Home > Chambers Resources > Cases > R(Brooks) v Independent Adjudicator, Secretary of State for Justice Intervening [2016] EWCA Civ 1033


R(Brooks) v Independent Adjudicator, Secretary of State for Justice Intervening [2016] EWCA Civ 1033




The Court of Appeal allowed the Secretary of State’s appeal in this leading case on the question of the nature of an allegedly unlawful act in terms of the Human Rights Act 1998. The court accepted the novel “Luther Point” – namely that the Governor in this context could do other than detain in accordance with primary legislation and thus there could be no unlawful act within the meaning of section 6 HRA and the declarations and award of damages were accordingly overturned. The court also accepted submissions from the SSJ that the detention did not amount to a violation of Article 5(1). Further, obiter, the court indicated that had the issue remained live, they would have found in favour of the SSJ on the submissions in relation to the “second actor” theory in public law, namely that this case was one of those there were the invalidity should take effect not ab intito but ex nunc, following a decision to quash in judicial review.