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Published online by Cambridge University Press: 13 September 2019
I consider the ways in which the courts use a variety of existing powers to determine the scope of criminal offences, on a prospective basis, through declarations as to the limits or extent of the law. I argue that the courts should be emboldened to build on these powers through greater openness to the circumstances in which declarations may be issued. In particular, courts should be more open to actions for declarations as to the scope of criminal offences brought by a broader range of third parties, such as third sector organisations devoted to exposing wrongdoing.
I am very grateful to the anonymous referees and to Gabriele Watts, of Lincoln's Inn, for comments on previous drafts, and to Rebecca Williams for insights into the public law aspects of this paper. Errors remain my own.
1 A declaration of law, made by a legally competent court, is a statement concerning the status, limits or extent of the law, intended to be authoritative, in part through the way that it reflects relevant precedents, although in and of itself, it does not derive its authority through the doctrine of precedent. I will consider the authority of declarations in section 2 below.
2 Cited by Schofield, P and Harris, J ‘“Legislator of the world”: writings on codification, law and education’ in The Collected Works of Jeremy Bentham (Oxford: Oxford University Press, 1998) pp 18 and 21Google Scholar.
3 Williams, GTextbook of the Criminal Law (London: Sweet & Maxwell, 2nd edn, 1983) p 16Google Scholar.
4 Williams, GTextbook of the Criminal Law (London: Sweet and Maxwell, 1978) p 5Google Scholar.
5 On which, see now G Webber ‘Past, present and justice in the exercise of judicial responsibility’, LSE Law, Society and Economy Working Papers 16/2018.
6 See CL Ten ‘The soundest theory of law’ (1979) LXXXVIII Mind 522 at 527, critically examining Dworkin's account of law. On that account, the law includes principles (the soundest theory) ‘which together best explain, unify and justify the settled law’. Almost needless to say, to find the ‘soundest theory of law’ thesis illuminating, one does not have to agree with the use to which Dworkin puts it. As Ten rightly argues, at 532, the soundest theory of law is parasitic on a pedigree-based test (such as a rule of recognition), precisely because the soundest theory is meant to explain ‘the settled law’.
7 Attorney General's Reference (No 3 of 1994) [1997] 3 All ER 936. An earlier precedent (cited in argument, but not relied on by the House of Lords) is R v Shepherd [1919] 2 KB 125, in which the defendant was held by the Court of Appeal to have been rightly convicted of incitement to murder when he encouraged a pregnant woman to kill a child after birth, even though when the incitement took place the child, being unborn, was not protected by the law of murder. I am grateful to the Attorney General's Office for indicating that s 36 has in fact not been used in over a decade. This is very probably because the prosecution can achieve a similar end by appealing a terminating ruling under the Criminal Justice Act 2003, s 58 (not further considered here).
8 [2018] UKSC 36.
9 [2018] UKSC 36, para 1.
10 A similar approach to the legislation has been taken in Scotland: Nasserdine Menni v Her Majesty's Advocate [2014] SCL 191 at para 9. For a different approach (requiring actual suspicion), where the issue is ‘having reasonable grounds to suspect’ that property is the proceeds of crime, see R v Saik [2006] UKHL 18.
11 Obiter statements of this kind, those intended to be authoritative, are sometimes referred to as ‘judicial dicta’, as opposed to ‘gratis dicta’, the latter being statements not intended to have an influence on the development of the law. The classic example of judicial (obiter) dicta in the civil law is Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575.
12 [2017] UKSC 67.
13 [1982] QB 1053.
14 [2017] UKSC 67, at para 74 (my emphasis).
15 [2017] EWHC 2820 (Admin).
16 [2017] EWHC 2820 (Admin), para 16.
17 [2017] EWHC 2892 (Admin).
18 [2017] EWHC 2892 (Admin), para 24, per His Honour Judge Sycamore.
19 Judicial College Crown Court Compendium (June 2018) p 8.17.1 (my emphasis); see J Wilson ‘Giving up the Ghosh test: Ivey v Genting Casinos’ (2018), available at https://perincuriam.com/dishonesty-ghosh-test-ivey-genting/.
20 It is important to bear in mind that Ghosh had governed the operation of law without practical difficulty for 35 years, explicitly providing part of the foundation – now cast into doubt – for the definition of the reformed offence of fraud in the Fraud Act 2006: Law Commission Fraud (Law Com No 276, 2002) paras 5.11–5.18.
21 Lord Reid ‘The judge as law-maker’ (1972) 12 Journal of the Society of Public Teachers of Law 22 at 24.
22 [1973] 1 QB 530, relied on as an authoritative case in Ivey. See Wilson, above n 19.
23 R v Feely [1973] 1 QB 530 at 537.
24 See eg Attorney General for Jersey v Holley [2005] 3 WLR 29 (PC); R v Jogee [2016] UKSC 8. In each of these cases, for a variety of reasons, the court was in a different legal position, vis-à-vis the previous precedent(s) in question; but the differences are not relevant here.
25 See eg Attorney General for Jersey v Holley [2005] 3 WLR 29 (PC).
26 See the discussion in S Shapiro ‘Authority’ (2000) Public Law and Legal Theory Working Paper 024, available at https://law.yale.edu/system/files/documents/pdf/Faculty/Shapiro_Authority.pdf, at 13.
27 Shapiro, above n 26.
28 As Shapiro rightly observes, even if the world's most eminent weather forecaster has predicted a dry morning in my location, it would be a mistaken not to take an umbrella with me when leaving the house if I can see that it is starting to rain: Shapiro, above n 26, at 27.
29 R v Governor of Her Majesty's Prison, Brockhill, ex p Evans (No 2) [2000] UKHL 48, per Lord Slynn.
30 [1984] QB 795.
31 [1984] QB 795, at 807.
32 See Dyson v The Attorney General [1911] 1 KB 410.
33 See also R v Panel on Take-overs and Mergers, ex p Datafin [1987] QB 815 (CA).
34 [1986] AC 112 (HL).
35 See generally Gouriet v Union of Post Office Workers [1978] AC 435 (HL).
36 See eg Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260; Dyson v The Attorney General [1911] 1 KB 410. However, it should be noted that when criminal proceedings have been properly instituted, the normal remedies set down in statute to govern the criminal process are the right ones to follow, in cases where a complaint is raised, and declaration proceedings are not normally appropriate: Imperial Tobacco Ltd & Another v Attorney General [1981] AC 718 (HL).
37 See also Royal College of Nursing of the UK v Department of Health and Social Security [1982] AC 800 (HL).
38 See also Re F (Medical Patient Steralisation) [1990] 2 AC 1.
39 [2016] EWHC 33 (Admin).
40 [2001] EWHC 788 (Admin).
41 Ibid, para 33, citing R v Commissioners of Inland Revenue, ex p Bishopp (1999) 72 TC 322.
42 Malone v MPC [1979] 1 Ch 344 at 352–353 (per Megarry V-C). See the discussion of this point in Zamir, I and Woolf, JThe Declaratory Judgment (London: Sweet & Maxwell, 3rd edn, 2002) para 4.051Google Scholar.
43 [1999] 2 WLR 483 (HL).
44 [1999] 2 WLR 483 at 487–88. See the cases discussed in Zamir and Woolf, above n 42, at paras 4.089–4.090.
45 For the language of retail and wholesale sorting, see Bray, SL ‘Preventive adjudication’ [2010] 77 University of Chicago Law Review 1275Google Scholar; Chiang, E ‘Reviving the declaratory judgment: a new path to structural reform’ (2015) 63 Buffalo Law Review 549Google Scholar.
46 See text at n 36 above.
47 See Bray, above n 45.
48 See text at n 41 above.
49 Law Commission Reforming Misconduct in Public Office (CP No 229, 2016) ch 4.
50 For more detailed discussion of this point, see J Horder ‘Ministers’ business appointments and criminal misconduct’ [2019] Crim LR 269. It has, of course, long been clear that someone may commit an offence contrary to Official Secrets legislation, by misuse or disclosure of information, even when they are no longer a public official: see the discussion in B, Gail and Everett, MThe Official Secrets Act and Official Secrecy, HC Briefing Paper No CBP07422 (House of Commons Library, 2 May 2017) p 9Google Scholar.
51 See the discussion in Horder, above n 50. For discussion of a recent example (although not one involving an allegation that influence or information was misused) see https://www.thetimes.co.uk/article/army-boss-lieutenant-general-sir-mark-mans-joined-company-after-it-won-disastrous-deal-fzczktdg0.
52 See https://www.transparency.org.uk/our-work/uk-corruption/#.W9TB25NKjIU; Horder, above n 50.
53 See Samsell-Jones, T ‘Reviving Saucier: prospective interpretations of criminal laws’ (2007) 14 George Mason Law Review 725Google Scholar.
54 533 US 194 (2001).
55 533 US 194 (2001) at 201.
56 See further County of Sacramento v Lewis, 523 US 833 (1998).
57 Samsell-Jones, above n 53.
58 See the discussion in Zamir and Woolf, above n 42, p 248.
59 In circumstances where obtaining an injunction is some reason inappropriate; see Chiang, above n 45, at 576–577.
60 Ofcom ‘Helping Consumers to Get Better Deals in Communications Markets – Mobile Handsets’ (September 2018), available at https://www.ofcom.org.uk/__data/assets/pdf_file/0019/121708/consultation-consumers-mobile-handsets.pdf; https://www.bbc.co.uk/news/business-45561044.
61 Ofcom, above n 60; https://www.bbc.co.uk/news/business-45652259.
62 See, more broadly, Harlow, C and Rawlings, RPressure Through Law (London: Routledge, 1992)Google Scholar.
64 See eg Ofgem ‘Investigation into Scottish Power Energy Retail Limited's Compliance with the Consumer Protection Regulations 2008’ (October 2013), available at https://www.ofgem.gov.uk/system/files/docs/2017/04/decision_to_close_investigation_into_scottish_power_re_cpr_2008_18_october_2013.pdf.
65 SW v The United Kingdom, 22 November 1995 (Application no 20166/92) para 36.
66 See eg R Beddard ‘The rights of the “criminal” under Article 7 ECHR’ (1996) EL Rev Supp (Human Rights Survey) 3 at 10–11.
67 See text at n 53 above.
68 See further Horder, J ‘Third party challenges to the courts’ treatment of offenders’ (2008) 28 Legal Studies 356CrossRefGoogle Scholar.
69 This additional wording makes it clear that the Attorney General should be able to refer a point of law that has arisen in the Court of Appeal directly to the Supreme Court.
70 Smith, ATH ‘Judicial law making in the criminal law’ (1984) 100 LQR 46 at 48Google Scholar.
71 Citing Stein, P and Shand, JLegal Values in Western Society (New York: Columbia University Press, 1974) p 145Google Scholar.
72 Smith, above n 70, at 49.
73 See further J Black ‘Learning from regulatory disasters’ (6 November 2014) LSE Legal Studies Working Paper No 24/2014; SSRN: https://ssrn.com/abstract=2519934.