Category: Human Rights

Markovic and Others v Italy: ECHR 14 Dec 2006

The applicants were relatives of persons who had been killed in the NATO air-raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had held that by a rule of substantive law the Italian courts had no jurisdiction over acts of war or indeed over any acts of the Italian state which were impugned on the sole ground that they violated international law.
Held: The limitation on the jurisdiction of the Italian court was substantive. It followed that the decision of the Corte de Cassazione, ‘does not amount to recognition of an immunity but is merely indicative of the extent of the courts’ powers of review of acts of foreign policy such as acts of war.’
Once a person brings a civil action in the courts or tribunals of a state, there exists a ‘jurisdictional link’ for the purposes of article 1.
Some qualification can be made to the principle of indivisibility of Convention rights.

Citations:

(2007) 44 EHRR 52, 1398/03, [2006] ECHR 1141

Links:

Bailii

Statutes:

European Convention on Human Rights 1

Jurisdiction:

Human Rights

Cited by:

Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 September 2022; Ref: scu.248151

Bader and Others v Sweden: ECHR 8 Nov 2005

ECHR Judgment (Merits) – Violation of Art. 2; Violation of Art. 3.

Citations:

13284/04, [2005] ECHR 939

Links:

Bailii

Jurisdiction:

Human Rights

Cited by:

See Also – Bader and Others v Sweden ECHR 15-Sep-2010
Execution of the judgment of the European Court of Human Rights . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 September 2022; Ref: scu.234772

Biro v Slovakia: ECHR 8 Nov 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings.

Citations:

46844/99, [2009] ECHR 1041

Links:

Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 06 September 2022; Ref: scu.234818

Kariharan and Another, Regina (on the Application Of) v Secretary of State for Home Department: CA 15 Apr 2002

There is a right of appeal against removal directions under section 65 of the 1999 Act on the ground that removal would be in breach of a person’s human rights. Auld LJ was not impressed by an argument that a restrictive interpretation was necessary to prevent abuse. On the one hand a last-minute challenge would not necessarily be abusive: there might genuinely have been changes of circumstance with the passage of time. And on the other, ‘If and to the extent that such an interpretation is open to abuse by repetitive last-minute claims, it seems to me that Parliament must be taken to have had that possible outcome in mind in including the anti-abuse and one-stop provisions in the 1999 Act . . The fact that those provisions may not provide absolute protection against abuse . . is no basis for a contrary construction, given the importance of the human rights in play.’
Sedley LJ agreed: ‘It is not this court’s job to fill gaps perceived by one party to litigation in Parliament’s provision, especially when the mechanism is not to read the abuse provisions generously but to constrict the antecedent right to which they relate.’

Judges:

Auld, Sedley, Arden LJJ

Citations:

[2002] EWCA Civ 615, [2003] Imm AR 163, [2003] QB 933, [2002] INLR 383, [2002] 3 WLR 1783

Links:

Bailii

Statutes:

European Convention on Human Rights, Immigration and Asylum Act 1999 65

Jurisdiction:

England and Wales

Cited by:

See also – Regina (on the Application of Kanagasingham Kariharan and Kanagara) v Secretary of State for the Home Office CA 30-Jul-2002
The applicants were subject to removal directions following the failures of their applications for asylum had failed. The decisions were made before the Human Rights Act came into effect, but the direction orders were made afterwards. They sought to . .
Cited – MS (Palestinian Territories) v Secretary of State for The Home Department SC 16-Jun-2010
The claimant faced removal and return to Palestine, but he said that he would not be accepted if returned. He had no ID card, birth certificate or living parents. He appealed against the decision of the IAT and now again from the Court of Appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 06 September 2022; Ref: scu.217059

G K v Poland: ECHR 20 Jan 2004

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1 ; Violation of Art. 5-3 ; Violation of Art. 5-4 ; No violation of Art. 6-1 ; Violation of Art. 8 ; Not necessary to examine Art. 34 ; Non-pecuniary damage – financial award ; Costs and expenses award – Convention porceedings

Citations:

38816/97, [2004] ECHR 28

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 06 September 2022; Ref: scu.192171

Grant v The United Kingdom: ECHR 23 May 2006

The applicant, born male, had gender reassignment surgery at the age of 26. When she was approaching her 60th birthday she sought a state pension. This was refused on the grounds that she was, in law, male.
Held: The 2004 Act had not been in force when the claimant began her action. The Court spoke of it, saying: ‘the GRA 2004 has been adopted by parliament since the introduction of this application. It received Royal Assent on July 2004. Under the Act, individuals who satisfy certain criteria are able to apply to a gender recognition panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which is prospective in effect, an individual is afforded legal recognition in their acquired gender. In particular, social security benefits and the state retirement pension are paid according to the acquired gender.’ and ‘the present applicant’s victim status came to an end when the GRA 2004 came into force, thereby providing the applicant with the means on a domestic level to obtain the legal recognition previously denied’.

Judges:

Casaavell P

Citations:

32570/03, [2006] ECHR 548, (2007) 44 EHRR 1

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 8 14, Gender Recognition Act 2004

Jurisdiction:

Human Rights

Cited by:

See Also – Grant v The United Kingdom ECHR 14-Sep-2011
Execution of judgment . .
Cited – Carpenter v The Secretary of State for Justice Admn 27-Feb-2015
The claimant, a post-operative male-to-female transsexual person, said that section 3(3) of the 2004 Act was incompatible with her Human rights after refusal of a gender recognition certificate.
Held: The application failed. The provision of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Family, benefits

Updated: 06 September 2022; Ref: scu.243833

Jalloh v Germany: ECHR 11 Jul 2006

The applicant, after arrest, had been forced to regurgitate a bag of cocaine, there was a complaint that article 3 had been violated as well as article 6.
Held: Even evidence which may properly be described as ‘independent of the will of the suspect’ which has been obtained by inhuman or degrading treatment may constitute a breach of the entitlement to a fair trial.
In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, it will have regard, in particular, to the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put.
‘The Court has consistently held, however, that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the contacting parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissue for the purpose of DNA testing.’

Citations:

54810/00, [2006] ECHR 721, (2007) 44 EHRR 32

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .
Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Cited – Her Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 06 September 2022; Ref: scu.246434

Kuznetsov v Russia: ECHR 23 Oct 2008

The applicant had taken part in a small demonstration which, for a short time, obstructed access to a public court building.
Held: The court: ‘reiterate[d] at the outset that the right to freedom of assembly covers both private meetings and meetings on public thoroughfares, as well as static meetings and public processions; this right can be exercised both by individual participants and by those organising the assembly’

Citations:

10877/04, [2008] ECHR 1170

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) and Others CA 22-Feb-2012
The defendants sought to appeal against an order for them to vacate land outside St Paul’s Cathedral in London which they occupied as a protest.
Held: The application for leave to appeal failed. The only possible ground for appeal was on the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 September 2022; Ref: scu.277510

Keegan v United Kingdom: ECHR 18 Jul 2006

The claimant had been the subject of a raid by armed police on his home. The raid was a mistake. He complained that the English legal system, in rejecting his claim had not allowed him to assert that the police action had been disproportionate.
Held: The claimant’s right to respect for his home had been infringed. The question was whether the raid was proportionate. To test this the claimant was required under English law to establish malice on the part of the police. That did not allow the required test: ‘The fact that the police did not act maliciously is not decisive under the Convention which is geared to protecting against abuse of power, however motivated or caused (see, mutatis mutandis, McLeod, cited above, where the police suspected a breach of the peace might occur). The Court cannot agree that a limitation of actions for damages to cases of malice is necessary to protect the police in their vital functions of investigating crime. The exercise of powers to interfere with home and private life must be confined within reasonable bounds to minimise the impact of such measures on the personal sphere of the individual guaranteed under Article 8 which is pertinent to security and well-being . . In a case where basic steps to verify the connection between the address and the offence under investigation were not effectively carried out, the resulting police action, which caused the applicants considerable fear and alarm, cannot be regarded as proportionate.
As argued by the applicants, this finding does not imply that any search, which turns out to be unsuccessful, would fail the proportionality test, only that a failure to take reasonable and available precautions may do so.’

Citations:

Times 09-Aug-2006, 28867/03, [2006] ECHR 764, (2007) 44 EHRR 33

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

Appeal from – Keegan and Others v Chief Constable of Merseyside CA 3-Jul-2003
The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
Held: The tort of malicious procurement of a search warrant required it to be established . .
Cited – Olsson v Sweden (No 1) ECHR 24-Mar-1988
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs . .
Cited – McLeod v The United Kingdom ECHR 23-Sep-1998
A Police Officer assisting in recovery of items ordered to be returned in matrimonial proceedings acted in excess of his powers and trespassed in entering house where there was no immediate threat of breach of the peace, and no sight of disorder. An . .
Cited – Costello-Roberts v The United Kingdom ECHR 25-Mar-1993
‘Slippering’, a punishment by hitting a child with a slipper, when used as part of school discipline was not a degrading punishment under the convention. Conduct must attain a minimum level of severity to engage the operation of the Convention. . .
Cited – Funke v France ECHR 25-Feb-1993
M. Funke successfully challenged his conviction for failing to provide documents which the customs authorities had demanded of him, on the grounds that his rights under Article 6 had been infringed: ‘The Court notes that the customs secured Mr. . .
Cited – Boyle and Rice v The United Kingdom ECHR 27-Apr-1988
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; Costs and expenses award – Convention proceedings
The first applicant had been convicted and sentenced for murder and subsequent acts of . .
Cited – Vilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
Cited – Olsson v Sweden (No 2) ECHR 27-Nov-1992
Hudoc Judgment (Merits and just satisfaction) Lack of jurisdiction; No violation of Art. 6-1; No violation of Art. 8; Violation of Art. 8; Violation of Art. 6-1 (access); No separate issue under Art. 53; . .

Cited by:

Principle judgment – Keegan v United Kingdom ECHR 3-Dec-2009
Case closed. . .
Cited – Williams v Dyfed and Powys Police CA 22-Nov-2010
The claimants appealed against dismissal of their claim for damages under the 1998 Act. The house had been searched under warrant. They said that the constable obtaining the warrant had acted on information he knew or ought to have known was false. . .
Cited – Fitzpatrick and Others v The Commissioner of Police of The Metropolis QBD 11-Jan-2012
The claimants, two solicitors and their employer firm sought damages alleging trespass and malicious procurement by police officers in obtaining and executing search warrants against the firm in 2007 when they were investigating suspected offences . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 06 September 2022; Ref: scu.244743

Mitrinovski v The Former Yugoslav Republic Of Macedonia: ECHR 30 Apr 2015

ECHR Article 6-1
Impartial tribunal
Impartiality of tribunal in professional misconduct proceedings against a judge: violation
Facts – The applicant was a former judge who was removed from office by a decision of the plenary of the State Judicial Council (SJC) on 19 April 2011 that he had been guilty of professional misconduct. In his application to the European Court the applicant complained under Article 6 – 1 of the Convention that the SJC could not be considered to have been an ‘independent and impartial tribunal’ in the circumstances of his case.
Those circumstances were as follows: The applicant presided over a three-judge panel of a court of appeal which granted an appeal by a detainee against an order for pre-trial detention. That decision was overruled by a five-judge panel of the Supreme Court, presided over by Judge J.V. The criminal division of the Supreme Court, which also included Judge J.V., then found that two of the three court of appeal judges who had heard the detainee’s appeal had disclosed professional misconduct. It did not name the judges concerned. In his capacity as an ex officio member of the SJC Judge J.V. then submitted a request to the SJC to establish professional misconduct in respect of the applicant and one of the other court of appeal judges. Judge J.V. also formed part of the SJC plenary which subsequently declared the request admissible, set up an ad hoc Commission for the determination of the complaint of professional misconduct and initiated professional misconduct proceedings. He appeared as the complainant at the hearing before the ad hoc Commission and, following a report by the Commission recommending the applicant’s dismissal for professional misconduct, was a member of the plenary of the SJC which decided to remove the applicant from office. The applicant’s appeal to the Supreme Court Appeal Panel was dismissed.
Law – Article 6 – 1: Section 78(1) of the State Judicial Act 2010, which regulated professional misconduct proceedings against members of the judiciary, provided that any member of the SJC could ask that institution to establish professional misconduct on the part of a judge. In the applicant’s case, Judge J.V., who was the President of the Supreme Court at the time and an ex officio member of the SJC, had requested the initiation of proceedings after the criminal division of the Supreme Court, including Judge J.V., found unanimously that there had been professional misconduct by two judges in the court of appeal proceedings that had been presided over by the applicant. Although the criminal division did not name the judges concerned, it was obvious that the applicant was one of them, as confirmed by the SJC. In such circumstances, the European Court considered that the applicant had had legitimate grounds for fearing that Judge J.V. was already personally convinced that he should be dismissed for professional misconduct before that issue came before the SJC.
The ad hoc Commission established to conduct the misconduct proceedings was made up of five SJC members. At the hearing, Judge J.V. was able to submit evidence and arguments in support of the allegations against the applicant and had thus acted as a ‘prosecutor’. He then sat as an ex officio member of the plenary of the SJC which, following the Commission’s recommendation, decided to remove the applicant from office. In these circumstances, the European Court considered that the system in which Judge J.V., as a member of the SJC who had sought the impugned proceedings and subsequently taken part in the decision to remove the applicant from office, cast objective doubt on his impartiality when deciding on the merits of the applicant’s case.
Judge J.V.’s role in the proceedings thus failed both the subjective and objective impartiality tests. The fact that he was only one of fifteen members of the SJC could not, in the circumstances, lead to any other result.
Conclusion: violation (unanimously).
Article 41: EUR 4,000 in respect of non-pecuniary damage.

Citations:

6899/12 – Legal Summary, [2015] ECHR 482

Links:

Bailii

Statutes:

European Convention on Human Rights 6-1

Jurisdiction:

Human Rights

Human Rights, Legal Professions

Updated: 04 September 2022; Ref: scu.546889

Goldtrail Travel Ltd v Onur Air Tasimacilik As: SC 2 Aug 2017

At first instance the appellant had dishonestly assisted another party to defraud the respondent, and ordered payment of substantial damages. The defendant, non-resident, sought to appeal, and the respondent asked the court to order payment into court of the amount of the award, saying that the appellant did not otherwise have the assets within the jurisdiction. Floyd LJ so ordered. The court was now asked to address the principles by reference to which the Court of Appeal should determine such an application; and in particular to identify the principles by reference to which it should appraise a respondent’s contention that an appellant’s financial relationship with a wealthy third party is such as to defeat its complaint that such a condition would stifle its appeal.
Held: The appeal succeeded (Lords Clarke of Stone-cum-Ebony and Carnwath dissenting as to the effect) and the case remitted to the Court of Appeal to determine the appellant’s application for discharge of the condition by reference to the correct criterion.
Under Article 6 there will seldom be a ‘fair hearing’ if a court has permitted an appeal but then, by indirect means, does not permit him to bring it. It is for the appellant to establish on the balance of probabilities that a proposed condition would stifle the prosecution of its appeal. The courts can proceed on the basis that, were it to be established that the condition would probably stifle the appeal, the condition should not be imposed.

Judges:

Lord Neuberger, President, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Hodge

Citations:

[2017] UKSC 57, [2017] WLR(D) 560, [2017] 1 WLR 3014, UKSC 2016/0039

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 20170427 am video

Statutes:

Civil Procedure Rules 52.9(1)(c), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

At ChD – Goldtrail Travel Ltd v Aydin and Others ChD 22-May-2014
Claim by company liquidators against former directors alleging misappropriation of company assets, and dishonest assistance. . .
At CA – Goldtrail Travel Ltd v Aydin and Others CA 21-Jan-2016
Application for stay of execution of judgment pending appeal . .
Cited – Delcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
Cited – M V Yorke Motors v Edwards HL 1982
A sale of a second hand Rolls Royce had gone wrong. The plaintiff was claiming damages of 23,250 pounds. The plaintiff sought Order 14 summary judgment. That was refused, and the Master gave leave to defend without any conditions. The plaintiff . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Criticised in part – Hammond Suddard, Solicitors v Agrichem International Holdings Limited CA 18-Dec-2001
The appellant sought staying the order for him to pay costs pending the results of an appeal, and the respondent sought security for costs in fighting the appeal, and a striking out in default of payment, and for security for payment of the . .
Cited – Societe Generale SA v Saad Trading, Contracting and Financial Services Company and Another CA 23-May-2012
The Court was asked to determine applications by Societe Generale SA, which was the respondent to appeals which the two appellants had been permitted to bring against orders made against each of them for payment to the bank of US$49m. The first . .
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Updated: 04 September 2022; Ref: scu.591358

Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs: SC 18 Oct 2017

The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and breach of the 1998 Regulations, saying that the statutory exemption of the Embassies from liability infringed their human rights in Convention and EU law. The Foreign Secretary, on behalf of the embassies now appealed a finding that the provision was an infringement of the workers’ human rights.
Held: The appeals failed.

Judges:

Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption

Citations:

[2017] UKSC 62, [2017] 3 WLR 957, [2017] WLR(D) 691, UKSC 2015/0063

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary video, SC Video * Jun 17 pm, SC Vid 6/6/17 pm, SC Vid 7/6/17 am, SC Vid 7/6/17 pm, SC Vid 8/6/17 am

Statutes:

State Immunity Act 1978, European Union Charter of Fundamental Rights, European Convention on Human Rights, Working Time Regulations 1998

Jurisdiction:

England and Wales

Citing:

At EAT – Benkharbouche v Embassy of The Republic of Sudan (Jurisdictional Points : State Immunity) EAT 4-Oct-2013
EAT STATE IMMUNITY
A cook at the Sudanese embassy, and a member of the domestic staff of the Libyan embassy, both made claims arising out of their employment. They were met with pleas of State Immunity, . .
At CA – Benkharbouche and Another v Embassy of The Republic of Sudan CA 5-Feb-2015
The claimant had been an employee of a foreign diplomatic mission. He said that he was not debarred by the 1978 Act from bringing claims for unfair dismissal and breach of working time regulations, saying that any exemption would infringe his human . .
Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
Cited – The Owners of The Ship Philippine Admiral (Philippine Flag) v Wellem Shipping (Hong Kong) Limited and Another PC 5-Nov-1975
(Hong Kong) Sovereign immunity was denied to state trading ships, restricting the extent of state immunity. . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Markovic and Others v Italy ECHR 14-Dec-2006
The applicants were relatives of persons who had been killed in the NATO air-raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had . .
Cited – Fayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – Waite and Kennedy v Germany ECHR 18-Feb-1999
The grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Sabeh El Leil v France ECHR 29-Jun-2011
Grand Chamber – The applicant alleged that he had been deprived of his right of access to a court as a result of the immunity from jurisdiction upheld by the domestic courts.
This was a claim for unfair dismissal, brought before the French . .
Cited – Cudak v Lithuania ECHR 23-Mar-2010
Grand Chamber – The applicant alleged that there had been a violation of her right of access to a court, as guaranteed by Article 6-1 of the Convention.
The applicant was a secretary and switchboard operator employed in the Polish embassy in . .
Cited – Wallishauser v Austria (No 2) ECHR 20-Jun-2013
. .
Cited – Radunovic And Others v Montenegro ECHR 25-Oct-2016
. .
Cited – Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) ICJ 1986
The prohibition on the use of force in article 2(4) of the United Nations Charter was accepted as jus cogens, a universally recognised principle of international law. . .

Cited by:

Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.

Human Rights, European, Employment, Discrimination

Updated: 04 September 2022; Ref: scu.597258

Eliassen and Another v Eliassen and Others: CA 1 Apr 2011

M (British) and F (Norwegian) had their two daughters in Norway. M removed them to England saying that she feared F’s alleged psychological abuse of the children. She now appealed against an order for their return arguing that the exception to the need to make suich an order for cases where the child might be at risk applied here.
Held: The appeal failed.

Judges:

Thorpe, Aikens, Black LJJ

Citations:

[2011] EWCA Civ 361

Links:

Bailii

Statutes:

1980 Hague Convention on the Civil Aspects of Child Abduction

Jurisdiction:

England and Wales

Cited by:

Appeal From – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 04 September 2022; Ref: scu.431634

Plonka v Poland: ECHR 31 Mar 2009

The applicant signed a form acknowledging that she had been informed of her right to be assisted by a lawyer during her questioning by the police and the prosecution authorities.
Held: Her assertion in the form that she had been reminded of her right to remain silent and to be assisted by a lawyer could not be considered reliable as she was suffering from alcoholism and was in a vulnerable position as the time of her interview.

Citations:

20310/02, [2009] ECHR 2277

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 04 September 2022; Ref: scu.431334

Dayanan v Turkey: ECHR 13 Oct 2009

The claimant challenged his conviction after he had not been given access to a lawyer whilst detained and after, during the appeal process, prosecution material was submitted to the court which was not shown to him. Nevertheless he had remained silent at interview.
Held: There had been a breach of article 6(3)(c) in conjunction with article 6(1) because he did not have access to a lawyer while he was being interrogated: ‘The Court believes that equity requires of criminal proceedings in general, for the purposes of Article 6 of the Convention, that the suspect enjoys the opportunity to be assisted by a lawyer from the time of placement custody or on remand.
As highlighted the generally recognized international standards, the Court accepts that frame and its jurisprudence, an accused must, as soon as it is deprived of liberty, to benefit from the assistance of counsel and that regardless of his interrogation sudden . . Indeed, procedural fairness requires that the accused can get all the wide range of interventions that are specific to the board. In this regard, the discussion of the case, the defense organisation, the collection of evidence favorable to the accused, the preparation of interrogation, the support of the accused in distress and monitoring of prison conditions are basic elements of the defense counsel must freely exercise.’

Judges:

Francoise Tulkens, President

Citations:

7377/03, [2009] ECHR 2278

Links:

Bailii

Statutes:

European Convention on Human Rights 6

Cited by:

Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 September 2022; Ref: scu.431335

G v E and Others: CoP 26 Mar 2010

E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed him from her care. As he had become an adult, E had displayed physically challenging behaviour to his carer and at school. He also said that he had been unlawfully deprived of his liberty.
Held: The court considered the safeguards introduced by the 2007 Act. It was agreed that E lacked capacity, and that the degree of confinement under which he was placed amounted to a deprivation of liberty. That deprivation had been unlawful. Carrying out a balancing exercise to decide on E’s best interests, it would be wrong to allow an immediate return to G. The Authority must devise a programme for increasing contact with G so that E could return when appropriate, with a review hearing later.

Judges:

Baker J

Citations:

[2010] EWHC 621 (Fam), [2010] EWHC 621 (COP), [2010] 2 FLR 294, [2010] Fam Law 703

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights 5 6, Mental Capacity Act 2005, Mental Health Act 2007

Citing:

Cited – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – A Local Authority v MA and others; Re SA (Vulnerable Adult with Capacity: Marriage) FD 15-Dec-2005
Munby J discussed the court’s inherent powers to make orders to protect the welfare of a vulnerable adult: ‘It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests . . The particular form of order . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – HL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Re DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She . .
Cited – GJ v The Foundation Trust and Another FD 20-Nov-2009
The statutory provisions of the 2007 Act for review of standard authorisations were matters that the Court of Protection should take into account in determining whether it should make an order authorising the deprivation of P’s liberty, and if so . .
Cited – In re S (Adult patient) (Inherent jurisdiction: Family life); Sheffield City Council v S FD 2002
A court could only grant an order permitting treatment despite the absence of an adult patient’s consent by virtue of the doctrine of necessity.
Munby J said: ‘in our multi-cultural and pluralistic society the family takes many forms . . The . .
Cited – In re M; ITW v Z and Others (Statutory Will) FD 12-Oct-2009
The court considered a request for a statutory will under the 2005 Act.
Held: the Court of Protection has no jurisdiction to rule on the validity of any will. However, Munby J made three points: (1) that the 2005 Act laid down no hierarchy as . .
Cited – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
Cited – Local Authority X v MM and Another; re MM (An Adult) FD 21-Aug-2007
The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does . .
Cited – Storck v Germany ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected ( res iudicata ); Violation of Art. 5-1 (placement in private clinic from 1977 to 1979); No separate issue under Arts. 5-4 and 5-5; No . .
Cited – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
Cited – K And T v Finland ECHR 12-Jul-2001
ECHR Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to emergency care order concerning J.; No violation of Art. 8 with regard to emergency care order concerning M.; No violation of Art. 8 . .
Cited – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
Cited – St George’s Healthcare National Health Service Trust v S, Regina v Collins and Others ex parte S CA 8-May-1998
The authority wanted S to be admitted to hospital, if necessary against her will. She was pregnant and wanted to have a natural birth, even at great risk to herself and her baby. She had refused medical treatment for eclampsia. The caesarian had by . .
Cited – Secretary of State for the Home Department v E and Another HL 31-Oct-2007
The applicant, who was subject to a control order, complained that the respondent had failed as required to keep under review the possibility of a prosecution, and had renewed the order without satisfying that requirement.
Held: The appeal . .
Approved – London Borough of Enfield v SA, FA and KA 2010
McFarlane J considered whether hearsay statements from a person who lacked capacity were admissible under the 2007 Rules (‘COPR’).
Held: The power of the Court to ‘admit such evidence, whether written or oral, as it thinks fit’ pursuant to . .

Cited by:

Appeal from – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Appeal From – G v E and Others CA 4-May-2010
E, now aged 19, suffered a genetic condition leading to severe learning disability, and a lack of mental capacity. After being in the care of F, but displaying potentially violent behaviours, he was removed against his and F’s will to the care of . .
See Also – G v E and Others FD 21-Dec-2010
(Court of Protection) Baker J awarded costs against a local authority which had been guilty of misconduct which, he held, justified departure from the general rule. He observed: ‘Parties should be free to bring personal welfare issues to the Court . .
See Also – Manchester City Council v G and Others CA 2-Aug-2011
The Council had been found to have wrongfully deprived the applicant of his liberty. They appealed now against an award of costs made against them.
Held: The appeal failed. The judge the power to depart from the usual order made under rule 157 . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Health, Human Rights, Torts – Other

Updated: 04 September 2022; Ref: scu.431228

Faulkner, Regina (on The Application of) v Secretary of State for Justice The Parole Board: CA 29 Mar 2011

The court considered the approriate level of damages where the claimant’s detention had been wrongly extended through a failure to hold a timely review of his continued detention.
Held: A sum of andpound;10,000 was awarded. The court should not adjust its award according to the degree of probability of release had the violation not occurred.

Judges:

Sedley LJ

Citations:

[2011] EWCA Civ 349

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Faulkner, Regina (On the Application of) v Secretary of State for Justice and Another Admn 5-Jun-2009
The claimant had sought to challenge his continued detention in prison when his situation should have been reviewed but had not been. As a lifer he had served the time set in his tariff.
Held: The applicant was unlawfully at large and had not . .
Main Appeal – Faulkner, Regina (on The Application of) v Secretary of State for Justice The Parole Board CA 14-Dec-2010
The claimant sought damages saying that his detention in prison beyond the minimum period pending a review was unlawful when that review was delayed. He now appealed against dismissal of his claim when he had not appeared at court, being unlawfully . .

Cited by:

Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Damages

Updated: 04 September 2022; Ref: scu.431245

Golder v The United Kingdom: ECHR 21 Feb 1975

G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his civil rights . . everyone is entitled to a fair . . hearing’, as requiring a right of access to a solicitor. ‘Article 6(1) does not state a right of access to the courts or tribunals in express terms. It enunciates rights which are distinct but stem from the same basic idea and which, taken together, make up a single right not specifically defined in the narrower sense of the term. It is the duty of the Court to ascertain, by means of interpretation, whether access to the courts constitutes one factor or aspect of this right . . The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally ‘recognised’ fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6(1) must be read in the light of these principles . . It follows that the right of access constitutes an element which is inherent in the right stated by Article 6(1).’

Citations:

4451/70, [1975] 1 EHRR 524, [1975] ECHR 1

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6-1

Jurisdiction:

Human Rights

Cited by:

Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – 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 – Kent Pharmaceuticals Ltd, (Regina on the Application of ) v Serious Fraud Office and Another Admn 17-Dec-2003
The claimant sought judicial review of the decision of the respondent to disclose documents obtained by it from them during an investigation.
Held: The decisions to disclose material to the DoH were ‘in accordance with law’ within the meaning . .
Cited – Secretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
Cited – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Her Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor) PC 28-Jun-2005
(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European . .
Cited – Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – MGN Limited v United Kingdom ECHR 18-Jan-2011
The applicant publisher said that the finding against it of breach of confidence and the system of success fees infringed it Article 10 rights to freedom of speech. It had published an article about a model’s attendance at Narcotics anonymous . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 03 September 2022; Ref: scu.164863

COS v PER and Another: QBD 3 Mar 2021

Reasons for grant of injunction to restrain the Defendants from publishing private information and other information detrimental to the Claimant and ordering them to remove a particular video from the internet.

Judges:

Morris J

Citations:

[2021] EWHC 475 (QB)

Links:

Bailii

Statutes:

Protection from Harassment Act 1997 191)

Jurisdiction:

England and Wales

Litigation Practice, Human Rights

Updated: 03 September 2022; Ref: scu.659221

Holland v Lampen-Wolfe: HL 20 Jul 2000

The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state immunity.
Held: A claim in libel was defeated by a claim of sovereign immunity. Such provision was part of its Acts as a state, and attracted sovereign immunity. A report which was defamatory of the plaintiff as to her teaching skills and which report was prepared as part of the provision of such services was something done by the armed forces of the US: ‘the performance of her teaching obligations under the contract between the University and the American Government involved the public function of the state in the provision of instruction to the American forces and their families. The supervisory functions required of the respondent were correspondingly involved in that same enterprise. ‘
Lord Millett said: ‘state immunity is not a ‘self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt’ and which it can, as a matter of discretion, relax or abandon. It is imposed by international law without any discrimination between one state and another. It would be invidious in the extreme for the judicial branch of government to have the power to decide that it will allow the investigation of allegations of torture against the officials of one foreign state but not against those of another.’
Lord Millet said: ‘Article 6 requires contracting states to maintain fair and public judicial processes and forbids them to deny individuals access to those processes for the determination of their civil rights. It presupposes that the contracting states have the powers of adjudication necessary to resolve the issues in dispute. But it does not confer on contracting states adjudicative powers which they do not possess. State immunity, as I have explained, is a creature of customary international law and derives from the equality of sovereign states. It is not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United Kingdom itself.
The immunity in question in the present case belongs to the United States. The United States has not waived its immunity. It is not a party to the Convention. The Convention derives its binding force from the consent of the contracting states. The United Kingdom cannot, by its own act of acceding to the Convention and without the consent of the United States, obtain a power of adjudication over the United States which international law denies it.’

Judges:

Lord Millett, Lord Hope of Craighead Lord Cooke of Thorndon Lord Clyde, Lord Hobhouse of Woodborough

Citations:

Gazette 17-Aug-2000, Times 27-Jul-2000, Gazette 03-Aug-2000, [2000] 1 WLR 1573, [2000] UKHL 40, [2000] 3 All ER 833

Links:

House of Lords, Bailii

Statutes:

State Immunity Act 1978, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Peter Buchanan Limited and Macharg v McVey 1954
(Supreme Court of Ireland) The plaintiff was a company registered in Scotland put into compulsory liquidation by the revenue under a substantial claim for excess profits tax and income tax. The liquidator was really a nominee of the revenue. The . .
Cited – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
Cited – Waite and Kennedy v Germany ECHR 18-Feb-1999
The grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by . .
Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – The Owners of The Ship Philippine Admiral (Philippine Flag) v Wellem Shipping (Hong Kong) Limited and Another PC 5-Nov-1975
(Hong Kong) Sovereign immunity was denied to state trading ships, restricting the extent of state immunity. . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others CA 19-Apr-1992
In two issues of ‘The Sunday Times’ newspaper on 17 and 24 September 1989 there appeared articles concerning share deals involving the superannuation fund of the Derbyshire County Council. The articles in the issue of 17 September were headed . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Littrell v Government of the United States of America and Another (No 2) CA 24-Nov-1993
The plaintiff claimed damages for personal injuries arising from medical treatment which he had received at a United States military hospital in the United Kingdom while a serving member of the United States Air Force.
Held: Section 16(2) . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – M and Another v Newham London Borough Council and Others; X (Minors) v Bedfordshire County Council CA 24-Feb-1994
A local authority was not liable in damages for breach of a statutory duty in Social Services. The policy which has first claim on the loyalty of the law is that wrongs should be remedied. The court would not go so far as to hold that the education . .
Cited – NCF and AG v Italy 1995
The Commission held the application inadmissible on the ground, among others, that article 6 should be interpreted with due regard to parliamentary and diplomatic immunities as traditionally recognised. In the absence of any directly relevant . .
Cited – Fayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
Appeal from – Holland v Lampen-Wolfe CA 30-Jul-1998
A US citizen acting in course of employment as educational officer on US military base in the UK enjoyed state immunity from liability for defamation. This applied though he was a civilian and the State Immunity Act 1978 did not apply. . .

Cited by:

Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Defamation, Human Rights, International

Updated: 03 September 2022; Ref: scu.159074

McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom: ECHR 21 Nov 2001

Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: Rules granting the State immunities, did not infringe the applicants’ right to a fair trial under article 6. In each case the applicant sought to pursue an action against a government, and the courts had accepted pleas of state immunity. Sovereign immunity is a concept of international law, under which one state was not subject to the jurisdiction of another.
Held: The Convention should, so far as possible, be interpreted in harmony with other rules of international law. ‘The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity.’ The law against torture has attained the state of jus cogens. In the Soering judgment: ‘it was emphasised, however, that in so far as any liability under the Convention might be incurred in such circumstances it would be incurred by the expelling Contracting State by reason of its having taken action which had as a direct consequence the exposure of an individual to proscribed ill-treatment.’
The claimant Al-Adsani, said that he had been tortured in Kuwait during the war against Iraq. He complained that the UK courts had given him no remedy.
The claimant Fogarty had applied unsuccessfully for posts at the US Embassy in London. She issued proceedings claiming that she was the victim of sex discrimination. The US Government claimed state immunity under section 16(1)(a) of the State Immunity Act 1978. She contended that this constituted a violation of article 6(1) of the ECHR taken together with article 14.
Held: Her claim was rejected. The article 6(1) right of access to court is not absolute. The court considered whether the limitation of the right by state immunity pursued a legitimate aim, and held that the grant of sovereign immunity to a state in civil proceedings pursues the legitimate aim ‘of complying with international law to promote comity and good relations between States through respect of another State’s sovereignty’. Compliance with a state’s international law obligations is conclusive on the issue of proportionality.

Judges:

Wildhaber, Palm, Rozakis, Ferrari Bravo, Jorundsson, Caflisch, Loucaides, Cabral Barreto, Jungwiert, N Bratza, Zupancic, Vajic, Pellonpaa, Tsatsa-Nikolovska, Levits, Kovler and Kearns JJ

Citations:

Times 26-Nov-2001, 37112/97, 35763/97, 31253/96, 5763/97, [2001] 34 EHRR 302, [2001] ECHR 752, [2001] ECHR 753, [2001] ECHR 754, (2002) 34 EHRR 11, 35763/97, [2001] ECHR 761, [2001] ECHR 762, [2001] ECHR 763, (2001) 34 EHRR 273, 12 BHRC 88, (2002) 34 EHRR 12

Links:

Worldlii, Worldlii, Worldlii, Bailii, Bailii, Bailii

Statutes:

European Convention on Human Rights Art 6, State Immunity Act 1978

Jurisdiction:

Human Rights

Citing:

Appeal from – Al-Adsani v Government of Kuwait and Others (No 2) CA 29-Mar-1996
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .

Cited by:

Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – Mohamed Moneim Al-Fayed for Judicial Review of A Decision of the Lord Advocate To Refuse To Instruct A Public Inquiry Into the Death of Emad Al-Fayed OHCS 12-Mar-2004
The claimant sought judicial review of the minister’s decision not to order a judicial public investigation of the death of his son in a car crash in Paris.
Held: The primary obligation to undertake an enquiry fell upon France. The obligation . .
Appealed to – Al-Adsani v Government of Kuwait and Others (No 2) CA 29-Mar-1996
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Cited – Aziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.

International, Human Rights

Updated: 03 September 2022; Ref: scu.166855

Waite and Kennedy v Germany: ECHR 18 Feb 1999

The grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by individual governments had a legitimate aim, measured up to the test of proportionality and did not involve a violation of article 6.

Judges:

Wildhaber P

Citations:

26083/94, [2000] 30 EHRR 261, [1999] ECHR 13, [1999] 6 BHRC 499

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 03 September 2022; Ref: scu.165696

Regina on the Application of Uttley v Secretary of State for the Home Department: CA 30 Jul 2003

Licence conditions imposed at the time of sentence would restrict the defendant after he had served his sentence and been released, and so operated as a heavier penalty, and section 33(1) was incompatible with the defendant’s Art 7.1 rights.
Held: Before the 1991 Act, a prisoner was entitled to release after serving the necessary part of his sentence without additional conditions. Provisions for early release were part of the sentence, and were punitive in nature. Whether punitive or preventive, they operated to restrict the defendant.
Pill LJ said: ‘In my judgment the licence is plainly a part of the sentence originally imposed by the sentencing judge . . While licence conditions vary and in some cases will be more onerous than in others, it is not and cannot be disputed that conditions will inevitably be imposed which are impediments upon the offender’s freedom of action . . Arguments that the purpose of the licence procedures is rehabilitative and preventative, as undoubtedly in part they are, do not detract from their onerous nature viewed as part of the sentence. Whatever the purpose, the effect is onerous.’

Judges:

Lord Justice Pill Lord Justice Longmore Mr Justice Maurice Kay

Citations:

[2003] EWCA Civ 1130, Times 04-Aug-2003, [2003] 1 WLR 2590

Links:

Bailii

Statutes:

Criminal Justice Act 1991 33(2), European Court of Human Rights A-7.1

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (Uttley) v Secretary of State for the Home Department Admn 8-Apr-2003
The court had to consider consider whether the application of statutory provisions requiring a prisoner to be released on licence, that were not applicable at the date of the offence, violated Article 7. The claimant had been sentenced to 12 years’ . .
Cited – Ibbotson v United Kingdom ECHR 1998
While the applicant was serving a sentence for possession of obscene material, the 1997 Act came into force, requiring him to register with the police. It was argued that the passing of the Act and its impact on the offender involved a ‘penalty’ . .
Cited – Welch v United Kingdom ECHR 15-Feb-1995
The applicant was convicted in 1988 of drug offences committed in 1986. The judge passed a sentence of imprisonment but imposed a confiscation order pursuant to an Act that came into force in l987.
Held: The concept of penalty in Article 7 was . .
Cited – Ezeh and Connors v The United Kingdom ECHR 15-Jul-2002
The applicants were serving prisoners. They had been the subject of disciplinary proceedings in which they had been denied the right to representation. They claimed an infringement of their right to a fair trial.
Held: Both proceedings had . .
Appealed to – Uttley, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2004
In 1995 the defendant was sentenced to twelve years for rapes committed in 1983. He complained that the consequences of the later sentence were adverse because of the 1991 Act. He would now serve three quarters of the sentence rather than two . .

Cited by:

Appealed to – Regina (Uttley) v Secretary of State for the Home Department Admn 8-Apr-2003
The court had to consider consider whether the application of statutory provisions requiring a prisoner to be released on licence, that were not applicable at the date of the offence, violated Article 7. The claimant had been sentenced to 12 years’ . .
Appeal from – Uttley, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2004
In 1995 the defendant was sentenced to twelve years for rapes committed in 1983. He complained that the consequences of the later sentence were adverse because of the 1991 Act. He would now serve three quarters of the sentence rather than two . .
Cited – O’Dowd (Boy George) v National Probation Service London Admn 23-Dec-2009
Refusal of curfew relaxation was reasonable
The claimant had been released from prison early on licence subject to conditions including a home detention curfew. He was offered a place on a TV programme, Celebrity Big Brother, which would require relaxation or alteration of his place of . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 03 September 2022; Ref: scu.185242

Valerie Gas And Nathalie Dubois v France: ECHR 11 Mar 2011

Citations:

25951/07, [2010] ECHR 444

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

Cited – X and Others v Austria (Summary) ECHR 19-Feb-2013
(Grand Chamber) Article 14
Discrimination
Impossibility of second-parent adoption in same-sex couple:
violation
Facts – The first and third applicants are two women living in a stable homosexual relationship. The second . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 03 September 2022; Ref: scu.430590

Greens v The United Kingdom: ECHR 23 Nov 2010

The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in respect of which the national authorities enjoy a discretionary area of judgment, it may be appropriate to leave the national legislature a reasonable period of time to address those issues.
The Court gave the United Kingdom six months to introduce legislative proposals to amend RPA section 3.

Judges:

Lech Garlicki, P

Citations:

[2010] ECHR 1826, 60041/08

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights 3, Representation of the People Act 1983 3

Citing:

See Also – Robert W Greens v The United Kingdom ECHR 27-Aug-2009
. .
See Also – Greens v Her Majesty’s Advocate HCJ 12-Sep-2007
The defendant appealed against his sentence of seventeen years’ imprisonment for a violent rape. . .

Cited by:

Cited – Tovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
Cited – GC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
See Also – Greens and Others, Re Application for Judicial Review SCS 12-May-2011
. .
Cited – GC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – 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, Scotland, Prisons, Elections

Updated: 03 September 2022; Ref: scu.430519

Frodl v Austria: ECHR 8 Apr 2010

The applicant alleged that his disenfranchisement because he was serving a term of imprisonment of more than one year constituted a breach of his rights under Article 3 of Protocol No. 1.

Judges:

Christos Rozakis, P

Citations:

(2011) 52 EHRR 5, [2010] ECHR 508, 20201/04

Links:

Bailii

Statutes:

European Convention on Human Rights P1A3

Citing:

Admissibility – Frodl v Austria ECHR 8-Jan-2009
Admissibility . .

Cited by:

Cited – Tovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
Judgment – Helmut Frodl v Austria ECHR 14-Sep-2011
Execution of judgment . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Elections

Updated: 03 September 2022; Ref: scu.430520

Howlett v Holding: QBD 25 Jan 2006

The court had granted an injunction to restrain the defendant from flying aircraft trailing banners abusive of the claimant. He now said that this infringed his right to free speech, and that his actions were permitted by virtue of section 1(3).
Held: Eady J drew from Hansard the proposition that the sub-section was framed with law enforcement agencies in mind. The defence: ‘is not designed to enable any Tom, Dick or Harry to set himself up as a vigilante and harass his neighbours under the guise of preventing or detecting crime.’ There must be ‘objectively judged some rational basis’ for it.

Judges:

Eady J

Citations:

[2006] EWHC 41 (QB)

Links:

Bailii

Statutes:

Protection from Harassment Act 1997, European Convention on Human Rights 10

Jurisdiction:

England and Wales

Cited by:

Cited – Hayes v Willoughby CA 13-Dec-2011
Harassment Occurs on the Result, not the Intention
The claimant said that over several years, the respondent had pursued him in many ways challenging his management of a company’s affairs. Complaints had been investigated by the insolvency service and by the police who had discovered nothing to . .
Cited – Hayes v Willoughby SC 20-Mar-2013
The claimant and appellant had been employer and employee who had fallen out, with a settlement in 2005. The appellant then began an unpleasant and obsessive personal vendetta against Mr Hayes, complaining to public bodies with allegations of tax . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Human Rights

Updated: 03 September 2022; Ref: scu.430505

MNB v News Group Newspapers Ltd: QBD 9 Mar 2011

The defendant resisted an order preventing disclosure of information said by the claimant to be private.
Held: At the start of the hearing before herself, she had been told that the application for an interim injunction was no longer opposed. Subject to its right to apply to discharge or vary the order, NGN had agreed that the order should continue until trial or further order. Sharp J said: ‘There is no doubt in my view that the Claimant’s article 8 rights are engaged, both in relation to the subject matter of the action, and the identification of him as the Claimant. There is no doubt either that publication of the information as to the fact or details of the affair will result in some interference with the Claimant’s private life. It is not currently suggested by the Defendant that there is a public interest in the publication of the information or that there is any other reason for it to be disclosed. It is not suggested for example that the information was in the public domain. I am satisfied in accordance with section 12(3) of the Human Rights Act 1998 that the Claimant is likely to establish at trial that publication of the information should not be allowed.’

Judges:

Sharp J

Citations:

[2011] EWHC 528 (QB), HQ11X00782

Links:

Bailii

Statutes:

European Convention on Human Rights 10, Human Rights Act 1998 12(3)

Cited by:

See Also – Goodwin v News Group Newspapers Ltd QBD 27-May-2011
An associated claimant alleged contempt against another newspaper for publishing matters so as to defeat the purposes of a privacy injunction granted to her.
Held: Even though the principle claimant had been subsequenty identified with the . .
See Also – Goodwin v News Group Newspapers Ltd QBD 23-May-2011
The claimant had obtained orders restricting publication by the defendant of stories of his relationship with a woman. The order had also restrained publication of their names. The names had since been revealed under parliamentary prvilege, and the . .
See Also – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 03 September 2022; Ref: scu.430503

Robinson, Regina (on The Application of) v Secretary of State for Justice: CA 19 May 2010

The appellant had been released on licence during his sentence but then recalled. He contended that the effect of the newly introduced section 50A was a retrospective increase in his sentencce.

Judges:

Lord Nueberger MR, Moses, Munby LJJ

Citations:

[2010] EWCA Civ 848, [2010] 1 WLR 2380

Links:

Bailii

Statutes:

Criminal Justice Act 1991 50A, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – Black, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
Cited – Practice Direction (Criminal Proceedings: Consolidation) CACD 8-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 03 September 2022; Ref: scu.430473

Hirst v The United Kingdom: ECHR 3 Dec 2009

(Resolutions) The court noted the long delay in the respondent in implementing the judgment of the court and giving prisoners voting rights, the present consultation and adjourned until March 2011 for further information.

Citations:

[2009] ECHR 2260, 4025/01

Links:

Bailii

Statutes:

Representation of the People Act 1983 3, European Convention on Human Rights 3

Citing:

At Commission – Hirst v The United Kingdom (No. 2) ECHR 30-Mar-2004
(Commission) The prisoner alleged that the denial of his right to vote whilst in prison was disproportionate. He was serving a life sentence for manslaughter.
Held: The denial of a right to vote was in infringement of his rights and . .
Grand Chamber – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Elections

Updated: 03 September 2022; Ref: scu.430457

EB v France: ECHR 22 Jan 2008

The claimant, a homosexual woman, complained that her homosexuality had meant her disqualification from adopting a child.
Held: There is no right to foster, but the provision was an unlawful discrimination. The denial of adoption to a woman in a same sex relationship could not be justified.
Where the difference in treatment is based on sexual orientation, a court must apply ‘strict scrutiny’ to the assessment of any asserted justification: ‘particularly convincing and weighty reasons to justify’ it are required

Citations:

[2008] ECHR 55, (2008) 47 EHRR 21, 43546/02, [2008] 1 FLR 850, [2008] 1 FCR 235, 23 BHRC 741

Links:

Bailii

Statutes:

European Convention on Human Rights 9

Jurisdiction:

Human Rights

Citing:

See Also – EB v France ECHR 14-Mar-2007
A homosexual woman complained that she had not been allowed to adopt a child. Her application was rejected by the French administrative court on grounds based substantially upon her sexual orientation.
Held: The provision was an unlawful . .

Cited by:

See Also – EB v France ECHR 30-Sep-2009
. .
Cited – Johns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
Cited – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption, Discrimination

Updated: 03 September 2022; Ref: scu.430274

Modaresi, Regina (on The Application of) v Secretary of State for Health and Others: Admn 3 Mar 2011

The claimant sought judicial review of her detention under section 2 of the 1983 Act.
Held: The request was rejected. The tribunal had been correct to treat the original application as out of time. The Secretary of State’s decision was neither unreasonable nor in breach of her rights under the Convention, and an isolated failure by the trust did not give rise to a breach of article 5(4).

Judges:

Edwards-Stuart J

Citations:

[2011] EWHC 417 (Admin)

Links:

Bailii

Statutes:

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

Cited by:

Appeal From – Modaresi, Regina (on The Application of) v Secretary of State for Health and Others CA 23-Nov-2011
The appellant had been detained under the 1983 Act. Her appeal had been declined as out of time, and she now appealed against rejection of her request for judicial review.
Held: The appeal failed, even though the application to the tribunal . .
At first instance – Modaresi, Regina (on The Application of) v Secretary of State for Health SC 24-Jul-2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 03 September 2022; Ref: scu.430285

EB v France: ECHR 30 Sep 2009

Citations:

[2009] ECHR 1685, 43546/02

Links:

Bailii

Statutes:

European Convention on Human Rights 9

Citing:

See Also – EB v France ECHR 14-Mar-2007
A homosexual woman complained that she had not been allowed to adopt a child. Her application was rejected by the French administrative court on grounds based substantially upon her sexual orientation.
Held: The provision was an unlawful . .
See Also – EB v France ECHR 22-Jan-2008
The claimant, a homosexual woman, complained that her homosexuality had meant her disqualification from adopting a child.
Held: There is no right to foster, but the provision was an unlawful discrimination. The denial of adoption to a woman in . .

Cited by:

Cited – Bristol Alliance Ltd v Williams and Another QBD 1-Jul-2011
The driver had crashed into the insured’s building causing substantial damage. The court was asked which of the driver’s and building’s insurers should bear the costs. The driver’s insurers said that he had acted deliberately and therefore they were . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption, Discrimination

Updated: 03 September 2022; Ref: scu.430275