Category: Human Rights

Maguire, Re Application for Judicial Review (Northern Ireland): SC 21 Mar 2018

The appellant faced a criminal trial. He was granted legal aid for two counsel. He asked for two particular junior counsel, but the certificate required him to instruct leading counsel and a junior. He objected that this deprived him of the right to his chosen counsel.
Held: The appeal failed. The purpose of a defendant’s right to choose counsel was in the contribution that right made to the achievement of a fair trial but it was not an autonomous right which fell outside that context. Article 6 did not give the accused a right to demand to have counsel of his choice at public expense, independently of the requirements of the interests of justice.
Lord Justice General said:
Article 6 does not invest an accused person with the right to demand that he have counsel of his choice at public expense, independently of the requirements of the interests of justice. If it can be shown that the interests of justice will best be served by having a requirement that, where a certificate for two counsel is issued, it will, in general, be better for an accused to be represented by both senior and junior counsel, a requirement that this be so cannot give rise to any violation of article 6. That the interests of justice will be best served in this way is beyond serious dispute, in my opinion. Senior counsel obtain that rank on the basis of an objective assessment of their professional expertise and experience. Rule 20.11 does no more than give effect to the desirability that defendants be represented at the highest possible standard, just as rule 4(3) of the 2012 Rules does.

Judges:

Lord Kerr of Tonaghmore, Lord Reed, Lord Hughes, Lady Black, Lord Lloyd-Jones JJSC

Citations:

[2018] WLR(D) 180, [2018] UKSC 17, [2018] 3 All ER 30, [2018] 1 WLR 1412, [2018] NI 102, 44 BHRC 307, UKSC 2015/0134

Links:

Bailii, SC, SC Summary, SC Video Summary, SC 171019 am Video, SC 171019 pm video, WLRD, Bailii Summary

Statutes:

Human Rights Act 1998, European Convention on Human Rights 6.2(c)

Jurisdiction:

Northern Ireland

Citing:

Appeal From ( – A, Re Judicial Review QBNI 19-Jan-2015
The applicant, defendant in a proposed trial, objected that having been granted a legal aid order for two counsel, he had been unable to instruct the two junior counsel of his choice, but had rather been required to instruct leading counsel. . .
Cited – X v Norway ECHR 30-May-1975
Article 6, paragraph 3, fitt . c) of the Convention : First instance proceedings. This provision guarantees that proceedings against the accused will nor take place without adequate representation for the defence, but does not give the accused the . .
Cited – Attorney General’s Reference No. 3 of 1999 HL 14-Dec-2000
An horrific rape had taken place. The defendant was arrested on a separate matter, tried and acquitted. He was tried under a false ID. His DNA sample should have been destroyed but wasn’t. Had his identity been known, his DNA could have been kept . .
Cited – Correia De Matos v Portugal ECHR 15-Nov-2001
The applicant had been committed for trial in Portugal for insulting a judge. The judge investigating that charge assigned a lawyer to represent him. Mr de Matos objected. He wanted to represent himself. He relied on article 6.3(c) of the . .
Cited – Croissant v Germany ECHR 25-Sep-1992
Hudoc No violation of Art. 6-1; No violation of Art. 6-3-c
‘[I]t is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When . .
Cited – K v Denmark ECHR 5-May-1993
A lawyer, Mr Reindel, was appointed by the High Court to act as defence counsel for the applicant. It was then discovered that Mr Reindel was to be called as a witness and his appointment was rescinded and another lawyer was appointed in his stead. . .
Cited – Mayzit v Russia ECHR 20-Jan-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 3; Violation of Art. 5-4; No violation of Art. 6-3-c; No violation of Art. 6-3-b; Non-pecuniary damage – financial award.
The applicant wished . .
Cited – Dzankovic v Germany ECHR 8-Dec-2009
The applicant complained that his request for his chosen representative to be designated official defence counsel had been refused.
Held: The interests of justice did not require that the applicant’s chosen counsel be appointed official . .
Cited – Dvorski v Croatia ECHR 20-Oct-2015
Grand Chamber: ‘As the Court has already held in its previous judgments, the right set out in article 6.3(c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in article 6.1 (see . .
Cited – Addison v HM Advocate HCJ 8-Oct-2014
Appeal against conviction for murder: ‘on two grounds, namely; (1) that he suffered a miscarriage of justice as a result of defective representation; and (2) that while awaiting trial he was deprived of the opportunity to instruct senior counsel of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Legal Professions

Updated: 19 October 2022; Ref: scu.608732

Correia De Matos v Portugal: ECHR 4 Apr 2018

ECHR Judgment : No Article 6+6-3-c – Right to a fair trial : Grand Chamber
The applicant alleged that the decisions of the domestic courts refusing him leave to conduct his own defence in the criminal proceedings against him and requiring that he be represented by a lawyer had violated Article 6 ss 3 (c) of the Convention.

Judges:

Guido Raimondi, President,

Citations:

56402/12, [2018] ECHR 299

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Correia De Matos v Portugal ECHR 15-Nov-2001
The applicant had been committed for trial in Portugal for insulting a judge. The judge investigating that charge assigned a lawyer to represent him. Mr de Matos objected. He wanted to represent himself. He relied on article 6.3(c) of the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 19 October 2022; Ref: scu.608890

Rodzevillo v Ukraine: ECHR 14 Jan 2016

Citations:

38771/05 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)), [2016] ECHR 74

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See also – Rodzevillo v Ukraine ECHR 17-Dec-2019
ECHR Judgment : Article 3 – Prohibition of torture : Fifth Section Committee . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 October 2022; Ref: scu.559116

Dvorski v Croatia: ECHR 20 Oct 2015

Grand Chamber: ‘As the Court has already held in its previous judgments, the right set out in article 6.3(c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in article 6.1 (see Imbrioscia v Switzerland (1994) 17 EHRR 441, 24 November 1993, paras 36 and 37, Series A no 275, and Salduz v Turkey [GC], no 36391/02, [2008] ECHR 1542, para 50, ECHR 2008)’

Citations:

25703/11 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)), [2015] ECHR 927, (2016) 63 EHRR 7

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Dvorski v Croatia ECHR 28-Nov-2013
. .

Cited by:

Cited – Maguire, Re Application for Judicial Review (Northern Ireland) SC 21-Mar-2018
The appellant faced a criminal trial. He was granted legal aid for two counsel. He asked for two particular junior counsel, but the certificate required him to instruct leading counsel and a junior. He objected that this deprived him of the right to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 19 October 2022; Ref: scu.554347

A NHS Foundation Trust v Ms X (By Her Litigation Friend, The Official Solicitor): CoP 8 Oct 2014

X suffered both severe anorexia and alcoholism. She had in the past been repeatedly and compulsorily admitted to hospital for treatment, but her doctors considered that whilst this might be life extending treatment it had proved ineffective and unethical. They sought a declaration that they may not be obliged to offer the treatment again. The patient supported the application and had made an Advance Direcitive as to her treatment, but lacked capacity to litigate.
Held: Although she did not want to be compelled to receive treatment, Ms X had no wish to die. The court wished that she might still voluntarily seek assistance and treatment, but court declined to order her compulsory treatment.

Judges:

Cobb J

Citations:

[2014] EWCOP 35

Links:

Bailii

Statutes:

Mental Health Act 1983, Mental Capacity Act 2005 4(5) 24, European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – The NHS Trust v L and Others COP 2012
The patient suffered extreme anorexia. A declaration was sought as to the possibility of discontinuing compulsory medical treatment. The medical opinion was that the course of action proposed had a ‘close to’ 100% likelihood of causing Ms L’s death; . .
Cited – Re E (Medical Treatment: Anorexia) CoP 15-Jun-2012
The court considered the propriety of ordering continued compulsory treatment of E where the chance of successful treatment for E (and ‘full recovery’) was considered to be in the region of 20% to 30%. Even that prospect could be achieved only by . .
Lists of cited by and citing cases may be incomplete.

Health, Health Professions, Human Rights, News

Updated: 19 October 2022; Ref: scu.537458

Dvorski v Croatia: ECHR 28 Nov 2013

Citations:

25703/11 – Chamber Judgment, [2013] ECHR 1205

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Dvorski v Croatia ECHR 20-Oct-2015
Grand Chamber: ‘As the Court has already held in its previous judgments, the right set out in article 6.3(c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in article 6.1 (see . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 October 2022; Ref: scu.518836

Mayzit v Russia: ECHR 20 Jan 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 3; Violation of Art. 5-4; No violation of Art. 6-3-c; No violation of Art. 6-3-b; Non-pecuniary damage – financial award.
The applicant wished to be represented by his mother and sister. His request that they be permitted to appear for him was refused on the basis that the case required special legal knowledge and professional experience. At paras 65 and 66 the court said: ‘Article 6(3)(c) guarantees that proceedings against the accused will not take place without an adequate representation for the defence, but does not give the accused the right to decide himself in what manner his defence should be assured. The decision as to which of the two alternatives mentioned in the provision should be chosen, namely the applicant’s right to defend himself in person or to be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the court, depends upon the applicable legislation or rules of court.
Notwithstanding the importance of a relationship of confidence between lawyer and client, the right to choose one’s own Counsel cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned, and also where it is for the courts to decide whether the interests of justice require that the accused be defended by Counsel appointed by them. When appointing defence Counsel, the national courts must certainly have regard to the defendant’s wishes. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.’

Citations:

63378/00, [2005] ECHR 32, (2006) 43 EHRR 38

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Maguire, Re Application for Judicial Review (Northern Ireland) SC 21-Mar-2018
The appellant faced a criminal trial. He was granted legal aid for two counsel. He asked for two particular junior counsel, but the certificate required him to instruct leading counsel and a junior. He objected that this deprived him of the right to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 19 October 2022; Ref: scu.227639

Croissant v Germany: ECHR 25 Sep 1992

Hudoc No violation of Art. 6-1; No violation of Art. 6-3-c
‘[I]t is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant’s wishes; indeed, German law contemplates such a course. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.’

Citations:

[1992] ECHR 60, 13611/88, (1993) 16 EHRR 135

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Berry Trade Ltd and Another v Moussavi and Others CA 21-Mar-2002
The respondent had, it was alleged, had breached worldwide asset freezing orders, and was liable to be committed to prison. Legal Aid was refused by the Legal Services Commission. After several adjournments, the other party offered to pay for . .
Cited – Maguire, Re Application for Judicial Review (Northern Ireland) SC 21-Mar-2018
The appellant faced a criminal trial. He was granted legal aid for two counsel. He asked for two particular junior counsel, but the certificate required him to instruct leading counsel and a junior. He objected that this deprived him of the right to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 19 October 2022; Ref: scu.165214

Mohamed, Regina (on the Application of) v Secretary of State for the Home Department: Admn 16 Jun 2003

The claimant challenged his continued detention under the 1971 Act after his appeal to the Immigration Appeal tribunal had been successful. He had been accused of rape, but was convicted of a sexual assault, though still serious. Before being released from his sentence, the respondent had authorised his continued detention under the 1971 Act. The IAT had then found a well founded fear of persecution if returned. The respondent had sought to appeal but out of time, and now sought to rely on the exeption allowing deportation where an applicant had committed a ‘particularly serious crime’.
Held: The claimant had been unlawfully detained. The initial refusal of bail had been made on a factually incorrect and prejudicial basis, and though ‘risk of absconding and further offending were matters for proper consideration, such material as there is suggests that the consideration was flawed. There is no hard evidence of it, save for what appears in the bail summary to which I have referred. There is no evidence of careful reappraisal at that stage, or of any attempt to weigh the long period of immigration detention against the perceived prospects of success in any appeal, and the duration of the appeal process. The Secretary of State was entitled to consider his position, but it was incumbent upon him to address the continued detention of the claimant with the utmost care, particularly in regard to the history of the matter, to which I have referred. I am not satisfied that he did so.’

Judges:

Maurice Kay J

Citations:

[2003] EWHC 1530 (Admin)

Links:

Bailii

Statutes:

Immigration Act 1971, European Convention on Human Rights 3

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
Cited – I, Regina (on the Application of) v Secretary of State for the Home Department CA 28-Jun-2002
The appellant obtained asylum but was convicted of offences after entering, and ordered to be deported. Whilst serving his sentence the deportation order was served, but he was not released on licence at the time he would normally have been . .
Cited – Regina v A Special Adjudicator and Secretary of State for Home Department ex parte B Admn 17-Dec-1997
Kay J referred to the Secretary of State’s policy documents on the detention and removal of failed asylum seekers and emphasised the need for a careful reappraisal by the Secretary of State in the light of changing circumstances. . .
Cited – In re Wasfi Suleman Mahmod Admn 17-Jan-1994
Laws J considered the Hardial Singh principles, adding: ‘While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it . .
Cited – Tan Te Lam v Superintendent of Tai A Chau Detention Centre PC 27-Mar-1996
(Hong Kong) Migrants from Vietnam of Chinese ethnic origin had landed in Hong Kong by boat, and been refused refugee status. They were detained for several years under section 13D of the Immigration Ordinance ‘pending . . removal from Hong Kong’. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 19 October 2022; Ref: scu.185611

Foreign and Commonwealth Office v Warsama and Another: CA 11 Feb 2020

The Court was asked ‘whether the report of an inquiry ordered to be published by the House of Commons following a Motion for an Unopposed Return is protected by Parliamentary privilege. The second issue is whether the proceedings commenced by Mr Warsama and Ms Gannon (to whom we refer as the appellants) can survive a finding that the report in which they were criticised is protected by Parliamentary privilege or should be struck out. The third issue is whether the panel which conducted the inquiry is a ‘public authority’ for the purposes of section 6(3) of the Human Rights Act 1998 (‘the HRA’).’

Judges:

The Lord Burnett of Maldon, Lord Justice Coulson and Lady Justice Rose

Citations:

[2020] EWCA Civ 142

Links:

Bailii

Jurisdiction:

England and Wales

Constitutional, Human Rights, Administrative

Updated: 19 October 2022; Ref: scu.648154

Fabrica De Zahar Din Ghindesti Sa v The Republic Of Moldova: ECHR 3 Dec 2019

ECHR Judgment : Article 6 – Right to a fair trial : Second Section Committee
ECHR Judgment : Pecuniary damage – award : Second Section Committee

Citations:

54813/08, [2019] ECHR 867, [2021] ECHR 375

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 17 October 2022; Ref: scu.646751

Abdi Ibrahim v Norway: ECHR 17 Dec 2019

ECHR Judgment : Article 8 – Right to respect for private and family life : Second Section
ECHR Press Release
ECHR Judgment : Article 8 – Right to respect for private and family life : Grand Chamber

Citations:

15379/16, [2019] ECHR 914, [2020] ECHR 334, [2021] ECHR 1060

Links:

Bailii, Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 17 October 2022; Ref: scu.646729