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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
    1. Godden v Hales (1686) 11 St Tr 1165
    2. The Bill of Rights 1689
    3. Attorney-General v De Keyser's Royal Hotel [1920] All ER 80; [1920] AC 508
    4. Laker Airways Ltd v Department of Trade [1977] 2 All ER 182; [1977] QB 643.
    5. R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others [1995] 2 AC 513; [1995] 2 WLR 464.
    6. R v Allen (1862) 121 ER 929
    7. China Navigation Company Ltd v Attorney-General [1932] 2 KB 197
    8. R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 All ER 770; [1967] 2 QB 864
    9. Hanratty and Another v Lord Butler of Saffron Walden (1971) SJ 382
    10. Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70; [1978] AC 435.
    11. Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374.
    12. R v Foreign Secretary, ex parte Everett [1989] 2 WLR 224
    13. R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All 442
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Allen (1862) 121 ER 929

COCKBURN CJ: I am of opinion that there ought to be no rule in this case. It is an undoubted power of the Attorney General, as representative of the Crown in matters of criminal judicature, to enter a nolle prosequi, and thereby to stay proceedings in any indictment or criminal proceeding. No instance has been cited, and therefore it may be presumed that none can be found, in which, after a nolle prosequi ban been entered by the flat of the Attorney General, this Court ban taken upon itself to award fresh process or has allowed any further proceedings to be taken on the indictment. Nor, if the Court were to take that unprecedented course, is there anything to prevent the Attorney General from entering a noble prosequi toties quoties. It is not for us to create a precedent which is contrary to the established practice, and which would be fraught with great inconvenience. Our attention has been called to the practice of Attorney General in his office, as laid down in the books, to summon the prosecutor, and hear the parties before granting his flat for a nolle prosequi. I think that is a wholesome practice; and generally the law officer of the Crown, before entering a nolle prorequi either ex mero motu or at the instance of the defendant, and thereby debarring the prosecutor from proceeding further, would act wisely in calling the prosecutor before him; but, from particular circumstances known to him, or from the nature of the charge, he may feel called upon to grant his fiat for a nolle proacqui without adopting that course. Suppose it possible that there could be an abuse of his power by the Attorney General, or injustice in the exercise of it, the remedy is by holding him responsible for his acts before the great tribunal of this country, the High Court of Parliament. I have no doubt that the Attorney General has this power; and this Court has never interfered with it

CROMPTON J: It would be very mischievous, by granting a rule nisi, to raise any doubt in so clear a matter. In this country, where private individuals are allowed to prefer indictments in the name of the Crown, it is very desirable that there should be some tribunal having authority to say whether it is proper to proceed farther in a prosecution. That power is vested by the constitution in the Attorney General, and not in this Court. The Attorney General may enter a nolle prosequi ex mero motu. The practice, that there should be a summons to the prosecutor to shew cause why the Attorney General should not grant his fiat, is generally satisfactory, but be is the judge where the nolle prosequi should be entered, and there is nothing in the books to shew that he cannot do it without bearing the parties. Moreover, there is nothing in this case to shew that we ought to interferfere if we had the power....