Category: Human Rights

Regina v Grant: CACD 22 Nov 2001

A jury had found, under section 4(5) of the 1964 Act as amended, that the defendant was unfit to plead. The court considered section 5 of the 1964 Act.
Held: A judge of the Crown Court is obliged under the section to make a mandatory order containing restrictions on the liberty of the accused person where the accused person has been found to have committed an act which constituted the actus reus of murder where the person was indicted for murder without there being any determination by an independent and impartial tribunal as to whether the appropriate count was one of murder or manslaughter. It was submitted that the provision is incompatible with articles 5.1(e) and 6.1 of the Convention.
Richards J said: ‘Subject to the concern expressed below, it is not unreasonable for Parliament to have decided to lay down a mandatory requirement of admission to hospital for a person who has been charged with murder, has been found to have done the act charged, but is under a disability so as to be unfit to be tried; and detention in those circumstances is not to be regarded as ‘arbitrary’ for the purposes of Article 5(1)(e). The right to make immediate application to the MHRT and the other protections operating following admission to hospital ensure compliance with Article 5(4)’ and
Richards J continued: ‘The point of concern is whether the procedures give proper effect to the second of the conditions laid down for detention under Article 5(1)(e). To adopt the formulation in R (H) v. London North and East Mental Health Review Tribunal, ‘the test is whether it can be reliably shown that the [person] suffers from a mental disorder sufficiently serious to warrant detention’. The procedures under the 1964 Act are not directed specifically to that question. The issue under section 4 is whether the defendant is fit to be tried, which involves consideration of whether the defendant has sufficient intellect to instruct his legal team, to plead to the indictment, to challenge jurors, to understand the evidence and to give evidence. Those criteria do not correspond directly to the criteria for a mental disorder sufficiently serious to warrant detention, and it may be possible for a person to be found unfit to be tried without his suffering from a mental disorder sufficiently serious to warrant detention. Yet once a person facing a charge of murder has been found to be unfit to be tried, there is no further consideration of his mental condition under the statutory procedures prior to admission to hospital. If the jury find under section 4A(2) that he did the act charged, it is mandatory for the judge to make an admission order under s.5. The judge cannot consider whether such an order is justified on the medical evidence. Thus no-one is required specifically to address, prior to the person’s detention, the question whether he suffers from a mental disorder sufficiently serious to warrant detention. This feature of the procedure does raise the question whether detention is ‘arbitrary’ in the sense explained by the European Court of Human Rights in Winterwerp and Johnson.

It seems to us that the question is one of some difficulty. The answer to it may lie, but does not necessarily do so, in Mr Eadie’s submission that this is a difficult and complex area where Parliament has carried out the requisite balancing exercise and has concluded that, where it has been found by a jury that a person is unfit to be tried and has done the act charged as murder, the automatic consequence ought to be admission to hospital as prescribed in s.5 (subject to the person’s right to make immediate application to the MHRT and to the other protections afforded to a person subject to detention under these provisions); that the court should afford a measure of deference to Parliament in such a field; and that in all the circumstances the procedure is not to be stigmatised as arbitrary for the purposes of Article 5.

In the circumstances of the present case, however, it is unnecessary for us to reach any conclusion on that issue, since we are satisfied on the particular facts that the conditions for detention, albeit not considered in terms under the statutory procedure, were in fact met. All the experts who gave evidence in the s.4A proceedings were of the view that the appellant suffered from mental impairment within the meaning of the Mental Health Act 1983. They did not consider the question of disposal because it was not necessary for them to do so. [The medical history was considered]. We are also told that, though no report is available, the Secretary of State understands from the clinical staff at the hospital that they believe that the appellant’s mental impairment would justify her continuing detention in hospital and that there is treatment available which is alleviating her condition. Looking at the evidence as a whole, we take the view that the appellant did suffer from a mental disorder sufficiently serious to warrant detention and that the conditions for initial detention under Article 5(1)(e) were therefore met. That is a sufficient basis for rejecting this part of the appellant’s case. ‘

Judges:

Rose LJ VP, Richards J, Pitchford J

Citations:

[2001] EWCA Crim 2611, [2002] MHLR 41, [2002] 1 Cr App R 38,, [2002] QB 1030, [2002] 2 WLR 1409, [2002] Crim LR 403

Links:

Bailii

Statutes:

Criminal Procedure (Insanity) Act 1964 5, European Convention on Human Rights 6 6

Jurisdiction:

England and Wales

Cited by:

Cited – Juncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
Cited – Juncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
Lists of cited by and citing cases may be incomplete.

Crime, Health, Human Rights

Updated: 15 August 2022; Ref: scu.271134

Serafini v Italy: ECHR 16 Oct 2003

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings

Citations:

58607/00, [2003] ECHR 520

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 15 August 2022; Ref: scu.186978

Campbell v Mirror Group Newspapers Ltd: QBD 27 Mar 2002

The applicant sought damages for the defendant having infringed her privacy in several ways, including under the 1998 Act. The defendant argued that she had invited publicity and had misled the public as to her drug problem. A photograch had been taken as she left a drug rehabilitation group meeting.
Held: The fact that she was receiving treatment for her addiction was sensitive personal information under the Data Protection Act, and had the mark and badge of confidentiality. The three requirements in the first data protection principle under section 4 of the 1998 Act were cumulative. Compensation was governed by section 13, and ‘damage’ in sections 13(1) and 13(2)(a) meant special or financial damages not distress in the shape of injury to feelings. The defendant had shown a proper public interest in disclosing her addiction, but not the nature and occasion of her treatment.

Judges:

The Hon Mr Justice Morland

Citations:

Times 29-Mar-2002, Gazette 10-May-2002, [2002] EWHC 499 (QB), [2003] QB 633

Links:

Bailii

Statutes:

Data Protection Act 1998 4 13 Sch 3, European Convention on Human Rights 8 10.2

Jurisdiction:

England and Wales

Cited by:

Appeal from – Campbell v Mirror Group Newspapers plc CA 14-Oct-2002
The newspaper appealed against a finding that it had infringed the claimant’s privacy by publishing a photograph of her leaving a drug addiction clinic.
Held: The claimant had courted publicity, and denied an involvement in drugs. The defence . .
Approved – Johnson v The Medical Defence Union Ltd ChD 3-Mar-2006
The claimant sought disclosure under the 1998 Act by the defendant of records held by them. The respondent said that the information they held did not amount to data under the Act.
Held: The information was contained in different formats, on . .
At First Instance – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
At First Instance – MGN Limited v United Kingdom ECHR 24-Oct-2008
The Mirror had published a picture of Naomi Campbell leaving a rehabilitation clinic. They appealed a decision in which having been found to have infringed her privacy by a covertly taken photograph, they had then been ordered to pay very . .
At First Instance – 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 . .
Lists of cited by and citing cases may be incomplete.

Media, Information, Human Rights

Updated: 15 August 2022; Ref: scu.170154

Mazhar v The Lord Chancellor: CA 2 Oct 2019

Appeal against an order dismissing the Appellant’s claim for a declaration that an order made by Mostyn J authorising his removal to, and detention in, a hospital was an unlawful violation of his rights under Article 5.
Held:

Judges:

Sir Terence Etherton MR, Lord Justice Singh and Lord Justice Baker

Citations:

[2019] EWCA Civ 1558

Links:

Bailii, Judiciary

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Health, Human Rights

Updated: 15 August 2022; Ref: scu.641798

Magee v The United Kingdom: ECHR 7 Nov 2012

The claimant challenged the compatibility of section 41 of the 2000 Act with article 5. The section allowed for longer periods of detention by police on application to the Magistrates.

Citations:

29891/12 – HECOM, [2012] ECHR 1970

Links:

Bailii

Statutes:

European Convention on Human Rights 5, Terrorism Act 2000 41(3)

Jurisdiction:

Human Rights

Human Rights, Police

Updated: 14 August 2022; Ref: scu.466368

AA v The United Kingdom: ECHR 20 Sep 2011

Judges:

Lech Garlicki, P

Citations:

[2011] ECHR 1345, 8000/08, [2012] Imm AR 107

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – AA v The United Kingdom ECHR 28-Apr-2010
. .

Cited by:

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

Human Rights, Children

Updated: 14 August 2022; Ref: scu.463496

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 point the duty to allow access to a solicitor arose, and what use might be made of answers given to questions before detention.
Held: (Majority 4-1) In two cases it remained compatible for the evidence obtained before arrest to be led, but in G it had been incompatible.
The case of Salduz and others had not taken such rights to the point now asserted, and it would be wrong to extend it. The line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed, and ‘It would be to go further than Strasbourg has gone to hold that a person has, as a rule, a Convention right of access to a lawyer before answering any questions put to him in the course of a police search. It is not because there is a rule to this effect that I would answer the question in the affirmative. Rather it is because it is plain from the particular circumstances of the case that G was, in effect, a detainee when he was being questioned by the police. In the absence of such indications of coercion the question, as in the other cases, will be whether, taking all the circumstances into account, it would be fair to admit the whole or any part of the evidence.’
Lord Kerr, dissenting, found the use made of the evidence obtained by questioning before legal held had been offered was incompatible with the suspect’s rights. It was not open to the courts of this country to restrict a right apparently given by the Convention only because Strasbourg had not yet spoken. Choosing the moment of being taken into custody as the first occasion on which legal representation becomes necessary is arbitrary and illogical. Salduz indicates that the need to have a lawyer is not determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made.
Lord Clarke said ‘the right to have access to a lawyer emerges at the point when the suspect is deprived of his liberty of movement, to any material extent, by the investigating authorities and is to be questioned by them. It follows that I am in agreement with Lord Hope that the Strasbourg jurisprudence, to date, does not support the defence contention in these references that the ECtHR has gone as far as to say that the right emerges as soon as a suspect is to be questioned by the police in whatever circumstances.’

Judges:

Lord Hope, Deputy President, Lord Brown, Lord Kerr, Lord Dyson, Lord Matthew Clarke

Citations:

[2011] UKSC 43, UKSC 2011/0101, 2011 SLT 1005, [2011] 1 WLR 2435

Links:

Bailii, Bailii Summary, SC Summary, SC

Statutes:

Criminal Procedure (Scotland) Act 1995 14 15A, European Convention on Human Rights 6(1) 6(3)(c), Police and Criminal Evidence Act 1984 76(2) 82(1), Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010

Jurisdiction:

Scotland

Citing:

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 . .
Cited – 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 . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – 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 – 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 – Murray v The United Kingdom ECHR 8-Feb-1996
The applicant had been denied legal advice for 48 hours after he had been taken into custody.
Held: There had been a violation of article 6(1) read with article 6(3)(c). However, it was not a breach of human rights to draw inferences from the . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – Magee v United Kingdom ECHR 6-Jun-2000
The denial of access to a solicitor for a suspect before interrogation was a breach of the right to a fair hearing. The breach was so fundamental as to irretrievably prejudice the rights of a defendant. The article might be expressed to refer to . .
Cited – Brennan v The United Kingdom ECHR 16-Oct-2001
The applicant had complained that, after his arrest he had been refused adequate access to a lawyer. He had not been allowed to see his solicitor for two days, and only then in the presence of a police officer. No inferences had been drawn from his . .
Cited – Huseyin Habip Taskin v Turkey ECHR 1-Feb-2011
The applicant complained that he had been denied the assistance of a lawyer during his police custody and that his police statement which had been taken in the absence of a lawyer had been used in his conviction by the trial court. . .
Cited – 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), . .
Cited – Salduz v Turkey ECHR 27-Nov-2008
(Grand Chamber) The applicant had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.
Held: There had been a violation of art 6(3)(c) of the . .
Cited – Arzu v Turkey ECHR 15-Sep-2009
The applicant, who was arrested and placed in custody, complained that he had been denied access to a lawyer during the initial stages of the criminal proceedings against him.
Held: The court in Salduz had considered the grievance of a lack of . .
Cited – Sharkunov and Mezentsev v Russia ECHR 10-Jun-2010
The court was asked as to the lack of legal assistance while in police custody and the use at the trial of incriminating statements that had been made at that stage.
Held: The court repeated the proposition that was first stated in Salduz, . .
Cited – Imbrioscia v Switzerland ECHR 24-Nov-1993
The applicant had been questioned several times without access to a lawyer while he was in police custody.
Held: Overall there had been no breach of article 6(1). The right set out in article 6(3)(c) is one element, among others, of the . .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Eckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
Cited – JB v Switzerland ECHR 3-May-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention . .
Cited – Pishchalnikov v Russia ECHR 24-Sep-2009
(First Section) The applicant was interrogated while he was under arrest in police custody. He asked for the assistance of a lawyer during his interrogation, but this was disregarded by the investigator who proceeded to question him. It was argued . .
Cited – Borotyuk v Ukraine ECHR 16-Dec-2010
(Fifth Section) The applicant complained, in particular, that his continued pre-trial detention had been unjustified and that he had not been legally represented in the early stages of the criminal proceedings.
Held: The court summarised the . .
Cited – Zaichenko v Russia ECHR 18-Feb-2010
(First Section) The claimant complaned that he had not been allowed access to a lawyer when being questioned by police when he was not under arrest. He had been stopped driving home from work and his car inspected by the police after reports of . .
Cited – Galstyan v Armenia ECHR 15-Nov-2007
The claimant had been was arrested on his way home from a protest rally. He was made aware of his rights and expressly declined a lawyer.
Held: As it was his own choice not to have a lawyer, the authorities could not be held responsible for . .
Cited – Miranda v Arizona 10-Oct-1966
(United States Supreme Court) The prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure . .
Cited – Abdurahman v The United Kingdom ECHR 17-Sep-2010
The applicant was questioned by the police as a witness in connection with the attempt to detonate four bombs at separate points in the London public transport system two weeks after the bombings that took place on 7 July 2005. He had been . .
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 – Regina v Grant 17-Jul-2009
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Arbitrary detention – Right to counsel – Encounter between accused and police going from general neighbourhood policing to situation where . .
Cited – Shabelnik v Ukraine ECHR 19-Feb-2009
A suspect’s position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: ‘The manner in which article 6(1) and (3)(c) is to be applied during the preliminary . .
Cited – Law v McNicol 1965
. .
Cited – Regina v Samuel CA 1988
The defendant had been arrested on suspicion of armed robbery. He asked for a solicitor, but one was refused under section 58 of the 1984 Act. He appealed against his conviction saying that he should have been allowed access to a solicitor.
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 – 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 – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Brusco v France ECHR 14-Oct-2010
ECJ The applicant, suspected of involvement in an assault on a man by two hooded individuals in the underground car park of a Parisian residential block, was placed in custody in the context of a request for . .
Cited – Panovits v Cyprus ECHR 11-Dec-2008
The Court was asked as to the questioning of a child when the child had gone to the police station with his father, as requested by the police, and was thereafter arrested. The applicant complained, in particular, about the fairness of criminal . .
Cited – JDB v North Carolina 16-Jun-2011
(United States Supreme Court) The court considered the applicability of Miranda protection to a police interview of a minor. . .

Cited by:

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 . .
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 . .
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 . .
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 – 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 – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Cited – Gordon v Scottish Criminal Cases Review Commission (Scotland) SC 22-Mar-2017
The appellant the Commission’s decision not to refer his case back to the court. They had agreed that a miscarriage of justice might have occurred, but concluded that it was not in the interests of justice to make such a referral. His statement had . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice, Constitutional

Updated: 14 August 2022; Ref: scu.444962

Launder v The United Kingdom: ECHR 8 Dec 1997

The Commission considered the admissibility of a complaint that the United Kingdom would violate articles 2, 3, 5, 6 and 8 if it extradited him to the Hong Kong Special Administrative Region.
Held: The application was manifestly ill-founded: ‘The Commission considers that it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference with the right to respect for family life.’

Citations:

(1997) 25 EHRR CD67, [1997] ECHR 106

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Citing:

See Also – Regina v Secretary of State for Home Department ex parte Launder Admn 6-Aug-1996
The exercise of a discretion on extradition is judicially reviewable in the same way as are other decisions. . .
See Also – Regina v Secretary of State For The Home Department, Ex Parte Launder HL 13-Mar-1997
The question arose as to whether or not the decision of the Secretary of State to extradite the applicant to Hong Kong would have amounted to a breach of the European Convention on Human Rights. Although the Convention was not at that time in force . .
See Also – In the Matter of Launder In the Matter of Extradition Act 1989 In the Matter of an Application for Bail Admn 21-May-1997
. .

Cited by:

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Extradition

Updated: 14 August 2022; Ref: scu.401808

Zaichenko v Russia: ECHR 18 Feb 2010

(First Section) The claimant complaned that he had not been allowed access to a lawyer when being questioned by police when he was not under arrest. He had been stopped driving home from work and his car inspected by the police after reports of workers stealing diesel from their service vehicles. Two cans of diesel were discovered in the car. The applicant made self-incriminating statements in reply to questions put to him by the police at the roadside. He was charged with stealing the cans, and he was convicted. His complaint was that he had not been advised of the privilege against self-incrimination when he made his admission to the police. His position at the trial was that he had purchased the diesel at a petrol station and that he did not give this explanation to the police because he felt intimidated and did not have a receipt to prove the purchase.
Held: The court set out the general principles that are relevant to a consideration of whether there has been a violation of the right to a fair trial. It noted that article 6(3)(c) especially might be relevant before a case is sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by a initial failure to comply with its requirements.
The court said: ‘The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, J B v Switzerland, no 31827/96, para 64, ECHR 2001-III), BAILII: [2001] ECHR 324. In this sense the right is closely linked to the presumption of innocence contained in article 6(2) of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine 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.’
Given the context of the road check and the applicant’s inability to produce any proof of the diesel purchase at the moment of his questioning by the police, there was a suspicion of theft against him from that moment and that, although he was not yet accused of any criminal offence, his situation in the proceedings at the roadside was substantially affected. Article 6(1) was therefore engaged at that point. However, the absence of legal representation at the roadside check did not violate his right to legal assistance under article 6(3)(c).

Judges:

Christos Rozakis, President

Citations:

39660/02, [2010] ECHR 185

Links:

Bailii

Statutes:

European Convention on Human Rights 6(1) 6(3)(c)

Citing:

Cited – Imbrioscia v Switzerland ECHR 24-Nov-1993
The applicant had been questioned several times without access to a lawyer while he was in police custody.
Held: Overall there had been no breach of article 6(1). The right set out in article 6(3)(c) is one element, among others, of the . .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Eckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
Cited – JB v Switzerland ECHR 3-May-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention . .

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 14 August 2022; Ref: scu.401728

ME MacRitchie v The United Kingdom: ECHR 29 Jan 2010

The claimant sought damages after her lifelong partner had died of asbestos associated illness after exposure while serving in the Navy. Liability had been refused under the 1947 Act, because the 1987 Act was not retrospective.

Citations:

19298/08, [2010] ECHR 166

Links:

Bailii

Statutes:

European Convention on Human Rights, Crown Proceedings Act 1947, Crown Proceedings (Armed Forces) Act 1987

Jurisdiction:

Human Rights

Cited by:

Questions to parties – ME MacRitchie v The United Kingdom ECHR 2-Nov-2010
The claimant’s life partner died after contracting diseases associated with his exposure to asbestos while serving in the Navy. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 14 August 2022; Ref: scu.401707

King v The United Kingdom: ECHR 26 Jan 2010

Mr King was accused of being a member of a gang engaged in a conspiracy to import large quantities of ecstasy into Australia. He appealed against extradition saying that this would interfere with his article 8 rights. He had in the United Kingdom two young children and a mother whose health would not allow her to travel to Australia.
Held: The article 8 claim was inadmissible. ‘Mindful of the importance of extradition arrangements between States in the fight against crime (and in particular crime with an international or cross-border dimension), the Court considers that it will only be in exceptional circumstances that an applicant’s private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition . . If the applicant were [eventually] sentenced to imprisonment [in Australia, with the consequent impact on the rest of his family,] his extradition cannot be said to be ‘disproportionate to the legitimate aim served’.’

Judges:

Garlicki P

Citations:

9742/07, [2010] ECHR 164

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Extradition, Family

Updated: 14 August 2022; Ref: scu.401702

Henderson v The London Borough of Hackney and Others: EAT 13 Jul 2009

EAT HUMAN RIGHTS
UNFAIR DISMISSAL: Reasonableness of dismissal
The Claimant was employed as a mentor and leader for girls who had barriers to learning in an inner city school. From her school computer she accessed pornography and distributed it to colleagues. She was summarily dismissed. Art 10 ECHR (freedom of expression) was engaged but the School justified the dismissal as proportionate and as pursuing its legitimate aim in protecting children. The Claimant did not have insight into her actions and the School did not share her view that it was enriching for girls to see pornography, and there was no Internet policy in place. The Employment Tribunal was correct to uphold the School’s decision, rejecting the claims for unfair and wrongful dismissal.

Citations:

[2009] UKEAT 0072 – 09 – 1307

Links:

Bailii

Employment, Human Rights

Updated: 14 August 2022; Ref: scu.401683

Virdi v The Law Society of England and Wales and Another: CA 16 Feb 2010

The claimant solicitor complained that in disciplinary proceedings brought against him by the respondent, the clerk to the tribunal had drafted the judgment, even though she had been an emloyee of the respondent.
Held: The description of the clerk’s functions at showed that he had an essentially administrative role which, as in the case of the Executive officers in the present case, included drafting formal documents for the tribunal to adopt as it saw fit and drawing the tribunal’s attention to similar past cases.
‘The ultimate question is whether the proceedings in question were and were seen to be fair. If on examination of all the relevant facts, there was no unfairness or any appearance of unfairness, there is no good reason for the imaginary observer to be used to reach a different conclusion.’

Judges:

Jacob, Llyd, Stanley Burnton LJJ

Citations:

[2010] EWCA Civ 100, [2010] 1 WLR 2840, [2010] ACD 38, [2010] 3 All ER 653

Links:

Bailii

Statutes:

European Convention on Human Rights 6, Solicitors Act 1974 46

Jurisdiction:

England and Wales

Citing:

Appeal from – Virdi v The Law Society Admn 18-Feb-2009
The court dismissed the appeal of Mr Virdi from the findings and order of the Solicitors Disciplinary Tribunal finding him guilty of serious professional misconduct and suspending him from practice for a period of 3 years. The solicitor complained . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .

Cited by:

Cited – Mehey and Others, Regina (on The Application of) v Visitors To The Inns of Court and Others CA 16-Dec-2014
The court was asked whether disciplinary proceedings against a number of barristers were invalid on the ground that some of the individuals who heard those proceedings or appeals therefrom were disqualified from sitting.
Held: The appeals . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Natural Justice, Human Rights

Updated: 14 August 2022; Ref: scu.400996

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 discrimination. The denial of adoption to a woman in a same sex relationship could not be justified: ‘The Court reiterates that, for the purposes of Article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, which means that it does not pursue a ‘legitimate aim’ or that there is no ‘reasonable proportionality between the means employed and the aim sought to be realised’. Where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Article 8.’

Citations:

43546/02, [2007] ECHR 211

Links:

Bailii

Statutes:

European Convention on Human Rights 9

Jurisdiction:

Human Rights

Cited by:

Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Rodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
Cited – Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales and Another ChD 17-Mar-2010
The charity appealed against refusal of permission to amend its charitable objects as set out in the memorandum of association. The charity was successful as an adoption agency particularly in placing children who would otherwise have had difficulty . .
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 . .
See Also – EB v France ECHR 30-Sep-2009
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Adoption

Updated: 14 August 2022; Ref: scu.250431

Geerings v The Netherlands: ECHR 1 Mar 2007

Where a defendant is acquitted of offences of which he was charged, it was not legitimate then to infer that he had benefitted from those offences for confiscation proceedings.

Citations:

30810/03, [2007] ECHR 191, (2007) 46 EHRR 1222

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Briggs-Price, Regina v HL 29-Apr-2009
The applicant appealed against a confiscation order made on the basis of evidence obtained for and given in a trial that he had profited from the importation of cannabis. He had not faced trial on an associated charge, but had been convicted of . .
See Also – Geerings v The Netherlands ECHR 14-Feb-2008
. .
Cited – Gale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
Cited – Gale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 14 August 2022; Ref: scu.249329

Humphreys v Revenue and Customs: CA 11 Feb 2010

The court was asked as to entitlement to child tax credit where parents were separated but shared the care of the children.
Held: The discretion to be accorded to the legislature or executive is especially wide where the discrimination is indirect rather than direct.

Judges:

Richards LJ

Citations:

[2010] EWCA Civ 56, [2010] UKHRR 497, [2010] 1 FCR 630

Links:

Bailii

Statutes:

Tax Credits Act 2002

Jurisdiction:

England and Wales

Citing:

Appeal from – (Un-named) (Tax Credits) UTAA 4-Feb-2009
. .

Cited by:

Cited – Stewart v Secretary of State for Work and Pensions CA 29-Jul-2011
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained . .
Appeal from – Humphreys v Revenue and Customs SC 16-May-2012
Separated parents shared the care of their child. The father complained that all the Child Tax Credit was given to the mother.
Held: The appeal failed. Although the rule does happen to be indirectly discriminatory against fathers, the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Taxes Management, Discrimination

Updated: 13 August 2022; Ref: scu.396713

Ghai, Regina (on The Application of) v Newcastle City Council and Others: CA 10 Feb 2010

The claimant appealed against a refusal of an order refusing him permission to use land for the purposes of an open air cremations, as required by his religion.
Held: His appeal succeeded. The 1902 Act should be interpreted generously in its reference to buildings.

Judges:

Lord Neuberger of Abbotsbury, Master of the Rolls, Lord Justice Moore-Bick and Lord Justice Etherton

Citations:

[2010] EWCA Civ 59, [2010] 7 EG 101, [2011] 1 QB 591, [2010] 3 WLR 737, [2010] PTSR 1003

Links:

Bailii

Statutes:

Cremation Act 1902, Cremation (England and Wales) Regulations 2008 (SI 2008 No 2841)

Jurisdiction:

England and Wales

Citing:

Cited – Ghai v Newcastle City Council Admn 8-May-2009
The claimant argued that the restrictions on open air cremations as required by his Hindu belief was unreasonable and infringed his human rights.
Held: The burning of a body otherwise than at a crematorium was a criminal offence. The claimant . .

Cited by:

Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Human Rights

Updated: 13 August 2022; Ref: scu.396710

Kevin Fox v United Kingdom: ECHR 15 Jan 2010

The claimant said that he had been severely assaulted by police officers on his arrest, and that the respondent had failed to provide a proper investigation and or remedy.
Held: The court replied with questions for the parties.

Citations:

61319/09, [2010] ECHR 96

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

Cited – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .

Cited by:

Questions – Kevin Fox v United Kingdom ECHR 20-Mar-2012
The claimant said that he had been severely assaulted by police officers when being arrested. He had been ‘tasered’ four times at least. The taser had been applied directly to the skin, rater than from a distance, and psychiatrist compared it to . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 13 August 2022; Ref: scu.396551

Brauer v Germany: ECHR 28 Jan 2010

Just satisfaction – friendly settlement

Judges:

Peer Lorenzen, P

Citations:

3545/04, [2010] ECHR 74

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Citing:

See Also – Brauer v Germany ECHR 28-May-2009
The applicant was born outside marriage in 1948 in East Germany and claimed a share of the estate of her father, who had lived in West Germany dying in 1998. A West German statute of 1969 put illegitimate children on a equality with children of a . .

Cited by:

Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Wills and Probate

Updated: 13 August 2022; Ref: scu.396383

Huitson, Regina (on The Application of) v Revenue and Customs: Admn 28 Jan 2010

The claimant sought to challenge section 58 of the 2008 Act, which imposed retrospective liability for tax, in breach of the defendant’s human rights obligations. He worked as an IT consultant through an intermediary company in the Isle of Man whose shares he owned.
Held: The claim for a judicial review on a human rights basis was dismissed.

Judges:

Parker J

Citations:

[2010] EWHC 97 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Shiner and Another, Regina (on The Application of) v HM Revenue and Customs CA 26-May-2010
The taxpayers challenged decisions by the Revenue to apply section 858 of the 2005 Act so as to tax income earned as UK residents but as partners in an isle of Man partnership.
Held: The claim should be reconstituted as a claim for judicial . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Human Rights

Updated: 13 August 2022; Ref: scu.396377

Field, Regina v: CACD 12 Dec 2002

The Court was asked whether a disqualification order could be made under Section 28 of the 2000 Act, disqualifying an adult from working with children, based on an offence committed before the 2000 Act came into force.
Held: A relatively relaxed approach was required. The conviction was a gateway criterion for the making of an order.

Judges:

Kay LJ, Grigson, Ouseley JJ

Citations:

[2003] 1 WLR 882, [2002] EWCA Crim 2913, [2003] UKHRR 271, [2003] 3 All ER 769, [2003] 2 Cr App Rep 3, [2003] 2 Cr App Rep (S) 35, [2003] Crim LR 201

Links:

Bailii

Statutes:

Criminal Justice and Court Services Act 2000 28, European Convention on Human Rights

Jurisdiction:

England and Wales

Crime, Human Rights

Updated: 13 August 2022; Ref: scu.393011

Bayer Cropscience Ltd and Another v Stop Huntingdon Cruelty (‘SHAC’) and Others: QBD 22 Dec 2009

Citations:

[2009] EWHC 3289 (QB)

Links:

Bailii

Citing:

Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Human Rights

Updated: 13 August 2022; Ref: scu.393033