Category: Human Rights

Wilkinson v Kitzinger and Another: FD 12 Apr 2006

The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so far as it failed to recognise same sex marriages. She now sought a protective costs order.
Held: The present proceedings sought to establish a matter of public law. There was little chance of section 11(3) of the 1973 Act being read down, but the case was not unarguable. Applying the Corner House case principles, there was a matter or proper and considerable public interest. The petitioner did however have a private interest in the issues. Although a protective costs order was not made, the court made an order limiting the amount of costs which the Lord Chancellor’s representatives might claim.

Judges:

Sir Mark Potter P

Citations:

[2006] EWHC 835 (Fam)

Links:

Bailii

Statutes:

Family Law Act 1986 55, Matrimonial Causes Act 1973 11(c), Civil Partnership Act 2004, European Convention on Human Rights 88, Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – S L v Austria ECHR 9-Jan-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 14+8 ; Not necessary to examine Art. 8 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Cited – Salgueiro da Silva Mouta v Portugal ECHR 1-Dec-1998
A homosexual claimed that an award of custody of his daughter to her mother was an unjustified interference with his right to respect for family life, and also with his right to respect for his private life since he was required in respect of his . .
Cited – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
Cited – Regina v Lord Chancellor’s Department ex parte Child Poverty Action Group Admn 6-Feb-1998
The claimant sought an order with regard to its costs in an anticipated application to the court. The application was refused. Requests in a public interest action for an advance order for costs could only be awarded in very exceptional . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
Cited – Johnston and Others v Ireland ECHR 18-Dec-1986
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Pecuniary damage – claim rejected; Non-pecuniary damage . .
Cited – B And L v The United Kingdom ECHR 13-Sep-2005
The claimants said that UK law was inconsistent in its treatment of marriage between in-laws, since it provided that it was available only by means of a private Act of parliament.
Held: The provision was irrational and infringed the human . .
Cited – Frette v France ECHR 26-Feb-2002
A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article . .

Cited by:

See Also – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Lists of cited by and citing cases may be incomplete.

Family, Human Rights, Costs

Updated: 05 July 2022; Ref: scu.240373

Sanders v France: ECHR 1996

A male Turkish national and a female French national, living together in Istanbul, complained of delays in obtaining a certificate of capacity to marry under French law. The issue as to the obtaining of a certificate related to (alleged) concerns about the prospective wife’s mental capacity to marry, under section 175 of the French Civil Code.
Held: ‘The Commission notes that, in the present case, the issue concerns substantive rules, the purpose of which is, inter alia, to preclude marriages of convenience between French citizens and aliens. It does not find this limitation, in itself, to be contrary to Article 12 of the Convention.’

Citations:

31401/96, (1996) 87 B-DR 160, [1996] ECHR 99

Links:

Bailii

Statutes:

European Convention on Human Rights 12

Jurisdiction:

Human Rights

Cited by:

Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 05 July 2022; Ref: scu.240352

Capital Bank Ad v Bulgaria: ECHR 24 Nov 2005

The courts of Bulgaria had decided that, on a winding-up petition, the question of the company’s insolvency was determined by a decision of the Central Bank of Bulgaria to revoke the company’s banking licence because it was insolvent. It had been held by the Bulgarian Supreme Court that the Central Bank’s decision to that effect was not one which could be reviewed by the courts.
Held: That decision was a breach of article 6(1) because it amounted to a surrender of jurisdiction by the courts which was not justified.

Citations:

49429/99, [2005] ECHR 752, (2007) 44 EHRR 48

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6(1)

Cited by:

Cited – Burwell v Director of Public Prosecutions Admn 1-May-2009
The defendant appealed against the decision of the Magistrates to accept a prosecutor’s certificate as to compliance with time limits for commencing the prosecution. He argued that the police had all the evidence in their possession at an earlier . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Company, Insolvency

Updated: 05 July 2022; Ref: scu.239551

Christian Democratic People’s Party v Moldova: ECHR 14 Feb 2006

Citations:

28793/02, [2006] ECHR 132

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 05 July 2022; Ref: scu.239521

Turek v Slovakia: ECHR 14 Feb 2006

Citations:

57986/00, [2006] ECHR 138, (2006) 44 EHRR 861

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Cited by:

Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 05 July 2022; Ref: scu.239527

Mursel Eren v Turkey: ECHR 7 Feb 2006

The annulment of a student’s examination results, which resulted in his being denied access to university, was held to violate A2P1.

Citations:

60856/00, [2006] ECHR 119, (2007) 44 EHRR 28

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights A2P1

Jurisdiction:

Human Rights

Cited by:

Cited – A v Essex County Council SC 14-Jul-2010
The claimant, a severely disabled child sought damages, saying that for well over a year, the local authority had made no provision for his education.
Held: His appeal against the striking out of his action failed. The correct approach had . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Education

Updated: 05 July 2022; Ref: scu.239508

Ali v Head Teacher and Governors of Lord Grey School: HL 22 Mar 2006

The claimant had been accused with others of arson to school property. He was suspended for the maximum forty five day period. The school then invited the family to discuss arrangements to return to the school, but the family did not attend. After the expiry of the forty five days, the criminal proceedings were discontinued. The local authority began to make arrangements for alternative tuition. Only six months later the family asked for the son to be allowed to return, but the school then said that his place had been filled. He sought damages for infringement of his right to education.
Held: The school’s appeal succeeded (Baroness Hale of Richmond dissenting in part). However had the court been asked for a declaration of incomptibility rather than damages, the result might have differed. The right to education was not absolute, but regulation of the right must not impair its essence. The statutes left the school in a position in which it was not possible to do the right thing. After the fixed period suspension, its only choice was to re-instate or to make the suspension permanent. The exclusion had been on management not disciplinary grounds. The guidance did not assist, but even so the suspensions failed to meet the criteria required.
Lord Hoffmann said that the statutory code was well adapted to the use of exclusion as a punishment for a serious disciplinary offence, imposed in the interests of the education and welfare of the pupil and others in the school. It was far less suitable for dealing with a case like the case under appeal ‘in which the pupil was excluded on precautionary rather than penal grounds.’
Baroness Hale discussed the dichotomy between disciplinary and precautionary grounds for suspension of a student: ‘Section 64 is concerned only with exclusion ‘on disciplinary grounds’. The requirements all assume that it is imposed as a determinate sanction for a serious breach of discipline, rather than as an indeterminate precaution pending the resolution of what may or may not turn out to have been a serious breach of discipline.’
Lord Bingham set out the legal principles applicable in an A2P1 claim: ‘The Strasbourg jurisprudence . . makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil (as in Eren v Turkey (Application No 60856/00) (unreported) 7 February 2006). The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils? In this case, attention must be focused on the school, as the only public authority the respondent sued, and (for reasons already given) on the period from 7 June 2001 to 20 January 2002.’

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond

Citations:

Times 27-Mar-2006, [2006] UKHL 14, 20 BHRC 295, [2006] 2 All ER 457, [2006] ELR 223, [2006] 2 WLR 690, [2006] 2 AC 363

Links:

Bailii

Statutes:

European Convention on Hman Rights P1 A2, Education Act 1996 7 19(1), School Standards and Framework Act 1998 64 65 66 67, Human Rights Act 1998 6(1)

Jurisdiction:

England and Wales

Citing:

At First Instance – Ali v Head and Governors of Lord Grey School QBD 27-Jun-2003
The claimant had been expelled from school unlawfully, and now sought damages for the breach of his right to an education.
Held: The claimant had received and had refused appropriate offers of alternate schools. The duty was imposed generally . .
Appeal From – Ali v The Head Teacher and Governors of Lord Grey School CA 29-Mar-2004
The student had been unlawfully excluded from school. The school had not complied with the procedural requirements imposed by the Act.
Held: Though the 1996 Act placed the responsibilty for exclusion upon the local authority, the head and . .
Cited – Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – Timishev v Russia ECHR 13-Dec-2005
The applicant complained of an alleged infringement of his Article 2 rights. His children had been excluded from school because he was not registered as resident in the area. His appeal to the domestic courts was dismissed, although the Government . .
Cited – Regina (S) v Brent London Borough Council and Others Regina (T) v Brent and Others Regina (P) v Oxfordshire County Council’s Exclusion Appeals Panel and Another CA 17-May-2002
Three pupils appealed their exclusion from school for violent or threatening behaviour.
Held: The statute imposed clear obligations on the appeal panel to act independently, and to consider both the individual circumstances of the child and . .
Cited – Campbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
Cited – Chapman v United Kingdom; similar ECHR 18-Jan-2001
The question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement . .
Cited – Simpson v United Kingdom ECHR 1989
The right to be provided with an education does not guarantee access to any particular institution provided. . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Holub and another v Secretary of State for Home Department CA 20-Dec-2000
The claimants appealed against a refusal of their request for judicial review of the Secretary of State’s decision not to grant them exceptional leave to remain in the United Kingdom. If returned to Poland the daughter of the family would face . .
Cited – Yasanik v Turkey ECHR 1993
(Commission) The applicant had been expelled from a military academy, and complained of the infringement of his article 2 rights.
Held: There was no denial of the right to education because the Turkish education system also included civilian . .
Cited – In re L (a minor by his father and litigation friend); Regina v Governors of J School, ex parte L HL 27-Feb-2003
A pupil had been excluded from school, then ordered to be re-instated by the independent appeal panel. The teachers’ union objected to his return to the school. The head-teacher arranged for him to be taught and supervised at school by a non-union . .

Cited by:

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 – JR17 for Judicial Review (Northern Ireland) SC 23-Jun-2010
The appellant was excluded from school. A female pupil related her fear of him to a teacher, but would not make a formal complaint, and the appellant was not to be told of the report or the investigation of it. There was said to have been confusion . .
Cited – A v Essex County Council SC 14-Jul-2010
The claimant, a severely disabled child sought damages, saying that for well over a year, the local authority had made no provision for his education.
Held: His appeal against the striking out of his action failed. The correct approach had . .
At House of Lords – Ali v United Kingdom ECHR 11-Jan-2011
The applicant had been excluded from school after a fire for which he was suspected pending completion of the police enquiry, which extended beyond the maximum allowed. Though the investigation was completed with no action against him, the scholl . .
Lists of cited by and citing cases may be incomplete.

Education, Human Rights

Updated: 05 July 2022; Ref: scu.239350

Rundell v Rundell: CA 14 Dec 2005

The former husband appealed an order for his committal to prison on a judgment summons in default of clearing arrears of maintenance payments. He said that the proceedings were criminal in nature and offended his rights to a fair trial under the Convention, in that evidence had been taken at less than criminal standards.
Held: The article 6 rights ‘are, of course, important rights, but they are not to be elevated so as to subvert the enforcement process upon which the judgment creditor is entitled to rely. ‘ The appeal failed: ‘The overwhelming reality is that an obligation was established by a consent order which remains on foot. There has been no subsequent application for its downward variation. The amount of the arrears that have accrued is not in issue.’

Judges:

Thorpe, Richards LJJ

Citations:

[2005] EWCA Civ 1764

Links:

Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
Cited – Ellis v Ellis CA 24-Jun-2005
The defendant appealed a suspended committal order in respect of his failure to pay maintenance. The husband had unilaterally reduced payments at the same time as withdrawing his application to vary the order.
Held: The defendant simply piled . .
Lists of cited by and citing cases may be incomplete.

Family, Contempt of Court, Human Rights

Updated: 05 July 2022; Ref: scu.239232

Malik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health: Admn 17 Mar 2006

The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: ‘there were serious flaws at the hearing of 16 March which in my judgment rendered it unfair and so unlawful. The presenting officer was not content to rely on the matters of which notice had been given but proceeded to refer to a number of other matters against the claimant none of which had been put to him. This was a breach of regulation 13(11). ‘ Inclusion in the list is a possession within Article 1PI. If the suspension had been properly and lawfully imposed, the interference in the right of peaceful enjoyment would have been proportionate and so justified. But the suspension was unlawful.

Judges:

Collins J

Citations:

Times 26-May-2006, [2006] EWHC 487 (Admin)

Links:

Bailii

Citing:

Cited – Regina (SS) v Knowsley NHS Primary Care Trust; Regina (Ghosh) v Northumberland NHS Care Trust Admn 19-Feb-2006
The doctors complained of their removal from the respondents’ ‘performers lists’.
Held: A primary care trust when holding such an oral hearing had to allow doctor to have legal advocay. Though no such right was granted by the regulations nor . .
Cited – Fonseca Carreira v Portugal ECHR 14-Jun-2001
‘The Court notes that the Convention institutions have consistently taken the view that Article 6.1 does not apply to proceedings for interim relief. The purpose of such proceedings is to deal with a temporary state of affairs pending the outcome of . .
Cited – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
Cited – Choudhary v General Medical Council PC 2001
The Board heard an appeal against a final order of suspension for 12 months. It considered Madan’s case.
Held: The Board wished to reserve their opinion on the reasoning in the judgments that it was the application of Article 6 which required . .
Cited – Markass Car Hire Ltd v Cyprus ECHR 2-Jul-2002
The complaint was as to the length of the proceedings to set aside an ex parte interim order. The order was obtained on 31 March 1998 and under it the applicant was required to hand over to the plaintiff cars worth over andpound;Cyprus 500,000. It . .
Cited – Madan v General Medical Council Admn 2001
There had been an interim suspension by the Interim Orders Committee of the GMC. Counsel for the GMC conceded the application of Article 6.
Held: Newman J: ‘For myself, I regard it as highly likely that the interim suspension hearings engage . .
Cited – Van Marle And Others v The Netherlands ECHR 26-Jun-1986
The applicants were accountants who had practised as such for some years when a new statute came into force which required then to register. Their applications were refused.
Held: Article 1PI was engaged. In paragraphs 41 and 42 the Court said . .
Cited – Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
Cited – Karni v Sweden ECHR 8-Mar-1988
(Commission) The applicant was a doctor who, on his return to Sweden, was entered on the list of those affiliated to the Social Security System which meant he could carry on a private medical practice and receive payment for treatment provided to . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs Admn 22-Jul-2003
The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy . .
Cited – Crompton T/A David Crompton Haulage v Department of Transport North Western Area CA 31-Jan-2003
The claimant challenged the revocation of his operator’s licence. At an earlier tribunal hearing concerning his licence, he had behaved in a loutish manner, and the revocation was based on that behaviour.
Held: The operator’s licence is a . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 05 July 2022; Ref: scu.239188

Esfandiari and others v Secretary of State for Work and Pensions: CA 23 Mar 2006

The claimant argued that the funeral benefits regime unlawfully discriminated against migrants because the 1987 Regulations did not permit payments to be made for a burial abroad, except as provided for by EU law.
Held: The argument was rejected. Considerations of cost and administrative convenience can be good reasons capable of justifying discrimination. Carnwath LJ said: ‘Decisions on the allocation of public funds for such purposes are questions of social policy, not law. If justification is required, the considerations set out in the evidence of the Secretary of State, in summary that an amended scheme would be more complex and more costly to administer, are not irrational, and are well within the ‘margin of appreciation’ allowed by Strasbourg jurisprudence.’

Judges:

Carnwath LJ

Citations:

[2006] EWCA Civ 282

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

See Also – Esfandiari and others v Secretary of State for Works and Pensions CA 6-Oct-2005
. .

Cited by:

Cited – Stewart v Secretary of State for Work and Pensions CA 29-Jul-2011
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained . .
Lists of cited by and citing cases may be incomplete.

Benefits, Human Rights

Updated: 05 July 2022; Ref: scu.239217

Van Colle v Hertfordshire Police: QBD 10 Mar 2006

The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of arson to cars and premises. The police officer had been disciplined for failing to respond properly.
Held: ‘There is no conflict . . between the common law and human rights jurisprudence in this area.’ The family had established a sufficiently close connection between the deceased and the defendant. ‘Members of the public who are complainants or prosecution witnesses in a criminal investigation and who are required to give material evidence at trial are in a special situation, as the existence of the Defendant’s witness protection policy recognises. Quite apart from a judge’s general powers to issue a warrant for the arrest of a witness who fails to attend court pursuant to a witness order, to remand him or her in custody and to punish such a witness for contempt, Parliament has recognised the need for witnesses to be protected from defendants in criminal proceedings.’

Judges:

Cox J

Citations:

[2006] EWHC 360 (QB), Times 28-Mar-2006, [2006] 3 All ER 963, [2006] 1 FCR 755, [2006] Inquest LR 68, [2006] HRLR 25, [2006] Po LR 47

Links:

Bailii

Statutes:

Human Rights Act 1998 7(1), European Convention on Human Rights 2 8

Jurisdiction:

England and Wales

Citing:

Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
Cited – McCann and Others v The United Kingdom ECHR 6-Oct-1995
Wrong assumptions made by police officers in the killing of terrorists amounted to a human rights breach, despite the existence of danger to the public of an imminent attack. Article 2(1) is ‘one of the most fundamental provisions in the . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Keenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
Cited – Bloggs 61, Regina (on the Application of) v Secretary of State for the Home Department CA 18-Jun-2003
The applicant sought review of a decision to remove him from a witness protection scheme within the prison. He claimed that having been promised protection, he had a legitimate expectation of protection, having been told he would receive protection . .
Cited – Regina (A and others) (Widgery Soldiers) v Lord Saville of Newdigate and Others CA 19-Dec-2001
The court would apply common sense in deciding whether soldier witnesses should be obliged to attend in person at an enquiry in Londonderry, where they claimed their lives would be at risk. It was not appropriate to seek to define what would be . .
Cited – Regina v Governor of Pentonville Prison, Ex parte Fernandez: Fernandez v Government of Singapore HL 1971
Test for police protection need
The court considered the degree of risk to an individual which should give rise to a duty on the police to protect him under article 2.
Held: Lord Diplock said: ‘My Lords, bearing in mind the relative gravity of the consequences of the court’s . .
Cited – Brooks v Commissioner of Police for the Metropolis and others HL 21-Apr-2005
The claimant was with Stephen Lawrence when they were both attacked and Mr Lawrence killed. He claimed damages for the negligent way the police had dealt with his case, and particularly said that they had failed to assess him as a victim of crime, . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Regina v Secretary of State for the Home Department ex parte Anufrijeva HL 26-Jun-2003
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several . .
Cited – DF v Chief Constable of Norfolk Police Secretary of State for Home Department Admn 15-Aug-2002
A prisoner serving a life sentence challenged the decision of the Prison Service to refuse to admit him to a witness protection unit and contended that the Norfolk Police had failed in their duty to provide appropriate information to the Prison . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Glaser v The United Kingdom ECHR 19-Sep-2000
‘The essential object of Article 8 is to protect individuals against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective ‘respect’ for family life. These obligations may involve the . .
Cited – Swinney and Another v Chief Constable of Northumbria CA 22-Mar-1996
The plaintiff, a woman and her husband, had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer, expressing her concern that she did not want the source of the information to . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – E and Others v The United Kingdom ECHR 26-Nov-2002
The four applicants had been abused by their stepfather, and sought investigation of the local authority for failing to protect them. They had been compensated by the Criminal Injuries Compensation Authority in part, but now sought a remedy from the . .
mentioned – Akkoc v Turkey ECHR 10-Oct-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (estoppel); No violation of Art. 10; Violation of Art. 2 due to failure to protect life; Violation of Art. 2 due to inadequacy of . .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
Cited – Semse Onen v Turkey ECHR 14-May-2002
Hudoc Judgment (Merits and just satisfaction) Preliminary objection joined to merits and rejected (non-exhaustion); No violation of Art. 2 in respect of killing of applicant . .

Cited by:

Cited – Van Colle and Another v Chief Constable of the Hertfordshire Police CA 24-Apr-2007
The deceased had acted as a witness in an intended prosecution. He had sought protection after being threatened. No effective protection was provided, and he was murdered. The chief constable appealed a finding of liability.
Held: The . .
Appeal from – Van Colle and Another v Chief Constable of the Hertfordshire Police CA 24-Apr-2007
The deceased had acted as a witness in an intended prosecution. He had sought protection after being threatened. No effective protection was provided, and he was murdered. The chief constable appealed a finding of liability.
Held: The . .
At First Instance – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
See Also – Van Colle (T/A GVC Optometrists) v Revenue and Customs VDT 31-Aug-2007
VDT VAT – three-year ‘cap’ – late claims due partly to tragic family circumstances – whether any basis for time limit to be disapplied – no
VAT – interest – whether due on repayments – extent of trader’s . .
See Also – Van Colle and Van Colle v The United Kingdom ECHR 9-Feb-2010
Statement of Facts . .
See Also – Van Colle v The United Kingdom ECHR 13-Nov-2012
. .
Lists of cited by and citing cases may be incomplete.

Police, Negligence, Human Rights

Updated: 05 July 2022; Ref: scu.239196

Carmona v Regina: CACD 14 Mar 2006

The defendant appealed against a recommendation for deportation made on his being sentenced. He complained that the order breached his right to family life.
Held: It was not for a sentencing judge to take such matters into account. The judge merely made a recommendation. The decision which would bring such rights into play would be made by the Home Secretary, and that is where any challenge should be made.

Judges:

keene LJ, Stanley Burnton J, Simon J

Citations:

[2006] EWCA Crim 508, Times 13-Apr-2006, [2006] 1 WLR 2264

Links:

Bailii

Statutes:

Directive 2004/38/EC

Jurisdiction:

England and Wales

Cited by:

Cited – Shields, Regina (on the Application of) v Secretary of State for Justice Admn 17-Dec-2008
The claimant had been convicted in Bulgaria of attempted murder. He had denied it, and somebody later confessed to the crime, but that confession had not been admitted. Having been transferred to England to complete his sentence, he now asked for a . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 05 July 2022; Ref: scu.239113

Kearney v Her Majesty’s Advocate: PC 6 Feb 2006

(High Court of Justiciary Scotland) The Board considered the assessment of the independence of a judge.
Held: Lord Carswell said that independence has a separate significance, apart from ensuring impartiality between the parties to the cause, for it is also required to protect the judge from dependence upon, and against interference by, the Executive, whether the latter is a party to the litigation or not.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC D1, [2006] HRLR 15, 2006 GWD 15-284, 20 BHRC 157, 2006 SLT 499, 2006 SCCR 130

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Misick and Others v The Queen PC 25-Jun-2015
Turks and Caicos – The appellants, a former Chief Minister and others, faced a trial on charges of corruption. They objected that the Justice set to hear the case had insufficient security of tenure to guarantee independence, and that the same judge . .
Lists of cited by and citing cases may be incomplete.

Crime, Natural Justice, Human Rights

Updated: 05 July 2022; Ref: scu.238742

Januzi v Secretary of State for the Home Department and others: HL 15 Feb 2006

The claimants sought to challenge the refusals of asylum in each case based upon the possibility of internal relocation. They said that such internal relocation would place them in areas where they could not be expected to live without undue harshness.
Held: Where relocation was possible in the country from which the asylum applicant fled, the living conditions in the area to which they were expected to relocate were not generally relevant, save to the extent that the claimant’s human rights would be likely to be infringed in that area.
Lord Bingham: ‘The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so . . There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department, [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. . All must depend on a fair assessment of the relevant facts.’

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Carswell, Lord Mance

Citations:

[2006] 2 WLR 397, [2006] 2 AC 426, [2006] UKHL 5, Times 15-Feb-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Svazas v The Secretary of State for the Home Department CA 31-Jan-2002
The two applicants appealed refusal of their applications for asylum. They had been former members of the communist party in Lithuania. Both had experienced persecution. The IAT had found that the constitution guaranteed them protection. Though they . .

Cited by:

Cited – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Cited – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Cited – HJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same SC 7-Jul-2010
The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by . .
Cited – ST Eritrea, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Mar-2012
The Tribunal had confirmed the appellant’s refugee status, but the respondent had ordered nevertheless that she be returned. The judge’s order setting aside that decision had been overturned in the Court of Appeal.
Held: The claimant’s appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 05 July 2022; Ref: scu.238531

Mikhaylova and Others v Russia: ECHR 17 Nov 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Violation of P1-1; Not necessary to examine Art. 13; Pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – domestic and convention proceedings.

Citations:

22534/02

Jurisdiction:

Human Rights

Human Rights

Updated: 05 July 2022; Ref: scu.235170