Category: Human Rights

In re C (a Child) (Immunisation: Parental Rights); In re F (a Child) (Immunisation: Parental rights): FD 13 Jun 2003

In each case fathers not married to the mother of the child, but with parental responsibility sought to have the child immunised. The mothers opposed the treatment saying they believed it unsafe.
Held: The children should be immunised. Article 8.2 permitted interference with family life for health reasons. Mothers and fathers had equal rights before the court, and the court should be reluctant to intervene. The medical evidence was clear and persuasive. Acknowledging the mothers fears, age appropriate vaccination was in the child’s best interests. This was not a general approval of immunisation for children.

Judges:

Sumner J

Citations:

Times 26-Jun-2003, Gazette 14-Aug-2003

Statutes:

Children Act 1989 8, European Convention on Human Rights 8.2

Jurisdiction:

England and Wales

Citing:

Appealed to – In re C (a Child) (Immunisation: Parental rights); In re F (a Child) (Imminisation: Parental rights) CA 30-Jul-2003
In two actions heard together, single mothers resisted attempts to have their children immunised at the behest of the fathers, who in each case had parental responsibility.
Held: A one-parent carer did not have the freedom to make such a . .

Cited by:

Appeal from – In re C (a Child) (Immunisation: Parental rights); In re F (a Child) (Imminisation: Parental rights) CA 30-Jul-2003
In two actions heard together, single mothers resisted attempts to have their children immunised at the behest of the fathers, who in each case had parental responsibility.
Held: A one-parent carer did not have the freedom to make such a . .
Lists of cited by and citing cases may be incomplete.

Children, Health, Human Rights

Updated: 30 June 2022; Ref: scu.184024

P v BW (Children Cases: Hearings in Public): FD 2003

The applicant sought a joint residence order, and for a declaration that the rules preventing such hearings being in public breached the requirement for a public hearing.
Held: Both FPR 1991 rule 4.16(7) and section 97 are compatible with the fair trial provisions of Article 61) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Judges:

Bennett J

Citations:

[2003] 3 FCR 523, [2003] EWHC 1541 (Fam), [2004] 1 FLR 171

Statutes:

European Convention on Human Rights 6.1, Children Act 1989 97, Family Proceedings Rules 1991 4.16(7)

Jurisdiction:

England and Wales

Citing:

Cited – P-B (a Minor) (child cases: hearings in open court) CA 20-Jun-1996
The applicant sought to have his application for a residence order heard in open court: ‘Article 6 (1) provides for the public hearing and the public pronouncement of judgment of cases, but with the proviso of exclusion of the press and the public . .
Cited – Clibbery v Allan and Another FD 2-Jul-2001
There is nothing inherently different in Family Division proceedings to justify an implied ban on all disclosures of matters proceeding in chambers. Here no children or other sensitive matters were involved. The simple filing of an affidavit . .
Cited – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .

Cited by:

Cited – The Father v The Mother, O by Cafcass Legal; In re O (a Child) (Contact: Withdrawal of application) FD 12-Dec-2003
The father sought to withdraw his application for contact, but the court took the opportunity to explain some points relating to contact disputes.
Held: Such disputes engender very deep feelings. Courts must ensure contact with both parents . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Appeal from – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
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 . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 30 June 2022; Ref: scu.188859

Williams v The Secretary of State for the Home Office: CA 17 Apr 2002

The applicant was a post-tariff discretionary life prisoner, applying for a change in his security classification. He sought disclosure of his security report which was denied by the respondent. He alleged a breach of his human rights.
Held: The punitive part of the sentence was complete. The earlier panel had advised his reclassification from security risk A, but that had not been followed. He was required to demonstrate positive reasons for re-classification, but was not told what circumstances justified maintenance of his classification. The committee which considered his possible release served a different purpose to one which considered his classification. Full disclosure was ordered.
The Parole Board is concerned with assessing risk in the context of someone who is lawfully released and subject to continuing monitoring and control. Furthermore, there are incentives to behave, since in the event of non-compliance the licence is revocable.

Judges:

Lord Phillips Master of the Rolls, Judge LJ

Citations:

Times 01-May-2002, [2002] EWCA Civ 498, [2002] 1 WLR 2264, [2002] 4 All ER 872

Links:

Bailii

Statutes:

European Convention on Human Rights Art 5

Jurisdiction:

England and Wales

Citing:

Approved – Regina (Burgess) v Home Secretary 2000
The applicant challenged the refusal to move him to open conditions within the prison system.
Held: ‘Article 5(4) does not . . preclude the Secretary of State from taking a different view than the Discretionary Life Panel of the Parole Board . .

Cited by:

Cited – Lord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
Cited – Regina (on the Application of Cawser) v Secretary of State for the Home Department CA 5-Nov-2003
The claimant was serving a prison sentence for serious sexual offences. He would not be released until he had completed a sex offenders programme, but one was not made available, delaying his release.
Held: ‘The Secretary of State is not under . .
Cited – Roberts, Regina (on the Application of) v The Parole Board Admn 7-Nov-2008
The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of . .
Cited – Roberts, Regina (on the Application of) v Secretary of State for Home Department Admn 12-Mar-2004
The claimant complained at a decision not to reduce his Category A status to that of a category B prisoner. He continued to maintain his innocence of the murders for which he had been convicted. He was therefore ineligible to take part in . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 30 June 2022; Ref: scu.170143

Veeber v Estonia (No 2): ECHR 21 Jan 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 7-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses award – Convention proceedings
The complainant alleged that, having been convicted for acts which only later became a crime, his convention rights had been infringed. He had been accused of abusing his position within a company to ensure that substantial sums of tax were not paid. The court had convicted him on the basis that the acts were continuing, and had continued after the law changed.
Held: The article 7 rights were prominent in the rights granted. Under the earlier law, he could not have been convicted of a criminal offence unless he had first been dealt with administratively. He had therefore been dealt with more severely. His rights had been infringed. A ‘continuing offence’ is a type of crime committed over a period of time. Damages were awarded.

Citations:

45771/99, [2003] ECHR 37

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 7

Jurisdiction:

Human Rights

Human Rights, Crime

Updated: 30 June 2022; Ref: scu.178765

Kienast v Austria: ECHR 23 Jan 2003

Hudoc No violation of Art. 6-1 ; No violation of P1-1 ; No violation of Art. 13
The applicant complained that the unification of two parcels of land occupied by him, and registered in the Austrian land registry, and without his consent, infringed his property and human rights. The procedure did not require his consent. He complained that the unification would prevent him being able to sell the land as two plots.
Held: No infringement had occurred. He had not been deprived of any ownership of land, and there was no dispute resolved unfairly. He had not been deprived of any possessions.

Citations:

23379/94, [2003] ECHR 38

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1 13

Jurisdiction:

Human Rights

Human Rights, Registered Land

Updated: 30 June 2022; Ref: scu.178762

Mclaughlin and Others v London Borough of Lambeth and Another: QBD 2 Nov 2010

Senior members of a school claimed defamation and infringement of their human rights by the defendants. The defendants said that the claims were an abuse, being formulated to circumvent the rule against unincorporated bodies suing in defamation, and requested that the case be struck out.

Judges:

Tugendhat J

Citations:

[2010] EWHC 2726 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Defamation, Human Rights

Updated: 30 June 2022; Ref: scu.425664

Regina (Chester) v Secretary of State for Justice and Another: QBD 28 Oct 2009

The claimant a prisoner detained after the expiry of his lfe sentence tariff as dangerous, sought a declaration that the refusal to allow him to register as a voter in prison infringed his human rights.
Held: Such a claim had already succeeded in Scotland, and before the ECHR, and the government was considering how it should meet the finding. The consultation suggested that a prisoner of the category of the claimant would remain excluded. In such circumstances, it would be wrong to consider making a futher declaration of incompatibility pending the outcome of the legislation. Legislation would come before any anticipate European election, and a declaration would be parasitic on the declaration in Smith. It would be offensive to constitutional principles to issue a declaration as a means of placing pressure on the way Parliament conducted its business.

Judges:

Burton J

Citations:

Times 03-Nov-2009

Statutes:

European Convention on Human Rights, Representation of the People Act 1983, European Parliamentary Elections Act 2002

Jurisdiction:

England and Wales

Citing:

Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Cited – 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 – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 25-Jun-2008
The claimant sought to challenge the decision by respondent not to offer a referendum before acceding to the Treaty of Lisbon. The claimant’s case was that the Government’s promise to hold a referendum in relation to the European Union . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Elections, Constitutional

Updated: 30 June 2022; Ref: scu.377519

Selianitis v Greece: ECHR 10 Feb 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Violation of Art. 13; Non-pecuniary damage – financial award; Costs and expenses (domestic proceedings) – claim rejected; Costs and expenses partial award – Convention proceedings.

Citations:

37428/02, [2005] ECHR 91

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 30 June 2022; Ref: scu.227621

Fornah v Secretary of State for the Home Department: CA 9 Jun 2005

The applicant sought refugee status, saying that if returned home to Sierra Leone, she would as a young woman be liable to be circumcised against her will.
Held: Female sexual mutilation ‘is an evil practice internationally condemned and in clear violation of Article 3 of the European Convention of Human Rights (‘ECHR’). As a practice, it is not peculiar to Sierra Leone, but it so widespread there and so bound up in the culture and traditions of that country at all levels that it causes difficulties in claims for asylum by young Sierra Leonean girls who fear it. As a clear violation of their Article 3 right not to be subjected to inhuman or degrading treatment, it would undoubtedly amount to persecution in the general sense of that word. But, for young girls in Sierra Leone, seeking asylum in another country because they fear it, is it persecution for a Refugee Convention reason, namely because they belong to a ‘particular social group’? To establish her claim the applicant had to establish that she was a member of a particular social group. She had said that this group constituted young uncircumcised females This was not capable of being a ‘particular social group’ in law as required, and the claim failed. The respondent had in any event since granted her leave to enter on humanitarian grounds.

Judges:

Auld, Chadwick, Arden LJJ

Citations:

[2005] 1 WLR 3773, [2005] EWCA Civ 680, Times 16-Jun-2005

Links:

Bailii

Statutes:

European Convention on Human Rights 83

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Immigration Appeal Tribunal and Another ex parte Shah HL 25-Mar-1999
Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as . .
Cited – Hoxha and Another v Secretary of State for the Home Department HL 10-Mar-2005
The claimants sought to maintain their claims for asylum. They had fled persecution, but before their claims for asylum were determined conditions in their home country changed so that they could no longer be said to have a well founded fear of . .
Cited – Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another 1997
(High Court of Australia) A Chinese asylum seeker was not entitled to refugee status on the basis of well-founded fear of persecution by forcible sterilisation by reason of his membership of a ‘particular social group’, namely all fathers of . .
Cited – Chun Lan Liu v Secretary of State for the Home Department CA 17-Mar-2005
The applicant for refugee status said she had a well founded fear of persecution if returned to China, saying that as a pregnant mother of a third child, the foetus had been removed at eight months against her will. She had refused sterilisation, . .
Cited – Regina on the Application of Ruslanas Bagdanavicius, Renata Bagdanaviciene v Secretary of State for the Home Department CA 11-Nov-2003
Failed Roma asylum applicants challenged an order for their return to Lithuania. There had been family objections to the mixed marriage leaving them at risk of violence from the local mafia, and an order for their return would infringe their article . .
Cited – Bagdanavicius, Bagdanaviciene v the Secretary of State for Home Department Admn 16-Apr-2003
The applicants sought asylum, saying they had been subjected to repeated ill-treatment by Lithuanian Mafiosi. The claims were rejected as clearly unfounded, denying any right to an appeal.
Held: The court could examine the basis upon which the . .
Cited – Secretary of State for the Home Department v Skenderaj CA 26-Apr-2002
The applicant sought asylum, claiming to be a target of an Albanian blood feud. He appealed a finding that his claim was not for a Convention reason, and did not amount to a claim of a well-founded fear of persecution for reason of his membership of . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 30 June 2022; Ref: scu.226155

Harb v King Fahd Bin Abdul Aziz: CA 26 May 2005

Citations:

[2005] EWCA Civ 633

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Harb v King Fahd Bin Abdul Aziz CA 26-May-2005
The wife sought an order for reasonable maintenance from His Majesty King Fahd Bin Abdul Aziz. He replied that he was immune from suit.
Held: The King as king was immune. The judge at first instance had been wrong to give the case fictitious . .
Lists of cited by and citing cases may be incomplete.

Family, Constitutional

Updated: 30 June 2022; Ref: scu.226056

G, Regina (on the Application of) v Secretary of State for the Home Department: CA 13 Apr 2005

Appeal dismissal of application for judicial review of a certificate of the Home Secretary under Section 93 the appellant’s claim to remain in this country on human rights grounds was clearly unfounded.

Citations:

[2005] EWCA Civ 546

Links:

Bailii

Statutes:

Nationality, Immigration & Asylum Act 2002 93

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 30 June 2022; Ref: scu.226050

Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004): CACD 27 May 2005

Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might be prescribed by a doctor, but this had been rejected.
Held: The appeals failed. There was no over-arching principle applicable in all cases of necessity. ‘However, there is a recognised defence of duress by threats, to which it is clear that the defence of necessity by circumstances bears a close affinity.’ and ‘The necessitous medical use on an individual basis which is at the root of the defences suggested by all the appellants and Mr Ditchfield is in conflict with the purpose and effect of the legislative scheme. First, no such use is permitted under the present legislation, even on doctor’s prescription, except in the context of the ongoing trials for medical research purposes. Secondly, the defences involve the proposition that it is lawful for unqualified individuals to prescribe cannabis to themselves as patients or to assume the role of unqualified doctors by obtaining it and prescribing and supplying it to other individual ‘patients’. This is contrary not only to the legislative scheme, but also to any recommendation for its change . . .’ The UK legislation on drug misuse was not incompatible with the defendants’ human rights.

Judges:

Mance LJ, Newman J, Fulford J

Citations:

[2005] EWCA Crim 1415, Times 22-Jun-2005, [2006] Crim LR 148, (2006) 89 BMLR 169, [2006] 1 All ER 988, [2005] 2 Cr App R 34, [2005] 1 WLR 3642

Links:

Bailii

Statutes:

Misuse of Drugs Act 1971 6(1), Misuse of Drugs (Designation) Order 2001 (SI No. 2001 No. 3997), Misuse of Drugs Regulations 2001

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Lockwood CACD 2002
The court heard a second application in person for permission to appeal a conviction for producing cannabis. The defence was necessity. He claimed to use cannabis medicinally to relieve pain. He complained about the judge’s directions on the defence . .
Cited – Regina v Hudson and Taylor CACD 17-Mar-1971
Two teenage girls committed perjury by failing to identify the defendant. When prosecuted they pleaded duress, on the basis that they had been warned by a group, including a man with a reputation for violence, that if they identified the defendant . .
Cited – Hasan, Regina v HL 17-Mar-2005
The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .
Cited – Perka v The Queen 1984
(Canada) The court analysed the defence of necessity. The concept of necessity is used as an excuse for conduct which would otherwise be criminal. The defence arose where, realistically, the individual had no choice, where the action was . .
Cited – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – Regina v Rodger, Rose CACD 9-Jul-1997
The two defendants escaped from Parkhurst Prison. On capture they said that as murderers, they had received notices that though they had behaved without criticism in prison, their tarriffs had been increased. They said they felt unable to face . .
Cited – Regina v Martin (Colin) CACD 29-Nov-1988
Defence of Necessity has a Place in Criminal Law
The defendant appealed against his conviction for driving whilst disqualified. He said he had felt obliged to drive his stepson to work because his stepson had overslept. His wife (who had suicidal tendencies) had been threatening suicide unless he . .
Cited – Wang, Regina v HL 10-Feb-2005
The appellant was waiting for a train when his bag was stolen. After a search, the thief tried to deter the appellant from calling the police by suggesting that the bag contained items the appellant should not be carrying. From the bag the appellant . .
Cited – Regina v Pommell CACD 16-May-1995
The defendant appealed against his conviction for possessing a loaded shotgun. He had wished to advance a defence to the effect that on the previous evening he had taken it ‘off a geezer who was going to do some damage with it’ in order to stop him. . .
Cited – Regina v Safi (Ali Ahmed); Regina v Ghayur; Regina v Shah; Regina v Showaib; Regina v Mohammidy; Regina v Shohab; Regina v Ahmadi; Regina v Safi (Mahammad Nasir); Regina v Kazin CACD 6-Jun-2003
The defendants appealed convictions after rejection of their defence of duress. They had hijacked an aeroplane in Afghanistan, and surrendered eventually at Stansted. They said they were acting under duress, believing they had no other way of . .
Cited – Regina v Shayler CACD 28-Sep-2001
Duress as Defence not closely Defined
The defendant had been a member of MI5. He had signed the Official Secrets Act, but then disclosed various matters, including material obtained by interceptions under the Interception of Communications Act. He claimed that his disclosures were made . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Regina v Abdul-Hussain; Regina v Aboud; Regina v Hasan CACD 17-Dec-1998
The law of the defence of duress arising out of threat or circumstances is in need of urgent parliamentary clarification. Appeals were allowed where the defendants hijacked an airplane in order to escape deportation to a hostile country. ‘The . .
Cited – Rex v Bourne 1939
An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain . .
Cited – Regina v Brown CACD 2003
The court head a renewed application in person for leave to appeal a conviction for producing cannabis. The defendant sought to rely on a defence of necessity, saying that cannabis was the only way available to him to control the pain of his . .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .

Cited by:

Cited – Regina v CS CACD 29-Feb-2012
The defendant appealed against the refusal of the judge to allow her defence of necessity in answer to a charge under section 1 of the 1984 Act. She said that it had been necessary to prevent the child being sexually abused.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 30 June 2022; Ref: scu.225330

Ulster Transport Authority v James Brown and Sons Ltd: CANI 1953

The repeal of a statutory exemption which had allowed the company to trade in competition with a government established board providing the same services, was ‘a device for diverting a definite part of the business of furniture removers and storage from the respondents and others to the appellant’ and was intended ‘to enable the appellants to capture the . . business’.
However, a provision in an Act that caused someone to lose property, without compensation, offended against the principle that no one’s goods may be taken without compensation

Judges:

Lord MacDermott CJ

Citations:

[1953] NI 79

Jurisdiction:

Northern Ireland

Cited by:

Cited – Regina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
Lists of cited by and citing cases may be incomplete.

Administrative, Human Rights

Updated: 30 June 2022; Ref: scu.225199

Sinclair v Her Majesty’s Advocate: PC 11 May 2005

(Devolution) The defendant complained that the prosecutor had failed to disclose all the witness statements taken, which hid inconsistencies in their versions of events.
Held: The appeal was allowed. It was fundamental to a fair trial that the parties have equality of arms, but in a criminal trial the rights were entirely in the defendant. The prosecution had a duty to disclose to the defence anything material including ‘any evidence which would tend to undermine the prosecution’s case or to assist the case for the defence’, subject to only material properly withheld under pubic interest immunity. The decision as to why statements might be withheld was not just for the prosecuting authorities, but also for the courts. Here the police had not informed the prosecutors, the defence or the court. The defendant had been denied an opportunity to cross examine a prosecution witness and the trial was unfair. In this case the conflict might not have been apparent until trial when the witness made statements inconsistent with the undisclosed statements. The 1998 Act provided that no member of the Scottish executive, including the prosecution authorities had any power to do an Act inconsistent wth the Convention. Accordingly the conviction must fail.
Lord Hope of Craighead summarised the effect of the authorities: ‘First, it is a fundamental aspect of the accused’s right to a fair trial that there should be an adversarial procedure in which there is equality of arms between the prosecution and the defence. The phrase ‘equality of arms’ brings to mind the rules of a mediaeval tournament – the idea that neither side may seek an unfair advantage by concealing weapons behind its back. But in this context the rules operate in one direction only. The prosecution has no Convention right which it can assert against the accused. Nor can it avoid the accused’s Convention right by insisting that the duty does not arise unless the accused invokes it first. Secondly, the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused. For this purpose any evidence which would tend to undermine the prosecution’s case or to assist the case for the defence is to be taken as material. Thirdly, the defence does not have an absolute right to the disclosure of all relevant evidence. There may be competing interests which it is in the public interest to protect. But decisions as to whether the withholding of relevant information is in the public interest, cannot be left exclusively to the Crown. There must be sufficient judicial safeguards in place to ensure that information is not withheld on the grounds of public interest unless this is strictly necessary.’

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell

Citations:

[2005] UKPC D2, 2005 SC (PC) 28, 2005 SLT 553, 2005 GWD 17-30, (2005) GWD 17-306, (2005) SCCR 446, 18 BHRC 527, [2005] HRLR 26, (2005) SLT 553

Links:

Bailii, PC

Statutes:

European Convention on Human Rights 6, Scotland Act 1998 57(2)

Jurisdiction:

Scotland

Citing:

Cited – Edwards and Lewis v United Kingdom ECHR 27-Oct-2004
E had been convicted of possession of heroin with intent to supply, and L of possession of counterfeit currency. In each case public interest certificates had been obtained to withold evidence from them. The judge had refused requests to exclude . .
Appeal from – Alvin Lee Sinclair v Her Majesty’s Advocate IHCS 1-Jul-2004
. .
Cited – Alistair Mcleod v Her Majesty’s Advocate (No 2) HCJ 19-Dec-1997
A full court applied the guidance in Edwards -v- United Kingdom when considering the duty of the Crown to make disclosure under Scots law: ‘Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to . .
Cited – Edwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
Cited – Jasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
Cited – R v Her Majesty’s Advocate and Another PC 1-Nov-2002
Section 57(2) provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. It is not open to the court if this subsection is breached to assess what the consequences of . .

Cited by:

Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
Cited – Secretary of State for Business, Innovation and Skills v Doffman and Another ChD 11-Oct-2010
The defendants applied for directors’ disqualification proceedings for the claim to be struck out or dismissed on the ground that the respondent had breached their rights to a fair trial under Article 6 of the European Convention on Human Rights . .
Cited – Macklin v Her Majesty’s Advocate (Scotland) SC 16-Dec-2015
Appeal against conviction (in 2003) after release of undisclosed material helpful to the defendant, including an eye witness decsription incompatible with the defendant.
Held: The court considered the developing issues as to compatibility . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 30 June 2022; Ref: scu.224877

Pearson v HM Coroner for Inner London North: Admn 9 Mar 2005

Relatives of the deceased said that the inquest carried out by the coroner was inadequate in Jamieson terms and had not satisfied the human rights issues. Maurice Kay LJ rejected the argument saying: ‘One does not reach the stage of resort to section 3 as a tool for interpretation unless and until it is established that the Human Rights Act applies. In Middleton and Sacker it was simply assumed, without demur, that it applied on a retrospective basis but with the point expressly left open. However, the point was very clearly decided in McKerr. It comes to this. When article 2 provides that ‘everyone’s right to life shall be protected by law’, it embraces both a positive obligation on the state to protect everyone’s life and a procedural requirement that there should be some form of effective official investigation when an individual has been killed. The present case is concerned with that procedural obligation. It is not the primary obligation imposed by article 2 but, in the words of Lord Nicholls, ‘a consequential obligation’. . The logic of McKerr is inexorable. If the positive obligation did not arise in domestic law prior to 2 October 2000, the consequential, secondary, ancillary or adjectival obligation cannot now give rise to a domestic obligation because it is consequential upon and secondary, ancillary and adjectival to the substantive obligation to protect life. I am driven to the conclusion that if the Appellate Committee in Middleton and Sacker had been required to address this question, it would have yielded to the same inexorable logic.’

Judges:

Maurice Kay LJ, Moses J

Citations:

[2005] EWHC 833 (Admin)

Links:

Bailii

Statutes:

Coroners Act 1988 13, Human Rights Act 1998 3

Cited by:

Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Lists of cited by and citing cases may be incomplete.

Coroners, Human Rights

Updated: 30 June 2022; Ref: scu.224845

Holland v Her Majesty’s Advocate (Devolution): PC 11 May 2005

The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant had not received a fair trial, and the appeal was allowed. The practice of dock identification was intended often as a protection of the accused, but the court had to look at the particular case. The Convention did not lay down that certain forms of evidence were inadmissible, but guaranteed the right to a fair trial, and it was against that test that the particular situation had to be judged. It was suggested that a dock identification was in breach of the right against self-incrimination because the defendant’s presence was obligatory, and by being present he was picked out for a witness. This was rejected by the Board. As to whether the trial was fair given the admission of such evidence: ‘when the advocate depute invites the witness to identify the accused in such a case, the Crown are deliberately introducing an adminicle of evidence which certain other systems generally exclude – precisely because of the heightened risk that the identification will be mistaken. The issue in any given case is whether, by doing so, the Crown have rendered the accused’s trial unfair in terms of article 6. ‘ The court recognised that in Scotland the prosecution have always been reluctant to disclose the criminal records of prosecution witnesses. In this case thee defence sought details of impending cases which would be much more difficult to provide. The Board’s task was to see whether as a whole the defendant had a fair trial.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell

Citations:

[2005] UKPC D1, (2005) SCCR 417, 2005 GWD 17-305, [2005] HRLR 25, 18 BHRC 500, 2005 SLT 563

Links:

Bailii, PC

Statutes:

European Convention on Human Rights 6, Criminal Procedure (Scotland) Act 1995 92(1)

Jurisdiction:

Scotland

Citing:

Appeal from – Holland v Her Majesty’s Advocate HCJ 21-Aug-2003
The defendant appealed his conviction after a dock identification.
Held: Scotland is unique among the jurisdictions in the United Kingdom in the significance that it attaches to dock identification. However, Scottish law was not alone in this. . .
Cited – Schenk v Switzerland ECHR 12-Jul-1988
The applicant had faced charges of hiring someone to kill his wife. He complained about the use of a recording of his telephone conversation with the man he hired recorded unlawfully by that man.
Held: The ECHR does not address issues about . .
Appeal from – Holland v Her Majesty’s Advocate IHCS 16-Jun-2004
. .
Cited – Bruce v H M Advocate HCJ 1936
Several witnesses who were asked to speak to certain facts in connection with the indictment spoke of ‘the accused James Bruce’. But they were not asked directly to identify in court the person to whom they were referring in their evidence.
Cited – Moorov v HM Advocate 1930
Corroboration evidence. . .
Cited – Stewart v H M Advocate HCJ 1980
The court re-affirmed the general rule of practice, that where the Crown sets out to prove that a particular person is the perpetrator of a crime the identification of the accused as its perpetrator must not be left to implication. . .
Cited – Farmer v HM Advocate 1991
The judge warned the jury of the dangers in assessing evidence: ‘The task of assessment is not an easy one: it is certainly one which has to be approached with great care and circumspection.’ . .
Cited – Beattie v Scott 1990
The court emphasised that, when a case comes to trial, ‘the interests of the accused person demand that the Crown should prove its case against him without any assistance whatever on his part’. . .
Cited – Edwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
Cited – Teixeira De Castro v Portugal ECHR 9-Jun-1998
Mr De Castro had been the target of an unwarranted, unauthorised, unsupervised police operation in which undercover officers incited him to supply drugs. He challenged a conviction for trafficking in heroin, based mainly on statements of two police . .
Cited – Tani v Finland ECHR 12-Oct-1994
The applicant had been convicted of murder. He complained to the European Commission of Human Rights that one of the prosecution witnesses had identified him when he was brought into a room where the witness was being questioned. For identification . .
Cited – Barnes v Chief Constable of Durham Admn 24-Apr-1997
The defendant was prosecuted for a driving offence. No identification parade had been held, and he was identified in the dock at court.
Held: Despite the firmly-rooted hostility to dock identifications in the Crown Court, they are permitted in . .
Cited – Alistair Mcleod v Her Majesty’s Advocate (No 2) HCJ 19-Dec-1997
A full court applied the guidance in Edwards -v- United Kingdom when considering the duty of the Crown to make disclosure under Scots law: ‘Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to . .
Cited – HM Advocate v Ashrif 1988
The accused had sought to recover the previous convictions of the complainant not from the prosecution, but from the Scottish Criminal Record Office.
Held: The appeal court came down firmly against permitting defence agents to recover the . .
Cited – Maan Petitioner 2001
The accused sought to defend a charge on indictment of assault on a special defence of self-defence and gave notice of an intention to attack the character of the complainer and the other two Crown witnesses. He sought the previous convictions of . .
Cited – Jasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
Cited – Leggate v HM Advocate 1988
The judge has a wide discretion to refuse any application by the advocate depute to cross-examine the appellant on his previous convictions. . .

Cited by:

Cited – Afzal, Regina (on the Application of) v Election Court and others CA 26-May-2005
The appellant sought judicial review of the decision of the election court as to his conduct at an election to certify him guilty of corrupt and illegal practices.
Held: The allegations against the appellants were so serious that though the . .
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – Allison v Her Majesty’s Advocate SC 10-Feb-2010
(Scotland) The defendant appealed against his conviction saying that the prosecution had introduced at trial a statement of a witness who had died before the trial, but they had failed to disclose that he had several convictions and outstanding . .
Applied – Robson v HM Advocate HCJ 6-Oct-2014
Application for leave to appeal to Supreme Court – refused – Holland had been followed . .
Cited – Macklin v Her Majesty’s Advocate (Scotland) SC 16-Dec-2015
Appeal against conviction (in 2003) after release of undisclosed material helpful to the defendant, including an eye witness decsription incompatible with the defendant.
Held: The court considered the developing issues as to compatibility . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 30 June 2022; Ref: scu.224874

Plinio Galfetti v Regina: CACD 31 Jul 2002

The defendant had been convicted of various offences of violence but then was then to be held in a secure mental hospital. A place was not available, and an order only became available some nine months later, at which time, he argued that the order was no longer appropriate. In the meantime the defendant had also applied to the Mental Health review Tribunal, who had mistakenly decided that there was no longer any need to hold him. The psychiatrists disagreed. He argued that he was now held unlawfully, and in breach of his human rights because of the substantial delay.
Held: Section 38 is to be used to hold a patient for assessment, not to hold him until a place could be found. The Court of Criminal Appeal had to act within its powers under the 1968 Act, but these included the power to make a hospital order. The nature of the earlier orders to delay sentence by the Crown Court were not capable of being appealed. There had been an excessive delay. However the delay affected both defendant and complainant, and the defendant could not simply say that the case could not proceed because of the infringement of his rights. The judge’s order was in accordance with the evidence before him and was correct.

Judges:

Lord Justice May

Citations:

[2002] EWCA Crim 1916

Links:

Bailii

Statutes:

Mental Health Act 1983 37, European Convention on Human Rights Art 6

Jurisdiction:

England and Wales

Citing:

Cited – Attorney General’s Reference (No 2 of 2001) CACD 12-Jul-2001
When assessing whether the defendant’s right to a trial within a reasonable time had been infringed, the court should look as from the date at which he was charged, or served with a summons, and not from the date of the first interview. Although a . .
Lists of cited by and citing cases may be incomplete.

Crime, Health, Human Rights

Updated: 30 June 2022; Ref: scu.174451

Regina v Lichniak; Regina v Pyrah: CACD 2 May 2001

The claimants sought by judicial review to challenge their separate sentences to life imprisonment for murder, saying that section 1 of the 1965 Act was incompatible wth their rights under articles 3 and 5 of the Convention. They argued that all life sentences fell into two parts, the penal element, meeting the requirements of retribution and deterrence, and a second and further part for the protection of the public. Where, as here, there was no such forseeable risk from the defendant, he or she should be released after the first object of the sentence was achieved.
Held: Though the arguments might be attractive politically, as the law stood, they failed.
Where the challenge to a sentence was on the basis that the provision under which it was imposed was a breach of the defendant’s human rights, an appeal would be taken by the Court of Appeal even though on the face of it the Act in question denied the possibility of such an appeal. A person convicted of murder was subject to an automatic death sentence, and the Court of Appeal would hear an application asserting that this was an infringement of the human rights of a defendant. The weight of jurisprudence was overwhelmingly in favour of such an automatic sentence not being such an infringement. In reality, the sentence was indeterminate, and only exceptionally would a true life sentence be served, and there was sufficient consideration of the individual’s circumstances to make it not arbitrary or inflexible.

Judges:

Kennedy LJ, Garland, Richards JJ

Citations:

Times 16-May-2001, Gazette 14-Jun-2001, [2001] EWHC Admin 294, [2001] 3 WLR 933, [2002] QB 296

Links:

Bailii

Statutes:

Murder (Abolition of Death Penalty) Act 1965 9(1), Criminal Appeal Act 1968 9(1), Human Rights Act 1998, European Convention on Human Rights 3 5

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
Cited – Vinter And Others v The United Kingdom ECHR 9-Jul-2013
(Grand Chamber) The three appellants had each been convicted of exceptionally serious murders, and been sentenced to mandatory life sentences, but with provision that they could not be eligible for early release, making them whole life terms. They . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Criminal Sentencing, Human Rights

Leading Case

Updated: 30 June 2022; Ref: scu.88539

Regina v Muhamad: CACD 19 Jul 2002

The appellant had been convicted of an offence under the section in that as a bankrupt, he ‘in the two years before the petition, materially contributed to, or increased the extent of, his insolvency by gambling or by rash and hazardous speculations’. The actus reus – the bankruptcy petition and the bankruptcy to which it gives rise – does not exist and may never come to exist at the time of the gambling or speculations.
Held: Under Article 7 of the ECHR, retrospectivity under section 362(1)(a) did not offend the principle of legal certainty or Article 7 (in relation to which it was held to be proportionate). There is nothing objectionable in principle with strict liability offences under Article 7 which required a different conclusion, than that the offence under section 362(1)(a) is one of strict liability.
Dyson LJ said: The offences where no mental element is specified, for the most part, attract considerably lower maximum sentences than those where a mental element is specified.’

Judges:

Lord Justice Dyson, Mr Justice Silber and Judge Goddard, QC

Citations:

Times 16-Aug-2002, [2002] EWCA Crim 1856, [2003] QB 1031, [2003] 2 WLR 1050

Links:

Bailii

Statutes:

Insolvency Act 1986 362(1)(a), European Convention on Human Rights 10

Jurisdiction:

England and Wales

Citing:

Cited – Gammon v The Attorney-General of Hong Kong PC 1984
(Hong kong) The court considered the need at common law to show mens rea. A Hong Kong Building Ordinance created offences of strict liability in pursuit of public safety which strict liability was calculated to promote.
Held: Lord Scarman . .
Cited – Sweet v Parsley HL 23-Jan-1969
Mens Rea essential element of statutory Offence
The appellant had been convicted under the Act 1965 of having been concerned in the management of premises used for smoking cannabis. This was a farmhouse which she visited infrequently. The prosecutor had conceded that she was unaware that the . .
Not binding – Regina v Salter 1968
. .
Cited – Salabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Crime, Human Rights

Updated: 30 June 2022; Ref: scu.174710

Regina v Mushtaq: HL 21 Apr 2005

The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the statement so that he could get out to see her. The police knew his circumstances, but bail was refused. The statement was admitted and the circumstances discussed before the jury.
Held: The appeal failed. In the absence of evidence from the defendant and the denials by the officers there was not actually any evidence of oppression: ‘in this case there was no evidence whatever of oppression, or of any other improper means, for the prosecution to disprove or for the jury to consider. The direction to the jury as to what they might do if they found that the confession had been obtained by oppression or any other improper means was, accordingly, unnecessary and unduly favourable to the appellant. In those circumstances, the fact that the judge did not go further in his direction cannot possibly affect the fairness of the appellant’s trial or the safety of his conviction.’ However even though the judge had ruled that a statement was admissible in law, he must still leave to the jury the question of fact as to whether it had been obtainedby oppression, and that therefore they were entitled to disregard it.
Lord Carswell said that oppression would be constituted by ‘questioning which by its nature, duration or other circumstances (including the fact of custody) excites hopes (such as hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.’

Judges:

Lord Steyn, Lord Hutton, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2005] UKHL 25, Times 28-Apr-2005, [2005] 1 WLR 1513

Links:

Bailii, House of Lords

Statutes:

Police and Criminal Evidence Act 1984 76(2), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Rex v Murray 1951
Where the judge decides that the confession is to be given in evidence, if the defendant’s counsel wishes, the circumstances in which it was obtained will again be explored in evidence before the jury so that they can decide what weight or value to . .
Cited – Wong Kam-Ming v The Queen PC 20-Dec-1978
The voir dire system allows a defendant to give his evidence on the limited issues surrounding the circumstances under which his statement was made as to the admissibility of the confession, without infringing his right to elect not to give evidence . .
Cited – Chitambala v The Queen 1961
Clayden ACJ said: ‘In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of the admissibility as evidence in the trial itself would mean . .
Cited – Ibrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Cited – Regina v Bass CCA 1953
The court considered how to deal with the admission of a statement where the defendant contested its admissibility. Here the defendant said he had not been cautioned before the interview.
Held: It was within the discretion of the judge to . .
Cited – Hui Chi-ming v The Queen PC 5-Aug-1991
(Hong Kong) The defendant was charged with aiding and abetting a murder. A, carrying a length of water pipe and accompanied by the defendant and four other youths, seized a man and A hit him with the pipe, causing injuries from which he died. No . .
Cited – Regina v Sat-Bhambra CACD 1989
The defendant was accused of importing heroin. He challenged use of his recorded interviews saying he was suffering hypoglycaemia from his diabetes at the time. The judge excluded later interviews for this reason, but the defendant challenged the . .
Cited – Chalmers v HM Advocate HCJ 1954
Where a defendant failed to prevent a statement being admitted in evidence, and sought to be able to challenge it again before the jury, this was a situation where logic must yield, since the jury cannot be asked to accept as an item of evidence a . .
Cited – G v United Kingdom ECHR 1983
The applicant went to a police station along with his girlfriend who was to be interviewed on an unspecified matter. He was arrested and questioned about a burglary. He made a confession, but he claimed that he had done so because the police had . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – Murray v The United Kingdom ECHR 8-Feb-1996
The applicant had been denied legal advice for 48 hours after he had been taken into custody.
Held: There had been a violation of article 6(1) read with article 6(3)(c). However, it was not a breach of human rights to draw inferences from the . .
Cited – Funke v France ECHR 25-Feb-1993
M. Funke successfully challenged his conviction for failing to provide documents which the customs authorities had demanded of him, on the grounds that his rights under Article 6 had been infringed: ‘The Court notes that the customs secured Mr. . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Regina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
Cited – Regina v Prager CACD 1972
The judge’s discretion to exclude a statement on the ground that its admission would be unfair is a matter of degree, but the first and principal decision is whether the prosecution has proved that it was made voluntarily. The court discussed what . .
Cited – Bartlett v Smith 1843
‘Where a question arises as to the admissibility of evidence, the facts upon which its admissibility depends are to be determined by the judge, and not by the jury. If the opposite course were adopted, it would be equivalent to leaving it to the . .
Cited – Chan Wei Keung v The Queen PC 7-Nov-1966
(Hong Kong) The defendant appealed from his conviction for murder. He complained as to the adequacy of the judge’s directions to the jury.
Held: On a voir dire as to the admissibility of a defendant’s challenged statement, the prosecution . .

Cited by:

Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Foster and Another v The Queen PC 23-Jan-2007
(Barbados) The appellants had been convicted under the felony murder rule, before its abolition in Barbados in 1994. . .
Cited – Ali Hussein v Secretary of State for Defence Admn 1-Feb-2013
The claimant sought to challenge the legality of techniques of interrogation intended to be used by forces members detaining person captured in Afghanistan. He had himself been mistreated by such officers in Iraq. The defendant denied he had . .
Cited – Williams v The Queen PC 25-Apr-2006
PC Jamaica – the appellant had been twelve when convicted on his own confession of murder. He said that the statement after oppression. The statement had been challenged but admitted without following the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Human Rights

Updated: 29 June 2022; Ref: scu.224323

Regina v Arnold: CACD 21 May 2004

The defendant appealed a conviction after the non attendance of a witness.
Held: The court was prepared to assume that the witness had not been kept away by fear, but ruled that the statement was admissible. However: ‘We cannot leave this case without sound a word of caution. The reference in Luca to the not infrequent occurrence of the phenomenon of frightened witnesses being unwilling to give evidence in trials concerning Mafia-type organisations is echoed across a wider range of serious crime in this country. Counsel both confirmed that this problem was becoming commonplace and the experience of the members of this Court concerned with the conduct of criminal trials is likewise. Inevitably, applications under section 23 will follow but this judgment should not be read as a licence for prosecutors. Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the Convention and judges should not easily be persuaded that it is in the interests of justice to permit evidence to be read. Where that witness provides the sole or determinative evidence against the accused, permitting it to be read may well, depending on the circumstances, jeopardise infringing the defendant’s Article 6(3)(d) rights; even it is not the only evidence, care must be taken to ensure that the ultimate aim of each and every trial, namely, a fair hearing, is achieved.’

Judges:

Hooper LJ, Leveson, Mettyear JJ

Citations:

[2004] EWCA (Crim) 1293

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Luca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .

Cited by:

Approved – Sellick and Sellick, Regina v CACD 14-Mar-2005
The defendants appealed convictions for murder saying that the court had had read to it the statements of four witnesses who refused to attend for fear, having been intimidated. Other witnesses had been unco-operative and had been treated by the . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 29 June 2022; Ref: scu.224308

J and B: CA 7 Nov 2002

The Crown prosecution service sought judicial review of a decision by the registrar of marriages to celebrate the marriage between the parties. He was due to face trial for murder, and she was to give evidence against him.
Held: The registrar should be allowed to continue and to celebrate the marriage. It could not be said that the defendant was doing this to attempt to avoid liability for a serious crime. He might do other things also such as calling witnesses. ‘The right to marry has always been a right recognised by the laws of this country long before the Human Rights Act came into force. The right of course is also enshrined in article 12 of the Convention. It has more recently been held that prisoners are not to be denied that right in the cases cited by the judge. The right, furthermore, must not be denied to B who has indeed born a child to J. It seems to me that the right of marriage carries with it the incidences of marriage, including that the wife may not be compelled to give evidence against her husband or vice versa. ‘

Citations:

[2002] EWCA Civ 1661

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hoskyn v Metropolitan Police Commissioner HL 1978
The defendant had married the complainant only two days before he was to face trial for assaulting her. The House considered whether she was compellable as a witness against him as his wife.
Held: A spouse ought not to have been compelled to . .
Cited – Hamer v United Kingdom ECHR 1979
(Commission) The Commission considered the right of a prisoner in prison to get married.
Held: A rule against such marriages was incompatible with article 12. The Commission explained the power of national laws in relation to article 12: ‘Such . .
Cited – Sydnet Draper v United Kingdom ECHR 1980
(Commission) Rule against marriage of prisoners breach of art 12: ‘The Commission first recalls that the Court has held that, even though a right is not formally denied, ‘hindrance in fact can contravene the Convention just like a legal . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Puttick CA 1981
The applicant, then Astrid Proll, fled bail in Germany when awaiting trial on terrorist charges, entered England and under a false name, and married Mr Puttick. She resisted extradition saying that under the 1948 Act she was now a British National. . .
Cited – Regina v Registrar General, ex parte Smith CA 1991
The applicant was detained in Broadmoor, having been convicted of murder in 1977 and of manslaughter in 1980. He suffered from serious mental instability and psychosis The second killing was of a fellow prisoner whom he believed to be his adoptive . .
Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Family, Human Rights

Updated: 29 June 2022; Ref: scu.217833

Karausta v Secretary of State for Transport, Local Government and the Regions and another: Admn 10 Oct 2002

The applicant sought planning permission extending the hours for her hot food take away after midnight. It was refused for the effect on local residents. She complained that the Inspector had failed to consider a shorter extension, and that another local shop did have such hours.
Held: The inspector was not obliged to consider suggestions not put to him. The Inspector had properly allowed that the questions engaged the applicants human rights, but had properly balanced her rights against public needs. The possible comparator might itself later have conditions imposed.

Judges:

Mr Justice Sullivan

Citations:

Gazette 24-Oct-2002

Statutes:

European Convention on Human Rights 1

Jurisdiction:

England and Wales

Planning, Human Rights

Updated: 29 June 2022; Ref: scu.177493

Regina (Heather and Another) v Leonard Cheshire Foundation: CA 21 Mar 2002

The appellants appealed rejection of their application for judicial review. They were long term residents in a nursing home, which the respondents had decided to close.
Held: Though the respondent did exercise some public functions, and its activities were in part paid for by public authorities, its activity of providing residential accommodation was not a public function, and its decisions with regard to that activity were not capable of challenge under Human Rights law. Suggestions in the court below that proceedings should not have been by way of judicial review were sterile, and courts should look beyond the form of the application. A local authority respondent should be careful of its statutory obligations, and duties under Human Rights Law, and could not divest itself of obligations by contracting them out.

Judges:

Lord Woolf CJ, Lord Chief Justice, Lord Justice Laws and Lord Justice Dyson

Citations:

Times 08-Apr-2002, [2002] 2 All ER 936, [2002] EWCA Civ 366, 69 BMLR 22

Links:

Bailii

Statutes:

Civil Procedure Rules 53 54, National Assistance Act 1948 21(1) 26(1), Human Rights Act 1998 6, European Convention on Human Rights Art 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (on the Application of Elizabeth Heather; Martin Ward; Hilary Callin) v The Leonard Cheshire Foundation and H M Attorney General Admn 15-Jun-2001
The applicants sought review of the decision of the respondent to close the residential home in which they lived.
Held: The Foundation, though a charity, was not a public body, and its decisions were not properly subject to an application for . .

Cited by:

Appealed To – Regina (on the Application of Elizabeth Heather; Martin Ward; Hilary Callin) v The Leonard Cheshire Foundation and H M Attorney General Admn 15-Jun-2001
The applicants sought review of the decision of the respondent to close the residential home in which they lived.
Held: The Foundation, though a charity, was not a public body, and its decisions were not properly subject to an application for . .
Cited – Hampshire County Council v Beer (T/A Hammer Trout Farm); Regina (Beer) v Hampshire Farmers’ Market Ltd CA 21-Jul-2003
The applicant had been refused a licence to operate within the farmer’s market. It sought judicial review of the rejection, but the respondent argued that it was a private company not susceptible to review.
Held: The decisions of the Farmers . .
Cited – Mullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .
Cited – Johnson and others v London Borough of Havering and others CA 30-Jan-2007
The claimants were residents of old people’s homes run by the council and maintained under s21 of the 1948 Act. They objected to the transfer of the homes into the private sector saying that it would infringe their rights to family life, and that . .
Cited – YL v Birmingham City Council and Others HL 20-Jun-2007
The House was asked whether a private care home when providing accommodation and care to a resident under arrangements with a local authority the 1948 Act, is performing ‘functions of a public nature’ for the purposes of section 6(3)(b) of the Human . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Human Rights, Civil Procedure Rules

Updated: 29 June 2022; Ref: scu.168527

The Home Office v Wainwright and Wainwright: CA 20 Dec 2001

The claimants were awarded damages, following the way they were searched on seeking to enter prison on a visit. The Home Office appealed. They were asked to sign a consent form, but only after the search was nearly complete. They were told the prison officers had a right to conduct the search. The actions had occurred before the Human Rights Act came into force. There had been considerable uncertainty as to whether the Human Rights Act 1998 can apply retrospectively in situations where the conduct complained of occurred before the Act came into force. Case law had not decided whether s3 could operate retrospectively, but it did not. There appeared no intention of the prison officers to cause harm or distress, and no Wilkinson v Downton action was available to the claimant. Any consent was only to a search conducted properly. Claims other than for battery were dismissed. There is no tort of invasion of privacy, but only separate torts protecting body and property. The germ of a tort of breach of privacy all lay in the law of confidence. No element of confidence was involved here

Judges:

Lord Justice Mummery, Lord Justice Buxton

Citations:

Times 04-Jan-2002, Gazette 27-Feb-2002, [2001] EWCA Civ 2081, [2002] QB 1334, [2003] 3 All ER 943, [2002] 3 WLR 405

Links:

Bailii

Statutes:

Human Rights Act 1998 3 22(4), Prison Act 1952 47, Prison Rules 1964 (1964 No 388) 86(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Limited – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
Cited – Douglas, Zeta Jones, Northern and Shell Plc v Hello! Limited (No 1) CA 21-Dec-2000
The first two claimants sold exclusive rights to photograph their wedding to the third claimant. A paparrazzi infiltrated the wedding and then sold his unauthorised photographs to the defendants, who now appealed injunctions restraining them from . .

Cited by:

Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
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 . .
Appeal from – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other, Human Rights, Personal Injury

Updated: 29 June 2022; Ref: scu.167463

Berry Trade Ltd and Another v Moussavi and Others: CA 21 Mar 2002

The respondent had, it was alleged, had breached worldwide asset freezing orders, and was liable to be committed to prison. Legal Aid was refused by the Legal Services Commission. After several adjournments, the other party offered to pay for solicitor and counsel of his choice. He refused.
Held: An application could not proceed without proper opportunity for the contemnor to obtain representation of his choice. Contempt proceedings are criminal proceedings for the purposes of Human Rights law. One more opportunity should be given for him to obtain legal aid, and the court would then look again at alternatives.

Judges:

Lord Justice Potter, Lord Justice Mummery and Lady Justice Arden

Citations:

Times 10-Apr-2002, Gazette 23-May-2002, [2002] EWCA Civ 477, [2002] BPIR 881, [2002] 1 WLR 1910

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Croissant v Germany ECHR 25-Sep-1992
Hudoc No violation of Art. 6-1; No violation of Art. 6-3-c
‘[I]t is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When . .

Cited by:

Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Contempt of Court, Human Rights

Updated: 29 June 2022; Ref: scu.168534

K v Netherlands: ECHR 1 Jul 1985

Discrimination; Immigration; Nationality; Right to respect for private and family life

Judges:

MM J A FROWEIN, Acting President

Citations:

11278/84, [1985] ECHR 15, (1986) 50 DR 199, (1986) 8 EHRR CD95, (1985) 43 D and R 216

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Johnson, Regina (on The Application of) v Secretary of State for The Home Department SC 19-Oct-2016
The court was asked: ‘Is it compatible with the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were not married to one another at the time of his birth or . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 29 June 2022; Ref: scu.630594

Kuric And Others v Slovenia: ECHR 26 Jun 2012

Grand Chamber – Yugoslav citizens resident in Slovenia at the time of independence, failed to acquire Slovenian citizenship and their names were ‘erased’ from the register of permanent residents, thus making them stateless. It was not in dispute that the ‘erasure’ and its repercussions amounted to an interference with the ‘private or family life’ of the applicants under article 8 of the Convention.
Held: The domestic legal system had failed to regulate clearly the consequences of the ‘erasure’, and that it involved an interference which was not ‘in accordance with the law’ as required by article 8(2)

Judges:

Nicolas Bratza, P

Citations:

26828/06 (Judgment (Merits and Just Satisfaction)), [2012] ECHR 1083, (2013) 56 EHRR 20, 33 BHRC 521

Links:

Bailii

Statutes:

European Convention on Human Rights 8-2

Jurisdiction:

Human Rights

Cited by:

See Also – Kuric And Others v Slovenia ECHR 12-Mar-2014
Grand Chamber – Article 41
Just satisfaction
Award in respect of pecuniary damage incurred by the applicants as a result of unlawful removal from the Register of Permanent Residents
Article 46
Pilot judgment
General . .
See Also – Kuric And Others v Slovenia ECHR 12-Mar-2014
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 29 June 2022; Ref: scu.462034

CDE and Another v MGN Ltd and Another: QBD 16 Dec 2010

In considering a request for injunction restraining publication of private matters, the court may consider also the effect of publication on a child of the claimant’s family.

Judges:

Eady J

Citations:

[2010] EWHC 3308 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – TSE and ELP v News Group Newspapers Ltd QBD 23-May-2011
The claimants had obtained an injunction preventing publication of details of their private lives and against being publicly named. The newspaper had not attempted to raise any public interest defence. Various publications had taken place to breach . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media, Litigation Practice

Updated: 29 June 2022; Ref: scu.428325

Police Service of Northern Ireland v McCaughey and Another: CANI 14 Jan 2005

Judges:

Kerr LCJ, Campbell LJ and Weir J

Citations:

[2005] NICA 1

Links:

Bailii

Statutes:

Coroner’s Act (Northern Ireland) 1959, European Convention on Human Rights

Jurisdiction:

Northern Ireland

Citing:

See Also – McCaughey and Another, Re Application for Judicial Review QBNI 20-Jan-2004
Application by the fathers of Martin McCaughey and Desmond Grew, who were killed by soldiers on 9 October 1990, for Judicial Review of the decisions of the Chief Constable and the Coroner concerning the disclosure of documents for the purposes of . .

Cited by:

See Also – Jordan v Lord Chancellor and Another (Northern Ireland) HL 28-Mar-2007
In each case a death had occurred many years earlier where the deceased had apparently died at the hands of the armed forces. The relatives now challenged the range of verdicts which could be left to a coroner’s jury.
Lord Bingham said: ‘The . .
See Also – McCaughey and Quinn, Re Judicial Review CANI 26-Mar-2010
The claimants challenged the mode of inquest sought to be carried out. They had been refused an undertaking that the inquest would comply with obligations under article 2.
Held: The appeal failed. McKerr remained binding on the court, even if . .
See Also – McCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights, Coroners

Updated: 29 June 2022; Ref: scu.224131

Sellick and Sellick, Regina v: CACD 14 Mar 2005

The defendants appealed convictions for murder saying that the court had had read to it the statements of four witnesses who refused to attend for fear, having been intimidated. Other witnesses had been unco-operative and had been treated by the prosecution as hostile.
Held: The appeal failed. The appellants’ rights under Article 6 were in no way infringed. The convictions were safe.
Waller LJ summarised the ECHR jurispridence: ‘What appears from the above authorities are the following propositions. (i) The admissibility of evidence is primarily for the national law. (ii) Evidence must normally be produced at a public hearing and as a general rule article 6(1) and (3)(d) of the Convention require a defendant to be given a proper and adequate opportunity to challenge and question witnesses. (iii) It is not necessarily incompatible with article 6(1) and (3)(d) of the Convention for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair. (iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.’

Judges:

Waller LJ

Citations:

[2005] 1 WLR 3257, [2005] EWCA Crim 651, Times 22-Mar-2005, [2005] 2 Cr App R 15

Links:

Bailii

Statutes:

Criminal Justice Act 1988 23 26, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Regina v KJ Martin CACD 20-Feb-2003
The defendant had been found unfit to plead on a charge of murder. Charges against the co-defendants were later reduced to inflicting grievous bodily harm, but when the defendant came to be dealt with, it was on the basis that the charge remained . .
Cited – Luca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .
Cited – Unterpertinger v Austria ECHR 24-Nov-1986
The defendant was convicted of causing actual bodily harm, mainly on the basis of statements which his wife and daughter had given to the police. His wife and daughter took advantage of their right not to give evidence at his trial and so could not . .
Cited – Regina v Gokal, Abas Kassimali CACD 1997
The defendant challenged admission of written statements saying that he would only be able to controvert the written statements if he gave evidence, and it was submitted that that would infringe his right to silence.
Held: There was no reason . .
Cited – Windisch v Austria ECHR 27-Sep-1990
cs W was convicted of burglary on the evidence of a mother and daughter, who gave statements without their identity being revealed.
Held: The court recited various principles in the following terms:- ‘All . .
Cited – Kostovski v The Netherlands ECHR 20-Nov-1989
No Anonymity for Witnessses in Criminal Trial
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled . .
Cited – Regina v Cole CACD 1990
. .
Cited – Ludi v Switzerland ECHR 15-Jun-1992
The claimant challenged his conviction of a drug trafficking offence. The evidence against him consisted mainly of a report by an anonymous undercover agent and transcripts of telephone intercepts of calls between the agent and the applicant. . .
Cited – Saidi v France ECHR 20-Sep-1993
S had been convicted on the basis of the evidence of drug addicts and in the situation where there was no opportunity to confront the witness.
Held: ‘The court reiterates that the taking of evidence is governed primarily by the rules of . .
Cited – Van Mechelen And Others v The Netherlands ECHR 23-Apr-1997
A Dutch court had convicted the applicants of attempted manslaughter and robbery on the basis of statements made, before their trial, by anonymous police officers, none of whom gave evidence before the Regional Court or the investigating judge. The . .
Approved – Regina v Arnold CACD 21-May-2004
The defendant appealed a conviction after the non attendance of a witness.
Held: The court was prepared to assume that the witness had not been kept away by fear, but ruled that the statement was admissible. However: ‘We cannot leave this case . .

Cited by:

Cited – Al-Khawaja v Regina CACD 3-Nov-2005
The defendant had been tried for indecent assaults. The complainant having died before the trial, the judge had ruled that her written statements were admissible. The defendant said he had not had a fair trial.
Held: The appeal failed. The . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Raja v Van Hoogstraten and others ChD 12-Jun-2006
The claimant sought the strike out of the defendants pleadings. The first defendant was found to have been responsible for the killing of the deceased. The proceedings had been prolonged by procedural challenges by the defendant.
Held: The . .
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Distinguished – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 20-Jan-2009
Each complainant said that in allowing hearsay evidence to be used against them at their trials, their article 6 human rights had been infringed. In the first case the complainant had died before trial but her statement was admitted.
Held: In . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights

Updated: 29 June 2022; Ref: scu.223899

Lloyd And Others v The United Kingdom: ECHR 1 Mar 2005

Magistrates had committed the applicants to prison in their absence for non-payment of local taxes and fines.
Held: The proceedings infringed the claimants’ human rights in that they had been found guilty of wilful refusal or culpable neglect without having had an appropriate opportunity to respond. Legal aid had not been available for the proceedings at which they were committed to prison.
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 5-1 with regard to 26 applicants; No violation of Art. 5-1 with regard to one applicant; Violation of Art. 5-5 with regard to 26 applicants; No violation of Art. 5-5 with regard to one applicant; Violation of Art. 6-1+6-3-c; Non-pecuniary damage – finding of violation sufficient (with regard to Art. 6); Non-pecuniary damage – financial award (with regard to Art. 5); Pecuniary damage – financial award (with regard to two applicants); Costs and expenses partial award.

Citations:

Times 10-Mar-2005, 47676/99, 29798/96, [2005] ECHR 144, [2005] ECHR 147, [2006] RA 329

Links:

Worldlii, Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights 6

Citing:

Cited – Regina v Alfreton Justices, Ex Parte Gratton QBD 25-Nov-1993
The appellant community charge payer (under 21) appealed after being committed to prison for non payment of the tax. The magistrates had come to the conclusion that they could not consider attaching the applicant’s liability to pay the charge to his . .
Lists of cited by and citing cases may be incomplete.

European, Human Rights, Magistrates

Updated: 29 June 2022; Ref: scu.223799

Spinks, Regina (on the Application of) v Secretary of State for the Home Department: CA 28 Jan 2005

May LJ said that if the State was in breach of its Article 3 obligations, that had to be remedied. If the only way to remedy was to release the prisoner, then the Secretary of State for Justice would be obliged to order his immediate release.

Judges:

May, Buxton, Sedley LJJ

Citations:

[2005] EWCA Civ 275

Links:

Bailii

Statutes:

European Convention on Human Rights 3

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Qazi and Another CACD 4-Nov-2010
The defendant appealed against sentence, saying that given his serious medical condition, any imprisonment would threaten his human rights.
Held: The court set out the law. A court imposing a sentence should not concern itself with the . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 29 June 2022; Ref: scu.223681

Commissioner of Police of the Metropolis v Hooper: QBD 16 Feb 2005

The police applied to the court for a closure order in respect of premises they said were being used for the sale of Class A drugs. The tenant sought an adjournment, which was granted as were two later applications. On the last hearing, the police did not appear and the application was dismissed as out of time. The police appealed.
Held: To avoid a conflict, the police power to order closure under 2(6) of the 2003 Act had to be read so that s54 of the 1980 Act was not excluded. Nevertheless, s54 should not be allowed to undermine the statutory purpose of the application. Magistrates had power to adjourn an application but not beyond 14 days after the application was made. The fault in the Magistrates’ action was not in granting multiple adjournments, but in allowing adjournments beyond that period. The magistrates had taking into account matters nor relevant, and the decision was flawed.

Judges:

Mitting J

Citations:

Times 03-Mar-2005, [2005] EWHC 340 (Admin), [2005] 1 WLR 1995

Links:

Bailii

Statutes:

Anti-Social Behaviour Act 2003 2(6), Magistrates Courts Act 1980 54, European Convention on Human Rights 6

Citing:

Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Regina v Dudley Magistrates Court ex parte Hollis; Robert v Same Admn 25-Nov-1997
An award of costs is inevitable after a finding of statutory nuisance and such costs include cost of establishing the nuisance. ‘The wide discretion as to whether to grant an adjournment conferred by section 10 and section 54 of the Magistrates’ . .

Cited by:

Cited – Regina (Brian Turner) v Highbury Magistrates Court QBD 11-Oct-2005
The claimant had faced an application for a closure order on his premises for their use for unlawful drugs. The matter was adjourned twice at his request. On the third occasion he sought to rely upon the need for a closure order to be confirmed with . .
Lists of cited by and citing cases may be incomplete.

Police, Magistrates, Human Rights

Updated: 29 June 2022; Ref: scu.223452

SB, Regina (on the Application of) v Denbigh High School: CA 2 Mar 2005

The applicant, a Muslim girl sought to be allowed to wear the gilbab to school. The school policy which had been approved by Muslim clerics prohibited this, saying the shalwar kameeze and headscarf were sufficient. The school said she was making a voluntary choice not to attend.
Held: The applicant was not choosing to stay away but was had been excluded. A schoolchild has no free choice of school as might an adult the freedom to choose where to work. ‘SB’s freedom to manifest her religion or beliefs may only be subject to limitations that are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public morals, or for the protection of the rights and freedoms of others.’ The school was concerned that wearing the gilbab might put other pupils under pressure. The student’s religious beliefes were genuine. The school should have asked in turn whether the pupil had a Convention right capable of protection, was the right being violated, was the interference prescribed by law, did it pursue a legitimate purpose, were there any balancing interests to see whether the interference was necessary, and lastly was the interference justified under the Convention. The school had failed to start from the acknowledgement of the pupil’s right to express her religious belief in the way she genuinely thought proper. The school needed to approach the issue correctly. If it did so it might come to the same or to a new conclusion. The declaration was granted.

Judges:

Lord Justice Brooke Vice-President Of The Court Of Appeal (Civil Division) Lord Justice Mummery And Lord Justice Scott Baker

Citations:

[2005] EWCA Civ 199, Times 04-Mar-2005, [2005] 1 WLR 3372

Links:

Bailii

Statutes:

European Convention on Human Rights 9(1)

Jurisdiction:

England and Wales

Citing:

Cited – Leyla Sahin v Turkey ECHR 29-Jun-2004
(Grand Chamber) The applicant had been denied access to written examinations and to a lecture at the University of Istanbul because she was wearing an Islamic headscarf. This was prohibited not only by the rules of the university but also by the . .
Appeal from – Begum, Regina (on the Application of) v Denbigh High School Admn 15-Jun-2004
A schoolgirl complained that she had been excluded from school for wearing a form of attire which accorded with her Muslim beliefs.
Held: The school had made great efforts to establish what forms of wear were acceptable within the moslem . .
Cited – Kokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
Cited – Hasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
Cited – Dahlab v Switzerland ECHR 15-Feb-2001
(Commission) A primary school teacher had been prohibited from wearing an Islamic headscarf at her school.
Held: The complaint was inadmissible. The court acknowledged the margin of appreciation afforded to the national authorities when . .
Cited – 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 – Ahmad v United Kingdom ECHR 1981
(Commision) The applicant was a devout Muslim. His religious duty was to offer prayers on Fridays and to attend a mosque if possible. He was employed as a full time primary school teacher. He complained that he was forced to resign because he was . .
Cited – Stedman v United Kingdom ECHR 9-Apr-1997
(Commission) The applicant alleged that her dismissal for refusal to work on Sundays constituted a violation of her freedom to manifest her religion in worship, practice and observance, contrary to Article 9.
Held: The Commission first had to . .

Cited by:

Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – Singh and others v Chief Constable of West Midlands Police QBD 4-Nov-2005
A play was presented which was seen by many Sikhs as offensive. Protesters were eventually ordered to disperse under s30 of the 2003 Act. The defendants appealed their convictions for having breached that order, saying that it interfered with their . .
Appeal from – 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 – Secretary of State for the Home Department v Nasseri HL 6-May-2009
The applicant had claimed asylum after fleeing Afghanistan to Greece and then to the UK. On the failure of his application, he would be returned to Greece, but objected that he would thence be returned to Afghanistan where his human rights would be . .
Lists of cited by and citing cases may be incomplete.

Education, Human Rights

Updated: 29 June 2022; Ref: scu.223110

Arrowsmith v United Kingdom: ECHR 12 Oct 1978

(Commission) Article 9 is apt to include a belief such as pacifism, which could be a philosophy. However, Miss Arrowsmith distributed leaflets to soldiers, urging them to decline service in Northern Ireland. This was dictated by her pacifist views. But the contents of the leaflets did not express pacifist views, nor did the act of distributing the leaflets do so. She was not thereby manifesting her pacifism.
The term ‘practice’ as employed in Article 9(1) does not cover each act which is motivated and influenced by a religion or belief’. It added: ‘It is true that public declarations proclaiming generally the idea of pacifism and urging the acceptance of a commitment to non-violence may be considered as a normal and recognised manifestation of pacifist belief. However, when the actions of individuals do not actually express the belief concerned they cannot be considered to be as such protected by Article 9 (1), even when they are motivated or influenced by it’.

Citations:

(1978) 3 EHRR 218, 7050/75, [1978] ECHR 7

Links:

Bailii

Statutes:

European Convention on Human Rights 9

Jurisdiction:

Human Rights

Citing:

Appeal from – Regina v Arrowsmith 1975
The defendant was charged with endeavouring to seduce a member of Her Majesty’s forces from his duty or allegiance to Her Majesty.
Held: A soldier owes allegiance to the Crown, whether he has taken the oath of allegiance or not. . .

Cited by:

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 – Boughton, Regina (on the Application Of) v Her Majesty’s Treasury Admn 25-Jul-2005
The applicants sought to control the sums they paid by way of taxation so as not to contribute to non peaceful objects.
Held: Both English law and human rights jurisprudence would prevent the claim, and the application for a review failed. . .
Cited – Core Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .
Cited – Grainger Plc and Others v Nicholson EAT 3-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
A belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 29 June 2022; Ref: scu.223022

Nunn, Regina (on the Application of) v First Secretary of State and others: CA 8 Feb 2005

The operator sought permission to erect a mobile phone mast. The authority failed to serve notice of the decision to refuse prior approval. The applicant wished to object.
Held: The applicant had been deprived of her right to make objection to the application by the authortiy’s failure. If the authority had communicated its decision, she would have had opportunity to object, but her sole ways forward now were either by way of complaint to the Local Government Ombudsman, or an action for damages against the local authority. It was the planning authority which appeared to be at fault.

Judges:

Lord Justice Waller Lord Justice Laws Lord Justice Wall

Citations:

[2005] EWCA Civ 101, Times 23-Feb-2005

Links:

Bailii

Statutes:

Town and Country Planning (General Permitted Development) Order 1995

Jurisdiction:

England and Wales

Citing:

Cited – Zander v Sweden ECHR 25-Nov-1993
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings . .
Cited – Friends Provident Life and Pensions Limited v The Secretary of State for Transport, Local Government and Regions and Others Admn 30-Oct-2001
The application of the House of Lords’ ruling in Alconbury that the exercise of the section 77 call in power was not after all incompatible with article 6, it was unsuccessfully argued instead that a refusal to call in a planning application under . .
Cited – British Telecommunications Plc and Bloomsbury Land Investments v Gloucester City Council Admn 26-Nov-2001
The land site to be developed was of archaeological interest and the relevance of a mitigation strategy was considered.
Held: It is for the planning authority to decide whether there are likely to be significant effects on the environment . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Ortenberg v Autriche ECHR 25-Nov-1994
Hudoc No violation of Art. 6-1; Lack of jurisdiction (complaint inadmissible) . .
Lists of cited by and citing cases may be incomplete.

Planning, Local Government, Human Rights

Updated: 29 June 2022; Ref: scu.222963

Saggar, Re: CA 24 Feb 2005

Whether alleged delay by Her Majesty’s Commissioners of Customs and Excise in seeking to re-open a defendant’s confiscation order, so as to increase the ‘amount which might be realised’ under it, had caused a breach of article 6(1) of the European Convention of Human Rights.

Judges:

Lord Justice Rix, Lord Justice Mummery, Lord Justice Carnwath

Citations:

[2005] 1 WLR 2693, [2005] EWCA Civ 174

Links:

Bailii

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

England and Wales

Criminal Practice, Human Rights, Customs and Excise

Updated: 29 June 2022; Ref: scu.223077

SG (Article 3, Military Service, Detention) Algeria: IAT 1 Feb 2005

The Secretary of State appealed against a decision refusing the claimant’s asylum appeal against a decision of the Secretary of State refusing leave to enter the United Kingdom after refusal of asylum, however allowing the claimant’s appeal under Article 3 of the ECHR.

Citations:

[2005] UKIAT 00031

Links:

Bailii

Immigration, Human Rights

Updated: 29 June 2022; Ref: scu.222886