Males J
[2018] EWHC 1623 (QB)
Bailii
England and Wales
Armed Forces, Torts – Other
Updated: 12 November 2021; Ref: scu.620070
Category: Armed Forces
A v B; Regina (A) v Director of Establishments of the Security Service: Admn 4 Jul 2008
The claimant a retired senior officer in the intelligence services wished to publish a book of his memoirs. He was refused permission for his duty of confidentiality, and said that this infringed his human rights. The Director denied his right to take the case before the court saying that it was to be heard by the Security Commissioner who had exclusive jurisdiction.
Held: Where the issue regarded human rights the Security Commissioner did not have an exclusive jursdiction. Nothing in the section that indicated that the tribunal was to have exclusive jurisdiction to deal with matters raised in complaints for which the tribunal was the appropriate forum.
Collins J
[2008] EWHC 1512 (Admin), Times 05-Aug-2008, [2008] 4 All ER 511, [2008] ACD 76
Bailii
Regulation of Investigatory Powers Act 2000 65(2)
England and Wales
Cited by:
Appeal from – Regina (A) v Director of Establishments of the Security Service CA 18-Feb-2009
The director appealed against a finding that the court did have jurisdiction to determine whether its order preventing a restriction on publication of a book by a former member of the security services had infringed his right of free speech. The . .
Appeal from – A v B CA 18-Feb-2009
The claimant a former senior member of the Security Services sought to challenge a decision refusing permission to pulish his memoirs in full. The respondent argues that the Investigatory Powers Tribunal had exclusive jurisdiction. The respondent . .
At First Instance – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Human Rights, Media
Leading Case
Updated: 12 November 2021; Ref: scu.270617
A Soldier v Revenue and Customs: FTTTx 11 Jun 2012
FTTTx VAT – new means of transport – private motor car supplied for removal to Germany – bought by member of UK armed forces based in Germany and taken there for two days – returned to UK because Appellant on temporary training here before six month operational deployment in Africa – car left in the UK during deployment – during deployment, Appellant notified that his German stationing was being terminated and he was being re-based in the UK – whether Appellant had sufficient intention to remove the vehicle from the UK when initially supplied to him to qualify for UK zero rating on that supply to him – X v Skatteverket (ECJ) considered – held yes – appeal allowed
Kevin Poole Judge
[2012] UKFTT 388 (TC)
Bailii
England and Wales
VAT, Armed Forces
Updated: 11 November 2021; Ref: scu.462774
Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah: SC 31 Oct 2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to Afghanistan, but were not notified. He remained detained by US Forces. An agreement had been in place as to the treatment of prisoners in accordance with international obligations,and which provided that he should be returned to the UK. He complained that by doing nothing to secure his return, the government had colluded in his unlawful rendition, and the Court of Appeal had granted a writ of Habeas Corpus requiring the UK government to seek his return to the UK. The Secretary of State now appealed.
Held: The appeal was dismissed. The respondents cross appeal was dismissed by a majority. It was not necessary to show that the government had actual custody of the claimant, but only that they had influence which might be effective. Habeas corpus remains a flexible remedy.
That the Memorandum of Understanding (MOU) was not binding in law did not reduce its significance. The appellant had relied on the MOU to show that it had complied with its obligations under the Geneva Conventions, and the claim that a request for his return was a bare statement unsupported by other evidence.
Though the issue of the legality of his detention did not conclude the matter, the evidence suggested that his continued detention was unlawful.
The grant of a writ of habeas corpus was not an interference by the courts with foreign relations. The effet was to require evidence if there was such that the appellant did not have any control.
‘Memoranda of Understanding or their equivalent, Diplomatic Notes, are therefore a means by which courts have been invited to accept that the assurances which they contain will be honoured. And indeed courts have responded to that invitation by giving the assurances the weight that one would expect to be accorded to solemn undertakings formally committed to by responsible governments. It is therefore somewhat surprising that in the present case Mr Parmenter asserted that it would have been futile to request the US government to return Mr Rahmatullah. As the Master of the Rolls pointed out in para 39 of his judgment, this bald assertion was unsupported by any factual analysis. No evidence was proffered to sustain it. ‘
Lord Kerr contrasted the availability and purpose of judicial review and habeas corpus: ‘The fallacy in the suggestion that habeas corpus should not be available where judicial review is not, lies in its conflation of two quite different bases of claim. The mooted judicial review application would proceed as a challenge to the propriety of the government’s decision not to apply to the US authorities for Mr Rahmatullah’s return. The application for habeas corpus does not require the government to justify a decision not to make that application. It calls on the government to exercise the control which it appears to have or to explain why it is not possible (not why it is not reasonable) to do so.
Apart from the differing nature of the two claims, the fact that habeas corpus, if the conditions for its issue are satisfied, is a remedy which must be granted as a matter of automatic entitlement distinguishes it from the remedy of judicial review which can be withheld on a discretionary basis. It is unsurprising that habeas corpus is available as of right. If there is no legal justification for a person’s detention, his right to liberty could not depend on the exercise of discretion.’
Lord Phillips, Lady Hale, Lord Kerr, Lord Dyson, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 48, [2012] WLR(D) 301, [2012] 3 WLR 1087, UKSC 2012/0142, UKSC 2012/0033
Bailii, Bailii Summary, SC Summary, SC
Geneva Conventions of 1949 and their Additional Protocols
England and Wales
Citing:
See Also – Othman, Regina (on The Application of) v Special Immigration Appeals Commission (SIAC) and Others Admn 9-Aug-2012
The court gave its reasons for refusing the claimant’s applications for habeas corpus and permission to seek judicial review of his detention. He was detained pending deportation to Jordan. He resisted saying that if retried in Jordan, the evidence . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Appeal from – Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another (No 2) CA 23-Feb-2012
The claimant had been arrested by UK armed forces in Iraq, and pased to the US against an agreement as to his treatment. He had been taken instead.
Held: The UK needed to have in place an agreement which it could point to as showing that it . .
Appeal from – Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another CA 14-Dec-2011
The claimant appealed against refusal of an order for habeas corpus. He was held by US forces in Afghanistan. He had been captured by British Forces and handed over to US forces and held in Bagram.
Held: The appeal succeeded. . .
Cited – Secretary of State for Home Affairs v O’Brien HL 1923
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in . .
Cited – MT (Algeria) and others v Secretary of State for the Home Department CA 30-Jul-2007
The defendants challenged deportation orders made for national security purposes, saying that the Special Immigration Appeals Commission should not have taken closed material into account. They argued that if returned to Algeria, they would suffer . .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Barnardo v Ford HL 1892
A boy who had been ‘found destitute and homeless’ by a ‘clergyman residing in Folkestone’ had been placed in an institution run by Dr Barnardo, who in turn said that he had handed over the boy to ‘an American gentleman’, who had taken him to Canada. . .
Cited – Rex v Earl of Crewe, Ex parte Sekgome CA 1910
The Bechuanaland Protectorate in South Africa was ‘under His Majesty’s dominion in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion. A protectorate is a foreign country whose governance is an . .
Cited – Regina v Secretary of State for Home Affairs, Ex parte O’Brien CA 1923
Mr O’Brien had been arrested in London under regulation 14B of the Restoration of Order in Ireland Regulations 1920 and deported to Ireland there to be interned until further order. A writ of habeas corpus was sought as against the governor of . .
Cited – RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
Cited – Omar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
Cited – Zabrovsky v The General Officer Commanding Palestine PC 4-Dec-1946
Mr Zabrovsky’s son, Arie Ben Eliezer, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine. He was then transported to a military detention camp in Eritrea. At the time, . .
Cited – Ex parte Mwenya CA 1959
A writ of habeas corpus might issue to Northern Rhodesia.
Such a writ of should only be issued where it can be regarded as ‘proper and efficient’ to do so. However, it remains ‘the most efficient protection yet developed for the liberty of the . .
Cited – Al-Haq, Regina (On the Application of) v Secretary Of State for Foreign and Commonwealth Affairs Admn 27-Jul-2009
The claimant sought a declaration that the UK was in breach of its international obligations. The claimant was a non-governmental human rights organisation based in Palestine. The respondent argued that the issue was beyond the court’s jurisdiction, . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai CA 1985
Sir John Donaldson MR said: ‘in the context of a situation with serious implications for the conduct of international relations, the courts should act with a high degree of circumspection in the interests of all concerned. It can rarely, if ever, be . .
Cited – Regina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
Cited – Regina v Secretary of State for Foreign Affairs ex parte Ferhut Butt Admn 1-Jul-1999
Lightman J said: ‘The general rule is well established that the courts should not interfere in the conduct of foreign relations by the Executive, most particularly where such interference is likely to have foreign policy repercussions . . This . .
Cited – Sankoh, Re CA 27-Sep-2000
The claimant appealed against a refusal to issue a writ oif habeas corpus on behalf of the Sierra Leonean revolutionary leader, Foday Sankoh, who had been detained in Sierra Leone while UK forces were supporting the national government there, and in . .
Cited – Regina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Cited – Al Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 12-Oct-2006
The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in . .
Cited by:
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Armed Forces, Torts – Other, International, Judicial Review
Leading Case
Updated: 11 November 2021; Ref: scu.465471
Secretary of State for Defence v Lance Corporal (Now Corporal) Duncan and Another: CA 12 Oct 2009
The servicemen had challenged the awards made to them for injuries suffered in service. The SSD now appealed.
Held: The awards had been increased when it became clear that the SD had failed to take account of some elements of the injuries suffered, and the injuries had been reclassified by the Tribunal, with its medical experts, as complex. The SSD complained that the injuries had been assessed at the date of the hearing, and that injuries arising during the course of treatment should not be included.
Held: It was agreed that further injury arising from medical negligence would not be claimable, the chain of causation being broken. However it was not proper to identify separately the first and subsequent injuries, and ‘Frequently, there are risks that quite independent illness or injury may result from carrying out perfectly proper medical treatment. If the risk materialises, however likely or unlikely that may be, then in my judgment, the consequential injury is referable to the original injury in service and there is no break in the chain of causation. ‘ and ‘injuries which are consequential upon medical treatment should be compensated under this Scheme where they flow from risks which are inherent in carrying out that treatment. However, the immediate consequences of the treatment itself, such as pain and the physical intrusion which necessarily follows any surgery and is an intrinsic in the cure, will not merit any additional award. ‘
Keene LJ, Carnwath LJ, Elias LJ
[2009] EWCA Civ 1043, [2010] AACR 5
Bailii
The Armed Forces and Reserve Forces (Compensation Scheme) Order 2005
England and Wales
Citing:
Cited – Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Personal Injury
Updated: 11 November 2021; Ref: scu.375985
Duncan v Ministry of Defence: EAT 2 Oct 2014
duncan_modEAT1410
EAT Sex Discrimination : Jurisdiction – Section 121 Equality Act 2010 – purposive construction required to achieve lawful balance between the statutory aim of enabling the Armed Forces to determine complaints internally prior to litigation and a complainant’s right of access to a Court/Tribunal within a reasonable time. That could be achieved by reading section 121(2) EqA as operating as a jurisdictional bar only where the right (under the Armed Forces Redress of Individual Grievances (Procedure and Time Limits) Regulations 2007) to make a referral to the Defence Council has arisen and has not been exercised.
The Employment Judge’s failure to give this provision such a purposive construction had led him to strike out the Claimant’s Employment Tribunal claim. It was now common ground that the Employment Judge’s ruling amounted to an error of law and the appeal should be allowed on this basis.
Costs – given the outcome of the appeal, the Employment Tribunal’s costs award against the Claimant cannot stand. By consent the Respondent is ordered to pay the Claimant’s costs of the appeal and those occasioned by its application to strike out the claim before the Employment Tribunal.
Eady QC HHJ
[2014] UKEAT 0191 – 14 – 0210
Bailii
Equality Act 2010 121, Armed Forces Redress of Individual Grievances (Procedure and Time Limits) Regulations 2007
England and Wales
Employment, Armed Forces, Costs, Discrimination
Updated: 10 November 2021; Ref: scu.537758
Ali Hussein v Secretary of State for Defence: Admn 1 Feb 2013
The claimant sought to challenge the legality of techniques of interrogation intended to be used by forces members detaining person captured in Afghanistan. He had himself been mistreated by such officers in Iraq. The defendant denied he had standing to challenge a policy which would not affect him. He said it was in issue of such importance that it must be litigated.
Held: The claim failed: ‘whether or not treatment in interrogation can be regarded as unlawful will depend on whether it contravenes a prohibition on treatment which would be regarded as inhumane. A useful guide can be obtained from Article 3 of the ECHR since it is clear that any physical ill-treatment of a detainee is likely to contravene it and other forms of coercion may, if sufficiently serious. I have no doubt that if used in accordance with and applying the controls required by the policy the use of Challenge Direct cannot be regarded as a breach of the obligation of humane treatment. ‘
Hallett LJ DBE, Collins J
[2013] EWHC 95 (Admin)
Bailii
England and Wales
Citing:
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Cited – Equality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .
Cited – Regina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
Cited – Regina v Fulling CACD 1987
It was alleged that evidence had been obtained by police oppression. She had at first refused to answer questions, but an officer talked to her during a break between interviews, telling her that her lover had been having an affair. The . .
Cited – The Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Torts – Other
Leading Case
Updated: 10 November 2021; Ref: scu.470696
Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening): HL 12 Dec 2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security in Iraq as a suspected terrorist. It was said that the detention was attributable to the forces acting under UN authority.
Held: The claimant’s appeal was dismissed. The detention was by the UK, but the duties were affected by the fact that they acted also under the UN resolution. The operations of the authorities were subject to the duties under the Convention. However, the authorities had a responsibility also under the UN charter to prevent terrorism, and it was bound to exercise its power of detention where that was necessary for imperative reasons of national security.
Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2007] UKHL 58, Times 13-Dec-2008, [2008] 2 WLR 31, [2008] 1 AC 332
Bailii
European Convention on Human Rights 5
England and Wales
Citing:
At first instance – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
Appeal from – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Cited – Behrami and Behrami v France; Saramati v France Germany and Norway ECHR 2-May-2007
The applicants complained of the action and inaction of members of an international security force (‘KFOR’) that had been deployed in Kosovo pursuant to Security Council Resolution 1244 (1999).
Held: The applications were inadmissible. The . .
Cited by:
Cited – A, 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.
Cited – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
Cited – HM 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 . .
Cited – HM 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 . .
At HL – Al-Jedda v Secretary of State for the Home Department SIAC 23-May-2008
The appellant had been granted british citizenship. He now appealed against a an order under section 40(2) of the 1981 Act depriving him of his British citizenship on the ground that the respondent was satisfied that deprivation was conducive to the . .
At HL – Al-Jedda v Secretary of State for the Home Department SIAC 22-Oct-2008
The Court was asked whether or not the procedural protections afforded by Article 6(1) ECHRR as identified by the House of Lords in Secretary of State for the Home Department v MB [2007] UKHL 46 [2008] 1 AC 440 apply to the Appellant’s appeal . .
At HL – Al-Jedda v The United Kingdom ECHR 2-Mar-2009
The claimant, an Iraqi and British national complained of his arrest and internment on suspicion of terrorist involvement. . .
At HL – Al-Jedda v Secretary of State for Defence QBD 5-Mar-2009
The claimant, an Iraqi/British national complained of his detention in Iraq by the defendant without any due process. . .
At HL – Al-Jedda v Secretary of State for the Home Department SIAC 7-Apr-2009
The appellant challenged an order made under the 1981 Act revoking his British citizenship, saying that it infringed his article 8 rights to family life. . .
At HL – Al-Jedda v Secretary of State for The Home Department CA 12-Mar-2010
The claimant appealed against a decision withdrawing his British citizenship, saying that this would leave him stateless. . .
At HL – Al-Jedda v Secretary of State for Defence CA 8-Jul-2010
Al Jedda, who had both Iraqi and British nationality, sought damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. . .
At HL – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
At HL – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
At HL – Al-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
At HL – Secretary of State for The Home Department v Al-Jedda SC 9-Oct-2013
The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .
At HL – Al-Jedda v Secretary of State for The Home Department (Deprivation of Citizenship Directions – Oral Ruling ) SIAC 7-Feb-2014
Order . .
At HL – Hilal Al-Jedda SIAC 18-Jul-2014
lSIAC Deprivation of Citizenship : Preliminary Issue . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Armed Forces
Leading Case
Updated: 09 November 2021; Ref: scu.262254
Matthews v Ministry of Defence: HL 13 Feb 2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided procedural bars to their enforcement. The issue of what is a substantive and what a procedural bar is a difficult distinction. At common law, the crown could do no wrong, and therefore no action lay against the crown. That was substantive law, and the 1947 did not stand as a bar to an action which would otherwise lie. The contention that a right existed from the happening of the injury until the Secretary of State issued his certificate did not succeed. The Act did not operate first to create then withdraw a right of action.
Bingham of Cornhill, Hoffman, Hope of Craighead, Millett, Walker of Gestingthorpe LL
Times 14-Feb-2003, [2003] UKHL 4, [2003] 2 WLR 435, Gazette 03-Apr-2003, [2003] 1 AC 1163, 14 BHRC 585, [2003] PIQR P24, [2003] UKHRR 453, [2003] ACD 42, [2003] ICR 247, [2003] 1 All ER 689, [2004] HRLR 2
House of Lords, Bailii
European Convention on Human Rights 6, Crown Proceedings Act 1947 10
England and Wales
Citing:
Appeal from – Matthews v Ministry of Defence CA 29-May-2002
The Ministry appealed against a finding that the Act, which deprived the right of a Crown employee to sue for personal injuries, was an infringement of his human rights.
Held: The restriction imposed by the section was not a procedural . .
Cited – Bell v Secretary of State for Defence CA 1986
The deceased was injured serving in the forces in Germany. His injury was worstened after negligent communications between army doctors. The defendant relied upon State Immunity to defend a claim, saying he had issued a certificate that he had died . .
Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
Cited – Quinn v Ministry of Defence CA 28-Nov-1997
. .
Cited – Derry v Ministry of Defence CA 18-Mar-1999
Where an army doctor was accused of failing to diagnose a serviceman’s ocular cancer, the negligence which caused the consequent injury was caused by the delay in a correct diagnosis, and the treatment fell within the scope of Crown Immunity. . .
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Stubbings and Others v The United Kingdom ECHR 22-Oct-1996
There was no human rights breach where the victims of sex abuse had been refused a right to sue for damages out of time. The question is whether and to what extent differences in otherwise similar situations justify a different treatment in law: . .
Cited – Powell and Rayner v The United Kingdom ECHR 21-Feb-1990
The applicants complained of the noise generated by Heathrow Airport saying that it affected their human rights to enjoy their private life and possessions.
Held: Whether the case was analysed in terms of a positive duty on the state to take . .
Cited – Fayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Tinnelly 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 . .
Cited – Waite and Kennedy v Germany ECHR 18-Feb-1999
The grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by . .
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – Kaplan 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 . .
Cited by:
Appealed to – Matthews v Ministry of Defence CA 29-May-2002
The Ministry appealed against a finding that the Act, which deprived the right of a Crown employee to sue for personal injuries, was an infringement of his human rights.
Held: The restriction imposed by the section was not a procedural . .
Cited – Barnfather v London Borough of Islington Education Authority, Secretary of State for Education and Skills QBD 7-Mar-2003
The appellant was convicted of the crime of being a parent whose child had failed to attend school regularly. She challenged saying that the offence required no guilty act on her part, but was one of strict liability, and contrary to her human . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Secretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
Cited – Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
Cited – O’Connor and Another v Wiltshire County Council CA 9-May-2007
The claimants sought compensation for the diminution in the values of their properties because of noise pollution from a new highway. The defendant highway authority said that liability had been transferred to its contractors, and it had not been . .
Cited – Reader and others v Molesworths Bright Clegg Solicitors CA 2-Mar-2007
The claimants were children of the victim of a road traffic accident. The solicitors were conducting a claim on his behalf for damages, but when he died, they negligently discontinued the action.
Held: The claimants’ action as dependants of . .
Cited – Regina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Personal Injury, Armed Forces
Leading Case
Updated: 09 November 2021; Ref: scu.179117
Reprieve and Others, Regina (on The Application of) v The Prime Minister: Admn 30 Jun 2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and rendition of detainees in the aftermath of events in the USA on 11 September 2001.
Held: The request for review failed. The claimants’ standing to bring proceedings has not been the subject of dispute, but it does not follow that they may step into the shoes of third party victims:’ In these judicial review proceedings, the claimants contend that the decision not to hold a public inquiry breaches the defendant’s duty to hold an effective investigation under article 3 of the Convention. We are willing to assume for present purposes that a breach of the State’s article 3 investigative duty may in principle give rise to individual rights that may be classified as ‘civil rights’ (for example, in claims brought by an individual for damages for breach of the duty). However, in any public inquiry, the claimants would not seek a determination of their own article 3 rights but would raise the rights of others who (on the claimants’ case) may have been the subject of mistreatment. The claimants in our judgment cannot possibly be regarded as victims of article 3 violations. It follows that any duty to investigate article 3 breaches by way of a public inquiry is not a duty owed to the claimants as victims. In these circumstances, it is difficult to envisage how the present judicial review proceedings – which concern the investigative duty – have anything to do with the claimants’ civil rights.’
‘claims made in public law proceedings cannot simply be elided with ‘civil rights’ under article 6(1). Administrative and executive decisions may involve the ‘hard core of public-authority prerogatives’ which do not engage article 6 ‘
Dame Victoria Sharp P, Farbey J
[2020] EWHC 1695 (Admin)
Bailii, Judiciary
European Convention on Human Rights 6(1)
England and Wales
Citing:
Cited – Secretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – El-Masri v The Former Yugoslav Republic of Macedonia ECHR 13-Dec-2012
(Grand Chamber) The applicant, a German national of Lebanese origin, alleged that he had been subjected to a secret rendition operation, namely that agents of the respondent State had arrested him, held him incommunicado, questioned and ill-treated . .
Cited – Ringeisen v Austria ECHR 16-Jul-1971
The Austrian District and Regional Real Property Transactions Commission refused to approve the sale of a number of plots of land. The applicant challenged the refusal alleging bias and contending that his article 6 rights were violated for that . .
Cited – Maaouia v France ECHR 5-Oct-2000
A deportation order, made against a Tunisian, was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
Cited – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
Cited – Kiani v The Secretary of State for The Home Department CA 21-Jul-2015
Lord Dyson MR (with whom Richards LJ and Lewison LJ agreed) held that the requirements of article 6 ‘depend on context and all the circumstances of the case’. The court will strike an appropriate balance between the requirements of national security . .
Cited – Fayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
Cited – Aksoy v Turkey ECHR 18-Dec-1996
In the context of Kurdish separatist terrorism which had claimed almost 8000 lives, the court accepted a derogation from the Convention because of a state of emergency. However the applicant had been detained, tortured and finally released without . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Mohamed and Another v Secretary of State for The Home Department CA 2-May-2014
The claimants were suspected of terrorism and subject to control orders and terrorism prevention and investigation measures. They brought proceedings for abuse of process relating to the manner in which they had been removed to the United Kingdom . .
Cited – Kamoka v The Security Service QBD 1205
The court hearing an application for disclosure, should consider both the nature of the issue at stake and what is needed for the fair disposal of the litigation in hand. . .
Cited – ZZ v Secretary of State for The Home Department CA 24-Jan-2014
The claimant had appealed against his exclusion, confirmed by the Special Immigration Appeal Commission. The case had been remitted to the European Court of Justice, which had now made its decision.
Held: The essence of the grounds for . .
Cited – Bank Mellat v Her Majesty’s Treasury CA 23-Oct-2015
Bank entitled to information needed for defence
Application to set aside the directions contained in two statutory instruments. The measures were ‘highly restrictive . . with very serious effects’. The court considered the procedures for the use of closed material and whether the claimant bank . .
Cited – AZ (Syria) v Secretary of State for The Home Department CA 27-Jan-2017
AZ, a refugee, had been refused general travel document for reasons of national security. The Court as now asked whether he was entitled to be told of the concerns in advance of defendant’s decision.
Burnett LJ referred to a ‘sliding scale for . .
Cited – K, A and B v Secretary of State for Defence Secretary of State for Foreign and Commonwealth Affairs Admn 26-Apr-2017
The Claimants have brought public law claims against the Defendants in relation to protection, relocation and compensation, claiming to have acted as covert human intelligence sources, CHIS, for the United Kingdom in Afghanistan. . .
Cited – QX v Secretary of State for The Home Department Admn 15-May-2020
Challenge to Temporary Exclusion Order.
Held: The concept of ‘civil rights and obligations’ cannot be interpreted solely by reference to national law but has an autonomous meaning within article 6(1) . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Administrative, Human Rights, Judicial Review
Updated: 09 November 2021; Ref: scu.652173
Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence: Admn 19 Dec 2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the applicants were within the jurisdiction of the court for this purpose, but merely being held at the request of the Iraqi authorities.
Held: The claim failed. In the earlier leading cases, the applicants had been held when there was no other lawful authority, and therefore the detention could only be by and for the occupying force. In these caes however the arrests had been made when there as a lawful authority requiring assistance. There was an obligation to bring the claimants before the courts of Iraq. However the claimants did fall within the jurisdiction of the United Kingdom for the purposes of article 1, and ‘the claimants are at present in the physical custody of the British forces and that their transfer to the custody of the Iraqi court would be an act attributable to the United Kingdom, not to Iraq.’ The Soering principle applied to any transfer even though it was a transfer within the same territory, and ‘the Convention is qualified in its application by the United Kingdom’s obligation under public international law to comply with the request of the Iraqi court to transfer the claimants into the custody of the court; . . if, however, the claimants would be exposed to such ill-treatment on transfer as to provide a justification in international law for declining to transfer them, the United Kingdom cannot then rely on its international law obligation as qualifying the application of the Convention.’ The court however rejected the claim that a fair trial would not be provided, but noted that there had been no re-assurance that the death penalty might not be applied, and therefore a transfer would infringe the claimant’s article 13 rights. This however did not amount to an obligation on the UK not to comply with its international obligations.
Richards LJ, Silber J
[2008] EWHC 3098 (Admin)
Bailii
European Convention on Human Rights 1 13
England and Wales
Citing:
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Applied – Gentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – Othman (Abu Qatada) (Jordan) v Secretary of State for the Home Department CA 9-Apr-2008
The claimant appealed an order for his deportation back to Jordan, saying that if returned there was a real risk that he would face a trial based on evidence obtained by torture.
Held: The appeal succeeded. A foreign national could not be . .
See Also – Al-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
Cited by:
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
Appeal from – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
At High Court – Al-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 26-Jun-2015
Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 7-Apr-2016
The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the . .
See Also – Al-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .
Lists of cited by and citing cases may be incomplete.
Armed Forces, International, Human Rights, Crime
Updated: 09 November 2021; Ref: scu.278991
Al-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 Secretary of State was correct and Mr Al-Sweady died on the battlefield, then the ECHR could not be invoked.’ The claimant challenged a refusal by the respondent to confirm that it had disclosed all relevant documents. The repeated and unexplained failures by the respondent to make full disclosure had led to a waste of costs in the order of andpound;2,000,000. Additionally the defendant had supplied admittedly false claims for public interest immunity.
Held: ‘the general practice of the court when contested issues of fact arise in applications for judicial review is that ‘in so far as there are factual disputes between the parties, the court is ordinarily obliged to resolve them in favour of the defendant’ However, the court considered that in future in judicial review cases involving human rights questions: ‘cross-examination might occur with increasing regularity in cases where there are crucial factual disputes between the parties relating to jurisdiction of the ECHR and the engagement of its Articles.’
The court criticised as unreliable the evidence of a senior army officer having conduct of the investigation. The court emphasised the need for the Treasury Solicitor to substantially improve its handling of such claims.
Scott Baker LJ, Silber J, Sweeney J
[2010] UKHRR 300, [2010] HRLR 2, [2009] EWHC 2387 (Admin), Times 14-Oct-2009
Bailii
European Convention on Human Rights
England and Wales
Citing:
Cited – Regina 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 . .
Cited – Woods v Martins Bank Ltd 1958
If a bank chooses to give advice to a customer, then the Bank’s obligation is to advise with ordinary skill and care. The liability is primarily on contract: ‘In my judgment, the limits of a banker’s business cannot be laid down as a matter of law. . .
Cited – Tweed 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 . .
Cited – 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.
Cited – Regina v Secretary of State for Home Department ex parte Fayed CA 13-Nov-1996
The nature of the Secretary of State’s objections and a chance to reply are to be given if the Secretary intends to deny an application for naturalisation. Administrative convenience cannot justify unfairness. The court deprecated ‘fishing . .
Cited – Regina v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd HL 1993
One bus company took over another, giving it an effective monopoly within the region. The Commission considered that the area involved was sufficiently substantial to cause concern that it may operate against the public interest. At first instance . .
Cited – Regina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .
Cited – Regina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited CA 30-Oct-2002
Order confirmed. ‘while for my part I have found nothing to demonstrate bad faith on the part of the Secretary of State, the history of this case has demonstrated to my mind that the approach taken to the public decisions that had to be made fell . .
See Also – Al-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence (PII) Admn 10-Jul-2009
The claimants alleged murder and ill-treatment by the British Armed forces in Iraq. The defendant had failed repeatedly to comply with disclosure orders and an indemnity costs award had been made against him. The defendant had in particular . .
See Also – Al-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence Admn 10-Jul-2009
The court rejected an application by a further claimant to be added to the action. . .
Cited by:
Cited – Shoesmith, Regina (on The Application of) v Ofsted and Others Admn 23-Apr-2010
The claimant challenged her dismissal as Director of children’s services at the respondent council following an adverse report into the Baby P death identified her department as being responsible. She said that the first defendant had allowed its . .
Cited – Q, Regina (on The Application of) v Q Constabulary and Another Admn 17-Mar-2011
The claimant renewed his request for an order against the defendant that he should be given a place on a witness protection scheme. He had given evidence for the prosecution in a gangland murder trial. A risk assessment had identified a risk ‘real . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Armed Forces, Judicial Review
Updated: 09 November 2021; Ref: scu.375610
Regina v Secretary of State for Defence ex parte Perkins: Admn 16 Jul 1998
The ECJ ruling that discrimination against same sex couples did not constitute sex discrimination under the Equal Pay Directive was also effective to decide that the Armed Forces rules against employment of homosexuals was not discrimination.
Times 16-Jul-1998, Gazette 03-Sep-1998, [1998] EWHC Admin 746
Bailii
Council Directive 75/117/EEC (Equal Treatment) Council Directive 76/297/EEC Equal Treatment
England and Wales
Discrimination, Armed Forces
Updated: 09 November 2021; Ref: scu.87700
Blackman, Regina v (Sentence): CACD 28 Mar 2017
Sentence – manslaughter of prisoner
The defendant whilst serving in Afghanistan had killed a prisoner. His appeal against his conviction for murder had been successful, and a conviction for manslaughter had been substituted on the basis that he was at the time suffering a recognised medical condition. The court now considered sentencing.
Held: A sentence of seven years was imposed, which would, allowing for time served, lead to his imminent release.
[2017] EWCA Crim 325
Bailii
England and Wales
Citing:
See Also – Blackman, Regina v (Media) CACD 28-Mar-2017
The defendant officer appealed against his conviction for murder. Whilst serving a s an officer in Afghanistan, he had killed a captured soldier. That conviction had been quashed and a conviction for manslaughter on diminished responsibility . .
See Also – Blackman, Regina v CACD 15-Mar-2017
The defendant appealed against his conviction for murder. As an army officer serving in Afghanistan he had killed an injured captured insurgent.
Held: The defendant had at the time of the offence suffered a recognised psychiatric condition, . .
See Also – Blackman, Regina v CACD 22-May-2014
The appellant had been convicted of murder. As an Army sergeant serving in Afghanistan, he had killed a captured insurgent. . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing, Armed Forces
Updated: 09 November 2021; Ref: scu.581276
Ngouh, Regina (on The Application of) v Secretary of State for The Home Department: Admn 27 Aug 2010
The claimant, a Cameroon national, sought to challenge the refusal of indefinite leave to remain. He had served in the British Army in Iraq, and lived here for over ten years. However when serving he had been convicted of a minor sexual assault in 2005.
Held: The request for judicial review was granted. His first application had been mishandled, a refusal being made for his failure to supply documents he could not obtain. The second application was refused on the different basis of the offence. It was important when considering refusal based on an offending history for the officer properly to consider the nature of the offence and of the surrounding circumstances. Where as here, the offence was at the lowest end of criminality particular care was needed.
Foskett J
[2010] EWHC 2218 (Admin), [2010] WLR (D) 239
Bailii, WLRD
Immigration Rules
England and Wales
Citing:
Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Cited – Steven O Omojudi v United Kingdom ECHR 24-Nov-2009
The claimant had been convicted of a sex offence and ordered to be deported after his release from prison. He had lived in the UK for 26 years and had a family.
Held: The deportation order was disproportionate. The measures complained of . .
Cited – SL (Vietnam) v Secretary of State for The Home Department CA 11-Mar-2010
. .
Cited – Daley-Murdock, Regina (on The Application of) v Secretary of State for The Home Department Admn 23-Jun-2010
. .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights, Armed Forces
Updated: 09 November 2021; Ref: scu.421891
Molaudi v Ministry of Defence: EAT 15 Apr 2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously made a complaint about the same matters to the military authorities, which was not brought in time and which was rejected.
The Employment Tribunal held that (a) pursuant to section 75(9) of the Race Relations Act 1976 as amended, a ‘service complaint’ had to be brought to the military authorities before a claim could be brought in the Employment Tribunal; and (b) a complaint to the military authorities which was brought out of time and was rejected by the military authorities was not a valid ‘service complaint’ and so the pre-condition for bringing a claim in front of the Employment Tribunal was not satisfied. There were adequate judicial procedures in this country ‘available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them’ as specified in article 7 of the Directive.
The Claimant appealed on (b).
Held: Dismissing the appeal
(1) The term ‘service complaint’ meant a complaint which could be considered substantively and that meant a complaint rejected by the military authorities brought out of time did not fall within that definition; and
(2) The Racial Discrimination Directive 2000/43/EC did not require a different meaning to be given to the words ‘service complaint’ so that it covered a complaint to the military authorities which was brought out of time.
Silber J
[2011] UKEAT 0463 – 10 – 1504, [2011] ICR D19
Bailii
Race Relations Act 1976 75(9), Equality Act 2010, Race Relations (Complaints to Industrial Tribunals) Armed Forces Regulations 1997, Armed Forces Act 2006 334, The Armed Forces Redress of Individual Grievance (Procedures and Time Limits) Regulations 2007 11(a), Racial Discrimination Directive 2000/43/EC 7
England and Wales
Citing:
Cited – Pinner v Everett HL 1969
The House was asked whether or not a person was ‘driving or attempting to drive’ a motor vehicle when he had been stopped by the police in connection with the illumination of his rear number plate, and the driver got out of the car and started to . .
Cited – J L Melbourne v Ministry of Defence EAT 26-Nov-2001
EAT Race Discrimination – Direct . .
Cited – Barnes v Jarvis 1953
Lord Goddard CJ said: ‘A certain amount of common sense must be applied in construing statutes. The object of the Act has to be considered.’ . .
Cited – Radakovits v Abbey National Plc CA 17-Nov-2009
The Tribunal had considered the question of jurisdiction as a preliminary issue. It heard evidence, and considered that there was no jurisdiction. This was despite the fact that, at an earlier stage, the employer had said that it would not contest . .
Cited – Riley v First Choice Homes Oldham Ltd EAT 30-Apr-2008
riley_firstEAT2008
EAT Statutory Discipline and Grievance Procedures – Whether applicable – Whether infringed – Was the modified or standard grievance procedure applicable? The Employment Tribunal found the former, and held that . .
Cited – Ministry of Defence v Wallis and Grocott CA 8-Mar-2011
Mrs Wallis was employed by the Ministry of Defence at the international school attached to SHAPE in Belgium. Mrs Grocott was employed by the Ministry in the British section of the Armed Forces North International School in the Netherlands. Both . .
Cited – Crompton v The United Kingdom ECHR 27-Oct-2009
The applicant had joined the Territorial Army as a pay and accounts clerk but was made redundant. He claimed redress in respect of his redundancy from his Commanding Officer. There then followed a prolonged series of proceedings which took eleven . .
Cited by:
Appeal from – Molaudi v Ministry of Defence CA 21-Mar-2012
Affirmed . .
Cited – Williams v The Ministry of Defence EAT 7-Sep-2012
EAT Jurisdictional Points : Excluded Employments – The Claimant was in the RAF. Before presenting a discrimination claim to the Employment Tribunal she was required to go through the service complaints procedure. . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination, Armed Forces
Leading Case
Updated: 02 November 2021; Ref: scu.432795
Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening): HL 13 Jun 2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied and run by British military personnel. It was argued for the civilians that, because of the special circumstances in which British troops were operating in Basra, the conduct complained of, although taking place outside the borders of the United Kingdom and any other contracting state, fell within the exceptions recognised by the Strasbourg jurisprudence.
Held: The acts of a UK public authority were subject to the human rights convention outside the UK, but only where at the time the victim was within the jurisdiction of the UK under article 1. Where a state through effective control of another territory exercised powers normally exercised by the government of that territory, the obligation to secure the Convention rights would arise only where a contracting state had such effective control over an area as to enable it to provide the full package of rights and freedoms guaranteed by article 1 of the Convention to everyone within that area.
The task of the English courts is to keep pace with the Strasbourg jurisprudence as it develops over time, no more and no less.
Lord Rodger remarked: ‘in case of doubt, the Act should be read so as to promote, not so as to defeat or impair, its central purpose.’
Lord Brown said that the Convention should not be construed as ‘reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach.’
Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2007] UKHL 26, TImes 14-Jun-2007, [2008] 1 AC 153, [2007] 3 All ER 685, [2007] 3 WLR 33, [2007] Inquest LR 168, [2007] UKHRR 955, [2007] HRLR 31, 22 BHRC 518
Bailii, HL
Human Rights Act 1998, European Convention on Human Rights
England and Wales
Citing:
At First Instance – Al Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another Admn 14-Dec-2004
Several dependants of persons killed in Iraq by British troops claimed damages.
Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad . .
Appeal from – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Regina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited by:
Cited – Gentle, 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 . .
Cited – Barclay and Others, Regina (on the Application of) v The Seigneur of Sark and Another Admn 18-Jun-2008
The claimants said that the the laws restricting residence and voting rights and oher constitutional arrangements on the Isle of Sark were in breach of European law, and human rights law.
Held: The claims failed. The composition of Chief Pleas . .
Cited – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
Cited – Smith 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 . .
Cited – Barclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
Cited – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
Cited – Reynolds, Regina (on the Application of) v Sussex Police and Another Admn 16-May-2008
The complainant’s brother had been arrested for being drunk. After a time in a cell, he was found unwell and fell into a coma. Complaints were made of his treatment. The Police Complaints Commission was to investigate the events after the arrest . .
Cited – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
Cited – Secretary 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 . .
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Cited – Smith, 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.
Cited – Mousa and Others v Secretary of State for Defence and Another Admn 16-Jul-2010
The claimants sought judicial review of the respondent in respect of alleged mistreatment when detained in Iraq. They sought a judicial inquiry. . .
Cited – Armstrong v Chief Constable of West Yorkshire Police CA 5-Dec-2008
The Chief Constable appealed against a finding that the claimant had been arrested for rape without reasonable grounds. A description of the rapist had been given which the claimant met in several respects, but from which he clearly differed in . .
Cited – Zagorski 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 . .
Cited – McCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
Cited – Salimi, Regina (on The Application of) v Secretary of State for The Home Department and Another Admn 1-Jul-2011
The claimant said he had been assaulted by Iraqi police and contractors in Baghdad Airport whilst he was being forcibly returned there, and that the defendant had responsibility. He complained that about the failure of the IPCC to investigate his . .
Cited – Smith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
At HL – Al-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Armed Forces
Leading Case
Updated: 02 November 2021; Ref: scu.253442
Bankovic v Belgium: ECHR 12 Dec 2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own account in respect of injuries sustained during the raid. The claimants alleged that Articles 2, 10 and 13 of the Convention had been infringed.
Held: Decisions on military action abroad are not subject to review under the Convention. The court discussed the meaning of article 1: ‘As to the ‘ordinary meaning’ of the relevant terms in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are as a general rule defined and limited by the sovereign territorial rights of the other relevant States.
Accordingly, for example, a State’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that State’s and other States’ territorial competence . . in addition, a State may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence unless the former is an occupying State, in which case it can be found to exercise jurisdiction in that territory, at least in certain respects . .
The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.’
‘In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of art 1 of the convention.’ and ‘Reference has been made in the court’s case law, as an example of jurisdiction ‘not restricted to the national territory’ of the respondent state (Loizidou v Turkey (preliminary objections) (1995) 20 EHRR 99 at para 62), to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under arts 2 and/or 3 (or, exceptionally, under arts 5 and/or 6) and hence engage the responsibility of that state under the convention (Soering v UK [1989] ECHR 14038/88 at para 91, Cruz Varas v Sweden ECHR 15576/89 at paras 69 and 70, and Vilvarajah v UK [1991] ECHR 13163/87 at para 103). However, the court notes that liability is incurred in such cases by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state’s competence or jurisdiction abroad (see also Al-Adsani v UK [2001] ECHR 35763 at para 39).’
‘In sum, the case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government.’ and ‘Additionally, the court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state.’
52207/99, (2001) 11 BHRC 435, [2001] ECHR 890, (2007) 44 EHRR SE5, 123 ILR 94
Bailii
European Convention on Human Rights 1
Human Rights
Cited by:
Followed – Regina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Cited – Mohamed Moneim Al-Fayed for Judicial Review of A Decision of the Lord Advocate To Refuse To Instruct A Public Inquiry Into the Death of Emad Al-Fayed OHCS 12-Mar-2004
The claimant sought judicial review of the minister’s decision not to order a judicial public investigation of the death of his son in a car crash in Paris.
Held: The primary obligation to undertake an enquiry fell upon France. The obligation . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Ocalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Al Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another Admn 14-Dec-2004
Several dependants of persons killed in Iraq by British troops claimed damages.
Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Gentle and Others, Regina (on the Application of) v the Prime Minister and others Admn 20-Dec-2005
The applicants sought leave to bring judicial review of the decisions which led to the invasion of Iraq. They were relatives of servicemen who had died there.
Held: The court’s only duty at this stage was to ask whether there was an arguable . .
Cited – Smith 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 . .
Cited – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
Cited – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
Cited – Secretary 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 . .
Cited – Smith, 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.
Explained – Medvedyev And Others v France ECHR 29-Mar-2010
(Grand Chamber) A Cambodian vessel, The Winner, trafficked drugs on the high seas (Cape Verde). It was detected and boarded by the French authorities, detaining the crew on board and took them on the vessel to France for trial. France was, but . .
Cited – Zagorski 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 . .
Cited – Smith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
Cited – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 4-Feb-2013
The claimant was facing trial in Bali which would eventually lead to a sentence of death. She complained of inadequate legal assistance before and at the trial. She had been represented by a local lawyer, paid with funds (andpound;5,000) raised by . .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Cited – Privacy 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 . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Armed Forces
Leading Case
Updated: 02 November 2021; Ref: scu.196600
PK v Secretary of State for Defence (AFCS): UTAA 20 Mar 2012
Regina v Jackson: CACD 17 Oct 2006
The defendant appealed against his conviction for low flying contrary to the 1955 Act, saying that it had been treated wrongly as an offence of strict liability.
Held: Hooper LJ said: ‘Whilst it is always possible to adumbrate situations which would appear to be covered by a statutory provision and yet could have manifestly unjust results, one has to rely on the good sense of Prosecuting Authorities and the overall supervisory role of the courts to avoid such a situation developing. Likewise of course the penalty actually imposed in any particular case can reflect the actual degree of culpability involved in a particular case.’
Hooper LJ, Keith, Jones JJ
200505255C5, [2007] 1 WLR 1035, [2006] EWCA Crim 2380
Bailii
Air Force Act 1955
England and Wales
Cited by:
Approved – Ezeemo and Others v Regina CACD 16-Oct-2012
The defendants had been charged with offences relating to their intended transporting of waste materials to Nigeria. They appealed, complaining that the judge had directed that the offence under regulation 23 was an offence of strict liability.
Crime, Armed Forces
Updated: 02 November 2021; Ref: scu.464929
Smith, 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.
Held: The SSD’s appeal succeeded. ‘jurisdiction’ within the meaning of Article 1 was essentially territorial but extended in exceptional circumstances requiring special justification to other bases of jurisdiction. A soldier on active duty overseas was not within the jurisdiction of the UK so as to allow the operation of the Convention. The proposition asserted was a novel one, and the court should not extend a State’s duties beyond existing Strasbourg jurisprudence.
If the Convention had applied, an article 2 level coroner’s inquest would still not always be required. Baroness Hale, Lord Mance and Lord Kerr dissented in part.
Lord Collins said the exceptions to the finding of jurisdiction recognised by the Strasbourg court had consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy and (iii) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the ECHR. This case was none of them.
Lord Mance said: ‘However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention.’
Lord Hope of Craighead said: ‘Some situations in which the procedural obligation is triggered are now well recognised. The suicide of an individual while in the custody of the state is the prime example. It has been extended to the case where a prisoner attempted to commit suicide while in custody and suffered brain damage . This is because it has been recognised that prisoners as a class present a particular risk of suicide and because those who have custody of them, as agents of the state, are or may be in some way implicated. A Middleton inquest is required in all these cases, because it is at least possible that the prison authorities failed to take the steps to protect the prisoner’s life that the substantive right requires. As Lord Rodger of Earlsferry said in L’s case . . suicide is in this respect like any other violent death in custody. The procedural obligation extends to prisoners as a class irrespective of the particular circumstances in which the death occurred. The fact that they are under the care and control of the authorities by whom they are held gives rise to an automatic obligation to investigate the circumstances. The same is true of suicides committed by others subject to compulsory detention by a public authority, such as patients suffering from mental illness who have been detained under the Mental Health Acts . . This approach has the merit of clarity. Everyone knows from the outset that the inquest in these cases must follow the guidance that was given in Middleton’
Lord Phillips of Worth Matravers stated the difference between a preliminary inquiry to establish whether an article 2 investigation was called for on the facts surrounding any death, and an article 2 investigation itself: ‘The duty to hold an article 2 investigation arises where there are grounds for suspecting that a death may involve breach by the State of one of the substantive obligations imposed by article 2. This raises the question of how the State is to identify that there are grounds for such suspicion. Any effective scheme for protecting the right to life must surely require a staged system of investigation of deaths, under which the first stage takes place automatically in relation to every death, whether or not there are grounds for suspecting that there is anything untoward about the death. Where the first stage shows that the death has not, or may not have, resulted from natural causes, there will be a requirement for a further stage or stages of the investigation. The requirement for an article 2 investigation will only arise if the preceding stage of the investigation discloses that there is a possibility that the State has not complied with a substantive article 2 obligation.’
Lord Phillips of Worth Matravers PSC, Lord Hope of Craighead DPSC, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore
[2010] UKSC 29, [2010] WLR (D) 165, [2010] 3 WLR 223, [2010] 3 All ER 1067, [2011] 1 AC 1, [2010] Inquest LR 119, [2010] UKHRR 1020, [2010] HRLR 28, 29 BHRC 497
Bailii, WLRD, SC Summary, SC
Human Rights Act 1998, European Convention on Human Rights 1, Coroners and Justice Act 2009 5, Armed Forces Act 2006
England and Wales
Citing:
Cited – Issa And Others v Turkey ECHR 16-Nov-2004
Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the . .
Cited – Bui van Thanh v United Kingdom ECHR 12-Mar-1990
The applicant, one of the ‘Vietnamese Boat People’, complained of the acts of government official in Hong Kong.
Held: The UK government had not extended the Convention to Hong Kong and the application failed. . .
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
Appeal From – Secretary 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 . .
At First Instance – Smith 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 . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Ocalan v Turkey ECHR 12-May-2005
(Grand Chamber) – The applicant had been detained in Kenya. He had allowed himself to be taken by Kenyan officials to Nairobi airport in the belief that he was free to leave for a destination of his choice, but they took him to an aircraft in which . .
Cited – Ocalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .
Cited – Loizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .
Cited – Al Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another Admn 14-Dec-2004
Several dependants of persons killed in Iraq by British troops claimed damages.
Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad . .
Cited – Loizidou v Turkey (Merits) ECHR 18-Dec-1996
The court was asked whether Turkey was answerable under the Convention for its acts in Northern Cyprus.
Held: It was unnecessary to determine whether Turkey actually exercised detailed control over the policies and actions of the authorities . .
Cited – Loizidou v Turkey (Article 50) ECHR 28-Jul-1998
Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings; Costs and expenses – claim rejected (State) . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – Gentle, 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 . .
Cited – Carson and Others v The United Kingdom ECHR 16-Mar-2010
(Grand Chamber) The court ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had . .
Cited – X v United Kingdom ECHR 1979
(Commission) The claimant sought admission of her complaint that being employed by the European Commission and resident in Belgium she had lost her right to vote. She contrasted her position with that of members of the armed forces and members of . .
Cited – Stephens v Malta (No. 1) ECHR 21-Apr-2009
The applicant, a British subject, had been arrested and detained in Spain under an arrest warrant issued by a court in Malta, but without competence to do so. The Court considered the issue of jurisdiction under article 1, saying: ‘the question to . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Cyprus v Turkey ECHR 26-May-1975
ECHR (Commission) Article 24 of the Convention : Case referred to the Commission by a Contracting Party.
(a) The applicant Government, as constituted at and since the time of lodging the present . .
Cited – Gentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
Cited – Regina 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, . .
Cited – McCann and Others v The United Kingdom ECHR 6-Oct-1995
mccann_ukECHR1995
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 . .
Cited – 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.
Cited – Isayeva, Yusupova And Bazayeva v Russia ECHR 24-Feb-2005
ECHR Judgment (Merits and Just Satisfaction). The court considered the duties of a signatory state under article 2 when taking substantial military actions against insurgents. . .
Cited – Al-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .
Cited – Sacker, 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 . .
Cited – Nachova and Others v Bulgaria ECHR 6-Jul-2005
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (estoppel) ; Violation of Art. 2 with regard to deaths ; Violation of Art. 2 with regard to lack of effective investigation ; Not . .
Cited – Hurst, 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 . .
Cited – Caledonian Railway Co v Walker’s Trustees 1882
The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: ‘The obstruction by the execution of the work, of a man’s direct access to his house or land, . .
Cited – Close v Steel Company of Wales Ltd 1962
The pursuer sought damages after injury arising from the use of a tool for a purpose other than that for which it was intended to be used. Lord Denning quoted Sir Frederick Pollock to say: ‘Judicial authority belongs not to the exact words used in . .
Cited – Ramsahai And Others v The Netherlands ECHR 10-Nov-2005
(Grand Chamber) The police had shot someone suspected of stealing a scooter. The family complained that they had not been given full access to the documents seen by the enquiry into his death.
Held: In order to be ‘effective’ as this . .
Cited – Medvedyev And Others v France ECHR 29-Mar-2010
(Grand Chamber) A Cambodian vessel, The Winner, trafficked drugs on the high seas (Cape Verde). It was detected and boarded by the French authorities, detaining the crew on board and took them on the vessel to France for trial. France was, but . .
Cited – Calvin’s case 1606
Sir Edward Coke said: ‘If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action, or get anything within this realm.’ and ‘If a King comes to a kingdom by conquest, he may change and alter the laws . .
Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
Cited – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Cited – Nissan v The Attorney General HL 11-Feb-1969
The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Littrell v Government of the United States of America and Another (No 2) CA 24-Nov-1993
The plaintiff claimed damages for personal injuries arising from medical treatment which he had received at a United States military hospital in the United Kingdom while a serving member of the United States Air Force.
Held: Section 16(2) . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
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 . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Jordan 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 . .
Cited – Carson and Others v The United Kingdom ECHR 4-Nov-2008
(Grand Chamber) Pensioners who had moved abroad complained that they had been excluded from the index-linked uprating of pensions given to pensioners living in England.
Held: This was not an infringement of their human rights. Differences in . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Markovic and Others v Italy ECHR 14-Dec-2006
The applicants were relatives of persons who had been killed in the NATO air-raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had . .
Cited – Ilascu and Others v Moldova and Russia ECHR 8-Jul-2004
(Grand Chamber) The two contracting states disputed the status of secessionist territory in Moldova called the Moldovian Republic of Transdniestria, which had been set up in 1991-2 with the support of the Russian Federation. The question was whether . .
Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Cited – Menson v United Kingdom ECHR 6-May-2003
There had been a racist attack. The victim was set on fire and killed in the street by assailants. His relatives sought compensation. However the assailants were not agents of the state and they were duly prosecuted, convicted and sentenced. No . .
Cited – 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 . .
Cited – London and Quadrant Housing Trust v Weaver, Regina; Equality and Human Rights Commission intervening CA 18-Jun-2009
The Trust appealed against a finding that in terminating an assured tenancy transferred to it from a local authority, it had acted as a hybrid public authority and was subject to controls under the 1998 Act.
Held: (Rix LJ dissenting). The . .
Cited – Assanidze v Georgia ECHR 8-Apr-2004
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion of domestic remedies) ; Violation of Art. 5-1 with regard to unlawfull detention ; Not necessary to examine Art. 5-1 . .
Cited – Ergi v Turkey ECHR 28-Jul-1998
A village girl was shot dead when she went out onto the veranda of her home after security forces had been engaged in an ambush of PKK members close to the village where she lived. Nobody asked her family about the circumstances of the shooting, and . .
Cited – Savage 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 . .
Cited – Byrzykowski v Poland ECHR 27-Jun-2006
. .
Cited – Takoushis, 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 . .
Cited – Akdogdu v Turkey ECHR 18-Oct-2005
ECHR Judgment (Merits and Just Satisfaction) – No violation of Art. 2; Violation of Art. 3; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses . .
Cited by:
Cited – Zagorski 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 . .
Cited – McCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
Cited – Smith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
Cited – Long, Regina (on The Application of) v Secretary of State for Defence Admn 15-Jul-2014
The claimant’s son had been one of six soldiers of the Royal Military police to have been murdered by an armed mob attacking a police station in Iraq in 2003. The said that their deaths had not been properly or sufficiently investigated. The corone . .
Cited – Birks, 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 . .
Cited – Letts, 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 . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 22-May-2013
The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for hr appeal, and now . .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Cited – Tyrrell 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 . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Human Rights, Coroners, Constitutional
Leading Case
Updated: 02 November 2021; Ref: scu.420019
Tabernacle 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 wished to ‘attach anything to, or place any thing over any wall, fence, structure or other surface;’ ‘the words used in Byelaw 7(2)(g) prohibit a visitor from sitting on a fixed bench and placing a pullover over the seat or the back of the bench, or a hiker from stopping at the monument and placing a rucksack on a convenient surface at the base of the structure. There would need to be strong justification for a ban on such apparently innocuous activities. ‘ That restriction was too wide to be justifiable.
Maurice Kay LJ, Walker J
[2008] EWHC 416 (Admin), Times 09-Apr-2008
Bailii
Military Lands Act 1892 14(1), Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007, European Convention on Human Rights 10(1)
England and Wales
Citing:
Cited – Staden v Tarjanyi 1980
The court considered the validity of a byelaw. Lord Lane CJ said: ‘to be valid, a byelaw, carrying as this one does penalties for infringement, must be certain and clear in the sense that anyone engaged upon the otherwise lawful pursuit . . must . .
Cited – Percy and Another v Hall and Others QBD 31-May-1996
There was no wrongful arrest where the bylaw under which it was made was invalid. The question is the belief of the arresting officers. The effect of retrospective legislation is not always fully worked through. English law provides no cause of . .
Cited – Tod-Heatley v Benham 1888
What was ‘annoyance’ between neighbours
The court considered how to construe a covenant in a lease ‘nor do or wittingly or willingly cause or suffer to be done any act, matter, or thing in or upon or about the said premises, which shall or may be or grow to the annoyance, nuisance, . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Nash v Finlay 1902
The court considered the validity a byelaw. It was challenged for being unclear. It provided that: ‘No person shall wilfully annoy passengers in the streets.’ Other byelaws in the same instrument proscribed more specific forms of ‘annoyance’.
Cited – Staden v Tarjanyi 1980
The court considered the validity of a byelaw. Lord Lane CJ said: ‘to be valid, a byelaw, carrying as this one does penalties for infringement, must be certain and clear in the sense that anyone engaged upon the otherwise lawful pursuit . . must . .
Cited – Ziliberberg v Moldova ECHR 1-Feb-2005
The court observed that: ‘the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society.’ it is possible to distinguish between interferences . .
Cited – Gaweda v Poland ECHR 14-Mar-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Pecuniary damage – financial award; Costs and expenses partial award
The court considerd the meaning of the phrase ‘prescribed by law’: . .
Cited – Chorherr v Austria ECHR 25-Aug-1993
The applicant was one of two arrested demonstrating against the Austrian armed forces at a military parade. They had rucksacks on their backs, with slogans on them. The rucksacks were so large that they blocked other spectators’ view of the parade. . .
Cited – 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 . .
Cited by:
Appeal from – Tabernacle v Secretary of State for Defence CA 5-Feb-2009
The claimant sought judicial review to test the validity of the bye-laws which prohibited them from camping on public land to support their demonstration.
Held: The bye-laws violated the claimant’s right to freedom of assembly and of . .
Lists of cited by and citing cases may be incomplete.
Crime, Armed Forces
Updated: 02 November 2021; Ref: scu.266109
Limbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others: Admn 30 Sep 2008
The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were substantially similar to those applied to other commonwealth citizens retring from the armed forces. However the examples set out as the basis for the exercise of the decision were so restrictive as to be irrational and did not reflect the policy as expressed. The instructions given to the entry clearance officers were unlawful and needed urgent revisiting.
Blake J
[2008] EWHC 2261 (Admin), Times 07-Oct-2008
Bailii
England and Wales
Citing:
See Also – Gurung, Pun and Thapa v Ministry of Defence QBD 27-Nov-2002
The applicants were British Nepalese soldiers who had been imprisoned by the Japanese in the second world war. They challenged the decision of the respondent in November 2000 to exclude them from a compensation scheme, but to allow other British . .
See Also – Regina (Purja) v Ministry of Defence; Regina (Lama) v Same Admn 21-Feb-2003
The applicants served as Gurkha soldiers with the army. They claimed that the pensions they received, being substantially less than those paid to other servicemen were discriminatory.
Held: The positions of a retired serviceman in England and . .
See Also – Gurung and Shrestha, Regina (on the Application of) v Secretary of State for Defence Admn 2-Jul-2008
Second challenge to the lawfulness of the Terms and Conditions of Service and the pension arrangements of the Gurkha soldier retired from the British Army. . .
See Also – Purja and others v Ministry of Defence CA 9-Oct-2003
The applicants were Gurkha soldiers who complained at the differences in treatment of them as against other members of the forces as regards payment, pensions and otherwise, alleged infringement oftheir Article 14 rights, which prevented . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Immigration
Updated: 02 November 2021; Ref: scu.276535
Commodore Royal Bahamas Defence Force and Others v Laramore: PC 8 May 2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to freedom of conscience when he was obliged, on pain of disciplinary action, to remain present and doff his cap during Christian prayers at ceremonial parades and at morning and evening colours. This was a sufficiently active participation to hinder the claimant in the enjoyment of his conscientious beliefs. Nor had any justification been shown for it: ‘The Board has no doubt that Mr Laramore was ‘hindered in the enjoyment of his freedom of conscience’ in the present case. His conscience told him that he should not be taking part in the prayers which were part of regular colours parades. He made this point after he had converted to the Muslim religion in 1993, and he pursued it after the 2006 Memorandum reversed the dispensation introduced in 1993. The effect of the 2006 Memorandum was that he was no longer able to enjoy or give effect to his freedom of conscience by falling out during prayers.’
Nor was the interference justified in the circumstances.
Lord Mance, Lord Kerr, Lord Sumption, Lord Reed. Lord Hughes
[2017] UKPC 13, [2017] 1 WLR 2752, [2017] WLR(D) 334
Bailii, WLRD
Commonwealth
Citing:
Cited – The Honourable Dr. Paul Borg Oliver and Another v The Honourable Dr. Anton Buttigieg PC 19-Apr-1966
The Archbishop of Malta had declared it a mortal sin to print, write, sell, buy, distribute or read a left-wing weekly newspaper, the Voice of Malta. The Maltese Medical and Health Department had followed this up by prohibiting all its 2,660 . .
Cited – Banton v Alcoa Minerals of Jamaica Inc 1971
. .
Cited – Hope v New Guyana Ltd 1979
. .
Cited – Attorney-General v Momodou Jobe PC 26-Mar-1984
(Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction . .
Cited – Regina v Big M Drug Mart 1985
Supreme Court of Canada – A company was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act. It challenged the legislation. The freedom affected was that of persons prevented by the Act from working on a . .
Approved – Scott v Regina 2004
Participation in religious prayers were required of soldiers during routine parades at a Canadian Forces base. The soldiers were preceded by an order to remove headdress. The soldier had no religious convictions, had (after having previously raised . .
Cited by:
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Constitutional, Human Rights
Updated: 02 November 2021; Ref: scu.582134
Hassan v The United Kingdom (LS): ECHR 16 Sep 2014
ECHR Grand Chamber – Article 5-1
Lawful arrest or detention
Internment in Iraq under Third and Fourth Geneva Conventions: no violation
Article 1
Jurisdiction of states
Responsibility of states
Territorial jurisdiction in relation to detention of Iraqi national by coalition of armed forces in Iraq
Facts – In March 2003 a coalition of armed forces led by the United States of America invaded Iraq. After occupying the region of Basrah, the British army started arresting high-ranking members of the ruling Ba’ath Party and the applicant, a senior member of the party, went into hiding leaving his brother Tarek behind to protect the family home in Umm Qasr. On the morning of 23 April 2003 a British Army unit came to the house hoping to arrest the applicant.
According to their records, they found Tarek Hassan in the house armed with an AK-47 machine gun and arrested him on suspicion of being a combatant or a civilian posing a threat to security. He was taken later that day to Camp Bucca, a detention facility in Iraq operated by the United States. Parts of the camp were also used by the United Kingdom to detain and interrogate detainees. Following interrogation by both United States and United Kingdom authorities, Tarek Hassan was deemed to be of no intelligence value and, according to the records, was released on or around 2 May 2003 at a drop-off point in Umm Qasr. His body was discovered, bearing marks of torture and execution, some 700 kilometres away in early September 2003.
In 2007 the applicant brought proceedings in the English administrative court, but these were dismissed on the grounds that Camp Bucca was a United States rather than a United Kingdom military establishment.
In his application to the European Court, the applicant alleged that his brother was arrested and detained by British forces in Iraq and subsequently found dead in unexplained circumstances. He complained under Article 5 — 1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities had failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.
Law – Articles 2 and 3: There was no evidence to suggest that Tarek Hassan had been ill-treated while in detention such as to give rise to an obligation under Article 3 to carry out an official investigation. Nor was there any evidence that the United Kingdom authorities were responsible in any way, directly or indirectly, for his death, which had occurred some four months after his release from Camp Bucca, in a distant part of the country not controlled by United Kingdom forces. In the absence of any evidence of the involvement of United Kingdom State agents in the death, or even of any evidence that the death occurred within territory controlled by the United Kingdom, no obligation to investigate under Article 2 could arise.
Conclusion: inadmissible (manifestly ill-founded).
Article 5 — 1, 2, 3 and 4
(a) Jurisdiction
(i) Period between capture by British troops and admission to Camp Bucca: Tarek Hassan was within the physical power and control of the United Kingdom soldiers and therefore fell within United Kingdom jurisdiction. The Court rejected the Government’s argument that jurisdiction should not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State were operating in territory of which they were not the occupying power, and where the conduct of the State should instead be subject to the requirements of international humanitarian law. In the Court’s view, such a conclusion was inconsistent with its own case-law and with the case-law of the International Court of Justice holding that international human rights law and international humanitarian law could apply concurrently.*
(ii) Period after admission to Camp Bucca: The Court did not accept the Government’s argument that jurisdiction should be excluded for the period following Tarek Hassan’s admission to Camp Bucca as it involved a transfer of custody from the United Kingdom to the United States. Tarek Hassan was admitted to the Camp as a United Kingdom prisoner. Shortly after his admission, he was taken to a compound entirely controlled by United Kingdom forces. Under the Memorandum of Understanding between the United Kingdom, United States and Australian Governments relating to the transfer of custody of detainees it was the United Kingdom which had responsibility for the classification of United Kingdom detainees under the Third and Fourth Geneva Conventions and for deciding whether they should be released. While it was true that certain operational aspects relating to Tarek Hassan’s detention at Camp Bucca were transferred to United States forces (such as escorting him to and from the compound and guarding him elsewhere in the camp) the United Kingdom had retained authority and control over all aspects of the detention relevant to the applicant’s complaints under Article 5.
Tarek Hassan had thus been within the jurisdiction of the United Kingdom from the moment of his capture on 23 April 2003 until his release, most probably at Umm Qasr on 2 May 2003.
Conclusion: within the jurisdiction (unanimously).
(b) Merits: There were important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict. Detention under the powers provided for in the Third and Fourth Geneva Conventions was not congruent with any of the permitted grounds of deprivation of liberty set out in subparagraphs (a) to (f) of Article 5-1.
The United Kingdom had not lodged any formal request under Article 15 of the Convention (derogation in time of emergency) allowing it to derogate from its obligations under Article 5 in respect of its operations in Iraq. Instead, the Government had in their submissions requested the Court to disapply United Kingdom’s obligations under Article 5 or in some other way interpret them in the light of the powers of detention available to it under international humanitarian law.
The starting point for the Court’s examination was its constant practice of interpreting the Convention in the light of the 1969 Vienna Convention on the Law of Treaties, Article 31-3 of which made it necessary when interpreting a treaty to take into account (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions, (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation and (c) any relevant rules of international law applicable in the relations between the parties.
As to Article 31-3 (a), there had been no subsequent agreement between the Contracting States as to the interpretation of Article 5 in situations of international armed conflict. However, as regards Article 31-3(b), the Court had previously stated that a consistent practice on the part of the Contracting States, subsequent to their ratification of the Convention, could be taken as establishing their agreement not only as regards interpretation but even to modify the text of the Convention. The practice of the Contracting States was not to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. That practice was mirrored by State practice in relation to the International Covenant for the Protection of Civil and Political Rights.
As to the criterion contained in Article 31-3(c), the Court reiterated that the Convention had to be interpreted in harmony with other rules of international law, including the rules of international humanitarian law. The Court had to endeavour to interpret and apply the Convention in a manner which was consistent with the framework under international law delineated by the International Court of Justice. Accordingly, the lack of a formal derogation under Article 15 of the Convention did not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in the applicant’s case.
Nonetheless, even in situations of international armed conflict, the safeguards under the Convention continued to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out under subparagraphs (a) to (f) should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court was mindful of the fact that internment in peacetime did not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15. It could only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security were accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.
As with the grounds of permitted detention set out in those subparagraphs, deprivation of liberty pursuant to powers under international humanitarian law had to be ‘lawful’ to preclude a violation of Article 5-1. That meant that detention had to comply with the rules of international humanitarian law, and most importantly, that it should be in keeping with the fundamental purpose of Article 5-1, which was to protect the individual from arbitrariness.
As regards procedural safeguards, the Court considered that, in relation to detention taking place during an international armed conflict, Article 5-2 and 4 must also be interpreted in a manner which took into account the context and the applicable rules of international humanitarian law. Articles 43 and 78 of the Fourth Geneva Convention provided that internment ‘shall be subject to periodical review, if possible every six months, by a competent body’. Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent ‘court’ in the sense generally required by Article 5-4, nonetheless, if the Contracting State is to comply with its obligations under Article 5-4 in this context, the ‘competent body’ should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay. Article 5-3, however, had no application in the present case since Tarek Hassan was not detained in accordance with the provisions of paragraph 1(c) of Article 5.
Turning to the facts of the applicant’s case, the Court considered that the United Kingdom authorities had had reason to believe that Tarek Hassan, who was found by British troops armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value had been retrieved, might be either a person who should be detained as a prisoner of war or whose internment was necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention under the Third and Fourth Geneva Conventions. Almost immediately following his admission to Camp Bucca, he had been subject to a screening process in the form of two interviews by United States and United Kingdom military intelligence officers, which had led to his being cleared for release since it was established that he was a civilian who did not pose a threat to security. The evidence pointed to his having been physically released from the Camp shortly thereafter.
Against this background, it would appear that Tarek Hassan’s capture and detention was consistent with the powers available to the United Kingdom under the Third and Fourth Geneva Conventions, and was not arbitrary. Moreover, in the light of his clearance for release and physical release within a few days of being brought to the Camp, it was unnecessary for the Court to examine whether the screening process constituted an adequate safeguard to protect against arbitrary detention. Finally, it would appear from the context and the questions that Tarek Hassan was asked during the two screening interviews that the reason for his detention would have been apparent to him.
Conclusion: no violation (thirteen votes to four).
29750/09 – Legal Summary, [2014] ECHR 1145
Bailii
European Convention on Human Rights
Human Rights
Human Rights, Armed Forces
Updated: 01 November 2021; Ref: scu.537995
Ayling v Summers and Others: ChD 14 Sep 2009
Letters of administration had been taken out, but it was subsequently discovered that the deceased, a seamen, may have made a nuncupative will which would be valid if made at sea. He had said: ‘You listen to me. If anything happens to me, I want everything to go to Auntie Anne.’ and later ‘What I told you before still applies. If anything happens to me, if I snuff it, I want everything to go to Auntie Anne.’ It was submitted that the ability to make a privileged will was restricted to seamen on British registered ships.
Held: The oral will was upheld. The restrictive construction of the Act proposed was not accepted: ‘I am faced with four very ordinary words, ‘a mariner or seaman’, which are easily understood and which, on their plain meaning, apply to all mariners and seamen.’ There was no mention of national service in the section. The court had no doubt that the deceased was to be understood to be ‘at sea’ when the words were spoken, since all his actions at that time were as to his return to sea under orders. He was contemplating the voyage and preparing for it.
Peter Langan J
[2009] WTLR 1657, [2010] 1 All ER 410, [2009] EWHC 3168 (Ch)
Bailii
Wills Act 1837 11, Wills (Soldiers and Sailors) Act 1918
England and Wales
Citing:
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – Re Stable, deceased. Dalrymple v Campbell 1918
It is not necessary for the validity of a privileged (nuncupative) will that the testator knew that he was making a will: what is required is that he ‘intended deliberately to give expression to his wishes as to what should be done with his property . .
Cited – In the Goods of Sarah Hale 1915
The deceased was a typist employed by the Cunard Steamship Company. Her permanent assignment was as a typist on board the Lusitania but, when not working on the ship, she worked in the company’s offices in Liverpool. She made her will while working . .
Cited – In The Goods Of Hugh Donaldson Donaldson, M D 1-May-1840
Sir Herbert Jenner said that: ‘The deceased must be considered to have been a surgeon in the East India Company’s service; his being in charge of recruits for royal regiments, which was no part of his regimental duty, would not constitute him a . .
Cited – Re Beech 1923
Provided the words of a will have been read and accepted by a testator, they take effect even if the legal effect was not understood: ‘The contention is that if a will does not have the effect intended the testator cannot be said to have known and . .
Cited – In the Goods of Newland, deceased 1952
The judge upheld the nuncupative will of an apprentice in the merchant navy while on shore leave (which was, at longest, from 4 July to 1 August 1944) from the troopship on which he was employed. . .
Cited – In the Goods of Wilson, Wilson v Coleclough ChD 1952
The deceased had been a chief officer employed by an oil company. He came ashore in England from one vessel on 10 January 1946, and was on leave until 16 April. On 25 April he received instructions to join another ship on 30 April, and on 27 April . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Armed Forces, Transport
Updated: 01 November 2021; Ref: scu.375618
Secretary 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 jurisdiction whilst not on a British base in Iraq. The deceased’s family argued that the jurisdiction was not merely geographical, but was also personal.
Held: Human rights law is focused on the status of the potential victim and his relationship with the state. ‘the right to life of a soldier in combat is different from that of a soldier not in combat, but the question here is whether there should be a distinction between the rights of a soldier at a base and when he leaves the base. The answer to that question is not in our view affected by the existence or application of the principle that his rights cannot be ‘divided or tailored’. The Minister’s appeal failed.
Sir Anthony Clarke MR, Keene LJ, Dyson LJ
[2009] EWCA Civ 441, [2009] 4 All ER 985, [2009] 3 WLR 1099, [2009] UKHRR 1139, 27 BHRC 89, [2009] ACD 54
Bailii, Times
European Convention on Human Rights 2
England and Wales
Citing:
Cited – Gentle, 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 . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Cyprus v Turkey ECHR 26-May-1975
ECHR (Commission) Article 24 of the Convention : Case referred to the Commission by a Contracting Party.
(a) The applicant Government, as constituted at and since the time of lodging the present . .
Cited – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
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 . .
Cited – Issa And Others v Turkey ECHR 16-Nov-2004
Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Appeal from – Smith 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 . .
Cited by:
Appeal From – Smith, 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.
Armed Forces, Human Rights, Coroners
Updated: 02 November 2021; Ref: scu.346156
Williams v The Ministry of Defence: EAT 7 Sep 2012
EAT Jurisdictional Points : Excluded Employments – The Claimant was in the RAF. Before presenting a discrimination claim to the Employment Tribunal she was required to go through the service complaints procedure. On her failing to appeal internally in time, the complaint was treated as withdrawn and the Employment Tribunal correctly held it had no jurisdiction. There was no breach of Art 6 ECHR or EU obligations to provide an effective remedy.
A new point was not allowed to be argued. Celtec applied.
McMullen QC J
[2012] UKEAT 0163 – 12 – 0709
Bailii
England and Wales
Citing:
Cited – Molaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .
Cited – Molaudi v Ministry of Defence CA 21-Mar-2012
Affirmed . .
Lists of cited by and citing cases may be incomplete.
Employment, Armed Forces
Updated: 01 November 2021; Ref: scu.465541
Gentle, 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 appeal was dismissed. The right to an inquiry was procedural and depended first on the claimants establishing an arguable case that the substantive right was infringed. There would be no ability at common law to require such and inquiry, and no obligation was to be created through human rights law.
The issue was however justiciable. Baroness Hale said: ‘it is now common ground that if a Convention right requires the court to examine and adjudicate upon matters which were previously regarded as non-justiciable, then adjudicate we must.’
Lord Bingham of Cornhill observed: ‘issues which judicial tribunals have traditionally been very reluctant to entertain because they recognise their limitations as suitable bodies to resolve them. This is not to say that if the claimants have a legal right the courts cannot decide it. The defendants accept that if the claimants have a legal right it is justiciable in the courts, and they do not seek to demarcate areas into which the courts may not intrude.’
Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance
[2008] UKHL 20, Times 10-Apr-2008, [2008] 2 WLR 879, [2008] 1 AC 1356, [2008] UKHRR 822, [2008] HRLR 27, [2008] 3 All ER 1
Bailii, HL
European Convention on Human Rights 2 3
England and Wales
Citing:
Cited – Jordan 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 . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Edwards 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 . .
Cited – 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.
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
At first instance – Gentle and Others, Regina (on the Application of) v the Prime Minister and others Admn 20-Dec-2005
The applicants sought leave to bring judicial review of the decisions which led to the invasion of Iraq. They were relatives of servicemen who had died there.
Held: The court’s only duty at this stage was to ask whether there was an arguable . .
Appeal from – Regina (on the appication of Gentle and Clarke) v The Prime Minister; Secretary of Sate for Defence; Attornery General CA 12-Dec-2006
The mothers of two servicemen who had died whilst on service in the war in Iraq challenged refusal to hold an independent inquiry into the circumstances leading to the invasion of Iraq.
Held: The appeal failed. . .
Cited – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Regina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – Regina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Cited – Takoushis, 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 . .
Cited – Regina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
Cited – Campaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
Cited – Bubbins v United Kingdom ECHR 17-Mar-2005
The deceased had returned home drunk, and climbed in through a window. His girlfriend saw only his legs and reported an intruder to the police. He refused to identify himself when challenged by the police and on pointing a gun from the window he was . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
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 . .
Cited – Taylor v United Kingdom ECHR 1994
. .
Cited – Banks v United Kingdom ECHR 6-Feb-2007
The applicants complained of maltreatment by prison officers in breach of article 3. The matter had been investigated by the Crown Prosecution Service which had decided not to prosecute. Civil proceedings had been raised and settled. The applicants . .
Cited – Scholes v Secretary of State for the Home Department CA 17-Oct-2006
The deceased had committed suicide whilst in prison. The judge had requested that prison should be told of the risk of self harm. The mother appealed refusal of the judge to grant a judicial review of the Home Secretary’s refusal to grant, as . .
Cited – McShane v The United Kingdom ECHR 28-May-2002
HER Judgment (Merits and just satisfaction) Violation of Art. 2; No violation of Art. 6-1; No violation of Art. 14; No violation of Art. 13; Failure to comply with obligations under Article 34
The deceased . .
Cited – Grigoriades v Greece ECHR 25-Nov-1997
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; No violation of Art. 7; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings . .
Cited – McBride v United Kingdom ECHR 2006
. .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited by:
Cited – Smith 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 . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – Secretary 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 . .
Cited – Smith, 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.
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Cited – Letts, 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 . .
Cited – Tyrrell 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 . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Coroners, Human Rights
Leading Case
Updated: 01 November 2021; Ref: scu.266539
Rayment v Ministry of Defence: QBD 18 Feb 2010
The claimant sought damages alleging harassment by officers employed by the defendant. An internal investigation had revealed considerable poor behaviour by the senior officers, and that was followed by hostile behaviour. The defendant had put up pornographic pictures in the room only used by the claimant, and they were directed at her.
Held: The claim for damages succeeded. The behaviour of the officer amounted to harassment, the defendant knew of it and it was not controlled or stopped.
Nicola Davies J
[2010] EWHC 218 (QB)
Bailii
Protection from Harassment Act 1997
England and Wales
Citing:
Cited – Johnstone v Bloomsbury Health Authority CA 1991
A junior doctor sought an injunction against the defendant health authority from being required to work excessive hours despite the terms of his contract. He had become ill as a result of inadequate sleep and sought damages in that respect. Implied . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – Veakins v Kier Islington Ltd CA 2-Dec-2009
The claimant alleged that her manager at work had harassed her. The court, applying Conn, had found that none of the acts complained of were sufficiently serious to amount to criminal conduct, and had rejected the claim.
Held: The claimant’s . .
Cited – Ferguson v British Gas Trading Ltd CA 10-Feb-2009
Harassment to Criminal Level needed to Convict
The claimant had been a customer of the defendant, but had moved to another supplier. She was then subjected to a constant stream of threatening letters which she could not stop despite re-assurances and complaints. The defendant now appealed . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Cited – Hammond v International Network Services (UK) Ltd and Another CA 15-Sep-2005
Leave application . .
Adopted – Hammond v International Network Services UK Ltd QBD 1-Nov-2007
Peter Coulson QC J said that in order to establish harassment under the 1997 Act, there must be conduct:
i) which occurs on at least two occasions;
ii) which is targeted at the claimant;
iii) which is calculated in an objective sense . .
Cited – Helen Green v DB Group Services (UK) Ltd QBD 1-Aug-2006
The claimant sought damages from her former employers, asserting that workplace bullying and harassment had caused injury to her health. She had had a long term history of depression after being abused as a child, and the evidence was conflicting, . .
Cited – Sutherland v Hatton; Barber v Somerset County Council and similar CA 5-Feb-2002
Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
Held: Employers have a duty to take reasonable care for the safety of their employees. There are . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Armed Forces
Updated: 01 November 2021; Ref: scu.401651
Secretary of State for Defence v MS: UTAA 22 Jan 2010
War pensions and armed forces compensation – Procedure
[2010] UKUT 14 (AAC)
Bailii
England and Wales
Benefits, Armed Forces
Updated: 01 November 2021; Ref: scu.410594
TL v Secretary of State for Defence: UTAA 22 Oct 2013
War pensions and armed forces compensation – Armed Forces Compensation Scheme
[2013] UKUT 522 (AAC)
Bailii
England and Wales
Benefits, Armed Forces
Updated: 01 November 2021; Ref: scu.518745
Hassan v The United Kingdom (GC): ECHR 16 Sep 2014
Grand Chamber – The applicant alleged that his brother was arrested and detained by British forces in Iraq and was subsequently found dead in unexplained circumstances. He complained under Article 5-1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.
Held: ‘the powers of internment under the Third and Fourth Geneva Conventions, relied on by the Government as a permitted ground for the capture and detention of Tarek Hassan, are in direct conflict with Article 5 – 1 of the Convention. The Court does not have any legitimate tools at its disposal, as a court of law, to remedy this clash of norms. It must therefore give priority to the Convention, as its role is limited under Article 19 to ‘[ensuring] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto’. By attempting to reconcile the irreconcilable, the majority’s finding today does not, with respect, reflect an accurate understanding of the scope and substance of the fundamental right to liberty under the Convention, as reflected in its purpose and its historical origins in the atrocities of the international armed conflicts of the Second World War.’
Dean Spielmann, P
29750/09 – Grand Chamber Judgment, [2014] ECHR 936, [2014] ECHR 1162
Bailii, Bailii
European Convention on Human Rights
Human Rights
Human Rights, Coroners, Armed Forces, News
Updated: 01 November 2021; Ref: scu.536666
Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith: HL 12 Jul 1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when seeking to sever the valid from the invalid where part of subordinate legislation, the RAF Greenham Common Byelaws, was held to be ultra vires the enabling statute.
The fact that the invalid feature of the byelaw could not be excised with a blue pen did not preclude severance. What precluded it was that, if the byelaw was so construed as to allow the 62 commoners to enter the land, the legislative purpose behind it would be undermined.
The House set out a test of ‘substantial severability’ which the byelaws failed. Lord Bridge said: ‘When a legislative instrument made by a law-maker with limited powers is challenged, the only function of the court is to determine whether there has been a valid exercise of that limited legislative power in relation to the matter which is the subject of disputed enforcement. If a law-maker has validly exercised his power, the court may give effect to the law validly made. But if the court sees only an invalid law made in excess of the law-maker’s power, it has no jurisdiction to modify or adapt the law to bring it within the scope of the law-maker’s power. These, I believe, are the basic principles which have always to be borne in mind in deciding whether legislative provisions which on their face exceed the law-maker’s power may be severed so as to be upheld and enforced in part.
The application of these principles leads naturally and logically to what has traditionally been regarded as the test of severability. It is often referred to inelegantly as the ‘blue pencil’ test. Taking the simplest case of a single legislative instrument containing a number of separate clauses of which one exceeds the law-maker’s power, if the remaining clauses enact free-standing provisions which were intended to operate and are capable of operating independently of the offending clause, there is no reason why those clauses should not be upheld and enforced. The law-maker has validly exercised his power by making the valid clauses. The invalid clause may be disregarded as unrelated to, and having no effect upon, the operation of the valid clauses, which accordingly may be allowed to take effect without the necessity of any modification or adaptation by the court. What is involved is in truth a double test. I shall refer to the two aspects of the test as textual severability and substantial severability. A legislative instrument is textually severable if a clause, a sentence, a phrase or a single word may be disregarded, as exceeding the law-maker’s power, and what remains of the text is still grammatical and coherent. A legislative instrument is substantially severable if the substance of what remains after severance is essentially unchanged in legislative purpose, operation and effect. ‘ and ‘The test of textual severability has the great merit of simplicity and certainty. When it is satisfied the court can readily see whether the omission from the legislative text of so much as exceeds the law-maker’s power leaves in place a valid text which is capable of operating and was evidently intended to operate independently of the invalid text. But I have reached the conclusion, though not without hesitation, that a rigid insistence that the test of textual severability must always be satisfied if a provision is to be upheld and enforced as partially valid will in some cases . . have the unreasonable consequence of defeating subordinate legislation of which the substantial purpose and effect was clearly within the law-maker’s power when, by some oversight or misapprehension of the scope of that power, the text, as written, has a range of application which exceeds that scope. It is important, however, that in all cases an appropriate test of substantial severability should be applied. When textual severance is possible, the test of substantial severability will be satisfied when the valid text is unaffected by, and independent of, the invalid. The law which the court may then uphold and enforce is the very law which the legislator has enacted, not a different law. But when the court must modify the text in order to achieve severance, this can only be done when the court is satisfied that it is effecting no change in the substantial purpose and effect of the impugned provision.’
Lord Bridge, Lord Griffiths, Lord Oliver and Lord Goff
[1990] 2 AC 783, Times 13-Jul-1990, [1988] UKHL 11
Bailii
Military Lands Act 1892
England and Wales
Citing:
Cited – Rex v Company of Fishermen of Faversham 1799
Lord Kenyon CJ discussed the validity of a byelaw: ‘With regard to the form of the byelaw indeed, though a byelaw may be good in part and bad in part, yet it can be so only where the two parts are entire and distinct from each other.’ . .
Cited – Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co 1910
The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest . .
Cited – The Employers’ Liability Cases 1908
(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was . .
Cited – Illinois Central Railroad Co v McKendree 1906
(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that . .
Cited – Strickland v Hayes CA 12-Feb-1896
A by-law made by a county council under s 16 of the 1888 Act, was in the following terms: ‘No person shall in any street or public place, or on land adjacent thereto, sing or recite any profane or obscene song or ballad, or use any profane or . .
Cited – Regina v Lundie QBD 1862
A byelaw provided: ‘if any person shall stock or depasture, inter alia, a vicious horse on any part of the common pastures, then, and in every such case, the person or persons so offending, and the owner or owners of the said stock and cattle, shall . .
Cited by:
Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Cited – Commissioner of Police v Davis PC 1994
(Bahamas) Certain statutory provisions relating to drug offences infringed the Constitution of The Bahamas. A question then arose on the severability of one of the offending statutory provisions, section 22(8) of the Dangerous Drugs Act. This . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – National Association of Health Stores and Another, Regina (on the Application of) v Department of Health CA 22-Feb-2005
Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
Cited – Regina v Warwickshire County Council ex parte Powergen Plc CA 31-Jul-1997
The council as highway authority had objected to a development on the grounds of road safety. The application was subsequently approved by the Secretary of State, but the Council sought to maintain its safety objection.
Held: The highway . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Cited – T 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 . .
Cited – Hemming (T/A Simply Pleasure) and Others, Regina (on The Application of) v Westminster City Council SC 19-Jul-2017
The claimant challenged fees which were charged to the respondents on applying to Westminster City Council for sex shop licences for the three years ended 31 January 2011, 2012 and 2013 and which included the council’s costs of enforcing the . .
Lists of cited by and citing cases may be incomplete.
Land, Constitutional, Armed Forces
Leading Case
Updated: 01 November 2021; Ref: scu.187749
Times Newspapers Ltd and others v Regina and others: CMAC 24 Oct 2008
Anonymity not to be by secret trial
The newspaper appealed against an order for the defendant soldiers’ trial to be held in camera.
Held: Section 94(2) could not be used to provide anonymity. The court relied on its common law powers under which: ‘for us to be entitled to make any order for anonymity for all or any of the soldiers we must be satisfied either that the administration of justice would be seriously affected were we not to grant anonymity, or that there is a ‘real and immediate’ risk to the life of any of the soldiers were anonymity not granted. ‘ It was correct for the names of all but one of the soldiers to be withheld.
Latham LJ, Mackay J, King J
[2008] EWCA Crim 2396, [2009] 1 WLR 1015
Bailii
Army Act 1955 94(2) 103(2)(nn), Contempt of Court Act 1981 11
England and Wales
Citing:
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Regina v Evesham Justices, ex parte McDonnagh QBD 1988
The court considered the existence of a power in the magistrates court to order a hearing to be held in camera and referred to section 11 of the 1981 Act. Watkins LJ said: ‘However, I am bound to say that I am impressed with the argument that the . .
Cited – Trinity Mirror and Others, Regina (on the Application Of) v Croydon Crown Court CACD 1-Feb-2008
The defendant had pleaded guilty in the Crown Court to 20 counts of making or possessing child pornography. No direction was made for withholding the defendant’s identity in court, but the Crown Court made an order in the interest of the defendant’s . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – In re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
Cited – Regina v Reigate Justices ex parte Argus Newspapers and Larcombe 1983
The court considered an application by the defendant, a ‘supergrass’ for his trial to be held in camera.
Held: Such an order was possible but should only be made if it was the only way of protecting the defendant. . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Armed Forces, Media
Updated: 01 November 2021; Ref: scu.277149
Nicholas 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 infringed her human rights because of the lack of security of tenure. Schedule 1 of the 1988 Act excluded such arrangements from becoming assured tenancies.
Held: The claimant’s apppeal failed. The MoD could justify disadvantageous treatment on the basis that security of tenure for service personnel would interfere with military effectiveness (especially if it prevented rapid redeployment of personnel); would inhibit the MoD in its function of providing housing for service personnel; and would require it to rent accommodation locally from the private sector, which would be an unnecessary drain on the public purse.
Lord Dyson MR, Pitchford, Lewison LJJ
[2015] EWCA Civ 53, [2015] 1 WLR 2116, [2015] HLR 25
Bailii
European Convention on Human Rights 8 14, Housing Act 1988
England and Wales
Citing:
Cited – Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
Cited – Larkos v Cyprus ECHR 18-Feb-1999
The applicant had rented a house from the government, but was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Secretary of State for the Home Department v Nasseri HL 6-May-2009
The applicant had claimed asylum after fleeing Afghanistan to Greece and then to the UK. On the failure of his application, he would be returned to Greece, but objected that he would thence be returned to Afghanistan where his human rights would be . .
Cited – 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 . .
Cited – T 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 . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Appeal from – Niholas v Secretary of State for Defence ChD 1-Aug-2013
The claimant had been the wife of a military officer, and occupied a property licensed to him by the defendant. They divorced and he left, and she now resisted grant of possession to the defendant.
Held: The claimant failed. However, there was . .
Cited by:
See Also – Secretary of State for Defence v Nicholas ChD 24-Aug-2015
Application to set aside an order granting the Secretary of State for Defence, the claimants in these proceedings, permission to issue a written possession. . .
Cited – Watts v Stewart and Others CA 8-Dec-2016
The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security.
Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs . .
Lists of cited by and citing cases may be incomplete.
Housing, Armed Forces, Human Rights, Discrimination
Updated: 01 November 2021; Ref: scu.542247
Hottak and Another, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs and Another: CA 9 May 2016
Appeal against refusal of judicial review of decision not to provide protection of Afghan nationals who had assisted armed forces as transalators. A declaration had been granted but the decision had not been quashed.
Held: The appeal failed. The Divisional Court’s decision to do no more than grant declaratory relief was an exercise of the court’s discretion which could not be faulted. Section 39(2) of the 2010 Act could not be extended in its ambit to cover the employment of the claimants.
Arden, David Richards LJJ, Sir Colin Rimer
[2016] EWCA Civ 438, [2016] WLR(D) 243
Bailii, WLRD
Equality Act 2010 39(2)
England and Wales
Citing:
Appeal from – Hottak and Another, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs and Another Admn 8-Jul-2015
‘The claimants are both Afghan nationals who served as interpreters with the British Forces in Afghanistan. There are two policies in place to provide protection and benefits to Afghan nationals who worked for the British Government in Afghanistan. . .
Lists of cited by and citing cases may be incomplete.
Immigration, Armed Forces, Discrimination
Updated: 01 November 2021; Ref: scu.563251
Kilinc And Others v Turkey: ECHR 7 Jun 2005
kilinc_turkeyECHR05
A state authority may have a positive obligation to prevent foreseeable suicides amongst conscripts to its armed forces.
40145/98, [2005] ECHR 367
Worldlii, Bailii
European Convention on Human Rights 2
Cited by:
Cited – Savage 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 . .
Cited – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Armed Forces
Updated: 01 November 2021; Ref: scu.227279
Regina v Boyd, Hastie, Spear (Courts Martial Appeal Court), Regina v Saunby, Clarkson, English, Williams, Dodds, and others: HL 18 Jul 2002
Corts Martial System Complant with Human Rights
The applicants were each convicted by courts martial of offences under civil law. They claimed that the courts martial were not independent tribunals because of the position of the president of the court, and that it was wrong to try a serviceman by court martial an offence committed in the UK or abroad.
Held: The law laid down no rules to settle where a serviceman should be tried, but those involving service property or personnel would normally be dealt with by a courts martial, and where no such interests were involved, by a civil court. This was not unfair. The Presidents of the courts martial were senior officers reaching the end of their career. They had permanent positions, and sought no further advancement. They were independent. The lesser duties of lower court officers meant that the court could properly rely upon them to fulfil their oaths, and they were impartial. The system had been substantially improved, and was now compliant.
Lord Bingham of Cornhill observed: ‘Officers will appreciate, better than anyone, that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny. In the absence of any evidence at all to support it, I could not accept the suggestion that any modern officer would, despite the oath he has taken, exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so.’
Lord Bingham of Cornhill, Lord Steyn, Lord Hutton, Lord Scott of Foscote and Lord Rodger of Earlsferry
Times 19-Jul-2002, Gazette 19-Sep-2002, [2002] UKHL 31, [2003] 1 AC 734, [2002] 3 All ER 1074, [2002] ACD 97, [2002] HRLR 40, [2002] 3 WLR 437, [2002] HRLR 43, [2003] 1 Cr App R 1
House of Lords, Bailii
Army Act 1955 70, Air Force Act 1955 70, European Convention on Human Rights, Courts-Martial (Army) Rules 1997 (SI 1997/169)
England and Wales
Citing:
Cited – Morris v The United Kingdom ECHR 26-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to general structure of court martial system; No violation of Art. 6-1 with regard to specific complaints; No violation of Art. . .
Approved – Findlay v The United Kingdom ECHR 25-Feb-1997
The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had . .
Appeal from – Regina v John Spear, Philip Hastie and David Morton Boyd CMAC 15-Jan-2001
The fact that the President of a Court Martial was appointed within the same authority as was prosecuting, did not necessarily mean that the tribunal was not impartial. Such officers were typically appointed at the end of their careers, and they . .
Cited by:
Cited – PD, 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 . .
Appealed to – Regina v John Spear, Philip Hastie and David Morton Boyd CMAC 15-Jan-2001
The fact that the President of a Court Martial was appointed within the same authority as was prosecuting, did not necessarily mean that the tribunal was not impartial. Such officers were typically appointed at the end of their careers, and they . .
Cited – Regina v Dundon CMAC 18-Mar-2004
The defendant had been convicted under a system of trial later confirmed not to be compliant with the need for a fair trial.
Held: The judge advocate in this trial had been a serving officer. Unless the positive obligation to show an . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
Cited – Appleyard, Regina v CACD 17-Oct-2005
Resumed hearing of appeal against conviction at a court martial – suggestions that directions given by the judge advocate on duress were defective rejected. Now consideration on words used to jury as to attempts to reach a unanimous verdict.
Crime, Armed Forces, Human Rights
Leading Case
Updated: 01 November 2021; Ref: scu.174397
Marshall and Others v Deputy Governor of Bermuda and Others: PC 24 May 2010
marshall_dgPC10
(Bermuda) The claimants challenged their recruitment by conscription to the Bermuda Regiment on several different grounds. The issues now were whether conscription was lawful only where volunters were insufficient, and whether the acceptance of woment should be considered before conscription was applied.
Held: The appeals failed. The Regiment did accept women volunteers. The statute requiring non-discrimination should not be read to treat the offer of employment as a detriment. It had already been found as a fact twice that the Governor had taken reasonable steps to recruit volunteers, and the Board would not normally provide a third consideration of a factual issue, but the claimant said that these decisions had been made against a lack of candour by the respondent with the courts. In these circumstances where a review had not called for any action from the respondent, the duty of candour would not be created unless the claimant had satisfied its own evidential burden. The duty of candour could not be used to transfer the burden of proof where a claimant could itself satisfy that duty.
Lord Phillips, Lord Saville, Lady Hale, Lord Brown, Lord Mance
[2010] UKPC 9, [2010] WLR (D) 133
Bailii, WLRD
Citing:
Cited – Minister of Home Affairs v Fisher PC 1979
Respect must be paid to the language which has been used in a constitutional statute and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation . .
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Cited – Regina v Lancashire County Council ex parte Huddleston CA 1986
The respondent council had failed to allocate a university student grant to the claimant and the principle was directed at the duty of that authority to state clearly the reasons for its refusal and the particular factors that had been taken into . .
Cited – Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others PC 30-Jul-1946
(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity . .
Cited – The Prime Minister of Belize, The Attorney General of Belize v Vellos, Dawson and Others PC 24-Mar-2010
(Belize) Challenge was made to an Act removing certain constititutional rights which Act was passed without a referendum. The Act amending the constitution to require further amendments to follow a referendum did not itself follow the constitutional . .
Cited – Regina v Civil Service Appeal Board, Ex parte Cunningham CA 1991
The court considered the effect of a disciplinary board failing to give reasons. The absence of any right to appeal may be a factor in deciding that reasons should be given. If it is ‘important that there should be an effective means of detecting . .
Cited – Thompson Ltd and Another v The Bermuda Dental Board PC 9-Jun-2008
(Bermuda) . .
Cited – Director of Public Prosecutions v Hurnam PC 25-Apr-2007
(Mauritius) The Board will not consider a challenge to a finding of fact which has already been tested in two courts below. . .
Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Lists of cited by and citing cases may be incomplete.
Commonwealth, Armed Forces
Updated: 31 October 2021; Ref: scu.416032
Jordan 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 circumstances of the deaths had not been subject to cross examination.
Held: The right to life is the most fundamental of human rights, and no derogation is to be allowed outside times of war. Where the circumstances of a death are exclusively within the power of the authorities, the burden of proof could be regarded as falling on the authorities. The right could be infringed by a failure to investigate such deaths properly. The inadequacies were such as to lead the court to conclude that that the right to life had been infringed. ‘there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.’
Times 18-May-2001, 24746/94, 37715/97, 30054/96, [2001] 11 BHRC 1, [2001] 37 EHRR 52, 28883/95, (2002) 34 EHRR 20, [2001] ECHR 323, [2001] ECHR 324, [2001] ECHR 325, [2001] ECHR 327, [2001] ECHR 328, [2001] ECHR 329, [2001] ECHR 330
Worldlii, Worldlii, Worldlii, Bailii, Bailii, Bailii, Bailii
European Convention on Human Rights 2
Human Rights
Citing:
See also – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited by:
Cited – Regina (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 . .
Cited – Khan, Regina (on the Application of) v Secretary of State for Health CA 10-Oct-2003
The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There . .
Cited – Amin, 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 . .
Cited – Regina (Wright) v Secretary of State for the Home Department Admn 2001
A serving prisoner suffered a severe asthmatic attack in his cell and died. An inquest was held at which the family of the deceased were present, but unrepresented for want of legal aid. There was no inquiry into the quality of the medical treatment . .
See Also – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – 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.
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – Three 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 . .
Cited – Regina 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: . .
Cited – D, 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 . .
Cited – Takoushis, 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 . .
Cited – D, 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 . .
Cited – Gentle, 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 . .
Cited – Smith 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 . .
Cited – JL, 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 . .
Cited – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
See Also – McKerr v United Kingdom; Action of the Security Forces in Northern Ireland ECHR 17-Apr-2009
. .
Cited – Smith, 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.
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Tyrrell 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 . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Coroners, Armed Forces
Leading Case
Updated: 31 October 2021; Ref: scu.166103
Smith and Others v The Ministry of Defence: SC 19 Jun 2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the soldiers had been found to be outwith the jurisdiction, and by the respondent that it owed a duty of care within a battlefield situation.
Held: The soldiers were within the jurisdiction, and the duty of care was owed. The cases could proceed to trial.
Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Carnwath
[2013] UKSC 41, [2013] WLR(D) 239, [2014] AC 52, [2013] 4 All ER 794, [2014] 1 AC 52, [2013] 3 WLR 69, [2013] HRLR 27, [2014] PIQR P2
Bailii, Bailii Summary, SC, SC Summary, WLRD
European Convention on Human Rights 2, Armed Forces Act 2006 367(1)
England and Wales
Citing:
Cited – Gentle, 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 . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – Issa And Others v Turkey ECHR 16-Nov-2004
Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Al-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
Cited – Smith, 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.
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
Cited – WM v Denmark ECHR 14-Oct-1992
(Commission) The applicant lived in the German Democratic Republic (‘DDR’). He wished to move to the Federal Republic of Germany, but the DDR authorities refused him permission. At 1115 on 9 September 1988, together with 17 other DDR citizens, he . .
Cited – Gentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
Cited – Andrejeva v Latvia ECHR 18-Feb-2009
(Grand Chamber) The concept of jurisdiction for the purposes of article 1 reflects that term’s meaning in public international law and is closely linked to the international responsibility of the state concerned. . .
Cited – Hirsi Jamaa v Italy ECHR 23-Feb-2012
The court was asked whether the asylum seekers were subject to the jurisdiction of Italy while they were detained on the ship flying the Italian flag.
Held: The court need not concern itself with the question whether the state is in a position . .
Cited – Edwards and Others v The Attorney General of Canada PC 18-Oct-1929
(Canada) A constitutional Act act should not be interpreted narrowly or technically. Rights in conventions, treaties and like instruments are interpreted like a ‘living tree capable of growth and expansion within its natural limits.’ (Lord Sankey . .
Cited – W v Ireland ECHR 28-Feb-1983
Admissibility – Commission – Article 1 of the Convention : The High Contracting Parties are bound to guarantee the rights and freedoms set forth in the Convention in connection with all acts or omissions of their agents, even where such public . .
Cited – Vearncombe v Germany and United Kingdom ECHR 1989
. .
Cited – Loizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited by:
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – Robinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.510917
Secretary of State for Defence v Carver: Admn 28 May 2004
[2004] EWHC 1272 (Admin)
Bailii
England and Wales
Updated: 26 October 2021; Ref: scu.197837
Armstrong, Regina v: CACD 1 Feb 2012
(Courts Martial Appeal Court) If in the military courts a judge did not approve of a course that a military prosecutor intended to take the proper course for the judge was to ask for the matter to be referred either to the Director of Service Prosecutions or to the Attorney General, as might be appropriate.
Sir John Thomas P, Griffith Williams, Openshaw JJ
[2012] EWCA Crim 83, [2012] WLR(D) 22
Bailii, WLRD
England and Wales
Updated: 25 October 2021; Ref: scu.450557
Al-Skeini and Others v The United Kingdom: ECHR 7 Jul 2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. The Chamber divided the general principles relevant to jurisdiction into three distinct categories: state agent authority and control; effective control over an area; and the Convention legal space.
Held: , Jurisdiction under article 1 is ‘primarily territorial’, but there are certain recognised exceptions one of which is in relation to the acts of diplomatic and consular agents which may amount to an exercise of jurisdiction ‘when these agents exert authority and control over others’
‘. . it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others (Bankoviae, cited above, paragraph 73; see also X v Federal Republic of Germany, No. 1611/62, Commission decision of 25 September 1965, Yearbook of the European Convention on Human Rights, vol. 8, pp. 158 and 169; X v the United Kingdom, no. 7547/76, Commission decision of 15 December 1977; WM v Denmark, no. 17392/90, Commission decision of 14 October 1993).’
Jean-Paul Costa, P
55721/07, [2011] ECHR 1093, 30 BHRC 561, (2011) 53 EHRR 18
Bailii
European Convention on Human Rights
Human Rights
Citing:
At Admn – Al Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another Admn 14-Dec-2004
Several dependants of persons killed in Iraq by British troops claimed damages.
Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad . .
At CA – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
At HL – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited by:
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
Cited – Long, Regina (on The Application of) v Secretary of State for Defence Admn 15-Jul-2014
The claimant’s son had been one of six soldiers of the Royal Military police to have been murdered by an armed mob attacking a police station in Iraq in 2003. The said that their deaths had not been properly or sufficiently investigated. The corone . .
Cited – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 4-Feb-2013
The claimant was facing trial in Bali which would eventually lead to a sentence of death. She complained of inadequate legal assistance before and at the trial. She had been represented by a local lawyer, paid with funds (andpound;5,000) raised by . .
Cited – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 22-May-2013
The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for hr appeal, and now . .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Cited – Ismail, Regina (on The Application of) v Secretary of State for The Home Department SC 6-Jul-2016
The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were . .
Cited – Privacy 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.441608
Coyne v The United Kingdom: ECHR 24 Sep 1997
The Court Martial court system was unfair, because the convening officer fulfilled too many roles in the process to allow a fair trial.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings
Times 24-Oct-1997, 25942/94, [1997] ECHR 73
Worldlii, Bailii
Armed Forces Act 1996
Human Rights
Updated: 09 September 2021; Ref: scu.165543
Secretary of State for Defence v Hulme: CA 19 Nov 2003
The dispute arose from the treatment of a claim by the respondent, a service widow, for an Attributable Family Pension under the Armed Forces Pension Scheme. AFPS evolved as an occupational pension scheme for the benefit of the armed forces generally, with provisions for age-related retirement pensions, as well as for attributable and non-attributable invaliding and death benefits.
This case turns on the interpretation of the relevant provisions of a prerogative instrument, the Queen’s Regulations for the Royal Air Force (the QR-RAF), which relate to the determination of the issue whether the death or injury, in respect of which a pension is claimed, was ‘attributable to service.’ Similar provisions are contained in other prerogative instruments for each of the other two branches of the armed forces.
Lord Justice Mummery Lord Justice Sedley Mr Justice Munby
[2003] EWCA Civ 1611
Bailii
England and Wales
Updated: 29 August 2021; Ref: scu.188106
Secretary of State for Defence v Pensions Ombudsman: CA 19 Nov 2003
A member of the Armed Forces had died whilst mountaineering. The Department of Social Security had decided that the death was attributable to his service for the purposes of the war pension scheme. The Ombudsman had held himself bound by that decision in the context also of entitlement to a family pension under the armed forces pension scheme.
Held: It was a condition of the exercise of the Defence Council panel, that a decision had been made by the Secretary of State for Social Services. It was neither necessary nor permissible for the panel to repeat the exercise.
Mummery, Sedley, LJJ, Munby J
Times 27-Nov-2003, Gazette 22-Jan-2003
Queen’s Regulations for the Royal Air Force 3090(1)
England and Wales
Citing:
Appeal from – Secretary of State for Defence v Pensions Ombudsman and another ChD 4-Apr-2003
A member of the armed forces had died. The Department of Social Services had decided that his death was attributable to service for the purposes of the War Pension Scheme. The Defence Council sought to determine again whether his widow was entitled . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.188379
Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another: SC 25 Nov 2015
The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in Selangor.
Held: A requirement for a public or other inquiry was not imposed. (Baroness Hale of Richmond DPSC dissenting).
In the case of a death before the date on which the relevant state contracted to the Convention, two criteria must be satisfied before the article 2 investigation duty can arise, namely (i) relevant ‘acts or omissions’ after the critical date, and (ii) a ‘genuine connection’ between the death and the critical date. However the second criterion may be finessed where it is necessary to underpin ‘the underlying values of the Convention’. The evens had taken place before the Convention and there was no supervening event to create any obligation after the Convention came into effect. Customary International law had not developed to impose such an obligation, and even if it had, that could not be incorporated into our common law so as to displace clear statute obligations.
The Court considered the incorporation of customary international law into our own law: ‘Even if this conclusion turned out to be wrong, and it is now a principle of customary international law that a state must investigate deaths such as the Killings, even though they occurred as long ago as 1948, it would not be right to incorporate that principle into the common law. Parliament has expressly provided for investigations into deaths (i) through the coroners’ courts in the Coroners and Justices Act 2009, and its predecessors, and (ii) through inquiries in the 2005 Act, and its subject-specific predecessor statutes. It has also effectively legislated in relation to investigations into suspicious deaths through the incorporation of article 2 in the 1998 Act. In those circumstances, it appears to be quite inappropriate for the courts to take it onto themselves, through the guise of developing the common law, to impose a further duty to hold an inquiry, particularly when it would be a duty which has such potentially wide and uncertain ramifications, given that it would appear to apply to deaths which had occurred many decades – even possibly centuries – ago.’
An inquiry into the proportionality of a decision should not be confused with a full merits review: ‘a review based on proportionality is not one in which the reviewer substitutes his or her opinion for that of the decision-maker. At its heart, proportionality review requires of the person or agency that seeks to defend a decision that they show that it was proportionate to meet the aim that it professes to achieve. It does not demand that the decision-maker bring the reviewer to the point of conviction that theirs was the right decision in any absolute sense.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Hughes
[2015] UKSC 69, [2016] AC 1355, [2015] 3 WLR 1665, [2015] WLR(D) 487, 40 BHRC 228, [2016] HRLR 2, UKSC 2014/0203
Bailii, WLRD, Bailii Summary, SC, SC Summary
European Convention on Human Rights 2, Inquiries Act 2005 1, Human Rights Act 1998, Coroners and Justices Act 2009
England and Wales
Citing:
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
At first instance – Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another Admn 4-Sep-2012
It was said that a squad of the British army had caused the deaths of 24 civilians in 1948 in Batang Kali (now part of Malaysia.
Held: No inquiry was required. It was a matter of discretion, and there were no sustainable reasons for . .
Appeal from – Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another CA 19-Mar-2014
In 1948, there had been an incident in what later became part of Malaysia, in a counter insurgency patrol, when 24 civilians were said to have been killed by a patrol from the Scots Guards. The claimant now appealed against the refusal of a further . .
Cited – McCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
Cited – Silih v Slovenia ECHR 9-Apr-2009
(Grand Chamber) Article 2 imposes, in certain circumstances, a freestanding obligation in relation to the investigation of a death which applied even where the death itself had occurred before the member state ratified the Convention.: ”The court . .
Cited – Janowiec And Others v Russia ECHR 21-Oct-2013
ECHR Grand Chamber – Article 3
Inhuman treatment
Positive obligations
Alleged failure adequately to account for fate of Polish prisoners executed by Soviet secret police at Katyn in 1940: no . .
Cited – Blecic v Croatia ECHR 8-Mar-2006
The applicant alleged that her rights to respect for her home and to peaceful enjoyment of her possessions had been violated on account of the termination of her specially protected tenancy.
Held: Ratione temporis, the court had had no . .
Cited – Brecknell v The United Kingdom ECHR 27-Nov-2007
Allegations had been made about police collusion with killings in Northern Ireland.
Held: Where there was credible information as to a possible perpetrator of an unlawful killing, there was a duty to investigate that evidence. Here the . .
Cited – Varnava And Others v Turkey ECHR 18-Sep-2009
(Grand Chamber0 Turkey had failed to investigate the disappearance of individuals in Northern Cyprus in 1974. Turkey had ratified the Convention in 1954, but had only recognised the right of petition in 1987.
Held: (Grand Chamber) ‘the court . .
Cited – Halide Cakir And Others v Cyprus ECHR 29-Apr-2010
Admissibility. It was said of the events in Cyprus in 1974 there had been a failure by the state to investigate unlawful killings. The court repeated the Grand Chamber’s formulation of the relevant law in Silih and Varnava, and then pointed out that . .
Cited – Antonio Gutierrez Dorado and Carmen Dorado Ortiz v Spain ECHR 27-Mar-2012
. .
Cited – Jelic v Croatia ECHR 12-Jun-2014
ECHR Article 2-1
Effective investigation
Prosecution of officer with command responsibility, but not of direct perpetrators of killing: violation
Facts – In November 1991 the applicant’s . .
Cited by:
Cited – Al Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
Cited – Youssef 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 . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Cited – Bashir and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 30-Jul-2018
(Interim Judgment) The respondent asylum seekers had been rescued in the Mediterranean and taken to an RAF base in Akrotiri on Cyprus, a sovereign base area. The court was now asked whether they were entitled, or should be permitted, to be resettled . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.554900
Reprieve and Others, Regina (on The Application of) v The Prime Minister: CA 30 Jun 2021
Challenge to the decision of the Prime Minister not to hold a public inquiry into alleged complicity of British state agents in the unlawful rendition, detention and mistreatment of individuals by other states in the years following the attack on New York in September 2001. The Divisional Court (Dame Victoria Sharp P and Farbey J) determined two preliminary issues against the claimants. The claimants appeal against that determination. The issues are:
a) Does article 6(1) of the European Convention on Human Rights apply to the claim for judicial review? and, if it does,
b) Are the claimants entitled to disclosure in accordance with the standard set in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269 (‘AF (No 3)’)?
The Divisional Court answered ‘no’ to each question.
Lord Burnett of Maldon CJ
[2021] EWCA Civ 972, [2021] WLR(D) 365
Bailii, WLRD
European Convention on Human Rights 6(1)
England and Wales
Updated: 06 August 2021; Ref: scu.663471
Air Trooper Paul David Baines v Army Prosecuting Authority and Another: Admn 12 Jul 2005
Rose LJ, Field J
[2005] EWHC 1399 (Admin)
Bailii
England and Wales
Updated: 20 July 2021; Ref: scu.229734
Mousa and Others v Secretary of State for Defence and Another: Admn 16 Jul 2010
The claimants sought judicial review of the respondent in respect of alleged mistreatment when detained in Iraq. They sought a judicial inquiry.
[2010] EWHC 1823 (Admin), [2010] HRLR 33
Bailii
European Convention on Human Rights 3
England and Wales
Citing:
Cited – Edwards 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 . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
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 . .
These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.420807
Quinn v Ministry of Defence: QBNI 27 Sep 2018
[2018] NIQB 82
Bailii
Northern Ireland
Updated: 09 July 2021; Ref: scu.636914
Ashworth, Regina v: CACD 18 Jun 2019
[2019] EWCA Crim 1737
Bailii
England and Wales
Updated: 20 June 2021; Ref: scu.645440
A v Ministry of Defence and another: QBD 16 Apr 2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant English hospital.
Held: Declarations that the defendant and the English hospitals with the duty of appointment of the German doctors were responsible were refused, and that action lay in Germany. The duty to make such an appointment was particular to the Armed Forces, but was limited to the exercise of due care in selection, and did not extend to a duty in respect of the treatment itself. The duty was not non-delegable.
References: Times 16-May-2003, Gazette 03-Jul-2003
Judges: Bell J
Jurisdiction: England and Wales
This case cites:
- Appealed to – A v Ministry of Defence; Re A (A Child) CA 7-May-2004 (Times 17-May-04, Gazette 03-Jun-04, , [2004] EWCA Civ 641, [2005] QB 183)
The wife of a British Army soldier serving in Germany delivered a premature baby, ‘A’, with a German obstetrician in a German hospital. A suffered brain damage in the birth as a result of the obstetrician’s negligence. The mother claimed against the . . - Cited – Wilsons and Clyde Coal Co Ltd v English HL 19-Jul-1937 ([1938] AC 57, , [1937] UKHL 2, [1937] 3 All ER 628)
The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all . . - Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995 (Independent 30-Jun-95, Times 30-Jun-95, [1995] 2 AC 633, , [1995] UKHL 9, [1995] 2 FLR 276, [1995] 3 All ER 353, [1995] 3 WLR 152, [1995] 3 FCR 337, (1995) 7 Admin LR 705, 94 LGR 313, [1995] Fam Law 537, [1995] 3 FCR 337)
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . . - Cited – Gold v Essex County Council CA 1942 ([1942] 2 KB 293)
The hospital was held accountable for an injury caused by negligence of an employee radiographer. The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of . . - Cited – Cassidy v Ministry of Health CA 1951 ([1951] 2 KB 343)
The court considered the liability in negligence of the respondent for the negligence of doctors employed by it.
Held: The Ministry was liable for the negligence of doctors who were employed by it on contracts of service.
Denning LJ . . - Cited – Green v Fibreglass Ltd 1958 ([1958] 2 QB 245)
The law might impose a duty of care which was non-delegable. . . - Cited – Roe v Ministry of Health CA 1954 ([1954] 2 QB 66, , [1954] 2 All ER 131, [1954] 2 WLR 915, [1954] EWCA Civ 7)
The plaintiff complained that he had developed a spastic paraplegia following a lumbar puncture.
Held: An inference of negligence was rebutted. However the hospital authority was held to be vicariously liable for the acts or omissions of the . .
This case is cited by:
- Appeal from – A v Ministry of Defence; Re A (A Child) CA 7-May-2004 (Times 17-May-04, Gazette 03-Jun-04, , [2004] EWCA Civ 641, [2005] QB 183)
The wife of a British Army soldier serving in Germany delivered a premature baby, ‘A’, with a German obstetrician in a German hospital. A suffered brain damage in the birth as a result of the obstetrician’s negligence. The mother claimed against the . .
These lists may be incomplete.
Last Update: 25 October 2020; Ref: scu.182364
Britain Steamship Company Limited v The King and Others (‘The Matiana’): HL 1921
References: [1921] 1 AC 99
Coram: Lord Atkinson, Lord Wright, Viscount Cave, Lord Shaw
The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant ships convoyed, whose task was simply to sail peacefully on the course they might be directed to follow, and to keep their proper places in the convoy, became so identified with the ships of war directing and protecting them, as to be treated as members of a joint flotilla on a common enterprise. I concur with Atkin LJ in thinking that the learned judge treats as he said the sheep and the shepherd as both engaged in the operation of shepherding. The duties and proper tasks of convoying warships and the ships they convoy are respectively indicated in ss 30 and 31 of the Naval Discipline Act of 1866 . . The naval officers are to diligently perform the duties of convoying and protecting the ships they are appointed to convoy according to instructions, to defend these ships and the goods they carry without deviation, to fight in their defence if they are assailed and not to abandon them or expose them to hazard. Every master or other officer in command of any merchant or other vessel convoyed is bound to obey the commanding officer of the ships of war in all matters relating to the navigation or security of the convoy, and is also bound to take such precautions for avoiding the enemy as may be directed by this commanding officer. It does not appear, however, that this latter officer has any power to require the master, officers or crew of any merchant ship which is being convoyed to take combative action against a vessel of any kind, or to join in such action if taken by all or any of the ships of war. The roles of the two classes of ships are entirely different in nature and character. That of the ships of war is protective and if need be combative; that of the merchantmen is not at all combative in nature and character as would be their enterprise in time of peace’ Viscount Cave: ‘But in the present case the orders were a part of the convoying operation which included the choice of the route, the setting of the course, and the precautions taken on the voyage; and I do not think that the transaction can be split up and treated as in part an operation and in part something other than an operation . . .’
Lord Shaw: ‘ . . I think that the putting of a vessel under convoy, with all that that involves, is an actual and accomplished change of circumstances and an operation which is conducted in the course of hostilities or war . . .’ and ‘To all intents and purposes it is the same as if he had placed on the convoyed ship a naval officer in command as subordinate to himself. In short, so far as the direction of the course of the vessel was concerned, the merchant captain and officers were no longer in control. The naval officers were. Not only so, but the orders of the commander of the convoy were clothed with the instant sanction of force . . . I myself see great force in the view which Bailhache J. so clearly expresses to the effect that all the vessels – those acting as convoy and those under convoy – must be treated as a unity. . . . I am humbly of opinion that, so far as ships under convoy are concerned, all these ships are, along with the ships acting as convoy, under a unified command, and that command issuing from the commander of the convoy is, as part of the direction of the convoy, a military operation.’
Statutes: Naval Discipline Act 1866 30
This case cites:
- At First instance – Britain Steamship Company Limited -v- The King and Others (‘The Matiana’) CA ([1919] 2 KB 670)
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in . . - Appeal from – Britain Steamship Company Limited -v- The King and Others (‘The Matiana’) CA ([1919] 2 KB 670)
The court was asked wheter a merchant vessel was acting a a military ship when in convoy.
Held: The appeal succeeded. Warrington L.J: ‘Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy were . .
(This list may be incomplete)
This case is cited by:
- Applied – Clan Lines Steamers Ltd -v- Liverpool and London War Risks Insurance Association Ltd ([1942] 73 Ll L Rep 165)
In a collision in fog between the steamship Clan Stuart and the steamship Orlock Head, whilst both were travelling in convoy in the English Channel, the Clan Stuart was lost. It was said that the Orlock Head was engaged on a warlike operation and . . - Cited – Fogg and Ledgard -v- The Secretary of State for Defence, John Short Admn (Bailii, [2005] EWHC 2888 (Admin), Times 13-Jan-06)
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . . - Applied – Fogg and Another, Regina (on the Application of) -v- Secretary of State for Defence CA (Bailii, [2006] EWCA Civ 1270, Times 10-Oct-06)
The Secretary of State appealed an order declaring the wreck of a merchant ship lost through enemy action in 1943 when part of a convoy. He said it was wrong in law to make the declaration, having not been in military service as such when sunk even . .
(This list may be incomplete)
Last Update: 16-Dec-15 Ref: 237694
In Re Mansergh; 11 Jun 1861
References: [1861] EngR 711, (1861) 1 B & S 400, (1861) 121 ER 764
Links: Commonlii
Jurisdiction of Queen’s bench over tribunals abroad. Court martial. Military status.-I. This Court has no jurisdiction over tribunals out of the realm of England, although in countries subject to the British Crown. 2. Where the civil rights of a person in military service are affected by the judgment of a military tribunal, in which that tribunal has acted without jurisdiction, or has exceeded its jurisdiction, this Court will interfere; aliter where nothing but the military status of the party is affected by the judgmeat.-3. A. Captain in the Queen’s service, when stationed with his regiment in india, was gazetted to a majority ; and the appointment was notified in the general orders of the Commander-in-chief in India at head quarters, and in the regimental orders.
Crompton v The United Kingdom; 13 May 2008
References: [1999] ECHR 183, 42509/05
Links: Bailii
(date) Statement of Facts
Statutes: European Convention on Human Rights
This case is cited by:
- Statement of Facts – Crompton -v- The United Kingdom ECHR (42509/05, Bailii, [2009] ECHR 1659, (2010) 50 EHRR 36)
The applicant had joined the Territorial Army as a pay and accounts clerk but was made redundant. He claimed redress in respect of his redundancy from his Commanding Officer. There then followed a prolonged series of proceedings which took eleven . . - Statement of Facts – Crompton -v- The United Kingdom ECHR (Bailii, [2011] ECHR 1656, 42509/05)
Supervision of execution of final judgments. . .
Britain Steamship Company Limited v The King and Others (‘The Matiana’): CA 1919
References: [1919] 2 KB 670
Coram: Bailhache J
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in the dark under the command of a naval officer to avoid possible torpedos. The court considered whether a merchant ship had been acting when in convoy as a military vessel: ‘sailing in convoy on a chosen route and taking precautionary measures [zig-zagging] necessary because of the presence of hostile submarines had led to the vessel being stranded. It was subsequently torpedoed’.
Held: There was no negligence on the part of the ship’s master or of the naval officer. The loss was not he proximate consequence of warlike operations, and responsibilty fell on the insurers, and not the King.
This case is cited by:
- Appeal from – Britain Steamship Company Limited -v- The King and Others (‘The Matiana’) CA ([1919] 2 KB 670)
The court was asked wheter a merchant vessel was acting a a military ship when in convoy.
Held: The appeal succeeded. Warrington LJ said: ‘Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy . . - At First instance – Britain Steamship Company Limited -v- The King and Others (‘The Matiana’) HL ([1921] 1 AC 99)
The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant . . - Cited – Fogg and Ledgard -v- The Secretary of State for Defence, John Short Admn (Bailii, [2005] EWHC 2888 (Admin), Times 13-Jan-06)
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
(This list may be incomplete)
Last Update: 19-Jan-16 Ref: 237696
