<\/p>\n
Entick v Carrington is a seminal case in English constitutional law. Although superficially concerning trespass, the decision in this case was also to have profound constitutional implications for common law jurisdictions across the globe. It established the principle that prerogative powers of the monarch and government are subordinate to the law of the land. It guarantees that government officials acting in an executive capacity \u201ccannot exercise public power unless such exercise of it is authorised by some specific rule of law\u201d. Government officials cannot enter private premises without legal authority.<\/p>\n
The government of the day suspected Entick of anonymously writing \u201cscandalous reflections and invectives upon His Majesty’s Government, and upon both Houses of Parliament\u201d. The Earl of Halifax, who was \u201cacting as Secretary of State\u201d (i.e. in an executive capacity), issued a warrant to search Entick\u2019s home. Carrington and three others broke into his premises \u201cwith force and arms [\u2026] without his consent and against his will\u201d in pursuance of this warrant. They spent a total of four hours looking for evidence to confirm the government\u2019s suspicions, prying into Entick\u2019s personal papers and causing considerable damage to property. A number of documents and personal items were removed. Entick claimed that Carrington had no right to enter or interfere with his property. He sued for damages of \u00a32000.<\/p>\n
The defendants denied all charges against them. They relied upon two defences:<\/p>\n
That they were acting as messengers under a warrant issued by the Earl of Halifax acting as \u201cSecretaries of State\u201d (sic);<\/p>\n
That this warrant was a legal warrant, meaning that they could \u201cjustify what they had done by virtue thereof\u201d.<\/p>\n
In other words, they claimed that they were acting under a warrant, and this warrant was legally binding on the court.<\/p>\n
In reaching a verdict, the presiding judge, Lord Camden, conceded that the Earl of Halifax had indeed acted as Secretary of State. However, he could not find \u201cno book in the law whatever\u201d that gave the Earl the authority to issue such a warrant in these circumstances. Finding the defendants liable, Lord Camden was famously quoted as saying:<\/p>\n
\u201c\u2026if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave\u201d.<\/p>\n
At most, Lord Camden considered the warrant was analogous to a warrant to \u201csearch for stolen goods and seize them, but this ought to have been directed to constables and other public officers that the law takes notice of\u201d. Furthermore, Carrington\u2019s search and the items seized did not relate to stolen goods.<\/p>\n
Many of the liberal values we presently hold dear build on this case. Before it was decided, it was said \u201csuch warrants have been granted by Secretaries of State ever since the Revolution\u201d. In no uncertain terms, Lord Camden demanded that \u201cit is high time to put an end to them, for if they are held to be legal, the liberty of this country is at an end\u201d.<\/p>\n
Writing just over a century earlier, the great constitutional philosopher John Locke concluded that it was \u201ctoo great a temptation to human frailty\u201d for executive and legislative ambits of government to intertwine. Lord Camden\u2019s judgment helped to solidify the lines of demarcation between executive and legislative powers. This directly paved the way for great works by the likes of Montesquieu, which in turn helped to establish the doctrine of \u2018separation of powers\u2019. As Dicey would go on to note, \u201cevery official, from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification\u201d.<\/p>\n
The decision in this case also had global ramifications. It heavily influenced the drafting of the US Constitution, credited by many as the principal influence behind the Fourth Amendment. Its effects are also felt in Australia, influencing major constitutional decisions such as that in A v Hayden. Articles 6 and 8 of the European Convention on Human Rights, guaranteeing a fair trial as prescribed by law and right to private life respectively, can also be said to trace their DNA back to this case.<\/p>\n
In the present age, the principles first demonstrated by Entick v Carrington are almost universally considered to be vital components in any healthy, functioning democracy. The case has been said to enshrine in law the distinction between public law, \u201cgoverning the state itself and its relationship with its citizens\u201d, and private law, which \u201cregulates relationships between its citizens\u201d. 250 years after it was decided, it is still cited as the leading authority demonstrating the \u2018principle of legality\u2019. Contemporary exercise of executive power under the UK constitution is described by leading lawyers as a \u201cmatter of law not a matter of fact\u201d, meaning that use of this power \u201c\u2026must be determined with reference to some enactment or reported case\u201d. Powers cannot be exercised arbitrarily, unless they have existed \u201cfrom time immemorial\u201d.<\/p>\n
Despite Entick v Carrington\u2019s continuing global resonance, some commentators have questioned the case\u2019s continued significance as the UK\u2019s unwritten constitution evolves over time. The Security Services Act 1996 gave the Secretary of State the power to issue warrants to interfere with property and tamper with wireless telephony. This was seen by some to be tantamount to unwarranted executive interference into personal liberty. However, it must be noted that the Act was considered and passed by the legislature with conditions. As such, it does not permit executive power to be exercised on a whim. Furthermore, cases such as Gillies v Ralphand Kahn v Commissioner of Police of the Metropolisdemonstrate that when forced to depart from principles in Entick v Carrington, the courts are extremely careful and conservative about doing so.<\/p>\n
A v Hayden [1984] HCA 67<\/p>\n
Boyd v United States, 116 U.S. 616 (1886)<\/p>\n
Entick v Carrington (1765) 19 St Tr 1030<\/p>\n
Gillies v Ralph [2008] HCJAC 55<\/p>\n
Kahn v Commissioner of Police of the Metropolis [2008] EWCA Civ 723<\/p>\n
European Convention on Human Rights 1950<\/p>\n
Human Rights Act 1998<\/p>\n
Security Services Act 1996<\/p>\n
Alder, Constitutional and Administrative Law, 9th edition (2013)<\/p>\n
AV Dicey, Law of the Constitution (10th Edition), 1959<\/p>\n
Halsbury\u2019s Laws of England, Vol20 (5th edition)<\/p>\n
J Locke, Two Treasties of Government (ed. Laslett)<\/p>\n
Montesquieu, The Spirit of the Laws, book XI<\/p>\n
Thompson & Gordon, Cases & Materials on Constitutional & Administrative Law, 11th Edition (2014)<\/p>\n
Hunt & Duffy, Goodbye Entick v Carrington: The Security Service Act 1996, E.H.R.L.R. (1997), 1, 11-20<\/p>\n
Wicks & Carney, Unlawful Search, Pol. J. (2009), 81(4), 341-344<\/p>\n
(1765) 19 St Tr 1030<\/p>\n
Thompson & Gordon, Cases & Materials on Constitutional & Administrative Law, 11th Edition (2014)<\/p>\n
ibid 1, p276<\/p>\n
ibid 1, p811<\/p>\n
J Locke, Two Treasties of Government (ed. Laslett), ch XII, para 143<\/p>\n
Montesquieu, The Spirit of the Laws, book XI,<\/p>\n
AV Dicey, Law of the Constitution (10th Edition), 1959, p193<\/p>\n
e.g, Boyd v United States, 116 U.S. 616 (1886)<\/p>\n
[1984] HCA 67<\/p>\n
Alder, Constitutional and Administrative Law, 9th edition (2013), p.84<\/p>\n
Halsbury\u2019s Laws of England, Vol20 (5th edition), para7 p16<\/p>\n
Hunt & Duffy, Goodbye Entick v Carrington: The Security Service Act 1996, E.H.R.L.R. (1997), 1, 11-20<\/p>\n
[2008] HCJAC 55<\/p>\n
[2008] EWCA Civ 723<\/p>\n
Wicks & Carney, Unlawful Search, Pol. J. (2009), 81(4), 341-344<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
Entick v Carrington is a seminal case in English constitutional law. Although superficially concerning trespass, the decision in this case was also to have profound constitutional implications for common law jurisdictions across the globe.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23],"tags":[85],"class_list":["post-3324","post","type-post","status-publish","format-standard","hentry","category-free-law-essayspublic-law","tag-uk-law"],"yoast_head":"\n