Category: Human Rights

FP (Iran) v Secretary of State for the Home Department: CA 23 Jan 2007

The claimants said that rules which allowed an appeal tribunal to proceed in their absence when they were absent through no fault of their own, were unlawful in depriving them of a fair trial. The claimants had each moved house but their former solicitors had failed to notify the court.
Held: There was no general principle of law which fixed a party with the procedural errors of his or her representative. The rules appeared to require the tribunal to proceed in the claimant’s absence. The right to be heard on an issue of radical importance to the individual, on such wide and rigid grounds when the party had done nothing wrong but whose lives and safety might in consequence be put at risk was infringed. The rule sacrificed fairness to speed and denied the tribunal any power to hold those two desiderata in balance. There was ‘no universal surrogacy principle’ which (reformulated) rules ‘would have to depart from in order to operate justly’.

Judges:

Lord Justice Sedley, Lady Justice Arden and Lord Justice Wall

Citations:

Times 26-Jan-2007, [2007] EWCA Civ 13

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 83, Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No 230) 19 56, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Al-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .
Cited – Regina v Immigration Appeal Tribunal ex parte Haile CA 2002
The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove . .

Cited by:

Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 09 July 2022; Ref: scu.248017

Parry v United Kingdom: ECHR 28 Nov 2006

Citations:

42971/05, [2006] ECHR 1157

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – MB v Secretary of State for Work and Pensions SC 5-Jul-2016
The court was asked about the age at which entitlement to a pension began for someone of transgender.
Held: The court was divided, and the issue was referred to the European Court of Justice. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 09 July 2022; Ref: scu.248115

Richmond Upon Thames London Borough Council v Holmes and Others: FD 20 Oct 2000

A newspaper sought to investigate the policies adopted by the council as regards inter-racial fostering. The council relied upon the Act to justify restrictions it sought to be imposed on the reporting. The case was not affected by the Children Act, and therefore no balancing exercise was required. The policy restricting publication was to be looked at under the convention, and limited only to the extent required. The injunction would be relaxed to permit publication provided the case was appropriately anonymised, and social workers with no opportunity to answer criticism were not named.

Citations:

Times 20-Oct-2000

Statutes:

Children Act 1989 1(1), European Convention on Human Rights 12

Jurisdiction:

England and Wales

Children, Human Rights, Media

Updated: 09 July 2022; Ref: scu.88779

London Borough of Brent v C: FD 28 Apr 2016

‘This case raises issues both as to the end-of-life treatment of a very ill child, and as to alleged breaches of rights under the European Convention on Human Rights, in relation to which damages were claimed. ‘

Judges:

Holman J

Citations:

[2016] EWHC 1335 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children, Human Rights, Health Professions

Updated: 09 July 2022; Ref: scu.565529

Girling v Secretary of State for the Home Department and Another: CA 21 Dec 2006

The claimant had challenged the findings of the Parole Board in his case, saying that the Board was not an independent tribunal as required under human rights law, since it was subject to direction from the Home Secretary.
Held: The Home Secretary’s appeal succeeded. The meaning of the word ‘directions’ depended on its context. The power in the Act was to be construed as for the giving of general directions only, and could not limit or extend the considerations which the Board had to allow for. So construed, there was no infringement.
Sir Anthony Clarke MR said: ‘Like all English words used in a statute (or indeed elsewhere), the meaning of the word ‘directions’ depends upon its context. The conclusion reached by the judge would we think be correct if the power to give directions included a power to direct the Board how it was to decide a particular case or class of case, because that would be to impugn the independence of the Board and to interfere with its functions as a court. However, if the power to give directions is construed as including, and being limited to, a power to give general directions to the Board to assist it to exercise its powers within the law, we can see no objection in principle to such a power being conferred on the Secretary of State.’

Judges:

Sir Anthony Clarke, Master of the Rolls, Sir Igor Judge, President and Lord Justice Carnmwath

Citations:

[2006] EWCA Civ 1779, Times 19-Jan-2007, [2007] 2 WLR 782, [2007] 2 All ER 688, [2007] QB 783

Links:

Bailii

Statutes:

Criminal Justice Act 1991 32(6)

Jurisdiction:

England and Wales

Citing:

Appeal From – Girling v Parole Board and Secretary of State for the Home Department Admn 8-Apr-2005
Once the punitive or tariff term of imprisonment on a convicted murderer, is completed, risk to life and limb provides the sole ground for continued detention. The Parole Board, being subject to directions from the Home Secretary, was not an . .

Cited by:

Cited – Brooke and Others, Regina (on the Application of) v The Parole Board and Another CA 1-Feb-2008
The claimant prisoner complained that the Parole Board was insufficiently independent of government to provide a fair hearing. The court at first instance had found that the relationship between the Parole Board and the sponsoring Department put the . .
Cited – McGetrick, Regina (on The Application of) v Parole Board and Another CA 14-Mar-2013
The claimant prisoner appealed against refusal of review of the use of allegations and evidence of offences not tried against him when deciding as to his release on licence. The material would suggest that he might pose a continuing risk to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 08 July 2022; Ref: scu.247498

Da Silva, Regina (on the Application of) v Director of Public Prosecutions and Another: Admn 14 Dec 2006

An innocent bystander had been shot dead by police mistaking him for a suicide bomber. The claimant, a cousin, challenged decisions not to prosecute any officer for murder or manslaughter or any other criminal offence.
Held: Review was refused: ‘A decision to prosecute can have a profound effect on the accused; and a decision not to prosecute, especially in circumstances where it is believed or asserted that the decision is or may be erroneous, can affect public confidence in the integrity and competence of the criminal justice system. The approach in the Code is that a prosecution must not go ahead if there is no realistic prospect of conviction, and that it is not the role of the CPS simply to give cases a public airing regardless of the strength of the evidence. Although it has been suggested that the CPS should recognise a category of cases where, because of the public interest in holding a trial in open court, a prosecution should be brought even though there is assessed to be insufficient evidence to provide a realistic prospect of conviction, it would be unfair and incompatible with a consistent application of the principles of justice to adopt a different standard for a particular category of suspect and to subject persons within that category to the burden of a prosecution even where there was not a realistic prospect of conviction.

Judges:

Richards LJ, Forbes and Mackay JJ

Citations:

[2006] EWHC 3204 (Admin)

Links:

Bailii

Statutes:

Prosecution of Offences Act 1985 10, Europeana Convention on Human Rights 2

Citing:

Cited – Regina v The Director of Public Prosecutions, Ex Parte Manning, Ex Parte Melbourne QBD 17-May-2000
The applicants sought judicial review of the decision of the Director not to prosecute anybody after the death of their brother in prison custody, and while under restraint by prison officers. The jury at a coroner’s inquest had returned a verdict . .

Cited by:

At Admn – Patricia Armani Da Silva v The United Kingdom ECHR 28-Sep-2010
The applicant complained of the failure to convict anyone of a serious criminal offence after her innocent cousin was shot dead by police officers who said they mistook him for a suicide bomber. . .
At Admn – Patricia Armani Da Silva v The United Kingdom ECHR 7-Jul-2012
The claimant’s cousin had been shot by police mistakenly thinking he was a terrorist with a suicide bomb. . .
At Admn – Patricia Armani Da Silva v The United Kingdom ECHR 12-Jul-2012
The claimant’s innocent cousin Jean Charles de Menezes had been shot and killed by police officers seeking a suicide bomber. She had complained that after investigation, no police officer had been prosecuted for any serious offence of murder or . .
Lists of cited by and citing cases may be incomplete.

Police, Criminal Practice, Human Rights

Updated: 08 July 2022; Ref: scu.247468

Tweed v Parades Commission for Northern Ireland: HL 13 Dec 2006

(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were provided on an assurance of confidentiality.
Held: Disclosure rules are different in judicial review proceedings since such cases raise primarily issue of law rather than fact. However human rights decisions are more fact specific, and disclosure may increase. The documents should be disclosed by the commission to the judge in the case so that he might assess what they might add to the proceedings.
Lord Bingham said that judicial review cases involving human rights issues: ‘tend to be very fact-specific and any judgment on the proportionality of a public authority’s interference with a protected Convention right is likely to call for a careful and accurate evaluation of the facts. But even in these cases, disclosure should not be automatic. The test will be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and accurately’

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2007] 1 AC 650, [2006] UKHL 53, Times 15-Dec-2006, [2007] 2 WLR 1, [2007] 2 All ER 273

Links:

Bailii

Statutes:

European Convention on Human Rights 9 10 11, Public Processions (Northern Ireland) Act 1998

Jurisdiction:

England and Wales

Citing:

Cited – Campaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
Cited – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
Cited – Regina v Secretary of State for Home Department ex parte Harrison CA 16-Jul-1997
In judicial review the court is not required to consider the route by which the impugned decision is reached, but only the terminus. . .
Cited – Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment and Another (No 2) PC 13-Aug-2003
(Belize) The applicants sought an interim order preventing continuation of the building of a dam, saying that the environmental damage had not been properly aanticipated.
Held: The Board of the Council did have power to grant an interim . .
Cited – Regina v Secretary of State for the Environment, Ex parte Islington London Borough Council and the London Lesbian and Gay Centre 1997
Unless there is some prima facie case for suggesting that the evidence relied upon by the deciding authority is in some respects incorrect or inadequate it is improper to allow disclosure of documents, the only purpose of which would be to act as a . .
Cited – Re Rooney’s Application 1995
. .
Cited – Regina v Secretary of State for the Environment ex parte Islington London Borough Council CA 19-Jul-1991
The court considered the proper range within which challenges to affidavit evidence given in judicial reviw proceedings should be kept. Dillon LJ said: ‘The . . argument is stated to have been that an applicant is not entitled to go behind an . .
Cited – Re McGuigan’s Application 1994
. .
Cited – Regina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd Admn 10-Nov-1994
The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It . .
Cited – Regina v Secretary of State for Home Department ex parte Fayed CA 13-Nov-1996
The nature of the Secretary of State’s objections and a chance to reply are to be given if the Secretary intends to deny an application for naturalisation. Administrative convenience cannot justify unfairness. The court deprecated ‘fishing . .
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – Dubai Bank Ltd v Galadari (No 2) CA 1990
An ex parte Mareva injunction had been obtained. It was said that there had been material non-disclosure of important facts. The plaintiff bank had been under the control of the Galadaris between 1970 and 1985, when it was taken over by the . .
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – Dubai Bank Ltd v Galadari (No 7) ChD 1992
The court approved the proposition that the starting point for the court in addressing the selection of documents for discovery is that the court should accept a solicitor’s affidavit claiming privilege as conclusive ‘unless it can be seen . .
Cited – Regina v Secretary of State for Health, Ex parte Hackney London Borough Council CA 29-Jul-1994
. .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
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 by:

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 – Al-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence (PII) Admn 10-Jul-2009
The claimants alleged murder and ill-treatment by the British Armed forces in Iraq. The defendant had failed repeatedly to comply with disclosure orders and an indemnity costs award had been made against him. The defendant had in particular . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – Al-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v The Independent Reviewer of Advertising Standards Authority Adjudications Admn 10-Nov-2014
The two supermarkets had price matching comparison schemes. Sainburys complained that the Independent Reviewer’s decsion that the ASA’s response to is complant as to the Tesco scheme was itself flawed. They had complained that the selections for . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Judicial Review, Human Rights

Updated: 08 July 2022; Ref: scu.247399

S v United Kingdom: ECHR 1986

The applicant was not entitled in domestic law to succeed to a tenancy on the death of her partner. The aim of the legislation is question was to protect the family, a goal similar to the protection of the right to respect for family life guaranteed by Article 8 of the Convention. The aim itself is clearly legitimate. The question remains, however, whether it was justified to protect families but not to give similar protection to other stable relationships. The Commission considers that the family (to which the relationship of heterosexual unmarried couples living together as husband and wife can be assimilated) merits special protection in society and it sees no reason why a High Contracting Power should not afford particular assistance to families. The Commission therefore accepted that the difference in treatment between the applicant and somebody in the same position whose partner had been of the opposite sex can be objectively and reasonably justified. And ‘The Commission notes that the applicant was occupying the house, of which her partner had been the tenant, without any legal title whatsoever. Contractual relations were established between the local authority and the deceased partner and that contractual agreement may or may not have permitted long-term visitors. The fact remains, however, that on the death of the partner, under the ordinary law, the applicant was no longer entitled to remain in the house, and the local authority was entitled to possession so that the house could no longer be regarded as ‘home’ for the applicant within the meaning of Article 8.’
A stable homosexual relationship between two men does not fall within the scope of the right to respect for family life, but that such a relationship may be a matter affecting private life

Citations:

[1986] 47 D and R 274, 11716/85, (1986) 47 DR 274

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – Grant v South West Trains Ltd ECJ 17-Feb-1998
A company’s ban on the provision of travel perks to same sex partners of employees did not constitute breach of European sex discrimination law. An employer’s policy was not necessarily to be incorporated into the contract of employment. The court . .
Cited – Ghaidan v Godin-Mendoza CA 5-Nov-2002
The applicant sought to succeed to the tenancy of his deceased homosexual partner as his partner rather than as a member of his family.
Held: A court is bound by any decision within the normal hierachy of domestic authority as to the meaning . .
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 . .
Superceded – Karner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
Superceded – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Housing

Updated: 08 July 2022; Ref: scu.182209

Hetoja, Regina (on the Application Of) v Secretary of State for the Home Department: Admn 24 Oct 2002

The applicant was an asylum seeker reliant upon the respondent for housing, being otherwise destitute. She sought housing which would not split up her extended family. She claimed that the regulations excluded from the respondent’s decision making process an element, her right to respect for family life, which he was obliged under the Convention to have regard to.
Held: The regulations required the respondent not to take account of the applicant’s own personal preferences. This did not prevent him having proper regard for her circumstances, including the factors which she sought to have reflected, in his duty to provide adequate accommodation. The regulations did not conflict with her rights.

Judges:

Lightman J

Citations:

Times 11-Nov-2002, [2002] EWHC 2146 (Admin)

Links:

Bailii

Statutes:

National Assistance Act 1948 , Immigration and Asylum Act 1999 97(2), Asylum Support Regulations 2000 (2000 No 704) 13(2)(a), European Convention on Human Rights Art 8

Jurisdiction:

England and Wales

Immigration, Benefits, Human Rights, Housing

Updated: 08 July 2022; Ref: scu.178016

Regina and Commissioners of Inland Revenue ex parte Professional Contractors Group Ltd; Ruud Van Zundert and Square Mile Projects Ltd: Admn 2 Apr 2001

Legislation was introduced changing the taxation of one man companies through which many professional contractors worked. The asserted that this infringed their human rights by depriving them of property rights in the companies, and was an infringement of the right of freedom of movement within member states. Neither argument succeeded. There was no deprivation of property rights, and there was no discriminatory treatment according to a worker’s nationality.

Citations:

Times 05-Apr-2001, Gazette 17-May-2001, [2001] EWHC Admin 236

Links:

Bailii

Statutes:

Welfare Reform and Pensions Act 1999 75 76, Finance Act 2000 60, Social Security Contributions (Intermediaries) Regulations 2000 (2000 No 272)

Jurisdiction:

England and Wales

Citing:

Appealed to – Professional Contractors’ Group and Others v Commissioners of Inland Revenue CA 21-Dec-2001
Legislation had been enacted to tax under Schedule E, people employed through one man service companies and similar. Representatives of such taxpayers sought review of the legislation as incompatible with European law being a hindrance to the . .

Cited by:

Appeal from – Professional Contractors’ Group and Others v Commissioners of Inland Revenue CA 21-Dec-2001
Legislation had been enacted to tax under Schedule E, people employed through one man service companies and similar. Representatives of such taxpayers sought review of the legislation as incompatible with European law being a hindrance to the . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Human Rights, European

Updated: 08 July 2022; Ref: scu.135323

AL (Serbia) v Secretary of State for the Home Department: CA 28 Nov 2006

Citations:

[2006] EWCA Civ 1619

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 July 2022; Ref: scu.246702

McKay v The United Kingdom: ECHR 3 Oct 2006

The applicant said that his human rights had been infringed under laws which required him to apply to the high court for bail rather than to a magistrate, necessitating a further four day wait before his application for bail was considered. He had been remanded after admitting an armed robbery, though the police had not objected to bail. Because the offence was one scheduled by the 2000 Act under the 1996 Act.
Held: The provisions were not incompatible with the Convention. The magistrate was in a position to examine other elements such as the lawfulness of his detention and the existence of reasonable grounds for suspicion of having committed the offence. There was no possible arbitrariness or abuse to require an application to the High Court which had in fact heard the application within a day. As to article 5: ‘Article 5 of the Convention is, together with articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of an individual and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty.’

Citations:

Times 30-Oct-2006, 543/03, [2006] ECHR 820, (2007) 44 EHRR 41

Links:

Bailii

Statutes:

European Convention on Human Rights 5 2 3 4, Northern Ireland (Emergency Provisions) Act 1996, Terrorism Act 2000 67(2)

Cited by:

Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice, Northern Ireland

Updated: 08 July 2022; Ref: scu.246586

HK v Finland: ECHR 26 Sep 2006

Citations:

36065/97, [2006] ECHR 801

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

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

Updated: 08 July 2022; Ref: scu.246512

Blake v The United Kingdom: ECHR 26 Sep 2006

The claimant had been a Russian spy whilst in British Intelligence, escaping from prison and fleeing to Russia in 1966. He now complained that an action by the respondent government to seek to recover royalties from a book had been so extended in time as to deny him a fair trial. The proceedings had lasted nine years and two months.
Held: The complaint was well founded. The proceedings against the applicant were not pursued with the diligence required and there had been a violation of article 6.1.

Judges:

J Casadevall, President, and Judges M. Pellonpaa, R. Maruste, S. Pavlovschi, L. Garlicki, J. Borrego Borrego and Judge ad hoc Lord Brown of Eaton under Heywood

Citations:

68890/01, [2006] ECHR 805, Times 11-Oct-2006, (2007) 44 EHRR 29

Links:

Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

Cited – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Cited – Legal Services Commission v Henthorn CA 30-Nov-2011
The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 July 2022; Ref: scu.246501

In re D (A Child), (Abduction: Rights of Custody): HL 16 Nov 2006

The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention required an order to be made for the return of a child only where the parent seeking the return could show some wrongful element in the removal. A right of veto given to the father to control removal from a jurisdiction would amount to ‘rights of custody’ within the meaning of article 5(a), but a potential right of veto does not. However at the time when the order had been made, the Romanian court had expressly ruled that the mother could leave and take her son with her: ‘While ultimately, therefore, the decision is one for the courts of the requested state, those courts must attach considerable weight to the authoritative decision of the requesting state on both issues.’
Under the Human Rights Act 1998, it is now unlawful for the court as a public authority to act incompatibly with the human rights and fundamental freedoms guaranteed by the European Convention on Human Rights. This applies in a Hague Convention case just as in any other. Article 20 has thus been given domestic effect by a different route. Hence a final issue is whether a return would be incompatible with the Convention rights.
Baroness Hale said that: ‘The question is, do the rights possessed under the law of the home country, by the parent who does not have day to day care of the child, amount to rights of custody or do they not?’ However, she drew a distinction between that position and a simple ‘potential right of veto’: ‘In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child’s upbringing, including relocation abroad, this should not amount to ‘rights of custody’. To hold otherwise would be to remove the distinction between ‘rights of custody’ and ‘rights of access’ altogether.’

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

Times 17-Nov-2006, [2006] UKHL 51, [2007] 1 AC 619, [2007] 1 FLR 961, [2006] 3 WLR 989, [2007] 1 All ER 78

Links:

Bailii

Statutes:

Child Abduction and Custody Act 1985, Hague Convention on the Civil Aspects of International Child Abduction 1980 5(a)

Jurisdiction:

England and Wales

Citing:

Cited – C v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .
Cited – In Re W (Minors) (Child Abduction: Unmarried Father); In Re B (A Minor) (Child Abduction: Unmarried Father) FD 9-Apr-1998
An unmarried father has no rights as regards a child until an application is made, but a mother taking child abroad whilst a court application was continuing could be restrained as an act of child abduction through the court’s own parental rights . .
Appeal from – In re D (A Child) CA 25-May-2006
The mother had unlawfully brought her son here from Romania, and now appealed an order for his return.
Held: The appeal was dismissed. . .
At first instance – In re D (a Child) FD 2006
The father sought the return of his son to Romania. The mother had brought him here without the father’s consent. The father said that a Romanian court had ordered his return, but the expert evidence as to the effect of the order was conflicting. . .
Cited – J, Petitioner IHCS 2005
‘rights of custody’ for Convention purposes included the right to grant or withhold consent to the child’s removal from the United Kingdom under section 2(3) of the 1995 Act. . .
Cited – In re P (A Child) (Abduction: Consent); (Abduction: Custody Rights) CA 28-Jul-2004
The father sought the return to the USA of his daughter, brought here by her mother. The father had custody, but the mother said he had consented to the child being brought here.
Held: The issue of consent did not affect the question of the . .
Cited – Hunter v Murrow (Abduction: Rights of Custody) CA 28-Jul-2005
Rights of access can in themselves amount to ‘rights of custody’ for the Convention. Dyson LJ divided the question of whether the father had rights of custody into two. The first, which he called ‘the domestic law question’, was what rights the . .
Cited – Re H, H v H (Child Abduction: Acquiescence) HL 10-Apr-1997
The mother and father were orthodox Jews. The mother brought the children to England from Israel against the father’s wishes. She said that he had acquiesced in their staying here by asking for them to be returned to Israel temporarily. The father . .
Cited – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – V-B (Minors) (Abduction: Custody Rights) CA 17-Mar-1999
Rights of custody are to be distinguished from mere rights of access. . .

Cited by:

Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Cited – In Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Cited – In re K (A Child) SC 15-Mar-2014
Rights of Custody under Convention
The Court was asked as to what were ‘rights of custody’ within the Convention. M had at first left her child with the maternal grandmother in an informal but long term arrangement in Latvia when M moved to Northern Ireland. Later M removed the child . .
Lists of cited by and citing cases may be incomplete.

Children, International, Human Rights

Updated: 08 July 2022; Ref: scu.246083

Lisa Smith, Regina (on the Application of) v South Norfolk Council: Admn 10 Nov 2006

The claimant gypsies had bought and moved onto land in Norfolk and stayed there in breach of planning enforcement notices. The inspector upheld the notices, but advised the Council of the difficulties in finding sites and had stayed enforcement for a year. The claimants now said that it was unlawful of the council to use its s178 powers to evict them.
Held: The Council had balanced the removal of the group against the extension of time, and took the view that at the expiry of that time, the notices had to be enforced or else the process of enforcement, appeal, and public respect for it would be set at naught. Developments since had made one site available with planning permission, and the decision must be re-considered in the light of the current position. The use of section 178 powers was not disproportionate.

Judges:

Ouseley J

Citations:

[2006] EWHC 2772 (Admin)

Links:

Bailii

Statutes:

Race Relations (Amendment) Act 2000, Town and Country Planning Act 1990 178

Jurisdiction:

England and Wales

Citing:

Cited – South Buckinghamshire District Council and Another v Porter (No 2) HL 1-Jul-2004
Mrs Porter was a Romany gipsy who bought land in the Green Belt in 1985 and lived there with her husband in breach of planning control. The inspector gave her personal permission to continue use, and it had been appealed and cross appealed on the . .
Cited – Regina (O’Brien) v Basildon District Council Admn 2006
There is no inherent restriction on the powers in section 178 to prevent a planning authority using them for the purposes of evicting people using land for a residential purpose in breach of an enforcement notice which had taken effect. It would not . .
Cited – Regina (Yaser Mahmood) v Secretary of State for Home Department Admn 9-Aug-2001
The Home Secretary had served notice that the applicant was an illegal immigrant, and liable to deportation. An order had been made for the cross examination of the applicant. He had come to England to study, but soon dropped his immediate plans. He . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Secretary of State for Defence v Elias CA 10-Oct-2006
The claimant said that a scheme drawn by the defendant for compensating British civilians interned by the Japanese during the second world war was indirectly discriminatory on racial grounds by requiring a national origin link with the UK. She had . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Elias, Regina (on the Application of) v Secretary of State for Defence and Another Admn 7-Jul-2005
. .
Lists of cited by and citing cases may be incomplete.

Planning, Discrimination, Human Rights

Updated: 08 July 2022; Ref: scu.245978

JM v Secretary of State for the Home Department: CA 4 Oct 2006

The Tribunal had concluded in JM (Rule 62(7); human rights unarguable) Liberia * [2006] UKAIT 00009 that a human rights claim was not justiciable on a variation of leave appeal because in such a case the appellant’s removal was not imminent, and the case was not within section 84(1)(g) which conferred the relevant jurisdiction on the Tribunal.
Held: The appeal succeeded. The case was within s.84(1)(g) and that as a result the Tribunal should have concluded that it was obliged to determine the matter of the human rights claim which had been raised as a ground of appeal.
Laws LJ emphasised that the Tribunal is a creature of statute and thus possesses only the jurisdiction which statute has conferred upon it.

Judges:

Laws, Waller, Leveson LJJ

Citations:

[2006] EWCA Civ 1402, [2007] Imm AR 293, [2006] INLR 548

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 82 84

Jurisdiction:

England and Wales

Cited by:

Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Cited – AN and NN (S.83, Asylum Grounds Only) Albania IAT 10-Dec-2007
IAT JM v Secretary of State for the Home Department [2006] EWCA Civ 1402 has no impact on the scope of s. 83. As is clear from the relevant legislation and Immigration Rules, in an appeal under s.83 of the 2002 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 July 2022; Ref: scu.245909

B v The United Kingdom; P v The United Kingdom: ECHR 2001

The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment.’ but
‘The applicants submit that the presumption in favour of a private hearing in cases under the Children Act should be reversed. However, while the court agrees that article 6(1) states a general rule that civil proceedings, inter alia, should take place in public, it does not find it inconsistent with this provision for a state to designate an entire class of case as an exception to the general rule where considered necessary for the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties, although the need for such a measure must always be subject to the court’s control. The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by article 6(1).
Furthermore, the English tribunals have a discretion to hold Children Act proceedings in public if merited by the special features of the case, and the judge must consider whether or not to exercise his or her discretion in this respect if requested by one of the parties. Turning to the facts before it, the Court notes that . . the judges at first instance and on appeal gave careful consideration and detailed explanations of their reasons for holding that the proceedings should continue in chambers.’
Judge Sir Nicholas Bratza said: ‘As to the complaint concerning the holding of the proceedings in camera, I fully share the reasoning of the majority, the decisive point in my view being that in both cases the county court judge exercised his independent discretion to exclude the public from the substantive hearing in the interests of the children concerned.’
Residence and contact proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and/ or the parties and to avoid prejudicing the interests of justice. ‘To enable the deciding Judge to gain as full and accurate a picture as possible of the advantages and disadvantages of various residences and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment . . does not find it inconsistent with this provision for a State to designate an entire class of case as an exception to the general rule . . where required by the interests of juveniles or the protection of the private life of the parties, although the need for such a measure must always be subject to the Court’s control. The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by Article 6(1).’

Judges:

Judge Sir Nicholas Bratza

Citations:

[2001] 2 FLR 261, 35974/97, [2001] ECHR 298, 36337/97, [2001] 2 FCR 221, (2002) 34 EHRR 19, [2001] Fam Law 506, 11 BHRC 667

Links:

Bailii

Statutes:

Family Proceedings Rules 1991 4.16(7), European Convention on Human Rights 6(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Child X (Residence and Contact- Rights of Media Attendance) (Rev 2) FD 14-Jul-2009
The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude . .
Cited – A v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
Cited – Lykiardopulo v Lykiardopulo CA 19-Nov-2010
The court was asked as to how a Family Division judge might decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case. H and family members had . .
Cited – Doncaster Metropolitan Borough Council v Haigh FD 22-Aug-2011
The Council sought to have certain aspects of a care application put into the public domain which would normally have remained private. Application was also made (by the father and the child) for an order restricting the right of the mother to make . .
Cited – MX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
Lists of cited by and citing cases may be incomplete.

Family, Human Rights, Children, Media

Updated: 08 July 2022; Ref: scu.245940

Moser v Austria: ECHR 2006

The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in public: ‘The Court considers that there are a number of elements which distinguish the present case from B v United Kingdom. In that case, the Court attached weight to the fact that the courts had discretion under the Children Act to hold proceedings in public if merited by the special features of the case and a judge was obliged to consider whether or not to exercise his or her discretion in this respect if requested by one of the parties. The Court noted that in both cases the domestic courts had given reasons for their refusal to hear the case in public and that their decision was moreover subject to appeal. The Court notes that the Austrian Non-Contentious Proceedings Act now in force gives the judge discretion to hold family-law and guardianship proceedings in public and contains criteria for the exercise of such discretion. However, no such safeguards were provided for in the 1854 Non-Contentious Proceedings Act. It is therefore not decisive that the applicant did not request a public hearing, since domestic law did not provide for such a possibility and the courts’ practice was to hold hearings in camera.
Moreover, the case of B v United Kingdom concerned the parents’ dispute over a child’s residence, thus, a dispute between family members, ie individual parties. The present case concerns the transfer of custody of the first applicant’s son to a public institution, namely the Youth Welfare Office, thus, opposing an individual to the State. The Court considers that in this sphere, the reasons for excluding a case from public scrutiny must be subject to careful examination. This was not the position in the present case, since the law was silent on the issue and the courts simply followed a long-established practice to hold hearings in camera without considering the special features of the case.’

Citations:

[2006] 3 FCR 107, 12643/02, [2006] ECHR 799, [2007] 1 FLR 702, [2010] ECHR 381

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights 6, European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Child X (Residence and Contact- Rights of Media Attendance) (Rev 2) FD 14-Jul-2009
The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude . .
Cited – Doctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 July 2022; Ref: scu.245941

LD (Article 14; Same-Sex Relationships) Brazil: IAT 10 Sep 2006

Prior to the coming into force of the Civil Partnership Act 2004, it was not a breach of art 14 of the ECHR amounting to unlawful discrimination on the ground of sexual orientation to refuse to grant leave to a person in a same-sex relationship who could not satisfy the requirements of the Immigration Rules in circumstances where a party to a marriage would be granted leave under the Rules. The differential treatment was, at that time, objectively justified. (N.B. Because of the provisions of the Civil Partnership Act 2004 this is an example of the rare case where leave to remain is an essential requirement for the development of family life under art 8.)

Judges:

Chalkley, Grubb, Spencer SIJJ

Citations:

[2006] UKIAT 00075

Links:

Bailii

Statutes:

Civil Partnership Act 2004, European Convention on Human Rights 8 14

Jurisdiction:

England and Wales

Immigration, Family, Human Rights

Updated: 08 July 2022; Ref: scu.245502

Murungaru v Secretary of State for the Home Department and others: Admn 4 Oct 2006

The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with the peaceful enjoyment of the claimant’s possessions (the right to obtain medical treatment), under the Convention, requiring justification in the public interest. However the Court could not determine this issue or the procedural challenges without examining the closed material. The court considered the appointment of a special counsel. ‘Once proportionality is engaged, and once that issue depends to any significant extent upon material which the claimant cannot see, then in my judgment fairness requires where his Convention rights are engaged that his interests are represented by an advocate who can make submissions to the court. Accordingly, in my view, the application for the appointment of special counsel is well-founded.’

Judges:

Keith J

Citations:

[2006] EWHC 2416 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

Cited – In Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.

Cited by:

See Also – Murungaru, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Nov-2006
The applicant, a former minister in the Government of Kenya challenged the revocation of entry visas. This had been done on the basis of evidence withheld from him, and the court considered the way in which that evidence could be used by the use of . .
See Also – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 July 2022; Ref: scu.245359

Al Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another: CA 12 Oct 2006

The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in the respondent’s conduct of foreign relations, but the claimants now asserted severe infringement of their human rights, including saying that they had been tortured. The US had declared them to be enemy combatants. The applicants were not British Nationals.
Laws LJ said: ‘If the British Government owed a duty to intercede in case of torture, it would no doubt have to arrive at a judgment, after inquiry as appropriate, as to the likely truth of the allegation; although it is to be noted that the European Court of Human Rights accepts a rule in respect of allegations of violations of article 3 under the European Convention on Human Rights that they have to be established beyond reasonable doubt.’ and
‘This case has involved issues touching both the Government’s conduct of foreign relations, and national security: pre-eminently the former. In those areas the common law assigns the duty of decision upon the merits to the elected arm of government; all the more so if they combine in the same case. This is the law for constitutional as well as pragmatic reasons . .’
. . And ‘Reasonableness and proportionality are not formal legal standards. They are substantive virtues, upon which, it may be thought, lawyers do not have the only voice: nor necessarily the wisest. Accordingly, the ascertainment of the weight to be given to the primary decision-maker’s view (very often that of central government) can be elusive and problematic . . The courts have a special responsibility in the field of human rights. It arises in part from the impetus of the Human Rights Act 1998, in part from the common law’s jealousy in seeing that intrusive state power is always strictly justified. The elected government has a special responsibility in what may be called strategic fields of policy, such as the conduct of foreign relations and matters of national security. It arises in part from considerations of competence, in part from the constitutional imperative of electoral accountability . . The court’s role is to see that the Government strictly complies with all formal requirements, and rationally considers the matters it has to confront. Here, because of the subject matter, the law accords to the executive an especially broad margin of discretion.’

Judges:

Brooke LJ VP, Laws LJ, Smith LJ

Citations:

[2006] EWCA Civ 1279, Times 18-Oct-2006, [2007] 2 WLR 1219, [2008] QB 289

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Appeal from – Al Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another Admn 4-May-2006
‘This claim arises out of the continued detention in Guantanamo Bay of the first three named claimants by the United States authorities. None of them are British nationals, but each has been a long term resident of the United Kingdom in . .

Cited by:

Cited – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs CA 29-Oct-2013
The claimant appealed from rejection of his judicial review of a decision that he be placed on a list of persons subject to sanctions and therefore without access to money save with the consent of the government.
Held: The Secretary of State . .
Lists of cited by and citing cases may be incomplete.

Administrative, Human Rights, International, Constitutional

Updated: 07 July 2022; Ref: scu.245326

Saadi v United Kingdom: ECHR 11 Jul 2006

The claimant had been detained as an asylum seeker. He complained that reasons for his detention were not given to him or his lawyer for 76 hours.
Held: The delay was incompatible with the applicant’s rights.

Citations:

Times 03-Aug-2006, 13229/03, [2006] ECHR 732

Links:

Bailii

Statutes:

European Convention on Human Rights 5.2

Jurisdiction:

Human Rights

Cited by:

See Also – Saadi v United Kingdom ECHR 29-Jan-2008
(Grand Chamber) The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast-track processing. The decision was made pursuant to a policy under which all asylum claimants . .
See Also – Saadi v United Kingdom ECHR 16-May-2007
Grand Chamber – Press Release . .
See Also – Saadi v United Kingdom ECHR 3-Jun-2010
Execution of the judgment . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 July 2022; Ref: scu.244740

Secretary of State for the Home Department v JJ and others: CA 1 Aug 2006

The applicants had challenged non-derogating control orders restricting his liberty on the basis that he was suspected of terrorist intentions. The Home Secretary appealed an order finding the restrictions to be unlawful.
Held: The Home Secretary’s appeal failed. The restrictions imposing an 18 hours a day curfew, and additional substantial movement and association restrictions amounted to a deprivation of liberty. The difference between deprivations of liberty and restrictions on liberty of movement were ones of fact and degree. It was not correct to ignore the additional external restrictions when considering whether they amounted to a deprivation of liberty. On these facts the judge was clearly right to make his finding.

Citations:

Times 18-Aug-2006, [2006] EWCA Civ 1141, [2006] HRLR 38, [2007] QB 446, [2006] UKHRR 1081, [2006] 3 WLR 866

Links:

Bailii

Statutes:

Prevention of Terrorism Act 2005

Jurisdiction:

England and Wales

Citing:

Appeal from – Secretary of State for the Home Department v JJ and others Admn 28-Jun-2006
The claimants challenged the terms of restrictions placed upon them under the Act. . .
Applied – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .

Cited by:

Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Appeal from – Secretary of State for the Home Department v JJ and others HL 31-Oct-2007
The Home Secretary appealed against a finding that a non-derogating control order was unlawful in that, in restricting the subject to an 18 hour curfew and otherwise severely limiting his social contacts, the order amounted to such a deprivation of . .
Cited – Secretary of State for the Home Department v AF AM and AN etc CA 17-Oct-2008
The claimants were subject to non-derogating control orders, being non EU nationals suspected of terrorism. They now said that they had not had a compatible hearing as to the issue of whether they were in fact involved in terrorist activity.
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 07 July 2022; Ref: scu.244107

Secretary of State for the Home Department v MB: CA 1 Aug 2006

The Secretary of State appealed a declaration that the restrictions imposed on the complainant under the 2005 Act were an infringement of his human rights, and a declaration of incompatibility as regards section 3.
Held: The appeal succeeded. The availability of a judicial review of the orders made was sufficient to provide a protection. The orders would impinge on the human rights of those subject to them, but the judge had concluded that the judicial protection was insufficient. In fact the Act required the judge to do what was necessary to protect the subject’s human rights. The Home Secretary had to have grounds for suspicion, and to consider the order to be necessary. His greater factual knowledge must require some deference from the courts, but the courts must give intense scrutiny to decide whether the matrix of facts and suspicions justified the order. That exercise was not the same as judging them against a standard of proof. European jurisdiction accepted that closed material might be used subject to safeguards, and the system of special advocates and rules of court provided adequate safeguards.

Judges:

Lord Phillips CJ

Citations:

Times 18-Aug-2006, [2006] EWCA Civ 1140, [2007] QB 415

Links:

Bailii

Statutes:

Prevention of Terrorism Act 2005 3, Human Rights Act 1998 3

Jurisdiction:

England and Wales

Citing:

Appeal from – Secretary of State for the Home Department v MB QBD 12-Apr-2006
The claimant complained at the control order by which restrictions were imposed on him as a suspected terrorist.
Held: The new provisions were declared incompatible with the applicant’s human rights. The procedures purported to allow judicial . .

Cited by:

Cited – Secretary of State for the Home Department v AL Admn 17-Aug-2007
The claimant sought to challenge a control order made against him under the 2005 Act. He had not cross examined the prosecution witnesses saying that the procedure was unfair in that he had not been allowed to see all the evidence against him. He . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – Secretary of State for the Home Department v AH Admn 9-May-2008
The claimant, an Iraqi national, had been about to be deported when he was re-arrested for Terrorism offences for which he was acquitted. He was then made subject to a non-derogating control order. He now challenged the renewal of that order, even . .
Cited – Ali v Birmingham City Council CA 7-Nov-2008
The Council said that it had discharged its duty to house the claimants after they had refused an offer of accommodation, and that decision had been reviewed. The claimant denied receiving a notice under the procedure. The court was asked whether . .
Cited – AR v Secretary of State for the Home Department Admn 15-Jul-2009
The claimant appealed against the refusal of the Home Secretary to vary the control order made against him under the 2005 Act.
Held: The organisation of which the applicant was a member might soon enter into a settlement with the Libyan . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 07 July 2022; Ref: scu.244108

Stoll v Switzerland: ECHR 25 Apr 2006

(In french)

Citations:

69698/01, [2006] ECHR 476

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Cited by:

See Also – Stoll v Switzerland ECHR 7-Feb-2007
Grand Chamber – Press release . .
See Also – Stoll v Switzerland ECHR 10-Dec-2007
Grand Chamber – The applicant alleged that his conviction for publishing ‘secret official deliberations’ had been contrary to Article 10 of the Convention.
Held: The court acknowledged a legitimate interest on the part of the state in . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 July 2022; Ref: scu.243762

Stankiewicz v Poland: ECHR 6 Apr 2006

The applicants complained under Article 6-1 of the Convention that a decision refusing to reimburse the costs they had borne in respect of a civil claim that the Public Prosecutor unsuccessfully lodged against them was in breach of these provisions. The claim against them had alleged unjust enrichment in the purchase of public land under a public tender.
Held: There had been a breach of article 6-1. The treatment of the privileged position of the prosecuting authority on costs resulted in putting the opposing party at an ‘undue disadvantage’ vis-a-vis the prosecuting authorities. The provisions of the Code of Civil Procedure, as interpreted by the Polish Supreme Court, had not been correctly applied by the Krakow Court of Appeal when refusing costs to the successful party.

Judges:

Rozakis P

Citations:

46917/99, [2006] ECHR 360, (2007) 44 EHRR 47

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

Cited – Eastenders Cash And Carry Plc And Others v The United Kingdom ECHR 27-Nov-2013
Statement of Facts – The company’s goods had been detained by Customs and Excise. A court later ordered their return, but found the detention to have been with reasonable cause. The Revenue had successfully argued that costs could not be awarded . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 July 2022; Ref: scu.243651

Martinie v France: ECHR 12 Apr 2006

The Grand Chamber said: ‘The Court reiterates that the public character of proceedings before the judicial bodies referred to in art 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of art 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society.
Art 6(1) does not, however, prohibit courts from deciding, in the light of the special features of the case submitted to them, to derogate from this principle. Holding proceedings, whether wholly or partly, in camera, must be strictly required by the circumstances of the case.’

Citations:

58675/00, [2006] ECHR 392

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
See Also – Martinie v France ECHR 15-Sep-2010
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 July 2022; Ref: scu.243683