R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX P FIRE BRIGADES UNION

In a collective application for judicial review, the actions of the Secretary of State for the Home Department were held to account when a decision was made to override and subsequently remove, existing but as yet unenforced statute, in lieu of a more cost effective solution to criminal offence compensation.

In 1964, the unprecedented Criminal Injuries Compensation Scheme was created under the Crown’s prerogative powers, and while described as “one of the most generous state compensation schemes for the victims of crimes of violence anywhere in the world”, all payments were made ex gratia through nominated funds reserved by the House of Commons, meaning that its operation existed beyond the scope of legislation and remained subject to the discretion of the appointed personal injury assessors.

In 1978, the Pearson Commission on Civil Liability and Compensation for Personal Injury Command Paper proposed that the scheme needed to become statutory and operate upon tortious principles, as had already been applied.

In 1986, it was reported that the scheme had now been included within sections 108 – 117 of schedules 6 and 7 of the Criminal Justice Act 1988, in which section 171(1) of the Act read:

“Subject to the following provisions of this section, this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint and different days may be appointed in pursuance of this subsection for different provisions or different purposes of the same provision.”

Criminal Justice Act 1988

This translated that the Secretary of State was afforded a degree of discretion as to exactly when the powers of the scheme were to become fully enforced.

In financial terms, the programme had experienced enormous growth, and by 1984, the government was paying out over £35m per year, with a backlog of nearly fifty-thousand claims.

Based upon calculated projections, the government concluded that by the year 2000, the annual cost would have risen to around £550m, therefore a proposal was made to replace the existing system with a newly drafted compensation tariff, which was presented through a White Paper titled ‘Compensating Victims of Violent Crime: Changes to the Criminal Injuries Compensation Scheme’.

In contrast, this system offered claimants a flat-rate compensation tariff that while lower in award levels, expedited the claim process and removed the need for legal advice aside from appeal cases, thus lowering the anticipated costs to an estimated £225m per year.

It was also decided that the tariff-based scheme would likewise operate ex gratia, despite calls for statutory implementation of the existing system.

In light of this unexpected turn, the respondent Fired Brigades Union along with the National Association of Schoolmasters and Union of Women Teachers, UNISON, GMB, the Royal College of Nursing, the Transport and General Workers’ Union, the Prison Officers’ Association, the Associated Society of Locomotive Engineers and Firemen, the Civil and Public Services Association, the Trades Union Congress and the NatWest Staff Association applied for judicial review on grounds that the decision by the Secretary of State to avoid enforcement of sections 08 – 117 of schedules 6 and 7 of the Criminal Justice Act 1988 and implement the Criminal Injuries Compensation Tariff scheme, constituted a breach of statutory duty and abuse of position, and therefore the courts were required to issue an order of mandamus to enforce the statute, and an interlocutory injunction to prevent the implementation of the tariff.

In the first instance, the respondents were awarded leave for judicial review on the proviso that the tariff scheme remained in stasis until a verdict had been reached, and in lieu of the injunction being dropped; whereupon the court dismissed the application but granted leave to appeal.

In the Court of Appeal, it was held that the terms of sections 108 – 117 of schedules 6 and 7 of the Criminal Justice Act 1988 were in principle effective and so no action was needed, but that the overriding of existing statute in favour of the tariff constituted an abuse of position; at which point the Secretary of State appealed, while the respondents cross-appealed.

Heard before the House of Lords, the facts of the case were given due consideration; however, the lines were drawn between political discourse and the powers of the court; in which, the suggestion that the House ought to ‘enforce’ the enactment of a statute already enshrined was held as ultra vires to the judiciary, but that circumvention of the powers of the Criminal Justice Act 1988 amounted to an abuse of prerogative powers, and one representative of a frustration of statute through the actions of those obliged to enforce them with unanimity.

Whereupon, both appeals were dismissed by majority, while the House reminded the parties that:

“It is for Parliament, not the executive, to repeal legislation. The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.”

ENTICK v CARRINGTON

In a time following the great revolution, it was taken by some occupying ministerial roles that powers typically reserved for the King and courts, were equally applicable to his immediate servants, including the right to issue warrant against those deemed offensive to the Crown, and that might seek to usurp its position through libellous acts.

Hence, when a number of gentlemen formed a ‘newspaper’, they were eventually seen to be acting with defamatory intent, when after the publication of certain articles, a warrant for the seizure of the original works was issued by the Earl of Halifax, who was acting Secretary of State.

The officers despatched were told to include the presence of a police constable; however, they chose to act alone and used force to enter the claimant’s home, before causing significant damage to his property when searching for the relevant documentation; while the second part of the warrant required that they brought the claimant and his papers before the Earl himself, so that they could be examined and the author held to account.

For clarity, prior to the revolution there had been many abuses of power by those so appointed; and so, the reemergence of the rule of common law had sought to prevent these flagrant ignorances in favour of equity and the rights of the citizens of the state.

Yet, when the claimant sought relief for the damages caused, it was argued by the defendants that the Secretary of State reserved the right to execute warrants in the interest of the Crown; and that the defendants were beyond reproach when acting under the rights contained within the Constables Protection Act 1750.

Brought before the court, it became clear that despite statute conferring certain protections against those undertaking certain duties under the instruction of the Crown, there was no evidence to support either the Secretary of State or the officers assigned, until it could be proven that the former was legally entitled to issue warrants.

It was also evident that no police constable had accompanied the defendants as was requested, and that the evidence gathered was then presented to an employee of the Earl and not the issuer himself, who held no powers of delegation in such circumstances.

To further add insult to injury, it was also apparent that the man accused was not even responsible for the libellous comments; and so, the whole affair constituted nothing more than trespass and criminal damage.

Having closely evaluated the limitations imposed upon the Secretary of State, it was agreed by the presiding Chief Justice that at no point in time had it been assumed that the post included magisterial or advisory rights other than to act within matters of high treason, which supported their service as protectors of the public and the state.

This translated that the Earl had acted well beyond his remit, and that any warrant was now void and unenforceable at law.

Hence, with due consideration for the first point it followed that the officers had been acting under illegality, and were therefore guilty of trespass and breaking and entering, and so award was granted in favour of the claimant, while reminding the court that:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground he must justify it by law.”

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