Category: Human Rights

Regina (CD and ADR) v Secretary of State for the Home Department: QBD 17 Jan 2003

The applicant challenged the decision to separate her from her child whilst she was in prison.
Held: such a separation engaged her article 8 Human Rights, and she must be allowed representation when a decision was made. The Prison Service should call in appropriate experts in deciding what were the child’s needs, the effect of separation, and the proportionality of the intended act to the need.

Judges:

Maurice Kay J

Citations:

Times 27-Jan-2003, [2003] EWHC 155 (Admin), [2003] 1 FLR 979

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Lists of cited by and citing cases may be incomplete.

Prisons, Children, Human Rights

Updated: 13 October 2022; Ref: scu.178704

Moss v Information Commissioner: CA 15 May 2020

This case concerns the principle of open justice and the application of orthodox principles to an application by a litigant for an anonymity order, namely, the balancing exercise between an individual’s Article 8 and 6 rights of the European Convention on Human Rights and the Article 10 and 6 ECHR rights of the press and public.

Judges:

Lord Justice Haddon-Cave

Citations:

[2020] EWCA Civ 580

Links:

Bailii

Statutes:

European Convention on Human Rights 8 10

Jurisdiction:

England and Wales

Citing:

Appeal from – D v The Information Commissioner UTAA 21-Dec-2018
Information Rights – Data Protection. The applicant appealed from refusal of his application for anonymity in his substantial appeal to the tribunal.
Held: The anonymity order was properly refused. . .

Cited by:

Cited – XXX v Camden London Borough Council CA 11-Nov-2020
Anonymity in Court Proceedings – No two stage test
XXX appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments. The appeal raised a point about the proper approach to applications for anonymisation under CPR 39.2. She brought . .
Cited – XXX v Camden London Borough Council CA 11-Nov-2020
Anonymity in Court Proceedings – No two stage test
XXX appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments. The appeal raised a point about the proper approach to applications for anonymisation under CPR 39.2. She brought . .
Lists of cited by and citing cases may be incomplete.

Information, Human Rights

Updated: 13 October 2022; Ref: scu.650809

Moss v Information Commissioner and The Cabinet Office: UTAA 30 Jul 2020

Whether European Court of Human Rights’ decision in Magyar applies in domestic law in terms of Article 10(1) of European Court of Human Rights covering a right of access to information or whether Upper Tribunal should follow the Supreme Court’s decision in Kennedy as to Article 10(1)’s scope – if Magyar does apply, whether criteria laid down in that decision for engaging a right under Article 10(1) met – if Article 10 applied, whether Freedom of Information Act (section 12) cause of any potential breach of Article 10 – whether Upper Tribunal can provide any remedy available for such a breach.

Citations:

[2020] UKUT 242 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Information, Human Rights

Updated: 13 October 2022; Ref: scu.656570

Yalland and Others v Secretary of State for Exiting The European Union (629): Admn 3 Feb 2017

Application for anonymity order – challenge to constitutionality of proposed steps in leaving the EU.
Held: Granted for those applying for it.
The common law rights of the public and press to know about court proceedings are also protected by article 10 of the ECHR

Citations:

[2017] EWHC 629 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Yalland and Others v Secretary of State for Exiting The European Union (630) Admn 3-Feb-2017
Renewed applications for permission to apply for judicial review of the decision taken to leave the EU: ‘The thrust of the claim is that the UK Government has allegedly already decided that an automatic consequence of the United Kingdom leaving the . .
Cited – XXX v Camden London Borough Council CA 11-Nov-2020
Anonymity in Court Proceedings – No two stage test
XXX appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments. The appeal raised a point about the proper approach to applications for anonymisation under CPR 39.2. She brought . .
Cited – Imam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Human Rights

Updated: 13 October 2022; Ref: scu.628714

SC v The United Kingdom: ECHR 14 Sep 2011

Citations:

[2011] ECHR 1670, 60958/00

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – SC v The United Kingdom ECHR 15-Jun-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 13 October 2022; Ref: scu.567377

SC v The United Kingdom: ECHR 15 Jun 2004

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses partial award – Convention proceedings
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses partial award – Convention proceedings
The claimant was a child aged 11, and complaint was made that he had been tried by an adult court.
Held: He was described as having low intelligence, and had not understood the significance of the proceedings. This had the effect of depriving him of an effective opportunity to participate effectively in the proceedings, and thus denied him the right to a fair trial.

Citations:

60958/00, Times 29-Jun-2004, [2004] ECHR 263, 17 BHRC 607, [2005] Crim LR 130, (2005) 40 EHRR 10, [2005] 1 FCR 347

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6, European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Stanford v United Kingdom ECHR 11-Apr-1994
A defendant’s difficulty in hearing the case because of a screen erected to protect the identity of witnesses did not vitiate the trial or make it unfair. The right to a fair trial included the right to be present and in a position to follow the . .
Cited – V v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .

Cited by:

See Also – SC v The United Kingdom ECHR 14-Sep-2011
. .
Cited – Orr, Regina v CACD 7-Jul-2016
The court considered whether the trial court had correctly identified the test for fitness to plead.
Held: The appeal was allowed: ‘Once the issue of fitness to plead has been raised it must be determined. In this case, the judge explicitly . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 October 2022; Ref: scu.198290

Fearnley v Director of Public Prosecutions: Admn 10 Jun 2005

The defendant appealed his conviction for driving with excess alcohol. He said that the machine used to measure his breath alcohol was not of the type approved by the Secretary of State.
Held: There was a presumption that the Intoximeter used was type approved. The defendant had brought no evidence to suggest otherwise. The magistrates had exercised a discretion, and that decision was not appealable. They were entitled to be satisfied as to the authenticity of the device under section 24 of the 1988 Act.
Field J said that although the defence statement purported to put the prosecution specifically to proof that the software was UK 5.23, that did not mean that the prosecution has specifically to prove this matter. A general presumption flowed from the fact that the machine was of a type that had been approved. This presumption was plainly consistent with Article 6 ECHR. Thus it was for the appellant to adduce some evidence that the software was otherwise than the specified software. At no stage did the appellant adduce such evidence and therefore he could have no substantial complaint that the prosecution were allowed to provide specific proof of the software through the engineer’s report

Judges:

Brooke LJ, Field J

Citations:

Times 06-Jul-2005, [2005] EWHC 1393 (Admin)

Links:

Bailii

Statutes:

Criminal Justice Act 1988 24

Jurisdiction:

England and Wales

Cited by:

Cited – Coxon v Manchester City Magistrates Court Admn 11-Mar-2010
The defendant sought judicial review of the magistrate’s refusal to state a case for an appeal against his conviction for driving with excess alcohol, saying that the intoximeter used had not received type approval as required. The defendant’s . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Magistrates, Human Rights

Updated: 11 October 2022; Ref: scu.228581

Skjevesland v Geveran Trading Co Ltd: CA 30 Oct 2002

The debtor’s wife was personally acquainted with counsel for the petitioner in his bankruptcy examination. He sought that it be set aside.
Held: Whereas a judge had a duty to be independent of the parties, no such duty fell on counsel. A court might disqualify counsel where there was a complaint as to use, or disclosure of confidential material in his possession, or other exceptional material. CPR 1.3 requires the parties to ‘help the court to further the overriding objective’. That duty extends to the legal advisers of the parties, including advocates.

Judges:

Arden LJ, Schiemann LJ, Dyson LJ

Citations:

Times 13-Nov-2002, [2002] EWCA Civ 1567, [2003] 1 All ER 1, [2003] 1 WLR 912, [2003] BPIR 238

Links:

Bailii

Statutes:

Civil Procedure Rules 1.3

Jurisdiction:

England and Wales

Citing:

Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Appeal from – Skjevesland v Geveran Trading Company Limited ChD 2002
The registrar had decided that the debtor’s centre of main interests was situated in Switzerland.
Held: Article 3 of Regulation (EC) 1346/2000 did not displace the bankruptcy jurisdiction which (as the registrar found) the High Court would . .

Cited by:

Cited – Richard Buxton (Solicitors) v Mills-Owens and Another CA 23-Feb-2010
The solicitors felt that the instructions received from their client were to pursue points which neither they nor counsel thought were properly arguable. They withdrew from the case, and now appealed against a refusal of their costs on the basis . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 11 October 2022; Ref: scu.178073

Worm v Austria: ECHR 29 Aug 1997

ECHR Preliminary objection rejected (six month period); No violation of Art. 10 – ‘The phrase ‘authority of the judiciary’ includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the settlement of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge; further, that the public at large have respect for and confidence in the court’s capacity to fulfil that function. ‘Impartiality’ normally denotes lack of prejudice or bias. However, the court has repeatedly held that what is at stake in maintaining the impartiality of the judiciary is the confidence which the courts in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and also in the public at large. It follows that, in seeking to maintain the ‘authority and impartiality of the judiciary’, the Contracting States are entitled to take account of considerations going – beyond the concrete case – to the protection of the fundamental role of courts in a democratic society.’

Citations:

22714/93, (1998) 25 EHRR 454, [1997] ECHR 52, [1995] ECHR 99

Links:

Worldlii, Bailii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 11 October 2022; Ref: scu.165524

In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G: HL 18 Jun 2008

The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater commitment to traditional family structures did not however justify the difference. The rules were unlawful discrimination.
Lord Hoffmann said: ‘the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status. For the reasons I have given earlier, I would declare that notwithstanding article 14 of the Order, the appellants are entitled to apply to adopt the child.’
He went on to point out that ‘Convention rights’, as defined in section 1 of the 1998 Act, were ‘domestic and not international rights’, and that the duty of domestic courts under section 2 of that Act was to ‘take into account’, rather than to regard themselves as bound by, decisions of the Strasbourg court, but that there were normally ‘good reasons why we should follow the interpretation adopted in Strasbourg’. However, different ‘considerations apply in cases in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says the question is within the margin of appreciation’. In such cases, ‘it is for the court in the United Kingdom to interpret [the relevant article or articles of the Convention] and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United .Kingdom’. He expanded on this by adding that ‘[t]he margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers’.
Baroness Hale said that ‘lack of marital status is as much a ‘status’ for the purpose of article 14 as is the status of marriage itself.’
and ‘it is clear that the doctrine of the ‘margin of appreciation’ as applied in Strasbourg has no application in domestic law. The Strasbourg court will allow a certain freedom of action to member states, which may mean that the same case will be answered differently in different states (or even in different legal systems within the same state). This is particularly so when dealing with questions of justification, whether for interference in one of the qualified rights, or for a difference in treatment under article 14. National authorities are better able than Strasbourg to assess what restrictions are necessary in the democratic societies they serve. So to that extent the judgment must be one for the national authorities.’
Lord Hope said that even in an area of social and economic policy, falls within the constitutional responsibility of the courts: ‘Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests.’
Orse – In re G (Adoption: Unmarried Couple)

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance

Citations:

[2008] UKHL 38, Times 23-Jun-2008, [2008] UKHRR 1181, [2008] Fam Law 977, [2008] 2 FCR 366, [2009] 1 AC 173, [2008] NI 310, [2008] 24 BHRC 650, [2008] 2 FLR 1084, [2008] HRLR 37, [2008] 3 WLR 76

Links:

Bailii, HL

Statutes:

Adoption (Northern Ireland) Order 1987 (SI 1987/2203(NI 22)) 13, Human Rights Act 1998 1(1), European Convention on Human Rights 14

Jurisdiction:

Northern Ireland

Citing:

Cited – Von Lorang v Administrator of Austrian Property 1927
Viscount Haldane said: ‘[T]he marriage gives the husband and wife a new legal position from which flow both rights and obligations with regard to the rest of the public. The status so acquired may vary according to the laws of different . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – PM v The United Kingdom ECHR 19-Jul-2005
A father complained that tax deductions which were granted to married fathers but not to unmarried fathers were discriminatory. He had paid maintenance for his daughter, but was not allowed to set the payments off against his income tax in the way . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Frette v France ECHR 26-Feb-2002
A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article . .
Cited – Du Toit and Vos v Minister for Welfare and Population Development 10-Sep-2002
(South African Constitutional Court) Prospective adoptive parents were a same-sex couple who challenged laws preventing them from adopting. The court said: ‘In their current form the impugned provisions exclude from their ambit potential joint . .
Cited – EB v France ECHR 14-Mar-2007
A homosexual woman complained that she had not been allowed to adopt a child. Her application was rejected by the French administrative court on grounds based substantially upon her sexual orientation.
Held: The provision was an unlawful . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – T, Petitioner IHCS 1997
The House discussed the duties of a court in adoption cases: ‘There can be no more fundamental principle in adoption cases than that it is the duty of the court to safeguard and promote the interests of the child. Issues relating to the sexual . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Burden and Burden v The United Kingdom ECHR 12-Dec-2006
Sisters,Together always not Discriminated Against
(Grand Chamber) The claimants were sisters who had lived together all their lives and owned property jointly. They complained that the Inheritance Tax regime treated them worse than it would a married couple, and was discriminatory.
Held: . .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Karner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Cited by:

Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Cited – Johns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Cited – Mathieson v Secretary of State for Work and Pensions SC 8-Jul-2015
The claimant a boy of three in receipt of disability living allowance (‘DLA’) challenged (through his parents) the withdrawal of that benefit whilst he was in hospital for a period of more than 12 weeks. He had since died.
Held: The appeal . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Cited – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Cited – Brewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Cited – RR v Secretary of State for Work and Pensions SC 13-Nov-2019
Housing benefit regulations had been found unlawful and were amended. The Court now considered what payments should have been made before the amendments came into effect.
Held: The appeal was allowed, and RR’s housing benefit entitlement is to . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Adoption, Human Rights, Constitutional

Leading Case

Updated: 11 October 2022; Ref: scu.269988

Goc v Turkey: ECHR 11 Jul 2002

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 on account of the absence of an oral hearing; Violation of Art. 6-1 on account of the non-communication of the opinion of the Principal Public Prosecutor; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
The applicant claimed compensation for alleged false imprisonment and torture and other ill-treatment by the police while he was in custody for which he had sought compensation. He complained that the court of first instance had denied him an oral hearing at which he could present his own direct evidence of the distress and anxiety which he had experienced.
Held: (Grand Chamber by a majority of 9 to 8) The refusal of an oral hearing had violated article 6(1). According to the court’s established case law, in proceedings before a court of first and only instance the right to a ‘public hearing’ in the sense of article 6(1) entailed an entitlement to an oral hearing unless there were exceptional circumstances that justified dispensing with such a hearing. The question was how this test was to be applied, given that the proceedings that were under challenge were before a court of first instance. The essentially personal nature of the applicant’s experience, and the determination of the level of compensation required that he be heard and that these factors outweighed the considerations of speed and efficiency on which, according to the government, the relevant law on which an oral hearing had been denied to him was based. Dissenting minority: The court’s case law had never required oral proceedings in all circumstances. Having referred to various authorities (dissenting opinion): ‘That case-law lays down three criteria for determining whether there are ‘exceptional circumstances’ which justify dispensing with a public hearing: there must be no factual or legal issue which requires a hearing; the questions which the court is required to answer must be limited in scope and no public interest must be at stake.’ and ‘Requiring domestic courts to hold a hearing every time a claim raising no particular problems is submitted to them might practically frustrate the objective of complying with the ‘reasonable time’ requirement in article 6(1) of the Convention.’

Citations:

2002-V, p 193, 36590/97, [2000] ECHR 552, [2002] ECHR 584, [2000] ECHR 554, [2002] ECHR 589

Links:

Worldlii, Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights 691)

Jurisdiction:

Human Rights

Cited by:

Cited – Dudson, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The defendant had committed a murder when aged 16, and after conviction sentenced to be detailed during Her Majesty’s Pleasure. His tarriff had been set at 18 years, reduced to 16 years after review.
Held: ‘What is at issue is the general . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 October 2022; Ref: scu.174279

Regina v Bernard: CACD 2 Jul 1996

The court considered the general effect of serious medical condition on sentencing, and how it should allow for such a condition.
Held: A sentencing court is fully entitled to take account of a medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the defendant, or as a matter of generally expressed mercy in the individual circumstances of the case

Judges:

Rose LJ

Citations:

Times 02-Jul-1996, [1997] 1 Cr App R (S) 135

Statutes:

European Convention on Human Rights 3

Jurisdiction:

England and Wales

Cited by:

Cited – Hall v Regina CACD 8-Feb-2013
The defendant had been convicted of the importation of large volumes of cocaine. He was however at the time of sentencing, ‘a man who suffers from an extremely grave combination of rare long term medical conditions which interfere with virtually all . .
Cited – Regina v Qazi and Another CACD 4-Nov-2010
The defendant appealed against sentence, saying that given his serious medical condition, any imprisonment would threaten his human rights.
Held: The court set out the law. A court imposing a sentence should not concern itself with the . .
Cited – Regina v Hetherington CACD 2009
The defendant had spina bifida from birth and hydrocephalus from shortly after birth with consequent severe disabilities and medical problems. The sentencing court had before it, in support of a contention by the defendant that his imprisonment . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 08 October 2022; Ref: scu.86118

Ashlarba v Georgia: ECHR 15 Jul 2014

ECHR Article 7-1
Nullum crimen sine lege
Use of undefined colloquial expression in definition of criminal offence: no violation
Facts – In 2005 the Georgian legislature created a series of new offences designed to assist in the fight against organised crime. As part of a wider legislative package Article 223(1) of the Criminal Code was amended to make it an offence to be a member of the ‘thieves’ underworld’ or a ‘thief in law’. Although neither expression was defined in the Code, they were explained in other legislation that was introduced the same day (Law on Organised Crime and Racketeering). The expressions were also known within Georgian society as referring to the professional criminal underworld and ‘Godfather’ type figures among the criminal elite.
In 2007 the applicant was convicted of being a member of the ‘thieves’ underworld’ under Article 223(1) of the Criminal Code and sentenced to seven years’ imprisonment. In his application to the European Court, he complained under Article 7 of the Convention that that provision was not sufficiently precise or foreseeable to enable him to determine what conduct constituted an offence.
Law – Article 7: The Court reiterated that Article 7 – 1 requires that an offence, and its penalties, must be clearly defined by law. Individuals must be able to know from the wording of the relevant provision what acts and omissions will make them criminally liable.
The applicant had been convicted under Article 223(1) of the Criminal Code of being a member of the ‘thieves’ underworld’, a term not defined in the Criminal Code itself. The Court noted, however, that the influence exerted in Georgian society by the ‘thieves’ underworld’ was not only confined to the prison sector, but extended to the public at large and in particular vulnerable members of society such as young people. The rationale behind the decision to create specific laws concerning the milieu in question was to allow the State to more effectively combat these dangerous criminal syndicates which not only affected the criminal underworld, but also contaminated many aspects of ordinary public life. Indeed, studies and submissions supplied by the Government on the impact of the ‘thieves’ underworld’ showed that this criminal phenomenon was deeply rooted in society, and that concepts such as ‘thieves’ underworld’ and ‘thief-in-law’ were common knowledge, and widely understood by the public.
Consequently, the offences introduced by Article 223(1) had merely criminalised concepts whose meaning was already well known to the general public. In the Court’s view, the Georgian legislature had opted to use colloquial terms in the legal definitions because it wished to ensure that the essence of the offences would be grasped more easily by the public at large. The Court did not accept that these concepts were entirely foreign to the applicant, especially as he had expressly suggested the contrary in his depositions during the domestic investigations.
Most importantly, Article 223(1) of the Criminal Code was part of a wider legislative package enacted on the same day which included the Law on Organised Crime and Racketeering. Section 3 of that Law comprehensively explained the definitions of terms such as ‘thieves’ underworld’ and ‘thief-in-law’. When read in conjunction with that Law, Article 223(1) of the Criminal Code conveyed to the ordinary reader all the necessary constituent elements of the two criminal offences relating to the functioning of the ‘thieves’ underworld’. Accordingly, if not through common knowledge, then by reference to section 3 of the Law on Organised Crime and Racketeering and, if need be, with the assistance of appropriate legal advice, the applicant could easily have foreseen which of his actions would have attracted criminal responsibility under Article 223(1) of the Criminal Code.
Conclusion: no violation (unanimously).

Citations:

45554/08 – Chamber Judgment, [2014] ECHR 775, 45554/08 – Legal Summary, [2014] ECHR 884, [2014] ECHR 962

Links:

Bailii, Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Ashlarba v Georgia ECHR 3-Jul-2012
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Crime

Updated: 07 October 2022; Ref: scu.535690

Zornic v Bosnia and Herzegovina: ECHR 15 Jul 2014

ECHR Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to establish without delay political system in which all citizens have the right to stand for elections without discrimination Article 14
Discrimination
Ineligibility to stand for election without declaration of affiliation to one of constitutionally defined ‘constituent peoples’: violation
Article 1 of Protocol No. 12
General prohibition of discrimination
Ineligibility to stand for election without declaration of affiliation to one of constitutionally defined ‘constituent peoples’: violations
Facts – Under the Bosnian Constitution, only persons declaring affiliation with a ‘constituent people’ – defined by the Constitution as Bosniacs, Croats or Serbs – have the right to stand for election to the State Parliament (House of Peoples) and the Presidency of Bosnia and Herzegovina. The applicant, an active participant in the political life of the country, does not wish to declare affiliation with any of the ‘constituent peoples’ as she considers herself a citizen of Bosnia and Herzegovina. She is thus ineligible to stand for election to either office.
Law – Article 14 in conjunction with Article 3 of Protocol No. 1, and Article 1 of Protocol No. 12: In the earlier case of Sejdic and Finci v. Bosnia and Herzegovina* the Court had found the constitutional provisions discriminatory in that they excluded person of Roma or Jewish origin from standing for election. In the present case the applicant had been excluded from standing for election because of her decision not to declare affiliation with any of the ‘constituent people’ as defined by the Constitution. Irrespective of the reasons for her decision, for the reasons set out in Sejdic and Finci there had been a breach of her Convention rights.
Conclusions: violation of Article 14 in conjunction with Article 3 of Protocol No. 1 (six votes to one); violations of Article 1 of Protocol No. 12 (unanimously).
Article 46: The finding of a violation in the present case was a direct result of the authorities’ failure to introduce measures to ensure compliance with the judgment given by the Grand Chamber in Sejdic and Finci. The failure of the respondent State to introduce constitutional and legislative proposals to put an end to the current incompatibility of the Constitution and the electoral law with the Convention was an aggravating factor as regards the State’s responsibility under the Convention for the existing state of affairs as well as a threat to the future effectiveness of the Convention machinery. The execution of the Sejdic and Finci judgment was still under the supervision of the Committee of Ministers, which had regularly examined domestic developments and called for a speedy end to the existing situation of non-compliance. Despite three interim resolutions adopted by the Committee of Ministers urging the national authorities to take all necessary steps with a view to full execution of the Sejdic and Finci judgment, the respondent State had not yet changed the legislation. The Court encouraged the speedy and effective resolution of the situation in a Convention-compliant manner. Eighteen years after the end of the tragic conflict in Bosnia and Herzegovina time had come for a political system which would provide every citizen of that country with the right to stand for elections to the Presidency and the House of Peoples without discrimination based on ethnic affiliation.

Citations:

3681/06 – Legal Summary, [2014] ECHR 868

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 07 October 2022; Ref: scu.535701

In Reclaiming Motion By Brown v The Parole Board for Scotland and The Scottish Ministers: SCS 31 Jul 2015

(Extra Division Inner House) The scope of this appeal relates to the impact of article 5 of the European Convention on Human Rights (‘ECHR’) in circumstances where the petitioner and reclaimer (‘the reclaimer’) is serving an extended sentence under and in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. The reclaimer contends that he has not been given certain courses in prison recommended by the first respondents. The main disputed issues are (1) whether in the circumstances of this case there is a breach of article 5; and (2) if there is a breach what is the remedy in damages afforded in just satisfaction.

Judges:

Lord Menzies, Lady Clark of Calton, Lord McGhie

Citations:

[2015] ScotCS CSIH – 59, 2015 GWD 25-441, 2015 Rep LR 123, 2016 SC 19, 2015 SLT 568

Links:

Bailii

Statutes:

European Convention on Human Rights 5, Criminal Procedure (Scotland) Act 1995 210A

Jurisdiction:

Scotland

Cited by:

Appeal from – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 07 October 2022; Ref: scu.551713

James, Wells and Lee v The United Kingdom: ECHR 18 Sep 2012

ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the Criminal Justice Act 2003, indeterminate sentences for the public protection were introduced. Like sentences of life imprisonment, these required the direction of the Parole Board in order for a prisoner to be released. A minimum term which had to be served before a prisoner could be released, known as the ‘tariff’, was fixed by the sentencing judge. The three applicants, who had been sentenced pursuant to this Act, complained that while in detention they were not provided with the opportunity to complete the instructional courses that the Parole Board considered necessary for their rehabilitation. The applicants were detained in small local prisons, and due to resource constraints were unable to transfer to prisons where the relevant courses were available. This led the Parole Board to consider that they presented a continued risk to the public and were unsuitable for release after the completion of their tariff.
Law
Article 5-1: In considering the legality of the post-tariff detention of the applicants the Court examined whether there was a causal link between the continuing detention and the original sentence; whether the detention complied with domestic law; and whether it was free from arbitrariness. On the point of causality it was clear that the indeterminate sentences were imposed on the applicants because they were considered, albeit by the operation of a statutory assumption, to pose a risk to the public. Therefore there was a sufficient causal link between the convictions and the deprivations of liberty at issue. Further, the Court was satisfied that the applicants’ post-tariff detention was based on their ‘conviction’ for the purposes of Article 5-1 (a) of the Convention and that there was compliance with domestic law.
In considering arbitrariness certain principles were relevant. First, that detention will be ‘arbitrary’ where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. Second, both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5-1. Third, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention; and fourth, this relationship must be proportionate.
The Court then considered the arbitrariness of the detention in the present case as a whole by reference to these considerations. It began by examining the lack of judicial discretion in sentencing. Under the scheme as it was first enacted and brought into force, the IPP sentence was mandatory where a future risk existed. The Court noted that restrictions on judicial discretion in sentencing do not per se render any ensuing detention arbitrary. However, they may be a relevant factor, and in such situations there is often an even greater need to ensure that there is a genuine correlation between the aim of the detention and the detention itself. Secondly, the Court had regard to the purpose of the detention. It was clear that a central purpose of the IPP sentences imposed was the protection of the public. However it could be seen from the debates on the drafting of the relevant legislation that an implied purpose of the detention was rehabilitation. This was further reflected in the Secretary of State’s published policy at the time, and was clear from certain rulings of the domestic courts in the area. Also, it is to be presumed that States intend to comply with their international obligations when introducing legislation. In the present case, the relevant obligations made it clear that an essential aim of imprisonment was social rehabilitation.
Lastly, the Court noted the deficiencies in the rehabilitative process in the present case. Due to the unavailability of rehabilitative courses, for a significant period the applicants did not have the opportunity to reduce the risk they posed to the public as assessed by the Parole Board, which was necessary in order to shorten the length of their post-tariff detention. In considering the detrimental impact that this had on the applicants, it was acknowledged that there was a substantial danger inherent in ordering the release of a prisoner while they still posed an appreciable risk to the public. However, such a danger did not seem to be present in the case of the applicants. The assessment of the danger they posed was largely a product of statutory assumption, and it was far from clear that the sentencing judges concerned would have imposed an IPP sentence had they enjoyed the judicial discretion available to them under new amended legislation.
In applying the above considerations, the Court held that while indeterminate detention for the public protection is permissible in certain circumstances, where a government seeks to rely solely on the risk posed to the public by offenders in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders. In the applicants’ cases, this meant that they were required to be provided with reasonable opportunities to undertake courses aimed at helping them to address their offending behaviour and the risks they posed. In such situations, any restrictions or delays encountered as a result of resource considerations must be reasonable in all the circumstances of the case, and a reasonable balance must be struck between the need to provide appropriate conditions of detention in a timely fashion and the efficient management of public funds. In striking this balance, particular weight must be given to the prisoner’s right to liberty, bearing in mind that a significant delay in access to treatment is likely to result in a prolongation of detention. Therefore, following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and consequently unlawful within the meaning of Article 5-1.
Conclusion: violation (unanimously).
Article 5-4: The second and third applicants further alleged that even if they had succeeded in the challenge to their detention they were not been able to secure their release as a result of the provisions of primary legislation. Article 5-4 is lex specialis in this context. The Court noted that it was open to the applicants to commence judicial review proceedings in order to challenge the failure to provide the relevant courses. Both applicants did so and were transferred to a facility where they could participate in the courses necessary to secure their release.
Conclusion: no violation (six votes to one).
The Court also considered that the issues raised by the applicants under Article 5-4 relating to the lack of courses had already been examined in the context of Article 5-1, and that the complaint under this Article gave rise to no separate issue.
Article 41: In respect of non-pecuniary damage the Court awarded the first applicant EUR 3,000, the second applicant EUR 6,200 and the third applicant EUR 8,000.
(See also Saadi v. the United Kingdom [GC], no. 13229/03, 29 January 2008, Information Note no. 104; M. v. Germany, no. 19359/04, Information Note no. 125; Grosskopf v. Germany, no. 24478/03, 21 October 2010)
The court disagreed with the HL in saying that the purposes of the 2003 Act did not include rehabilitation: ‘The court is . . satisfied that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation is a necessary element of any part of the detention which is to be justified solely by reference to public protection. In the case of the IPP sentence, it is in any event clear that the legislation was premised on the understanding that rehabilitative treatment would be made available to those prisoners on whom an IPP sentence was imposed, even if this was not an express objective of the legislation itself. Indeed, this premise formed the basis upon which a breach of the Secretary of State’s public law duty was found and confirmed . . The court accordingly agrees with the applicants that one of the purposes of their detention was their rehabilitation.’ and ‘ . . following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses . . their detention was arbitrary and therefore unlawful within the meaning of article 5(1)1 of the Convention.’

Citations:

57877/09 – HEJUD, [2012] ECHR 1706, 57877/09 – CLIN, [2012] ECHR 2021, 25119/09, 57715/09, (2013) 56 EHRR 12

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights, Criminal Justice Act 2003 225

Jurisdiction:

Human Rights

Citing:

See Also – James, Wells And Lee v The United Kingdom ECHR 20-Dec-2010
. .
At HL (wrongly decided) – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .

Cited by:

Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Cited – Martin Corey, Re for Judicial Review SC 4-Dec-2013
The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence . .
Cited – Robinson, Regina (on The Application of) v HMP Whatton and Another Admn 4-Dec-2013
Two prisoners serving sentences of imprisonment for public protection sought judicial review of arrangements meaning that they had not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their . .
Cited – Kaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – Docherty, Regina v SC 14-Dec-2016
After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after . .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 07 October 2022; Ref: scu.467002

Osterreichische Vereinigung Zur Erhaltung, Starkung Und Schaffung v Austria: ECHR 28 Nov 2013

All agricultural and forest land transactions in Austria required approval by local and regional authorities (in the Tyrol, the Tyrol Real Property Transactions Commission), the aim being to preserve land for agriculture and forestry and avoid the proliferation of second homes. The applicatant association was formed to promote sound agricultural and forest property ownership and sought from the Tyrol Commission (in anonymised form and against reimbursement of costs) all decisions it had issued since 1 January 2000. It relied upon the Tyrol Access to Information Act and submitted that the Commission’s decisions concerned civil rights within article 6 of the Convention, and should therefore be made public (para 8). The Commission based its refusal on submissions that the decisions were not information within the Act, but decisions on the basis of legal arguments, comparable to giving legal advice, as well as on an exemption in the Act for situations where excessive resources would be required to provide the information sought.
The Austrian Constitutional Court had rejected the association’s complaint. It held first that neither under article 10 nor under Austrian law was there any positive duty of states to collect and disseminate information of their own motion. Secondly, it accepted the Commission’s case that the compilation, anonymisation and disclosure of paper copies of decisions over a period of some years fell outside any duty to disclose information under the Act and would excessively impinge on the Commission’s performance of its duties. Thirdly, it added that, in so far as the applicant might ‘implicitly’ be relying on article 6, the Strasbourg case law did not guarantee the right to obtain anonymised decisions over a lengthy period, and Austrian law only required access to the judgments delivered by the highest courts which dealt with important legal issues.
Before the European Court of Human Rights, First Section, the application was addressed under the heading of article 10. But the applicant’s case was that ‘decisions of judicial bodies such as the Commission should be publicly accessible’ (para 28) and that ‘interests in the rule of law and due process argued in favour of making decisions by judicial authorities available to the public’. The Austrian Government’s case was, first, that article 10 imposes no positive obligation on a state to collect and disseminate information itself, second, that a refusal to provide anonymised copies of all decisions over a lengthy period did not in any event constitute an interference with rights under article 10, and, third, that a right to be provided with such decisions could not be inferred from article 6. Finally, it also argued that, if article 10 was engaged, the refusal was justified, as serving legitimate aims (protection of confidential information and preservation of the Commission’s proper functioning).
Held: (First Section) The Court cited previous jurisprudence establishing the social ‘watchdog’ role of the press and other non-governmental organisations like the applicant gathering information, and then added: ‘Consequently, there has been an interference with the applicant association’s right to receive and to impart information as enshrined in article 10(1) of the Convention.’

Citations:

39534/07 – Chamber Judgment, [2013] ECHR 1204, [2013] ECHR 1225, [2013] ECHR 1270

Links:

Bailii, Bailii, Bailii

Statutes:

European Convention on Human Rights 6 10

Jurisdiction:

Human Rights

Citing:

Legal Summary – Osterreichische Vereinigung Zur Erhaltung, v Austria ECHR 28-Nov-2013
ECHR Article 10-1
Freedom to impart information
Freedom to receive information
Refusal by regional authority to provide copy of its decisions to an association wishing to study the impact of . .

Cited by:

Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 October 2022; Ref: scu.518843

Kaiyam, Regina (on The Application of) v The Secretary of State for Justice: CA 9 Dec 2013

The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s failure to provide rehabilitation courses meant that they could not earn release. The lower court had rejected their claims being bound by decisions of the House of Lords notwithstanding that those decisions had been overruled by the ECHR.
Held: The lower court had been correct to decide that it could not itself overrule a decision of the House, the instant court had no greater right beyond expressing its views, and leave was given for the matter to go to the Supreme Court.

Judges:

Lord Dyson MR, Underhill, Macur LJJ

Citations:

[2014] 1 WLR 1208, [2013] WLR(D) 480, [2013] EWCA Civ 1587

Links:

WLRD, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Cited – James, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .
Appeal from – Robinson, Regina (on The Application of) v HMP Whatton and Another Admn 4-Dec-2013
Two prisoners serving sentences of imprisonment for public protection sought judicial review of arrangements meaning that they had not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Clift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .

Cited by:

At CA – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Lists of cited by and citing cases may be incomplete.

Prisons, Constitutional, Human Rights

Updated: 07 October 2022; Ref: scu.518785

Osterreichische Vereinigung Zur Erhaltung, v Austria: ECHR 28 Nov 2013

ECHR Article 10-1
Freedom to impart information
Freedom to receive information
Refusal by regional authority to provide copy of its decisions to an association wishing to study the impact of property transfers on agricultural and forest land: violation
Facts – The applicant was a registered association whose aims were to research the impact of transfers of ownership of agricultural and forest land on society and to give opinions on relevant draft legislation. In that connection, in April 2005 it asked the Tyrol Real Property Transactions Commission, a regional authority whose approval was required for certain agricultural and forest land transactions, to provide it with copies of all decisions it had issued since the beginning of the year. It accepted that details of the parties and other sensitive information could be deleted and offered to reimburse the costs this entailed. The Commission refused citing a lack of time and personnel. Its decision was upheld by the domestic courts.
Law – Article 10: The refusal to afford the association, which was involved in the legitimate gathering of information of public interest, access to the Commission’s decisions had amounted to interference with its right to receive and impart information under Article 10 of the Convention. The interference was prescribed by law and pursued the legitimate aim of protecting the rights of others.
The Court had noted in its Tarsasag a Szabadsagjogokert judgment* that it had advanced towards a broader interpretation of the notion of the ‘freedom to receive information’ encompassing recognition of a right of access to information. It also drew a parallel to its case-law concerning freedom of the press, stating that the most careful scrutiny was called for when authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog.
Accordingly, although the Court did not accept the association’s submission that a general obligation to publish all decisions in an electronic database or to provide anonymised paper copies upon request could be inferred from the Court’s case-law under Article 10, it nevertheless had to examine whether the reasons given by the domestic authorities for refusing the association’s request were ‘relevant and sufficient’ in the specific circumstances of the case. It was true that, unlike the position in Tarsasag a Szabadsagjogokert, the request for information in the instant case was not confined to a particular document, but concerned a series of decisions issued over a period of time. In addition, the need to anonymise the decisions and send copies to the association would have required substantial resources. Nevertheless, the association had accepted that personal data would have to be removed from the decisions and had offered to reimburse the cost of producing and mailing the requested copies. In addition, it was striking that none of the decisions of the Commission – a public authority responsible for deciding disputes over ‘civil rights’ – were published, either electronically or otherwise. Consequently, much of the anticipated difficulty referred to by the Commission had been of its own making and its choice not to publish any of its decisions.
In sum, the reasons relied on by the domestic authorities for refusing the association’s request for access to the Commission’s decisions were ‘relevant’, but not ‘sufficient’. While it was not for the Court to establish how the Commission should have granted the association access to its decisions, a complete refusal to give it access to any of its decisions was disproportionate and could not be regarded as having been necessary in a democratic society.
Conclusion: violation (six votes to one).

Citations:

39534/07 – Legal Summary, [2013] ECHR 1285, [2013] ECHR 137

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Tarsasag A Szabadsagjogokert v Hungary ECHR 13-Nov-2008
The Hungarian Civil Liberties Union sought access to details of a legal challenge filed by a Hungarian parliamentarian in the Hungarian Constitutional Court concerning the constitutionality of legislative amendments to the Hungarian Criminal Code. . .

Cited by:

Legal Summary – Osterreichische Vereinigung Zur Erhaltung, Starkung Und Schaffung v Austria ECHR 28-Nov-2013
All agricultural and forest land transactions in Austria required approval by local and regional authorities (in the Tyrol, the Tyrol Real Property Transactions Commission), the aim being to preserve land for agriculture and forestry and avoid the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 October 2022; Ref: scu.519062

Ibrahim, Regina v: CACD 27 Apr 2012

The appellant challenged the admissibility of witness statements made by the complainant where the complainant had died before the trial.
Held: The ‘counterbalancing measures’ in the 2003 Act and at the common law had not been properly applied, and in relation to count 1, the appellant did not have a fair trial and his rights under Article 6(1) were infringed.
In order to assess the question of whether a defendant has received a fair trial it was necessary to resolve (1) whether there was proper justification for admitting the untested hearsay evidence of the complainant under domestic law (in that case under section 116(1) and (2)(a) Criminal Justice Act 2003); (2) how important the statements were in relation to the Crown’s case; (3) whether the statements were demonstrably reliable; and (4) whether counter-balancing safeguards had been properly applied. The more central the untested hearsay evidence, the greater the need for scrutiny of the reliability of the evidence and the proper application of counter-balancing safeguards.

Judges:

Aikens, LJ, Field J and HHJ Cooke QC

Citations:

[2012] EWCA Crim 837, [2012] 2 Cr App R 3

Links:

Bailii

Statutes:

Criminal Justice Act 2003

Jurisdiction:

England and Wales

Citing:

Cited – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 15-Dec-2011
(Grand Chamber) The claimants complained of the use against them of hearsay evidence in their trials.
Held: ‘the underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .

Cited by:

Cited – Adeojo and Another v Regina CACD 6-Feb-2013
The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights

Updated: 07 October 2022; Ref: scu.453066

Sturnham v Secretary of State for Justice: CA 23 Feb 2012

The claimant life sentence prisoner had inter alia been detained after the expiry of his tarriff pending a review of whether his continued detention was required for public protection. That review had been delayed, and the claimant was awarded andpound;300 for the associetd anxiety and distress. The Secretary appealed.
Held: Laws LJ took as his starting point the different treatment under the common law of wrongs in private law and in public law, and considered that an analogous distinction was reflected in some of the Strasbourg case law.

Judges:

Laws, McFarlane, Patten LJJ

Citations:

[2012] EWCA Civ 452, [2012] 3 WLR 476

Links:

Bailii

Statutes:

European Convention on Hman Rights 5(4), Crime Sentences Act 1997 28(6)(b)

Jurisdiction:

England and Wales

Citing:

Appeal from – Sturnham, Regina (on The Application of) v Parole Board, Secretary of State for Justice Admn 14-Mar-2011
S was serving a term of life imprisonment. After serving the tariff, his detention should have been reviewed. After several serious delays, and a decision that he should instead be transferred to open conditions, he brought proceedings for judicial . .
Cited – Nikolova v Bulgaria ECHR 25-Mar-1999
(Grand Chamber) The claimant had been detained for long periods after coming under suspicion of theft of large sums. Her detention had initially been ordered by prosecutors. Her initial appeals against her detention were also decided by prosecutors. . .

Cited by:

Appeal from – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Appeal from – Sturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2) SC 3-Jul-2013
From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Damages

Updated: 07 October 2022; Ref: scu.452826

McGrath v Secretary of State for Work and Pensions: Admn 20 Apr 2012

The claimant challenged the decision of the Secretary of State for Work and Pensions to recover from her an overpayment of income support in 1996 and 1997 by way of the deduction from current payments to her of employment and support allowance, saying that the continued recovery of the overpayment in this way breached her right in Article 1 of Protocol No. 1 of the European Convention on Human Rights (‘ECHR’ or ‘the Convention’) to the peaceful enjoyment of her possessions.

Judges:

Cranston J

Citations:

[2012] EWHC 1042 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights, Benefits

Updated: 07 October 2022; Ref: scu.452834