Category: Human Rights

Aleksei Pervushin And Others v Estonia: ECHR 29 Sep 2009

Citations:

54091/08, [2009] ECHR 1578

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – Aleksei Pervushin And Others v Estonia 2-Mar-2010
. .
See Also – Aleksei Pervushin And Others v Estonia 7-Dec-2010
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 August 2022; Ref: scu.376275

Paulic v Croatia: ECHR 22 Oct 2009

The State re-acquired a former Yugoslavian Army flat and brought a civil action seeking the applicant’s eviction on the basis that he never obtained a specially protected tenancy under domestic law. The Croatian court ordered his eviction.
Held: The national court had not analysed the proportionality of the measure, and had breached Article 8: ‘In this connection the Court reiterates that any person at risk of an interference with his right to home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, he or she has no right to occupy a flat (see McCann v United Kingdom No 19009/04, paragraph 50, 13 May 2008). The Court, however, emphasises that such an issue does not arise automatically in each case concerning an eviction dispute. If an applicant raises an Article 8 defence to prevent eviction, it is for him to do so and for a court to rebut the claim. As previously held, the Court does not accept that the grant of the right to an occupier to raise an issue under Article 8 would have serious consequences for the functioning of the domestic systems or for the domestic law of landlord and tenant (see McCann v United Kingdom, cited above, paragraphs 28 and 54).’

Citations:

3572/06, [2009] ECHR 1614

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – McCann v The United Kingdom ECHR 13-May-2008
The applicant and his wife were secure joint tenants of a house of a local authority under section 82. Their marriage broke down, and the applicant’s wife moved out of the house with the two children of the marriage. She returned after obtaining a . .

Cited by:

Cited – Coombes, Regina (on The Application of) v Secretary of State for Communities and Local Government and Another Admn 8-Mar-2010
The landlord council brought proceedings for possession. The tenant (C) had remained in possession after his mother’s death, but enjoyed no second statutory succession. He had lived there since 1954 when he was six. C sought a declaration of . .
Cited – Manchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Cited – London Borough of Hounslow v Powell, Leeds City Council v Hall etc SC 23-Feb-2011
In each case the tenant occupied the property as his home, but was not a secure tenant of the local authority. The Court was asked whether, in granting a possession order in such a case, the court was obliged to consider the proportionality of the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 04 August 2022; Ref: scu.376325

Secretary of State for the Home Department v AS: Admn 21 Oct 2009

The claimant was subject to a control order under the 2005 Act. The court was asked whether it could properly continue without him having sufficient knowledge of the allegations and evidence to be able to defend himself.

Judges:

Collins J

Citations:

[2009] EWHC 2564 (Admin)

Links:

Bailii

Statutes:

Prevention of Terrorism Act 2005 2(1)

Jurisdiction:

England and Wales

Crime, Human Rights

Updated: 04 August 2022; Ref: scu.376218

JL, Regina (On the Application of) v Secretary Of State for Justice: Admn 7 Oct 2009

Judges:

Laws LJ

Citations:

[2009] EWHC 2416 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .

Cited by:

Mentioned – Mousa, Regina (on The Application of) v Secretary of State for Defence and Another CA 22-Nov-2011
The claimant sought a public inquiry into allegations of systematic ill treatment by UK soldiers in Iraq. He now appealed against refusal of an inquiry, the court having found it permissible for the Secretary of Styate to await the outcome of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 04 August 2022; Ref: scu.376141

Matthews, Regina (On the Application of) v HMP Swaleside: Admn 5 Oct 2009

The Claimant sought judicial review of the Defendant’s decision to refuse to allow the Claimant to submit a Tutor Marked Assessment (TMA) to the Open University

Judges:

William Davis QC HHJ

Citations:

[2009] EWHC 2397 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 10

Jurisdiction:

England and Wales

Prisons, Education, Human Rights

Updated: 04 August 2022; Ref: scu.376016

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 that his decision then to confess his guilt to the investigator constituted an implied waiver of his right to counsel.
Held: The statements, made without having had access to counsel, did not amount to a valid waiver of his right. The right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of a fair procedure under article 6.
The Court discussed the right to counsel: ‘A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be.
The Court considers that the right to counsel, being a fundamental right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard. It is not to be ruled out that, after initially being advised of his rights, an accused may himself validly waive his rights and respond to interrogation. However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.’ and
‘Furthermore, the Court does not rule out that, in a situation when his request for assistance by counsel had been left without adequate response, the applicant who, as it follows from the case file, had had no previous encounters with the police, did not understand what was required to stop the interrogation. The Court is mindful that the applicant may not have had sufficient knowledge, experience, or even sufficient self-confidence to make the best choice without the advice and support of a lawyer. It is possible that he did not object to further questioning in the absence of legal assistance, seeing the confession (true or not) as the only way to end the interrogation. Given the lack of legal assistance the Court considers it also unlikely that the applicant could reasonably have appreciated the consequences of his proceeding to be questioned without the assistance of counsel in a criminal case concerning the investigation of a number of particularly grave criminal offences.’

Judges:

Christos Rozakis, President

Citations:

7025/04, [2009] ECHR 1357

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

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 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, Criminal Practice, Legal Professions

Updated: 04 August 2022; Ref: scu.375496

Abdolkhani And Karimnia v Turkey: ECHR 22 Sep 2009

The Court in the context of detention pending deportation, concluded: ‘In sum, in the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to deportation and setting time-limits for such detention, the deprivation of liberty to which the applicants were subjected was not circumscribed by adequate safeguards against arbitrariness.’

Citations:

30471/08, [2009] ECHR 1336

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: 04 August 2022; Ref: scu.375433

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 access to a lawyer whilst in police custody.

Citations:

1915/03, [2009] ECHR 1288

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

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

Human Rights, Police

Updated: 04 August 2022; Ref: scu.375441

Robert W Greens v The United Kingdom: ECHR 27 Aug 2009

Citations:

60041/08, [2009] ECHR 1274

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

See Also – Greens v Her Majesty’s Advocate HCJ 12-Sep-2007
The defendant appealed against his sentence of seventeen years’ imprisonment for a violent rape. . .

Cited by:

See Also – Greens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
See Also – Greens and Others, Re Application for Judicial Review SCS 12-May-2011
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Elections

Updated: 04 August 2022; Ref: scu.375432

Jain and another v The United Kingdom: ECHR 16 Sep 2009

Citations:

39598/09, [2009] ECHR 1391

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

See Also – Jain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
See Also – Jain and Another v Trent Strategic Health Authority QBD 4-Dec-2006
. .
At CA – Jain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
At HL – Trent Strategic Health Authority v Jain and Another HL 21-Jan-2009
The claimants’ nursing home business had been effectively destroyed by the actions of the Authority which had applied to revoke their licence without them being given notice and opportunity to reply. They succeeded on appeal, but the business was by . .

Cited by:

See Also – Jain and another v The United Kingdom ECHR 9-Mar-2010
The applicants ran a Registered Nursing Home. The health authority, having concerns about its elderly residents, brought an ex parte application under section 30 of the Registered Homes Act 1984 for an order cancelling the Certificate of . .
See Also – Jain and another v The United Kingdom ECHR 9-Mar-2010
The applicants ran a Registered Nursing Home. The health authority, having concerns about its elderly residents, brought an ex parte application under section 30 of the Registered Homes Act 1984 for an order cancelling the Certificate of . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 August 2022; Ref: scu.375443

Gauci v Malta: ECHR 15 Sep 2009

Judges:

Nicolas Bratza, P

Citations:

47045/06, [2009] ECHR 1280, (2011) 52 EHRR 25

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

Grand Chamber – Hutten-Czapska v Poland ECHR 19-Jun-2006
Grand Chamber. The court considered the need for establishing a fair balance in cases under A1P1: ‘Not only must an interference with the right of property pursue, on the facts as well as in principle, a ‘legitimate aim’ in the ‘general interest’, . .

Cited by:

Cited – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 August 2022; Ref: scu.375437

Rabone and Another v Pennine Care NHS Trust: QBD 23 Jul 2009

The claimant’s daughter had been a voluntary patient at a mental hospital. She committed suicide when on home leave from a secure ward. The claimant now said that the hospital had acted incompatibly with their daughter’s human rights, in releasing her when she needed care.
Held: The claim failed. Since Melanie was a voluntary mental patient, not detained under the Mental Health Act, the NHS Trust did not have an operational obligation to her under ECHR article 2. Even if the NHS Trust did have such an operational obligation under ECHR article 2, it was not in breach of that obligation. The allegation of systemic breach of ECHR article 2, namely failure to adopt systems of work to protect the lives of patients, was rejected. The NHS Trust was not in breach of the investigatory obligation under ECHR article 2. The claimants were not victims for the purposes of section 7(7) of the Human Rights Act.
It was not equitable to extend the one-year time limit for bringing the human rights claims under section 7(5) of the Human Rights Act. If the claimants had succeeded in their claims, the proper award would have been andpound;1,500 for each claimant.

Judges:

Simon J

Citations:

[2009] EWHC 1827 (QB), [2009] LS Law Medical 503, (2009) 110 BMLR 56, [2010] PIQR P2

Links:

Bailii

Statutes:

Human Rights Act 1998 7, European Convention on Human Rights 2, Law Reform (Miscellaneous Provisions) Act 1934

Jurisdiction:

England and Wales

Cited by:

Appeal from – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
At First Instance – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Negligence

Updated: 04 August 2022; Ref: scu.375080

Regina v Asfaw: CACD 21 Mar 2006

The defendant, an Ethiopian arrived in the UK on a forged passport. She came through immigration control at Heathrow, but then on the same day sought to leave to fly to the US. At that point she was arrested. She now appealed her conviction for attempting to obtain service by deception.

Citations:

[2006] EWCA Crim 707, [2006] Crim LR 906

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Fregenet Asfaw HL 21-May-2008
The House considered the point of law: ‘If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 04 August 2022; Ref: scu.267966

NA v The United Kingdom: ECHR 21 Jun 2007

Citations:

25904/07, [2007] ECHR 602, [2011] ECHR 1272

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – NA v The United Kingdom ECHR 17-Jul-2008
The court noted that it had accepted appeals by 342 Tamils against being returned to Sri Lanka from the UK for fear of ill-treatment or persecution since 2007. It did so again. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 August 2022; Ref: scu.258215

Tanase And Chirtoaca v Moldova: ECHR 18 Nov 2008

The applicants challenged a law which prevented them standing as candidates in elections.

Citations:

7/08, [2008] ECHR 1468, [2010] ECHR 446

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights P1A3

Jurisdiction:

Human Rights

Cited by:

Cited – Barclay and Others, Regina (on The Application of) v Secretary of State for Justice and Others SC 1-Dec-2009
The claimants said that restrictions within the constitution of Sark on who could sit in the Chief Pleas were incompatible with their human rights. The claimants variously owned property on Sark but had restricted rights to vote and stand.
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 August 2022; Ref: scu.278191

Associated Society of Locomotive Engineers and Firemen (Aslef) v The United Kingdom: ECHR 27 Feb 2007

The Union complained that it had not been allowed to expel from its membership a member of the far right BNP party. They said that his views were incompatible with the union’s stated objectives. There was no related closed shop.
Held: The provisions were an interference with the Union’s right of free association, and the uinon’s actions similarly interfered the member’s rights of free association. The question was the extent to which the state could properly itself interfere to impose its views. No identifiable hardship was suffered by non-membership, and no unreasonable or abusive conduct shown in the union’s actions. The Union’s complaint succeeded.

Citations:

11002/05, [2007] ECHR 184, Times 09-Mar-2007, [2011] ECHR 1657

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

see Also – Associated Society of Locomotive Engineers and Firemen v Lee EAT 23-Feb-2004
EAT Contract within s174(4)(a)(iii) of TULRA 1992 for which a Trade Union cannot expel a member is limited to being or ceasing to be a member of a political party (in this case BNP). A union can expel a member if . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 04 August 2022; Ref: scu.249250

Banks v United Kingdom: ECHR 6 Feb 2007

The applicants complained of maltreatment by prison officers in breach of article 3. The matter had been investigated by the Crown Prosecution Service which had decided not to prosecute. Civil proceedings had been raised and settled. The applicants contended that, even after all that, an independent public inquiry should be held, since it was the only means of ensuring compliance with the article 3 procedural obligation.
Held: The application was declared manifestly ill-founded because, although reliance was placed on a procedural obligation arising under Article 3, there was no complaint of a substantive violation.
The court explained the difference between the procedural obligations under articles 2 nd 3: ‘Procedural obligations have been implied in varying contexts under the Convention, where this has been perceived as necessary to ensure that the rights guaranteed under the Convention are not theoretical or illusory but practical and effective. Such obligations requiring an effective investigation into allegations of unlawful use of force and serious ill-treatment have been interpreted as arising under Articles 2 and 3 of the Convention respectively . . The Court would emphasise that these obligations are not identical either in content or as regards their applicability. In the context of Article 2 of the Convention, the obligation to conduct an effective investigation into allegations of the unlawful use of force attracts particular stringency in situations where the victim is deceased and the only persons with knowledge of the circumstances are officers of the State. It is important, with a view to ensuring respect for the rule of law and confidence of the public, that the facts, and any unlawfulness, are properly and swiftly established. In the context of Article 3, where the victim of any alleged ill-treatment is, generally, able to act on his own behalf and give evidence as to what occurred, there is a different emphasis and . . since Article 13 of the Convention requires an effective remedy to be provided for arguable breaches of Article 3, it will not always be necessary, or appropriate, to examine the procedural complaints under the latter provision. The procedural limb of Article 3 principally comes into play where the Court is unable to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention, deriving, at least in part, from the failure of the authorities to react effectively to such complaints at the relevant time’

Citations:

21387/05, [2007] ECHR 177, (2007) 45 EHRR SE2

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Secretary of State for the Home Department v JN CA 14-May-2008
The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 04 August 2022; Ref: scu.249251

Copland v The United Kingdom: ECHR 3 Apr 2007

The applicant had been an employee. In the course of a dispute with her employer, she discovered that the principal had been collecting information about her telephone calls, emails and internet usage.
Held: The collection of such material without any explicit legal power by her employer, as a statutory body, was an abuse of her human rights in that it interfered with her privacy rights. Article 8(1) was engaged and the interference was not in accordance with domestic law. The events had predated the 2000 Act.

Citations:

62617/00, [2007] ECHR 253, Times 24-Apr-2007, [2007] BHRC 216, (2007) 45 EHRR 37

Links:

Bailii

Statutes:

European Convention on Human Rights 8, Regulation of Investigatory Powers Act 2000

Jurisdiction:

Human Rights

Cited by:

Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Cited – Fosh v Cardiff University EAT 23-Jan-2008
The professor had sought time off to represent another lecturer claiming race discrimination against the University. The University said that her behaviour created a conflict of interest with the University. She continued and herself claimed . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 August 2022; Ref: scu.250973

Pedersen and Baadsgaard v Denmark: ECHR 19 Jun 2003

Hudoc No violation of Art. 6-1 ; No violation of Art. 10

Citations:

49017/99, [2003] ECHR 306

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Curistan v Times Newspapers Ltd CA 30-Apr-2008
The court considered the availability of qualified privilege for reporting of statements made in parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the . .
See Also – Pedersen and Baadsgaard v Denmark ECHR 17-Dec-2004
HUDOC The press must not overstep the bounds set for, among other things, ‘the protection of the reputation of . . others’, including the requirements of acting in good faith and on an accurate factual basis and . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 03 August 2022; Ref: scu.183750

Widmann v Austria: ECHR 19 Jun 2003

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

Citations:

42032/98

Jurisdiction:

Human Rights

Human Rights

Updated: 03 August 2022; Ref: scu.186216

Sophia Gudrun Hansen v Turkey: ECHR 23 Sep 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings
‘Although measures against children obliging them to re-unite with one or other parent are not desirable in this sensitive area, such action must not be ruled out in the event of non-compliance or unlawful behaviour by the parent with whom the children live.’

Citations:

36141/97, [2004] 1 FLR 142, [2003] ECHR 451, [2003] ECHR 451

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Mentioned – F v M FD 1-Apr-2004
The court considered the ‘ongoing debate’ about the court’s role in contact disputes. ‘this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children

Updated: 03 August 2022; Ref: scu.186416

Hornsby v Greece: ECHR 19 Mar 1997

Hudoc Violation of Art. 6-1; Preliminary objection rejected; Just satisfaction reserved – Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award
The rights recognised under the Convention must be given effect to by signatory states.

Citations:

18357/91, (1997) 24 EHRR 250, [1997] ECHR 15, [1998] ECHR 26, [1998] ECHR 26, [1997] ECHR 15

Links:

Worldlii, Worldlii, Bailii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – F v M FD 1-Apr-2004
The court considered the ‘ongoing debate’ about the court’s role in contact disputes. ‘this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact . .
Cited – Wiltshire v Powell and others CA 7-May-2004
The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children

Updated: 03 August 2022; Ref: scu.165500

Hoppe v Germany: ECHR 5 Dec 2002

Hudoc No violation of Art. 8 ; No violation of Art. 6-1
The applicant complained that he had been denied a fair hearing in appeal proceedings concerning his right of access to his daughter contrary to article 6(1).
Held: ‘The court recalls further that article 6(1) requires in principle that a hearing be held. The question therefore arises whether a departure from this principle could, in the circumstances of the case, be justified at the appeal stage.
The manner in which article 6 of the Convention applies to proceedings before courts of appeal depends on the special features of the domestic proceedings viewed as a whole. Even where the court of appeal has jurisdiction both over the facts and in law, article 6 does not always require a right to a public hearing, irrespective of the nature of the issues to be decided. The publicity requirement is certainly one of the means whereby confidence in the courts is maintained. However, there are other considerations, including the right to a trial within a reasonable time and the related need for an expeditious handling of the courts’ case load, which must be taken into account in determining the necessity of public hearings in the proceedings subsequent to the trial at first instance level. Provided a public hearing has been held at first instance, the absence of a hearing before a second or third instance may accordingly be justified by the special features of the proceedings at issue.’ and
‘in cases concerning a person’s relationship with his or her child, there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter.’

Citations:

28422/95, (2002) 38 EHRR 285, [2003] 1 FLR 384, [2002] ECHR 793, [2002] ECHR 799

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – F v M FD 1-Apr-2004
The court considered the ‘ongoing debate’ about the court’s role in contact disputes. ‘this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact . .
Cited – Dudson, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The defendant had committed a murder when aged 16, and after conviction sentenced to be detailed during Her Majesty’s Pleasure. His tarriff had been set at 18 years, reduced to 16 years after review.
Held: ‘What is at issue is the general . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children

Updated: 03 August 2022; Ref: scu.178373

Poshteh v Royal Borough of Kensington and Chelsea: SC 10 May 2017

The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental difficulties which afflicted her following that incarceration. She now appealed from rejection of that claim by the County Court and the Court of Appeal.
Held: The appeal failed. Until a clear and direct judgment was available from the ECHR, the court was to follow the decision in Ali.
The appellant’s factual account had inconsistencies and the assessing officer’s factual conclusions were understandable, and disclosed no error of law.
‘The scope and limits of the concept of a ‘civil right’, as applied to entitlements in the field of public welfare, raise important issues as to the interpretation of article 6, on which the views of the Chamber are unlikely to be the last word. In my view, this is a case in which, without disrespect to the Chamber, we should not regard its decision as a sufficient reason to depart from the fully considered and unanimous conclusion of the court in Ali. It is appropriate that we should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our own position.’
The Court repeated its request for restraint in the extent and number of authorities quoted to it.

Judges:

Lord Neuberger, President, Lord Clarke, Lord Reed, Lord Carnwath, Lord Hughes

Citations:

[2017] UKSC 36, [2017] 3 All ER 1065, [2017] AC 624, [2017] HLR 28, [2017] WLR(D) 323, [2017] 2 WLR 1417, UKSC 2015/0219

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 140217 am Video, SC 140217 pm Video, WLRD

Statutes:

Housing Act 1996, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Appeal from – Poshteh v Royal Borough of Kensington and Chelsea CA 8-Jul-2015
The claimant sought housing under the homelessness provisions. She had refused a final offer accommodation n the grounds that it brought back memories of her prison cell in Iran, and which would exacerbate the post-traumatic stress disorder, anxiety . .
Cited – Slater v London Borough of Lewisham CA 12-Apr-2006
The applicant was heavily pregnant when she was offered a first floor one bedroomed flat. She rejected it.
Held: When a housing authority reviewed its decision on the applicant’s decision not to accept the accommodation offered, that review . .
Cited – Holmes-Moorhouse v Richmond Upon Thames HL 4-Feb-2009
The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded.
‘When any family court decides with whom the children of separated . .
Cited – El-Dinnaoui v Westminster City Council CA 20-Mar-2013
The appellant and his family sought rehousing. The appellant’s wife had a medically-confirmed history of anxiety due to fear of heights. They were offered a flat on the 16th floor. She became distressed on leaving after the inspection and collapsed . .
Cited – Fazia Ali v The United Kingdom ECHR 20-Oct-2015
The Court considered the duties imposed on housing authorities under Part VII of the 1996 Act.
Held: Article 6.1 did apply, but in any event the procedure applied under the Act conformed to its requirements. . .
Cited – Feldbrugge v The Netherlands ECHR 29-May-1986
The court was asked whether the applicant’s entitlement to a statutory sickness allowance, which was a contributory scheme but for which she had not registered due to illness, was a civil right within the meaning of article 6.
Held: The . .
Cited – Salesi v Italy ECHR 26-Feb-1993
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings . .
Cited – Mennitto v Italy ECHR 5-Oct-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings . .
Cited – Tsfayo v The United Kingdom ECHR 14-Nov-2006
The applicant challenged the prodecures for deciding her appeal against the council’s refusal to pay backdated housing benefits. She complained that the availability of judicial review of the decision was not adequate.
Held: The system did not . .
Cited – Schuler-Zgraggen v Switzerland ECHR 24-Jun-1993
The court considered a contributory invalidity scheme: ‘today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance . . State intervention is not sufficient to establish that Article . .
Cited – Loiseau v France ECHR 28-Sep-2004
ECHR Judgment (Merits) – No violation of Art. 6-1.
The court referred to ‘a ‘private right’ which can be said, at least on arguable grounds, to be recognised under domestic law’ and to ‘an individual right . .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
Cited – Stec and Others v United Kingdom ECHR 6-Jul-2005
. .
Cited – Nzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .
Cited – London Borough of Newham v Adan CA 14-Dec-2001
The applicant was a Dutch national. She appealed for housing as a homeless person. The local authority, after review found her not to have a settled intention to stay in England. She appealed, to the County Court, and succeeded, and the Authority . .
Cited – Boulois v Luxembourg ECHR 3-Apr-2012
(Grand Chamber) The claimant complained that as a prisoner he had been deprived of his right to a fair hearing and his right of access to a court in connection with the decisions refusing his requests for prison leave.
Held: The complaint was . .
Cited – Manchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
Cited – Regina v Hillingdon London Borough Council Ex parte Puhlhofer HL 2-Jan-1986
Not Homeless Even if Accomodation Inadequate
The applicants, a married couple, lived with a young child and later also a baby in one room of a guest house. They were given breakfast but had no cooking or washing facilities. They succeeded on a judicial review of the housing authority’s . .
Cited – Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another SC 25-Nov-2015
The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 03 August 2022; Ref: scu.582172

McCann v The State Hospitals Board for Scotland: SC 11 Apr 2017

A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking indoors, but rather as to the ban on smoking in the grounds and on home visits, which, by creating a comprehensive ban, prevented detained patients from smoking anywhere.
Held: The appeal was allowed in part. The respondent had not considered the principle that their actions should represent the minimum interference with a restrained person’s freedoms necessary to achieve the intended purpose. The absolute prohibition on having tobacco products and the related powers to search and confiscate were illegal and were nullified.
‘The Board did not purport to act under the 2003 Act in instituting the policy of prohibiting the possession of tobacco products, searching for such products and confiscating them. It may be the case that the consultation exercises which the Board carried out during 2011 were sufficient to comply with the obligations in section 1(2) and (3) of the 2003 Act. But there appears to have been no consideration of the obligation under section 1(4) nor compliance with the obligations to inform and record in the 2005 Regulations. This is not surprising as the Board considered that it was acting under the 1978 Act.’

Judges:

Lady Hale, Deputy President, Lord Mance, Lord Wilson, Lord Reed, Lord Hodge

Citations:

[2017] UKSC 31, [2017] 1 WLR 1455, 2017 GWD 12-169, 2017 SLT 451, [2017] 4 All ER 449, (2017) 156 BMLR 35, [2017] WLR(D) 268, UKSC 2015/0135

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Mental Health (Care and Treatment) (Scotland) Act 2003, European Convention on Human Rights 8

Jurisdiction:

Scotland

Citing:

Outer House – CM, Re Judicial Review SCS 27-Aug-2013
(Outer House) The prisoner, held in a high security psychiatric hospital, challenged the outright ban on smoking.
Held: The Lord Ordinary declared that the impugned decision was unlawful so far as it affected Mr McCann both because it was not . .
Extra Div Inner House – SN v Secretary of State for The Home Department SCS 14-Jan-2014
Extra Division, Inner House – . .
Appeal From – Reclaiming Motion Charles McCann v The State Hospital Board for Scotland SCS 12-Aug-2014
Inner House – The house considered a reclaiming motion (appeal) as to the lawfulness of a decision by the respondents to prohibit smoking and the possession of tobacco in the buildings and grounds of the State Hospital, Carstairs. The Board . .
Cited – Lyons, Re Judicial Review SCS 2-Feb-2011
The petitioner was a detained patient, subject to both a compulsion and restriction orders. He objected to a policy restricting visitors from bringing food parcels, and restricting ordering food from outside.
Held: Lady Dorrian held that the . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – Munjaz v The United Kingdom ECHR 17-Jul-2012
The applicant was detained in a secure mental hospital. He complained that he had been held in seclusion.
Held: The complaints under articles 5 and 8 were admissible, but there had been no violation of the applicant’s rights in these . .
Cited – Bruggeman and Scheuten v Federal Republic of Germany ECHR 12-Jul-1977
(Commission) The applicants complained at restrictions on the termination of unwanted pregnancies.
Held: Article 8(1) secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. He . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
Cited – Regina v Broadmoor Hospital Authority, Ex p S CA 1998
Routine and random searches may be an incident of therapeutic detention and treatment. . .
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.

Health, Prisons, Human Rights

Updated: 03 August 2022; Ref: scu.581645

Fazia Ali v The United Kingdom: ECHR 20 Oct 2015

The Court considered the duties imposed on housing authorities under Part VII of the 1996 Act.
Held: Article 6.1 did apply, but in any event the procedure applied under the Act conformed to its requirements.

Judges:

Guido Raimondi, P

Citations:

40378/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)), [2015] ECHR 924, [2015] HLR 46, (2016) 63 EHRR 20

Links:

Bailii

Statutes:

European Convention on Human Rights, Housing Act 1996 193

Jurisdiction:

Human Rights

Citing:

See Also – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .

Cited by:

Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 03 August 2022; Ref: scu.554348

Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice: SC 29 Jul 2015

The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods were taken lawfully.
Held: The segregation was not authorised by the applicable legislation: ‘rule 45 . . (1) enables the governor to ‘arrange’ for the prisoner’s removal from association. Paragraph (2) provides that a prisoner shall not be removed under the rule for a period of more than 72 hours ‘without the authority of the Secretary of State’, and that ‘authority given under this paragraph shall be for a period not exceeding 14 days’. Authority is therefore given under rule 45(2) by the Secretary of State to the governor, the governor having already formed the view that continued segregation is desirable. That provision cannot sensibly be construed either as enabling the governor to give authority to himself, or as enabling authority to be given to him by a subordinate officer.’ and ‘ it is implicit in rule 45(2) that the decision of the Secretary of State cannot be taken on his behalf by the governor, or by some other officer of the prison in question.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Sumption, Lord Reed, Lord Hodge

Citations:

[2015] UKSC 54, [2015] 3 WLR 457, [2016] AC 384, UKSC 2013/0230

Links:

Bailii, Bailii Summary, SC, SC Summary

Statutes:

European Convention on Human Rights 6, Prison Rules 1999 45(1)

Jurisdiction:

England and Wales

Citing:

At first Instance – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice Admn 18-Feb-2011
The prisoner claimants each challenged the way that decisions had been taken which had led to their being held in segregation units. They said the procedures were unfair.
Held: The applications were dismissed. Article 3 was not engaged. . .
Appeal from – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Cited – Carltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .
Cited – Lewisham Borough Council v Roberts CA 1949
The council sought to exercise its powers under the Act to take possession of part of the defendant’s property.
Held: Denning LJ said: ‘It is necessary to consider the nature of the power to requisition land. It is only a power to take . .
Cited – Castle v Crown Prosecution Service Admn 24-Jan-2014
The defendant appealed from his conviction for having driven in excess of a variable speed limit on the motorway. He said that the Order under which the speed limit had been imposed was irregular. . .
Cited – Regina v Secretary of State for the Home Department ex parte Oladehinde HL 18-Oct-1990
A decision at Senior Executive Officer level was accepted as appropriate in a deportation case. There was an express form of delegation, and acts of the immigration officers required to be regarded as the acts of the Home Secretary.
Lord . .
Cited – Regina v Secretary of State for Social Security ex parte Sherwin (a Patient By Her Next Friend Sherwin) Admn 16-Feb-1996
An official in the Benefits Agency, part of the Department of Health and Social Security, suspended an income support/severe disability premium payable to the appellant. The court was asked whether the decision of the Agency, made under the . .
Cited – Secretary of State for the Home Department v SP CA 21-Dec-2004
The applcant, a girl aged 17 was in a young offender institution. She complained that she had been removed to segregation without first giving her chance to be heard. The respondent argued that there were sufficient post decision safeguards to . .
Cited – Payne v Lord Harris of Greewich CA 1981
A prisoner sought a declaration that he was entitled to be given the reasons for refusing him parole so that he could make representations in rebuttal.
Held: The declaration was refused.
Lord Denning MR said: ‘No doubt it is the duty of . .
Cited – Regina v Governor of Brixton Prison, Ex parte Walsh HL 1984
Walsh faced two sets of charges. In one of which he was bailed and in the other he was remanded in custody. The Governor of the prison refused to produce him to the court for the purpose of facing the bailed proceedings.
Held: Habeas corpus . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Hickling CA 1986
Rules enabled the Secretary of State to permit a woman prisoner to have her baby with her in prison, subject to any conditions he thought fit. The Secretary of State had issued a general instruction laying down criteria for admission to a mother and . .
Cited – Leech v Governor of Parkhurst Prison HL 1988
The House was asked whether a disciplinary decision by a governor was amenable to judicial review.
Held: The functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague CA 5-Jun-1990
A decision to segregate a prisoner under rule 43 is to be made by the governor of the prison where he is held. Taylor LJ said: ‘Apart from the urgency of decisions under r 43, there may well be other public policy grounds for not giving reasons in . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
Cited – Ganci v Italie ECHR 30-Oct-2003
The applicant was serving two life sentences for Mafia related activities. He challenged nine decrees issued by the Minister of Justice under which he was held under a special prison regime for a period of four years. His case related to delays by . .
Cited – Tsfayo v The United Kingdom ECHR 14-Nov-2006
The applicant challenged the prodecures for deciding her appeal against the council’s refusal to pay backdated housing benefits. She complained that the availability of judicial review of the decision was not adequate.
Held: The system did not . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Gulmez v Turkey ECHR 20-May-2008
The applicant complained inter alia of successive decisions which had deprived him of visitation rights for about a year as punishment for disciplinary offences whilst in prison.
Held: ‘the restriction on the applicant’s visiting rights . .
Cited – Enea v Italy ECHR 17-Sep-2009
(Grand Chamber) The applicant, a prisoner serving a long sentence for Mafia-type criminal offences, was subjected to a special regime by ministerial decrees. The restrictions included not only very limited family visits but also a long period . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Cited – Castle v Crown Prosecution Service Admn 24-Jan-2014
The defendant appealed from his conviction for having driven in excess of a variable speed limit on the motorway. He said that the Order under which the speed limit had been imposed was irregular. . .
Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
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 – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Cited – Boulois v Luxembourg ECHR 3-Apr-2012
(Grand Chamber) The claimant complained that as a prisoner he had been deprived of his right to a fair hearing and his right of access to a court in connection with the decisions refusing his requests for prison leave.
Held: The complaint was . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .

Cited by:

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 – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Constitutional

Updated: 03 August 2022; Ref: scu.550793

Reclaiming Motion Charles McCann v The State Hospital Board for Scotland: SCS 12 Aug 2014

Inner House – The house considered a reclaiming motion (appeal) as to the lawfulness of a decision by the respondents to prohibit smoking and the possession of tobacco in the buildings and grounds of the State Hospital, Carstairs. The Board submitted that the 2003 Act principles did not apply to the impugned decision, that Mr McCann’s article 8 right to respect for his private life was not engaged, or, if it was, the impugned decision was a proportionate one which did not infringe his article 8 right.
Held: The Lord Justice Clerk with whom Lord Brodie agreed, allowed the appeal and refused the prayer of the petition. The Board was exercising its powers of management under the 1978 Act when it made the impugned decision. The 2003 Act was concerned with the care and treatment of the individual patient and the impugned decision did not involve the discharge of a function under that Act. Accordingly, the 2003 Act principles had no application to the decision.

Judges:

Lord Carloway Lord Justice Clerk, Lady Paton, Lord Brodie

Citations:

2015 SC 112, [2014] ScotCS CSIH – 71, 2014 SCLR 817

Links:

Bailii

Statutes:

Mental Health (Care and Treatment) (Scotland) Act 2003

Jurisdiction:

Scotland

Citing:

Outer House – CM, Re Judicial Review SCS 27-Aug-2013
(Outer House) The prisoner, held in a high security psychiatric hospital, challenged the outright ban on smoking.
Held: The Lord Ordinary declared that the impugned decision was unlawful so far as it affected Mr McCann both because it was not . .

Cited by:

Appeal From – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 03 August 2022; Ref: scu.535837