Category: Human Rights

B v Romania (No 2): ECHR 19 Feb 2013

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lack of adequate legal protection in a case concerning a mother’s committal to a psychiatric institution and the placement of her children in care: violations
Facts – The applicant was assisted by the social services from 1996 onwards, having been classified as a disabled person unfit to work. In 2000 she was diagnosed with ‘paranoid schizophrenia’. Two of her children were minors at the time. No measure of guardianship or administration was ever introduced for the applicant or her children. Since 2000 she has been admitted on numerous occasions to psychiatric institutions, after being taken there by the police. Her children have not been living with her; instead they were placed in residential care for abandoned children.
Law – Article 8
(a) The applicant’s confinement – In most of the cases previously heard by the Court concerning ‘persons of unsound mind’, the domestic proceedings concerning psychiatric confinement had been examined under Article 5 of the Convention. Consequently, in order to determine whether the confinement in the present case had complied with Article 8 of the Convention, the Court found it appropriate to refer, mutatis mutandis, to its case-law under Article 5 ss 1 (e).
Despite the fact that the law on the protection of disabled persons imposed an obligation to introduce a legal protection measure, in the form of guardianship or administration, no such measure had been adopted in respect of the applicant, even though her state of health had been known to the authorities well before the beginning of her periods of confinement. Her vulnerability had also been noted and brought to the attention of the domestic courts by numerous reports of the social services. But neither the social services nor the courts had drawn any conclusions as regards the legal protection of the applicant herself. It was precisely the shortcomings of the authorities which had contributed to depriving her of the guarantees available under mental-health legislation, in particular the right for the patient to be assisted when giving consent or the obligation to notify the patient’s legal representative of the measure of confinement and the reasons for its adoption. Recent amendments to mental-health legislation provided that if the patient had no legal representative and was unable to appoint one on account of mental incapacity, the hospital would be required to notify the relevant local authority promptly so that legal protection measures could be put in place. However, those new provisions had not benefited the applicant. The provisions of domestic law governing psychiatric confinement and the protection of persons unable to look after their own interests had not been applied to the applicant in the spirit of her right to respect for her private life under Article 8. The authorities had thus failed in their obligation to take appropriate measures for the defence of the applicant’s interests.
Conclusion: violation (unanimously).
(b) Placement of the applicant’s children in care – It was because of the lack of special protection for the applicant, who, in particular, was not assigned a lawyer during the placement proceedings or any guardian ad litem, that she had not been able to participate effectively in the proceedings concerning the placement of her children or to have her interests defended. In addition, her family situation had been examined on only two occasions in a period of twelve years. Lastly, there was no evidence that the social workers had maintained the regular contact with the applicant that would have afforded a good opportunity to make her views known to the authorities. For those reasons, the decision-making process leading to the placement of the applicant’s two minor children had not been conducted in compliance with her rights as guaranteed by Article 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.

Citations:

1285/03 – Legal Summary, [2013] ECHR 393

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Human Rights, Children, Health

Updated: 05 December 2022; Ref: scu.491921

Ashman, Regina (on the Application of) v Parole Board and Another: Admn 30 Oct 2007

The court made a declaration that the claimant has suffered a breach of his rights under Article 5(4) of the European Convention on Human Rights by his continuing in detention beyond the expiry of the minimum term, without reasonable steps having been taken to assess whether his continued detention was justified.

Citations:

[2007] EWHC 2647 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Prisons, Human Rights

Updated: 05 December 2022; Ref: scu.261372

Playfoot (A Minor), Regina (on the Application of) v Millais School: Admn 16 Jul 2007

The claimant sought to be allowed to wear a purity ring at school. The ring infringed the school’s uniform code. She said that the ring expressed her desire religious to remain pure before marriage.
Held: The wearing of the ring was not sufficiently closely connected with the claimant’s religion or her belief in chastity before marriage. The claim failed.

Judges:

Michael Supperstone QC

Citations:

[2007] EWHC 1698 (Admin), Times 23-Jul-2007, [2007] ELR 484, [2007] BLGR 851, [2007] 3 FCR 754, [2007] ACD 80, [2007] HRLR 34

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Watkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
Lists of cited by and citing cases may be incomplete.

Education, Discrimination, Human Rights

Updated: 05 December 2022; Ref: scu.258412

Gustafsson v Sweden: ECHR 25 Apr 1996

Hudoc No violation of Art. 11; No violation of Art. 6-1; No violation of Art. 13; No violation of P1-1
The right to freedom of association under article 11 of the European Convention on Human Rights includes the right not to join or to withdraw from an association.

Citations:

15573/89, [1996] ECHR 20, [1998] ECHR 67, [1996] 22 EHRR 409

Links:

Worldlii, Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights 11

Jurisdiction:

Human Rights

Cited by:

Cited – Wilson and NUJ, Palmer, Wyeth and RMT, Doolan and Others v The United Kingdom ECHR 2-Jul-2002
The appellants were journalists and other workers, and members of trades unions. Their employers had de-recognised the unions, paying sums to buy out those rights. The claimants had not surrendered their rights, and had been paid less because of it. . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 05 December 2022; Ref: scu.165428

Hamilton v Al Fayed: CA 26 Mar 1999

A member of Parliament was able to proceed with an action for defamation in respect of matters of which he had been criticised by the appropriate committee in Parliament. The trial would not impeach Parliament though retrying the issues. Lord Woolf MR said: ‘the vice to which Article 9 is directed (so far as the courts are concerned) is the inhibition of freedom of speech and debate in Parliament that might flow from any condemnation by the Queen’s Courts, being themselves an arm of government, of anything there said.’

Judges:

Lord Woolf MR, Hirst, Laws LJJ

Citations:

Times 30-Mar-1999, Gazette 12-May-1999, [1999] EWCA Civ 1111, [1999] 1 WLR 1569, [1999] EMLR 501

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

See Also – Hamilton v Al Fayed CA 24-Nov-1998
The defendant had made allegations of misconduct against the plaintiff as to his actions as an MP. The plaintiff now sought by this action, in effect, to overturn the results of the resultant parliamentary inquiry. . .

Cited by:

Cited – Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
Appeal from – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Defamation, Human Rights

Updated: 05 December 2022; Ref: scu.146026

Regina v Secretary of State for Home Department ex parte Dinc: CA 15 Mar 1999

When deciding whether to order a deportation, the Home Secretary will have much material not before the courts, including as to conditions in the place to which the applicant might be deported), and he is better placed to take a wider policy-based view on the key question as to whether removal can be justified as ‘necessary in the interests of a democratic society’.

Citations:

[1999] INLR 256, [1999] EWCA Civ 990

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Secretary of State for Home Department ex parte Ali Dinc Admn 3-Apr-1998
The applicant had been sentenced to five years imprisonment for possession of heroin with intent to supply.
Held: In making the decision whether under the Immigration Rules, a deportation order should be made, the Secretary of State was . .

Cited by:

Cited – M v the Secretary of State for the Home Department CA 19-Feb-2003
The applicant had been given indefinite leave to remain in England, but was later convicted of indecent assault, and recommended for deportation. On appeal the court said that the order for deportation was disproportionate. After serving his . .
Lists of cited by and citing cases may be incomplete.

Immigration, Criminal Sentencing, Human Rights

Updated: 05 December 2022; Ref: scu.145905

Keena And Kennedy v Ireland (Dec): ECHR 30 Sep 2014

ECHR Article 10-1
Freedom to impart information
Freedom to receive information
Award of costs against journalists for destroying evidence in order to protect their sources: inadmissible
Facts – The first applicant was a correspondent on and the second applicant the editor of the Irish Times. In 2006 the newspaper published an article containing references to a confidential letter that had been sent to a third party by a tribunal of inquiry set up to investigate alleged corruption. The tribunal ordered the applicants to produce and hand over the documents on which the article was based, but the second applicant replied that they had been destroyed to protect the newspaper’s sources. The tribunal then brought proceedings in the Irish courts for orders compelling the applicants to comply with the tribunal’s order and to appear before the tribunal to answer its questions concerning the source and whereabouts of the documents. Although the Supreme Court ultimately found in the applicants’ favour, it nevertheless ordered them to pay the costs of the proceedings on the grounds that by deliberately destroying the evidence they had deprived the courts of any power to give effect to the tribunal’s order.
In their application to the European Court, the applicants complained that the costs award had interfered with their right to protect their journalistic sources.
Law – Article 10: The Supreme Court’s ruling on costs was not to be characterised as an interference with the applicants’ right to protect the secrecy of their journalistic sources. The issue whether the tribunal had an interest in ascertaining the source of the leak would have involved the balancing of competing public interests and was for the domestic courts to resolve in the first place, guided by the relevant Convention case-law. The domestic courts would have been in a position to do so had the applicants not destroyed the documents. Where competing public interests were in issue, the correct course would have been to allow for a proper judicial determination of the matter in its entirety. Permitting the High Court, and subsequently the Supreme Court, to adjudicate the matter in full would have been fully consonant not only with Article 10, but also with the rule of law, a fundamental principle of the Convention as a whole.
The course of action adopted by the applicants in the instant case was not a legitimate exercise of their right under Article 10 to refuse to disclose their source. The protection of the courts had been available to them in order to vindicate their rights. The Convention did not confer on individuals the right to take upon themselves a role properly reserved to the courts. As the domestic courts had underscored, this was, effectively, what the applicants had done through the deliberate destruction of the very documents that were at the core of the Tribunal’s inquiry.
The Court did not accept that the order for costs was liable to have a chilling effect on freedom of expression. As a general principle, costs were a matter for the discretion of the domestic courts. Furthermore, the order for costs in the circumstances of the applicants’ case could have no impact on public interest journalists who vehemently protected their sources yet recognised and respected the rule of law. The Court could discern nothing in the costs ruling to restrict publication of a public interest story, to compel disclosure of sources or to interfere in any other way with the work of journalism. What the ruling signified was that all persons must respect the role of the courts, and that nobody, journalists included, could usurp the judicial function. The true purport of the Supreme Court’s ruling was to signal that no party was above the law or beyond the lawful jurisdiction of the courts.
Conclusion: inadmissible (manifestly ill-founded).

Citations:

29804/10 – Legal Summary, [2014] ECHR 1284

Links:

Bailii

Statutes:

European Convention on Human Rights 10

Jurisdiction:

Human Rights

Human Rights, Media

Updated: 04 December 2022; Ref: scu.538919

British Sky Broadcasting Ltd, Regina (on The Application of) v The Central Criminal Court and Another: Admn 21 Dec 2011

The claimant challenged a production order made by the magistrates in respect of journalists’ material. They complained that the application had used secret evidence not disclosed to it, and that the judge had not given adequate reasons to support the decision. The poice were investigating an offence under the 1989 Act.
Held: It was common ground that neither the Civil nor the Criminal Procedure Rules contain any provisions governing an application under section 9 and schedule 1 of PACE. Paragraph 7 of schedule 1 requires the hearing to be conducted inter partes, but apart from that the only procedural requirement is that they be conducted in accordance with common law principles of fairness and the requirements of Article 6 of the ECHR.
The procedure adopted in this case was unlawful: ‘there was a failure to observe a fundamental principle of law bearing directly on the fairness of the proceedings, a matter which the court should be very slow to condone. Moreover, however carefully the judge considered the secret evidence, that can be no substitute for allowing B Sky B to challenge it, for the reasons given by Lord Kerr in Al Rawi.’

Judges:

Moore-Bick LJ, Bean J

Citations:

[2011] EWHC 3451 (Admin), [2012] 3 WLR 78, 2012 GWD 21-432, 2012 SCL 635, 2012 SCCR 562, [2012] 4 All ER 600, [2012] QB 785, [2012] HRLR 24

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 9, Official Secrets Act 1989 1

Jurisdiction:

England and Wales

Citing:

Cited – Malik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Cited – Regina v Central Criminal Court Ex Parte Bright; Regina v Same, Ex Parte Rusbridger QBD 21-Jul-2000
An order was made for a journalist to disclose to the police material disclosed to him in connection with a prosecution under the Official Secrets Act. The journalist appealed the order, on the basis that it was in effect an order that he . .

Cited by:

Appeal from – British Sky Broadcasting Ltd, Regina (on The Application of) v The Commissioner of Police of The Metropolis SC 12-Mar-2014
The court was asked as to the powers of Magistrates hearing an application for a search warrant to receive excluded or special procedure material which had not been disclosed to the respondent. The court had overturned an order made by the district . .
Lists of cited by and citing cases may be incomplete.

Police, Media, Magistrates, Human Rights, Natural Justice

Updated: 04 December 2022; Ref: scu.459730

Carnduff v The United Kingdom: ECHR 10 Feb 2004

Admissibility – The applicant is a registered police informer. He commenced an action seeking to recover payment for information that he supplied to the West Midlands police.

Judges:

M. Pellonpaa, P

Citations:

18905/02, [2004] ECHR 731

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Carnduff v Inspector Rock and Chief Constable West Midlands Police CA 11-May-2001
The claimant was a police informer. Over several years he had given and been paid for information. He claimed that on one occasion he had given information which had led to the arrest of a major criminal, but the police denied that any information . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 December 2022; Ref: scu.464390

Esbester v United Kingdom: ECHR 2 Apr 1993

(Commission) The claimant had been refused employment within the Central Office of Information. He had been accepted subject to clearance, but that failed. He objected that he had been given no opportunity to object to the material oin which his rejection had been based.
Held: The complaints were manifestly unfounded. As to Article 8: ‘In the absence of any evidence or indication that the system is not functioning as required by domestic law, the Commission finds that the framework of safeguards achieves a compromise between the requirements of defending democratic society and the rights of the individual which is compatible with the provisions of the Convention. Consequently it concludes that the interference in the present case was necessary in a democratic society in the interests of national security.’

Citations:

18601/91, [1993] ECHR 64, (1994) 18 EHRR CD72

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Citing:

Cited – Klass And Others v Germany ECHR 6-Sep-1978
(Plenary Court) The claimant objected to the disclosure by the police of matters revealed during their investigation, but in this case, it was held, disclosure even after the event ‘might well jeopardise the long-term purpose that originally . .
Cited – Malone v The United Kingdom ECHR 2-Aug-1984
COURT (PLENARY) The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .

Cited by:

Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 December 2022; Ref: scu.383935

Cronin, Regina (on The Application of) v Chief Constable of South Yorkshire Police and Another: Admn 20 Nov 2002

The applicant had had his premises searched. He sought to challenge the basis on which search warrant had been granted. He argued that under the Convention, it was necessary for the magistrates to provide a written record of the reasons for granting the warrant.
Held: Where the information laid was itself sufficient to account for the warrant a magistrate could be assumed to have acted upon it, and no further reasons were required to be noted. Warrants were often issued under conditions where such a requirement would be unreasonable. Here the magistrate would only have repeated the contents of the information. Where a magistrate elicited further information from the officer which affected the decision, it was necessary for that to be recorded.
Lord Woolf CJ said: ‘Information may contain details of an informer which it would be contrary to the public interest to reveal. The information may also contain other statements to which public interest immunity might apply. But, subject to that, if a person who is in the position of this claimant asks perfectly sensibly for a copy of the information, then speaking for myself I can see no objection to a copy of that information being provided. The citizen, in my judgment, should be entitled to be able to assess whether an information contains the material which justifies the issue of a warrant. This information contained the necessary evidence to justify issuing the warrant.’

Judges:

Lord Woolf of Barnes LCJ, Hallett, Stanley Burnton JJ

Citations:

Times 28-Nov-2002, Gazette 30-Jan-2003, [2002] EWHC 2568 (Admin), [2003] 1 WLR 752

Links:

Bailii

Statutes:

Misuse of Drugs Act 1971 23(3), European Convention on Human Rights Art 6 Art 8, Police and Criminal Evidence Act 1984 8 15 16

Jurisdiction:

England and Wales

Cited by:

Cited – AB and Another, Regina (on The Application of) v Huddersfield Magistrates’ Court and Another Admn 10-Apr-2014
The claimants challenged the lawfuness of search warrants issued by the respondent court. They were solicitors, and were related to a person suspected of murder who was thought to have fled the country. The officers were looking for evidence that . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Cited – Haralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .
Lists of cited by and citing cases may be incomplete.

Magistrates, Police, Human Rights, Magistrates

Updated: 04 December 2022; Ref: scu.402518

M, Regina (on the Application of) v Slough Borough Council: Admn 27 Apr 2004

The claimant, a Zimbabwean, was subject to immigration control. He was HIV positive, and sought assistance from the authority under the 1948 Act. The authority replied that his needs did not reach such a level as to require assistance under the section.
Held: The claim succeeded. The fact that medication and regular medical attention were required was sufficient to show a need for care and attention. That need arose from a combination of destitution and illness and not solely from destitution.

Judges:

Collins J

Citations:

[2004] EWHC 1109 (Admin), [2004] LGR 657, [2004] BLGR 657

Links:

Bailii

Statutes:

National Assistance Act 1948 21(1)(a)

Jurisdiction:

England and Wales

Cited by:

At First Instance – M, Regina (on the Application of) v Slough Borough Council HL 30-Jul-2008
The House was asked ‘whether a local social services authority is obliged, under section 21(1)(a) of the 1948 Act, to arrange (and pay for) residential accommodation for a person subject to immigration control who is HIV positive but whose only . .
Appeal from – Slough Borough Council v M, Regina (on the Application Of) CA 25-May-2006
The claimant was subject to immigration control. He sought assistance under the 1948 Act on the basis that he suffered HIV. The authority appealed an order requiring them to provide assistance on the basis that he need for medication brought him . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 04 December 2022; Ref: scu.263499

Nicholds and others v Security Industry Authority: Admn 19 Jul 2006

Application for judicial review of, in substance, the licensing criteria prepared and published by the Defendant, the Security Industry Authority. The applicants were door supervisors refused licenses for previous convictions.

Judges:

Kenneth Parker QC J

Citations:

[2006] EWHC Admin 1792, [2006] EWHC 1792 (Admin), [2007] 1 WLR 2067, [2007] ICR 1076

Links:

Bailii

Statutes:

Private Security Industry Act 2001, European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

Cited – Security Industry Authority v Stewart and Sansara Admn 17-Oct-2007
Various parties challenged the granting and withholding of licenses to operate as door supervisors (bouncers). The SIA regulated the grant of licences, and published criteria for their grant. It had been said that the inclusing of very minor . .
Cited – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Lists of cited by and citing cases may be incomplete.

Licensing, Employment, Human Rights

Updated: 04 December 2022; Ref: scu.263474

O’Connell, Regina (on the Application of) v The Parole Board and Another: Admn 13 Nov 2007

Fundamental issues as to the function and status of the Parole Board. It does so in the context of a challenge to the decision of the Board on the 18th July 2006 refusing to direct the claimant’s release on licence under section 247 of the Criminal Justice Act 2003 (the 2003 Act). The challenge was based on four grounds. First, the decision was one which entitled him to the protection of Article 5(4) of the European Convention on Human Rights. Second, the Board does not have the necessary independence which is required for any body carrying out functions under Article 5(4). Third, the Board failed, in breach of both its common law obligation of fairness, and its obligations pursuant to Article 5(4), to give the claimant an oral hearing. Fourth, the Secretary of State’s directions to the Parole Board as to the test to apply when coming to its decision are unlawful.

Citations:

[2007] EWHC 2591 (Admin), [2008] 1 WLR 979, [2008] ACD 16

Links:

Bailii

Jurisdiction:

England and Wales

Prisons, Human Rights

Updated: 04 December 2022; Ref: scu.261395

Shreeve, Regina (on the Application of) v Secretary of State for the Home Department: Admn 26 Oct 2007

The prisoner as a buddhist was entitled to have in his cell an incense burner. He was accused of having a sharpened object. It was in the shape of a lotus leaf. No evidence was brought that the claimant had sharpened the object.
Held: The claimant was entitled to relief. The priosn officer could not properly convict the claimant unless it was established beyond reasonable doubt that the object in his cell was ‘a sharpened stabbing implement formed from a bamboo incense holder’. There was no evidence of it having been sharpened, or that it might be used or intended for stabbing. Given the potential long term consequences for the claimant, it was not sufficient to leave matters as they stood.

Citations:

[2007] EWHC 2431 (Admin)

Links:

Bailii

Statutes:

Prison Rules 1999, European Convention on Human Rights 9

Jurisdiction:

England and Wales

Citing:

Cited – Tangney v The Governor of HMP Elmley and Another CA 29-Jul-2005
The claimant was a serving a life sentence. During prison disciplinary proceedings he was refused legal and other assistance, and an outside tribunal on the basis that since any finding would not lead to any loss of remission or extra time, his . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 04 December 2022; Ref: scu.261380

Brooke and others v The Parole Board: Admn 7 Sep 2007

The applicants were prisoners who sought judicial review of the use made by the Parole Board of its powers to review their sentences, saying that the Parole Board was not sufficiently independent of the government to guarantee their human rights.
Held: The applications succeeded, and the court gave a declaration that the applicants’ rights under article 5.4 had been infringed. Several recent Acts had together moved away from the courts the effective power to decide sentences, and the release of a prisoner was now effectively in the hands of the parole board. These additional powers required a re-examination of the independece of the Board. Whilst nobody doubted the independence of mind of the Board, the right required the satisfaction of the common law test of procedural fairness by the absence of apparent bias. Responsibility for the Board had recently been transferred to the Ministry of Justice, whose departmental sponsorship of the Board combined with the lack of security of tenure of its members meant that there was now no longer a sufficient independence. There were now regular confidential meetings between the Board and the Department, and its electronic communications were integrated with the ministry.

Judges:

Hughes LJ, Treacy J

Citations:

[2007] EWHC 2277 (Admin), Times 18-Oct-2007

Links:

Bailii

Statutes:

European Convention on Human Rights 5.4, Criminal Justice Act 1991, Crime (Sentences) Act 1998, Criminal Jutice Act 2003, Criminal Justice Act 1967 59

Jurisdiction:

England and Wales

Prisons, Human Rights

Updated: 04 December 2022; Ref: scu.260002

Martin v Legal Services Commission: Admn 27 Jul 2007

The claimant challenged by judicial review the discharge of a legal aid certificate in educational negligence proceedings.
Held: A final decision to revoke a legal aid certificate may be challenged by judicial review.

Judges:

Ouseley J

Citations:

[2007] EWHC 1786 (Admin)

Links:

Bailii

Statutes:

Legal Aid Act 1988 15(2), Civil Legal Aid (General) Regulations 1989 (1989 No 339) 77

Jurisdiction:

England and Wales

Citing:

Cited – Iverson v Iverson 1966
Solicitors and counsel should report to the Legal Aid Board if the cost benefit position in the funded claim deteriorates after the grant of legal aid. . .

Cited by:

Cited – MAK and RK v The United Kingdom ECHR 23-Mar-2010
mak_ukECHR10
When RK, a nine year old girl was taken to hospital, with bruises, the paediatrician wrongly suspecting sexual abuse, took blood samples and intimate photographs in the absence of the parents and without their consent.
Held: The doctor had . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Judicial Review, Human Rights

Updated: 04 December 2022; Ref: scu.258486

Cyprus v Turkey: 1 May 1975

(Commission) Turkey argued that she had not extended her jurisdiction to the island of Cyprus because she had neither annexed a part of the island nor established a military or civil government there. She maintained that the administration of the Turkish Cypriot community had absolute jurisdiction over part of the island.
Held: The Commission described the scope of the SAA doctrine: ‘Nationals of a State, including registered ships and aircrafts, are partly within its jurisdiction wherever they may be, and…authorised agents of a State, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property ‘within the jurisdiction’ of that State, to the extent that they exercise authority over such persons or property. Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged.’ The Commission set out the terms of reference of its future inquiry as necessitating an examination whether Turkey’s responsibility under the Convention was engaged ‘because persons or property in Cyprus have in the course of her military action come under her actual authority and responsibility at the time.’ and
‘It follows that these armed forces are authorised agents of Turkey and that they bring any other persons or property in Cyprus ‘within the jurisdiction’ of Turkey, in the sense of Art. 1 of the Convention, to the extent that they exercise control over such persons or property. Therefore, insofar as these armed forces, by their acts or omissions affect such persons’ rights or freedoms under the Convention, the responsibility of Turkey is engaged.’

Citations:

Unreported, May 1975, (1976) 4 EHRR 482

Jurisdiction:

Human Rights

Cited by:

Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 December 2022; Ref: scu.238296

Lari v Italy: ECHR 9 Oct 2003

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses award – Convention proceedings

Citations:

63336/00, [2003] ECHR 492

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 01 December 2022; Ref: scu.186658

Leander v Sweden: ECHR 26 Mar 1987

Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander complained that he should have been provided with the information in question, and should have been given the chance to refute it. He submitted that Article 10 conferred a right of access to Government records and a positive obligation upon the State to disclose the contents of its file to him upon request.
Held: His submission failed. Article 10 did not ‘in circumstances such as those of the present case, confer on an individual a right of access to a register containing information on his personal position’. Proceedings before an Appeals Board and the possibility of interim injunction proceedings taken together provided the applicants with an effective remedy. Both the storage of private information in a secret police register and its release, coupled with a refusal to allow an opportunity to refute it, were an interference with the right to respect for private life.
‘The Court observes that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.
There has thus been no interference with Mr. Leander’s freedom to receive information, as protected by Article 10.’

Citations:

[1987] 9 EHRR 433, 9248/81, [1987] ECHR 4

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 13

Jurisdiction:

Human Rights

Cited by:

Cited – Regina (Howard and Another) v Secretary of State for Health QBD 15-Mar-2002
The applicants sought orders that enquiries into the activities of doctors under the Act should be held in public.
Held: The Act contained no presumption that enquiries should be in public, and the Wagstaff case created no general principle to . .
Cited – Lorse and Others v The Netherlands ECHR 4-Feb-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 with regard to the first applicant ; No violation of Art. 3 with regard to the other applicants ; No violation of Art. 8 ; No violation of Art. 13 . .
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 – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – A v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
Cited – Esbester v United Kingdom ECHR 2-Apr-1993
(Commission) The claimant had been refused employment within the Central Office of Information. He had been accepted subject to clearance, but that failed. He objected that he had been given no opportunity to object to the material oin which his . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Kennedy v United Kingdom ECHR 18-May-2010
The claimant complained that after alleging unlawful interception of his communications, the hearing before the Investigatory Powers Tribunal was not attended by appropriate safeguards. He had been a campaigner against police abuse. His requests to . .
Applied – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
Applied – Guerra and Others v Italy ECHR 19-Feb-1998
(Grand Chamber) The applicants lived about 1km from a chemical factory which produced fertilizers and other chemicals and was classified as ‘high risk’ in criteria set out by Presidential Decree.
Held: Failure by a government to release to an . .
Cited – Kennedy v Charity Commission CA 20-Mar-2012
The claimant sought disclosure of an investigation conducted by the respondent. The respondent replied that the material was exempt within section 32(2). The court had found that that exemption continued permanently even after the inquiry was . .
Cited – Atkinson and Crook and The Independent v United Kingdom ECHR 3-Dec-1990
(European Commission of Human Rights) The Commission answered a question as to admissibility, namely whether the sentencing of a convicted criminal defendant in private infringed article 10. The complainants were two freelance journalists.
Cited – Tarsasag A Szabadsagjogokert v Hungary ECHR 14-Apr-2009
The court upheld a complaint by the Hungarian Civil Liberties Union that, contrary to article 10, it had been refused access to details of a complaint in connection with drugs policy on the basis that details of the complaint could not be released, . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Cited – Gillberg v Sweden ECHR 3-Apr-2012
(Grand Chamber) The applicant, a consultant psychiatrist, had conducted research with children under undertakings of absolute privacy. Several years later a researcher, for proper reasons, obtained court orders for the disclosure of the data under . .
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 . .
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
Cited – Rotaru v Romania ECHR 4-May-2000
Grand Chamber – The applicant, a lawyer, complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for . .
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – AB v Her Majesty’s Advocate SC 5-Apr-2017
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police, Information

Updated: 01 December 2022; Ref: scu.164976

Regina v Advertising Standards Authority Ltd Ex Parte Vernons Organisation Ltd: QBD 9 Dec 1992

An injunction was not granted to restrain the publication of a decision of the ASA pending the result of a challenge by way of Judicial Review. There is a general principle in our law that the expression of opinion and the conveyance of information will not be restrained by the courts save on pressing grounds. Freedom of expression is as much a sinew of the common law as it is of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Laws J said: ‘If a private individual will not be restrained from expressing his opinion save on pressing grounds I see no reason why a public body having a duty, other things being equal, to express its opinion should be subject to any less rigid rules. It seems to me that the case is, if anything, analogous to one where an administrative body has an adjudicative function and in the course of its duties publishes a ruling criticising some affected person and the ruling is later disturbed or reversed by an appropriate appellate process. There are many such instances and many of them involve the criticism of members of the public, corporate or natural.
I do not know of an instance in which a public body of that kind would fall to be restrained from carrying out what is no more nor less than its ordinary, but important, everyday duties simply upon the grounds that the intended publication contains material which is subject to legal challenge as being vitiated by some error of law. If the application for judicial review here is successful I cannot think but that there are ample means at the applicant’s disposal to correct any adverse impression which what, ex hypothesi, would be an unlawful report may have given to the public. Indeed, though it has not been canvassed in argument, I know of no reason why the fact that they have obtained leave should not itself be disseminated if they wish to take any steps in that direction since this is an attempt to prevent the public and indeed, in fairness to the applicant, its fellow advertisers and others in the trade to which it belongs from seeing that the authority has reached those conclusions. I do not consider that the effects of that publication are damaging to the applicant in a manner which would be so irreparable, so past recall as to amount to a pressing ground, in the language of Strasbourg, a pressing social need, to restrain this public body from carrying out its function in the ordinary way.’

Judges:

Laws J

Citations:

Gazette 09-Dec-1992, [1992] 1 WLR 1289, [1993] 2 All ER 202

Jurisdiction:

England and Wales

Cited by:

Cited – Douglas, Zeta Jones, Northern and Shell Plc v Hello! Limited (No 1) CA 21-Dec-2000
The first two claimants sold exclusive rights to photograph their wedding to the third claimant. A paparrazzi infiltrated the wedding and then sold his unauthorised photographs to the defendants, who now appealed injunctions restraining them from . .
Cited – Regina v Advertising Standards Authority Limited ex parte Direct Line Financial Services Limited Admn 8-Aug-1997
An ex parte application was made to quash a decision by the Advertising Standards Authority upholding a complaint that the applicants in that case were in breach of the British Codes of Advertising and Sales Promotion, and an injunction to prevent . .
Cited – Debt Free Direct Ltd, Regina (on the Application Of) v Advertising Standards Authority Ltd Admn 15-May-2007
The claimant sought continuation of a without notice interim injunction to restrain the defendant from publishing its findings on a complaint against the claimant. . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Media, Human Rights

Updated: 01 December 2022; Ref: scu.86039