Advise the following parties both in relation to potential claims for judicial review and any other possible remedies which might arise from the following circumstances:
- A famous film director, Tintin Quarantino, comes to see you because his latest film has been prohibited under the powers given to the Secretary of State in section 1 of the Films (Undesirable Content) Act 2016. Tintin admits that his films are known for their “challenging” content, both in terms of violence and sexual portrayal, but he does not feel that his latest film is any more graphic than his previous productions. The only reason that Tintin has been given for the prohibition is that his latest film is ‘unsuitable’. He comes to you seeking advice on the best course of action to take in order to get the prohibition lifted.
- The National Association of Cinema Operators, a trade body representing independent cinema owners, also seeks your advice. The Association was identified as an ‘affected party’ for the purposes of section 2 of the Act. The Association was sent a 210 page consultation document on the proposals for the Code of Conduct and given a time limit for responses of 5 working days. The Association was most concerned to discover that the Secretary of State had published a draft Code of Conduct before the expiration of the 5 working day deadline and that the final Code of Conduct does not seem to have been altered in any way from the text of the draft. The Association are disappointed by the Secretary of State’s actions in their case and wish to know whether there is any possibility of challenging the Code of Conduct.
- Scott Ridley, a film producer, contacts you after dealing with a senior civil servant in the government department, which created the Code of Conduct. Scott wishes to produce a new film and he is unsure whether or not certain parts of the film are likely to be compatible with the Code of Conduct. In an attempt to clarify his position, Scott wrote to the department 10 weeks ago seeking clarification of a number of points in the Code but did not receive a response. As a result of this, Scott telephoned the government department and spoke to a senior civil servant, who said that they had lost his original letter and that, furthermore, the department would not ‘waste time’ offering advice on the interpretation of the Code of Conduct. Scott is both aggrieved and upset about his treatment and wonders whether there are any means of redress available to him.
- Cinemascape, a cinema company owned by Phil Projector. In a recent incident, 3 of Cinemascape’s 55 cinemas accidentally showed an un-edited version of a film which had three minutes of prohibited footage which should have been edited out. The mistake was quickly noticed and the film was only shown on one occasion at each of the three cinemas. The Secretary of State has responded to this by issuing a closure order, closing all 55 of Cinemascape’s cinemas for four weeks and levying a fine of £500,000. This has caused substantial damage to Cinemascape’s business and the company now runs the risk of insolvency due to the lost revenue resulting from the closure of its cinemas. Phil wishes to know what options may be available to him to challenge the measures taken against Cinemascape and to seek some recompense for the heavy losses that have been incurred due to the closures.
CERTOIORARI
They will have to consider applying for an order of Certiorari is corrective and squashes the record.
The constitution has widened the scope of the rights of the citizen, which may need to be protected before they are violated.
It causes issues to be brought up from the record of an inferior statutory tribunal to be squashed. It is to remove proceedings from inferior tribunals to the High court for a variety of purposes, sometimes at common law, sometimes by statute, sometimes in virtue of both.
At common law, certiorari was a supervisory writ, serving to keep “all inferior jurisdictions within the bounds of their authority … [protecting] the liberty of the subject, by speedy and summary interposition”. In England and Wales, and separately in Northern Ireland, the Court of King’s Bench was tasked with the duty of supervising all lower courts, and had power to issue all writs necessary for the discharge of that duty; the justices of that Court appeared to have no discretion as to whether it was heard, as long as an application for a bill of certiorari met established criteria, as it arose from their duty of supervision.
The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint, which sets the Crown in motion.[6]
Consistent with Justice Wilson’s explanation, the power to issue writs of certiorari is invested in the highest court of every Commonwealth jurisdiction, in some way, shape, or manner. While some incorporate this remedy into their Constitutions, e.g., India, others treat it as an implied power of superior courts, e.g., Australia, but in all Commonwealth jurisdictions—as distinguished from their American counterpart—it has evolved into a general remedy for the correction of plain error, to bring decisions of an inferior court or tribunal or public authority before the superior court for review so that the court can determine whether to quash such decisions.
