Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset: HL 11 Mar 2004

The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Held: The jury should indeed have been given opportunity to explain their verdict: ‘By one means or another the jury should, to meet the procedural obligation in article 2, have been permitted to express their conclusion on the central facts explored before them’, but private communications between the coroner and the jury were inappropriate. In order for these rules to meet the state’s procedural investigative duty under Article 2 of the Convention the word ‘how’ in sub-rule (1)(b) of the Coroner’s Rules should now be interpreted not simply to mean ‘by what means’, as earlier cases had held, but also to include ‘and in what circumstances.’
The House considered the article 2 duties of a member state: ‘The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.
The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated.’
Lord Bingham of Cornhill said: ‘However the jury’s factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular ‘neglect’ or ‘carelessness’ and related expressions, should be avoided.’

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell
[2004] UKHL 10, Times 12-Mar-2004, [2004] 2 WLR 800, [2004] 2 AC 182, [2004] UKHRR 501, [2004] 2 All ER 465, (2004) 79 BMLR 51, [2004] Lloyds Rep Med 288, [2004] 17 BHRC 49, (2004) 168 JPN 479, (2004) 168 JP 329
Bailii, House of Lords
Coroners Act 1988, European Convention on Human Rights 2, Coroners Rules 36
England and Wales
Citing:
Appeal fromRegina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
CitedLCB v The United Kingdom ECHR 9-Jun-1998
The court had no jurisdiction to consider allegations not raised before the commission or predating a country’s accession to the convention. There was no breach in a failure to record an exposure to radiation in a test. Article 2 imposes substantive . .
CitedOsman 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, . .
CitedOneryildiz v Turkey ECHR 30-Nov-2004
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house killing his close relatives.
Held: The . .
CitedPowell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
CitedEdwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
CitedCalvelli and Ciglio v Italy ECHR 17-Jan-2002
The applicants’ baby had died shortly after birth in 1987. They complained about the medical care. The complaint was not investigated speedily by the authority, resulting in a criminal complaint becoming time barred after a conviction in 1994 was . .
CitedKeenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
CitedTaylor v United Kingdom ECHR 1994
. .
CitedMcCann and Others v The United Kingdom ECHR 6-Oct-1995
Wrong assumptions made by police officers in the killing of terrorists amounted to a human rights breach, despite the existence of danger to the public of an imminent attack. Article 2(1) is ‘one of the most fundamental provisions in the . .
CitedSalman v Turkey ECHR 27-Jun-2000
Where someone dies or is injured whilst in custody the burden is on the state to provide a ‘satisfactory and convincing explanation’ of what has happened: ‘Persons in custody are in a vulnerable position and the authorities are under a duty to . .
CitedMastromatteo v Italy ECHR 24-Oct-2002
The deceased had been a bystander killed by a group of criminals, some of whom were on leave of absence from prison and one of whom had absconded from prison. A complaint was made by the applicant that there had been a breach of the positive duty to . .
CitedEdwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
CitedSieminska v Poland ECHR 29-Mar-2001
The applicant’s husband died in hospital, but she later complained that the ambulance had not been equipped with the necessary resuscitation devices. Under Polish law she had a right to appeal against decisions of the prosecuting authorities not to . .
CitedJordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
CitedRegina v Walthamstow Coroner, Ex parte Rubenstein 19-Feb-1982
The 1988 Act was a consolidating Act. . .
CitedRegina v HM Coroner for Birmingham, Ex parte Secretary of State for the Home Department 1990
. .
CitedRegina v Coroner for Western District of Sussex Ex Parte Homberg Roberts and Mannerss QBD 27-Jan-1994
A Coroner’s enquires should be as to ‘how’ the death arose, and not into all the circumstances contributing to the death.
Simon Brown LJ said: ‘It is clear that the coroner’s over-riding duty is to inquire ‘how’ the deceased came by his death . .
Appeal fromRegina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
CitedMiddleton, Regina (on the Application of) v Coroner for the Western District of Somerset Admn 14-Dec-2001
The deceased had committed suicide whilst in prison. It was argued that the prison should have recognised that he was a suicide risk, and acted accordingly. The coroner had requested a note from the jury as to the cause of death. The court . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .

Cited by:
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Appealed toRegina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
CitedSacker, Regina (on the Application of) v Coroner for the County of West Yorkshire HL 11-Mar-2004
The deceased committed suicide in prison. Her family sought to have added to the verdict the words ‘contributed by neglect’ and complained that the inquest had not provided a full and proper investigation of the death.
Held: The Act needed to . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
CitedRegina (Anderson and Others) v HM Coroner for Inner North Greater London QBD 26-Nov-2004
The deceased suffered depressive mental illness, and was detained outside on a cold night naked and in a cannabis induced delirium. Because of his size, additional officers were called upon to assist restraining him. He was taken to hospital, but . .
CitedD, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
CitedPlymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
CitedTakoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
AppliedLongfield Care Homes Ltd, Regina (on the Application Of) v HM Coroner for Blackburn and others Admn 14-Oct-2004
An elderly lady had died after falling from an open window at her care home. Although she suffered moderately severe injuries from the fall, they were not serious enough of themselves to cause her death which resulted from pre-existing pneumonia, . .
CitedTakoushis, Regina (on the Application of) v HM Coroner for Inner North London Admn 16-Dec-2004
A patient suffering schizophrenia had been a voluntary patient. He was allowed to visit another unit within the hospital grounds, but then left altogether and was next found preparing to jump from Tower Bridge. He was taken by ambulance to Hospital . .
CitedD, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
CitedParkin v HM Coroner for North Lincolnshire and Grimsby District Admn 23-Mar-2005
The family appealed against an open verdict. Her son was found hanged at school. The coroner felt unable to be sure that he had committed suicide. He had been looking forward to a new job as a theatre technician.
Held: There was evidence . .
CitedBloom v HM Assistant Deputy Coroner for the Northern District of London and Another Admn 20-Dec-2004
The deceased had gone to hospital and was diagnosed as having a kidney stone. As it was removed there was evidence of infection. She declined and was transferred to the local NHS hospital in intensive care. She died and a post-mortem identified . .
CitedCameron and others v Network Rail Infrastructure Ltd QBD 18-May-2006
The claimant sought damages from the defendant after the death of her father in the Potters Bar rail crash. The defendant applied for summary judgment saying that English law did not recognise a claim by a family member of a deceased save through . .
CitedScholes, Regina (on the Application of) v Secretary of State for the Home Department Admn 16-Jan-2006
The deceased had committed suicide whilst in a Young Offenders Institute. The coroner had called for a further enquiry into the way he had been sentenced. The Home Office refused a public enquiry saying that the coroner’s inquest had satisfied its . .
CitedGentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
CitedGentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
CitedWarren, Regina (on the Application of) v Her Majesty’s Assistant Coroner for Northamptonshire Admn 29-Apr-2008
The deceased had committed suicide in his prison cell. Prison officers were charged with manslaughter by gross neglect, but they were discharged. The applicant sought now to challenge the refusal of the coroner to allow to be called to give evidence . .
CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
CitedSmith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
CitedSavage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
CitedPounder, Regina (on the Application of) v HM Coroner for the North and South Districts of Durham and Darlington and others Admn 22-Jan-2009
The deceased died aged 14 in a Secure Training Centre by hanging. He had complained of his treatment and restraint methods used. The mother sought judicial review of the conduct of the inquest, wanting the coroner not to have ruled on the legality . .
CitedAl-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
CitedP, Regina (on The Application of) v HM Coroner for The District of Avon CA 18-Dec-2009
The deceased was found hanging in her prison cell. The jury returned a verdict of accidental death, not being satisfied that she was not merely making a cry for help. The family appealed a finding that the inquest had satisfied the requirement for a . .
CitedLewis, Regina (on The Application of) v HM Coroner for The Mid and North Division of The County of Shropshire and Another CA 21-Dec-2009
The claimant’s son was found hanging in his prison cell. He appealed refusal of a judicial review of the coroner’s decision not to put to the jury a question as to certain possible causative matters. The youth was seen hanging, but the guard called . .
CitedJones v HM Coroner for The Southern District of Greater London and Another Admn 28-Apr-2010
The mother of the deceased asked for a new inquest, saying that there had been insufficient enquiry. He was an adult suffering Asperger’s syndrome and other difficulties, but had sought and been given excess prescriptions of fentanyl a drug to . .
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
CitedWilkinson, Regina (on The Application of) v HM Coroner for The Greater Manchester South District Admn 11-Oct-2012
The court was asked whether evidence of the commission of the criminal offence of causing death by careless driving contrary to section 2B of the 1988 Act is capable of justifying a verdict of ‘unlawful killing’ at an inquest.
Held: The . .
CitedKent County Council, Regina (on The Application of) v HM Coroner for The County of Kent (North-West District) and Others Admn 15-Oct-2012
The council sought review of the coroner’s decision that the inquest would be an article 2 inquest and with a jury. The deceased was 14 years old and had taken methadone. In the months before his death, he had had involvement with the council’s . .
CitedBirks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .
CitedLetts, Regina (on The Application of) v The Lord Chancellor and Another Admn 20-Feb-2015
Application for judicial review concerning the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which . .
CitedTyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .
CitedFinucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .

Lists of cited by and citing cases may be incomplete.

Coroners, Prisons, Human Rights

Leading Case

Updated: 16 January 2022; Ref: scu.194438

In Re Findlay, in re Hogben: HL 1985

A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person whose case falls within the scope of the policy is only entitled to have whatever policy is lawfully in place at the relevant time applied to him. A Secretary of State is entitled to change his policy.
It is proper for an authority to adopt a general policy for the exercise of such an administrative discretion, to allow for exceptions from it in ‘exceptional circumstances’ and to leave those circumstances undefined.
Scarman L said: ‘It is said that the refusal to except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision frustrated their expectation. But what was their legitimate expectation? Given the substance and purpose of the legislative provisions . . the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper or even to prevent, changes of policy.’ and ‘the Secretary of State has clearly to consider other aspects of the early release of a prisoner serving a sentence of imprisonment. Deterrence, retribution, and public confidence in the system are factors of importance. The Parole Board, through its judicial and other members, can offer advice on these aspects of the question. But neither the board nor the judiciary can be as close, or as sensitive, to public opinion as a minister responsible to Parliament and to the electorate. He has to judge the public acceptability of early release and to determine the policies needed to maintain public confidence in the system of criminal justice.’

Scarman, Diplock, Roskill, Brandon, Brightman LL
[1985] AC 318, [1984] 3 WLR 1159, [1984] 3 All ER 801
England and Wales
Citing:
ApprovedCREEDNZ Inc v The Governor General 1981
(New Zealand) The court looked at those considerations which a decision maker can choose for himself whether or not to take them into account. Cooke J said: ‘what has to be emphasised is that it is only when the statute expressly or impliedly . .

Cited by:
CitedRegina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
CitedFlynn, Meek, Nicol and McMurray v Her Majesty’s Advocate PC 18-Mar-2004
PC (High Court of Justiciary) The applicants had each been convicted of murder, and complained that the transitional provisions for determining how long should be served under the life sentences infringed their . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Hindley HL 30-Mar-2000
The prisoner, sentenced to life imprisonment with a whole life tariff for the murders of children, now appealed against the imposition of the whole life tarriff.
Held: The appeal failed. It was possible for a Home Secretary to set a whole life . .
MentionedRegina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
CitedNorth West Lancashire Health Authority v A D and G CA 29-Jul-1999
A decision not to fund gender re-assignment surgery was operated as a blanket policy without proper regard for individual cases and so was unlawful as an effective fetter on the discretion which the Health Authority was obliged to exercise. A lawful . .
CitedRogers, Regina (on the Application of) v Secretary of State for Health Admn 15-Feb-2006
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was . .
CitedRogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
CitedLambeth London Borough Council v Ireneschild CA 16-Mar-2007
The tenant held a secure tenancy of a first floor flat of the Council. She was severely disabled and argued that the danger of injury meant that she should be allowed to occupy the empty ground floor flat. She complained at the way the authority had . .
CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
CitedOxfam v Revenue and Customs ChD 27-Nov-2009
The charity appealed against refusal to allow it to reclaim input VAT. It also sought judicial review of the decision of the Tribunal not to allow it to raise an argument of legitimate expectation. The charity had various subsidiaries conducting . .
CitedAC v Berkshire West Primary Care Trust, Equality and Human Rights Commissions intervening Admn 25-May-2010
The claimant, a male to female transsexual, challenged a decision by the respondent to refuse breast augmentation treatment. The Trust had a policy ‘GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not . .
CitedCala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
CitedCross, Regina (on the Application of) v Governor HM Young Offenders Institute Thorn Cross Admn 20-Jan-2004
The claimant prisoner challenged the governor’s refusal to release him on the home detention curfew scheme. Henriques J said: ‘no risk assessment is necessary in cases where a prisoner has committed a presumed unsuitable offence. It is only if there . .
CitedYoung, Regina (on The Application of) v Governor of Her Majesty’s Prison Highdown and Another Admn 6-Apr-2011
The claimant complained that he had not been considered for early release on Home Detention Curfew because the policy refused to allow those convicted of knife crimes to be so considered, and: ‘the failure to include other offences in the list of . .
CitedMonica, Regina (on The Application of) v Director of Public Prosecutions Admn 14-Dec-2018
Deception as to identity did not undermine consent
The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
Held: Her claim failed. Case . .
CitedFinucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .

Lists of cited by and citing cases may be incomplete.

Administrative, Prisons

Updated: 16 January 2022; Ref: scu.187440

Regina v Secretary of State for Home Department and Governor of Her Majesty’s Prison Risley ex parte Hargreaves, Briggs and Green: CA 20 Nov 1996

No sufficient expectation which could form the basis of a judicial review arose from an agreement for prison home leave which was later denied. The only legitimate expectation of the prisoners was to have their applications individually considered in light of whatever policy was in force at the time.

Hirst LJ
Times 03-Dec-1996, Gazette 05-Feb-1997, [1996] EWCA Civ 1006, [1997] 1 WLR 906
Bailii
England and Wales
Cited by:
CitedRegina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
CitedFinucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .

Lists of cited by and citing cases may be incomplete.

Prisons, Criminal Practice, Administrative

Updated: 16 January 2022; Ref: scu.140873

Amougou Mbarga, Regina (on The Application of) v Secretary of State for The Home Department: Admn 26 Apr 2012

The Claimant seeks a declaration that his detention by the Secretary of State for the Home Department [‘SSHD’] was unlawful from 22 October 2010 to 5 March 2012, in addition seeking damaging and costs.

[2012] EWHC 1081 (Admin)
Bailii
England and Wales

Immigration, Prisons, Torts – Other

Updated: 16 January 2022; Ref: scu.453013

Cox v Ministry of Justice: SC 2 Mar 2016

The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The claimant’s appeal succeeded at the Court of Appeal.
Held: The Minister’s appeal failed. The activities assigned to the prisoners were integral to the activities of the prison in furthering its aims, particular so for the provision of prisoners’ meals. That these aims served also the public interest was not a bar to the imposition of vicarious liability. The prison service placed the prisoners in a position where there was a risk of committing a variety of negligent acts. This was recognised by the provision of health and safety training. The prisoners worked under the direction of prison staff. The claimant had been injured as a result of the prisoner’s negligence in carrying on activities assigned to him, and the prison service was therefore vicariously liable to her.
Reference was made to five incidents of the relationship between employer and employee which had been identified in the Christian Brothers case as usually making it fair, just and reasonable to impose vicarious liability, and which could properly give rise to vicarious liability where other relationships had the same incidents and could therefore be treated as akin to employment. They were: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and (v) the employee will, to a greater or lesser degree, have been under the control of the employer.
The weight to be attached to these various factors will vary according to the context, and ‘The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Dyson, Lord Reed, Lord Toulson
[2016] WLR(D) 110, [2016] UKSC 10, [2016] 2 WLR 806, [2016] IRLR 370, [2016] PIQR P8, [2017] 1 All ER 1, [2016] ICR 470, [2016] AC 660, UKSC 2014/0089
Bailii, Bailii Summary, WLRD, SC, SC Summary
Health and Safety Act 1974 48(3), Provision and Use of Work Equipment Regulations 1998 5(1)
England and Wales
Citing:
At County CourtCox v Ministry of Justice Misc 3-May-2013
(Swansea County Court) While working as a catering manager at HM Prison Swansea, the claimant suffered injury in an accident caused by the negligence of a prisoner who was carrying out paid work under her supervision. She now sought damages from the . .
At CACox v Ministry of Justice CA 19-Feb-2014
Appeal against rejection of claim for personal injury. While working as the catering manager at HM Prison Swansea, the Claimant was injured in an accident caused by the negligence of a prisoner carrying out paid work under her supervision. The . .
CitedThe Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
CitedTurberville v Stampe 1698
A master is responsible for all acts done by his servant in the course of his employment, even though he may have given no particular directions. . .
CitedThomas Duncan, Treasurer To The Trustees Of The Perth And Dundee Turnpike Road v James Findlater HL 23-Aug-1839
Trustees appointed under a Public Road Act are not responsible for an injury occasioned by the negligence of the men employed in making or repairing the road.
The funds raised by such Act cannot be charged with compensation for such an injury; . .
CitedWoodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedViasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others CA 10-Oct-2005
The defendants had subcontracted work installing air conditioning to the second defendants, who in turn bought in fitters from the third defendants. A fitter caused a flood acting irresponsibly.
Held: The court reviewed the law of vicarious . .
CitedBartonshill Coal Company v Jane McGuire, Widow HL 17-Jun-1858
Master’s Liability to the Public for Injury done by a Servant. – Per the Lord Chancellor: A master is liable for any injury or damage done to the public through the negligence or unskilfulness of servants acting in the master’s employ. The reason . .
CitedDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
CitedCentral Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925
A night watchman at a garage drove off in a car left there for his own purposes and damaged it.
Held: The garage had delegated to their employee the duty of keeping the car safely secured in the garage and they were liable to the owners of the . .
CitedBroom v Morgan CA 1953
The plaintiff and her husband were employed by the defendant to manage and work in a beer and wine house. The Plaintiff was injured through the negligence of her husband in the course of his employment. In an action by her against the defendant in . .
CitedIlkiw v Samuels CA 1963
The plaintiff was injured by the careless manouvering of a lorry by the defendant’s employee.
Held: When considering the vicarious liability of an employer, the proper approach to the nature of the servant’s employment is a broad one. . .

Cited by:
CitedArmes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .
CitedChell v Tarmac Cement and Lime Ltd CA 12-Jan-2022
Explosive pellet not part of employee’s role.
The claimant worked on a site operated by the respondent. One of the respondent’s employees exploded two pellet targets injuring the claimant’s hearing. He asserted vicarious liability in the respondent. There had been tensions between the claimant . .

Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Prisons

Updated: 14 January 2022; Ref: scu.560621

Salman v Turkey: ECHR 27 Jun 2000

Where someone dies or is injured whilst in custody the burden is on the state to provide a ‘satisfactory and convincing explanation’ of what has happened: ‘Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies . . Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.’

21986/93, [2000] 34 EHRR 425, [2000] ECHR 357
Worldlii, Bailii
European Convention on Human Rights 2(1)
Human Rights
Cited by:
CitedRegina (Amin) v Secretary of State for the Home Department QBD 5-Oct-2001
An Asian youth was placed in a cell with another who was well known to be violent and racist. He was bludgeoned to death. The family sought a public investigation into how he came to be placed in such a position. An investigation had been refused by . .
CitedAmin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
CitedMiddleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
CitedD, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
CitedTakoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
CitedRegina (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 . .
CitedKeenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
CitedJL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
CitedSavage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Human Rights, Prisons

Updated: 12 January 2022; Ref: scu.165895

Houchin v Lincolnshire Probation Trust: QBD 9 Apr 2013

The defendant sought to have the claim struck out. The prisoner said that the defendant’s probation officer had through misfeasance in public office arranged for his transfer back to secure conditions from open ones. The parole board panel had found ‘It was clear to the panel that the decision to return Mr Houchin to closed conditions, both as recorded by . . and on any other basis not then considered, was flawed, unreasonable, ill-motivated and invalid in a public law sense.’ The Secretary of state had rejected the finding, and the defendant had found no evidence to support the allegations against the officer.
Held: The claim was struck out. There was no reason for the officer to dislike the claimant, nor to seek to defend the Service as alleged. Others had reached similar conclusions to his own. The claimant had no prospect of succeeding.

Supperstone J
[2013] EWHC 794 (QB)
Bailii
England and Wales
Citing:
CitedRacz v Home Office HL 17-Dec-1993
The Home Office can be liable for the actions of prison officers which amounted to an official misfeasance. The principles of vicarious liability apply as much to misfeasance in public office as to other torts involving malice, knowledge or . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
CitedHughes and others (By Their Litigation Friend) v Richards (Trading As Colin Richards and Co ) CA 9-Mar-2004
Parents and their children claimed against a tax adviser for negligence in relation to setting up an offshore trust. The defendant applied to strike out the children’s claim on the basis that the defendant owed them no duty of care and only the . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedKaragozlu v Commissioner of Police of the Metropolis CA 12-Dec-2006
The claimant made a claim for misfeasance in public office. The defendant argued that such a claim required proof of special damage. The claimant said that the deprivation of liberty amounted to such damage. Whilst serving a prison sentence the . .

Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other

Updated: 12 January 2022; Ref: scu.472249

Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson: QBD 12 Jul 1993

A prisoner had hanged himself after being left unsupervised in a single cell. He was a known suicide risk, but the Coroner directed the jury not to return a verdict which included any reference to lack of care.
Held: A coroner was free not to leave a lack of care verdict to the jury where a doctor had taken the decision which led to the death, in a case of suicide of a prisoner. He could do so despite the statutory prohibition on any verdict being framed in such a way as to appear to determine any question of liability.
Sir Thomas Bingham MR set out the coroner’s duty: ‘It is the duty of the Coroner, as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. .’ The court gave guidance on directions to be given by coroners on the lack of care verdict: ‘It is not the function of a coroner or his jury to determine or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame . . the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not. Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence . . it is to be hoped that in future the expression ‘lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by ‘neglect’. Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show he obviously needs it may amount to neglect . . Neglect can rarely, if ever, be an appropriate verdict on its own . . Neglect may contribute to a death from natural causes. Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.’

Times 23-Jul-1993, Ind Summary 18-Oct-1993, Ind Summary 06-Sep-1993, Guardian 12-Jul-1993
Coroners Act 1988
England and Wales
Cited by:
Appeal fromRegina v North Humberside and Scunthorpe Coroner ex parte Jamieson CA 27-Apr-1994
The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, . .
CitedO’Reilly v Coventry Coroner QBD 3-Apr-1996
The inquest was said to have been flawed because relevant material was withheld from the jury, factual issues were not addressed, and the Coroner had refused to leave open the possibility of a verdict of lack of care or neglect. The deceased had . .
CitedTakoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
CitedIn re Catherine Lucy Clegg (an Application to Quash Inquisition on Inquest) Admn 2-Dec-1996
The father of the deceased sought an order quashing the inquest on her death. He had recorded a verdict of suicide. She had died from acute salicylate poisoning, an aspirin overdose. The hospital was said not to have recognised her condition and not . .
CitedParkin v HM Coroner for North Lincolnshire and Grimsby District Admn 23-Mar-2005
The family appealed against an open verdict. Her son was found hanged at school. The coroner felt unable to be sure that he had committed suicide. He had been looking forward to a new job as a theatre technician.
Held: There was evidence . .
CitedAssistant Deputy Coroner of Inner West London v Paul and Another, Regina on the Application of CA 28-Nov-2007
The coroner appealed a judicial review granted after he allowed into evidence, hearsay evidence contained in a written statemnent from a witness who could not attend the inquest.
Held: Rule 37 does not allow the admission of a document, even . .
CitedRegina 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, . .
CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .

Lists of cited by and citing cases may be incomplete.

Coroners, Prisons

Leading Case

Updated: 12 January 2022; Ref: scu.87445

Rimmer, Regina (on The Application of) v Secretary of State for Justice and Another: Admn 22 Feb 2016

Claim for judicial review is based upon the claimant’s contention that the conditions imposed upon his licence on release from prison as part of an extended sentence of four years imprisonment together with four years extended licence period are unlawful.

Dove J
[2016] EWHC 329 (Admin)
Bailii
England and Wales

Prisons

Updated: 10 January 2022; Ref: scu.560248

A, Regina (on the Application of) v Home Secretary: Admn 27 Nov 2003

Application by detainees for judicial review of the decision of the Secretary of State to permit them to be interviewed by journalists but only if the interviews are conducted within earshot of officials and are tape recorded. The claimants challenge the monitoring conditions which the Secretary of State has imposed, contending that they contravene Article 10 of the European Convention on Human Rights.

Kennedy LJ, Royce J
[2003] EWHC 2846 (Admin)
Bailii
England and Wales

Media, Prisons, Immigration

Updated: 10 January 2022; Ref: scu.188501

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 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
The applicants alleged that the detention regime to which the first applicant was subjected in a maximum security prison constituted inhuman and/or degrading treatment and infringed their right to respect for their private and family life, and that they did not have an effective remedy in respect of their complaint of inhuman treatment. He was serving a term of fifteen years, and the prison authorities had concluded that he might use violence to try to escape. He complained that the conditions had caused his mental deterioration. His family complained that the additional lack of contact also damaged them.
Held: The prohibition against degrading treatment is absolute, but a regime must be seen as against its effect on a particular complainant. Weekly strip searches were unnecessary and damaging and infringed the applicant’s article 3 rights. The extra inspections and limits on contact with his family were capable of being an infringement of his right to family life. The authorities were entitled to consider that an escape by Mr Lorse would have posed a serious risk to society. The restrictions of the applicants’ right to respect for their private and family life did not go beyond what was necessary in a democratic society to attain the legitimate aims intended. The applicant’s situation was reviewed regularly, and various appeals had been heard. There was no violation of Article 13 of the Convention.

52750/99, [2003] ECHR 59
Worldlii, Bailii
European Convention on Human Rights 3
Human Rights
Citing:
CitedLabita v Italy ECHR 6-Apr-2000
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 3 with regard to alleged ill-treatment; Violation of Art. 3 with regard to lack of effective investigation; No violation of Art. 3 with regard to . .
CitedThe Republic of Ireland v The United Kingdom ECHR 18-Jan-1978
The UK lodged a derogation with the Court as regards its human rights obligations in Northern Ireland because of the need to control terroist activity. The Government of Ireland intervened. From August 1971 until December 1975 the UK authorities . .
CitedKudla v Poland ECHR 26-Oct-2000
Just what treatment is sufficiently severe to reach the high threshold required for a violation of article 3 ‘depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its . .
CitedV v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
CitedPeers v Greece ECHR 19-Apr-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; No violation of Art. 6-2; Violation of Art. 8; Non-pecuniary damage – financial award
The question whether the purpose of the treatment was . .
CitedDougoz v Greece ECHR 6-Mar-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Violation of Art. 5-1; Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses . .
CitedAerts v Belgium ECHR 30-Jul-1998
A person detained as a person of unsound mind should not be kept in a prison, but if the institution concerned is within the appropriate category, there is no breach of Article 5. While measures depriving a person of his liberty often involve an . .
CitedMessina 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 . .
CitedValasinas v Lithuania ECHR 24-Jul-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 with regard to body search; No violation of Art. 3 with regard to other complaints; Violation of Art. 8; No violation of Art. 34; Non-pecuniary . .
CitedMcFeeley 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 . .
CitedKalashnikov v Russia ECHR 15-Jul-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Violation of Art. 5-3; Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses . .
CitedLacko and Others v Slovakia ECHR 2-Jul-2002
Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint. . .
CitedLeander 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:
CitedRegina (T) v the Secretary of State for the Home Department; similar CA 23-Sep-2003
The claimant asylum seeker had been refused benefits having failed to declare his application on entry. The Secretary now appealed a finding that the decision was flawed. Was the treatment of the applicant inhuman or degrading?
Held: No simple . .
CitedWainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 10 January 2022; Ref: scu.178997

Aerts v Belgium: ECHR 30 Jul 1998

A person detained as a person of unsound mind should not be kept in a prison, but if the institution concerned is within the appropriate category, there is no breach of Article 5. While measures depriving a person of his liberty often involve an element of suffering or humiliation, it cannot be said that detention in a high security prison facility, be it on remand or following a criminal conviction, in itself raises an issue under Article 3 of the Convention. The Court’s task is limited to examining the personal situation of the applicant who has been affected by the regime concerned (Article 3).

25357/94, (1998) 29 EHRR 50, [1998] ECHR 64
Worldlii, Bailii
European Convention on Human Rights 3 5-1 5-4 6-1
Human Rights
Cited by:
CitedMunjaz 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 . .
CitedLorse 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 . .
CitedPD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedB, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
CitedRegina 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 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health, Prisons

Updated: 10 January 2022; Ref: scu.165642

Betteridge v The United Kingdom: ECHR 29 Jan 2013

The applicant prisoner complained of a delay in his release pending a review by the Parole Board.
Held: The violation of article 5(4) resulted from a delay in the holding of a review by the Board following the expiry of an IPP prisoner’s tariff. The court proceeded on the basis that the Board would not have ordered the applicant’s release had the review taken place speedily. It nevertheless made an award on the basis that the delay ‘gave rise to feelings of frustration which . . were not sufficiently compensated by the findings of violations of the Convention’

1497/10 – HEJUD, [2013] ECHR 97
Bailii
European Convention on Human Rights
Human Rights
Citing:
At First Instance CourtBetteridge, Regina (On the Application of) v the Parole Board Admn 23-Jun-2009
Application was made for damages after a wrongful delay in the prisoner’s release.
Held: Collins J urged practitioners not to pursue actions which are ‘not likely to achieve any sensible redress’. Claims in damages cannot be brought unless it . .

Cited by:
CitedCreasey and Another v Sole and Others ChD 24-May-2013
The parties, brothers and sisters, disputed ownership of lands to be inherited from the estates of their parents, and whether parts of the farm purchased in several lots under different ownerships descended as part of the farm. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Damages

Updated: 09 January 2022; Ref: scu.470645

Thakrar v The Secretary of State for Justice: Misc 31 Dec 2015

County Court sitting at Milton Keynes. The claimant prisoner sought damages saying that his personal property had been damaged whilst in the care of the defendant.
Held: The claims succeeded in part. Some damage was deliberate. There was a history of failures by the defendant to comply with court orders in relation to the Claimant: ‘It is not, however, necessary to go beyond the bare fact of a finding that deliberate damage has been caused to a prisoner’s property by those who had the responsibility of looking after it to justify a conclusion that an award of exemplary damages is warranted. Even if I am wrong about that, a similar sized award of aggravated damages would be appropriate.’

[2015] EW Misc B44
Bailii
England and Wales
Citing:
CitedBullen v Swan Electric Engineering Co 1907
The duty of a bailee is to take reasonable care of the goods concerned, the bailee bearing the burden of proof of absence of fault. . .
CitedHoughland v R R Low (Luxury Coaches) Ltd CA 1962
A passenger’s bag had been placed in one coach that had broken down was intended to be transferred to a second coach. When the second coach arrived at the passenger’s destination the bag was not in the hold.
Held: The duty of care of a bailee . .
CitedPort Swettenham Authority v T W Wu and Co (M) Sdn Bhd PC 19-Jun-1978
A gratuitous bailee assumes a duty to take reasonable care of the chattel: ‘This standard, although high, may be a less exacting standard than that which the common law requires of a bailee for reward [but] the line between the two standards is a . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
CitedHuckle v Money 1763
An action for false imprisonment brought by a journeyman printer who apparently had played no part in printing the famous issue No. 45 of ‘The North Briton ‘ but had been arrested under a warrant issued by a Secretary of State authorising a King’s . .
CitedWilkes v Wood CCP 6-Dec-1763
Entry by Force was Unconstitutional
The plaintiff challenged a warrant of commitment to the Tower of London addressed to John Wilkes by name. The plaintiff sought damages after his property was entered by force on behalf of the Secretary of State.
Held: The case was decided on a . .
CitedRookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
CitedThompson v Commissioner of Police of Metropolis; Hsu v Same CA 20-Feb-1997
CS Damages of 200,000 pounds by way of exemplary damages had been awarded against the police for unlawful arrest and assault.
Held: The court gave a guideline maximum pounds 50,000 award against police for . .

Lists of cited by and citing cases may be incomplete.

Prisons, Damages

Updated: 09 January 2022; Ref: scu.558302

Taylor, Regina v Secretary of State for Justice and Others: Admn 16 Nov 2015

In 1974 the prisoner had been sentenced to life imprisonment with a minimal custodial term of 40 years. That had been completed but he had not been released despite a direction for his release by the parole board to a hostel. Funding had not been made available for the place.
Held: The claim failed. The delay had not been caused by any breach of duty on the part of the defendants and the grounds on which they were alleged to have acted unlawfully are not justified.

Leggatt J
[2015] EWHC 3245 (Admin)
Bailii
Crime (Sentences) Act 1997 28, Care Act 2014

Prisons

Updated: 06 January 2022; Ref: scu.554665

Bristow v The Secretary of State for Justice and Another: CA 17 Nov 2015

The claimant had been setenced for offences committed in Thailand, and repatriated to serve his term in the UK. He now complained that his treatment had been worse than the potential early release dates available to those repatriated prisoners convicted of violent or sexual offending.

Lord Dyson MR, Davis, McCombe LJJ
[2015] EWCA Civ 1170
Bailii
England and Wales

Criminal Sentencing, Prisons, Human Rights

Updated: 06 January 2022; Ref: scu.554672

Clift v The United Kingdom: ECHR 13 Jul 2010

Mr Clift had been sentenced in England to a term of imprisonment of 18 years for crimes including attempted murder. The Parole Board recommended his release on licence once he had served half of his sentence. The Secretary of State rejected its recommendation. Had the recommendation been made in relation to a prisoner serving a sentence of a term of less than 15 years or a life sentence, the Secretary of State would have had no power to reject it. Mr Clift alleged that in such circumstances the Secretary of State’s rejection of the Board’s recommendation discriminated against him, contrary to article 14, in the enjoyment of his right to liberty under article 5 of the Convention. He contended that the discrimination was on the ground of his ‘status’ as a person sentenced to a term of at least 15 years.
Held: A prisoner serving a determinate sentence of 15 years or more acquired a ‘status’ within Article 14.

[2010] ECHR 1106, 7205/07
Bailii
European Convention on Human Rights 5 14
Citing:
See AlsoClift v The United Kingdom ECHR 30-Apr-2009
Mr Clift was serving a sentence of 18 years’ imprisonment for very serious crimes, including attempted murder, and complained that the early release provisions in respect of his sentence gave rise to a violation of article 14. The House of Lords . .
See AlsoClift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .

Cited by:
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 05 January 2022; Ref: scu.554274

Shahid v Scottish Ministers (Scotland): SC 14 Oct 2015

The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of the prison rules and of his Human Rights. Time limits for authorisation had not been complied with.
Held: The appeal was allowed, and a declaror granted as to unlwful periods of segregation, and breaches of the appellants Article 8 rights.
The courts below had adopted a purposive interpretation of the rules, but ‘No amount of purposive interpretation can however entitle the court to disregard the plain and unambiguous terms of the legislation. The consequence of the failure to obtain authority for continued segregation prior to the expiry of the 72 hour period is ineluctably spelled out by the legislation itself: the prisoner ‘shall not be subject to . . removal for a period in excess of 72 hours from the time of the order’. It might be possible for more than one order to be made, Though the plain words of the Rules might be overridden by a pressing need to protect the prisoner’s human rights, the respndent had not sought to make that point.
As to the alleged breach of Article 3: ‘Considering the facts of this case against the criteria applied in the case law of the European Court, the treatment of the appellant did not attain the minimum level of severity required for a violation of article 3. It is important to bear in mind that the isolation which he experienced was partial and relative. The fact that his segregation was imposed in the interests of his own safety is also relevant. There is no doubt that the duration of his segregation was undesirable, and indeed exceptional by the standards of prisons in the United Kingdom. There are also respects in which his conditions might have been improved, in particular by making greater provision for the pursuit of purposeful activities.’
As to Article 8: ‘no meaningful plan was devised until a very late stage. It is for the Ministers to establish that the appellant’s segregation for 56 months was proportionate. In my judgment, in the absence of any evidence that serious steps were taken by the SPS management to address the issues arising from his segregation until four and a half years after it had begun, they have failed to do so.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Sumption, Lord Reed, Lord Hodge
[2015] UKSC 58, [2015] WLR(D) 409, [2015] 3 WLR 1003, 2015 SLT 707, [2016] AC 429, UKSC 2014/0273
Bailii, Bailii Summary, WLRD, SC, SC Summary
European Convention on Human Rights 3 8, Prisons and Young Offenders Institutions (Scotland) Rules 1994, Prison and Young Offenders Institutions (Scotland) Rules 2011
Scotland
Citing:
Appeal fromShahid v The Scottish Ministers SCS 31-Jan-2014
The appellant was serving a long term of imprsonment, and now complained that he had been held in segregation for over 4 years, saying that this was ahgainst the Prison Rules and against his human rights.
Held: The Extra Division refused the . .
At Outer HouseShahid v Scottish Ministers SCS 18-Nov-2011
(Outer House Court of Session) The petitioner complaine dthat whilst serving a very long term of imprisonment, he had been held in segregation for almost five years, and that this contravened the Prison Rules and his human rights.
Held: The . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedBourgass 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 . .
CitedInland Revenue v Hinchy HL 18-Feb-1960
HL Income Tax – Incorrect return – Amount of penalty – Income Tax Act, 1952 (15 and 16 Geo. VI and 1 Eliz. II, c. 10), Section 25 (3).
A court’s search for parliamentary intention is not an enquiry as to . .
CitedFederal Steam Navigation Co Ltd v Department of Trade and Industry HL 1974
The normal meaning of the word ‘or’ is disjunctive, although in a suitable context it can be read as equivalent to ‘and’, or as expressing a non-exclusionary alternative equivalent to ‘and/or’ . .
CitedInco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
CitedRegina v Central Valuation Officer and another ex parte Edison First Power Limited HL 10-Apr-2003
Powergen sold a property to Edison. Powergen had paid rates under a separate statutory rating regime, and paid an additional thirteen million pounds under an apportionment. Edison later complained that in being rated itself, the authorities had . .
CitedRegina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
CitedBabar Ahmad And Aswat v United Kingdom ECHR 10-Apr-2012
The applicants said that if extradited to the USA to face charges related to terrorism, they would risk facing either imprisonment by Presidential decree, or full life terms.
Held: Detention conditions and length of sentences of five alleged . .
CitedRamirez Sanchez v France ECHR 27-Jan-2005
The applicant complained that he had been held in solitary confinement for a period of nearly 8 years whilst in prison, and had not been given a remedy.
Held: There had been no breach of article 3 by the confinement, but article 13 had been . .
CitedGreenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
CitedRazvyazkin v Russia ECHR 3-Jul-2012
The Court discussed proportionality in respect of the solitary confinement of a prisoner under Article 8: ‘Given that solitary confinement is a serious restriction of a prisoner’s rights which involves inherent risks to the prisoner, the level of . .
CitedFaulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
CitedWillcox and Hurford v The United Kingdom ECHR 8-Jan-2013
ECHR Article 3
Degrading treatment
Inhuman treatment
Continued enforcement in United Kingdom pursuant to prisoner transfer agreement of lengthy sentence imposed by Thai courts: inadmissible
Cited by:
CitedLord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 04 January 2022; Ref: scu.553309

Hoffman, Regina (on The Application of) v Parole Board: Admn 9 Jul 2015

Application challenging the refusal by the Parole Board, in a decision to recommend him for transfer to open conditions on the basis that the Parole Board failed to apply the correct test, failed to carry out any proper balancing exercise when considering transfer to open conditions and failed to conduct a fair hearing.

McKenna J
[2015] EWHC 2519 (Admin)
Bailii

Prisons

Updated: 03 January 2022; Ref: scu.552046

Regina v Parole Board ex parte Harris: Admn 15 Sep 1997

Scott Baker J stated that: ‘it is incumbent upon the Parole Board to have before it the widest possible information.’ The range of information which may be relevant to that assessment is a broad one.
In stressing the need for the applicant to have ‘a full and proper opportunity of answering to the Parole Board the detailed allegations made’, Scott Baker J stated: ‘But it seems to me that it would be quite wrong that the Parole Board should be deprived of the opportunity of seeing material of this nature [post-trial report] and of hearing anything that a prisoner has to say about it . . it may well be that in a particular case they are of some significance in the context of the evidence as a whole.’ adding that he was sure: ‘That the Parole Board panel is well able to evaluate the weight that ought to be given to unsubstantiated hearsay evidence.’

Scott Baker J
[1997] EWHC Admin 808
England and Wales
Cited by:
CitedMcGetrick, Regina (on The Application of) v Parole Board and Another CA 14-Mar-2013
The claimant prisoner appealed against refusal of review of the use of allegations and evidence of offences not tried against him when deciding as to his release on licence. The material would suggest that he might pose a continuing risk to . .

Lists of cited by and citing cases may be incomplete.

Prisons

Updated: 03 January 2022; Ref: scu.137753

Ex Parte Blackstock: Admn 6 Oct 1997

The applicant appealed a refusal of leave to apply for a judicial review of the refusal of the parole board to move him, as a prisoner serving a life sentence, to a lower security prison. The application should no reasonable prospects of success, and leave was denied. The court would not order the prisons service to bear the additional costs of him being transported from prison to court.

Lord Justice Brooke, Mr Justice Gage
[1997] HC Admin 831
England and Wales

Prisons

Updated: 03 January 2022; Ref: scu.137776

Regina v Accrington Youth Court Governor of HM Prison Risley Secretary of State for Home Department ex parte Flood: Admn 22 Aug 1997

The Policy of allowing youths to be held in adult prisons for assessment purposes immdiately after conviction was unlawful.

Times 10-Oct-1997, Gazette 01-Oct-1997, [1997] EWHC Admin 783
Criminal Justice Act 1982 1C(1)
England and Wales

Criminal Sentencing, Prisons

Updated: 03 January 2022; Ref: scu.137728

Grabowski v Poland: ECHR 30 Jun 2015

ECHR Article 5-1
Lawful arrest or detention
Continued detention without a judicial decision of a juvenile subject to correctional proceedings: violation
Article 46
General measures
Respondent State required to take legislative measures to stop the practice of detaining juveniles subject to correctional proceedings without a judicial decision
Facts – The applicant, a minor at the time, was arrested on 7 May 2012 on suspicion of committing a number of armed robberies. He was initially detained in a police establishment for children and then, by way of a court order, was placed in a shelter for juveniles for a period of three months (until 7 August 2012).
In July 2012 a district court ordered that his case be examined in correctional proceedings under the Juvenile Act. Once such an order is issued, the family courts’ common practice in Poland is not to issue a separate decision extending the placement in a shelter for juveniles. The family courts consider that such an order constitutes of itself a basis for extending the placement of a juvenile in a shelter.
Upon the expiry of the three-month period of his detention, the applicant applied for release. However, in a decision of 9 August 2012, the district court dismissed his application excluding the possibility of any alternative security measure on the ground that he had been accused of committing criminal acts with the use of a dangerous object.
The applicant remained in the shelter until the judgment in his case was delivered on 9 January 2013 in the correctional proceedings. In that judgment the district court found that the applicant had committed the offences of which he stood accused and ordered his placement in a correctional facility, suspended for a two-year probationary period. That judgment was not appealed against and became final.
Law – Article 5 – 1: Between the date the order placing the applicant in a juvenile shelter expired (7 August 2012) and the district court’s decision of 9 January 2013 ordering the applicant’s release, there had been no judicial decision authorising the applicant’s continued detention. During that period the applicant had continued to be detained in a shelter for juveniles solely on the basis of the fact that a judge had issued an order referring the applicant’s case for examination in the correctional proceedings under the Juvenile Act.
The Juvenile Act, by reason of the absence of any precise provisions requiring the family court to order the prolongation of the placement of a juvenile in a shelter for juveniles once the case is referred to correctional proceedings and when the earlier decision authorising the placement in the shelter for juveniles expires, did not satisfy the test of the ‘quality of the law’ for the purposes of Article 5 – 1. The deficient provisions of the Juvenile Act at the relevant time permitted the development of a practice where it was possible to prolong the placement in a shelter for juveniles without a specific judicial decision. Such practice was in itself contrary to the principle of legal certainty. The applicant’s detention was therefore not ‘lawful’ within the meaning of Article 5 – 1.
Conclusion: violation (unanimously).
Article 5 – 4: The decision of 9 August 2012 dismissing the applicant’s application for release had not explained the legal basis for his continued detention in the shelter for juveniles, but simply referred to the fact that he was accused of serious criminal acts. Those reasons had been perfunctory and, more importantly, had not addressed the crucial argument of why the applicant’s continued detention in the shelter for juveniles had not been based on a judicial decision.
Conclusion: violation (unanimously).
Article 46: The problems detected in the instant case could subsequently give rise to other well-founded applications and called for general measures at national level. Indeed, certain statistics indicated that, as of December 2012, there were apparently 340 juveniles placed in shelters in a similar situation to that of the applicant. Moreover, the issues identified in his case had already been raised in 2013 by the Ombudsman and brought to the attention of the Minister of Justice, who had agreed that the existing practice was unsatisfactory and required legislative amendment. However, no specific action had so far been taken by the Government. Poland had therefore to take legislative or other appropriate measures to stop the practice of detaining juveniles, who were subject to correctional proceedings, without a specific judicial decision and to ensure that each and every deprivation of liberty of a juvenile was authorised by a specific judicial decision.
Article 41: EUR 5,000 euros in respect of non-pecuniary damage.

57722/12 – Legal Summary, [2015] ECHR 646
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Prisons, Children

Updated: 02 January 2022; Ref: scu.549944

Silver And Others v The United Kingdom: ECHR 25 Mar 1983

There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were restrictive.
Held: ‘it is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage.’ Restrictions were however justifiable so long as the law was sufficiently precise to enable the individual to regulate his conduct, and that orders and instructions could be properly taken into account. ‘ and ‘a law which confers a discretion must indicate the scope of that discretion.’ though ‘the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity . . [T]he Court points out once more that ‘many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.’ As to the rule prohibiting ‘letters which discuss crime in general or the crime of others’: ‘The Commission considers that this restriction is also an obvious requirement of imprisonment and although it is not specified in the Prison Rules 1964, as amended, the Commission is of the opinion that it is a reasonable and foreseeable consequence of the Home Secretary’s power under rule 33(1) of the Prison Rules 1964 to impose restrictions on prisoners’ correspondence in the interests of good order, the prevention of crime or the interests of any persons. Prison security is, in the Commission’s opinion, an essential part of such interest. The prohibition on prisoners’ letters which discuss crime in general or the crime of others can, accordingly, be said to be ‘in accordance with the law’ within the meaning of Article 8(2). . . . On the justification issue, the Commission considers that a prohibition on prisoners’ letters which discuss crime in general or the crime of others is, in principle, an ordinary and reasonable requirement of imprisonment, ‘necessary in a democratic society . . for the prevention of disorder or crime’ within the meaning of Article 8(2).’
ECHR The court addressed the question of safeguards: ‘The applicants further contended that the law itself must provide safeguards against abuse. The Government recognised that the correspondence control system must itself be subject to control and the court finds it evident that some form of safeguards must exist. One of the principles underlying the Convention is the rule of law, which implies that an interference by the authorities with an individual’s rights should be subject to effective control. This is especially so where, as in the present case, the law bestows on the executive wide discretionary powers, the application whereof is a matter of practice which is susceptible to modification but not to any Parliamentary scrutiny.’

6205/73, [1983] 5 EHRR 347, [1983] ECHR 5, 7052/75, 5947/72
Worldlii, Bailii
European Convention on Human Rights 6-1 8 13, European Convention on Human Rights
Human Rights
Citing:
At CommissionSilver v United Kingdom ECHR 1980
(Commission) Complaint was made as to the censorship of prisoners’ correspondence. The censorship of prisoners’ correspondence was ancillary to prison rules restricting the contents of correspondence. The Commission, therefore, and the Court had to . .

Cited by:
CitedAnufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
CitedSzuluk, Regina (on the Application of) v HM Prison Full Sutton Admn 20-Feb-2004
The prisoner was receiving long term health treatment, and objected that his correspondence with the doctor was being read. He was held as a category B prisoner but in a prison also holding category A prisoners, whose mail would be read. The prison . .
CitedBegum, Regina (on the Application of) v Denbigh High School Admn 15-Jun-2004
A schoolgirl complained that she had been excluded from school for wearing a form of attire which accorded with her Muslim beliefs.
Held: The school had made great efforts to establish what forms of wear were acceptable within the moslem . .
CitedS, 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 . .
CitedNilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedHirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
See AlsoSilver And Others v The United Kingdom (Art 50) ECHR 24-Oct-1983
. .
CitedThe Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
CitedThe Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
CitedMiller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .
CitedGallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Damages, Prisons

Leading Case

Updated: 02 January 2022; Ref: scu.164917

Chester, Regina (on The Application of) v Secretary of State for Justice: SC 16 Oct 2013

The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The appeals failed.
Lord Mance summarised the reasons for his conclusions: ‘(A) Human Rights Act
In respect of Chester’s claim under the Human Rights Act, which only relates to elections to the European and United Kingdom Parliaments, I would decline the Attorney General’s invitation to this Court not to apply the principles in Hirst v United Kingdom (No 2) (2005) 42 EHRR 41 (‘Hirst (No 2)’) and Scoppola v Italy (No 3) (2013) 56 EHRR 19 (paras 34-35) (‘Scoppola’), but also decline to make any further declaration of incompatibility with the Convention rights.
(B) European law
a. In respect of McGeoch’s and Chester’s claims under European law, which can at most relate to elections to the European Parliament and municipal authorities (paras 9, 45 and 46), I conclude that European law does not incorporate any right to vote paralleling that recognised by the European Court of Human Rights in its case-law or any other individual right to vote which is engaged or upon which, if engaged, they are able to rely.
b. Had European law conferred any right to vote on which McGeoch and Chester can rely:
i. the only relief that might have been considered would have been a generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Community or Union law but that would not have appeared appropriate in the particular cases of Chester and McGeoch;
ii. the general ban on voting in European Parliamentary and municipal elections could not have been disapplied as a whole;
iii. it would not have been possible to read the RPA section 3 or EPEA section 8 compatibly with European law;
iv. the Supreme Court could not itself devise a scheme or arrangements that would or might pass muster with European law; that would be for Parliament;
v. neither of the appellants could have had any arguable claim for damages in respect of any breach of European law which may be involved in RPA section 3 and/or EPEA section 8.
(C) European Court of Justice
The resolution of these appeals does not necessitate a reference to the European Court of Justice. In so far as it raises issues of European law for determination, they are either not open to reasonable doubt or involve the application by this Court to the facts of established principles of European law.
(D) Both appeals fall therefore, in my opinion, to be dismissed
Baroness Hale said that when the court was considering remedies under the 1998 Act it should adopt the ‘sensible practice’ of asking in what way the particular claimant’s Convention rights had been violated. She continued:’That leaves the possibility of a declaration of incompatibility under section 4(2) of the Human Rights Act 1998. This applies ‘in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right’: section 4(1). This does appear to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant. There may be occasions when that would be appropriate. But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims.’

Lady Hale, Deputy President, Lord Hope, Lord Mance, Lord Kerr, Lord Clarke, Lord Sumption, Lord Hughes
[2013] UKSC 63, [2014] 1 AC 271, [2014] HRLR 3, [2013] 3 WLR 1076, [2014] 1 All ER 683, [2013] WLR(D) 392, [2014] 1 CMLR 45, 2014 SC (UKSC) 25, 2014 SLT 143, 2013 GWD 34-676, UKSC 2012/0151
Bailii, WLRD, Bailii Summary, SC Summary, SC
European Convention on Human Rights, Human Rights Act 1998 4(2)
Scotland
Citing:
At First InstanceChester, Regina (on The Application of) v Secretary of State for Justice and Another Admn 28-Oct-2009
Burton J dismissed a claim for judicial review brought by the serving prisoner, to challenge his statutory disfranchisement from voting in domestic and European Parliamentary elections. . .
Appeal fromChester v Secretary of State for Justice and Wakefield Metropolitan District Council CA 17-Dec-2010
The prisoner claimant appealed against refusal of his request for judicial review of his disenfranchisement whilst a prisoner.
Held: The appeal was dismissed. It was not possible to read into the Act as suggested a duty on a judge on . .
CitedMatthews v The United Kingdom ECHR 18-Feb-1999
Member states have obligations to ensure that citizens of each state were given opportunity to vote in European elections. Britain failed to give the vote to its citizens in Gibraltar in breach of the convention right to participate in free . .
CitedHirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
CitedBarclay and Others, Regina (on The Application of) v Secretary of State for Justice and Others SC 1-Dec-2009
The claimants said that restrictions within the constitution of Sark on who could sit in the Chief Pleas were incompatible with their human rights. The claimants variously owned property on Sark but had restricted rights to vote and stand.
CitedGreens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedScoppola v Italy (No 3) ECHR 22-May-2012
(Grand Chamber) A prisoner serving a sentence of 30 years imprisonment for murder, attempted murder and other offences object to his disenfranchisement under Italian law. . .
CitedMcLean and Cole v The United Kingdom ECHR 11-Jun-2013
The applicants complained that, as convicted prisoners, they had been subject to a blanket ban on voting in elections and had been, or would be, prevented from voting in one or more of the following: elections to the European Parliament on 4 June . .
CitedMcLean and Cole v The United Kingdom ECHR 11-Jun-2013
The applicants complained that, as convicted prisoners, they had been subject to a blanket ban on voting in elections and had been, or would be, prevented from voting in one or more of the following: elections to the European Parliament on 4 June . .
CitedAnchugov And Gladkov v Russia ECHR 4-Jul-2013
. .
CitedSoyler v Turkey ECHR 17-Sep-2013
. .
CitedAnimal Defenders International v The United Kingdom ECHR 22-Apr-2013
ECHR (Grand Chamber) Article 10-1
Freedom of expression
Refusal of permission for non-governmental organisation to place television advert owing to statutory prohibition of political advertising: no . .
CitedManchester 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 . . .
CitedSauve v Canada (Chief Electoral Officer) 31-Oct-2002
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Right to vote – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences . .
CitedSpain v United Kingdom ECJ 12-Sep-2006
ECJ Law Governing The Institutions – European Parliament – Elections – Right to vote – Commonwealth citizens residing in Gibraltar and not having citizenship of the Union. . .
CitedEman and Sevinger (European Citizenship) ECJ 12-Sep-2006
ECJ (Opinion) European Parliament – Elections – Right to vote – Requirements of residence in the Netherlands for Netherlands citizens of Aruba – Citizenship of the Union. . .
CitedSmith v KD Scott, Electoral Registration Officer SCS 24-Jan-2007
The prisoner claimed that his right to vote had not been re-instated despite a year having passed since the European Court of Human Rights had found that the withdrawal of that right for prisoners was an infringement.
Held: It was not possible . .
CitedGreens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
CitedVinter And Others v The United Kingdom ECHR 9-Jul-2013
(Grand Chamber) The three appellants had each been convicted of exceptionally serious murders, and been sentenced to mandatory life sentences, but with provision that they could not be eligible for early release, making them whole life terms. They . .
CitedMangold v Helm ECJ 22-Nov-2005
ECJ Grand Chamber – Directive 1999/70/EC – Clauses 2, 5 and 8 of the Framework Agreement on fixed-term work – Directive 2000/78/EC – Article 6 – Equal treatment as regards employment and occupation – Age . .
CitedKucukdevici v Swedex GmbH ECJ 7-Jul-2007
ECJ Directive 2000/78/EC in principle non’discrimination age – National legislation on dismissal not taking into account the period of service completed before the employee reaches the age of 25 to calculate the . .
CitedBartsch v Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH ECJ 23-Sep-2008
ECJ Equal treatment in employment and occupation Article 13 EC Directive 2000/78/EC Occupational pension scheme excluding the right to a pension of a spouse more than 15 years younger than the deceased former . .
CitedFrancovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
CitedBrasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
CitedRegina v Secretary of State for Transport, ex parte Factortame Ltd and others (No 5) HL 28-Oct-1999
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .
CitedRobins and Others v Secretary of State for Work and Pensions ECJ 25-Jan-2007
ECJ Free movement of persons – Protection of employees in the event of the employer’s insolvency – Directive 80/987/EEC Transposition Article 8 Supplementary company or inter-company pension schemes – Old-age . .
CitedKucukdeveci v Swedex GmbH and Co KG ECJ 19-Jan-2010
ECJ Principle of non-discrimination on grounds of age – Directive 2000/78/EC – National legislation on dismissal not taking into account the period of employment completed before the employee reaches the age of . .
CitedFrodl v Austria ECHR 8-Apr-2010
The applicant alleged that his disenfranchisement because he was serving a term of imprisonment of more than one year constituted a breach of his rights under Article 3 of Protocol No. 1. . .
CitedRegina v H M Treasury, ex parte British Telecommunications ECJ 26-Mar-1996
The Government should not be ordered to pay compensation for failing to implement a European Directive which remained ambiguous. A failure to implement a directive into national law may be actionable but there would normally be only small damages. . .

Cited by:
CitedNicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedWalker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
CitedHallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Elections, European

Leading Case

Updated: 01 January 2022; Ref: scu.516496

Bateman and Howse, Regina (on the Application Of) v Secretary of State for the Home Department: CA 17 May 1994

The plaintiff had been convicted of several counts of receiving stolen goods and sentenced to six years’ imprisonment. He had appealed to the Court of Appeal on the ground that he had been convicted on the basis of evidence in statement form given by witnesses from New Zealand. His appeal failed. Some time later his case was referred back to the Court of Appeal under section 17 of the Criminal Appeal Act 1968. This time his appeal succeeded on what was essentially the same ground as that which had failed before and his convictions were quashed.
Held: The plaintiffs’ appeals were dismissed. Compensation should be payable to prisoners wrongly convicted only after new facts were discovered, not where the release came after a ruling which changed the law. In this case ‘the ground of the reversal was not . . the discovery of a new or newly discovered fact, but a legal ruling on facts which had been known all along.’
Sir Thomas Bingham discussed the suggestion that the success of an appeal meant that the court felt there had been a miscarriage of justice, and said: ‘Therefore, it follows, he says, that he is a victim of a miscarriage of justice and from that it follows that he is entitled to compensation. To deny him compensation is, he argues, to undermine his acquittal and the presumption of innocence which flows from the fact that his convictions have been quashed. I am, for my part, unable to accept that argument, although I hasten to assure Mr Bateman that in doing so I have no intention whatever to undermine the effect of the quashing of his convictions. He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest that Mr Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for three-and-a-half years when he should not have been convicted or imprisoned at all on the second decision of the Court of Appeal (Criminal Division). The man in the street would regard that as a miscarriage of justice and so would I. But that is not, in my judgment, the question. The question is whether the miscarriage of justice from which Mr Bateman has suffered is one that has the characteristics which the Act lays down as a pre-condition of the statutory right to demand compensation. That, therefore, is the question to which I now turn.’ there was no new or newly discovered fact, so that Mr Bateman could not satisfy the relevant criteria under section 133.

Sir Thomas Bingham MR, Farquharson, Simon Brown LJJ
Times 01-Jul-1994, (1995) 7 Admin LR 175, [1994] EWCA Civ 36, [1994] COD 504
Bailii
Criminal Justice Act 1988 133
England and Wales
Citing:
Appeal fromRegina v Secretary of State for Home Department, ex parte Bateman – Regina v Same ex parte Howse QBD 5-May-1993
Compensation for a wrongful imprisonment should include circumstances of miscarriage of justice as well as pardons. A magistrate is not a public authority. The threshold of exceptionality is high: ‘It was essentially a question for the Secretary of . .

Cited by:
CitedIn re McFarland HL 29-Apr-2004
The claimant was convicted, imprisoned, and then his conviction was overturned. He sought compensation. He had pleaded guilty after being told by counsel to expect an adverse direction from the magistrate, following a meeting in private between . .
CitedAdams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
CitedHallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Damages, Prisons

Updated: 01 January 2022; Ref: scu.86900

Engel And Others v The Netherlands (1): ECHR 8 Jun 1976

The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government. However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the criminal sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so. It is on the basis of these criteria that the court will ascertain whether some or all of the applicants were the subject of a ‘criminal charge’ within the meaning of Article 6(1).’
The Court established three criteria for determining whether proceedings are ‘criminal’ within the meaning of the Convention, namely (a) the domestic classification, (b) the nature of the offence, and (c) the severity of the potential penalty which the defendant risks incurring.
Article 5 is concerned with the deprivation of liberty and not with mere restrictions on freedom of movement. Article 6 applied to a Board of Visitors’ adjudication within a prison.
A distinction based on the rank of soldiers was a distinction based on status within Article 14. ‘A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman.’
The list in sub-paragraphs (a) to (f) of the cases where deprivations of liberty are permitted is exhaustive and is to be narrowly interpreted.

5101/71, 5354/72, 5102/71, 5370/72, [1976] ECHR 3, 5100/71, (1976) 1 EHRR 647
Worldlii, Bailii
European Convention on Human Rights 5(1) 14
Human Rights
Cited by:
CitedRegina v H (On appeal from the Court of Appeal (Criminal Division)) HL 30-Jan-2003
The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the . .
CitedRegina (Mudie and Another) v Dover Magistrates’ Court and Another CA 4-Feb-2003
The applicants wished to challenge the confiscation of their goods by the Commissioners of Customs and Excise on their return to Dover. They appealed the refusal of Legal Aid.
Held: The Convention guaranteed the right to legal assistance for . .
CitedGillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
CitedCampbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
CitedRegina 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 . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
CitedClingham (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 . .
CitedTangney 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 . .
CitedFrancis v Secretary of State for Work and Pensions CA 10-Nov-2005
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedGentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
CitedRJM, 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 . .
CitedAustin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
CitedSecretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
See AlsoEngel And Others v The Netherlands (Article 50) ECHR 23-Nov-1976
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient. . .
CitedSecretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
CitedGale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
CitedKaplan v United Kingdom ECHR 14-Dec-1978
(Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper . .
CitedMubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
CitedHallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Armed Forces

Leading Case

Updated: 31 December 2021; Ref: scu.164879

Regina v Secretary of State for The Home Department Ex Parte Simms: HL 8 Jul 1999

Ban on Prisoners talking to Journalists unlawful

The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without undertakings from the journalists not to publish any element of the interview. Their prison governors had applied guidance from the respondent to refuse such access. They argued that only if they were allowed to have oral interviews in prison with the journalists would they be able to have the safety of their convictions further investigated and to put forward a case in the media for the reconsideration of their convictions.
Held: A simple ban which prevented any prisoner speaking to journalists professionally and without discrimination was unlawful. There had been too many cases where convictions had been overturned after for example disclosure failures by prosecutors, and such miscarriages of justice have only been identified and corrected as a result of painstaking investigation by journalists. And those investigations have included oral interviews with the prisoners in prison.
Lord Steyn said: ‘Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market:’ Abrams v. United States (1919) 250 U.S. 616, 630, per Holmes J. (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.’ History has demonstrated the fallibility of the justice system, and that mistakes are sometimes only rectified after journalistic involvement. There was no fundamental interference with the limited right of free speech, and interviews for this purpose must be allowed. The Criminal Cases Review Commission is severely under-resourced. There is a positive duty on judges, when things have gone seriously wrong in the criminal justice system, to do everything possible to put it right.
Lord Hoffmann said: ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.’
and ‘the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.’
Lord Steyn emphasised the reasons why the right to freedom of expression is so important: ‘Freedom of expression is, of course intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), ‘The best test of truth is the power of the thought to get itself accepted in the competition of the market’: Abrams v United States (1919) 250 US 616, 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.’
Lord Slynn said: ‘The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.’

Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Wood-borough and Lord Millett
Times 09-Jul-1999, Gazette 28-Jul-1999, [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 All ER 400, [1999] 3 WLR 328, [1999] EMLR 689, (1999) 7 BHRC 411, (1999) 2 CHRLD 359
House of Lords, Bailii
Prison Rules 1964 (1964 No 388), European Convention on Human Rights 10, Prison Act 1952 47(1), Human Rights Act 1998
England and Wales
Citing:
ApprovedRegina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
Appeal fromRegina v Secretary of State for the Home Department ex parte Simms; ex parte O’Brien; ex parte Main CA 9-Dec-1997
The removal of a prisoner’s right to talk to the press is part of the process of imprisonment. Prisoners’ letters could be read to the extent necessary to prove that they contained legally privileged material. A prisoner has no right to an oral . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
At first instanceRegina v Secretary of State for Home Department ex parte Ian Simms and Michael Alan Mark O’Brien QBD 19-Dec-1996
A full restriction on the use of material emanating from a prison visit was unlawful as an interference with the right of free speech of the prisoner: ‘The blanket prohibition on making use of material obtained in a visit is not, on the evidence . .
CitedRegina v Secretary of State for Home Department ex parte H and Others, Regina v Same ex parte Hickey CA 29-Jul-1994
A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those . .
CitedAttorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
CitedDerbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
CitedAbraham v United States 1919
(US Supreme Court) Holmes J (dissenting): ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market.’ . .
CitedSilver v United Kingdom ECHR 1980
(Commission) Complaint was made as to the censorship of prisoners’ correspondence. The censorship of prisoners’ correspondence was ancillary to prison rules restricting the contents of correspondence. The Commission, therefore, and the Court had to . .
CitedSilver And Others v The United Kingdom ECHR 25-Mar-1983
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .
CitedRegina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedCampbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
CitedRegina v Secretary of State for Home Department ex parte O’Dhuibir and Another CA 27-Feb-1997
The insistence on the use of glass screens and no physical contact between a prisoner and visitors was in exceptional circumstances upheld even for visits by friends and relatives. . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Bamber CA 15-Feb-1996
The right of a prisoner to provide a recorded message for a radio station could properly be curtailed. . .

Cited by:
CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
CitedCream Holdings Limited and others v Banerjee and The Liverpool Daily Post and Echo Limited CA 13-Feb-2003
The defendants considered publication of alleged financial irregularities by the claimant, who sought to restrain publication. The defendants argued that under the Act, prior restraint should not be used unless a later court would be likely to . .
CitedNilsen, Regina (on the Application of) v Governor of HMP Full Sutton and Another Admn 19-Dec-2003
The prisoner complained that having written an autobiography, the manuscript materials had been withheld, and that this interfered with his rights of freedom of expression.
Held: Such an action by the prison authorities was not incompatible . .
CitedRegina v Secretary of State for Home Department ex parte Mellor CA 4-Apr-2001
A prisoner had no right to facilities to artificially inseminate his wife. In this case, he might not be released for several years, and there were no medical reasons advanced for finding exceptional reasons under the Department policy. Provided the . .
CitedRegina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
CitedE v Secretary of State for the Home Department etc CA 2-Feb-2004
The court was asked as to the extent of the power of the IAT and Court of Appeal to reconsider a decision which it later appeared was based upon an error of fact, and the extent to which new evidence to demonstrate such an error could be admitted. . .
CitedKent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
CitedB (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
CitedGillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
CitedRegina 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 . .
CitedNilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
CitedBowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
CitedWilkinson, Regina (on the Application Of) v Inland Revenue HL 5-May-2005
The claimant said that the widows’ bereavement tax allowance available to a wife surviving her husband should be available to a man also if it was not to be discriminatory.
Held: Similar claims had been taken before the Human Rights Act to the . .
CitedRoberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
CitedTangney 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 . .
CitedNorth Cyprus Tourism Centre Ltd and Another, Regina (on the Application Of) v Transport for London Admn 28-Jul-2005
The defendants had prevented the claimants from advertising their services in North Cyprus on their buses, and justified this saying that the Crown did not recognise the Turkish Republic of North Cyprus since it was the result of an unlawful . .
CitedEnergy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court Admn 22-Jul-2005
The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. . .
CitedRegina 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 . .
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedSingh and others v Chief Constable of West Midlands Police QBD 4-Nov-2005
A play was presented which was seen by many Sikhs as offensive. Protesters were eventually ordered to disperse under s30 of the 2003 Act. The defendants appealed their convictions for having breached that order, saying that it interfered with their . .
CitedMersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedSingh, Regina (on the Application of) v Chief Constable of West Midlands Police CA 28-Jul-2006
Sikh protesters set out to picket a theatre production which they considered to offend their religion. The respondent used a existing ASBO dispersal order which had been obtained for other purposes, to control the demonstration.
Held: The . .
CitedNorfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
CitedMersey Care NHS Trust v Ackroyd CA 21-Feb-2007
The defendant journalist had published confidential material obtained from the claimant’s secure hospital at Ashworth. The hospital now appealed against the refusal of an order for him to to disclose his source.
Held: The appeal failed. Given . .
CitedG, Regina (on the Application of) v Nottingham City Council Admn 1-Feb-2008
The respondent authority had removed the child from the mother at birth but without first obtaining any court authority. The court had made a peremptory order for the return of the child. The court explained its actions.
Held: Neither social . .
CitedA, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
CitedJuncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
CitedMisick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 1-May-2009
The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption. . .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedZagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
CitedThe Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
CitedForsyth, Regina v, Regina v Mabey SC 23-Feb-2011
The defendants were to face trial on charges of making funds available to Iraq in breach of the 2000 Order. They said that the 2000 Order was ultra vires and ineffective, not having been made ‘forthwith’ after the UN resolution it was based upon, . .
CitedKelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
CitedKelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
CitedRegina v Secretary of State for the Home Department ex parte Anufrijeva HL 26-Jun-2003
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedBritish Broadcasting Corporation (BBC) and Another, Regina (on The Application of) v Ahmad Admn 11-Jan-2012
The BBC wished to interview the prisoner who had been detained pending extradition to the US since 2004, and now challenged decision to refuse the interview.
Held: The claim succeeded. The decision was quashed and must be retaken. If ever any . .
CitedNicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
CitedANS and Another v ML SC 11-Jul-2012
The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
CitedPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
CitedBank 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 . .
CitedAJA and Others v Commissioner of Police for The Metropolis and Others CA 5-Nov-2013
The Court was asked whether the Investigatory Powers Tribunal had the power to investigate whether police officers acrting as undercover agents, and having sexual relations with those they were themselves investigating had infringed the human rights . .
CitedCore Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .
CitedHughes, Regina v SC 31-Jul-2013
Uninsured Driver Not Guilty of Causing Death
The appellant though an uninsured driver, was driving without fault when another vehicle veered across the road. The other driver died from his injuries, and the appellant convicted of causing his death whilst uninsured. At trial he succeeded in . .
CitedLord 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 . .
CitedNunn, Regina (on The Application of) v Chief Constable of Suffolk Constabulary and Another SC 18-Jun-2014
Limits to Duty To Investigate
The claimant had been convicted of a murder. He continued to protest his innocence, and now sought judicial review of the respondent’s decision not to act upon his requests for further investigations which might prove his innocence.
Held: The . .
CitedH v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
CitedEvans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
CitedMiller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
CitedBeghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
CitedIngenious Media Holdings Plc and Another, Regina (on The Application of) v Revenue and Customs SC 19-Oct-2016
The tax payer complained that the Permanent Secretary for Tax had, in an off the record briefing disclosed tax details regarding a film investment scheme. Despite the off the record basis, details were published in a newspaper. His claims had been . .
CitedPrivacy International, Regina (on The Application of) v Investigatory Powers Tribunal and Others SC 15-May-2019
The Court was asked whether the actions of the Investigatory Powers Tribunal were amenable to judicial review: ‘what if any material difference to the court’s approach is made by any differences in context or wording, and more particularly the . .
CitedB (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .
CitedThe Conservative and Unionist Party v The Election Commissioner CA 23-Nov-2010
A losing candidate at a local election alleged corrupt and illegal practices relating to the entry of non-existent people on the electoral roll and using postal votes. The Election Commissioner found this proved and the election void, and awarded . .
CitedAhuja v Politika Novine I Magazini Doo and Others QBD 23-Nov-2015
Action for misuse of private information and libel. Application to have set aside leave to serve out of the jurisdiction. The defendant published a newspaper in Serbian, in print in Serbia and online. Though in Serbian, the claimant said that online . .
CitedBelhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .
CitedSecretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .
CitedWelsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .

Lists of cited by and citing cases may be incomplete.

Prisons, Media, Human Rights, Constitutional

Leading Case

Updated: 31 December 2021; Ref: scu.135147

Watkins v Home Office and others: HL 29 Mar 2006

The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was established in three prison officers. In one case the officer opened the letter in front of the claimant despite his protests and invited him to ‘tell it to John Major’.
Held: The claim failed. The House faced two conflicting principles; that no action should lie without proof of damage and that deliberate abuse of power should be restrained. The case law clearly established however that no action lay in the absence of proof of material damage. If the law was to be reformed it should be done after a review by the Law Commission.

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell
Times 03-Apr-2006, [2006] UKHL 17, [2006] 2 WLR 807, [2006] 2 AC 395
Bailii
England and Wales
Citing:
CitedTurner v Sterling 1671
The plaintiff complained that his election as one of two custodians of London Bridge, a remunerated office, was thwarted by the malicious and unlawful action of the Lord Mayor. It was an action upon the case.
Held: The action would lie. Wylde . .
Appeal fromWatkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
CitedAshby v White KBD 1703
Mr Ashby a burgess of the borough of Aylesbury was deprived of his right to vote by the misfeasance of a returning officer.
Held: The majority rejected the claim.
Lord Holt CJ (dissenting) An action would lie: ‘If the plaintiff has a . .
CitedKuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
CitedWhitelegg v Richards 1823
A debtor had been imprisoned to coerce him to pay his debt to the plaintiff. The defendant, a court clerk, ordered him to be released. The plaintiff said this was ‘wrongfully and maliciously intending to injure the plaintiff’. Abbott CJ recorded: . .
CitedDunlop v Woollahra Municipal Council PC 1982
A plaintiff can allege misfeasance in public office against a body such as a local authority or a government ministry. The tort was well establshed. . .
CitedHenly v Lyme Corporation 1828
The plaintiff owned property by the sea. It was swamped by the tide because the corporation, who had been granted land by the Crown subject to a condition that it maintain the sea-defences of the cob, had ‘wrongfully and unjustly intending to . .
CitedFarrington v Thomson and Bridgland 1959
(Supreme Court of Victoria) Smith J said: ‘Proof of damage is, of course, necessary in addition. In my view, therefore, the rule should be taken to go this far at least, that if a public officer does an act which, to his knowledge, amounts to an . .
MentionedTampion v Anderson 1973
(Full Court of Victoria) . .
CitedRogers v Rajendro Dutt PC 1860
The plaintiff’s claim failed because the conduct complained of had not been wrongful. Dr Lushington, giving the judgment of the Board, said: ‘For if the act which he [the defendant] did was in itself wrongful, as against the Plaintiffs, and produced . .
CitedDavis v Bromley Corporation CA 1907
The plaintiff had submitted building plans for the defendant’s approval, which were refused for alleged non-compliance with by-laws. The Plaintiff contended that the plans complied with the by-laws and that the rejection was not bona fide.
CitedBrasyer v Maclean PC 1875
(New South Wales) A false return was made by a sheriff which led to the arrest of the plaintiff and his attachment for 24 hours. The court had non-suited the plaintiff since no malice had been shown.
Held: The appeal succeeded. It was . .
CitedNorthern Territory v Mengel 1995
(High Court of Australia) The court considered the ingredients of the tort of misfeasance in public office.
Held: A necessary ingredient was proof of loss. . .
CitedThree Rivers District Council v Bank of England QBD 22-Apr-1996
In an allegation of misfeasance in public office, a complainant who says he has been affected by the alleged misfeasance, has sufficient locus standi to claim. Parliamentary materials are admissible to discover purpose of an Act, and not just in . .
CitedGarrett v Attorney-General 1997
(New Zealand Court of Appeal) Mr Garrett claimed damages for financial loss and damage to her reputation caused by the alleged failure of the police to investigate her complaint that she had been raped by a police constable in a police station.
CitedRegina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
CitedJD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
MentionedRawlinson v Rice 1997
(New Zealand Court of Appeal) The plaintiff asserted that a non-molestation order had been made against him by the defendant District Court Judge without jurisdiction and in breach of natural justice. He sued, in tort, for misfeasance in public . .
CitedAttorney General’s Reference (No 3 of 2003) CACD 7-Apr-2004
Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The . .
CitedBB v United Kingdom ECHR 2004
If the evidence showed an egregious and deliberate abuse of power by a public officer the Strasbourg court may award compensation for non-pecuniary loss even though its practice is not to award exemplary damages. . .
CitedRegina v Lord Chancellor ex parte John Witham Admn 7-Mar-1997
If subordinate legislation cannot be construed in a way that makes it compatible with fundamental rights, it will be declared ultra vires. Rules which disallowed exemptions from court fees to a litigant in person on income support were invalid. They . .
CitedOdhavji Estate v Woodhouse 2003
(Supreme Court of Canada) The court reviewed the ingredients of misfeasance in public office.
Held: Iacobucci J said: ‘To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedMortensen v Peters 1906
The Danish master of a Norwegian steam-trawler was prosecuted for using a particular method of fishing in the Moray Firth. He argued that, although the statute banning the method would have caught a British fisherman, it should be construed as . .
CitedGreenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
CitedBlack and Others v The North British Railway Company 1907
The widow and children of man who had been killed while travelling as a passenger on one of their trains claimed damages against the railway company. A court of seven judges was asked to lay down the principles on which on which damages should be . .
CitedWainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
CitedThoburn v Sunderland City Council etc Admn 18-Feb-2002
Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it . .
CitedNairn v University of St Andrews HL 10-Dec-1908
Women graduates of St Andrews and Edinburgh, who, as graduates, were members of the general council of their university, sought a declarator that they were entitled to vote under section 27 of the 1868 Act. The section provided that ‘every person’ . .
CitedHunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
CitedSmith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
CitedDavy v Spelthorne Borough Council HL 13-Oct-1983
Although section 243(1)(a) provides that the ‘validity’ of an enforcement notice is not to be questioned except as therein provided, the word ‘validity’ is evidently not intended to be understood in its strict sense. It is used to mean merely . .
CitedLeech v Secretary of State for Scotland SCS 1991
The rule which allowed the prisons to read correspondence between an inmate and his legal adviser if legal proceedings had not yet been commenced was upheld as valid. . .
CitedRantzen v Mirror Group Newspapers (1986) Ltd and Others CA 1-Apr-1993
Four articles in the People all covered the same story about Esther Rantzen’s organisation, Childline, suggesting that the plaintiff had protected a teacher who had revealed to Childline abuses of children occurring at a school where he taught, by . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .

Cited by:
CitedAshley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
CitedKaragozlu v Commissioner of Police of the Metropolis CA 12-Dec-2006
The claimant made a claim for misfeasance in public office. The defendant argued that such a claim required proof of special damage. The claimant said that the deprivation of liberty amounted to such damage. Whilst serving a prison sentence the . .
CitedHussain v West Mercia Constabulary CA 3-Nov-2008
The claimant taxi driver complained of misfeasance in public office in the way the defendant had responded to the several calls for assistance made by him to the police.
Held: His appeal against the striking out failed. The damages pleaded . .
CitedHouchin v Lincolnshire Probation Trust QBD 9-Apr-2013
houchin_lincsPSQBD2013
The defendant sought to have the claim struck out. The prisoner said that the defendant’s probation officer had through misfeasance in public office arranged for his transfer back to secure conditions from open ones. The parole board panel had found . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Prisons

Updated: 31 December 2021; Ref: scu.239746

Regina v Secretary of State Home Department, ex parte Leech (No 2): CA 20 May 1993

Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with a possible institution of proceedings in the courts forms an inseparable part of the right of access to the courts themselves and that section 47(1) did not authorise the making of any rule which created an impediment to the free flow of communication between a solicitor and a client about contemplated legal proceedings. Section 47(1) did not expressly authorise the making of a rule such as rule 33(3), and a fundamental right such as the common law right to legal professional privilege would very rarely be held to be abolished by necessary implication. But section 47(1) should be interpreted as conferring power to make rules for the purpose of preventing escapes from prison, maintaining order in prisons, detecting and preventing offences against the criminal law and safeguarding national security. Rules could properly be made to permit the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it was in truth bona fide correspondence and to permit the stopping of letters which failed such scrutiny. The crucial question was whether rule 33(3) was drawn in terms wider than necessary to meet the legitimate objectives of such a rule. ‘The question is whether there is a self-evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability.’

Steyn LJ, Neill LJ, Rose LJ
Independent 20-May-1993, Times 20-May-1993, [1994] QB 198, [1993] EWCA Civ 12, [1993] 3 WLR 1125
Bailii
Prisons Act 1952 47(1), Prison Rules 1964 (SI 1964/388) 33(3)
England and Wales
Citing:
AppliedCampbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .

Cited by:
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
ApprovedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedRegina v Secretary of State for Home Department ex parte Ian Simms and Michael Alan Mark O’Brien QBD 19-Dec-1996
A full restriction on the use of material emanating from a prison visit was unlawful as an interference with the right of free speech of the prisoner: ‘The blanket prohibition on making use of material obtained in a visit is not, on the evidence . .
CitedWatkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
CitedNilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
CitedRegina 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 . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedMedical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
CitedSimm’s Application for Judicial Review; O’Brien’s Application for Judicial Review and Main’s Application for Judicial Review CA 4-Dec-1997
In two cases, long term prisoners who asserted their innocence were in touch with journalists. Challenges were made against conditions imposed on their access that materials obtained during the visits should not be disclosed by the journalists. A . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Human Rights, Prisons

Leading Case

Updated: 31 December 2021; Ref: scu.87987

Regina (Daly) v Secretary of State for the Home Department: HL 23 May 2001

A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence of prisoners. Particularly when examining documents subject to legal professional privilege, the rules did not allow sufficient protection. The policy went well beyond what was necessary, and so was a disproportionate interference in the prisoner’s right to respect for his correspondence. There are real differences between the tests of Wednesbury unreasonableness and as to proportionality of interference in human rights. The intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued. The principles of judicial review depend on the context in which they fall to be applied.
Lord Bingham said: ‘Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment.’ and
‘the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations.’
Lord Steyn said that the court should ask: ‘. . whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective’ and ‘in law context is everything’.
Lord Cooke of Thorndon said: ‘It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.’

Lord Steyn, Lord Cooke of Thorndon
Times 25-May-2001, Gazette 21-Jun-2001, [2001] 3 All ER 433, [2001] 1 AC 532, [2001] 2 WLR 1622, [2001] UKHL 26
Bailii, House of Lords
England and Wales
Citing:
CitedDe Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
CitedRegina v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) CA 1979
Proper Limits on Imprisonment
The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An essential characteristic of . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
CitedRegina v Secretary of State for the Home Department, Ex parte Anderson QBD 1984
A prisoner challenged a standing order which restricted visits by his legal adviser as he contemplated proceedings concerning his treatment in prison when he had not at the same time made any complaint to the prison authorities internally.
CitedCampbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
CitedCampbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
CitedRegina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedRegina v Governor of Whitemoor Prison, Ex parte Main QBD 1999
The court considered whether prison staff should be able to read letters between a prisoner and his legal advisers before proceedings were actually commenced.
Held: The policy represented the minimum intrusion into the rights of prisoners . .
CitedSmith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
CitedRegina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .
CitedRegina v Secretary of State for Home Department ex parte Peter Isiko; Susan and Shemy Isiko CA 20-Dec-2000
. .
CitedRedmond-Bate v Director of Public Prosecutions Admn 23-Jul-1999
The police had arrested three peaceful but vociferous preachers when some members of a crowd gathered round them threatened hostility.
Held: Freedom of speech means nothing unless it includes the freedom to be irritating, contentious, . .

Cited by:
CitedRegina on the Application of Anna Ford v The Press Complaints Commission Admn 31-Jul-2001
The complainant had been photographed wearing a bikini, whilst on holiday by a photographer using a long lens. She had been on a quiet part of public beach. She complained to the Press Complaints Commission who rejected her complaint. The rules . .
CitedAbacha, Bagudu v The Secretary of State for the Home Department, The Federal Republic of Nigeria Interested Party Admn 18-Oct-2001
Attempts were being made by the Federal Government of Nigeria to recover moneys alleged to have been taken fraudulently from the state. They sought assistance from the UK, and the claimants sought details of that request. The statute provided that . .
CitedRegina (Ponting) v Governor of HMP Whitemoor, Secretary of State for the Home Department CA 22-Feb-2002
The applicant appealed a refusal of permission to use a computer for preparation of materials for his litigation save under conditions imposed by the Prisons Service. He was dyslexic, and with a low IQ. He claimed that the conditions operated so as . .
CitedThe Association of British Civilian Internees – Far Eastern Region (ABCIFER) v Secretary of State for Defence CA 3-Apr-2003
The association sought a judicial review of a decision not to pay compensation in respect of their or their parents or grandparents’ internment by the Japanese in the Second World War. Payment was not made because those interned were not born in . .
CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
CitedRegina (on the Application of Ellis) v The Chief Constable of Essex Police Admn 12-Jun-2003
An officer proposed to print the face of a convicted burglar on posters to be displayed in the town. The court considered the proposal. The probation service objected that the result would be to make it more difficult for him to avoid criminality on . .
CitedLord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
CitedRowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
CitedNilsen, Regina (on the Application of) v Governor of HMP Full Sutton and Another Admn 19-Dec-2003
The prisoner complained that having written an autobiography, the manuscript materials had been withheld, and that this interfered with his rights of freedom of expression.
Held: Such an action by the prison authorities was not incompatible . .
CitedDurant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .
CitedSamaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
CitedOffice of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
CitedGillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
CitedLough and others v First Secretary of State Bankside Developments Ltd CA 12-Jul-2004
The appellants challenged the grant of planning permission for neighbouring land. They sought to protect their own amenities and the Tate Modern Gallery.
Held: The only basis of the challenge was under article 8. Cases established of a breach . .
CitedCoates and others v South Buckinghamshire District Council CA 22-Oct-2004
The local authority had required the applicants to remove their mobile homes from land. They complained that the judge had failed properly to explain how he had reached his decision as to the proportionality of the pressing social need, and the . .
Cite164876dBritish American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
CitedAl-Fayed and others v Commissioner of Police of the Metropolis and others CA 25-Nov-2004
The appellants appealed from dismissal of their claims for wrongful imprisonment by the respondent. Each had attended at a police station for interview on allegations of theft. They had been arrested and held pending interview and then released. Mr . .
CitedSecretary of State for the Home Department v SP CA 21-Dec-2004
The applcant, a girl aged 17 was in a young offender institution. She complained that she had been removed to segregation without first giving her chance to be heard. The respondent argued that there were sufficient post decision safeguards to . .
CitedMachado v Secretary of State for the Home Deptment CA 19-May-2005
At issue was a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue was whether the decision of the IAT to uphold . .
CitedBradley v The Jockey Club CA 12-Jul-2005
The Jockey had been disqualified from riding for five years for breaches of the club’s rules. He said the punishment was disproportionate in effectively preventing him working for a living.
Held: The appeal failed, and the judge’s analysis was . .
CitedLangley and others v Liverpool City Council and others CA 11-Oct-2005
Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the . .
CitedRegina 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 . .
CitedWiggins, Regina (on the Application Of) v Harrow Crown Court Admn 20-Apr-2005
The defendant appealed against refusal of bail. He had failed to attend court in time of the day of his trial and said he had overlooked the date.
Held: Collins J said: ‘[T]he question of whether bail should be continued or removed in . .
CitedAxon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedBaiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedTweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
CitedX, Regina (on the Application of) v Y School Admn 21-Feb-2007
The court was asked whether a school was entitled to refuse to allow a Muslim girl to wear the niqab full face veil at school. The reasons were ‘first educational factors resulting from a teacher being unable to see the face of the girl with a . .
CitedHuang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
CitedSecretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
CitedSuryananda, Regina (on the Application of) v The Welsh Ministers Admn 16-Jul-2007
The claimants, trustees of a Hindu temple, sought judicial review of a decision that a bullock in their temple should be slaughtered having positively reacted to a test for bovine tuberculosis bacterium. They said that the animal posed no threat . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedTabernacle v Secretary of State for Defence Admn 6-Mar-2008
The court considered the validity of bye-laws used to exclude protesters from land near a military base at Aldermarston.
Held: The byelaw which banned an ‘camp’ was sufficiently certain, but not that part which sought to ban any person who . .
CitedRe E (A Child); E v Chief Constable of the Royal Ulster Constabulary and Another (Northern Ireland Human Rights Commission and others intervening) HL 12-Nov-2008
(Northern Ireland) Children had been taken to school in the face of vehement protests from Loyalists. The parents complained that the police had failed to protect them properly, since the behaviour was so bad as to amount to inhuman or degrading . .
CitedT-Mobile (Uk) Ltd. and Another v Office of Communications CA 12-Dec-2008
The claimant telecoms companies objected to a proposed scheme for future licensing of available spectrum. The scheme anticipated a bias in favour of auctioniung such content. It was not agreed whether any challenge to the decision should be by way . .
CitedMedical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedBrown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
CitedBourgass 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 . .
CitedYoussef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Judicial Review

Leading Case

Updated: 31 December 2021; Ref: scu.85961

Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C: SCS 18 Dec 2001

A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to petition the governor. Had he done so and failed, he would have been able to seek judicial review. Nevertheless, the case should now go ahead. The pleas in law were rejected.

Lord Marnoch and Lord Hardie and Lord Weir
ScotC
European Convention on Human Rights 3, Crown Proceedings Act 1947 47, Prisons (Scotland) Act 1989 3(1), Scotland Act 1998 57(2)
Citing:
CitedPetition of Andrew Scott and Scott Davidson for Judicial Review of A Decision To Continue Their Detention In Inhumane Prison Conditions SCS 26-Oct-2001
Each applicant sought an interim order against the Scottish Minister with respect to their treatment in prison. It had been found that the conditions in Barlinnie Prison were inhumane. The Crown responded that the court had no jurisdiction to make . .
CitedWest v Secretary of State for Scotland SCS 1992
The court asked what was to be considered to be truly an application to the supervisory jurisdiction of the court.
Held: Lord President (Hope): ‘The public or private nature of the inferior body or tribunal is not decisive, nor is it necessary . .
CitedCarlton Hotel Co v Lord Advocate 1921
Lord Dundas: ‘This is a summary petition under section 91 of the Court of Session Act, 1868, for an order for specific performance of an alleged statutory duty. The remedy thus sought is peculiar and drastic. It has not, I believe, been frequently . .
CitedRussell v Magistrates of Hamilton 1897
An interdict was granted against the Provost and Magistrates of Hamilton. . .
CitedBell v Secretary of State for Scotland 1933
The Lord Ordinary granted interim interdict against the respondent. There was no any contradictor and the court relied on two English cases. . .
CitedM v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .
CitedConway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedMcDonald v Secretary of State for Scotland IHCS 2-Feb-1994
The pursuer, a prisoner, complained that he had been subject to repeated searches which he claimed were illegal. He sought damages and an injunction.
Held: The action which the pursuer had raised was an ordinary action in the sheriff court was . .
CitedBritish Medical Association v Greater Glasgow Health Board HL 1989
The House considered the availability of orders against the Crown in Scotland. It is inconceivable that Parliament should have intended to fetter the right of the subject to obtain a prohibitory order more strictly in Scotland than in England. The . .
CitedRegina v Home Department ex parte Herbage 1987
An injunction could be pronounced against ministers of the Crown acting in their official capacity. . .
CitedIncome Tax Special Commissioners v Pemsel HL 20-Jul-1891
Charitable Purposes used with technical meaning
The House was asked whether, in a taxing statute applying to the whole of the United Kingdom and allowing for deductions from and allowances against the income of land vested in trustees for charitable purposes, the words ‘charitable purposes’ . .
CitedMcCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .

Cited by:
CitedDavidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
See AlsoScott Davidson v The Scottish Ministers (No 2) IHCS 11-Sep-2002
. .

Lists of cited by and citing cases may be incomplete.

Scotland, Prisons, Human Rights, Constitutional

Updated: 31 December 2021; Ref: scu.168847

Roberts v Parole Board: HL 7 Jul 2005

Balancing Rights of Prisoner and Society

The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: The appeal failed (by a majority). The court should focus on the need of the Parole Board to carry out its work balancing the rights of the prisoner and the needs of society.
Lord Carswell said: ‘The present case is a classic instance of weighing up competing interests. The appellant’s interest in presenting his case effectively with sufficient knowledge of the allegations made against him is clear and strong. The informant has a compelling interest in being protected from dangerous consequences which might ensue if any indication leaked out which could lead to his identification. Thirdly, there is the public interest in ensuring that the Parole Board has all proper material before it to enable it to decide which prisoners are safe to release from prison. Having balanced these interests, I conclude that the interests which I have outlined of the informant and the public must prevail over those of the appellant, strong though the latter may be. I emphasise, however, that my conclusions relating to the powers of the Parole Board to use the SAA procedure and their compatibility with article 5(4) are a decision in principle, for that was all that was before the House. We were not asked, nor were we in a position to decide, whether it was proper in the instant case of the appellant. I accept that there may well be cases in which it would not be sufficiently fair to be justifiable and each case will require consideration on its own facts.’
The withholding of material was a clear breach of accepted rules of natural justice. The special advocate procedure had severe shortcomings. The statute made no provision for the procedure adopted, and it was unlawful Lord Steyn: ‘it is a formalistic outcome to describe a phantom hearing involving a special advocate (as directed by the Board) as meeting minimum standards of fairness. In truth the special advocate procedure empties the prisoner’s fundamental right to an oral hearing of all meaningful content.’ (Lord Bngham and Lord Steyn dissenting).

Lord Bingham of Cornhill, Lord Woolf, Lord Steyn, Lord Rodger of Earlsferry, Lord Carswell
[2005] UKHL 45, [2005] 2 AC 738, [2005] HRLR 38, [2005] UKHRR 939, [2006] 1 All ER 39, [2005] RPC 10, [2005] 3 WLR 152
Bailii, House of Lords
Crime (Sentences) Act 1997 28(5), European Convention on Human Rights 5
England and Wales
Citing:
Appeal fromRoberts v Parole Board CA 28-Jul-2004
The discretionary life-prisoner faced a parole board. The Secretary of State wished to present evidence, but wanted the witness to be protected. The Parole Board appointed special counsel to hear the evidence on behalf of the prisoner on terms that . .
CitedRegina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
CitedGirling v Parole Board and Secretary of State for the Home Department Admn 8-Apr-2005
Once the punitive or tariff term of imprisonment on a convicted murderer, is completed, risk to life and limb provides the sole ground for continued detention. The Parole Board, being subject to directions from the Home Secretary, was not an . .
At First InstanceRoberts v Parole Board Admn 19-Dec-2003
The prisoner had been convicted in 1996 of the murder of three police officers. His tariff had been fixed at 30 years. Material was to be placed before the parole board which was not to be disclosed to the appellant or his legal advisers. Instead it . .
CitedWeeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedRoberts v Parole Board Admn 19-Dec-2003
The prisoner had been convicted in 1996 of the murder of three police officers. His tariff had been fixed at 30 years. Material was to be placed before the parole board which was not to be disclosed to the appellant or his legal advisers. Instead it . .
CitedRegina v Parole Board, ex Parte Watson CA 11-Mar-1996
The test as to whether there was still a need to protect the public safety from the defendant was just as appropriate when considering the revocation of a licence, as it was when the need for continued detention was being reviewed before the grant . .
CitedRegina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
CitedRegina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
CitedDoorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
CitedVan Mechelen And Others v The Netherlands ECHR 23-Apr-1997
A Dutch court had convicted the applicants of attempted manslaughter and robbery on the basis of statements made, before their trial, by anonymous police officers, none of whom gave evidence before the Regional Court or the investigating judge. The . .
CitedTinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
CitedJasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
CitedIn Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
CitedRe D (Minors) (Adoption Reports: Confidentiality) HL 1-Sep-1995
The House considered whether it was right for a tribunal to see and rely upon papers not disclosed to the parties. Lord Mustill said: ‘a first principle of fairness that each party to a judicial process shall have an opportunity to answer by . .
CitedIn Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
CitedRegina v Parole Board and Another ex parte Wilson CA 6-May-1992
It was natural justice to allow a discretionary lifer to see the reports which had been prepared for consideration on his application for release on licence. W had been sentenced to life imprisonment for buggery, and was a discretionary life . .
CitedLamy v Belgium ECHR 30-Mar-1989
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; . .
CitedD (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
CitedRegina v Secretary of State for Home Department Ex Parte Hickey and Others, Same Ex Parte Bamber; Same Ex Parte Malone (No 2) QBD 29-Nov-1994
The Home Secretary is obliged to disclose new evidence to a defendant before rejecting his application for a reference to Court of Appeal. The Home Secretary’s powers to refer a case back to the Court of Appeal (Criminal Division) was an integral . .
CitedKostovski v The Netherlands ECHR 20-Nov-1989
No Anonymity for Witnessses in Criminal Trial
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled . .
CitedRegina v Secretary of State for Home Department ex parte H and Others, Regina v Same ex parte Hickey CA 29-Jul-1994
A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those . .
CitedBrandstetter v Austria ECHR 28-Aug-1991
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; No violation of Art. 6-1+6-3-d; No violation of Art. 6-3-c; Pecuniary damage – claim . .
CitedEdwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
mentionedSanchez-Reisse v Switzerland ECHR 21-Oct-1986
That a detainee may be heard either in person or, where necessary, through some form of representation can be a fundamental procedural guarantee in matters of deprivation of liberty. Article 5(4)was inspired by the English law of habeas corpus. . .
MentionedAl-Nashif v Bulgaria ECHR 20-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Preliminary objections dismissed (non-exhaustion, abuse of right of petition); Violation of Art. 5-4; Violation of Art. 8; Violation of Art. 13; Not necessary to . .
MentionedLuca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .
CitedGarcia Alva v Germany ECHR 13-Feb-2001
The complainant had been arrested on suspicion of drug trafficking and was detained on remand. When he brought an application for review of his detention his lawyers were not given access to a number of documents in the file, including the . .
CitedThe Secretary of State for the Home Department v M CA 18-Mar-2004
The applicant had been detained under the appellant’s certificate that he was a suspected terrorist.
Held: The fact that there were suspicions surrounding the detainee did not mean that those suspicions were necessarily reasonable suspicions . .
CitedAttorney General and Another v Great Eastern Railway Company HL 27-May-1880
An Act of Parliament authorised a company to construct a railway. Two other companies combined and contracted with the first to supply rolling stock. An injunction was brought to try to restrain this, saying that such a contract was not explicitly . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
CitedColes v Odhams Press Ltd 1936
Lord Hewart CJ said that courts should avoid ‘taking blind shots at a hidden target’. . .
CitedBouamar v Belgium ECHR 29-Feb-1988
Hudoc Violation of Art. 5-1; Violation of Art. 5-4; Just satisfaction reserved; Judgment (Just satisfaction) Struck out of the list (friendly settlement)
A person detained as a juvenile in need of . .
CitedHussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .
CitedSecretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
CitedRegina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
MentionedRegina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
CitedWaite v The United Kingdom ECHR 10-Dec-2002
The claimant had been sentenced to be detained at Her Majesty’s pleasure when a youth. After release on licence, the Parole Board met and revoked that licence without an oral hearing, and in contravention of the rules. He did not dispute the facts . .
CitedRegina v Davis; Regina v Rowe; Regina v Johnson CA 10-Mar-1993
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the . .
CitedRegina on the Application of S v Waltham Forest Youth Court, The Crown Prosecution Service, The Secretary of State for the Home Department Admn 31-Mar-2004
There was no inherent power to allow a defendant to give evidence by live link, on the ground that Parliament had sought since 1988 to provide exclusively for the circumstances in which live link might be used in a criminal trial. . .
QuotedUnited States v Rabinowitz 1950
(US Supreme Court) Justice Frankfurter said: ‘It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.’ . .
CitedRegina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
CitedHazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .

Cited by:
CitedMcClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
CitedAl-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 . .
CitedHenshall v General Medical Council and others CA 13-Dec-2005
The claimant had lodged a complaint against a medical practitioner. The preliminary proceedings committee had accepted evidence from the doctor, but had not given the complainant opportunity to see it and comment upon it.
Held: the rules must . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedGardner, Regina (on the Application Of) v the Parole Board Admn 21-Dec-2005
The court considered whether a parole review board can exclude the prisoner from part of a hearing and if so on what grounds.
Held: The parole board had the required power. Both Rule 19 (2) and 19 (3) gave the panel the power which they . .
CitedGardner, Regina (on the Application of) v Parole Board CA 5-Sep-2006
The prisoner challenged his exclusion from a parole board hearing whilst evidence was taken. He was serving a long sentence for a violent attack, and had re-offended only shortly after his release. His ex-wife had been unwilling to confront him, and . .
CitedA, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
CitedMurungaru v Secretary of State for the Home Department and others Admn 4-Oct-2006
The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with . .
See AlsoRoberts, Regina (on the Application of) v The Parole Board Admn 7-Nov-2008
The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of . .
CitedAl Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
CitedBank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
CitedAl 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 . .
CitedSher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
CitedChief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
CitedAl 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 . .
CitedMcGetrick, Regina (on The Application of) v Parole Board and Another CA 14-Mar-2013
The claimant prisoner appealed against refusal of review of the use of allegations and evidence of offences not tried against him when deciding as to his release on licence. The material would suggest that he might pose a continuing risk to . .
CitedBank 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.

Prisons, Human Rights

Leading Case

Updated: 31 December 2021; Ref: scu.228285

Stevenson, Regina (on The Application of) v Secretary of State for Justice: Admn 18 Mar 2015

Application for judicial review in relation to decisions of the Governor of Her Majesty’s Prison Wakefield and the Secretary of State for Justice that he remain incarcerated at Her Majesty’s Prison Wakefield. Permission to apply for judicial review has been granted on one sole ground, namely that the defendants’ decisions failed to pay proper regard to the claimant’s Article 8 rights.

Jay J
[2015] EWHC 1014 (Admin)
Bailii
European Convention on Human Rigts 8

Prisons, Human Rights

Updated: 30 December 2021; Ref: scu.546878

Association For The Defence Of Human Rights In Romania-Helsinki Committee on behalf of Ionel Garcea v Romania: ECHR 24 Mar 2015

ECHR Article 34
Locus standi
Standing of non-governmental organisation to lodge an application on behalf of deceased mentally-ill detainee
Article 2
Article 2-1
Effective investigation
Failure to conduct effective investigation into the death of mentally-ill detainee: violation
Facts – The application was lodged by an NGO named the Association for the Defence of Human Rights in Romania-Helsinki Committee, on behalf of a prisoner Mr Garcea, who died in 2007.
While serving a seven-year sentence, Mr Garcea was diagnosed with a mental illness and other health problems and was under regular supervision of the prison medical service. He had been in contact with the applicant association since the beginning of his prison term. In August 2004 he inserted a nail into his forehead and in early 2005 attempted suicide. Mr Garcea alleged that he was beaten up on several occasions and handcuffed and chained to a hospital bed. The applicant association lodged complaints with the domestic authorities after visiting him, stating that the lack of medical treatment amounted to torture and urging the prison authorities to stop using force against him. In June 2007 Mr Garcea inserted another nail into his forehead and was operated on in a civilian hospital. After his final return to the prison hospital he died there in July 2007.
The applicant association lodged an administrative complaint with the prison administration requesting an investigation into Mr Garcea’s medical treatment. The prosecutor’s office decided not to prosecute the prison doctors. Concerning the allegations of ill-treatment through improper medical care a court of appeal ordered that the investigation be continued in February 2011 after finding that the conditions that had precipitated Mr Garcea’s death had to be established.
Law – Article 34: The Government submitted that the applicant association did not have locus standi as it did not fulfil the ratione personae criteria and was not able to show a strong link with Mr Garcea. The Court recalled its recent judgment in the case of Centre for Legal Resources on behalf of Valentin Campeanu v. Romania in which it had established that in exceptional circumstances and in cases of allegations of a serious nature, it should be open to associations to represent victims, in the absence of a power of attorney and notwithstanding that the victim may have died before the application was lodged under the Convention. As in that case, serious allegations of violations of Articles 2, 3 and 13 of the Convention had been made in respect of a person with no known relatives and suffering from mental illness. Even though, unlike Mr Campeanu, Mr Garcea could have lodged a complaint during his lifetime and had a relatively close connection with the association that represented him, the Court nevertheless considered that the applicant association had standing as his de facto representative.
Conclusion: preliminary objection dismissed (unanimously).
Article 2 (procedural aspect): The Court was called upon to determine whether the national authorities had fulfilled their obligation to conduct an effective investigation into Mr Garcea’s death. The pending domestic proceedings had already lasted for more than seven years. Furthermore, the court of appeal had found that the investigation had not been thorough since essential questions had not been answered by the prosecutor. The prosecutor’s office itself had failed to deal with the complaint of ill-treatment in detention lodged by the applicant association. The ineffectiveness of the investigation and the time it had taken the authorities to establish the circumstances of Mr Garcea’s death thus amounted to a procedural breach of Article 2.
Conclusion: violation (unanimously).
The Court found no violation under the substantive aspect of Article 2 owing to a lack of medical evidence establishing the responsibility of the State ‘beyond reasonable doubt’.
Article 41: no claim made in respect of damage.

2959/11 – Legal Summary, [2015] ECHR 394
Bailii
European Convention on Human Rights

Human Rights, Prisons

Updated: 29 December 2021; Ref: scu.545375

Foster v The Secretary of State for Justice: CA 26 Mar 2015

‘This case concerns the recall to prison of a prisoner released on Home Detention Curfew (HDC) and is based on the contention that the common law duty of fairness requires that the prisoner is provided with the opportunity of an oral hearing to advance submissions as to why he should not have been recalled. ‘

Sir Brian Leveson P QBD, Jackson, Black LJJ
[2015] EWCA Civ 281
Bailii
England and Wales

Prisons, Natural Justice

Updated: 29 December 2021; Ref: scu.544821

Helhal v France: ECHR 19 Feb 2015

ECHR Article 3
Degrading treatment
violation
In fact – since 2006 the applicant suffering from paraplegia of the lower limbs and urinary incontinence and anal currently serving a sentence of thirty years’ imprisonment. In August 2010, he asked for a suspended sentence for medical reasons the judge to sentence enforcement. He alleged that the premises were unsuitable for her disability that required him to use a wheelchair, he had to be assisted by an inmate made ??available to shower and that physiotherapy that were lavished on him were insufficient. In February 2011, the court in the execution of sentences dismissed the application and held that the applicant’s health was compatible with his imprisonment following on corroborating medical evaluations of two experts. The court, however, clarified that the detention center was not suitable to the applicant and there were better equipped institutions to welcome him. The applicant’s appeal against this decision were unsuccessful.
Law – Article 3: The applicant with a disability that forces him to move mainly in a wheelchair even if it may sometimes seem to move with canes or a walker, his complaints are examined in the light of the principles governing state care obligations to persons with disabilities, in view of their vulnerability to challenges of detention.
Quality of care provided to the applicant in detention, including the question of whether the national authorities have done what could reasonably be required of them to provide him with rehabilitation he needed and offer him a chance seeing her condition improve, no physiotherapist has occurred within the detention center for three years. No specific measures have been taken during that period of time and no solution has been sought for the applicant to benefit from physiotherapy sessions tailored to his condition, despite repeated recommendations by doctors to take care of in a specialized environment. The only behavior of the applicant, who seems to have been reluctant to any transfer, mainly because of family separation, can not justify the inertia of prison and health authorities.
Regarding the conditions of detention, and in access to health, and more specifically to the showers, they are not located in the cell, the applicant can not get there alone and they are not equipped to be accessible to disabled persons in wheelchairs. In addition, given the applicant’s condition, the inmate in charge of the day to attend must help him realize his toilet. This was deemed unacceptable by the Comptroller General of places of deprivation of liberty. Moreover, if the legislature opened in 2009 the possibility to all detainees who are in a disability to designate a caregiver of their choice, such a measure, assuming that this choice conditions were met in this case , is not sufficient to meet the needs of the applicant who saw the difficult time of the shower, given his incontinence, lack of privacy and support role given to fellow inmate. Indeed, this aid does not constitute a supplement to support the applicant by health professionals and the prisoner designated to assist it did not receive the training necessary for the practice of gestures required for a disabled person. In this regard, the Court has repeatedly held that the assistance of a fellow inmate, even voluntary, does not mean that the applicant’s special needs are met and that the State has complied in this respect its obligations under Article 3 of the Convention.
Ultimately, the applicant’s continued detention is not in itself incompatible with Article 3 of the Convention but national authorities have not ensured proper care to spare him his treatment contrary to this provision. Given its severe disabilities, and the fact that he suffers from urinary and anal incontinence, the detention period he lived without the benefit of any rehabilitation treatment, and in an institution where he can take showers that with the help of a fellow inmate, submitted the applicant hardship of an intensity that exceeded the unavoidable level of suffering inherent in detention. These circumstances constitute degrading treatment prohibited by Article 3. The absence of evidence suggesting that the authorities acted with the aim of humiliating or debasing the applicant does not affect this conclusion.
Conclusion: violation (unanimously).
Article 41: 7 000 EUR for moral damage.

10401/12 – Legal Summary, [2015] ECHR 269
Bailii
European Convention on Human Rights

Human Rights

Updated: 28 December 2021; Ref: scu.544175

Gareth Taylor v The United Kingdom: ECHR 3 Mar 2015

The applicant was a prisoner serving time of sex offences. His release would be delayed unless he could undertake an appropriate rehabilitation course. He complained of the long delay in his transfer to a prison providing such a course, resulting in spending time in prison after expiry of his tarriff.

Nona Tsotsoria, P
2963/12 – Committee Judgment, [2015] ECHR 251
Bailii
European Convention on Human Rights

Human Rights, Prisons

Updated: 28 December 2021; Ref: scu.543789

Brooks, Regina (on the Application Of) v Parole Board and Another: Admn 11 Jun 2003

[2003] EWHC 1458 (Admin)
Bailii
England and Wales
Citing:
Appealed toRegina on the Application of Brooks v The Parole Board CA 10-Feb-2004
The court had to decide the extent to which the Parole Board could rely on hearsay evidence in a case in which a discretionary life prisoner’s licence had been revoked. The evidence was crucial to the issue of risk.
Held: (majority) The . .

Cited by:
Appeal fromRegina on the Application of Brooks v The Parole Board CA 10-Feb-2004
The court had to decide the extent to which the Parole Board could rely on hearsay evidence in a case in which a discretionary life prisoner’s licence had been revoked. The evidence was crucial to the issue of risk.
Held: (majority) The . .

Lists of cited by and citing cases may be incomplete.

Prisons

Updated: 28 December 2021; Ref: scu.185368

Neshkov And Others v Bulgaria: ECHR 27 Jan 2015

ECHR Article 46
Pilot judgment
General measures
Respondent State required to take general measures in respect of conditions of detention and the lack of effective domestic remedies
Article 13
Effective remedy
Lack of effective remedy in respect of conditions of detention: violation
Facts – The case concerned conditions of detention in various corrective facilities in Bulgaria. The applicants alleged a violation of Article 3 of the Convention and the first applicant (Mr Neshkov) also alleged a violation of Article 13 on account of the lack of an effective domestic remedy.
The Court had previously examined conditions of detention in Bulgaria under Article 3 in more than 20 other cases. For its part, the Committee of Ministers of the Council of Europe had repeatedly emphasised the need for additional measures to bring conditions of detention in Bulgarian correctional facilities in line with Convention standards. In 2008, having been satisfied by information submitted by the Government that in 2003 the Bulgarian courts had started to award compensation to persons kept in poor conditions of detention under a general statutory rule governing the liability of the authorities for unlawful acts or omissions, the Court started declaring inadmissible such complaints brought by persons who no longer remained in such conditions in cases where the remedy had not been exhausted. However, it did not do so in respect of persons who continued to be held in inadequate conditions, on the basis that in such circumstances an award of compensation is insufficient.
Law – Article 13
(a) Compensatory remedy – The Court had previously accepted that proceedings for compensation under section 1 of the State and Municipalities Liability for Damage Act 1988 could be regarded as an effective domestic remedy in respect of complaints under Article 3 of the Convention relating to conditions of detention in cases where the alleged breach had come to an end. However, in view of the manner in which the Bulgarian courts’ case-law had evolved the Court no longer considered the remedy effective. The two domestic cases brought by the first applicant highlighted a series of problems: failure to make clear the specific acts or omissions the prisoner was required to establish, an overly strict burden of proof, a tendency to assess individual aspects of the conditions of detention rather than their cumulative impact, a failure to recognise that even briefly non-compliant conditions must be presumed to cause non-pecuniary damage and the application of domestic time-limits without taking into account the continuous nature of the overall situation. The two claims for damages brought by the first applicant under section 1 of the 1988 Act could not therefore be regarded as an effective remedy.
The issues faced by the first applicant appeared representative of those met by a number of persons who had sought damages under the 1988 Act in respect of the conditions of their detention. Indeed, only about 30% of such cases had resulted in an award. The Court noted in particular that, when examining claims of this type, the domestic courts very often did not take into account the general rule proscribing inhuman and degrading treatment, but only the concrete statutory or regulatory provisions governing conditions of detention. In addition, more often than not they also failed to recognise that poor conditions of detention must be presumed to cause non-pecuniary damage to the person concerned. There was also uncertainty about the proper defendants to such claims. The remedy under section 1 of the 1988 Act was thus not sufficiently certain and effective.
(b) Preventive remedy – Prisoners who continued to be held in non-compliant conditions required a preventive remedy capable of rapidly bringing the ongoing violation to an end. However no such remedy existed under Bulgarian law. In particular, although in theory Articles 250 – 1, 256 and 257 of the Code of Administrative Procedure 2006 could offer injunctive relief, they did not appear to have been interpreted by the administrative courts in a way that enabled prisoners to obtain a general improvement in their conditions of confinement. In any event, injunctions were of little practical use where overcrowding was systemic and required substantive reform. Other forms of relief, such as a complaint to the prosecutor responsible for overseeing the facility or a complaint to the Ombudsman were not considered effective either.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 3 of the Convention in respect of the conditions of detention endured by four of the applicants.
Article 46
(a) Conditions of detention – Since its first judgment concerning inhuman and degrading conditions in Bulgarian detention facilities (Iorgov v. Bulgaria, 40653/98, 11 March 2004, Information Note 62), the Court had found a breach of Article 3 of the Convention on account of poor conditions of detention in such facilities in 25 cases. While the breaches related to various facilities, the underlying facts in each case were very similar, the most recurring issues being a lack of sufficient living space, unjustified restrictions on access to natural light and air, poor hygiene, and a lack of privacy and personal dignity when using sanitary facilities. The breaches were therefore not prompted by isolated incidents but originated in a widespread problem resulting from a malfunctioning of the Bulgarian penitentiary system. The Court decided to apply the pilot-judgment procedure.
The systemic problem regarding the conditions of detention was of considerable magnitude and complexity and stemmed from a plethora of factors. There were two issues Bulgaria needed to tackle. The first concerned overcrowding for which there were a number of potential solutions including the construction of new facilities, better allocation of prisoners in existing facilities, a reduction in the number of persons serving custodial sentences, reduced recourse to imprisonment, shorter custodial sentences and alternatives to custody. The second concerned the material conditions of detention and hygiene. Despite being aware of the problem in reports for years the authorities but had not done enough to tackle it. At this stage, the only solution was major renovation works or the replacement of existing buildings with new ones. This needed to be done without any delay.
(b) Domestic remedies – By contrast to the position regarding the conditions of detention, the systemic problem underlying the breach of Article 13 appeared to be due chiefly to the legislation and its interpretation by the courts. Specific changes in the Bulgarian legal system were thus required in the form of (i) a preventive remedy capable of providing swift redress to prisoners held in non-compliant conditions and (ii) a compensatory remedy.
(i) Preventive remedy – The best way of putting a preventive remedy into place would be to set up a special authority to supervise correctional facilities. A special authority normally produces speedier results than would be the case with ordinary judicial proceedings. To be considered an effective remedy, the authority should have the power to monitor breaches of prisoners’ rights, be independent from the authorities in charge of the penitentiary system, have the power and duty to investigate complaints with the participation of the complainant, and be capable of rendering binding and enforceable decisions. Other options would be to set up a procedure before existing authorities such as public prosecutors (provided appropriate safeguards were in place such as the right for the prisoner to make submissions and a duty on the prosecutor to deliver a binding and enforceable decision without delay) or to mould existing forms of injunctive relief to accommodate grievances relating to conditions of detention.
(ii) Compensatory remedy – Even though the Convention was in principle regarded as directly applicable in Bulgaria and part of domestic law, there was no general remedy allowing protection at domestic level of the rights and freedoms enshrined in domestic law. One solution would be a general remedy allowing those complaining of Convention breaches to seek the vindication of their rights in a procedure specially designed for that purpose. Another option would be to put in place special rules laying down in detail the manner in which claims concerning conditions of detention are examined and determined. Redress could take the form of monetary compensation or, for those still in custody, a proportionate reduction in sentence. Any remedy would have to operate retrospectively.
The required preventive and compensatory remedies should be made available within eighteen months after the Court’s judgment became final. Other similar pending applications would not be adjourned in the meantime.
(c) Individual measures – The fourth applicant (Mr Zlatev), who appeared to be particularly vulnerable and was still held in particularly harsh conditions should be transferred to another correctional facility urgently if he so wished.
Article 41: Awards ranging from EUR 6,750 to EUR 11,625 in respect of non-pecuniary damage (certain claims were reduced or dismissed for failure to comply with the applicable time-limit).

36925/10 – Legal Summary, [2015] ECHR 203
Bailii
European Convention on Human Rights 3 46
Cited by:
Legal SummaryNeshkov And Others v Bulgaria ECHR 27-Jan-2015
The applicants alleged, inter alia, that the conditions of their detention in various correctional facilities in Bulgaria had been or were inhuman and degrading. Mr Neshkov in addition alleged that he had not had effective domestic remedies in that . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 28 December 2021; Ref: scu.543066

Regina v HM Prison Service ex parte Hibbert: Admn 16 Jan 1997

The general contention that the governor, being part of the prison administration and privy to the decision, could not conduct an adjudication within th eprison was not ‘something outside the normal situation, which could justify intervention in response to a bias accusation’.

Latham J
[1997] EWHC Admin 20
Bailii
England and Wales
Cited by:
CitedRegina 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 . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .

Lists of cited by and citing cases may be incomplete.

Prisons, Natural Justice

Updated: 28 December 2021; Ref: scu.136965

McHugh And Others v The United Kingdom: ECHR 10 Feb 2015

The applicants were all incarcerated at the relevant time following criminal convictions for a variety of offences. They were automatically prevented from voting, pursuant to primary legislation, in one or more of the following elections: elections to the European Parliament on 4 June 2009; the parliamentary election on 6 May 2010; and elections to the Scottish Parliament, the Welsh Assembly or the Northern Irish Assembly on 5 May 2011 (for further details see the appended table).

Paivi Hirvela, P
51987/08 – Committee Judgment, [2015] ECHR 155
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Elections, Prisons

Updated: 27 December 2021; Ref: scu.542456

NM v Romania: ECHR 10 Feb 2015

The applicant alleged, in particular have been placed in solitary confinement in the center for foreign Otopeni in violation of Article 3 of the Convention and have been declared undesirable and deprived of liberty in violation of Article 5-1 and 4 of the Convention and Article 1 of Protocol No. 7 to the Convention.

Josep Casadevall, P
75325/11 – Chamber Judgment, [2015] ECHR 147
Bailii
European Convention on Human Rights

Human Rights, Prisons

Updated: 27 December 2021; Ref: scu.542457

Barata Monteiro Da Costa Nogueira And Patricio Pereira v Portugal: ECHR 11 Jan 2011

The applicants alleged in particular that their conviction of defamation of the prison commander has infringed their right to freedom of expression.

Francoise Tulkens, P
4035/08 (French text), [2011] ECHR 2274
Bailii
European Convention on Human Rights

Human Rights, Prisons

Updated: 27 December 2021; Ref: scu.541945

Niedzwiedz v Poland: ECHR 11 Mar 2008

The applicant, a convicted serving prisoner complained that he had not been allowed to vote in presidential and parliamentary elections, and in a referendum on Poland’s accession to the EU.
Held: The Court rejected the claims in respect of (i) and (iii) ratione materiae because the A3P1 obligations related to the choice of legislature.

Nicolas Bratza, P
ECHR
European Convention on Human Rights
Cited by:
CitedMoohan 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.

Human Rights, Prisons, Elections

Updated: 27 December 2021; Ref: scu.541522

Dilks, Regina (on The Application of) v The Secretary of State for Justice and Another: Admn 15 Jan 2015

The Claimant, a serving life prisoner, completed his minimum custodial term in 2010. He had still not yet been released. He contended that he was not provided with a place in open conditions and subsequently a place on temporary licence overnight in premises approved under section 13 of the 2007 Act, because, in breach of his domestic law duties and obligations under the European Convention on Human Rights, the Secretary of State had failed to make reasonable provision for systems and resources to enable life and other indeterminate sentence prisoners such as they require to demonstrate that they no longer present an unacceptable risk to the public.

Hickinbottom J
[2015] EWHC 11 (Admin)
Bailii
Offender Management Act 2007 13

Prisons, Human Rights

Updated: 25 December 2021; Ref: scu.541486

Amirov v Russia: ECHR 27 Nov 2014

ECHR Article 34
Hinder the exercise of the right of petition
Failure to comply with interim measure indicated by the Court: violation
Article 3
Degrading treatment
Inhuman treatment
Lack of adequate medical care of seriously ill detainee: violation
Article 46
Article 46-2
Execution of judgment
Individual measures
Respondent State required to transfer disabled applicant to specialised medical facility and provide him with adequate medical care
Facts – The applicant was a former deputy Prime Minister of the Dagestan Republic and Mayor of the Republic’s capital city. In 1993 he became paralysed following an assassination attempt and he also suffered from other serious health problems. In 2013 he was charged with a number of serious offences. He was subsequently arrested and placed in detention. Under Rule 39 of the Rules of Court, on 16 August 2013 the Court indicated to the Government that the applicant should be immediately examined by independent medical experts to determine whether the medical treatment he was receiving in the detention facility was adequate and whether his condition was compatible with detention or required his admission to hospital. The domestic authorities did not, however, comply with the measure. In 2014 the applicant was found guilty of conspiring to organise a terrorist attack and sentenced to ten years’ imprisonment. The criminal proceedings on the remaining charges against him were still pending at the time of the Court’s judgment.
Law – Article 34: In reply to the interim measure indicated by the Court, the Government had submitted two reports by civilian doctors, but these had not provided any answers to the Court’s questions. Instead, the Government had answered the questions themselves and had refused to allow the applicant’s defence team to organise a medical expert examination. By replacing expert medical opinion with their own assessment of the applicant’s situation, the Government had frustrated the purpose of the interim measure, which had sought to enable the Court, on the basis of relevant independent medical opinion, to effectively respond to and prevent the possible continuous exposure of the applicant to physical and mental suffering in violation of Article 3 of the Convention.
Conclusion: violation (unanimously).
Article 3: The applicant was a paraplegic wheelchair-bound inmate suffering from a long list of illnesses. The parties disagreed as to the seriousness and gravity of his condition and its compatibility with detention. It was true that the expert evidence produced by the applicant had been drawn by experts who had not examined him in person. However, this argument could not be considered valid as the Government had failed to organise an expert medical examination in disregard of the interim measure indicated by the Court and the authorities had denied the applicant access to medical experts of his choice. The Government had failed to demonstrate that the applicant had been receiving effective medical treatment for his illnesses while in detention. As a result of the lack of comprehensive and adequate medical treatment, the applicant was exposed to prolonged mental and physical suffering diminishing his human dignity. The authorities’ failure to provide him with the medical care he needed had thus amounted to inhuman and degrading treatment within the meaning of Article 3.
Conclusion: violation (unanimously).
Article 5 – 3: The applicant had been kept in detention on remand for more than a year. The Court accepted the existence of a reasonable suspicion that he had committed the offences with which he was charged, as well as the particularly serious nature of those offences. As regards the danger of the applicant’s absconding, the domestic courts had taken into consideration the sentence the applicant would face if found guilty as charged, his personality, his connections and his powers stemming from his position as mayor and his political and social stance, as well as the likelihood that he would influence witnesses. Considering these factors cumulatively, the domestic courts could have validly presumed that a risk existed that, if released, the applicant could abscond, reoffend or interfere with the proceedings. Moreover, the risk of absconding or perverting the course of justice had persisted throughout the entire period of the applicant’s detention. Although his state of health considerably reduced the risk of his absconding, it nevertheless could not entirely mitigate that risk. Considering also the considerable complexity of the proceedings, the Court found that the national authorities had put forward relevant and sufficient reasons to justify the applicant’s detention and had not displayed a lack of special diligence in handling his case.
Conclusion: no violation (unanimously).
Article 46: The authorities were required to admit the applicant to a specialised medical facility where he would remain under constant medical supervision and be provided with adequate medical services. They were also required to regularly re-examine the applicant’s situation, including with the assistance of independent medical experts.
Article 41: EUR 15,000 in respect of non-pecuniary damage.

51857/13 – Chamber Judgment, [2014] ECHR 1330, 51857/13 – Legal Summary, [2014] ECHR 1418
Bailii, Bailii
European Convention on Human Rights

Human Rights, Prisons

Updated: 25 December 2021; Ref: scu.541470

Silvestru v The Republic of Moldova: ECHR 13 Jan 2015

The applicant alleged a breach of his rights guaranteed by Article 3 of the Convention on account of his detention in inhuman and degrading conditions: ‘the applicant was detained in Prison no. 13 in Chisinau where, according to him, the conditions of detention were very poor. In particular, the applicant alleges that the cells were overcrowded and dirty, that the food was of very poor quality, and that he was not provided with appropriate medical care.’

Josep Casadevall, P
28173/10 – Chamber Judgment, [2015] ECHR 13
Bailii
European Convention on Human Rights 3

Human Rights, Prisons

Updated: 25 December 2021; Ref: scu.541384

Hall v United Kingdom: ECHR 12 Nov 2013

The claimant had been imprisoned for sexual offences. Whilst in prison as an IPP prisoner, and after completion of his tariff, he completed courses required to assist his treatment and demonstrate his improvement, there was an undue delay in his release.
Held: The ECtHR was therefore prepared to look at the matter overall, and to accept that no system is likely to be able to avoid some periods of waiting and delay, especially for a highly intensive course such as the ESOTP. Similarly, a delay from 1 March 2012 when transfer to open conditions was recommended by the Parole Board (or from 20 March 2012 when the Secretary of State accepted the recommendation, saying that such a transfer was envisaged in about three months) until July 2012, when transfer actually occurred was not regarded as unreasonable.

Ineta Ziemele, P
24712/12, [2013] ECHR 1369
Bailii
European Convention on Human Rights
Cited by:
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 24 December 2021; Ref: scu.539936