• In the case of International Transport Toth GmbH v Home Secretary [2002] ewca Civ 158 [2003] QB 728, it was found that the degree of defence provided by a court is dependent on the institutional competence of the executive or judiciary.

Facts of the Case

  • D, the Home Secretary, put forward a scheme under section 32 of the Immigration and Asylum Act 1999, which made carriers susceptible to a penalty for each illegal entrant found in their vehicles.
  • Cs brought legal claims against D on the basis that the scheme was illegal.
  • The Judge found the scheme to be incompatible with Article 6 of the European Convention on Human Rights and A1P1 to the Convention. It was also found that the scheme was in contravention with Community law since it was an unjust restriction on the longstanding ‘free movement of goods’ principle in the EU.
  • D appealed the decision by the Judge.


  • Was the scheme in breach of Article 6?
  • Was the scheme a breach of Community law?

Held by the Court of Appeal

  • The Court of Appeal dismissed the scheme in part: the Court found the scheme to be in breach of Article 6 but they found no breach of Community law.

Simon Brown LJ

  • His Lordship emphasised the principle of proportionality and assessed the burden on the drivers. He subsequently found that there was too much of a burden on drivers under the scheme.
  • “It is further implicit in the concept of proportionality… that not merely must the impairment of the individual’s rights be no more than necessary for the attainment of the public policy objective sought, but also that it must not impose an excessive burden on the individual concerned.” [52]

Laws LJ (dissenting)

  • His Lordship focussed on the differences between the duties of the executive and the duties of the judiciary and found that the executive has the responsibility over the security of the state’s borders, while the judiciary is responsible for overseeing criminal justice.
  • “The extend of any deference to be paid to the legislature depends in part on the nature and quality of the measure in question: more concretely, whether its content falls within the special responsibility of the executive… or the special responsibility of the judiciary. A paradigm of the executive’s special responsibility is the security of the state’s borders. A paradigm of the judiciary’s special responsibility is the doing of criminal justice.”