In simple terms
Finding a ground of review is only half the task. The must also bring the case in the right way, have sufficient interest, challenge a body that is open to review, and ask for a remedy the court can grant. All the remedies are discretionary.
The prerogative orders
Certiorari: Quashes a decision made unlawfully. It is the most common remedy in .
Prohibition: Stops a body from acting, or continuing to act, outside its powers. It looks forward, where looks back.
Mandamus: Orders a body to perform a public duty it has failed to perform.
Habeas corpus: Orders a person detaining another to bring him before the court and justify the detention.
Private law remedies in public law
Declaration: States the legal position, for example that a rule is void, without ordering anyone to act.
Injunction: Orders a body to do or not do something. M v Home Office confirms it can issue against ministers.
Damages: Not available for unlawfulness alone. The applicant must show a private law wrong, such as or , or a breach of a constitutional right.
The supervisory jurisdiction in Sierra Leone
Sections 125 and 134: The 1991 Constitution gives the Supreme Court supervisory over all other courts, and the High Court supervisory jurisdiction over inferior and traditional courts and adjudicating authorities. In exercising it they may issue orders and , including , certiorari, and prohibition.
Fundamental rights: Section 28 gives a separate route to the High Court for enforcement of rights in Chapter III.
Who may be reviewed
Public functions: Review is not limited to bodies set up by statute. In R v Panel on Take-overs and Mergers, Datafin a non-statutory city body was held open to review because it performed a public function with public consequences.
Standing
Sufficient interest: In R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed the House of Lords held that standing is judged with the merits. A group of taxpayers did not have sufficient interest to challenge the tax treatment of other people, there being no sign of unlawfulness.
Procedural exclusivity
O'Reilly v Mackman: Prisoners who challenged decisions of a prison board of visitors by ordinary action, instead of by judicial review, had their claims struck out as an abuse of process. Public law issues should normally be raised by judicial review, with its safeguards for public bodies. Later cases have relaxed the rule where public and private issues are mixed.
Words and Latin in this note
- Judicial review
- The power of the superior courts to examine whether a public body acted lawfully, rationally and fairly. It looks at legality, not merits. Constitutional review of laws is a separate power of the Supreme Court. Open the note.
- Habeas corpus
- An order requiring a person who holds someone in custody to bring them before the court, so the court can decide whether the detention is lawful. Open the note.
- Certiorari
- An order of a superior court that brings up the decision of a lower court or public body so it can be checked and, if it was unlawful, set aside.
- Mandamus
- An order of a superior court telling a public officer or body to carry out a duty the law requires of them.
Memory map
Remedies, standing and procedure
The prerogative orders
- Certiorari
- Prohibition
- Mandamus
- Habeas corpus
Private law remedies in…
- Declaration
- Injunction
- Damages
The supervisory…
- Sections 125 and 134
- Fundamental rights
Key points
- Certiorari quashes, prohibition restrains
- Declarations and injunctions are also available
- Sections 125 and 134 give the superior courts…
- A body performing a public function may be…
Cases
- R v Panel on Take-overs and…
- R v Inland Revenue Commissioners,…
- O'Reilly v Mackman
Key terms
- Certiorari
- Mandamus
- Judicial review
- Ex parte
Take-home points
- Certiorari quashes, prohibition restrains, and mandamus compels. Habeas corpus tests detention.
- Declarations and are also available. Damages need a private law wrong or a breach of a constitutional right.
- Sections 125 and 134 give the superior courts of Sierra Leone their supervisory jurisdiction.
- A body performing a public function may be reviewed even without a statutory base (Datafin).
- Standing requires sufficient interest, judged with the merits (National Federation).
- Public law issues should normally be brought by judicial review (O'Reilly v Mackman).
Cases in this topic
- R v Panel on Take-overs and Mergers, ex parte Datafin plc
- R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd
- O'Reilly v Mackman
Related case law
Full judgments on Lanbuk on the same areas of law.
See also
- The Constitution of Sierra Leone, 1991 · 1991
- M v Home Office · Lanbuk on Constitutional Law · [1994] 1 AC 377
- O'Reilly v Mackman · Lanbuk on Administrative Law · [1983] 2 AC 237
Lecture notes on this subject
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