A, R v (Complainant's sexual history) [2001] HL

[Statutory interpretation – Human Rights Act]
D committed rape but said V consented. D wanted to raise a three-week relationship between him and V to support this defence. The Youth Justice and Criminal Evidence Act 1999 sec 34 restricts evidence or cross-examination on previous sexual behaviour

Held: Lord Steyn said s.3 of the Human Rights Act 1998 requires legislation to be interpreted "so far as it is possible" in a way compatible with Convention rights;

A declaration of incompatibility is a last resort. Therefore s.34 interpreted as including an implied provision that evidence or cross-examination essential to a fair trial under Art.6 of the Convention was not to be excluded.

R v Abbott [1976] PC (Trinidad )

[Statutory interpretation – judicial limits]
D a member of a commune killed V on the orders of the group leader.

Held: his plea of duress was dismissed as unavailable to a principal in the crime of murder.

Lord Salmon;

“Judges have no power to create new criminal offences nor, in their Lordships' opinion, for the reasons already stated, have they the power to invent a new defence to murder which is entirely contrary to fundamental legal doctrine, accepted for hundreds of years without question.  If a policy change of such a fundamental nature were to be made it could, in their Lordships' view, be made only by Parliament.”

Guilty

Airedale NHS Trust v Bland [1993] HL

[Statutory interpretation – applying principles – moral issues to be considered by Parliament]
Tony Bland seriously injured in the Hillsborough disaster, was being kept alive only by extensive medical care (not a life-support machine). He had survived for three years in persistent vegetative state (PVS). He continued to breathe normally, but was kept alive only by being fed through tubes. He had no chance of recovery; his doctors (with the support of his family) sought a declaration from the court that it would be lawful for them to discontinue treatment so that he might die peacefully.

Held: Treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs.
 

Lord Browne-Wilkinson;

“The judges' function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society. If Parliament fails to act, then  judge-made law will of necessity through a gradual and uncertain  process provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed. The function of the court in these circumstances is to determine this  particular case in accordance with the existing law, and not seek to  develop new law laying down a new regimen …  it is for Parliament to address the wider problems which the case  raises and lay down principles of law generally applicable to the  withdrawal of life support systems.”   

Lord Browne-Wilkinson and Lord Mustill;

”It is imperative that the  moral, social and legal issues of the present case should be considered by Parliament”

In this case feeding him was treatment and that treatment would not cure him and therefore was not in his best interests.

It was lawful for D's doctors to stop feeding him artificially.

See also Frenchay Healthcare NHS Trust v S [1994] CA. Similar issues can arise in respect of the very elderly or in respect of babies born with very severe mental or physical handicaps, especially where major (and possibly repeated) surgery would be needed to keep them alive see Re J [1991].

It was lawful for D's doctors to stop feeding him artificially.  The court had no option but to make a decision one way or the other.

Also here

Alcock v Chief Constable of South Yorkshire [1991] HL

[Statutory interpretation – floodgates and policy]
A further action following the Hillsborough tragedy brought by those that helped at the scene.

Held: Rescuers should continue to qualify on policy grounds even though they were not in a close relationship with the victim. Friends and relatives raised the spectre of the "floodgates" argument, and the fear of opening up unlimited liability.

Lord Oliver openly used the word "policy" in explaining his decision.

Anisminic Ltd v Foreign Compensation Commission (1969) HL

[Judicial creativity - ouster clauses - response of the courts]
A statute said that "decisions" of the Commission should "not be called in question in any court".

{The commission was set up by the Foreign Compensation Act 1950. The commission decided that the claimant company had failed to establish a claim for compensation for the loss of its Egyptian assets following the Suez crisis of 1956.)

Held: Despite this clear and unambiguous provision the court preserved their jurisdiction, they claimed the decision was ultra vires, and hence void and no "decision" at all. The purported decision was described as a nullity.

Comment: In the light of the decision in Re Racal Communications Ltd, it is apparent that Anisminic Ltd would have had no remedy at all, either by way of appeal or judicial review, if the Foreign Compensation Act 1950 had provided for the ‘determination’ to he made by a High Court judge rather than by a statutory tribunal.

Also here

Anton Piller v Manufacturing Processes [1976] CA

[Statutory interpretation – judicial creativity]

C believed D was about to infringe their copyright of a computer converter; they knew that if they started legal action D would destroy all incriminating documents.

Held: The court could make such an order, but should exercise it only in an extreme case where there was grave danger of property being smuggled away or of vital evidence being destroyed.

The order was not, however, a search warrant authorising C to enter a D’s premises against his will, but an order on D in personam to permit C’s entry or be in peril of proceedings for contempt of court.

 
In practice the claimant’s representatives enters the premises (under the supervision of an experienced solicitor).
 

This search order has nothing to do with the police.
 

Lord Denning MR:

"During the last 18 months the judges of the Chancery Division have been making orders of a kind not known before. They have some resemblance to search warrants. Under these orders the plaintiff and his solicitors are authorised to enter the defendant’s premises so as to inspect papers, provided the defendant gives permission.
Now this is the important point: the court orders the defendant to give them permission. The judges have been making these orders on ex parte applications without prior notice to the defendant.".
 

The order was made and subsequent orders became known as Anton Piller Orders, now called a Search Order.

Also here

Ashton v Turner [1980] Ewbank J

[Statutory interpretation – policy decision]
An escaping burglar was injured through the negligence of his getaway driver.  

Held: As a matter of policy the law will in some circumstances refuse to recognise the existence of a duty of care owed by one participant in crime to another.

B (A Child) v DPP (2000) (HL)

Whole case here

[Statutory interpretation - Burden of proof - Mens rea - Sexual offences]
D incited a child under 14 to commit an act of gross indecency.  The prosecution’s case was that Parliament had intended the offence to be one of strict liability.

Held:  that a defendant was entitled to be acquitted of the offence if he held an honest belief that the child in question was 14 or over.

Appeal allowed.

British Railways v Herrington [1972] HL

[Judicial precedent – HoL  - examples of departing]
C, 6 years old, was burned on an electric rail.  The railway was separated from a play area by a fence that was broken. The stationmaster knew the fence was in poor condition, and knew children often trespassed, but took no steps to correct this.

Held: Applying Lord Atkin’s “neighbour” principle; the occupier might not owe to the trespasser a common duty of care, but did have a duty to treat him with ordinary humanity.

Overruled/Departed: Addie v Dumbreck [1929] which held that an occupier of premises had no duty of care to a trespasser and it was the responsibility of the parents to protect their children.

"Departed" rather than "overruled" because the House would have decided Herrington the way it did regardless of the 1966 practice statement, they would have distinguished the previous case. Overruled (or, at least, modified) Addie v Dumbreck [1929]

In Addie, an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly.

In Herrington, they propounded the test of 'common humanity’, which involves an investigation of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser.

Parliament had passed the Occupier’s Liability Act 1957. The lords were unanimous in deciding that there could be liability to a trespasser. Unfortunately five judges reached that decision in different ways and the matter was referred to the Law Commission, and eventually the passing of the Occupier’s Liability Act 1984 that now governs the position of trespassers and certain other non-visitors.

Bromley LBC v Greater London Council [1982] HL

[Statutory interpretation – policy considerations]
The Greater London Council under Ken Livingston implemented an election promise by introducing a "Fares Fair" policy in which public transport fares were reduced by 25%. This was to be subsidised from the rates.
Bromley, a Conservative council sought certiorari to quash this decision, claiming that the GLC had acted ultra vires.

Held: The power to make grants to London Transport was meant to cover unavoidable losses, not to promote a social policy even though it had been approved by the majority of the electorate.

C (a minor) v DPP [1995] HL

[Judicial creativity – judicial cowardice]
A 12-year-old boy A was charged with interfering with a motor cycle

Held: The presumption of 10-14 doli incapax (mischievous discretion) had been discussed in official reports, a draft Bill produced by the Law Commission in 1985 had proposed its abolition, but a white paper in 1990 had indicated that the government had no intention of changing the law in this respect.

This presumption was ultimately abolished by the Crime and Disorder Act 1998.

Lord Lowry gave the following guidelines for judicial law-making:

1. judges should beware of imposing a remedy where the solution to a problem is doubtful;

2. they should be cautious about making changes if Parliament has rejected opportunities of dealing with a known problem or has legislated while leaving the problem untouched;

3. they are more suited to dealing with purely legal problems than disputed matters of social policy;
   fundamental legal doctrines should not lightly be set aside; and

4. judges should not change the law unless they can achieve finality and certainty.

Campbell v MGN Limited [2004] HL

Whole case here

[Judicial creativity – breach of confidence extended to include misuse of private information]
C, Naomi Campbell, was photographed coming out of a drug clinic. D published in the “Mirror” misleading information together with the photograph.

Held: In this country, unlike the United States of America, there is no cause of action for ‘invasion of privacy’. The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action, which became known as breach of confidence. A breach of confidence is unconscionable conduct, akin to a breach of trust. The essence of the tort is better encapsulated now as misuse of private information.

Miss Campbell’s claim was on the basis of breach of confidence, that is, the wrongful publication by the ‘Mirror’ of private information. Detailed information about her treatment for drug addiction amounted to private information, which imported a duty of confidence. There was a balance to be struck between her right to private life Article 8 of the European Convention on Human Rights and Article 10 the right to freedom of information

Lord Hope;

"Despite the weight that must be given to the right to freedom of expression that the press needs if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell’s right to privacy that cannot be justified."

Lady Hale:

“Wainwright v Home Office [2003] … indicates that our law cannot, even if it wanted to, develop a general tort of invasion of privacy. But where existing remedies are available, the court not only can but must balance the competing Convention rights of the parties.”

C won.

Caparo v Dickman [1990] HL