NCJ Number
46059
Journal
Criminal Law Review Dated: (DECEMBER 1977) Pages: 703-709
Date Published
1977
Length
7 pages
Annotation
THE HOUSE OF LORDS DECISION IN GOURIET VERSUS UNION OF POST OFFICE WORKERS IS REVIEWED AND ITS IMPLICATONS FOR PREVENTIVE JUSTICE AND THE COURTS ARE DISCUSSED.
Abstract
THE PROCEEDINGS AROSE OUT OF A PROPOSED REFUSAL BY POST OFFICE WORKERS TO HANDLE MAIL TO SOUTH AFRICA DURING A WEEK OF PROTEST AGAINST APARTHEID POLICIES ON JANUARY 13, 1977. ON JANUARY 14TH, THE PLAINTIFF APPLIED TO THE ATTORNEY-GENERAL FOR LEAVE TO BRING RELATOR PROCEEDINGS FOR AN INJUNCTON RESTRAINING SUCH AN ACTION. UNDER ENGLISH LAW, AN INDIVIDUAL MAY DO THIS ONLY THROUGH THE CONSENT OF THE ATTORNEY GENERAL OR IF HE IS ABLE TO SHOW DAMAGE TO HIMSELF OR AN INFRINGEMENT OF HIS RIGHTS. THE ATTORNEY GENERAL REFUSED HIS CONSENT, BUT THE COURT OF APPEAL GRANTED AN INTERIM INJUNCTION WHICH EXTENDED WELL INTO THE PLANNED PROTEST WEEK. AT THE RESUMED HEARING BEFORE THE COURT OF APPEAL, THE COURT HELD THAT WHEN THERE IS A THREATENED BREACH OF CRIMINAL LAW, AN INDIVIDUAL WITHOUT SPECIAL DAMAGE COULD PROCEED IN HIS OWN NAME TO SEEK LEAVE FOR RELATOR PROCEEDINGS; BUT, IF LEAVE WERE REFUSED, THAT INDIVIDUAL MIGHT ASK THE COURTS FOR A DECLARATORY JUDGEMENT, AND COULD BE GRANTED AN INTERIM INJUNCTION PENDING A DETERMINATION. THE HOUSE OF LORDS, HOWEVER, UNANIMOUSLY OVERRULED THE COURT OF APPEAL, RECOGNIZING THE EXCLUSIVE RIGHT OF THE ATTORNEY GENERAL TO REPRESENT THE PUBLIC INTEREST IN LITIGATION AND RESTRICTING THE AUTHORITY OF THE CIVIL COURTS TO ACT IN THE ENFORCEMENT OF CRIMINAL LAW IN ANY SAVE VERY EXCEPTIONAL CIRCUMSTANCES. THIS DECISION PROVIDES SUPPORT FOR THE DISCRETIONARY AUTHORITY OF THE CROWN OR EXECUTIVE AND ITS ABSOLUTE AND UNREVIEWABLE NATURE. FURTHER, THE DECISION LEAVES AUTHORITY FOR PREVENTIVE JUSTICE EFFORTS LARGELY IN THE HANDS OF THE ATTORNEY GENERAL THROUGH ITS STRONG REJECTION OF OPEN ACCESS TO THE CIVIL COURTS FOR ENFORCING THE CRIMINAL LAW. JURISDICTION TO BIND OVER INDIVIDUALS WHO HAVE NOT BEEN CONVICTED OF AN OFFENSE IS AN IMPORTANT FORM OF PREVENTIVE JUSTICE, WHICH LIKE THE SEEKING OF RELATOR PROCEEDINGS THROUGH THE ATTORNEY GENERAL, IS IN AID OF CRIMINAL LAW. IT DESERVED BROADER DISCUSSION IN THE GOURIET DECISION AS IT PERTAINS TO DEPARTURES FROM THE ORDINARY PROCESS OF ENFORCING THE LAW THROUGH PROSECUTION AND PUNISHMENT. IT IS SUGGESTED THAT THE AVAILABILITY OF BINDING-OVER ORDERS AS A FORM OF PREVENTIVE JUSTICE INDICATES THAT THE PROBLEMS OF PREVENTIVE JUSTICE IN ENGLISH LAW NEED TO BE CONSIDERED AS THEY RELATE TO THE PRACTICES OF MAGISTRATES' COURTS AS WELL AS IN THE HIGH COURT. (JAP)