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An integrated account of proportionality and deference; 3. An institutionally sensitive approach; 4.
Proportionality and deference in judicial review of administrative action: Proportionality and deference in judicial review of legislation: Proportionality and deference in judicial review of multi-level decisions: Review quote 'Brady's work provides a good addition to the voluminous literature on deference. It does so by taking a step back from abstract, conceptual analysis focusing instead on how deference and proportionality can be applied in practice.
Young, Oxford Journal of Legal Studies "Brady's work provides a good addition to the voluminous literature on deference.
Having exhausted the various internal appeal mechanisms available to him, AR issued a claim for judicial review. Amongst other matters he argued that the inclusion in the ECRC of information concerning the rape charge and acquittal was procedurally unfair because it had been disclosed without consulting him.
Proportionality and Deference under the UK Human Rights Act - Human Rights - Law
It was also said that the disclosure amounted to a substantive breach of Article 8. The approach of the lower courts. The decision of the High Court was upheld by the Court of Appeal. The Supreme Court was unanimous that there was no breach of Article 8.
Lord Carnwath who gave the only judgment gave short shrift to the procedural argument, finding that consultation with AR would have served little given that AR had not outlined any further information which he wished to advance. The role of the police was limited to identifying and disclosing relevant information, on which the potential employer could then form a view in all the circumstances.
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This is what the police, and Judge Rayner, were found to have done. He was right to have recognised that factors weighing in favour of disclosing the information were the seriousness of the alleged offence, its relevance to the position applied for and its comparatively recent occurrence.
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There was, however, disagreement as to how an appellate court should approach proportionality. The view of the minority Lord Kerr and Lady Hale was rejected that the appellate court should evaluate proportionality for itself while taking into account the decision of the court below.
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It was argued on behalf of the Appellant, however, that a distinction should be drawn between a case such as In re B , where the judge of the lower court was the initial decision-maker he decided whether to make a care order , and a case such as this where the judge was reviewing an existing decision here a decision by the police to include certain information in an ECRC. In such circumstances, it was said that the Court of Appeal was in as good a position as the trial judge to make its own assessment of proportionality.
The Supreme Court rejected this argument, finding it to cut across the reasoning of In re B.
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It is clear, therefore, that an appeal does not provide an opportunity for a second bite of the cherry, in proportionality terms at least, regardless of whether the lower court acted as the initial decision-maker or in its review capacity. If you add this item to your wish list we will let you know when it becomes available. Is the information for this product incomplete, wrong or inappropriate? Let us know about it.
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