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20 Jud. Rev. 1 (2015)

handle is hein.journals/judire20 and id is 1 raw text is: 

[2015] JR  DOI: 10.5235/10854681.20.1.1

Public Law in the Supreme Court


Christopher Knight and Tom Cross
11 King's Bench Walk

1. Our annual round-up of the 10 most important public law judgments of the Supreme
  Court from the past legal year follows our familiar pattern. We have, as ever, selected
  the 10 cases which appear to us to be the most important or interesting, although there
  is always room for debate as to the correctness of our selections. We provide a brief
  summary   of, and comment  upon, each of those 10 cases. It would be invidious to
  attempt to rank the cases internally, and so the summaries are in no particular order.

2. We also include, as is customary in this review, a list of the judgments given by the
  Supreme  Court in public law matters during the legal year. Our caveat concerning our
  admittedly malleable definition of when a judgment falls to be classified as being one of
  public law remains in place, and some cases could doubtless be considered as falling on
  the wrong  side of the line. The ever-increasing reach of public law, and the concepts
  within it, means that the characterisation exercise remains even more complicated than
  private international lawyers find it.

3. In 2013-2014, 71 judgments were handed down by the Supreme Court; 33 of those con-
   cerned public law matters. We wondered last year whether the court's delivery of 82
   judgments was an aberration (given that the previous three years had resulted in 57-59
   judgments), but it appears that while 82 remains a peak, the court has still managed to
   increase the number of judgments it produces quite substantially under the presidency
   of Lord Neuberger. The number of public law judgments remains broadly similar: an
   increase of six from 27 last year, but which means that the percentage of public law
   cases has increased somewhat. It is still, however, well short of the two-thirds seen in
   the first year of the Supreme Court (2009-2010).

4. As the statistics would suggest, drawing themes from one given year of the court's
  work  is neither straightforward nor necessarily appropriate. But many commentators
  and scholars - and indeed, members of the judiciary - have noted the increasing trend
  of the Supreme Court to focus on use of the common law in public law cases over
  Convention  rights. We discuss cases such as Osborn and Kennedy below, but similar
  approaches could be seen in R (British Sky Broadcasting Ltd) v The Commissioner of Police
  of the Metropolis [2014] UKSC 17 [2014] AC 885 and A v British Broadcasting Corporation
  [2014] UKSC  25 [2014] 2 WLR 1243 as well. Doubtless this is not unconnected to the
  increasingly noisy chatter concerning repeal of the Human Rights Act 1998. Whether
  the trend is maintained will be a matter for review next year.

R (Osborn)  v Parole Board

5. R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 concerned three conjoined
   appeals brought by prisoners serving custodial sentences who had their cases consid-
   ered by the Parole Board. In each case, a single member of the Board considered those
   cases on the papers, and did not direct the release of the prisoner or recommend his


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