Category: Human Rights

AT v Secretary of State for The Home Department: CA 7 Feb 2012

The claimant challenged a non-derogation control order.

Judges:

Maurice Kay LJ VP, Carnwath LJ, Lloyd LJ

Citations:

[2012] EWCA Civ 42

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 04 October 2022; Ref: scu.450587

Coogan v News Group Newspapers Ltd etc: CA 1 Feb 2012

The claimants said that their voicemail accounts had been hacked by one defendant on behalf of the other. They sought discovery of records, and the defendants argued for the benefit of the privilege against self incrimination.
Lord Neuberger MR discussed the use of the privilege against self incrimination (‘PSI’), saying: ‘I would take this opportunity to express my support for the view that PSI has had its day in civil proceedings, provided that its removal is made subject to a provision along the lines of section 72(3). Whether or not one has that opinion, however, it is undoubtedly the case that, save to the extent that it has been cut down by statute, PSI remains part of the common law, and that it is for the legislature, not the judiciary, to remove it, or to cut it down.’
and as to section 72: ‘The purpose of section 72 is self-evidently to remove PSI in certain types of case, namely those described in section 72(2). While there have been significant judicial observations doubting the value of PSI in civil proceedings, it would be wrong to invoke them to support an artificially wide interpretation of the expression, as it is clear that Parliament has decided that section 72 should contain only a limited exception from the privilege. On the other hand, in the light of the consistent judicial questioning as to whether PSI is still appropriate in civil proceedings, it would be rather odd for a court to interpret such a provision narrowly. Further, the fact that PSI is an important common law right does not persuade me that the expression should be given a particularly narrow meaning.’

Judges:

Lord Neuberger MR

Citations:

[2012] EWCA Civ 48, [2012] 2 WLR 84, [2012] EMLR 14, [2012] 2 All ER 74

Links:

Bailii

Statutes:

Senior Courts Act 1981 72

Jurisdiction:

England and Wales

Citing:

Appeal from – Phillips v Newsgroup Newspapers Ltd and Others ChD 17-Nov-2010
The claimant had been assistant to a well known publicist. The defendant had settled an action brought by her principal for hacking his mobile telephone, in the course of which it appeared that the claimant’s phone had also been hacked. She now . .
Appeal from – Gray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .

Cited by:

Appeal from – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 04 October 2022; Ref: scu.450528

Gorovenky And Bugara v Ukraine: ECHR 12 Jan 2012

The applicants’ relatives were shot by an off-duty police officer. They complained that the state had failed to exercise requisite control over the procedure for equipping police officers with a weapon. They alleged that there had been a breach of the Osman duty.
Held: The court they summarised the relevant law. The positive duty under article 2 was expressed in broad terms: ‘Article 2 enjoins the State . . to take appropriate steps to safeguard the lives of those within its jurisdiction.’ This may apply ‘in situations concerning the requirement of personal protection of one or more individuals in advance as the potential target of a lethal act (see Osman)’. It may also apply ‘in cases raising the obligation to afford general protection to society (see Maiorano and Others v Italy, no 28634/06)’. In the latter circumstances, the court said that the positive obligation covers a wide range of sectors and ‘in principle, will arise in the context of any activity, whether public or not, in which the right to life may be at stake.

Citations:

36146/05, [2011] ECHR 33

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Oneryildiz v Turkey ECHR 18-Jun-2002
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal house-hold refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house, killing his close relatives. The applicant . .
Cited – Maiorano and Others v Italy ECHR 15-Dec-2009
Article 2 may apply may ‘in cases raising the obligation to afford general protection to society’ . .

Cited by:

Cited – Sarjantson v Humberside Police CA 18-Oct-2013
The claimant had been severely injured in an attack by a group of young men. He said that the defendant had failed in its duty to protect him and his family. He now appealed against the action being struck out.
Held: the judge’s interpretation . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 October 2022; Ref: scu.450219

Naik, Regina (on The Application of) v Secretary of State for The Home Department: CA 19 Dec 2011

The claimant challenged the decision of the respondent to revoke his entry visa, saying ‘he was to be excluded ‘for engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred’.’
Held: It is settled law that the Secretary of State has the power to make an exclusion decision.
Gross LJ set out the applicable principles: ‘(1) Principle and authority: As it seems to me, the legal framework for determining this issue is furnished by the principles or propositions which follow.
First, the State has the right to control the entry of non-nationals into its territory. This is hornbook law and requires no elaboration.
Secondly, where immigration control overlaps with or results in the engagement of Art. 10 rights of freedom of expression (as it does or as must be assumed here), such control must be exercised consistently with the State’s Convention obligations.
i) To the extent that authority is needed, this proposition enjoys the support of Farrakhan [2002] EWCA Civ 606 [2002] QB 1391, . . whatever the doubts as to the status of Farrakhan as a precedent on the question of whether Art. 10 is engaged in the case of an alien outside the country, I do not think that such doubts weaken the authority of Farrakhan where Art. 10 is (or is assumed to be) engaged.
ii) Mr. Husain QC, for Dr Naik, contended vigorously that this was not an immigration case at all. I respectfully disagree. To begin with, I prefer to focus on the substance of the matter, rather than the label to be attached to the case. More than that, this is undoubtedly an ‘immigration case’, at least in the sense that the SSHD was required to consider whether Dr Naik, a non-national, should be permitted entry into this country. The true analysis is that this is an immigration case but one where the exercise of immigration control overlaps with or results in the engagement of Art. 10 rights of freedom of expression. The task for the SSHD and the Courts – in their different spheres – is to consider both these important public interests.
Thirdly, Art. 10 rights of freedom of expression are of the first importance. These rights are not, however, absolute or unqualified, as Art 10.2 makes clear. The importance of rights of freedom of expression in a democracy requires no reiteration here. Likewise, the wording of Art. 10.2 speaks for itself.
Fourthly, resolution of any tension between the important interests of immigration control and freedom of expression is achieved by way of Art. 10.2. The application of the provisions of Art. 10.2 will determine whether or not the interference with freedom of expression is justified. The exceptions contained in Art. 10.2 must be construed strictly and the need for any restrictions must be convincingly established. This approach to the construction of Art. 10 is justified both by the structure of the Article and its context; it is moreover well-established in English authority and finds an echo in the Strasbourg jurisprudence cited to us . . Manifestly too, freedom of expression, if it is to have meaning, cannot be confined to those expressing palatable views; a degree of robustness is a healthy attribute of a democratic society.
Fifthly, decisions of the SSHD to refuse entry to this country to an alien on national security or public order grounds are entitled to great weight and must, by their nature, enjoy a wide margin of appreciation (or discretion). Let it be accepted that such decisions, when resulting in the engagement of Art. 10, warrant the most careful scrutiny on the part of the Court; crucially, even so, the decision-maker is the SSHD not the Court. As Carnwath LJ expressed it . . the Court is not substituting its own view for that of the SSHD. The Court’s task remains one of review. By way of elaboration:
i) The starting point is that the SSHD’s decisions in this area are entitled to ‘great weight’, to adopt, with respect, Lord Bingham’s wording in A v Secretary of State for the Home Department [2005] 2 AC 68, at [29]. For my part, I would regard this as self evident, given the subject-matter under consideration; the ‘cost of failure’ . . is a most pertinent consideration . .
ii) Given the nature of the decision, the SSHD must be accorded a wide margin of appreciation (or discretion). This is an area where, again adopting an observation of Lord Bingham (loc cit), ‘reasonable and informed minds may differ’. Take, for instance, the ‘Prevent’ strand in the UK government’s counter-terrorism strategy, to which reference was made in the evidence; judgment calls of no little difficulty will be required in determining the extent, nature and termination of engagement with those of extreme views. Further and as will be emphasised below, it is of the first importance that the Court does not substitute its views for those of the SSHD; a reminder that the SSHD enjoys a wide discretion serves as a useful warning to the Court against straying into territory more properly that of the SSHD.
iii) As it seems to me (and with great respect to the extensive discussion of such matters in the literature), it matters little whether an approach which accords great weight and a wide margin of appreciation to decisions of the SSHD in this area is best described in terms of ‘deference’ or ‘demarcation of functions’ (Lord Bingham, loc cit). The point is the same. Put simply and whether as a matter of ‘deference’ or ‘demarcation’, in areas such as national security or public order, the SSHD is likely to have advice and a perspective not or not readily available to the Court.
iv) Nothing in the above observations precludes the Court from reviewing the decision of the SSHD by reference to what Carnwath LJ has termed ([62] above) ‘public law and human rights principles’. Where Convention rights are involved, that review will be an ‘intensive review’: A v Secretary of State for the Home Department, supra, headnote at p.69. Such a review would (as appropriate, see Carnwath LJ at [48] above) extend to the rationality, legality, procedural regularity and proportionality of a Ministerial decision. If it is necessary, which I am not sure it is, to add descriptive phrases to ‘intensive review’, then, no doubt, intensive review will involve ‘the most careful scrutiny’: Cox v Turkey (supra), at [38].
v) But, whatever the intensity of the review, it is crucial that the Court should not substitute its views for those of the SSHD. The Court does not assume the role of the decision-maker; the Court’s task is and remains one of review. It follows that a measure of judicial reserve or restraint must be prudent in this sphere – serving to underline the Court’s proper role and to guard against usurping, however inadvertently, the role of the decision-maker. In any event, a Court will not lightly overturn a decision of the SSHD as to what is conducive to the public good, still less a decision made by the SSHD personally.’

Judges:

Carnwath, Jackson, Gross LJJ

Citations:

[2011] EWCA Civ 1546

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Naik v Secretary of State for The Home Department and Another Admn 5-Nov-2010
The claimant challenged an order preventing her visiting the UK on the grounds of it not being conducive to the public good. . .

Cited by:

Cited – Campbell (Exclusion; Zambrano) Jamaica UTIAC 21-Mar-2013
UTIAC 1. Exclusion decisions are not be confused with exclusion orders.
2. It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v . .
Cited – Lord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 04 October 2022; Ref: scu.450110

X v Latvia: ECHR 13 Dec 2011

Citations:

27853/09, [2011] ECHR 2104

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children

Updated: 01 October 2022; Ref: scu.450026

Chapti and Others, Regina (on The Application of) v Secretary of State for The Home Department and Others: Admn 16 Dec 2011

Challenge to the amendments to paragraph 281 of the Immigration Rules requiring the foreign spouses and partners of British citizens or persons settled in the UK applying for what I shall refer to as ‘spouse visas’, that is for leave to enter the UK with a view to settlement, to produce a test certificate of knowledge of the English language to a prescribed standard.
Held: t Beatson J concluded that the fact that it might be possible to argue that the operation of the Rule was a disproportionate infringement of an individual’s article 8 rights did not render the Rule itself disproportionate.

Judges:

Beatson J

Citations:

[2011] EWHC 3370 (Admin), [2012] 2 All ER 653

Links:

Bailii

Statutes:

European Convention on Human Rights 8 12

Jurisdiction:

England and Wales

Cited by:

Appeal From – Bibi and Another, Regina (on The Application of) v Secretary of State for The Home Department CA 12-Apr-2013
The applicant appealed against refusal of her challenge to the regulations requiring certain standards of spoken English in foreign spouses seeking to come here to be with their settled or British Citizen spouse.
Held: The imposition of the . .
At first instance – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Discrimination

Updated: 01 October 2022; Ref: scu.450067