Entick v Carrington (1765) 19 St Tr 1030

Entick v Carrington (1765) 19 St Tr 1030

Entick v Carrington¹ 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 “cannot exercise public power unless such exercise of it is authorised by some specific rule of law”.² Government officials cannot enter private premises without legal authority.

The government of the day suspected Entick of anonymously writing “scandalous reflections and invectives upon His Majesty’s Government, and upon both Houses of Parliament”.³ The Earl of Halifax, who was “acting as Secretary of State”⁴ (i.e. in an executive capacity), issued a warrant to search Entick’s home. Carrington and three others broke into his premises “with force and arms [….] without his consent and against his will” in pursuance of this warrant.⁵ They spent a total of four hours looking for evidence to confirm the government’s suspicions, prying into Entick’s 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 £2000.

The defendants denied all charges against them. They relied upon two defences:

1. That they were acting as messengers under a warrant issued by the Earl of Halifax acting as “Secretaries of State” (sic);
2. That this warrant was a legal warrant, meaning that they could “justify what they had done by virtue thereof”.⁶

In other words, they claimed that they were acting under a warrant, and this warrant was legally binding on the court.

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 “no book in the law whatever” that gave the Earl the authority to issue such a warrant in these circumstances.⁷ Finding the defendants liable, Lord Camden was famously quoted as saying:

“….if 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”.⁸

At most, Lord Camden considered the warrant was analogous to a warrant to “search 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”.⁹ Furthermore, Carrington’s search and the items seized did not relate to stolen goods.

Many of the liberal values we presently hold dear build on this case. Before it was decided, it was said “such warrants have been granted by Secretaries of State ever since the Revolution”. In no uncertain terms, Lord Camden demanded that “it 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”.¹⁰

Writing just over a century earlier, the great constitutional philosopher John Locke concluded that it was “too great a temptation to human frailty” for executive and legislative ambits of government to intertwine.¹¹ Lord Camden’s 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 ‘separation of powers’.¹² As Dicey would go on to note, “every 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”.¹³

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.¹⁴ Its effects are also felt in Australia, influencing major constitutional decisions such as that in A v Hayden.¹⁵ 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.

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, “governing the state itself and its relationship with its citizens”, and private law, which “regulates relationships between its citizens”.¹⁶ 250 years after it was decided, it is still cited as the leading authority demonstrating the ‘principle of legality’. Contemporary exercise of executive power under the UK constitution is described by leading lawyers as a “matter of law not a matter of fact”, meaning that use of this power “….must be determined with reference to some enactment or reported case”. Powers cannot be exercised arbitrarily, unless they have existed “from time immemorial”.¹⁷

Despite Entick v Carrington’s continuing global resonance, some commentators have questioned the case’s continued significance as the UK’s 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.¹⁸ 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 Ralph¹⁹ and Kahn v Commissioner of Police of the Metropolis²⁰ demonstrate that when forced to depart from principles in Entick v Carrington, the courts are extremely careful and conservative about doing so.²¹

Footnotes

¹(1765) 19 St Tr 1030

²Thompson & Gordon, Cases & Materials on Constitutional & Administrative Law, 11th Edition (2014)

³ibid 1, p276

⁴ibid 1, p811

⁵ibid

⁶ibid 1, p281

⁷ibid 1, p282

⁸ibid 1, p290

⁹ibid 1, p282

¹⁰ibid 1, p282

¹¹J Locke, Two Treasties of Government (ed. Laslett), ch XII, para 143

¹²Montesquieu, The Spirit of the Laws, book XI,

¹³AV Dicey, Law of the Constitution (10th Edition), 1959, p193

¹⁴e.g, Boyd v United States, 116 U.S. 616 (1886)

¹⁵1984 HCA 67

¹⁶Alder, Constitutional and Administrative Law, 9th edition (2013), p.84

¹⁷Halsbury’s Laws of England, Vol20 (5th edition), para7 p16

¹⁸Hunt & Duffy, Goodbye Entick v Carrington: The Security Service Act 1996, E.H.R.L.R. (1997), 1, 11-20

¹⁹2008 HCJAC 55

²⁰2008 EWCA Civ 723

²¹Wicks & Carney, Unlawful Search, Pol. J. (2009), 81(4), 341-344