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Entick v Carrington [1765] EWHC KB J98

Our second case is Entick v Carrington [1765] EWHC KB J98, which is one of my favourite cases. It can be summed up in one line: “nobody is above the law”.

The facts of this case are as follows. On 11 November 1762, the King’s Chief Messenger (Mr Carrington) was accompanied by three other King’s messengers. They were tasked with breaking into the home of Mr Entick (a writer) on the orders of the Secretary of State. The reason for the break in was because Mr Entick was suspected of writing a libellous pamphlet against the government. During the raid, the four men broke open a series of locks and doors, searched every room in the property and then took away approximately 100 charts and 100 pamphlets. The property was damaged and the value of the damage was £2,000 at the time. That is, roughly, between £300,000 - £400,000 in today’s money.

Mr Entick sued the Messengers on the basis of trespass to his land (a tort). The defence asserted that because the Messengers were acting under the warrant of the Secretary of State, they had the authority to be present and conduct the search. Therefore, they maintained they could not be liable in tort.

The defence failed. Lord Camden, the then Chief Justice of the Common Plea and the judge presiding over this case, held that the State may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law.

Therefore, Entick v Carrington established the limits of executive power in English law: the State may act lawfully only in a manner prescribed by statute or common law. It brings to light a stark contrast between the ambits of what is permissible for the State on the one hand, and its citizens on the other. Although Entick v Carrington applied the law of trespass, it was applied in such away that it would in the 21st Century, be akin to an exercise of public law powers amenable to JR. The judgment, in essence, brings the substance of the rule of law to life; a public body simply cannot act without legal authority merely because it was either (in the State’s mind) desirable to do so or because the State considered it necessary to have the power in the national interest.

Whilst this is an old case, again, it is nonetheless very important. Entick v Carrington is one which has continued to shape society today. When we think about it, many JR claims have an element to them that the local authority in question is alleged to have acted without the requisite statutory powers to do so. It has even had implications on modern society in a grander sense: the case has featured in the context of data sharing between the UK and EU.

One final historical fact about Entick v Carrington is this: it forms part of the background to the Fourth Amendment of the US Constitution.

Stay tuned for part 3.


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