Act of Parliament

Lord Denning doesn't merely read the Act and decide whether the facts and behaviour in question conform to it: instead proceeds to inquire into the manner in which it was passed. He tells us that the Act in question was "put forward by the government of the day", that it "passed by a narrow majority", that it was "opposed by many as being a dangerous encroachment on individual freedom". Not being satisfied he even inquires into the intention of Parliament as regards the subject matter of the Act: "why has Parliament done this?

Why have they allowed this search and seizure by the Revenue officers? ". In doing this he is going completely against the notion of Parliamentary sovereignty I have outlined above and with a view to giving what he considers to be the correct interpretation, draws on a proposition of natural justice ("every man is presumed to be innocent until he is proven to be guilty") and common law ("by common law no search or seizure at any man's house can be made except for stolen goods") in order to obtain legal authority for his point of view.

It is obvious enough to see that this is a direct violation of the principle of Parliamentary sovereignty but how does his purposive interpretation sit with the Rule of Law? If Dicey's main concern was that of protecting the individual from the government acting ultra vires then surely Lord Denning is in fact ensuring that this is indeed so. He condemns the Act in question because, although he recognizes that it is necessary to catch out the "wicked people…

who keep two sets of books", he maintains that legislation "drawn so widely… might be an instrument of oppression". He points out, agreeing with Dicey, that " once great power is granted, there is a danger of it being abused" and that rather than risking this and the subsequent perpetuation of the injustice that flows from it he believes it is the duty of the courts to construe Acts of Parliament "so as to encroach as little as possible on the people of England".

This is Lord Denning's purpose: he recognizes what the Act is aimed at but believes that in order to avoid injustice he has not only the ability but the duty to put the Act's literal interpretation to one side and substitute for it ideas of natural justice and common law that fit the picture better. His approach to the question whether the warrant was void for lack of specificity is along similar lines: he draws on the common law in Christie v Leachingsky3 for support in declaring that a general warrant is in fact void.

In his view these searches must be done by "due process of law" which involves a warrant specifying the nature of the suspicion of the crime: since there is no such specificity the warrant is void for want of particularity and therefore the whole search and seizure is unlawful. Lord Wilberforce in the House of Lords takes a different approach.

He points out that since the second world war the important human right to privacy of a man's home has been overridden "which the public has in preventing evasions of the law": he also agrees however that in the present case he cannot believe that the law in question "does not call for a fresh look by Parliament". This is the point around which his whole speech is based, that of Parliamentary sovereignty and the courts' observance of it:

"while the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation". To do this he says would be to "weaken the advance of the democratic purpose" and is an issue "to be debated in Parliament". Wilberforce points out that the warrant followed the wording of the statute and complied with the safeguards against injustice that were imbedded in the Act (i.e. the need for approval of the board of the Inland Revenue, the approval of the judicial authority).

In doing so Lord Wilberforce explains the need for the lack of specificity in the warrant both in terms of the fact that fraud offences are complex and that it would be impractical at this interlocutory stage to require particularity and also through the words of Lord Reid that "it is essential that there should be no disclosure of anything which might give any useful information to those who organize criminal activities".

This then ties in to his judgment as to whether the use of the warrant itself was unlawful and whether the prompt removal of the documents was due to reasonable cause and belief. He allows that this power of seizure, conferred by statutory power, is subject to the judicial review of the courts but that the existence of reasonable cause and of the belief founded upon it is "a question of fact to be tried on evidence".

This entails that until there is a criminal trial, if there is one, the applicants cannot and will not know what crime they are suspected to be guilty of. But suppose the criminal proceedings were never to start and the charges dropped, allowing the removal of documents would be tantamount to turning a blind eye to an incredible intrusion into the privacy of the people in question for no apparent reason, even though Lord Wilberforce does point out that, if this were the case, the applicants could bring a claim against the revenue for trespass and excess of power.

In conclusion, it seems that the judges start from two different standing points and the differing end result that follows is simply the logical progression of it. Lord Denning sees as paramount the liberty of the individual and in protecting this comes perilously close to declaring that the Act of Parliament is invalid; Lord Wilberforce on the other hand understands that he cannot go against the statute and construes his argument accordingly on that basis, whilst suggesting that Parliament should take another look at it.

In Lord Denning's view it cannot be the intention of Parliament to presume people guilty or to want to impose on their freedom and by backing his argument up with the fact that the Act was passed by a simple majority construes a strong argument in favour of amending the Act in question. Where he goes too far in terms of Parliamentary sovereignty is to take the decision himself not to implement it and in fact to completely disregard it.

Lord Wilberforce on the other hand abides by the sovereignty proposition but at the initial expense of the citizen who is so forced to wait until the government decides whether it will bring proceedings against them. At that point if the claim is dropped they have a chance to obtain a remedy. The question is whether you can consider this governmental freedom necessary in order to ensure that citizens abide by the law or whether, as Lord Denning maintains, a similar discretion comes perilously close to the excess of power in Entick v Carrington5 and comparable in effect to the abuse of power in Liversidge v Anderson.