pp 133[^ Return]
  18. Ashworth 'Sentencing and Criminal Justice' 3rd edition pp 57[^ Return]
  19. e.g. Crime (Sentences) Act 1997, which provides for minimum and mandatory sentences.[^ Return]
  20. Maguire, Morgan, Reiner 'The Oxford Handbook of Criminology' 2nd edition pp 1127-28 [^ Return]

BIBLIOGRAPHY AND SOURCES:

Barendt 'An Introduction to Constitutional Law' 1998

Craig and De Burca 'EU Law Text Cases and Materials' 2nd edition 1998

Lacey and Wells 'Reconstructing Criminal Law' 2nd edition 1998

Clarkson and Keating 'Criminal Law Text and Materials' 4th edition 1998

Morgan Maguire and Reiner 'The Oxford Handbook of Criminology' 2nd edition 1998

Ashworth 'Sentencing and Criminal Justice' 3rd edition 2000

P R Ghandi 'International Human Rights Documents' 2nd edition 2000

Steiner and Alston 'Internstional Human Rights in Context' 2nd edition 2000

www.webjcli.ncl.ac.uk

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