Category: Human Rights

Power v Greater Manchester Police Authority: EAT 29 Apr 2010

EAT RELIGION OR BELIEF DISCRIMINATION
There is no breach of ECHR Art 6 when a corporate employer accused of discrimination fails to produce the decision maker at trial to face cross-examination. Art 6.3(d) applies to criminal proceedings. It was reasonably arguable from the construction of the dismissal letter that the Claimant’s belief in spirituality, correctly protected by the 2003 Regulations, contributed to the decision to dismiss him.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0087 – 10 – 2904

Links:

Bailii

Statutes:

Religion and Belief Regulations 2003

Jurisdiction:

England and Wales

Employment, Discrimination, Human Rights

Updated: 18 August 2022; Ref: scu.415918

Flaxmode Ltd v Revenue and Customs: FTTTx 13 Jan 2010

FTTTx INCOME TAX-PENALTY-Failure to produce documents in accordance with section 19 TMA 1970 order – daily penalties imposed under section 97AA(1)(b)TMA 1970 – was the penalty a criminal charge within the meaning given by Strasbourg cases – no – was article 6(3)(a) ECHR engaged – no – did the penalty determination comply with section 100 TMA 1970 – yes – did the Appellant have a reasonable excuse – No – Appeal dismissed

Judges:

Michaell Tildesley

Citations:

[2010] UKFTT 28 (TC)

Links:

Bailii

Statutes:

Taxes Management Act 1970 19 97AA(1)(b), European Convention on Human Rights 6(3)(a)

Income Tax, Taxes Management, Human Rights

Updated: 17 August 2022; Ref: scu.408884

Birmingham City Council v Clue (Shelter intervening): CA 29 Apr 2010

The claimant had sought housing from the appellant. It had taken the view that her application for indefinite leave to remain would be refused and had rejected her application. The court had found it improper of the council to prejudge the decision of the immigration authorities. The council appealed.
Held: The appeal failed. Except only in hopeless or abusive cases, the council were neither entitled nor required to make such a judgment. Hers was not such a case.
The questions they were to answer in making the housing decision did not include many of the criteria for assessment by the Secretary of State making his decision.

Judges:

Dyson, Etherton LJJ, Sir Scott Baker

Citations:

[2010] EWCA Civ 460, [2010] WLR (D) 109

Links:

Bailii, Times, WLRD

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Human Rights, Immigration, Housing

Updated: 17 August 2022; Ref: scu.408779

Charahili v Turkey: ECHR 13 Apr 2010

Citations:

46605/07, [2010] ECHR 565

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 17 August 2022; Ref: scu.408488

Depalle v France: ECHR 29 Mar 2010

Grand Chamber
The Court summarised the effect of Sporrong: ‘The Court reiterates that, according to its case-law, Article 1 of Protocol No 1, which guarantees in substance the right of property, comprises three distinct rules (see, inter alia, James v United Kingdom (1986) 8 EHRR 123, para 37): the first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Bruncrona v Finland (2005) 41 EHRR 28, paras 65-69 and Broniowski v Poland (2005) 40 EHRR 21, para 134).
Regarding whether or not there has been an interference, the Court reiterates that, in determining whether there has been a deprivation of possessions within the second ‘rule’, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are ‘practical and effective’, it has to be ascertained whether the situation amounted to a de facto expropriation (see Brumarescu v Romania (2001) 33 EHRR 35, para 76 and Sporrong and Lonnroth v Sweden (1983) 5 EHRR 35, paras 63 and 69-74). ‘

Judges:

Nicolas Bratza, P

Citations:

34044/02, [2010] ECHR 385

Links:

Bailii

Statutes:

European Convention on Human Rights A1P1

Citing:

Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .

Cited by:

Cited – Cusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 17 August 2022; Ref: scu.406687

CN v The United Kingdom: ECHR 26 Mar 2010

Citations:

4239/08, [2010] ECHR 380

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

See Also – CN v The United Kingdom ECHR 13-Nov-2012
The claimant said that having been raped repeatedly in Uganda, she had fled to England, where her passport was taken and she was forced to work and her earnings taken, and she was held captive. On escaping, her application for asylum was refused. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 August 2022; Ref: scu.406685

Saeedi, Regina (on The Application of) v Secretary of State for The Home Department and Others: Admn 31 Mar 2010

The claimant claimed asylum in the United Kingdom, having entered illegally hidden in a lorry. During his screening interview he claimed to have left Afghanistan on 23 November 2008 and arrived in Iran 7 days later. After that he travelled to Turkey, arriving on 5 December 2008. From Turkey he travelled through Bulgaria, Romania, Hungary, Austria and Germany before arriving in Belgium. Then he travelled to the United Kingdom. He claimed to have used an agent, to whom his uncle paid between $11,000 and $12,000, to arrange his trip to the United Kingdom. He asserted that he had been unable to claim asylum in any of the countries through which he travelled because he was, at all material times, under the control of an agent.
Held: the application was refused, but leave to appeal to the Curt of Appeal was given.

Judges:

Cranston J

Citations:

[2010] EWHC 705 (Admin)

Links:

Bailii

Immigration, Human Rights

Updated: 16 August 2022; Ref: scu.406633

Checkprice (UK) Ltd (In Administration) v HM Revenue and Customs: Admn 31 Mar 2010

The claimant sought damages having been forced into liquidation after the defendant, it said, wrongfully seized its alcohol goods. Sales J had already held that the reasonable time had expired.
Held: Considering a claim for conversion of the goods in question, Sales J rejected the argument advanced by HMRC by way of analogy with the law on bailment. It had been submitted on behalf of HMRC that in a bailment context the bailee will not be liable for conversion for detaining goods if the reason upon which he relies is, on analysis, an unlawful one, provided he could lawfully have detained the goods for some other reason. Sales J said this: ‘I do not accept this argument. In the bailment example the bailee has an underlying right under the terms of the bailment to detain the goods, and it does not matter whether or not he correctly refers to that right at the time he detains the goods. On proper analysis, he detains the goods in question in circumstances where he has a right to detain them (cf. the right of an innocent party to a contract to rely on breaches of contract against the other party even though they were not invoked by him at the time he treated the contract as having been repudiated: Boston Deep Sea Fishing and Ice Co v Ansell (1888) LR 39 Ch D 339, CA). This analysis does not apply in the present case. HMRC had no right to withhold the goods in question save to the extent that they validly exercised a statutory power to do so. They had a statutory power under section 139(1) of CEMA to detain the goods for a reasonable period, which period expired in mid-August 2007. Thereafter, HMRC could only lawfully retain the goods if they properly exercised their distinct power of seizure contained in section 139(1). Exercise of that power of seizure brings into operation statutory provisions constituting a protective regime for the benefit of the property-owner. The notional availability of the power of seizure cannot be relied upon as a defence to a claim in conversion where it has not in fact been exercised and where, therefore, HMRC have not brought the statutory protective regime into operation. There is no underlying right of retention for HMRC as there is in the bailment situation. HMRC’s right of retention of the goods pursuant to the power of seizure is conditional upon their actual exercise of that power. Therefore, in my judgment, HMRC were liable for conversion in respect of the relevant goods in category C in mid-August 2007.’
As to the measure of damages, Sales J said: ‘section 144 of CEMA does not afford HMRC any defence . . since it is brought on account of the detention of the goods and at the point it arose HMRC’s reasonable grounds for detaining the goods had come to an end (see section 144(2)) . .’

Judges:

Sales J

Citations:

[2010] EWHC 682 (Admin), [2010] STC 1153, [2010] ACD 67

Links:

Bailii

Statutes:

Customs and Excise Management Act 1979 139 144

Citing:

Cited – Gora and others v Commissioners of Customs and Excise and others CA 11-Apr-2003
The appellants challenged decisions of the VAT and Duties Tribunal after seizure of their goods, and in particular whether the cases had been criminal or civil cases and following Roth, whether the respondent’s policy had been lawful and . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Human Rights

Updated: 16 August 2022; Ref: scu.406630

Bary and Another, Regina (on the Application of) v Secretary of State for the Home Department: Admn 7 Aug 2009

The defendants resisted extradition to the US to face charges of conspiracy to murder US citizens, saying that as suspected terrorists the likely prison conditions in which they would be held would amount to inhuman or degrading treatment or punishment.
Held: The applications failed. There is no one standard applicable across the world as to what would amount to inhuman or degrading treatment. The prison regime would be severe, but it would not be a breach of the applicants human rights to be extradited to face it: ‘Whether the high Article 3 threshold for inhuman and degrading treatment is crossed depends on the facts of the particular case. There is no common standard for what does or does not amount to inhuman or degrading treatment throughout the many different countries of the world.’

Judges:

Lord Justice Scott Baker, Mr Justice David Clarke

Citations:

[2009] EWHC 2068 (Admin), Times 14-Oct-2009

Links:

Bailii

Statutes:

Extradition Act 1989, European Convention on Human Rights 3 6

Jurisdiction:

England and Wales

Citing:

Cited – In Re Khalid Al-Fawwaz (Application for a Writ of Habeas Corpus) (on Appeal From a Divisional Court of the Queen’s Bench Division) HL 17-Dec-2001
The fact that a crime for which extradition was sought was extra-territorial one to the country making the request, was not enough to counter the application. The schedule required the person to be ‘accused or have been convicted of an extradition . .
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 – Warren, Regina (on the Application Of) v Secretary of State for the Home Department and Another Admn 14-Mar-2003
Hale LJ said that it would not generally be unjust to send someone back to a country face a fair process to determine whether or not he is fit to face trial adding: ‘I accept that it may be wrong or oppressive to do so if the inevitable result will . .
Cited – Wellington Regina, (on the Application of) v Secretary of State for the Home Department HL 10-Dec-2008
It was sought to extradite the defendant to face trial for two alleged murders. He now challenged the order for his extradition saying that his treatment in Missouri would amount to inhuman or degrading punishment in that if convicted he would face . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Deya v The Government of Kenya 2008
. .
Cited – Ahmad and Aswat v United States of America Admn 30-Nov-2006
The defendants appealed orders for their extradition. They were suspected of terrorist offences, and feared that instead of facing a trial, they would be placed before a military commission.
Held: The appeals failed. The court had diplomatic . .

Cited by:

Cited – Bary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
Lists of cited by and citing cases may be incomplete.

Extradition, Human Rights

Updated: 16 August 2022; Ref: scu.372683

Rutter, Regina (on the Application of) v The General Teaching Council for England: Admn 1 Feb 2008

The applicant challenged a decision of disciplinary committee to go ahead with an allegation of misconduct after considerable delay by council and failure to abide by its own rules. After not receiving a notice of proceedings the applicant had destroyed papers which he would have relied upon.
Held: Although the Council was amenable to judicial review, the rules explicitly gave the Council discretion and flexibility. They had not breached their obligations by virtue only of the failure to meet the timetable. It was not for the administrative court at this stage to say whether a fair trial was impossible, and the request for judicial review was refused.

Judges:

Munby J

Citations:

[2008] EWHC 133 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v General Council of the Bar ex parte Percival 1991
The Bar Council was amenable to judicial review for an alleged failure to comply with its own Professional Conduct Committee Rules (annexed to the Code of Conduct for the Bar of England and Wales) even though neither the Code of Conduct nor the . .
Cited – Spiers v Ruddy PC 12-Dec-2007
Limits to Powers in Devolution Cases
Mr Spiers had complained as to the competency of two temporary sheriffs called to hear case against him, saying that the temporary nature of their appointments did not allow them to constitute an independent tribunal. He now complained that the . .
Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Regina v HM Advocate and The Advocate General for Scotland PC 28-Nov-2002
(The High Court of Justiciary) The prosecution had accepted that the matter had been the subject of unreasonable delay, but wished to continue. The defendant sought a plea in bar, on the basis that continuing would infringe his rights.
Held: . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Lists of cited by and citing cases may be incomplete.

Administrative, Human Rights

Updated: 16 August 2022; Ref: scu.266106

Daltel Europe Ltd and others v Makki and others: CA 28 Feb 2006

The defendant had breached freezing orders and had verified statements put before the court without honestly believing them. He now challenged the subsequent contempt proceedings saying that they were criminal within section 25 of the 1988 Act and hearsay evidence should not have been allowed.
Held: The use of section 25 was confined to the Court of Appeal Criminal Division only, and did not apply. Contempt proceedings were civil in nature and subject to civil rules of evidence. That such proceedings were subject to article 8 of the Human Rights Convention did not prevent them being civil for this purpose.
Lloyd LJ said: ‘The making of a false statement on oath would be perjury, which plainly is a crime, and proceedings for which would be a prosecution, plainly criminal proceedings. When the new rules were devised, with the emphasis on verification of statements by a statement of truth, which is not made on oath, it was necessary to consider what should be the sanction for non-compliance. An offence could have been created, but it was not. Instead recourse was had to the established concept of contempt, which is not the subject of a prosecution or a trial before a jury, but rather of either proceedings within an existing action or separate proceedings before the Divisional Court brought by a Part 8 claim form.
The question being whether the applications before the judge were civil proceedings within the rather general definition in the 1995 Act, it seems to me that the judge was right to decide that they were.’

Judges:

Auld LJ, Lloyd LJ, Wilson LJ

Citations:

[2006] EWCA Civ 94, Times 08-Mar-2006, [2006] 1 WLR 2704

Links:

Bailii

Statutes:

Criminal Justice Act 1988 25, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

See Also – Daltel Europe Ltd (In Liquidation) and Others v Hassan Ali Makki ChD 17-Jun-2004
. .
Appeal from – Daltel Europe Ltd and others v Makki and others ChD 3-May-2005
Application was made for leave to bring proceedings for contempt of court. David Richards J said that: ‘Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number . .
See Also – Daltel Europe Ltd and others v Makki and others ChD 21-Oct-2005
. .

Cited by:

Cited – KJM Superbikes Ltd v Hinton CA 20-Nov-2008
The claimant had been sued for the misuse of trademarks by selling motorcycles imported via a parallel market. It claimed that the defendant had filed false evidence in that action, and now appealed a refusal by the judge to bring contempt . .
Cited – Barnes (T/A Pool Motors) v Seabrook and Others Admn 23-Jul-2010
In each of three cases, the former defendants sought leave to bring claims for contempt of court in respect of what it said were fraudulent claims by the respondents. The defendants argued that a party had first to go to the Attorney General.
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Human Rights, Evidence

Updated: 16 August 2022; Ref: scu.238757

Strain And Others v Romania: ECHR 21 Jul 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of P1-1; Violation of Art. 6-1 concerning the reasonable time; Inadmissible under Art. 6-1 concerning the others complaints; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings.

Citations:

57001/00, [2005] ECHR 532

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 16 August 2022; Ref: scu.229836

Al-Nashif v Bulgaria: ECHR 20 Jun 2002

Hudoc Judgment (Merits and just satisfaction) Preliminary objections dismissed (non-exhaustion, abuse of right of petition); Violation of Art. 5-4; Violation of Art. 8; Violation of Art. 13; Not necessary to examine Art. 9 or Art. 13+9; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
the Bulgarian authorities had deported the first applicant to Syria on grounds of national security. When prior to his deportation he had sought to appeal against the deportation order, the court had ruled that, inasmuch as it was on grounds of national security, the order was not open to appeal.
Held: The deportation had interfered with the first applicant’s right to respect for his family life and it followed from the absence of any facility to appeal against the order that the interference was not ‘in accordance with the law’ within the meaning of article 8(2): ‘Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information.’
So the court held that Bulgaria had breached the first applicant’s rights under article 8. It proceeded to hold, separately, that it had breached his rights under article 13 of the Convention in conjunction with article 8.

Citations:

50963/99, (2002) 36 EHRR 655, [2002] ECHR 502, (2003) 36 EHRR 37

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Mentioned – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Secretary of State for the Home Department v AF AM and AN etc CA 17-Oct-2008
The claimants were subject to non-derogating control orders, being non EU nationals suspected of terrorism. They now said that they had not had a compatible hearing as to the issue of whether they were in fact involved in terrorist activity.
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Pounder, Regina (on the Application of) v HM Coroner for the North and South Districts of Durham and Darlington and others Admn 22-Jan-2009
The deceased died aged 14 in a Secure Training Centre by hanging. He had complained of his treatment and restraint methods used. The mother sought judicial review of the conduct of the inquest, wanting the coroner not to have ruled on the legality . .
Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 August 2022; Ref: scu.174099

Nelson v United Kingdom: ECHR 1986

A complaint of discrimination was made based on differences between the laws governing remission and parole in Scotland and England.
Held: The complaint was dismissed. The differences were ‘not related in any way to the personal status of the applicant’.

Citations:

(1986) 49 DR 170

Jurisdiction:

Human Rights

Cited by:

Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 August 2022; Ref: scu.642148

Times Newspapers Ltd v United Kingdom: ECHR 5 Mar 1990

The Commission noted that there was no indication that the difference there in question was based on any ground such as ‘association with a national minority’. All that was being said was that differences between the laws in different jurisdictions were not in themselves discriminatory.

Citations:

14631/89

Jurisdiction:

Human Rights

Cited by:

Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 August 2022; Ref: scu.642147

P v United Kingdom: ECHR 11 Jul 1988

The Commission stated: ‘in many, if not all, of the contracting states, different legal jurisdictions exist in different geographical areas within the state (eg cantons, communes, Lander, etc) . . the mere existence of variations between such jurisdictions within a state does not constitute discrimination within the meaning of article 14 of the Convention.’

Citations:

13473/87

Jurisdiction:

Human Rights

Cited by:

Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 August 2022; Ref: scu.642146

Watling v The Chief Constable of Suffolk Constabulary and Another: QBD 2 Aug 2019

The claimant had been driving. He suffered a stroke, was arrested by a police officer as driving under the influence of drugs. Medical assistance was delayed at the police station, and the damage from the stroke was permanent.
Held: The actual symptoms were real but not standard stroke symptoms, and he was unable to establish that earlier medical assistance might have improved his outcome.

Judges:

His Honour Judge Saggerson

Citations:

[2019] EWHC 2342 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Police, Torts – Other, Human Rights

Updated: 16 August 2022; Ref: scu.642130

Dulgheriu and Another v The London Borough of Ealing: CA 21 Aug 2019

Appeal from rejection of challenge to Public Spaces protection order in area around family planning and abortion clinic.
Held: Appeal rejected.

Judges:

Sir Terence Etherton MR, Lady Justice King and Lady Justice Nicola Davies

Citations:

[2019] EWCA Civ 1490

Links:

Bailii

Jurisdiction:

England and Wales

Land, Human Rights

Updated: 16 August 2022; Ref: scu.641785

Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean: SC 28 Jun 2017

(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord Advocate now appealed.
Held: The question was a devolution issue, being ‘a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights’
Held: The appeal was allowed on the devolution issue, and the case remitted to the Appeal Court to reconsider the appeal.
The HCJ having misguided itself as to the assessment of the condition in a Taiwan jail, the Court reconsidered them, saying: ‘In this case the assurances are given on behalf of the central government of Taiwan, which is a developed society with a tradition of respect for the rule of law. There is no suggestion that the Taiwanese authorities ill-treated Mr Dean before he fled the country. The assurances are given by a senior responsible official and have been confirmed by two Ministers of Justice and by the Director General of the agency with responsibility for managing prisons. The assurances, and in particular those about his accommodation and separating him from group activities with other prisoners if that is necessary for his safety, are specific rather than general. The assurances envisage that United Kingdom consular staff will have access to Mr Dean in prison and include an undertaking to remedy any breach of the assurances which the consular staff raise with the prison authorities. The memorandum of understanding and the assurances have given a role to the consular staff which they have not had in the past in relation to United Kingdom citizens imprisoned in Taiwan. There is no reason to think that the consular staff would not perform their obligations to monitor the assurances if Mr Dean were to request their help. While there appears to have been no examination of the access which Mr Dean might have to legal advice, Dr McManus recorded the apparently successful operation of a complaints system in the prison and that some prisoners had obtained access to the domestic courts. This is the first occasion on which Taiwan has sought to extradite a United Kingdom citizen and the memorandum of understanding and the assurances are therefore untested. .’

Judges:

Lord Mance, Lord Sumption, Lord Reed, Lord Hughes, Lord Hodge

Citations:

[2017] UKSC 44, [2017] WLR 2721, [2017] SLT 773, [2017] 1 WLR 2721, 2017 GWD 21-345, [2017] WLR(D) 432, 2017 SCCR 388, UKSC 2016/0212

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 20170306am Video, SC 20170306pm video

Statutes:

European Convention on Human Rights, Scotland Act 1998 57(2), Extradition Act 2003 73

Jurisdiction:

Scotland

Citing:

Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – Omar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
Cited – Babar Ahmad And Aswat v United Kingdom ECHR 10-Apr-2012
The applicants said that if extradited to the USA to face charges related to terrorism, they would risk facing either imprisonment by Presidential decree, or full life terms.
Held: Detention conditions and length of sentences of five alleged . .
Leave refused – Dean v The Lord Advocate and Another HCJ 23-Sep-2016
Application for Leave to Appeal to UK Supreme Court – refused . .
Leave refused (2) – Lord Advocate v Dean HCJ 24-Nov-2016
Application for Leave to Appeal to UK Supreme Court – refused . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
Cited – HLR v France ECHR 29-Apr-1997
‘Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, . .
Cited – Bagdanavicius and Another, Regina (on the Application of) v HL 26-May-2005
The claimants said they had been subjected to harassment and violence from non-state agents in their home country of Lithuania, and sought asylum.
Held: It was for the person claiming the protection of the Convention provisions for . .
Cited – Gomes v Trinidad and Tobago HL 29-Apr-2009
Each appellant challenged orders for their extradition, saying that the delay had been too prolonged, and that detention in Trinidad’s appalling jails would be an infringement of their human rights.
Held: The House had to consider its own . .
Cited – HLR v France ECHR 29-Apr-1997
‘Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, . .
Cited – Ramirez Sanchez v France ECHR 27-Jan-2005
The applicant complained that he had been held in solitary confinement for a period of nearly 8 years whilst in prison, and had not been given a remedy.
Held: There had been no breach of article 3 by the confinement, but article 13 had been . .
Cited – Ocalan v Turkey ECHR 12-May-2005
(Grand Chamber) – The applicant had been detained in Kenya. He had allowed himself to be taken by Kenyan officials to Nairobi airport in the belief that he was free to leave for a destination of his choice, but they took him to an aircraft in which . .
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
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.

Extradition, Human Rights, Constitutional

Updated: 16 August 2022; Ref: scu.588314

Dean v The Lord Advocate and Another: HCJ 23 Sep 2016

Application for Leave to Appeal to UK Supreme Court – refused

Citations:

[2016] ScotHC HCJAC – 83, 2017 SCCR 17, 2016 GWD 38-672, 2017 SCL 170, 2017 SLT 121

Links:

Bailii

Statutes:

European Convention on Human Rights 3, Extradition Act 2003

Jurisdiction:

Scotland

Cited by:

See Also – Lord Advocate v Dean HCJ 24-Nov-2016
Application for Leave to Appeal to UK Supreme Court – refused . .
Leave refused – Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .
Lists of cited by and citing cases may be incomplete.

Extradition, Human Rights

Updated: 16 August 2022; Ref: scu.577887

Polish Judicial Authorities v Celinski and Others: Admn 6 May 2015

The court set out the conditions for the use of article 8 rights claims in extradition proceedings where the proposed extradition would be to other states within the European Union.

Judges:

John Thomas, Baron Thomas of Cwmgiedd LCJ, Ryder LJ, Ouseley J

Citations:

[2015] EWHC 1274 (Admin), [2016] 3 All ER 71, [2016] 1 WLR 551, [2015] WLR(D) 207

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights 7, Extradition Act 2003

Jurisdiction:

England and Wales

Extradition, Human Rights

Updated: 16 August 2022; Ref: scu.546412

Magee And Others v The United Kingdom: ECHR 12 May 2015

ECHR Article 5-3
Brought promptly before judge or other officer
Inability of judge to address issue of conditional release in early stages of detention: inadmissible
Facts – The applicants were arrested on suspicion of involvement in the murder of a police officer. They were brought, 48 hours later, before a County Court judge who reviewed the lawfulness of their detention and granted an extension for another 5 days (for further questioning and forensic examinations). Later, their pre-trial detention was further extended, the applicants being ultimately released without charge after 12 days.
Under Schedule 8 of the 2000 Terrorist Act of Northern Ireland, a detainee could be kept in detention for up to 28 days without charge. The lawfulness of that detention had to be reviewed by the competent judge within 48 hours and every 7 days thereafter. While that judge had the power to release if the arrest/early detention was unlawful, he/she had no power to release on bail.
Law – Article 5 – 3: Article 5 – 3 is structurally concerned with two separate matters: the early stages following an arrest, when an individual is taken into the power of the authorities, and the period pending any trial before a criminal court, during which the individual may be detained or released with or without conditions. These two limbs confer distinct rights and are not on their face logically or temporally linked.
As regards the first limb, the Court’s case-law establishes that there must be protection, through judicial control, of an individual arrested or detained ‘on reasonable suspicion of having committed [a criminal] offence’, that is to say, even before any criminal charge may have been brought. The judicial control must be prompt, automatic (in other words, not depend on the application of the detained person) and before an independent judge or other officer with the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention.
The Court found those conditions were satisfied in the applicants’ case and went on to consider whether there should have been a possibility of conditional release during the period of the applicants’ detention. It noted that although the applicants were twice brought before a County Court judge while in police custody, at no time were they brought before a judge with power to order conditional release. The Court found, however, that the applicants had been detained for a relatively short period (12 days), and were thus at all times in ‘the early stages’ of the deprivation of liberty, when their detention could be justified by the existence of reasonable suspicion that they had committed a criminal offence. Nothing in the Court’s case-law on Article 5 – 3 made it necessary for consideration also to be given to their conditional release during this period.
In any event, a number of safeguards had been in place to protect the applicants against arbitrary detention: the judge could only extend detention for a maximum of 7 days and the overall period could not exceed 28 days; before granting any extension the judge had to be satisfied that there were reasonable grounds for believing that further detention was necessary and that the investigation was being conducted diligently and expeditiously; the judge also had to be satisfied that the arrest was lawful and consider the merits of detention; the first applicant had given evidence on oath during the first review and arguments from both applicants were heard during the second reviews; finally, the applicants had been able to challenge their continued detention by way of judicial review.
In the light of these factors, the absence of a possibility of conditional release during the period of the applicants’ deprivation of liberty did not give rise to any issues under Article 5 – 3.

Conclusion: inadmissible (manifestly ill-founded).

Citations:

26289/12 29891/12 – Legal Summary, [2015] ECHR 538

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Criminal Practice, Northern Ireland

Updated: 16 August 2022; Ref: scu.547590

HA (Iraq) v Secretary of State for The Home Department: CA 22 Jul 2014

HA, an Iraqi national arrived in the United Kingdom some time in 2000. He made an asylum claim in 2002 which was rejected and the appeal was dismissed. However, he remained in the United Kingdom without leave and was fined for possessing Class A and C drugs in 2005. He was later convicted on counts of possessing Class A drugs with intent to supply and sentenced to four years’ imprisonment. His appeal against conviction was dismissed.
is Article 8 appeal was based in large measure on his long standing relationship with his fiance, CH, a British citizen. She gave evidence before the Upper Tribunal. The Upper Tribunal concluded that she was ‘a very impressive witness’, that their relationship was a genuine one and that it would not be reasonable to expect her to remove to Iraq: See paragraphs 88 and 94 of the determination. The Secretary of State now appealed against the allowing of HA’s appeal against the determination of the First Tier Tribunal which had dismissed his appeal against the Secretary of State’s decision to make an automatic deportation order against him.

Judges:

Sullivan, Black, Richards LJJ

Citations:

[2014] EWCA Civ 1304

Links:

Bailii

Statutes:

UK Borders Act 2007 32(5), European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

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

Immigration, Human Rights

Updated: 16 August 2022; Ref: scu.548099

Juncal v The United Kingdom (Dec): ECHR 17 Sep 2013

Article 5-1-e
Persons of unsound mind
Order for psychiatric confinement made as a result of finding of unfitness to plead: inadmissible
Facts – In December 1997 the applicant was brought before the Crown Court on a charge of unlawful wounding. He claimed he had been acting in self-defence. However, after hearing psychiatric evidence that had been adduced at the defence’s initiative, the jury found that he was unfit to plead. There was no investigation of the facts upon which the criminal charge was based. Once the jury had made its finding, the Crown Court was obliged by the Mental Health (Northern Ireland) Order 1986 to order the applicant’s admission to hospital and to make a restriction order preventing him from taking unsupervised leave from the hospital without authorisation from the Secretary of State.
Law – Article 5 – 1: The applicant did not deny that he had at all relevant times been a person of ‘unsound mind’ and that his mental disorder had been such as to warrant compulsory confinement. His complaint instead focused on the procedure whereby the hospital order was made. In particular, he complained that there had been no investigation into the facts upon which the criminal charge was based and that the fitness-to-plead procedure did not require consideration to be given to whether the nature of his mental disorder warranted compulsory confinement.
As to the first point, the Court observed that, once the jury had found the applicant unfit to plead, the material ground of detention moved from that provided for in subparagraphs (a) or (c) of Article 5 – 1 to that provided for by sub-paragraph (e). The question whether or not he had performed the actus reus of the offence was of only peripheral relevance to the issues to be considered in connection with detention under Article 5 – 1 (e). Accordingly, the failure to determine whether the applicant had committed the acts charged had not given rise to any arbitrariness.
As to the second point, the Court observed that the test for determining whether a person was unfit to plead under domestic law – which involved an enquiry into his or her capacity to instruct legal representatives, understand the trial and participate effectively in it – was different from the requirement under Article 5 – 1 (e) to determine whether the person concerned is suffering from a mental disorder of a nature or degree requiring compulsory confinement. Despite that difference, under the applicable domestic law the judge was obliged to make an order for compulsory confinement once the jury had found the applicant unfit to plead. To that extent, there could therefore be said to have been a theoretical shortcoming in the text of the domestic legislation.
Nevertheless, the Court had to base itself on the facts of the individual case. In order to determine whether the applicant was unfit to plead and whether a hospital and restriction order should be made, the Crown Court had heard evidence from two psychiatrists both of whom considered that he was suffering from psychotic mental illness. The psychiatrist called by the defence had found that the seriously damaging and dangerous nature of the applicant’s behaviour meant that he required psychiatric treatment in the specialist setting of a maximum- security unit, while the psychiatrist appointed by the prosecution had found that the combination of his personality problems and psychotic mental illness made him potentially very dangerous. The uncontested evidence before the Crown Court therefore supported the view that the Winterwerp criteria were satisfied in the circumstances of the applicant’s case and the applicant had never challenged this assessment of him by the domestic authorities. In these circumstances, the hospital order had not failed to comply with the requirements of Article 5 – 1.
The applicant’s final complaint under Article 5 – 1, which related to the making of a restriction order (meaning that Secretary of State authorisation was required before he could take unsupervised leave from hospital) was also ill-founded as, while the restriction order altered some of the legal conditions of the applicant’s detention regime, it did not change the character of his deprivation of liberty as a mental patient and Article 5 – 1 (e) was not in principle concerned with conditions of detention.
Conclusion: inadmissible (manifestly ill-founded).
Article 5 – 4: The applicant further complained that he had been unable to challenge the legality of his continuing detention by reference to the facts charged against him in the criminal indictment. The Court noted, however, that the Winterwerp criteria for ‘lawful detention’ under sub-paragraph (e) of Article 5 – 1 entailed that the review of lawfulness guaranteed by Article 5 – 4 in relation to the continuing detention of a mental-health patient should be made by reference to the patient’s contemporaneous state of health, including his or her dangerousness, as evidenced by up-to-date medical assessments, not by reference to past events at the origin of the initial decision to detain.
The applicant had a right to apply to the Mental Health Review Tribunal at regular intervals and in default the Secretary of State was obliged to refer his case to the Tribunal at least once every two years. The Tribunal was empowered to examine whether the Winterwerp criteria continued to apply: namely, whether the applicant continued to suffer from a mental disorder of a kind or degree warranting compulsory confinement. Since the applicant’s detention fell under the exception to the right to liberty set out in Article 5 – 1 (e), the scope of this review was sufficient for compliance with Article 5 – 4.
Conclusion: inadmissible (manifestly ill-founded).

Citations:

32357/09 – Legal Summary, [2013] ECHR 1164

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Juncal v The United Kingdom ECHR 17-Sep-2013
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 August 2022; Ref: scu.518409

Juncal v The United Kingdom: ECHR 17 Sep 2013

Citations:

32357/09 – Admissibility Decision, [2013] ECHR 1157

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – Juncal v The United Kingdom (Dec) ECHR 17-Sep-2013
Article 5-1-e
Persons of unsound mind
Order for psychiatric confinement made as a result of finding of unfitness to plead: inadmissible
Facts – In December 1997 the applicant was brought before the Crown Court on a charge of . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 August 2022; Ref: scu.518401

Soyler v Turkey: ECHR 17 Sep 2013

ECHR Article 3 of Protocol No. 1
Vote
Automatic and indiscriminate disenfranchisement of persons convicted of intentional offences, irrespective of the nature and gravity of the offence: violation
Facts – Under Turkish law, persons convicted of having intentionally committed an offence are unable to vote. Their disenfranchisement does not come to an end if they are released from prison on probation, but only when the full period for which they were originally sentenced has elapsed. Likewise, when a prison sentence longer than one year is suspended and the convicted person does not serve any time in prison, he or she will still be unable to vote for the duration of the period for which the sentence is suspended.
The applicant was given a five-year sentence for cheque fraud in 2007. He was released on probation two years later. Between 2007 and 2012 two general elections were held but he was unable to vote in either.
Law – Article 3 of Protocol No. 1: In so far as the restrictions placed on voting rights in Turkey were applicable to convicted persons who did not even serve a prison term, they were harsher and more far-reaching than those applicable in the United Kingdom, Austria and Italy, which had been the subject matter of examination by the Court in its judgments in the cases of Hirst (no. 2), Frodl and Scoppola (no. 3). In Turkey, disenfranchisement was an automatic consequence derived from statute, and was therefore not left to the discretion or supervision of the judiciary. Moreover, unlike the situation in Italy which had been examined in the case of Scoppola (no. 3), the measure restricting the right to vote in Turkey was indiscriminate in its application in that it did not take into account the nature or gravity of the offence, the length of the prison sentence – leaving aside suspended sentences of less than one year – or the individual circumstances of the convicted persons. The Turkish legislation contained no express provisions categorising or specifying any offences for which disenfranchisement was foreseen. The Court did not consider that the sole requirement of the element of ‘intent’ in the commission of the offence was sufficient to lead it to conclude that the current legal framework adequately protected the rights in question and did not impair their very essence or deprive them of their effectiveness. As such, the applicant’s case illustrated the indiscriminate application of the restriction even to persons convicted of relatively minor offences. Furthermore, the Court was also unable to see any rational connection between the sanction and the applicant’s conduct and circumstances. The automatic and indiscriminate application of this harsh measure on a vitally important Convention right had to be seen as falling outside any acceptable margin of appreciation.
Conclusion: violation (unanimously).
Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
(See: Hirst v. the United Kingdom (no. 2) [GC], 74025/01, 6 October 2005, Information Note 79; Frodl v. Austria, 20201/04, 8 April 2010, Information Note 129; and Scoppola v. Italy (no. 3) [GC], 126/05, 22 May 2012, Information Note 152)

Citations:

29411/07 – Legal Summary, [2013] ECHR 962, [2013] ECHR 1198

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Elections

Updated: 16 August 2022; Ref: scu.516478

De Bruin v The Netherlands: ECHR 17 Sep 2013

ECHR Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Proceedings challenging a burgomaster’s decision to close a ‘coffee shop’ for failure to comply with conditions attached to tolerance of sale of soft drugs: Article 6 – 1 not applicable
Facts – In October 1999 the applicant became the landlord of a coffee shop in The Hague. The former owner had received a written communication, known as a ‘toleration decision’, from the Burgomaster stating that the shop would be designated as an existing retail outlet for soft drugs. This meant that no administrative action would be taken against the sale of soft drugs in the shop provided certain conditions were met. In July 2001, following repeated warnings, the Burgomaster informed the applicant that the shop would be closed for a period of nine months owing to breaches of the conditions set out in the ‘toleration decision’. The applicant challenged that decision in the domestic courts, but to no avail.
In his application to the European Court, the applicant complained, inter alia, of various violations of Article 6 – 1 of the Convention in the domestic proceedings.
Law – Article 6 – 1 (applicability): Save in so far as substantive provisions of the Convention may require the active prosecution of individuals reasonably suspected of being responsible for serious violations thereof, decisions whether or not to prosecute were not within the Court’s remit. While public authority may have tolerated transgressions of the prohibition on the retail of soft drugs to a certain extent, or subject to certain conditions, it could not follow that a ‘right’ to commit acts prohibited by law could arise from the absence of sanctions, not even if public authority renounced the right to prosecute. Such renunciation, even if delivered in writing to a particular individual, was not to be equated with a licence granted in accordance with the law. Accordingly, the ‘dispute’ in the applicant’s case, though undoubtedly genuine and serious, was not about a ‘right’ which could be said, at least on arguable grounds, to be recognised under domestic law.
Conclusion: inadmissible (incompatible ratione materiae).

Citations:

9765/09 – Legal Summary, [2013] ECHR 1166

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 16 August 2022; Ref: scu.518406

Kapri v The Lord Advocate (Representing The Government of The Republic of Albania): SC 10 Jul 2013

The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in the United Kingdom as an illegal immigrant, another Albanian national named Ylli Pepa, was killed. On the day after this incident the appellant left London and travelled to Glasgow, where he assumed a false Macedonian identity. It was alleged that he had been responsible for Ylli Pepa’s murder. The Metropolitan Police were unable to locate him, and he continued to live in Glasgow for the time being under that false identity.
Held: The appeal succeeded: ‘I would recall the Appeal Court’s interlocutor of 1 June 2012 by which it dismissed the appeal against the sheriff’s order of 20 January 2011, and remit the case to the High Court of Justiciary for further consideration. I would set aside the Appeal Court’s finding on 2 February 2012 that the proposed new evidence contained in the reports prepared by Dr Bogdani and Ms Vickers was irrelevant to the ground of appeal and ought not to be admitted. The Lord Advocate should be permitted to adduce evidence to rebut any conclusions in the appellant’s favour that may be derived from those reports and any other admissible evidence that he may lead. The appellant must remain in custody for the time being. ‘

Judges:

Lord Hope, Deputy President, Lady Hale, Lord Kerr, Lord Sumption, Lord Toulson

Citations:

[2013] UKSC 48, 2013 SCL 653, 2013 GWD 25-493, [2013] 1 WLR 2324, [2013] WLR(D) 281, [2013] HRLR 31, 36 BHRC 136, 2013 SCCR 430, [2013] 4 All ER 599, 2013 SLT 743, 2013 SC (UKSC) 311, UKSC 2012/0192

Links:

Bailii, Bailii Summary, WLRD, SC, S Summary

Statutes:

Extradition Act 2003

Jurisdiction:

England and Wales

Citing:

At HCJ – Kapri v The Lord Advocate for and On Behalf of The Court of First Instance Judicial District of Elbasan, Albania HCJ 2-Feb-2012
The applicant objected to his proposed extradition to Albania, saying that he would not receive a fair trial. An examination of the reports disclosed that counsel for the Lord Advocate’s analysis of them was correct. None of the examples of the . .
Appeal from – Kapri v The Lord Advocate Representing The Government of The Republic of Albania HCJ 1-Jun-2012
. .
Cited – Goatley v Her Majesty’s Advocate and Another HCJ 12-Jul-2006
. .
Cited – La Torre v The Lord Advocate and Another HCJ 8-Nov-2006
The Lord Advocate had conceded that devolution minutes were competent in proceedings under the 2003 Act. . .
Cited – Trajer v The Lord Advocate HCJ 19-Dec-2008
. .
Cited – Engler v Her Majesty’s Advocate HCJ 4-May-2010
. .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Cited – Mucelli, Regina (on The Application of) v The Government of Albania Admn 27-Jan-2012
Cranston J said that in his view the law and practice in Albania was such that there was no real risk that the applicant would suffer a flagrant denial of justice on his return to Albania, as he was entitled to a retrial on the merits of the case . .
Cited – Zeqaj v Government of Albania Admn 20-Feb-2013
Appeal, under section 103 from the decision to send the matter to the Secretary of State for Home Affairs to consider extraditing Zeqaj to Albania to serve a sentence of 23 years in connection with murder and firearms offences. . .
Cited – Zeqaj v Secretary of State for the Home Department CA 10-Dec-2002
The applicant had failed in his asylum application, and an order given for his repatriation. The order had however by mistake ordered his return to Albania, rather than Serbia. . .
Approved – Devaseelan v Secretary of State for the Home Department IAT 2003
The tribunal asked as to the relevance of the possible mistreatment of the applicant if returned to his home country: ‘The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case – where the right . .
Cited – Mamatkulov And Askarov v Turkey ECHR 4-Feb-2005
Grand Chamber – while there may have been reasons for doubting whether the applicants would receive a fair trial, there was not sufficient information to show that any possible irregularities in the trial were liable to constitute a flagrant denial . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Omar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .

Cited by:

See Also – Kapri v Her Majesty’s Advocate (For The Republic of Albania) HCJ 25-Apr-2014
. .
See Also – Kapri v Her Majesty’s Advocate, Re In The Application By (Albania) HCJ 17-Jun-2014
. .
Cited – Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .
Lists of cited by and citing cases may be incomplete.

Scotland, Immigration, Human Rights, Extradition

Updated: 16 August 2022; Ref: scu.512252

Ngendakumana v The Netherlands (Dec): ECHR 5 Feb 2013

ECHR Article 35-1
Six month period
Submission of an application form signed by proxy by a person unknown: inadmissible
Facts – The applicant, a Burundian national, complained of a refusal by the Netherlands authorities to grant him asylum. The final domestic ruling was sent to him on 24 August 2010. On 23 February 2011 the applicant’s representative sent an application form to the Court signed ‘i.o.’ (in opdracht; the Netherlands equivalent of ‘per procurationem’) by an unidentified person. On 14 March 2011 the representative was notified by the Court Registry that he had to return the completed application form and all relevant documents to the Court by 9 May 2011 and that failure to do so would result in the date of submission of the completed application form being taken as the date of introduction of the application. On 10 May 2011 by fax and on 24 May 2011 by post, the applicant’s representative submitted an original authority for representation. The Registry subsequently pointed out that the application form the Court had received on 23 February 2011 had not been signed by the representative, but by a third person, and asked whether it should be considered the formal application form. On 12 August 2011 the applicant’s representative sent a completed application form which he had signed. The accompanying letter did not contain any explanation for the delay or why the application form submitted to the Court on 23 February 2011 had not been signed by the applicant’s representative.
Law – Article 35 ss 1: Pursuant to Rule 45 ss 1 of the Rules of Court an application had to be signed by the applicant or the applicant’s representative. Accordingly, an application form – even if it contained all the data and documents set out in Rule 47 ss 1 – could only be considered to have been validly introduced on the date it was signed by the applicant or the applicant’s representative. Consequently, the application form that had been submitted on 23 February 2011 could not be accepted as a valid application but only as an introductory submission to the Court that interrupted the running of the six-month period. As the application form signed by the applicant’s lawyer was not submitted until 12 August 2011 – after the expiry of the applicable time-limit – the application had been introduced out of time.
Conclusion: inadmissible (out of time).

Citations:

16380/11 – Legal Summary, [2013] ECHR 421

Links:

Bailii

Statutes:

European Convention on Human Rights 35-1

Jurisdiction:

Human Rights

Human Rights

Updated: 16 August 2022; Ref: scu.509229

Abdulrahman v The Netherlands (Dec): ECHR 5 Feb 2013

ECHR Article 35-1
Six month period
Submission of original application form outside eight weeks allowed by Practice Direction on the Institution of Proceedings: inadmissible
Facts – The applicant, an Iraqi national, complained of a refusal by the Netherlands authorities to grant him a residence permit. The final domestic ruling in respect of his first request for such a permit was sent to him on 24 April 2012 and the regional-court judgment in respect of his second request on 5 April 2012. On 5 October 2012 the applicant’s representative sent a fax to the Court Registry stating that the applicant wished to lodge a complaint under Article 8 of the Convention. On 18 October 2012 the applicant’s representative was notified by the Registry, pursuant to Rule 47 ss 5 of the Rules of Court and paragraph 4 of the Practice Direction on the Institution of Proceedings, that he had to return the application form to the Court not later than 13 December 2012 (within eight weeks from the date of the Registry’s letter) otherwise the date of submission of the completed application form would be taken as the date of introduction of the application. Under cover of a letter dated 13 December 2012 the applicant’s representative submitted the original duly completed and signed application form of the same date, an original authority form duly signed by both the applicant and the representative, and copies of relevant supporting documents. The envelope was postmarked 14 December 2012.
Law – Article 35 ss 1: The date on which the envelope containing the original application form had been postmarked, namely 14 December 2012, should be considered as the date of introduction of the application in the instant case. Since the six-month period for submitting an application to the Court had started to run on 25 April 2012 in respect of the applicant’s first request for a residence permit and on 6 April 2012 in respect of the second, the application had been submitted out of time.
Conclusion: inadmissible (out of time).
(See also Kemevuako v. the Netherlands (dec.), no. 65938/09, 1 June 2010, Information Note no. 131)

Citations:

66994/12 – Legal Summary, [2013] ECHR 420

Links:

Bailii

Statutes:

European Convention on Human Rights 35-1

Jurisdiction:

Human Rights

Human Rights

Updated: 16 August 2022; Ref: scu.509227

Hakan Duman v Turkey: ECHR 23 Mar 2010

The claimant said he had not been given appropriate access to a lawyer when in police custody.
Held: The use of statements obtained at the stage of the police inquiry and the judicial investigation is not inconsistent with article 6(1), provided that the rights of the defence are respected.

Citations:

28439/03, [2010] ECHR 368

Links:

Bailii

Statutes:

European Convention on Human Rights 6(1)

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 . .
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, Police

Updated: 16 August 2022; Ref: scu.403494

IR (Sri Lanka) and Others v Secretary of State for The Home Department: CA 21 Jun 2011

The court considered a generic point of principle concerning the requirements of procedural fairness when the Special Immigration Appeals Commission (SIAC) is considering cases concerning the removal or exclusion of foreign nationals on national security grounds.

Judges:

Maurice Kay VP, Thomas , Black LJJ

Citations:

[2011] EWCA Civ 704, [2012] 1 WLR 232, [2011] 4 All ER 908, [2011] UKHRR 988, [2011] ACD 102

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 16 August 2022; Ref: scu.441050

Al-Jedda v Secretary of State for The Home Department: CA 12 Mar 2010

The claimant appealed against a decision withdrawing his British citizenship, saying that this would leave him stateless.

Judges:

Mummery, Maurice Kay, Hooper LJJ

Citations:

[2010] EWCA Civ 212

Links:

Bailii

Statutes:

British Nationality Act 1981 40(4)

Jurisdiction:

England and Wales

Citing:

At CA (1) – 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 . .
At Admn (1) – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
At HL – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
At SIAC (1) – Al-Jedda v Secretary of State for the Home Department SIAC 23-May-2008
The appellant had been granted british citizenship. He now appealed against a an order under section 40(2) of the 1981 Act depriving him of his British citizenship on the ground that the respondent was satisfied that deprivation was conducive to the . .
At SIAC (2) – Al-Jedda v Secretary of State for the Home Department SIAC 22-Oct-2008
The Court was asked whether or not the procedural protections afforded by Article 6(1) ECHRR as identified by the House of Lords in Secretary of State for the Home Department v MB [2007] UKHL 46 [2008] 1 AC 440 apply to the Appellant’s appeal . .
At ECHR (1) – Al-Jedda v The United Kingdom ECHR 2-Mar-2009
The claimant, an Iraqi and British national complained of his arrest and internment on suspicion of terrorist involvement. . .
See Also – Al-Jedda v Secretary of State for Defence QBD 5-Mar-2009
The claimant, an Iraqi/British national complained of his detention in Iraq by the defendant without any due process. . .
At SIAC (3) – Al-Jedda v Secretary of State for the Home Department SIAC 7-Apr-2009
The appellant challenged an order made under the 1981 Act revoking his British citizenship, saying that it infringed his article 8 rights to family life. . .
At CA – Al-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
At SIAC – Al-Jedda v Secretary of State for The Home Department (Deprivation of Citizenship Directions – Oral Ruling ) SIAC 7-Feb-2014
Order . .
At SIAC – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
At ECHR (2) – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .

Cited by:

See Also – Al-Jedda v Secretary of State for Defence CA 8-Jul-2010
Al Jedda, who had both Iraqi and British nationality, sought damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. . .
See Also – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
See Also – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
See Also – Al-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
See Also – Secretary of State for The Home Department v Al-Jedda SC 9-Oct-2013
The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .
At CA – Hilal Al-Jedda SIAC 18-Jul-2014
lSIAC Deprivation of Citizenship : Preliminary Issue . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 16 August 2022; Ref: scu.403470

Van Colle and Van Colle v The United Kingdom: ECHR 9 Feb 2010

Statement of Facts

Citations:

7678/09, [2010] ECHR 247

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

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

Cited by:

Cited – Q, Regina (on The Application of) v Q Constabulary and Another Admn 17-Mar-2011
The claimant renewed his request for an order against the defendant that he should be given a place on a witness protection scheme. He had given evidence for the prosecution in a gangland murder trial. A risk assessment had identified a risk ‘real . .
See Also – Van Colle v The United Kingdom ECHR 13-Nov-2012
. .
Cited – PBD and Another v Greater Manchester Police QBD 18-Nov-2013
The claimant had acted as police informant for the defendant. He said that the defendant had wrongfully released his identity resulting in him having to seek witness relocation with consequential losses for himself and his partner the co-claimant. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 August 2022; Ref: scu.402982

Barraco v France: ECHR 5 Mar 2009

A suspended sentence of imprisonment, together with a fine, was a proportionate sanction for a protest which resulted in the severe slowing-down of traffic on a motorway.

Citations:

31684/05, [2009] ECHR 2139

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Roberts and Others v Regina CACD 6-Dec-2018
Sentencing of Political Protesters
The defendants appealed against sentences for causing a public nuisance. They had been protesting against fracking by climbing aboard a lorry and blocking a main road for several days.
Held: The appeals from immediate custodial sentences were . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 August 2022; Ref: scu.392732