Category: Human Rights

Al-Jedda v Secretary of State for the Home Department: SIAC 7 Apr 2009

The appellant challenged an order made under the 1981 Act revoking his British citizenship, saying that it infringed his article 8 rights to family life.

Judges:

Mitting J Ch, Lane SIJ

Citations:

[2009] UKSIAC 66/2008

Links:

Bailii

Statutes:

European Convention on Human Rights 8, British Nationality Act 1981 40

Citing:

See Also – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
At CA – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
At HL – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
At SIAC (1) – Al-Jedda v Secretary of State for the Home Department SIAC 23-May-2008
The appellant had been granted british citizenship. He now appealed against a an order under section 40(2) of the 1981 Act depriving him of his British citizenship on the ground that the respondent was satisfied that deprivation was conducive to the . .
At SIAC (2) – Al-Jedda v Secretary of State for the Home Department SIAC 22-Oct-2008
The Court was asked whether or not the procedural protections afforded by Article 6(1) ECHRR as identified by the House of Lords in Secretary of State for the Home Department v MB [2007] UKHL 46 [2008] 1 AC 440 apply to the Appellant’s appeal . .
At ECHR (1) – Al-Jedda v The United Kingdom ECHR 2-Mar-2009
The claimant, an Iraqi and British national complained of his arrest and internment on suspicion of terrorist involvement. . .
See Also – Al-Jedda v Secretary of State for Defence QBD 5-Mar-2009
The claimant, an Iraqi/British national complained of his detention in Iraq by the defendant without any due process. . .
At CA – Al-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
At SIAC (3) – Al-Jedda v Secretary of State for The Home Department (Deprivation of Citizenship Directions – Oral Ruling ) SIAC 7-Feb-2014
Order . .
At SIAC – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
At ECHR (2) – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .

Cited by:

At SIAC (3) – Al-Jedda v Secretary of State for The Home Department CA 12-Mar-2010
The claimant appealed against a decision withdrawing his British citizenship, saying that this would leave him stateless. . .
At SIAC (3) – Al-Jedda v Secretary of State for Defence CA 8-Jul-2010
Al Jedda, who had both Iraqi and British nationality, sought damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. . .
At SIAC (3) – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
At SIAC (3) – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
At SIAC (3) – Al-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
See Also – Secretary of State for The Home Department v Al-Jedda SC 9-Oct-2013
The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .
At SIAC – Hilal Al-Jedda SIAC 18-Jul-2014
lSIAC Deprivation of Citizenship : Preliminary Issue . .
Lists of cited by and citing cases may be incomplete.

Immigration, Crime, Human Rights

Updated: 03 August 2022; Ref: scu.373720

Schuler-Zgraggen v Switzerland: ECHR 24 Jun 1993

The court considered a contributory invalidity scheme: ‘today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance . . State intervention is not sufficient to establish that Article 6(1) is inapplicable; other considerations argue in favour of the applicability of Article 6(1) in the instant case. The most important of these lies in the fact that despite the public-law features pointed out by the Government, the applicant was not only affected in her relations with the administrative authorities as such but also suffered an interference with her means of subsistence; she was claiming an individual, economic right flowing from specific rules laid down in a federal statute.’

Citations:

14518/89, [1993] ECHR 29

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 03 August 2022; Ref: scu.273142

Wychavon District Council v Secretary of State for Communities and Local Government and others: CA 23 Jun 2008

The court considered the rejection of an application for temporary planning consent by the gipsies to place a caravan on land in a green belt.
Held: The appeal succeeded. There was a requirement to balance the need to maintain the green belt and to recognise the particular human rights consequences of depriving somebody of what had become their home in circumtances where there was a particular shortage of appropriate housing. The loss of a home could be a very special factor allowing a consent which would otherwise be a breach of the green belt.

Judges:

Sir Anthony Clarke, MR, Carnwath LJ and Wilson LJ

Citations:

[2008] EWCA Civ 692, Times 01-Jul-2008, [2009] PTSR 19

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Wychavon District Council of Civic Centre, Regina (on the Application of) v Secretary of State for Communities and Local Government and others Admn 19-Dec-2007
The court quashed a grant of temporary planning permission to the applicant gypsies to stand a caravan on a green field site. . .

Cited by:

Cited – Suffolk Coastal District Council v Hopkins Homes Ltd and Another SC 10-May-2017
The Court was asked as to the proper interpretation of paragraph 49 of the National Planning Policy Framework: ‘Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for . .
Lists of cited by and citing cases may be incomplete.

Planning, Human Rights

Updated: 03 August 2022; Ref: scu.270372

RJM, Regina (on the Application of) v Secretary of State for Work and Pensions: Admn 13 Jul 2006

Judges:

Goudie QC HHJ

Citations:

[2006] EWHC 1761 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions CA 28-Jun-2007
Whether a person who is entitled to income support and who would otherwise be entitled to disability premium as part of his IS loses his entitlement to DP during any period in which he is ‘without accommodation’. . .
At first Instance – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Lists of cited by and citing cases may be incomplete.

Benefits, Human Rights

Updated: 03 August 2022; Ref: scu.244856

B v Responsible Medical Officer, Broadmoor Hospital, Dr SS and others: Admn 8 Sep 2005

Compulsory administration of treatment to detained mental patient. The court considered, but left open, the relationship between the ‘convincingly shown’ standard of proof, and the decision of the House of Lords in In re H as to the civil standard of proof in English law. He proceeded on the basis of the ‘convincingly shown’ standard, treating it as the parties had agreed, as lying between the English civil standard and criminal standard.

Judges:

Charles J

Citations:

[2005] EWHC 1936 (Admin)

Links:

Bailii

Statutes:

Mental Health Act 1983

Jurisdiction:

England and Wales

Citing:

See Also – B, Regina (on the Application of) v Dr SS and others Admn 31-Jan-2005
The claimant was a mental patient detained for a bipolar dis-order after convictions for rape. . .

Cited by:

Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Appeal from – B, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Evidence

Updated: 03 August 2022; Ref: scu.231224

Tsfayo v The United Kingdom: ECHR 14 Nov 2006

The applicant challenged the prodecures for deciding her appeal against the council’s refusal to pay backdated housing benefits. She complained that the availability of judicial review of the decision was not adequate.
Held: The system did not provide a fair system. The Board was not itself independent of the Council whose decision it looked at since members of the panel were representatives of the bodies who would pay the benefits, and the judicial review proceedings would be unable to look again at the findings of fact, and would therefore be an inadequate form of appeal: ‘While the High Court had the power to quash the decision if it considered, among other things, that there was no evidence to support the HBRB’s factual findings, or that its findings were plainly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant’s credibility. Thus, in the applicant’s case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute. It followed that there had been a violation of Article 6 ss 1.’

Judges:

Casadevall, P

Citations:

Times 23-Nov-2006, [2006] ECHR 981, 11111/04, [2006] ECHR 1158, [2007] ECHR 656, [2007] BLGR 1, [2007] HLR 19, (2009) 48 EHRR 18

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights 6.1

Jurisdiction:

Human Rights

Cited by:

Cited – Ali v Birmingham City Council CA 7-Nov-2008
The Council said that it had discharged its duty to house the claimants after they had refused an offer of accommodation, and that decision had been reviewed. The claimant denied receiving a notice under the procedure. The court was asked whether . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – G, Regina (on The Application of) v X School and Others CA 20-Jan-2010
The claimant was a teaching assistant. A complaint had been made that he had kissed a boy having work experience at the school, but it had been decided that no criminal prosecution would follow. He sought judicial review of the school’s decision to . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Cited – Ali v The United Kingdom ECHR 7-Nov-2012
The applicant had sought and been accepted for emergency housing assistance, but having refused the accomodation offered, and the Authority said that it had fulfilled its duty to her. . .
See Also – Tsfayo v The United Kingdom ECHR 10-Jul-2007
. .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 03 August 2022; Ref: scu.246674

Sahin v Turkey: ECHR 15 Jul 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of P1-1; Not necessary to examine Art. 6-1; Pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings.

Citations:

2203/03, [2005] ECHR 503

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 03 August 2022; Ref: scu.228775

Sahiner v Turkey: ECHR 25 Sep 2001

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 as regards the length of the proceedings; Violation of Art. 6-1 as regards independence and impartiality; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient (as regards independence and impartiality); Non-pecuniary damage – financial award (as regards length); Costs and expenses partial award

Citations:

29279/95, [2001] ECHR 552

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 03 August 2022; Ref: scu.166628

Salesi v Italy: ECHR 26 Feb 1993

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

Citations:

[1993] ECHR 14, 13023/87, (1998) 26 EHRR 187

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 03 August 2022; Ref: scu.165244

Sahin v Germany: ECHR 8 Jul 2003

Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed ; No violation of Art. 8 ; Violation of Art. 14+8 ; Non-pecuniary damage – financial award ; Costs and expenses partial award

Citations:

30943/96, [2001] ECHR 587, [2003] ECHR 340, [2001] ECHR 594, [2003] ECHR 340

Links:

Worldlii, Bailii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 03 August 2022; Ref: scu.184416

Feldbrugge v The Netherlands: ECHR 29 May 1986

The court was asked whether the applicant’s entitlement to a statutory sickness allowance, which was a contributory scheme but for which she had not registered due to illness, was a civil right within the meaning of article 6.
Held: The applicant claimed a right ‘flowing from specific rules laid down by the legislation in force’ and that the right in question was ‘a personal, economic and individual right’, a factor which brought it close to the civil sphere. Taking account of the affinity of the statutory scheme with insurance under the ordinary law, the features of private law predominated and they conferred on her entitlement the character of a civil right within the meaning of the article.
The minority were unable to persuade the majority to restrict the application of article 6, in the civil sphere, to rights and obligations in private law. ‘The judicialisation of dispute procedures, as guaranteed by article 6(1), is eminently appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind.’
Hudoc Judgment (Just satisfaction) Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings

Citations:

(1986) 6 EHRR 425, 8562/79, [1986] ECHR 4, [1987] ECHR 18, [1987] ECHR 18, [1986] ECHR 4

Links:

Worldlii, Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

Cited – Secretary of State for the Home Department v AF AM and AN etc CA 17-Oct-2008
The claimants were subject to non-derogating control orders, being non EU nationals suspected of terrorism. They now said that they had not had a compatible hearing as to the issue of whether they were in fact involved in terrorist activity.
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Administrative

Updated: 03 August 2022; Ref: scu.164954

McFeeley and others v The United Kingdom: ECHR 15 May 1980

(Commission) The claimants had been convicted of terrorist-type offences in Northern Ireland and were serving prisoners in HMP The Maze. They protested at a change of regime imposed in 1976, resulting in them not being permitted association with the rest of the prison community. Prisoners complained at ‘close body’ searches, including anal inspections, which were carried out routinely on occasions where dangerous objects had in the past been found concealed in the recta of protesting prisoners.
Held: In assessing whether security measures in a prison may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. ‘The Commission has taken into consideration the exceptional circumstances in the Maze Prison, in particular the dangerous objects that have been found concealed in the recta of protesting prisoners (such as razor blades, flints, matches, cigarette lighters); the fact that, in the past, protesting prisoners have used such objects for disruptive purposes (e.g., to burn the perspex shields used for window coverings); the serious risk that concealed letters might identify prison officers as potential assassination targets.’ and ‘While there can be no doubt that many prisoners find such procedures humiliating, the Commission is of the opinion that in the circumstances the level of mental or physical suffering is not such as to amount to inhuman treatment. Similarly, it does not consider that the degree of debasement or humiliation involved, particularly in respect of prisoners who must be aware by reason of their campaign of the substantial security threat posed, reaches the level of severity required for it to amount to degrading treatment.’

Citations:

8317/78, [1981] 3 EHRR 161, [1984] ECHR 23

Links:

Bailii

Statutes:

European Convention on Human Rights 3

Jurisdiction:

Human Rights

Cited by:

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 – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Bary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 03 August 2022; Ref: scu.186479

Mennitto v Italy: ECHR 5 Oct 2000

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

Citations:

33804/96, [2000] ECHR 456, (2002) 34 EHRR 48

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 03 August 2022; Ref: scu.165945

Messina v Italy: ECHR 1999

The removal of a prisoner from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment. It is an essential part of a prisoner’s right to respect for family life that the prison authorities should assist him in maintaining contact with his family.

Citations:

ECHR 2000-X, 25498/94, ECHR 1999-V, [2000] ECHR 438, [2000] ECHR 440

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 3

Jurisdiction:

Human Rights

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 03 August 2022; Ref: scu.186478

Sokolov And Others v Serbia (Dec): ECHR 14 Jan 2014

Article 35-1
Six month period
Failure to lodge timely application concerning failure of insolvent State entity to pay judgment debt: inadmissible

Facts – Between 2003 and 2005 the applicants obtained final court orders against their former employer, a ‘socially/State-owned’ company, requiring it to pay them salary arrears and social security reimbursements. In 2005 insolvency proceedings were opened in respect of the company. The applicants lodged claims in the insolvency proceedings but the company’s assets were insufficient for them to be paid in full. In 2008 the commercial court terminated the insolvency proceedings and ordered the company’s liquidation. Its decision was published in the Official Gazette and recorded in the relevant public registries. In 2010 the applicants’ lawyer asked for the decision to be served on him. In the same year, the applicants filed a complaint with the Constitutional Court, which was rejected in 2012. In the proceedings before the European Court the Government raised a preliminary objection that the applicants had failed to comply with the six-month time-limit for lodging applications, arguing that time had started to run when the commercial court’s decision terminating the insolvency proceedings was published in the Official Gazette and/or became final.
Law – Article 35 ss 1: In cases concerning the execution of final court decisions the State was directly liable for the debts of entities which, as here, did not enjoy ‘sufficient institutional and operational independence from the State’. Since the judgments in the applicants’ favour remained partly unenforced, the situation complained of had to be considered as continuing.
However, a continuing situation could not postpone the running of the six-month time-limit indefinitely. Applicants had to introduce their complaints ‘without undue delay’ once it was apparent that there were no realistic prospects of a favourable outcome or progress domestically. In the instant case, once they had become aware or should have been aware that the insolvency proceedings had been terminated and/or the debtor company liquidated without any legal successor or remaining assets, it should have been apparent to the applicants that there was no available legal avenue under domestic law for obtaining enforcement of the judgments in their favour against the company or against the State. The applicants should therefore have lodged their applications with the Court within six months from the publication in the Official Gazette of the commercial court’s decision terminating the insolvency proceedings or, at the latest, from when that decision became final. In this regard, the Court noted that domestic law did not prescribe an obligation on the part of the commercial court to serve its decision on the applicants, who should therefore have made such a request in due time. It followed that the applications had been introduced outside the six-month time-limit and had to be rejected. However, the Court pointed out that the applicants’ failure to comply with that duty did not lead to the extinguishment of the State’s general liability for the debts of the company.
Conclusion: inadmissible (out of time).

Citations:

30859/10 – Legal Summary, [2014] ECHR 298

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 03 August 2022; Ref: scu.522575

Moohan, Re Judicial Review: SCS 19 Dec 2013

Outer House – the petitioners, each convicted serving prisoners, complained of the blanket ban on them voting in the referendum on Scottish Independence.
Held: The petition was refused. The Act was not a breach of the petitioners’ rights under European law: ‘by enacting the Franchise Act, the Scottish Parliament is not exercising competence in the sphere of nationality. It is not purporting to make a decision about EU membership or EU citizenship. The process which it is putting in place by the independence referendum is not a process which will have any direct impact on the question of EU membership or EU citizenship.’

Judges:

Lord Glennie

Citations:

[2013] ScotCS CSOH – 199, 2014 GWD 3-55, 2014 SLT 213

Links:

Bailii

Statutes:

Scottish Independence Referendum (Franchise) Act 2013 3

Jurisdiction:

Scotland

Cited by:

Appeal from – Moohan and Black Gillon v The Lord Advocate SCS 2-Jul-2014
Inner House – Challenge to denial to prisoners of right to vote in forthcoming independence referendum. They said it was contrary to Human Rights and European Law.
Held: The House refused a reclaiming motion by the petitioners. . .
At Outer House – 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 . .
Lists of cited by and citing cases may be incomplete.

Prisons, Elections, Human Rights, European

Updated: 03 August 2022; Ref: scu.519745

Jones And Others v The United Kingdom: ECHR 14 Jan 2014

ECHR Article 6
Criminal proceedings
Article 6-1
Access to court
Decision to strike out civil claims alleging torture on account of immunity invoked by defendant State (the Kingdom of Saudi Arabia) and its officials: no violation
Facts – The applicants alleged that they had been subjected to torture while in custody in the Kingdom of Saudi Arabia. The first applicant (Mr Jones) subsequently commenced civil proceedings in the English High Court against the Kingdom, the Saudi Ministry of Interior and an individual officer. The other three applicants issued proceedings against four individuals: two police officers, a deputy prison governor and the Saudi Minister of the Interior. The High Court ruled that all the defendants were entitled to immunity under the State Immunity Act 1978 and refused the applicants permission to serve the proceedings outside the jurisdiction. On appeal, the Court of Appeal drew a distinction between immunity ratione personae (which applied to the State, the serving head of State and diplomats) and immunity ratione materiae (which applied to ordinary officials, former heads of State and former diplomats). It upheld the High Court’s decision in respect of the Kingdom and the Ministry, but allowed the applicants’ appeal in respect of the individual defendants. The issue then went to the House of Lords, which agreed with the High Court that all the defendants were entitled to immunity, even where the allegation against them was one of torture. In their application to the European Court, the applicants complained of a violation of their right of access to court.
Law – Article 6 – 1: Measures taken by a State which reflect generally recognised rules of public international law on State immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 – 1. In its judgment in 2001 in Al-Adsani the Court had found that it had not been established that there had yet been acceptance in international law of the proposition that States were not entitled to immunity in respect of civil claims for damages concerning alleged torture committed outside the forum State. In elaborating the relevant test under Article 6 – 1 in that judgment, the Court was acting in accordance with its obligation to take account of the relevant rules and principles of international law and to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part. It was therefore satisfied that the approach to proportionality set out by the Grand Chamber in Al-Adsani ought to be followed in the instant case.
(a) Application of those principles in the claim against the Kingdom of Saudi Arabia – The Court noted that in the International Court of Justice’s judgment of 3 February 2012 in Germany v. Italy – which had to be considered authoritative as regards the content of customary international law – it was clearly established that, as that date, no jus cogens exception to State immunity had yet crystallised. The application by the English courts of the provisions of the 1978 Act to uphold the Kingdom of Saudi Arabia’s claim to immunity in 2006 could not therefore be said to have amounted to an unjustified restriction on the applicant’s access to a court.
Conclusion: no violation (six votes to one).
(b) Application of the principles in the claim against the State officials – All four applicants had complained that they had been unable to pursue civil claims for torture against named State officials. The Court had to examine whether the refusal to allow those claims to proceed had been compatible with Article 6 – 1 of the Convention, applying the general approach set out in Al-Adsani. The immunity which was applied in cases against State officials remained ‘State’ immunity: it was invoked by the State and could be waived by the State. Where, as in the present case, the grant of immunity ratione materiae to officials had been intended to comply with international law on State immunity, then as in the case where immunity was granted to the State itself, the aim of the limitation on access to court was legitimate. Since measures which reflected generally recognised rules of public international law on State immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to a court, the sole matter for consideration in respect of the applicants’ complaint was whether the grant of immunity ratione materiae to the State officials had reflected such rules. Accordingly, the Court went on to examine whether there was a general rule under public international law requiring the domestic courts to uphold Saudi Arabia’s claim of State immunity in respect of the State officials; and, if so, whether there was evidence of any special rule or exception concerning cases of alleged torture.
(i) The existence of a general rule: Since an act could not be carried out by a State itself but only by individuals acting on the State’s behalf, where immunity could be invoked by the State then the starting point must be that immunity ratione materiae applied to the acts of State officials. If it were otherwise, State immunity could always be circumvented by suing named officials. The weight of authority at both the international and national levels appeared to support the proposition that State immunity in principle offered individual employees or officers of a foreign State protection in respect of acts undertaken on behalf of the State under the same cloak as protects the State itself.
(ii) The existence of a special rule or exception in respect of acts of torture: Even if the official nature of the acts was accepted for the purposes of State responsibility, this of itself was not conclusive as to whether, under international law, a claim for State immunity was always to be recognised in respect of the same acts. Having regard to the relevant international law and national and international case-law, while there was in the Court’s view some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials, the bulk of the authority was to the effect that the State’s right to immunity could not be circumvented by suing its servants or agents instead. There had been evidence of recent debate surrounding the understanding of the definition of torture in the Convention against Torture, the interaction between State immunity and the rules on attribution in the Draft Articles on State Responsibility, and the scope of Article 14 of the 1984 United Nations Convention Against Torture. However, State practice on the question was in a state of flux, with evidence of both the grant and the refusal of immunity ratione materiae in such cases. At least two cases on the question were pending before national Supreme Courts. International opinion on the question might be said to be beginning to evolve, as demonstrated by recent discussions around the work of the International Law Commission in the criminal sphere. That work was ongoing and further developments could be expected. In the present case, it was clear that the House of Lords had fully engaged with all of the relevant arguments concerning the existence, in relation to civil claims of infliction of torture, of a possible exception to the general rule of State immunity. In a lengthy and comprehensive judgment it had concluded that customary international law had not admitted of any exception – regarding allegations of conduct amounting to torture – to the general rule of immunity ratione materiae for State officials in the sphere of civil claims where immunity was enjoyed by the State itself. The findings of the House of Lords were neither manifestly erroneous nor arbitrary but were based on extensive references to international law materials and consideration of the applicant’s legal arguments and the judgment of the Court of Appeal, which had found in the applicants’ favour. Other national courts had examined in detail the findings of the House of Lords in the present case and had considered those findings to be highly persuasive. In these circumstances, the Court was satisfied that the grant of immunity to the State officials in the present case had reflected generally recognised rules of public international law. The application of the provisions of the 1978 Act to grant immunity to the State officials in the applicants’ civil cases had not therefore amounted to an unjustified restriction on the applicant’s access to a court. However, in the light of the developments currently underway in this area of public international law, this was a matter which needed to be kept under review by the Contracting States.
Conclusion: no violation (six votes to one).

Citations:

34356/06 40528/06 – Legal Summary, [2014] ECHR 176

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Constitutional, Criminal Practice

Updated: 03 August 2022; Ref: scu.521852

Regina v H (reasonable Chastisement): CACD 17 May 2001

The defence of reasonable chastisement of a child by his parent remained available despite the Human Rights Act. When directing the jury the judge must give a detailed direction requesting them to consider the nature duration and context of the act, the physical and mental consequences to the child, the age and personal characteristics of the child, and the reasons given for administering the punishment. Standards of reasonableness had changed over time, and there is no impropriety in a judge allowing for this in his directions to the jury.

Citations:

Times 17-May-2001

Jurisdiction:

England and Wales

Crime, Human Rights, Children

Updated: 03 August 2022; Ref: scu.88488

CM, Re Judicial Review: SCS 27 Aug 2013

(Outer House) The prisoner, held in a high security psychiatric hospital, challenged the outright ban on smoking.
Held: The Lord Ordinary declared that the impugned decision was unlawful so far as it affected Mr McCann both because it was not taken in accordance with the 2003 Act principles and also because it breached his Convention rights under articles 8 and 14 of the ECHR. The Lord Ordinary did not award damages but ruled that the finding of the breach of those articles was ‘just satisfaction’ in terms of article 41 of the ECHR.

Judges:

Lord Stewart

Citations:

[2013] ScotCS CSOH – 143

Links:

Bailii

Statutes:

Mental Health (Care and Treatment) (Scotland) Act 2003

Jurisdiction:

Scotland

Cited by:

Outer House – Reclaiming Motion Charles McCann v The State Hospital Board for Scotland SCS 12-Aug-2014
Inner House – The house considered a reclaiming motion (appeal) as to the lawfulness of a decision by the respondents to prohibit smoking and the possession of tobacco in the buildings and grounds of the State Hospital, Carstairs. The Board . .
Outer House – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 31 July 2022; Ref: scu.515113

Munjaz v The United Kingdom: ECHR 17 Jul 2012

The applicant was detained in a secure mental hospital. He complained that he had been held in seclusion.
Held: The complaints under articles 5 and 8 were admissible, but there had been no violation of the applicant’s rights in these circumstances.
The Court (a) emphasised the principle of personal autonomy in article 8, (b) ruled that detained persons were presumed to enjoy all the fundamental rights and freedoms guaranteed by the ECHR, except the right to liberty, where the detention was lawfully imposed in accordance with article 5 of the ECHR and (c) required any restriction of those rights to be justified in each individual case.

Judges:

Lech Garlicki, P

Citations:

2913/06 – HEJUD, [2012] ECHR 1704, [2012] MHLR 351

Links:

Bailii

Statutes:

European Convention on Human Rights 3 5 8 14

Jurisdiction:

Human Rights

Citing:

First case – Regina v Ashworth Special Hospital Trust, ex parte Munjaz 10-Oct-2000
The claimant was detained iin a secure mental hospital. He complained of being held in seclusion for a long period, and as to the hospital’s policy.
Held: The hospital’s policy, by reducing the frequency of review of a patient’s seclusion . .
Second Case – Regina v Ashworth Hospital Authority, Ex parte Munjaz (No 2) Admn 5-Jul-2002
The court dismissed the claimant’s complaint that the seclusion policies operated at Ashworth Special Hospital infringed his human rights. The Special Hospitals operated policies for seclusion which differed from the Code of Practice laid down under . .
At Court of Appeal – Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
At House of Lords – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – C Munjaz v United Kingdom ECHR 20-Mar-2008
The applicant complained of his seclusion whilst being detaned at a secure mental hospital.
Held: The court referred several questions back to the parties to be answered. . .

Cited by:

Cited – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 31 July 2022; Ref: scu.464361

Barton v Wright Hassall Llp: SC 21 Feb 2018

The claimant, a litigant in person, purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant now appealed against his claim being struck out for limitation.
Held: The appeal failed. The decision was one made in the discretion of the court. What constitutes ‘good reason’ for validating the non-compliant service of a claim form is essentially a matter of factual evaluation. The main factors, the weight of which will vary with the circumstances, are likely to be: (i) whether the claimant took reasonable steps to serve in accordance with the rules; (ii) whether the defendant or his solicitor knew of the contents of the claim form when it expired; (iii) what, if any, prejudice the defendant would suffer from validation of the non-compliant service.
‘there is a disciplinary factor in the decision whether to impose or relieve from sanctions for non-compliance with rules or orders of the court, which has become increasingly significant in recent years with the growing pressure of business in the courts. CPR rule 6.15 is rather different. It is directed specifically to the rules governing service of a claim form. They give rise to special considerations which do not necessarily apply to other formal documents or to other rules or orders of the court. The main difference is that the disciplinary factor is less important. The rules governing service of a claim form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all. Although the court may dispense with service altogether or make interlocutory orders before it has happened if necessary, as a general rule service of originating process is the act by which the defendant is subjected to the court’s jurisdiction.’

Judges:

Baroness Hale of Richmond, PSC Lord Wilson, Lord Sumption, Lord Carnwath, Lord Briggs JJSC

Citations:

[2018] UKSC 12, [2018] 1 WLR 1119, [2018] WLR(D) 116, [2018] 3 All ER 487, UKSC 2016/0136

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, Video 22 Nov 2017 am, Video 22 Nov 2017 pm, WLRD

Statutes:

Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Application for Leave – Barton v Wright Hassall Solicitors Llp CA 16-Jun-2015
Application for leave to appeal . .
At CA – Barton v Wright Hassall Llp CA 23-Mar-2016
Application under CPR 6.15(2) for an order that steps already taken to bring a claim form to the attention of the defendant, but falling short of good service under the CPR, shall count as good service. . .
Cited – Prince Abdulaziz v Apex Global Management Ltd and Another SC 26-Nov-2014
The appellant was involved in very substantial litigation with the respondents. As a member of the Saudi Royal family he said that by convention he was not allowed to sign a witness statement, and appealed inter alia against orders requiring him to . .
Cited – Denton and Others v TH White Ltd and Others CA 4-Jul-2014
(De Laval Ltd, Part 20 defendant) (Practice Note) Several parties applied for relief from sanctions, having been refused at first instance:
Held: The court identified a three stage process. It should first calculate the seriousness and or . .
Cited – Elmes v Hygrade Food Products Plc CA 24-Jan-2001
Where a claim form is served in time but is incorrectly served (in this case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service . .
Cited – Abela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .
Cited – Power v Meloy Whittle Robinson Solicitors CA 2-Jul-2014
The court itself had failed to effect proper service because of an administrative error.
Held: The Court rejected the submission that the claimant need not necessarily demonstrate that there was no way in which he could have effected service . .
Cited – Nata Lee Ltd v Abid and Another CA 18-Dec-2014
The Court pointed to the need to treat litigants in person in the same was as others: ‘ the fact that a party (whether an individual or a corporate body) is not professionally represented is not of itself a reason for the disapplication of rules, . .
Cited – Hysaj v Secretary of State for The Home Department CA 16-Dec-2014
Applications for extensions of time to file an appeal should be taken the same as for applications for relief from sanctions, and should attract the same rigorous approach. There is no good reason to have a different approach for public law cases. . .

Cited by:

Cited – Cameron v Liverpool Victoria Insurance Co Ltd SC 20-Feb-2019
The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights, Limitation

Updated: 31 July 2022; Ref: scu.605315

Lyons, Re Judicial Review: SCS 2 Feb 2011

The petitioner was a detained patient, subject to both a compulsion and restriction orders. He objected to a policy restricting visitors from bringing food parcels, and restricting ordering food from outside.
Held: Lady Dorrian held that the Board had failed to consult with patients (as it had conceded it was required to do by section 1 of the 2003 Act) on its decision to ban visitors from bringing food parcels into the State Hospital and to ban patients from ordering in food

Judges:

Lady Dorrian

Citations:

[2011] ScotCS CSOH – 21, 2011 GWD 4-120, [2011] CSOH 21, 2011 SLT 233

Links:

Bailii

Statutes:

Mental Health (Care and Treatment) (Scotland) Act 2003 1, National Health Service (Scotland) Act 1978 102(1)

Jurisdiction:

Scotland

Cited by:

Cited – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 30 July 2022; Ref: scu.428691

Manchester City Council v Pinnock: CA 31 Jul 2009

The court considered the status in law of ‘demoted tenants’, those who had been secure social housing tenants, but who had only limited security after being found to have behaved anti-socially. The tenant had been refused an opportunity by the county court judge to challenge the conclusions as to fact found by the local authority.
Held: The tenant’s appeal failed. Stanley Burnton LJ said that ‘Section 143D of the 1996 Act restricts the county court to considering whether the procedure under sections 143E and 143F has been followed. If the court concludes the procedure has not been followed, it will not make an order for possession. If it has been followed, it must make the order. I emphasise the word procedure. The court’s review is limited to matters of procedure, and the county court cannot review the substance or rationality of the landlord’s decision, or whether or not it is consistent with the tenant’s or other occupiers’ Convention rights.’

Judges:

Mummery, Lloyd, Stanley Burnton LLJ

Citations:

[2009] EWCA Civ 852, [2010] 1 WLR 713, [2009] 32 EG 68, [2010] HLR 7, [2009] BLGR 869, [2010] PTSR 423

Links:

Bailii

Statutes:

Housing Act 1996 143D, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Cited – Salford City Council v Mullen CA 30-Mar-2010
The court considered the status of decisions to commence proceedings for possession by local authorities against tenants not protected under any statutory scheme. The tenants, on introductory tenancies and under the homelessness regime, argued that . .
Cited – Hall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .
Appeal from – Manchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Appeal from – Manchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 30 July 2022; Ref: scu.368598

JF and Another, Regina (On the Application of) v Secretary of State for the Home Department: CA 23 Jul 2009

The claimants complained of the system under which they had been placed on the sex offenders’ register indefinitely with no ability to have the registration reviewed. They said that this interfered with their right to respect for their private and family life.
Held: The Secretary of State’s appeal against a declaration of incompatibility failed. The parties agreed that the 2003 Act operated in a way which interfered with the subject’s human rights. The issue was whether it was disproportionate. The level of interference would vary, but for some it might be substantial. Since the system was designed to prevent further offending, if it continued to control people who were no longer a threat then the interference was disproportionate. It was a matter of principle that someone who considered that they no longer posed such a threat should have the right to have the need to register reviewed. This was moreso in the case of young offenders.
Any problems released by the numbers of applications for review would be avoided by Parliament introducing a sensible and proportionate mechanism for review of notification requirements: ‘The spectre of the floodgates can be set at rest by Parliament setting the threshold for review at a suitably high level both as regards the time when an application may first be made, the frequency with which applications may be made and what has to be proved if the notification requirements are to be varied or discharged.’

Judges:

Dysin, Maurice Kay, Hooper LJJ

Citations:

[2009] EWCA Civ 792, [2010] 1 All ER 1024, [2010] 1 WLR 76, [2009] HRLR 30, [2009] UKHRR 1417

Links:

Bailii, Times

Statutes:

Human Rights Act 1998 4, European Convention on Human Rights 8, Directive 2004/38/EC (OJ April 30, 2004 No L158/77) 4, Sexual Offences Act 2003 82(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – F and Another, Regina (on the Application of) v Secretary of State for the Home Department QBD 19-Dec-2008
The defendants each complained that being placed on the sex offenders’ register indefinitely was a disproportionate interference with their rights for private and family life, and under European law.
Held: A declaration of incompatibility was . .

Cited by:

Appeal From – F and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .
Cited – T, Regina (on The Application of) v Chief Constable of Greater Manchester and Others CA 29-Jan-2013
Three claimants appealed against refusal of declarations that the response of the police to requests for Criminal Records Bureau enhanced checks, were a disproportionate interference in their right to private and family life, and in particular that . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights, European

Updated: 30 July 2022; Ref: scu.361451

Zehentner v Austria: ECHR 16 Jul 2009

ECHR The applicant’s apartment was subject to a judicial sale for non-payment of debt. She was ill, and did not participate in the sale. The local law had time limits for challenging a judicial sale, designed to protect the right of a bona fide purchaser and to ensure legal certainty.
Held: Neither interest proposed was sufficient to outweigh the considerations of an applicant without legal capacity, dispossessed of her home without being able to participate effectively in the proceedings, and without any possibility to have the proportionality of the measure determined by the courts. For the lack of procedural safeguards there had been a violation of Article 8.

Citations:

20082/02, [2009] ECHR 1119

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – Coombes, Regina (on The Application of) v Secretary of State for Communities and Local Government and Another Admn 8-Mar-2010
The landlord council brought proceedings for possession. The tenant (C) had remained in possession after his mother’s death, but enjoyed no second statutory succession. He had lived there since 1954 when he was six. C sought a declaration of . .
Cited – Manchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Cited – London Borough of Hounslow v Powell, Leeds City Council v Hall etc SC 23-Feb-2011
In each case the tenant occupied the property as his home, but was not a secure tenant of the local authority. The Court was asked whether, in granting a possession order in such a case, the court was obliged to consider the proportionality of the . .
Cited – Manchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
Cited – ZH and CN, Regina (on The Applications of) v London Boroughs of Newham and Lewisham SC 12-Nov-2014
The court was asked whether the 1977 Act required a local authorty to obtain a court order before taking possession of interim accommodation it provided to an apparently homeless person while it investigated whether it owed him or her a duty under . .
Cited – McDonald v McDonald and Others SC 15-Jun-2016
Her parents had bought a house and granted tenancies to their adult daughter (the appellant), who suffered a personality disorder. They became unable to repay the mortgage. Receivers were appointed but the appellant fell into arrears with the rent. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 30 July 2022; Ref: scu.352345

AR v Secretary of State for the Home Department: Admn 15 Jul 2009

The claimant appealed against the refusal of the Home Secretary to vary the control order made against him under the 2005 Act.
Held: The organisation of which the applicant was a member might soon enter into a settlement with the Libyan Government which event may be supported by the applicant allowing a relaxation of his conditions. Until then the controls were to be tested under established conditions. Applying those some could by relaxed, but others were rational and proportionate and must remain.

Judges:

Mitting J

Citations:

[2009] EWHC 1736 (Admin)

Links:

Bailii

Statutes:

Prevention of Terrorism Act 2005 10(3)

Citing:

Cited – Secretary of State for the Home Department v MB CA 1-Aug-2006
The Secretary of State appealed a declaration that the restrictions imposed on the complainant under the 2005 Act were an infringement of his human rights, and a declaration of incompatibility as regards section 3.
Held: The appeal succeeded. . .
Cited – Secretary of State for the Home Department v AV Admn 30-Apr-2009
. .
See Also – Secretary of State for the Home Department v AR Admn 19-Dec-2008
. .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 30 July 2022; Ref: scu.347758

Dyller v Poland: ECHR 7 Jul 2009

The applicant alleged that his pre-trial detention had exceeded a ‘reasonable time’ within the meaning of Article 5-3 of the Convention.

Judges:

Nicolas Bratza, P

Citations:

39842/05, [2009] ECHR 1065

Links:

Bailii

Statutes:

European Convention on Human Rights 5-3

Cited by:

Judgment – Dyller v Poland ECHR 15-Feb-2011
Request for revision of the judgment of 7 July 2009 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 30 July 2022; Ref: scu.347652