Category: Human Rights

Secretary of State for the Home Department v JJ and others: Admn 28 Jun 2006

The claimants challenged the terms of restrictions placed upon them under the Act.

Judges:

Sullivan J

Citations:

[2006] EWHC 1623 (Admin)

Links:

Bailii

Statutes:

Prevention of Terroism Act 2005

Jurisdiction:

England and Wales

Citing:

Cited – MB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .

Cited by:

Appeal from – Secretary of State for the Home Department v JJ and others CA 1-Aug-2006
The applicants had challenged non-derogating control orders restricting his liberty on the basis that he was suspected of terrorist intentions. The Home Secretary appealed an order finding the restrictions to be unlawful.
Held: The Home . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
At First Instance – Secretary of State for the Home Department v JJ and others HL 31-Oct-2007
The Home Secretary appealed against a finding that a non-derogating control order was unlawful in that, in restricting the subject to an 18 hour curfew and otherwise severely limiting his social contacts, the order amounted to such a deprivation of . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 12 November 2022; Ref: scu.243046

Scholes, Regina (on the Application of) v Secretary of State for the Home Department: Admn 16 Jan 2006

The deceased had committed suicide whilst in a Young Offenders Institute. The coroner had called for a further enquiry into the way he had been sentenced. The Home Office refused a public enquiry saying that the coroner’s inquest had satisfied its human rights duties. Judicial review was now sought of that decision.
Held: The respondent argued that the claimant knew the extent of the coroner’s proposed enquiry, and had opportuniy to challenge it. The Inquest had heard evidence from the prisons service as to its policies and the estate available. The court contrasted the resources available in the limited number of secure hostels with those in young offenders institutions.

Citations:

[2006] EWHC 1 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

Cited – Regina v l Lobban Sawyers and Others, Regina v Q; Attorney General’s Reference Nos 4 and 7 Of 2002 CACD 29-Jan-2002
The appeals concerned sentences for robbery of mobile phones in public places.
Held: Such thefts had become commonplace. The court would not set out to provide sentencing guidelines, but rather to bring together existing guidance. The courts . .
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 – 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 – Plymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Prisons, Children, Human Rights, Coroners

Updated: 12 November 2022; Ref: scu.242192

O’Neill v The United Kingdom: ECHR 13 Nov 2012

Citations:

41516/10 – HECOM, [2012] ECHR 1995

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Lauchlan and Another v HM Advocate HCJ 5-Jun-2009
The appellants were charged with murder. They appealed against an extension of time given to allow the prosecution to proceed.
Held: The appeal failed. . .
See Also – HM Advocate v Lauchlan and Another SCS 17-Jul-2009
Decision as to preliminary issues raised. . .
See Also – HM Advocate v Lauchlan and Another HCJ 14-Jan-2010
. .
See Also – HM Advocate v Lauchlan and Another HCJ 2-Jul-2010
. .
See Also – Lauchlan and Another v Her Majesty’s Advocate HCJ 8-Feb-2012
. .
See Also – Lauchlan and Another v HM Advocate HCJ 19-Apr-2012
. .

Cited by:

See Also – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 12 November 2022; Ref: scu.467008

Koch v Germany: ECHR 19 Jul 2012

Article 8-1
Respect for private life
Refusal by the German courts to examine the merits of an application by a man whose wife had just committed suicide in Switzerland after having attempted unsuccessfully to obtain authorisation to purchase a lethal substance in Germany: violation
Facts – In 2004 the applicant’s wife, who was suffering from complete quadriplegia, applied to the Federal Institute for Pharmaceutical and Medical Products for authorisation to obtain a lethal dose of a drug that would have enabled her to commit suicide at home in Germany. The Institute refused and an administrative appeal by the applicant and his wife was dismissed. In February 2005 they both went to Switzerland, where the wife committed suicide with the help of an association. In April 2005 the applicant unsuccessfully brought an action to obtain a declaration that the Institute’s decisions had been unlawful. His appeals to the administrative court, administrative court of appeal and Federal Constitutional Court were declared inadmissible.
Law – Article 8
(a) Alleged violation of the applicant’s own rights – The present case had to be distinguished from cases brought before the Court by a deceased person’s heir or relative solely on behalf of the deceased, in that the applicant claimed a violation of his own rights. In spite of that difference, the conditions in which an heir or relative were entitled to bring an action on behalf of the deceased were also relevant here. The applicant and his wife had been married for 25 years and shared a very close relationship. He had accompanied her throughout her suffering, ultimately accepting and supporting her wish to end her life, and had travelled with her to Switzerland in order to fulfil that wish. Lastly, he had lodged an administrative appeal jointly with his wife and had pursued the domestic proceedings in his own name after her death. Those exceptional circumstances showed that the applicant had a strong and persisting interest in having the merits of the original case decided by the courts. Furthermore, the case concerned fundamental questions about the possibility for a patient to decide to end his or her life, such questions being of general interest and transcending the personal situations and interests of the applicant and his late wife. Having regard, in particular, to the exceptionally close relationship between the applicant and his wife, and to his immediate involvement in the fulfilment of her wish to end her days, he could claim to have been directly affected by the refusal to grant her authorisation to acquire a lethal dose of the medication. There had accordingly been an interference with his own right to respect for his private life, on account of the Federal Institute’s decision to dismiss his wife’s request and the refusal by the administrative courts to examine the substance of his action.
As regards the procedural limb of Article 8, and in particular the question whether the applicant’s own rights had been sufficiently safeguarded in the domestic proceedings, the administrative court and the administrative court of appeal had refused to examine the merits of his case on the ground that he could not rely on his own rights under domestic law or under Article 8 and that he did not have locus standi to pursue his late wife’s action after her death. Whilst the administrative court had expressed the opinion that the Federal Institute’s refusal had been legitimate and in compliance with Article 8, neither the administrative court of appeal nor the Federal Constitutional Court had examined the initial action on the merits. This refusal to examine the merits of the case had not pursued any legitimate aim. There had thus been a violation of the applicant’s right to have the merits of his complaint examined by the domestic courts.
Having regard to that finding, to the principle of subsidiarity and to the considerable margin of appreciation afforded to States in such matters in the absence of any consensus concerning the possibility for doctors to prescribe a lethal dose of medication, it was not necessary to examine the substantive limb of the applicant’s complaint.
Conclusion: violation (unanimously).
(b) Alleged violation of the applicant’s wife’s rights – The Court reiterated that the rights under Article 8 were of a non-transferrable nature and that complaints under that Article could thus not be pursued by a close relative or other successor of the person concerned. The applicant did not therefore have standing to complain of a violation of his wife’s rights and that complaint was therefore inadmissible as being incompatible ratione materiae with the Convention.
Conclusion: inadmissible (unanimously).
Article 41: EUR 2,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

Citations:

497/09, [2012] ECHR 1621, [2012] ECHR 2031, 497/09 – CLIN

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Haas v Switzerland ECHR 20-Jan-2011
The applicant was severely bipolar, and wanted to obtain a lethal dose of a drug to kill himself, but could not do so, because Swiss law required him to get a prescription, and, before he could do that, he needed a psychiatric assessment. Relying on . .

Cited by:

Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 November 2022; Ref: scu.466987

Ibrahim Gurkan v Turkey (CLIN): ECHR 3 Jul 2012

ECHR Article 6
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Participation of serving military officer in military criminal court: violation
Facts – In 2008 a military prosecutor filed an indictment against the applicant, who at the time was serving in the Turkish Navy, for wilfully disobeying a superior. A military criminal court composed of a military officer with no legal background and two military judges found the applicant guilty as charged and sentenced him to two months and fifteen days’ imprisonment.
Law – Article 6 – 1: In a previous case* in 2004 the Court had dismissed a complaint regarding the independence and impartiality of military criminal tribunals in Turkey after finding that sufficient safeguards were in place to guarantee the independence and impartiality of the members of such courts. However, in 2009 the Turkish Constitutional Court found that the domestic legislation in force at the material time did not provide sufficient safeguards against the risk of outside pressure being exerted on members of the military criminal courts. The European Court was therefore called upon to re-examine the issue. Given that participation of lay judges as such was not contrary to Article 6 of the Convention, the Court did not consider that the military officer’s lack of legal qualifications had hindered his independence or impartiality. However, he was a serving officer who remained in the service of the army and was subject to military discipline. He had been appointed to the bench by his hierarchical superiors and did not enjoy the same constitutional safeguards as the other two military judges. The military criminal court that convicted the applicant could therefore not be considered to have been independent and impartial.
Conclusion: violation (unanimously).
Article 41: Finding of a violation constituted sufficient just satisfaction.

Citations:

10987/10 – CLIN, [2012] ECHR 1997

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Ibrahim Gurkan v Turkey ECHR 3-Jul-2012
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 November 2022; Ref: scu.466986

Al Nashiri v Poland: ECHR 10 Jul 2012

ECHR Article 3
Torture
Alleged complicity in practice of rendition of persons to secret detention sites at which illegal interrogation methods were employed: communicated
Effective investigation
Alleged failure to acknowledge and investigate details of ill-treatment and enforced disappearance: communicated
[This summary also covers the communicated case of Al Nashiri v. Romania, no. 33234/12.]
The applicant, a Saudi Arabian national of Yemeni descent who is currently detained in the United States Guantanamo Bay Naval Base in Cuba due to suspicion of his involvement in certain terrorist activities, claims several violations of the Convention in relation to the alleged complicity of the respondent States in the practice within their territory by the United States Central Intelligence Agency (CIA) of ‘extraordinary rendition’.*
In his application to the Court he complains that these States, who he alleges knew and should have known about the rendition programme, the secret detention sites within their territory in which he was held, and the torture and inhuman and degrading treatment to which he and others were subjected to as part of the process, knowingly and intentionally enabled the CIA to detain him, and have refused to date to properly acknowledge or investigate any wrongdoing. He also alleges that the respondent States enabled the CIA to transfer him from their territory despite substantial grounds for believing that there was a real risk that he would be subjected to the death penalty and further ill-treatment and incommunicado detention, and that he would receive a flagrantly unfair trial.
In support of his complaints, the applicant notes that the process of extraordinary rendition has been condemned in the strongest terms by numerous international organisations – including the European Parliament, and that the circumstances surrounding these events have been the subject of various reports and investigations, including the ‘Marty Reports’ commissioned by the Council of Europe, which detail an intricate network of CIA detention and transfer in certain Council of Europe States.
Communicated under Articles 2, 3, 5, 6, 8, 10 and 13 of the Convention, and under Protocol No. 6 to the Convention.
* The apprehension and extrajudicial transfer of a person to a secret detention site for the purpose of interrogation, during which illegal methods are often employed.

Citations:

28761/11 – CLIN, [2012] ECHR 2028

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – Al Nashiri v Romania (Communicated Case) ECHR 18-Sep-2012
Statement of facts – applicant detained in Guantanamo Bay . .
See Also – Al Nashiri v Poland (Legal Summary) ECHR 24-Jul-2014
ECHR Article 3
Torture
Effective investigation
Extradition
Torture and inhuman and degrading treatment during and following applicants’ extraordinary rendition to CIA: violations
Lists of cited by and citing cases may be incomplete.

Human Rights, Extradition

Updated: 12 November 2022; Ref: scu.466982

Gunnerside Estates Limited v Terence Milner, Cynthia Mary Milner (Easements): LRA 18 Aug 2010

LRA An application to cancel a unilateral notice in respect of shooting rights on the basis that such rights interfered with the registered proprietors’ human rights under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol. Human rights found to have no relevance to the question of cancellation, but if relevant found that the shooting rights do not interfere with the Convention rights, but the cancellation would adversely affect the Convention rights of the owner of the shooting rights.

Citations:

[2010] EWLandRA 2009 – 1331

Links:

Bailii

Jurisdiction:

England and Wales

Registered Land, Human Rights

Updated: 10 November 2022; Ref: scu.467675

Jarvis v Revenue and Customs: FTTTx 1 Aug 2012

INCOME TAX – Penalty – Section 93A Taxes Management Act 1970 – late submission of partnership return – appeal submitted by a partner other than the ‘representative partner’ – whether Tribunal has jurisdiction to hear appeal – whether penalty invokes criminal head of Article 6.1 of European Convention on Human Rights – whether absence of direct right of appeal by the appellant denial of right to fair hearing – whether restrictions on right of appeal mean Tribunal is not a tribunal of ‘full jurisdiction’ for the purposes of the Convention – whether Section 93A can be construed to give effect to Convention rights

Citations:

[2012] UKFTT 483 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Taxes Management, Human Rights

Updated: 10 November 2022; Ref: scu.466105

SH (Serbia) v Secretary of State for the Home Department: CA 20 Feb 2007

There was a delay in processing the claimant’s asylum application before a decision was made to repatriate him. In the mantime he had come into a settled relationship with a woman here.

Judges:

Moses LJ

Citations:

[2007] EWCA Civ 314

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 10 November 2022; Ref: scu.251386

AH (Sudan) and Others v Secretary of State for the Home Department: CA 4 Apr 2007

Citations:

[2007] EWCA Civ 297, [2007] Imm AR 584, (2007) 151 SJLB 469

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – AH (Scope of S103A Reconsideration) Sudan IAT 19-Apr-2006
Mr Ockelton: ‘If (despite some material error of law) an issue or matter has been properly and satisfactorily dealt with in the first decision, there is no reason why further time should be spend on it in the reconsideration. Although the Tribunal . .

Cited by:

Appeal from – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 10 November 2022; Ref: scu.250984

Cheshire County Council and others v DS (Father) and others: CA 15 Mar 2007

The court granted an appeal in care proceedings, but examined the relationship between the court and local authorities. There had been a late change in the proposed care plan and an application by grandparents to be made party. Some in the authority, and the guardian, wanted a stranger adoption, but the authority and the family proposed care with family members. The judge had not made an order he did not feel was in the child’s best interests, but called on the authority to reconsider its proposal.
Held: The authority’s appeal failed. The court could not get around the fact that ‘whatever course of action this court took, the local authority had expressed itself as determined to maintain its changed plans to place all three children within the family. ‘ The matter should be re-heard in the family division by a judge also authorised to sit in the Administrative Court. This would allow the court to make further orders as required. Responsibility for making care orders is on the court, not the local authority which brings the proceedings. A local authority must prepare a care plan and keep that care plan under review and revise it when necessary. Once the court has made a final care order, responsibility passes to the local authority and neither the court nor the children’s guardian has any further role in the children’s lives. However ‘not only does the court have the duty rigorously to scrutinise the care plan and to refuse to make a care order if it does not think the plan in the child’s best interests; the court also has the right to invite the local authority to reconsider the care plan if the court comes to the conclusion that the plan – or any change in the plan – involves a course of action which the court believes is contrary to the interests of the child, and which would be likely to lead the court to refuse to make a care order if the local authority were to adhere to the care plan it has proposed. ‘
Care proceedings are only quasi-adversarial. There is a powerful inquisitorial element. They are proceedings in which the court and the local authority should both strive to achieve an order which is in the best interests of the child. There needs to be mutual respect and understanding for the different role and perspective which each has in the process. The shared objective should be to achieve a result which is in the best interests of the child.
The court was seriously disappointed at the failure of the authority to explain its actions. It had failed to reconsider its position as ordered: ‘the only reason we are interfering with the judge’s perfectly proper order is because of the unprincipled conduct of the local authority. ‘
Whilst care proceedings are pending, any ECHR issue should be dealt with in the care proceedings, not in separate proceedings under the Human Rights Act. This applies also for judicial review. It is misconceived for a guardian or parent to seek judicially to review a care plan in proceedings separate from the pending care proceedings themselves. Any consideration of the care plan and its appropriateness can and should normally be dealt with within the care proceedings.

Judges:

Thorpe LJ, Wall LJ, Hooper LJ

Citations:

Times 30-Mar-2007, [2007] EWCA Civ 232

Links:

Bailii

Statutes:

Children Act 1989

Jurisdiction:

England and Wales

Citing:

Cited – Re S and D (Child Care Powers of the Court ) CA 1995
The court considered the powers of the court in care proceedings where it did not approve the authority’s proposed care plan. The judge had made supervision orders in relation to both children coupled with an injunction restraining the mother from . .
Cited – C v Solihull Metropolitan Borough Council FD 1993
The court allowed a limited period of ‘planned and purposeful delay’ before making a care order. Ward J: ‘We have heard much, as we have prepared for the implementation of the Children Act 1989, about partnership. One of those partnerships is the . .
Cited – C-H (a Minor) (care or interim order) CA 1998
Thorpe LJ said: ‘The interdisciplinary character of the family justice system emphasises the co-operation that should exist between the court and public authority. It is, from my perception, inconceivable that there should not be reciprocal respect . .
Cited – Re S (Children: Care Plan); In re W and B (Children: Care plan) In re W (Child: Care plan) HL 14-Mar-2002
The Court of Appeal had imposed conditions upon the care plan to be implemented by the local authorities, identifying certain ‘starred’ essential milestones. The local authorities appealed.
Held: This was not a legitimate extension of the . .
Cited – In Re J (Minors) (Care: Care Plan) FD 1994
The judge had found that the threshold criteria in section 31 had been met, but the authority changed the care plan immediately before the final hearing. The guardian now appealed a final order, having proposed an interim order.
Held: Once the . .
Cited – In re V (a Child) (Care proceedings: Human Rights Claims) CA 4-Feb-2004
In a hearing where the threshold standard was at issue, a party challenged the compliance with Human Rights law of the 1989 Act. The court adjourned the case for transfer to the High Court.
Held: The correct court to hear such suggestions was . .
Cited – In re V (a Child) (Care: pre-birth actions) CA 12-Oct-2004
Immediately after a child was born, the social worker began proceedings for it to be taken into care. The judge severely criticised the actions of the social worker before the birth. The local authority now appealed against an order at the . .
Cited – Re M (Care: Challenging Decisions by Local Authority) FD 2001
Local authorities involved in care proceedings will infringe the rights of parents and other individual parties to them under both Article 6 and Article 8 of the Convention unless they conduct themselves with integrity, transparency and . .
Cited – NJ v Essex County Council and Another; In re J (Care: Assessment: Fair Trial); Re J (a child) (care proceedings: fair trial) CA 11-May-2006
The family complained that the local authority had, in assessing the need for a care order, failed to follow the guideliens set down in In Re L, leading to an infringement of their human rights.
Held: Neither in the lower court nor here had . .
Cited – Re X; Barnet London Borough Council v Y and Z FD 2006
The judge refused to endorse a local authority’s care plan, and invited the local authority to reconsider it. He criticised the local authority for taking an important decision in pending care proceedings without any warning to the guardian and . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice, Human Rights

Updated: 10 November 2022; Ref: scu.250038

Hewitt and Harman v United Kingdom: ECHR 1991

(Commission) When asking whether an action about which complaint is made is ‘according to law’, it is the quality of the law that matters rather than the form it takes which matters. As to the case of Malone, it ‘elucidated the concept of foreseeability and highlighted its importance as a safeguard against the arbitrary application of measures of secret surveillance.’

Citations:

(1991) 14 EHRR 657, (1992) 14 EHRR 657, [1989] ECHR 29

Jurisdiction:

Human Rights

Citing:

Cited – Malone v The United Kingdom ECHR 2-Aug-1984
COURT (PLENARY) The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in . .

Cited by:

Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 10 November 2022; Ref: scu.231146

Berrehab v The Netherlands: ECHR 21 Jun 1988

Family life arises ipso jure as between father and child where the child was conceived in wedlock. Divorce and separation do not bring family life between the child and the absent parent to an end, even if the divorce leads to a significant period of loss of contact

Citations:

[1988] ECHR 14, 10730/84, [1988] ECHR 14

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Singh v Entry Clearance Officer New Delhi CA 30-Jul-2004
The applicant, an 8 year old boy, became part of his Indian family who lived in England, through an adoption recognised in Indian Law, but not in English Law. Though the adoption was genuine, his family ties had not been broken in India. The family . .
Cited – Makhlouf v Secretary of State for The Home Department SC 16-Nov-2016
(Northern Ireland) The appellant (born in Tunisia) was made subject to a deportation order. He had married a UK citizen and they had a child. After moving to the UK, at various times, the relationship broke down and he was convicted of several . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 10 November 2022; Ref: scu.165013

Boujlifa v France: ECHR 21 Oct 1997

(French Text)

Citations:

[1997] ECHR 83, 25404/94, [1998] HRCD 21, (2000) 30 EHRR 419

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 10 November 2022; Ref: scu.165553

Regina v P and others: HL 19 Dec 2000

Where communications had been intercepted in a foreign country, and the manner of such interceptions had been lawful in that country, the evidence produced was admissible in evidence in a trial in England. An admission of such evidence was not an infringement of the rights to a fair trial, nor of the right to respect for private and family life. It did not breach any rule of public policy and was not unfair under section 78. Lord Hobhouse of Woodborough said: ‘the dominant principle guiding the interpretation of the provisions of the [1985] Act was the policy of preserving the secrecy of the surveillance operations to which the Act applied and, to that end, preventing as far as possible any evidence relating to such operations ever reaching the public domain’. The interceptions had been made under the laws of that country, even though one party to the conversation had been in England. The use of an intercept could interfere with article 8.2 rights, but in this case the intercepts had been lawful obtained, and the use sought to be made of it was in accordance with the original purpose, and the intercepts had been kept for no longer than necessary for that purpose. In this case, one of other parties to the conversation was to give evidence, and this must substantially perfect any issue of unfairness. The Act 1985 Act had no application, because the interceptions had not been made under it. That question was to be judged according to the laws of the country which the interception was made.
The defendants appealed against the admission in their trials of telephone intercept evidence obtained lawfully in a foreign country, but including calls to this country. They had been admitted applying Aujla after consideration as to their fairness with section 78 of the 1984 Act.
Held: The appeals were dismissed; ‘The case of Aujla was rightly decided. The decision of the ECHR in Khan shows that the coming into effect of the Human Rights Act does not invalidate in the relevant respects the decision of your Lordships’ House in that case and that s.78 is an appropriate safeguard of the fairness of the trial.’

Judges:

Lord Hobhouse of Woodborough

Citations:

Times 19-Dec-2000, Gazette 22-Feb-2001, [2002] 1 AC 146, [2000] UKHL 69, [2000] UKHL 72, [2001] 2 Cr App R 8, [2001] 2 All ER 58, [2001] 2 WLR 463

Links:

House of Lords, House of Lords, Bailii, Bailii

Statutes:

Interception of Communications Act 1985, Police and Criminal Evidence Act 1984 78, Criminal Procedure and Investigations Act 1996, European Convention on Human Rights 8 6

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Preston, Preston, Clarke Etc HL 5-Nov-1993
Telephone tapping evidence consisting of tapping records are to be destroyed after their use for the purpose obtained, but a prosecution was not within that purpose. The underlying purpose of the 1985 Act is to protect information as to the . .
Cited – Regina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
Cited – Regina v Singh and Others CACD 7-Nov-1997
The defendants appealed against a ruling allowing the admissipn in their trial of transcripts of telephone conversations. The results of the interception of a telephone call made abroad and in accordance with law of that country is admissible here. . .
Cited – Regina v Preston, Preston, Clarke Etc HL 5-Nov-1993
Telephone tapping evidence consisting of tapping records are to be destroyed after their use for the purpose obtained, but a prosecution was not within that purpose. The underlying purpose of the 1985 Act is to protect information as to the . .
Cited – Morgans v Director of Public Prosecutions HL 18-Feb-2000
Without a warrant, the police had arranged for a call logger to retain details of the calls made, including the number called, time and duration. The dialing itself was a communication, which established a connection, through which further . .
Cited – Malone v Commissioner of the Police for the Metropolis (No 2) ChD 28-Feb-1979
The court considered the lawfulness of telephone tapping. The issue arose following a trial in which the prosecution had admitted the interception of the plaintiff’s telephone conversations under a warrant issued by the Secretary of State. The . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – Klass And Others v Germany ECHR 6-Sep-1978
(Plenary Court) The claimant objected to the disclosure by the police of matters revealed during their investigation, but in this case, it was held, disclosure even after the event ‘might well jeopardise the long-term purpose that originally . .
Cited – Amann v Switzerland ECHR 16-Feb-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to interception of telephone call; Violation of Art. 8 with regard to creation and storing of information card; Preliminary objection . .
Cited – Khan v The United Kingdom ECHR 12-May-2000
Evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. The police had installed covert listening devices on private property without the knowledge or consent of the owner. UK national law did . .
Cited – Schenk v Switzerland ECHR 12-Jul-1988
The applicant had faced charges of hiring someone to kill his wife. He complained about the use of a recording of his telephone conversation with the man he hired recorded unlawfully by that man.
Held: The ECHR does not address issues about . .
Cited – Schenk v Switzerland ECHR 12-Jul-1988
The applicant had faced charges of hiring someone to kill his wife. He complained about the use of a recording of his telephone conversation with the man he hired recorded unlawfully by that man.
Held: The ECHR does not address issues about . .
Cited – Regina v Governor of Belmarsh Prison and Another Ex Parte Francis QBD 12-Apr-1995
Justices may not hear evidence from accomplices in extradition proceedings. Also foreign intercept evidence may be used in support of extradition proceedings. Extradition proceedings are not criminal proceedings as such, but may be sui generis. . .
Cited – Regina v Rasool, Choudhary CACD 5-Feb-1997
The defendants appealed against convictions for conspiracy to supply a controlled drug. . .
Cited – Teixeira De Castro v Portugal ECHR 9-Jun-1998
Mr De Castro had been the target of an unwarranted, unauthorised, unsupervised police operation in which undercover officers incited him to supply drugs. He challenged a conviction for trafficking in heroin, based mainly on statements of two police . .
Cited – Regina v Owen; Regina v Stephen CACD 11-Nov-1998
A recorded prisoner’s telephone call from prison was admissible in evidence without the defence having any right to challenge it, where the interceptor established a presumption of consent to the interception because of warnings given to prisoners. . .

Cited by:

Cited – W, Regina v (Attorney General’s reference no 5 of 2002) CACD 12-Jun-2003
Three serving police officers provided confidential information to a known criminal. The Chief Constable authorised interception of telephones at a police station, a private network. The court accepted that section 17 prevented the defence asserting . .
Cited – Attorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights

Updated: 10 November 2022; Ref: scu.88580

Perry v Chief Constable of Humberside Police: Admn 18 Oct 2012

The defendant appealed against an anti-social behaviour order. He had been a journalist, and began a private newsletter and campaign alleging amongst other things corruption in the police. He complained that his article 10 rights had been infringed.
Held: The order was quashed. Pitchford LJ said: ‘that separate issues arise out of these blogs. In the blogs, as I have made clear from the District Judge’s review of the evidence, the appellant claimed that various figures in the village had been guilty of corruption and perverting the course of justice. The appellant did not lead any evidence to support those charges, but the blogs did not incite or threaten violence or disorder. They could not reasonably have given rise to the suspicion that the appellant would resort to threats of violence or disorder. The district judge did not so find. The mere fact that a blog may contain material that is untrue or even defamatory or, as the District Judge put it, damaging to the reputation of the people of whom he spoke may justify the civil courts in making an injunction, a breach of which may be a contempt of court punishable with imprisonment, but in deciding whether or not the statutory criteria for these purposes are met, it seems to me that the District Judge put far too much weight upon the fact that the allegations which the appellant made in the blog were uncorroborated or, as he put it, ‘totally unsubstantiated’. ‘
and ‘I appreciate that District Judges in determining these applications must be allowed a wide measure of appreciation. This court should not interfere unless the order made is one which could not reasonably have been made on the evidence adduced. In my judgment, the District Judge far too readily accepted the assertion made by each of the complainants that they had suffered harassment, alarm or distress. More is required than repeating this mantra in each witness statement. It seems to me that the entries on the blog and the physical contacts such as there were between the appellant and those whom he targeted were offensive and tiresome, it is even possible that they could properly be described as amounting to anti-social behaviour but I do not think that the high threshold set by the statutory criteria was met at all.’

Judges:

Pitchford LJ, Openshaw J

Citations:

[2012] EWHC 3226 (Admin)

Links:

Bailii

Statutes:

Crime and Disorder Act 1998 1(1), Criminal Procedure Rules 64.6, European Convention on Human Rights 10

Jurisdiction:

England and Wales

Citing:

Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights, Media

Updated: 09 November 2022; Ref: scu.466541

Gaughran, Re Judicial Review: QBNI 13 Nov 2012

The claimant sought judicial review of the refusal by the Police Service of Northern Ireland to remove records of his fingerprint, a photograph and DNA sample and profiles which had been collected when he was stopped on suspicion of driving wih excess alcohol. Though later convicted, he said that the retention of these items was disproportionate.
Held: Girvan LJ noted that the Strasbourg analysis in S and Marper proceeded along the course of determining whether the interference with the individual’s article 8 rights was (a) in accordance with law, (b) pursued a legitimate aim and (c) was necessary in a democratic society. He added that question (c) involved the issue whether the retention was proportionate and struck a fair balance between the competing public and private interests. Having regard to the limited grounds upon which leave was granted, the focus of the appellant’s case was on the question of necessity and proportionality, and there was clearly a statutory power to retain the data and that the focus must be upon the proportionality of indefinite retention.

Judges:

Higgins LJ Girvan LJ and Coghlin LJ

Citations:

[2012] NIQB 88, [2014] NI 1

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Northern Ireland

Citing:

Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .

Cited by:

Appeal from – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 09 November 2022; Ref: scu.466483

MF (Article 8 – New Rules) Nigeria: UTIAC 31 Oct 2012

UTIAC Prior to the new immigration rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights.
The new immigration rules set out a number of mandatory requirements relating to claims reliant on Article 8 (‘Article 8 claims’) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met.
Whenever the new rules have application judges are obliged to consider whether an appellant can show he meets the relevant requirements (s.86(3)(a) of the Nationality, Immigration and Asylum Act 2002). Where the new rules afford some related discretion, judges are obliged to consider whether that discretion should have been exercised differently (s. 86(3)(6)). However, what judges are doing when they are conducting this exercise is simply applying the rules: the rules are the rules: see paragraph 10 Mahad [2009] UKSC 16. The fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental. The fact that as a result of these changes the rules are longer and incorporate some of the vocabulary of Article 8 makes no difference.
Because for most purposes the immigration rules must be given legal effect (see Odelola [2009] UKHL 25), their requirements for applicants making an Article 8 claim to show ‘exceptional circumstances’ or ‘insurmountable obstacles’ are to be understood as legal requirements in the same way as any other mandatory requirements of the rules.
However, the new rules only cover Article 8 claims brought under some, not all, Parts of the Rules and only accommodate certain types of Article 8 claims.
Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act ( see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person’s Convention rights (s.33(2) UK Borders Act 2007). Thus in the context of deportation and removal cases the need for a 2 stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov v Austria App no.1683/03 [2008] ECHR 546, which has been endorsed by the higher courts.
When considering Article 8 in the context of an appellant who fails under the new rules, it will remain the case, as before, that ‘exceptional circumstances’ is not to be regarded as a legal test and ‘insurmountable obstacles’ is to be regarded as an incorrect criterion.
However, as a result of the introduction of the new rules, consideration by judges of Article 8 outside the rules must be informed by the greater specificity which they give to the importance the Secretary of State attaches to the public interest. For example, the new rules set out thresholds of criminality by reference to terms of imprisonment so that Article 8 private life claims can only succeed if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds.

Judges:

Storey, Coker UTJJ

Citations:

[2012] UKUT 393 (IAC)

Links:

Bailii

Statutes:

European Convention on Human Rights 8, Immigration Rules, Nationality, Immigration and Asylum Act 2002 86(3)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 09 November 2022; Ref: scu.466458

Re Erskine 1948 Trust: ChD 29 Mar 2012

The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last beneficary’s death, all impediments to inheritance by adopted children had been removed by statute.
Held: The assorted Adoption Acts were limited so as to exclude any effect on the situation. But for the Human Rights issue, the clause would be interpreted on the basis of the law as at the date of the settlement, and: ‘the ECtHR has an emphatic aversion to discrimination against illegitimate and adopted children. But in the context of the present case this aversion is not easy to apply directly. In the first place the Convention became part of English law only in 2000. The question of retrospectivity therefore arises : how does the Convention affect the construction of a definition enacted almost 75 years before the Convention became part of English law? Second, even if the Convention affects the construction of a statute, to what extent does it affect the construction of a private-law disposition which incorporates a statutory definition? ‘ Though the ECHR had recognised such a right as legitimate in individual cases, those case concerned provisions by statute, not those by individuals.
By 1948 the legal framework for adoption had been established by the 1926 Act, and section 5 expressly enacted that adoption had no effect to confer inheritance rights on adopted children unless a contrary intention appears. That was the state of English law when the settlement came to be made in 1948. Seeing that there was no express contrary provision in that settlement, it follows that the use of the defined phrase ‘statutory next of kin’ did not include adopted children.

Judges:

Mr Mark Herbert QC

Citations:

[2012] EWHC 732 (Ch), [2012] 3 All ER 532, [2012] 3 FCR 114, [2012] WTLR 953, [2013] Ch 135, [2012] Fam Law 809, 14 ITELR 890, [2012] WLR(D) 104, [2012] 3 WLR 913, [2012] 2 FLR 725

Links:

Bailii

Statutes:

Adoption of Children Act 1926 5, Adoption Act 1950, Adoption Act 1976, Administration of Estates Act 1925 46(1)(v) 50(1), Interpretation Act 1978 20(2), European Convention on Human Rights, Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Cited – In re Hooper’s Settlement, Phillips v Lake CA 1943
A 1912 settlement created a trust ‘for such person or persons as would have become entitled to the settled fund under the statutes for the distribution of the personal estate of intestates at the death of the settlor had he died possessed thereof . .
Cited – In re Gansloser’s Will Trusts CA 1952
A 1929 will created a trust in favour of the testator’s widow’s ‘relatives’.
Held: The term referred to the persons who would have taken under the pre-1926 statutes of distribution. Evershed MR set out the normal principle, that the . .
Cited – Falkiner and Another v The Commissioner of Stamp Duties PC 7-Nov-1972
New South Wales – The settlor had made a settlement on 4 October 1961 and died 11 days later. The ultimate trust was in favour of ‘the next of kin of the settlor as determined by the provisions now in force of the Wills, Probate and Administration . .
Cited – In re Bourke’s Will Trusts ChD 1980
The 1938 will of a testator was at issue. He died in 1943. The trusts included a life interest for the testator’s widow and, on her death without issue (which happened in 1971), residue was given to the testator’s three half-siblings ‘or their heirs . .
Cited – Pla and Puncernau v Andorra ECHR 13-Jul-2004
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to . .
Cited – Upton v United Kingdom ECHR 11-Apr-2006
Admissibility – the claimant said that he had been disinherited from his grandfather’s will, being illegitimate. The will made in 1930 was in favour of the testator’s children and grandchildren. The applicant’s father was the testator’s eldest son, . .
Cited – Brauer v Germany ECHR 28-Jan-2010
Just satisfaction – friendly settlement . .
Cited – Secretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ considered the interpretation of an Act of Parliament to give it retrospective powers: ‘In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in . .
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 lender of its . .
Cited – Brauer v Germany ECHR 28-May-2009
The applicant was born outside marriage in 1948 in East Germany and claimed a share of the estate of her father, who had lived in West Germany dying in 1998. A West German statute of 1969 put illegitimate children on a equality with children of a . .
Cited – Tailby v Official Receiver HL 1888
A creditor can create, for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence.
Lord Macnaghten said: ‘It was admitted by the learned counsel for the respondent, that a trader . .
Cited – In re Ellenborough, Towry Law v Burne ChD 1903
The court declined to give effect to a voluntary disposition of a mere expectancy. Buckley J said: ‘It cannot be and is not disputed that if the deed had been for value the trustees could have enforced it. If value be given, it is immaterial what is . .
Cited – Upton v United Kingdom ECHR 11-Apr-2006
Admissibility – the claimant said that he had been disinherited from his grandfather’s will, being illegitimate. The will made in 1930 was in favour of the testator’s children and grandchildren. The applicant’s father was the testator’s eldest son, . .

Cited by:

Cited – Hand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family, Human Rights

Updated: 09 November 2022; Ref: scu.466372

Ali v The United Kingdom: ECHR 7 Nov 2012

The applicant had sought and been accepted for emergency housing assistance, but having refused the accomodation offered, and the Authority said that it had fulfilled its duty to her.

Citations:

40378/10 – HECOM, [2012] ECHR 1969

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

Cited – Tsfayo v The United Kingdom ECHR 14-Nov-2006
The applicant challenged the prodecures for deciding her appeal against the council’s refusal to pay backdated housing benefits. She complained that the availability of judicial review of the decision was not adequate.
Held: The system did not . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 09 November 2022; Ref: scu.466347

Nilsen v United Kingdom: ECHR 9 Mar 2010

The applicant had been convicted of the most serious offences including several violent murders, and was held under a whole life tarriff. He wished to publish his autobiography from prison.
Held: The application was inadmissible. He had nothing serious to say in the public interest, although the policy applied in his case would not have prevented even him from engaging in such serious debate. To the contrary, the applicant wished to use his memoirs as a platform to seek to justify his conduct and denigrate people he disliked and his manuscript contained ‘several lurid and pornographic passages’ and highly personal details of a number of his offences. The applicant did not take issue with the description of his crimes as being ‘as grave and depraved as it is possible to imagine’. Even in such an extreme case, the Court was careful to distinguish between the causing of offence to members of the public, which would not be a sufficient justification for restricting article 10 rights, and ‘an affront to human dignity’, which would, that being itself a fundamental value in the Convention.

Citations:

[2010] ECHR 470

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

See Also – Dennis Andrew Nilsen v United Kingdom ECHR 27-Nov-2008
. .

Cited by:

Cited – British Broadcasting Corporation (BBC) and Another, Regina (on The Application of) v Ahmad Admn 11-Jan-2012
The BBC wished to interview the prisoner who had been detained pending extradition to the US since 2004, and now challenged decision to refuse the interview.
Held: The claim succeeded. The decision was quashed and must be retaken. If ever any . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Media

Updated: 09 November 2022; Ref: scu.450215

Deya v The Government of Kenya: 2008

Judges:

Dyson LJ

Citations:

[2008] EWHC 2914 (Admin)

Jurisdiction:

England and Wales

Cited by:

Cited – Bary and Another, Regina (on the Application of) v Secretary of State for the Home Department Admn 7-Aug-2009
The defendants resisted extradition to the US to face charges of conspiracy to murder US citizens, saying that as suspected terrorists the likely prison conditions in which they would be held would amount to inhuman or degrading treatment or . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Extradition

Updated: 09 November 2022; Ref: scu.373979

Regina v Pan; Regina v Sawyer: 29 Jun 2001

Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Fundamental justice – Whether common law rule of jury secrecy and Criminal Code prohibition on disclosure of information about ‘proceedings of the jury’ consistent with principles of fundamental justice – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Juries – Rule of jury secrecy – Common law rule of jury secrecy providing that evidence concerning jury deliberations is inadmissible on appeal to impeach jury’s verdict – Whether common law rule of jury secrecy constitutional – Canadian Charter of Rights and Freedoms, s. 7.
Criminal law – Juries – Disclosure of jury proceedings – Criminal Code prohibiting disclosure of information about ‘proceedings of the jury’ except where disclosure is in context of obstruction of justice proceedings involving a juror – Whether provision constitutional – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Abuse of process – Fundamental justice – Double jeopardy – Whether mistrial improperly declared at end of accused’s second trial – Whether proceedings against accused should have been stayed at outset of third trial – Whether holding of third trial violated principle against double jeopardy – Canadian Charter of Rights and Freedoms, ss. 7, 11(h).
Criminal law – Charge to jury – Reasonable doubt – Accused convicted of first degree murder – Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.
Constitutional law – Charter of Rights – Fundamental justice – Whether common law rule of jury secrecy and Criminal Code prohibition on disclosure of information about ‘proceedings of the jury’ consistent with principles of fundamental justice – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Juries – Rule of jury secrecy – Common law rule of jury secrecy providing that evidence concerning jury deliberations is inadmissible on appeal to impeach jury’s verdict – Whether common law rule of jury secrecy constitutional – Canadian Charter of Rights and Freedoms, s. 7.
Criminal law – Juries – Disclosure of jury proceedings – Criminal Code prohibiting disclosure of information about ‘proceedings of the jury’ except where disclosure is in context of obstruction of justice proceedings involving a juror – Whether provision constitutional – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Abuse of process – Fundamental justice – Double jeopardy – Whether mistrial improperly declared at end of accused’s second trial – Whether proceedings against accused should have been stayed at outset of third trial – Whether holding of third trial violated principle against double jeopardy – Canadian Charter of Rights and Freedoms, ss. 7, 11(h).
Criminal law – Charge to jury – Reasonable doubt – Accused convicted of first degree murder – Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.

Judges:

McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ

Citations:

(2001) 147 OAC 1, (2001) 85 CRR (2d) 1, (2001) 43 CR (5th) 203, (2001) 155 CCC (3d) 97, (2001) 200 DLR (4th) 577, [2001] 2 SCR 344

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – HM Attorney General v Seckerson and Times Newspapers Ltd Admn 13-May-2009
The first defendant had been foreman of a jury in a criminal trial. He was accused of disclosing details of the jury’s votes and their considerations with concerns about the expert witnesses to the second defendant. The parties disputed the extent . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Criminal Practice

Updated: 09 November 2022; Ref: scu.343073

HA (Turkey) v Secretary of State for the Home Department: CA 29 Mar 2007

Renewed application for permission to appeal from a decision of the AIT allowing an appeal by the Secretary of State from decision of an adjudicator itself allowing the appeal on article 8 grounds alone being ‘a truly exceptional case’ in which removal of the applicants would not be within the range of reasonable assessments of proportionality, largely because the applicants had been in the United Kingdom for 14 years and 12 years respectively, and because of the strong ties between their children and this country and between the applicants and their children.

Citations:

[2007] EWCA Civ 337

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 09 November 2022; Ref: scu.251410

De Silva Pontes v Portugal: ECHR 23 Mar 1994

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

Citations:

14940/89, (1994) 18 EHRR, [1994] ECHR 12

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 09 November 2022; Ref: scu.165304

Telegraaf Media Nederland Landelijke Media Bv And Others v The Netherlands: ECHR 22 Nov 2012

The ECtHR considered that, in cases of the targeted surveillance of journalists in order to discover their sources, prior review by an independent body with the power to prevent or terminate it was necessary. The point that the confidentiality of journalistic sources cannot be restored once it is destroyed.

Citations:

39315/06 – HEJUD, [2012] ECHR 1965

Links:

Bailii

Statutes:

European Convention on Human Rights 10

Cited by:

Cited – Secretary of State for The Home Department v Davis MP and Others CA 20-Nov-2015
The Secretary of State appealed against a ruling that section 1 of the 2014 Act was inconsistent wih European law.
Held: The following questions were referred to the CJEU:
(1) Did the CJEU in Digital Rights Ireland intend to lay down . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media, Police

Updated: 06 November 2022; Ref: scu.465974

Van Colle v The United Kingdom: ECHR 13 Nov 2012

Judges:

Lech Garlicki, P

Citations:

7678/09 – HEJUD, [2012] ECHR 1928, (2013) 56 EHRR 23

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
See Also – Van Colle and Another v Chief Constable of the Hertfordshire Police CA 24-Apr-2007
The deceased had acted as a witness in an intended prosecution. He had sought protection after being threatened. No effective protection was provided, and he was murdered. The chief constable appealed a finding of liability.
Held: The . .
See Also – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
See Also – Van Colle and Van Colle v The United Kingdom ECHR 9-Feb-2010
Statement of Facts . .

Cited by:

Cited – PBD and Another v Greater Manchester Police QBD 18-Nov-2013
The claimant had acted as police informant for the defendant. He said that the defendant had wrongfully released his identity resulting in him having to seek witness relocation with consequential losses for himself and his partner the co-claimant. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 06 November 2022; Ref: scu.465929

BB, Regina (on The Application of) v Special Immigration Appeals Commission and Another: CA 19 Nov 2012

The Secretary of State wished to deport the applicant on the basis of his suspected involvement in acts of terrorism. An order for his deportation had been revoked by the respondent, but he had remained on very stringent bail conditions, since 2007.
Held: The case failed on the article 6 issue because (i) the decision to deport the appellant did not involve a determination of his civil rights and (ii) the grant of bail pending deportation (being ancillary to the deportation) did not do so either.

Judges:

Lord Neuberger MR, Hallett, McFarlane LJJ

Citations:

[2012] EWCA Civ 1499

Links:

Bailii

Statutes:

Immigration Act 1971 3(5)(a), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

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 – Ferrazzini v Italy ECHR 12-Jul-2001
(Grand Chamber) The court had to decide whether tax proceedings brought by the state against an individual involved the determination of a civil right within the meaning of article 6(1). It was argued by the Government that the existence of an . .
Cited – BB v Secretary of State for the Home Department SIAC 2-Nov-2007
The applicant had been made subject to orders restricting his freedom, being suspected of involvement with terrorist activity.
Held: He should be granted bail, but subject to stringent conditions. . .
Cited – Pomiechowski v The District Court In Legnica, 59-220 Poland Admn 9-Nov-2012
. .
Lists of cited by and citing cases may be incomplete.

Immigration, Crime, Human Rights

Updated: 06 November 2022; Ref: scu.465879

Turner v East Midlands Trains Ltd: CA 16 Nov 2012

The employee, a train ticket conductor, was accused without direct evidence of manipulating her machine to produce false tickets which she was then said to have sold.
Held: Elias LJ said that the Tribunal: ‘has to ask whether the employer acted within the range of reasonable responses open to a reasonable employer. It is not for the Tribunal to substitute its own view for that of the reasonable employer. That principle has been enunciated in the line of cases beginning with British Home Stores v Burchell . . and affirmed in cases such as Post Office v Foley [2000] IRLR 827, Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23, London Ambulance Service NHS Trust v Small [2009] IRLR 563 and, most recently, Orr v Milton Keynes Council [2011] IRLR 317.’
The court rejected a submission that Burchell must be reconsidered allowing the ET to act as a primary decision maker on an employee’s dismissal.

Judges:

Maurice Kay VP, Lord Justice Elias and Sir Stephen Sedley

Citations:

[2012] EWCA Civ 1470, [2012] WLR(D) 353, [2013] IRLR 107, [2013] ICR 525

Links:

Bailii, Gazette

Jurisdiction:

England and Wales

Citing:

Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .

Cited by:

Cited – Clarence High School and Another v Boardman CA 15-Mar-2013
The claimant school teacher had been dismissed, after a finding that she had assaulted a pupil. She denied the assualt.
Held: The School’s appeal against the decision of the EAT to re-instate the claim of unfair dismissal succeeded. The EAT . .
Cited – Reilly v Sandwell Metropolitan Borough Council SC 14-Mar-2018
Burchell case remains good law
The appellant head teacher had been dismissed for failing to disclose the fact that her partner had been convicted of a sex offence. She now appealed from rejection of her claim for unfair dismissal.
Held: The appeal was dismissed. The . .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights

Updated: 06 November 2022; Ref: scu.465880

In re B (A Child): CA 14 Nov 2012

B had been taken from her parents at birth, the local authority anticipating a risk of harm. The mother had suffered violence at the hands of the father, and also had convictions for dishonesty and making false allegations. The judge had made a care order in relation to B on the basis of a care plan that she should be placed for adoption. she was placed with a foster mother on what was intended to be a short-term basis, but continued pending the appeal.
Held: The appeal failed. The judge had made management decisions within the range of permissible, and the conclusions on the evidence, both accepting certain parts and rejecting others, were supported within that evidence. He had given proper allowance for the mother’s tendency to lie.
Though not dissenting, Black and Lewsion LJJ thought the case came close to the limit of proper interference by the state. Their task was to decide whether the judge’s decision should be disturbed, and not whether they might have made the same decision.

Judges:

Rix, Black, Lewison LJJ

Citations:

[2012] EWCA Civ 1475

Links:

Bailii

Statutes:

Children Act 1989 31(2), European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 06 November 2022; Ref: scu.465795

CN v The United Kingdom: ECHR 13 Nov 2012

The claimant said that having been raped repeatedly in Uganda, she had fled to England, where her passport was taken and she was forced to work and her earnings taken, and she was held captive. On escaping, her application for asylum was refused.

Judges:

Lech Garlicki, P

Citations:

(2013) 56 EHRR 24, 34 BHRC 1, 4239/08 – HEJUD, [2012] ECHR 1911

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

See Also – CN v The United Kingdom ECHR 26-Mar-2010
. .

Cited by:

Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 November 2022; Ref: scu.465758

Thurrock Borough Council v West: CA 8 Nov 2012

The tenant had resisted the application for possession on the basis that it would amount to a disproportionate interference in his human rights. The council appealed.
Held: The appeal succeeded. The judge had erred in considering that the tenant’s arguments did not, on the facts, reach the threshold of a seriously arguable Article 8 defence.

Judges:

Hallett, Therton LJJ, Dame Janet Smith

Citations:

[2012] EWCA Civ 1435, [2013] HLR 69 I

Links:

Bailii

Statutes:

European Convetion on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Cited – Akerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 06 November 2022; Ref: scu.465654

Redfearn v The United Kingdom: ECHR 6 Nov 2012

The applicant alleged that his rights had been infringed by his dismissal from his post as driver transporting children and adults with physical and/or mental disabilities. He had stood for election as a candidate for the British National Party, a party then allowing only white nationals as members. The majority of his customers and a substantial proportion of his co-workers were if Asian origin. A trades union had asked for his dismissal. On election he was summarily dismissed. He alleged race discrimination. His dismissal had been upheld by the Court of Appeal.
Held: UK law was deficit in not allowing a potential claim based on discrimination for one’s political belief. The applicant’s right to freedom of association had been infringed and violated, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of his political beliefs in that his: ‘right to freedom of association has been infringed and violated, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of his political beliefs.’

Judges:

Lech Garlicki, P

Citations:

47335/06 – HEJUD, [2012] ECHR 1878, 33 BHRC 713, [2013] 3 Costs LO 402, (2013) 57 EHRR 2, [2013] IRLR 51

Links:

Bailii

Statutes:

European Convention on Human Rights, Race Relations Act 1976

Citing:

At EAT – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
Appeal from – Serco Ltd v Redfearn CA 25-May-2006
The employee claimed that he had been discriminated against. He had stood as a candidate in local elections for the British National Party (BNP) party. His employers had dismissed him saying that his propagation of racially discriminatory polices . .
Statement of facts – Redfearn v The United Kingdom ECHR 16-Jan-2009
Statement of facts . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 06 November 2022; Ref: scu.465590

Alisic And Others v Bosnia And Herzegovina, Croatia, Serbia, Slovenia And The Former Yugoslav Republic Of Macedonia: ECHR 6 Nov 2012

Citations:

60642/08 – HEJUD, [2012] ECHR 1880

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

See Also – Emina Alisic And Others v Bosnia And Herzegovina, Croatia, Serbia, Slovenia And The Former Yugoslav Republic Of Macedonia ECHR 17-Oct-2011
. .

Cited by:

See Also – Alisic And Others v Bosnia And Herzegovina, Croatia, Serbia, Slovenia And The Former Yugoslav Republic Of Macedonia ECHR 16-Jul-2014
Grand Chamber – Article 46
Pilot judgment
General measures
Slovenia and Serbia required to take measures to enable applicants and all others in their position to recover ‘old’ foreign-currency savings
Article 1 of Protocol . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 November 2022; Ref: scu.465582

Stokes v The United Kingdom: ECHR 18 Oct 2012

The applicant complained of the failure to protect her article 8 rights. As a traveller and heavily pregnant she had been obliged to vacate her temporary pitch.

Citations:

65819/10 – HECOM, [2012] ECHR 1862

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Housing, Land

Updated: 06 November 2022; Ref: scu.465579

Corey, Re Judicial Review: QBNI 9 Jul 2012

C had been recalled from parole, and complained that the procedure had been unfair in that it had been almost entirely based upon closed materials.
Held: The Commissioners’ decision was indeed based solely or decisively on the closed material. Moreover, the allegations contained in the open material were not sufficiently specific to enable the appellant to provide his lawyers and the special advocate with information to refute them. The hearing which the commissioners had conducted into the appellant’s case constituted, on that account, a breach of the appellant’s ‘right to procedural fairness’ under article 5(4) of the Convention. However the court decided to remit the matter to the Commissioners with a direction that they reconsider the case and reach a decision in accordance with his ruling. The judge also decided to admit the appellant to bail pending reconsideration of his case by the Parole Commissioners.

Judges:

Treacy J

Citations:

[2012] NIQB 56

Links:

Bailii

Statutes:

European Convention on Human Rights 5.4, Judicature (Northern Ireland) Act 1978

Cited by:

Appeal from – Corey, Re Judicial Review CANI 21-Dec-2012
The claimant had been recalled to prison from parole, and challenged his recall, saying that the procedure, being almost entirely based upon closed material infringed his rights to a fair trial. The respondent now appealed against an order finding . .
At First Instance – Martin Corey, Re for Judicial Review SC 4-Dec-2013
The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Prisons, Human Rights

Updated: 06 November 2022; Ref: scu.465500

Regina v Secretary of State for Home Department Immigration Appeals Tribunal ex parte Robinson: CA 11 Jul 1997

Where an asylum seeker was seeking to escape from persecution in one area of his home country, the court must ask if an escape to a safe area in his country of origin is available and appropriate. A failure of the country to which an asylum seeker would be returned to provide for the basic norms of civil political and socio-economic human rights would not constitute persecution under the Convention.

Judges:

Lord Wool MR, Potter, Brooke LJJ

Citations:

Times 01-Aug-1997, [1997] EWCA Civ 2089, [1998] QB 929, [1997] Imm AR 568, [1997] 3 WLR 1162, [1997] 4 All ER 210, [1997] INLR 182

Jurisdiction:

England and Wales

Cited by:

Cited – AE and FE v Secretary of State for the Home Department CA 16-Jul-2003
The appellants challenged orders denying them asylum status. The result would be to require them to return home but subject to relocation within a different geographical area.
Held: For the purposes of considering refugee status, the . .
Cited – MJ (Angola) v Secretary of State for The Home Department CA 20-May-2010
The applicant had been ordered to be deported and returned to Angola, but at the same time he was a detained mental patient. He argued that a return would breach his Article 8 rights.
Held: The respondent was entitled to decide to deport the . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 06 November 2022; Ref: scu.142486