R v Secretary of State for the Home Department, ex parte Chinoy

JurisdictionEngland & Wales
Judgment Date10 April 1991
Date10 April 1991
CourtQueen's Bench Division (Administrative Court)

Queen's Bench Divisional Court

Before Lord Justice Bingham and Mr Justice McCullough

Regina
and
Secretary of State for the Home Department, Ex parte Chinoy

Judicial review - leave - power to set aside - criminal proceedings

Power to set aside leave for review

The court's inherent jurisdiction to set aside leave to apply for judicial review which had been granted ex parte extended to applications for judicial review of decisions in criminal proceedings as well as to challenges to decisions in civil proceedings.

The Queen's Bench Divisional Court so held in granting an application by the Secretary of State for the Home Department for an order setting aside leave granted to Nazir Chinoy to apply for judicial review of the secretary of state's decision to extradite him to the United States of America.

Mr David Pannick for the secretary of state; Mr Clive Nicholls for the applicant.

LORD JUSTICE BINGHAM said that it had been argued that the court had no power to set aside leave granted ex parte to apply for judicial review of a decision taken in criminal proceedings. His Lordship rejected that submission.

Order 32, rule 6 of the Rules of the Supreme Court conferred the power to set aside any order made ex parte without any limitation.

Finally, there was the principle of law that an order made against a party in his absence should be capable of being set aside.

His Lordship could see no reason for there to be a difference between civil and criminal proceedings. The court could exercise its discretion to set aside leave granted ex parte if on inter partes argument it decided that ex parte leave should not have been given.

However, the power should be invoked very sparingly. The courts would grant such an order only in very plain cases. It would be quite wrong to set aside leave which had been granted unless the issue was very clear.

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36 cases
  • C.S. v Minister for Justice
    • Ireland
    • Supreme Court
    • 27 July 2004
    ...V DPP & MCGUINNESS 2002 2 IR 369 2003 1 ILRM 81 2002/12/2907 ADAM V MIN JUSTICE 2001 2 ILRM 452 R V SECRETARY OF STATE EX PARTE CHINOY 1991 COD 381 REFUGEE ACT 1996 S17(1)(B) Synopsis: - [2005] 1 ILRM 81 Facts: the applicants were granted leave to apply for judicial review by the High Co......
  • Gordon v DPP
    • Ireland
    • Supreme Court
    • 7 June 2002
    ...have been set aside. Citations: G V DPP 1994 1 IR 374 ADAM V MIN FOR JUSTICE 2001 2 ILRM 452 R V SECRETARY OF STATE , EX PARTE CHINOY 1991 COD 381 O" CALLAGHAN V O" HUADHAIGH 1977 IR 42 FLYNN V DPP 1986 ILRM 294 MURPHY V DPP 1989 ILRM 71 HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED ......
  • R v Rimas Venclovas
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 8 November 2013
    ...judge held that there was no evidence of bad faith and that, applying the observations of Nolan J (as he then was) in R v Governor of Pentonville Prison, ex parte Chinoy [1992] 1 All ER 317 at page 332, any breach could carry no more weight than breaches of English law. In the circumstances......
  • Adam v Minister for Justice
    • Ireland
    • Supreme Court
    • 5 April 2001
    ...WOLFE & JOWELL JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 667 PARA 15.025 R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE CHINOY 1991 COD 381 R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE TURGUT 2001 AER 719 RSC O.19 SCHMIDT V HOME SECRETARY OF THE GOVERNMENT OF THE UNITED K......
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2 books & journal articles
  • The extradition and return of fugitive offenders - applicability of human rights considerations
    • Caribbean Community
    • Caribbean Law Review No. 5-1, June 1995
    • 1 June 1995
    ...by unlawful means as "legitimate", 59 which does not easily accord with the "philosophy" 60 of Bennett. On the other hand, even 56 [1992] 1 All E.R. 317. 57 Ibid., at 332, per Nolan J. (as he then was), 58 Ibid., at 332-333. 59 "I consider that the magistrate was fully entitled to reach his......
  • Undercover Operations and White Collar Crime
    • United Kingdom
    • Journal of Financial Crime No. 2-2, March 1994
    • 1 March 1994
    ...the United States is helping to spread undercover investigations worldwide.' 9 R v Governor of Pentonville Prison, exparte Chinoy(1992) 1 All ER 317. 10 'Undercover Surveillance Did Not Breach Applicant's Rights', The Times Law Report, 13th August, 1992. 11 Nolan J, In Re Chinoy, ref. 9 abo......

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