Category: Human Rights

Regina (Wright) v Secretary of State for Health: CA 2 Jan 2008

The care worker’s appeal failed. The system for disciplining care workers and placing them on lists was required to be human rights compliant. Lord Justice May said: ‘There is an obvious and unchallenged public interest in having an appropriate system for protecting vulnerable adults and children from the risk of harm from unsuitable carers. It is also necessary that any scheme takes a proportionate account of the rights of those who have worked and wish to continue to work as carers.’

Judges:

Lord Justice May

Citations:

[2008] 1 All 887

Statutes:

Care Standards Act 2000 86(3), European Convention on Huma Rights5 6

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (Wright) v Secretary of State for Health QBD 2008
The court was asked whether in a complaint under the Act, conduct before the Act could be considered.
Held: The Tribunal could rely on misconduct which had taken place, or the relevant provider’s opinion had been formed, before the . .

Cited by:

Cited – Joyce v Secretary of State for Health Admn 1-Aug-2008
The claimant appealed against a decision of the Care Standards Tribunal regarding misconduct, and being placed on the list to prevent her working with vulnerable adults. She was said to have fallen asleep while on night duty. The court considered . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 18 June 2022; Ref: scu.279861

Karobeis 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:

37420/02, [2005] ECHR 82

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 18 June 2022; Ref: scu.227620

PNM v Times Newspapers Ltd and Others: SC 19 Jul 2017

No anonymity for investigation suspect

The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting publication of his name and involvement in the inquiry.
Held: (Kerr and Wilson LL dissenting) The appeal failed. PNM did not seek that the trial should be conducted in such a way as to protect his identity, but to restrict its reporting, however fair or accurate, of certain matters which were discussed at a public trial. These were not matters in respect of which PNM can have had any reasonable expectation of privacy. There would be an undoubted and possible serious effect on PNM’s family: ‘But whether that be so or not, the impact on PNM’s family life of what was said about him at the trial is no different in kind from the impact of many disagreeable statements which may be made about individuals at a high profile criminal trial. A defendant at such a trial may be acquitted, possibly on an issue of admissibility, after bruising disclosures have been made about him at the trial. Within the limits of professional propriety, a witness may have his integrity attacked in cross-examination. He may be accused by other witnesses of lying or even of having committed the offence himself. All of these matters may be exposed in public under the cloak of the absolute immunity of counsel and witnesses from civil liability, and reported under the protection of the absolute privilege from liability for defamation for fair, accurate and contemporaneous publication. The immunity and the privilege reflect the law’s conviction that the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public.’
Lords Kerr and Wilson said that the asserted prresumption that members of the public would understand that a person arrested but not charged should be presumed innocent, was without authority and: ‘against the public interest that the proposed piece about section 4(2) would be considerably more engaging and meaningful, this court needed first to recognise the risk to PNM that his identification would generate a widespread belief not only that he was guilty of crimes which understandably attract an extreme degree of public outrage but also that he had so far evaded punishment for them; and then, in consequence, to balance the risk of profound harm to the reputational, social, emotional and even physical aspects of his private and family life, notwithstanding that he is presumed by the law to be innocent and has had no opportunity to address in public the offences of which at one time the police suspected him to be guilty.
At the end of this only interim inquiry, our view is that the scales have descended heavily in favour of PNM’s rights under article 8; that he was likely to have established his right to an injunction against identification at full trial; and, with great respect to our colleagues, that they are wrong today to be dismissing his appeal.’
Lord Sumption said: ‘A party is entitled to invoke the right of privacy to protect his reputation but, as I have explained, there is no reasonable expectation of privacy in relation to proceedings in open court. The only claim available to PNM is based on the adverse impact on his family life which will follow indirectly from the damage to his reputation. It is clear that in an action for defamation no injunction would issue to prevent the publication of a fair and accurate report of what was said about PNM in the proceedings. It would be both privileged and justified. In the context of the publication of proceedings in open court, it would be incoherent for the law to refuse an injunction to prevent damage to PNM’s reputation directly, while granting it to prevent the collateral impact on his family life in precisely the same circumstances.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed

Citations:

[2017] UKSC 49, [2017] WLR(D) 490, [2017] EMLR 29, [2017] 3 WLR 351, UKSC 2014/0270, [2019] AC 161, [2017] WLR(D) 673, [2018] 1 Cr App R 1

Links:

Bailii, Bailii Summary, WLRD (490), SC, SC Summary, SC Video Summary, SC Video 17/01/2017 am, SC Video 17/01/2017 pm, SC Video 18/01/2017 am, WLRD

Statutes:

Contempt of Court Act 1981 4(2)

Jurisdiction:

England and Wales

Citing:

At first instance – PNM v Times Newspapers Ltd and Others QBD 22-Oct-2013
The claimant had been arrested on allegations of serious child sex abuse. The court now considered an application for a continuation or cancellation of an interim non-disclosure order.
Held: The application for a non-disclosure order was . .
Appeal from – PNM v Times Newspapers Ltd and Others CA 1-Aug-2014
The claimant sought a privacy order after being accused of historical serious sexual offences against children.
Held: The judge had properly acted within the range of his discretion, and the appeal was dismissed. The judgment would however . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 24-Apr-2001
The procedures in English law which provided for privacy for proceedings involving children did not in general infringe the human right to family life, nor the right to a public hearing. Where relatives more distant than immediate parties were . .
Cited – Regina v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney-General CA 1974
In a blackmail case, the court ordered non publication of the names of the complainants. Thinking they were not bound, the defendants published the names.
Held: The publishers and Mr Michael Foot were held to be in contempt of court in . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Doorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
Cited – V v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – Edmonton Journal v Alberta (Attorney General) 1989
Supreme Court of Canada – The court made orders for anonymisation of parties to proceedings to protect them from from embarrassment or humiliation.
Wilson J said: ‘It is difficult to imagine a guaranteed right more important to a democratic . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Independent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions PC 8-Jun-2004
PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: ‘In deciding whether . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Trinity Mirror and Others, Regina (on the Application Of) v Croydon Crown Court CACD 1-Feb-2008
The defendant had pleaded guilty in the Crown Court to 20 counts of making or possessing child pornography. No direction was made for withholding the defendant’s identity in court, but the Crown Court made an order in the interest of the defendant’s . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Regina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
Cited – BG and Others v HMTQ 7-Oct-2002
Supreme Court of British Columbia. The Court prohibited, until the conclusion of the proceedings, identification of school staff accused of abusing boys in an action brought by them in later life against the school.
Held: The protection of . .
Cited – BG and Others v HMTQ in Right of BC 22-Jun-2004
Court of Appeal fro British Columbia – Teachers had been accused of historical sexual abuse. An order was made for their anonymisation pending conclusion of those civil proceedings. The proceedings had now been dismissed. The Court now considered . .
Cited – Regina v Henry 26-Feb-2009
British Columbia – Court of Appeal – The Court had granted permission to Mr Henry to reopen his appeal against conviction for offences of sexual assault. His case was to be that Mr X, who had already been convicted of other assaults, had instead . .
Cited – Rotherham Metropolitan Borough Council v M and Others FC 25-Oct-2016
Rotherham had made a teenage girl a ward of court and had obtained interim injunctions that four named men should not associate with her. It alleged that they had been sexually exploiting her. None of the four came to be charged with any offence but . .

Cited by:

Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – Richard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
Cited – Sarker, Regina v CACD 13-Jun-2018
The defendant was to face trial under the 2006 Act. He applied for an order under section 4(2) of the 1981 Act postponing the reporting of the proceedings on the grounds that knowledge by the jury of the inquiry and police investigation would be . .
Cited – ZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
Private Hearings are Not in Secret
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. The a hearing was listed as in . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Information, Litigation Practice

Updated: 18 June 2022; Ref: scu.590447

Miscioscia v Italy: ECHR 31 Jul 2003

The applicant asserted that his rights had been infringed by the prolonged delay in returning to him possession of an apartment he had let. It had taken from 1993 to April 2001 to complete the judicial proceedings.
Held: The court had no reason to differentiate between this and earlier similar cases, and found a breach, but he claimant still had the right to pursue an action for rent arrears and that part of the claim was not established.
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings

Citations:

58408/00, [2003] ECHR 431

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights P1A1 6

Jurisdiction:

Human Rights

Citing:

Cited – Immobiliare Saffi v Italy ECHR 28-Jul-1999
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1; Violation of Art. 6-1; Pecuniary damage – financial award; Non-pecuniary damage – claim rejected; Costs and expenses partial award – Convention . .
Cited – Lunari v Italy ECHR 11-Jan-2001
. .
Cited – Palumbo v Italy ECHR 30-Nov-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion); Violation of P1-1; Violation of Art. 6-1; No violation of Art. 14+P1-1; Pecuniary damage – financial award; . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 17 June 2022; Ref: scu.185116

Moreno Diaz Pena And Others v Portugal: ECHR 4 Jun 2015

ECHR The applicants complained, firstly, the amount of compensation awarded to them following an expropriation procedure: according to them, it was not reasonably related to the actual value their property. They see it as a violation of Article 1 of Protocol N o 1 to the Convention.

Judges:

Isabelle Berro, P

Citations:

44262/10 – Chamber Judgment, [2015] ECHR 531

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 17 June 2022; Ref: scu.547597

Zermani, Regina (on The Application of) v Secretary of State for The Home Department: Admn 30 Apr 2015

The Claimant sought an order quashing the decision of the Respondent refusing his application for leave to remain in the United Kingdom based on his Article 8 ECHR private life claim, on the ground, of the failure to consider whether or not to grant leave to remain outside the Immigration Rules.

Judges:

Worster HHJ

Citations:

[2015] EWHC 1226 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 17 June 2022; Ref: scu.546220

Johnson, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 17 Jul 2014

The court was asked whether the Claimant’s proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence, involves a violation of article 14 in conjunction with article 8 of the European Convention on Human Rights (‘ECHR’), contrary to the Human Rights Act 1998 (‘the Human Rights Act’). The discrimination is said to arise because the Claimant did not become a British citizen when he was born in Jamaica as the illegitimate child of a British citizen, whereas he would have been a British citizen if he had been a legitimate child, and a British citizen cannot be deported.
Held: ‘ (1) that there has been a violation of article 14 in conjunction with article 8 of the ECHR, because the Claimant is currently being treated differently on the ground that he was illegitimate, and that such treatment is not justifiable; (2) there is no sustainable separate ground of complaint on the basis of immigration status; (3) it is not possible to interpret the provisions of section 162(5) of the 2002 Act to permit the Defendant to establish a scheme permitting persons to opt into section 50(9) of the 1981 Act as amended; (4) the parties should liaise to attempt to agree remedies to give effect to this judgment, failing which a short further hearing will be arranged; (5) the ‘clearly unfounded’ certification of the Claimant’s human rights claims should be quashed.’

Judges:

Dingemans J

Citations:

[2014] EWHC 2386 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Genovese v Malta ECHR 11-Oct-2011
The applicant was illegitimate, born to a British mother and a Maltese father. Paternity had been established scientifically and in judicial proceedings. The father refused to recognise his son on the birth certificate, and the applicant’s mother . .

Cited by:

At Admn – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department CA 26-Jan-2016
The appellant was Jamaican by birth, but had lived here with his British father since the age of four. Had his parents been married, he would have had British nationality. As he grew to an adult he was convicted on several serious matters. He now . .
At Admn – 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.

Immigration, Human Rights

Updated: 17 June 2022; Ref: scu.535130

Tarakhel v Switzerland: ECHR 4 Nov 2014

(Grand Chamber) The applicants alleged mainly that if they were returned to Italy they would be exposed to inhuman and degrading treatment on account of the risk of being left without accommodation or being accommodated in inhuman and degrading conditions. The risk stemmed, in their submission, from the absence of individual guarantees as to how they would be taken charge of, in view of the systemic deficiencies in the reception arrangements for asylum seekers in Italy.

Judges:

Dean Spielmann, P

Citations:

29217/12 – Grand Chamber Judgment, [2014] ECHR 1185, [2014] ECHR 1267, [2014] ECHR 1435

Links:

Bailii, Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Immigration

Updated: 17 June 2022; Ref: scu.538290

Big Brother Watch And Others v The United Kingdom: ECHR 7 Jan 2014

Article 8-1
Respect for private life
Indiscriminate capture and sharing of vast quantities of communication data by state security services: communicated

The applicants are three non-governmental organisations based in London and an academic based in Berlin, all of whom work internationally in the fields of privacy and freedom of expression. Their applications to the Court were triggered by media coverage, following the leak of information by Edward Snowden, a former systems administrator with the United States National Security Agency (NSA), about the use by the United States of America and the United Kingdom of technologies permitting the indiscriminate capture of vast quantities of communication data and the sharing of such data between the two States.
The applicants allege that they are likely to have been the subject of generic surveillance by the UK Government Communications Head Quarters (GCHQ) and/or that the UK security services may have been in receipt of foreign intercept material relating to their electronic communications. They contend that the resulting interference with their rights under Article 8 of the Convention were not ‘in accordance with the law’. In their submission, there is no basis in domestic law for the receipt of information from foreign intelligence agencies and an absence of legislative control and safeguards in relation to the circumstances in which the UK intelligence services can request foreign intelligence agencies to intercept communications and/or to give the UK access to stored data that has been obtained by interception, and the extent to which the UK intelligence services can use, analyse, disseminate and store data solicited and/or received from foreign intelligence agencies and the process by which such data must be destroyed.
Further, in relation to the interception of communications directly by GCHQ, the applicants submit that the statutory regime applying to external communications warrants does not comply with the minimum standards outlined by the Court in its case-law.
Lastly, they contend that the generic interception of external communications by GCHQ, merely on the basis that such communications have been transmitted by transatlantic fibre-optic cables, is an inherently disproportionate interference with the private lives of thousands, perhaps millions, of people.
Communicated under Article 8 of the Convention.

Citations:

58170/13 – Legal Summary, [2014] ECHR 178

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 17 June 2022; Ref: scu.521848

In Re Westminster Property Management Ltd: ChD 19 Jan 2000

Since company director disqualification proceedings were not criminal proceedings, even though they involved the imposition of a penalty, they remained civil proceedings in nature. The European Convention on Human Rights did not apply to protect a director against having material, disclosed by him under compulsion in the course of an insolvency, being used against him in disqualification proceedings.

Citations:

Times 19-Jan-2000, Gazette 03-Feb-2000

Statutes:

European Convention on Human Rights, Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Litigation Practice, Human Rights, Company

Updated: 17 June 2022; Ref: scu.82287

Pretto And Others v Italy: ECHR 8 Dec 1983

The court considered the value of court proceedings being public: ‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention.’

Citations:

[1983] ECHR 15, (1983) 6 EHRR 182, 7984/77, (1984) 6 EHRR 182

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land

Updated: 16 June 2022; Ref: scu.164927

B v The United Kingdom; P v The United Kingdom: ECHR 24 Apr 2001

The procedures in English law which provided for privacy for proceedings involving children did not in general infringe the human right to family life, nor the right to a public hearing. Where relatives more distant than immediate parties were affected, the rules allowed application for their admission to the proceedings, and leave could also be sought to disclose the results of the proceedings to named parties. Custody and contact disputes were prime examples of situations where exclusion of the press and public could be justified to protect the interests of the child and parties to the case: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment . . to pronounce the judgment in public would, to a large extent, frustrate these aims.’ Parties were expected to be candid and open about events, and that would be threatened if proceedings were held in public.

Judges:

J-P Costa P, Loucaides, Kuris, Tulkens, Sir Nicolas Bratza, Greve and Mr K Traja JJ, and Dolle, Section Registrar

Citations:

Times 15-May-2001, 36337/97, 35974/97, (2002) 34 EHRR 529, [2001] 2 FLR 261, [2001] ECHR 295, [1999] ECHR 179, [2001] Fam Law 506, [2001] 2 FCR 221, 11 BHRC 667

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1

Jurisdiction:

Human Rights

Citing:

Appeal from – 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 by:

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 . .
Appealed to – 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 – 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 – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Cited – Regina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights, Administrative

Leading Case

Updated: 16 June 2022; Ref: scu.166087

Hirvisaari v Finland: ECHR 27 Sep 2001

Article 6 guarantees a duty to provide adequate reasons for an authority’s decision. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice.

Citations:

49684/99, (2004) 38 EHRR 7, [2001] ECHR 559

Links:

Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

Cited – Savva, Regina (on The Application of) v Royal Borough of Kensington and Chelsea Admn 11-Mar-2010
The claimant challenged the defendant’s policies on caring for elderly people within the community saying that it provided insufficient funds, and the procedures for review were inadequate and infringed her human rights. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 June 2022; Ref: scu.166622

Bijl v The General Medical Council: PC 2 Oct 2001

(Professional Conduct Committee of the GMC) The appellant appealed an order removing him from the register. The board will not usually be in a position to assess the disciplinary issues heard by the Committee. In this case there were findings of serious failings by the Respondent, but some four years later, he had been able to work without complaint, and in the circumstances, removal from the register was not necessary.

Judges:

Lord Hoffmann, Lord Mackay of Clashfern, Lord Clyde, Lord Hoffmann

Citations:

Times 24-Oct-2001, [2001] UKPC 41, Appeal No 78 of 2000

Links:

PC, Bailii, PC, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 14 June 2022; Ref: scu.166565

Al-Waheed v Ministry of Defence: SC 17 Jan 2017

‘These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. In both cases, the claim is based in part on article 5(1) of the European Convention on Human Rights, which provides that no one shall be deprived of his liberty except in six specified cases and in accordance with a procedure prescribed by law. They also rely on article 5(4), which requires that the detainee should be entitled to take proceedings by which the lawfulness of his detention may be tested. The appeals have been heard together with a view to resolving one of the more controversial questions raised by such actions, namely the extent to which article 5 applies to military detention in the territory of a non-Convention state in the course of operations in support of its government pursuant to mandates of the United Nations Security Council.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes, Lord Toulson, Lord Hodge

Citations:

[2017] UKSC 2, [2017] 3 All ER 215, 43 BHRC 137, [2017] AC 821, [2017] 2 WLR 327, [2017] WLR(D) 50, [2017] HRLR 1, UKSC 2014/0219

Links:

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

Statutes:

European Convention on Human Rights 5(1) 5(4), Human Rights Act 1998

Jurisdiction:

England and Wales

Cited by:

See Also – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
See Also – Rahmatullah (No 2) v Ministry of Defence and Another SC 17-Jan-2017
‘another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Torts – Other, Human Rights

Updated: 14 June 2022; Ref: scu.573212

Al-Saadoon and Others v Secretary of State for Defence: Admn 7 Apr 2016

The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the Secretary of State for Defence is required by law to establish an inquiry into the death of a civilian in five particular cases; ii) Whether, in four test cases, claims that the Secretary of State has a duty to investigate deaths or allegations of ill-treatment are barred by delay; and iii) Whether the court should give any further directions or guidance in relation to the investigation of cases.

Judges:

Leggatt J

Citations:

[2016] EWHC 773 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 26-Jun-2015
Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European . .
See Also – Al-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
Cited – Al-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .

Cited by:

See Also – Al-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights, Torts – Other

Updated: 14 June 2022; Ref: scu.561688

Al-Saadoon and Others v Secretary of State for Defence: Admn 26 Jun 2015

Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European Convention on Human Rights (the ‘Convention’), incorporated into English law by the Human Rights Act 1998, to investigate allegations of unlawful killing and ill-treatment made by claimants in these proceedings.

Judges:

Leggatt J

Citations:

[2015] EWHC 1769 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
See Also – Al-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
Cited – Al-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .

Cited by:

See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 7-Apr-2016
The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the . .
See Also – Al-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 14 June 2022; Ref: scu.549477

F, Regina v: CACD 27 Jan 2009

The appellant had been convicted and sentenced at the age of 13 for serious sexual offences committed at the age of 11. It was said that the judge had not considered the effect if being required to comply with notification requirements under the 2003 Act, which, it was said had been found in contravention of a child’s Article 8 rights.
Held: The sentence was not wrong, and the appeal failed. The court said that the consequences in reporting terms was disproportionate.

Citations:

[2009] EWCA Crim 319, [2009] 2 Cr App Rep (S) 68, [2009] Crim LR 462

Links:

Bailii

Statutes:

Sexual Offences Act 2003, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Criminal Sentencing, Human Rights

Updated: 14 June 2022; Ref: scu.377737

Cudak v Lithuania: ECHR 23 Mar 2010

Grand Chamber – The applicant alleged that there had been a violation of her right of access to a court, as guaranteed by Article 6-1 of the Convention.
The applicant was a secretary and switchboard operator employed in the Polish embassy in Vilnius, Lithuania. The Supreme Court of Lithuania’s decision was based on the Strasbourg court’s decision in Fogarty. It had upheld Poland’s claim to state immunity on the ground that: ‘there was no uniform international practice of states whereby the members of staff of foreign states’ diplomatic missions who participated in the exercise of the public authority of the states they represented could be distinguished from other members of staff. As there were no legally binding international rules, it was for each state to take its own decisions in such matters.’
Held: The Court reiterated the general principles governing the application of article 6 in such cases, which they had previously laid down in Fogarty. Although Fogarty had been a complaint about the employer’s recruitment practices, the same principles applied to claims arising out of a subsisting employment relationship. However the Lithuanian courts had exceeded the margin of appreciation available to them, since there were now binding international rules on contracts of employment. These rules were in article 11 of the International Law Commission’s draft articles of 1991 on Jurisdictional Immunities of States and their Property.
The Court recognised that the draft articles were not a treaty and that Lithuania had not ratified the Convention ultimately adopted. But article 11 was nevertheless binding on the state because it reflected customary international law. None of the five exceptions in draft article 11(2) applied. In particular, exception (a) did not apply.
The Court considered the Lithuanian Supreme Court’s findings of fact and concluded that it had given inadequate reasons for regarding the applicant’s employment as being related to the exercise of governmental authority: ‘The Court observes in particular that the applicant was a switchboard operator at the Polish Embassy whose main duties were: recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish Government. Whilst the schedule to the employment contract stated that the applicant could have been called upon to do other work at the request of the head of mission, it does not appear from the case file-nor has the Government provided any details in this connection-that she actually performed any functions related to the exercise of sovereignty by the Polish State.
In its judgment of June 25, 2001 the Supreme Court stated that, in order to determine whether or not it had jurisdiction to hear employment disputes involving a foreign mission or embassy, it was necessary to establish in each case whether the employment relationship in question was one of a public-law nature (acta jure imperii) or of a private-law nature (acta jure gestionis). In the present case, however, the Supreme Court found that it had been unable to obtain any information allowing it to establish the scope of the applicant’s ‘actual duties’. It therefore referred solely to the title of her position, and to the fact that Poland had invoked immunity from jurisdiction, in concluding that the duties entrusted to her had ‘facilitated, to a certain degree, the exercise by the Republic of Poland of its sovereign functions.”

Judges:

Jean-Paul Costa, P

Citations:

15869/02, [2010] ECHR 370, (2010) 51 EHRR 15

Links:

Bailii

Statutes:

European Convention on Human Rights 6-1

Jurisdiction:

Human Rights

Cited by:

Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 June 2022; Ref: scu.403492

Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence: CA 22 Dec 2008

Citations:

[2008] EWCA Civ 1528

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Al-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .

Cited by:

See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
At Court of Appeal – Al-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 26-Jun-2015
Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 7-Apr-2016
The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the . .
See Also – Al-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 June 2022; Ref: scu.291906

Stretford v The Football Association Ltd and Another: CA 21 Mar 2007

The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the Association had agreed to postpone disciplinary proceedings pending the result of other litigation between the parties.
Held: The appeal was dismissed. There was nothing in the exchanges to amount to such an agreement. The court considered the complaint that the arbitration proceedings would not provide a fair trial, and said ‘where parties have voluntarily or (as some of the cases put it) freely entered into an arbitration agreement they are to be treated as waiving their rights under article 6. ‘ Given the greater protection afforded to those subject to arbitration than that given in other countries whose systems had been approved by the ECHR, no infringement of the claimant’s human rights would follow from the referral to arbitration.

Judges:

Sir Anthony Clarke MR, Waller LJ, Sedley LJ

Citations:

[2007] EWCA Civ 238, Times 13-Apr-2007

Links:

Bailii

Statutes:

Arbitration Act 1996 1

Jurisdiction:

England and Wales

Citing:

Appeal from – Stretford v Football Association Ltd and Another ChD 17-Mar-2006
. .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Mullins v Mcfarlane and the Jockey Club QBD 5-May-2006
Whether horse had been wrongly disqualified in a race. . .
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 – R v Switzerland ECHR 4-Mar-1987
(Commission) ‘whereas the inclusion of an arbitration clause in an agreement between individuals amounts legally to partial renunciation of the exercise of those rights defined by Article 6 para. 1; whereas nothing in the text of that Article nor of . .
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 – Regina v Disciplinary Committee of the Jockey Club, ex parte Aga Khan CA 4-Dec-1992
No Judicial Review of Decisions of Private Body
Despite the wide range of its powers, the disciplinary committee of the Jockey Club remains a domestic tribunal. Judicial review is not available to a member. Tne relationship is in contract between the club and its member. Sir Thomas Bingham MR: . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Nordstrom-Janzon v The Netherlands ECHR 1996
The parties had settled an earlier dispute under a joint venture agreement on terms which included a provision that disputes between them should not be settled by the ordinary courts but by a special arbitration procedure. The arbitrators rejected . .
Cited – Oberschlick v Austria ECHR 23-May-1991
A journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of . .
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Pfeifer And Plankl v Austria ECHR 25-Feb-1992
Two of the judges who had acted in Mr Pfeifer’s case also presided at his trial, despite a clear provision of the Code of Criminal Procedure disqualifying them. The Commission dealt with whether the court was ‘established by law’ separately from . .
Cited – Schuler-Zgraggen v Switzerland ECHR 24-Jun-1993
The court considered a contributory invalidity scheme: ‘today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance . . State intervention is not sufficient to establish that Article . .

Cited by:

Cited – Sumukan Ltd v The Commonwealth Secretariat CA 21-Mar-2007
The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Lists of cited by and citing cases may be incomplete.

Contract, Human Rights, Arbitration

Updated: 14 June 2022; Ref: scu.250448

Frateschi v Italy: ECHR 8 Dec 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of P1-1; Violation of Art. 6-1; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings.

Citations:

68008/01, [2005] ECHR 828

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 14 June 2022; Ref: scu.236819

N v Secretary of State for the Home Department: HL 5 May 2005

The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not survice as long.
Held: The issue was not as to her mistreatment in Uganda, but as to the lack of treatment there. It was not a breach of her article rights to be returned. If she had been a special case, the humanitarian reasons for not ordering a return might be overwhelming, but her case was far from unique. The cases were not clear. The ECHR had itself sought to distinguish its own decision in D -v- UK. The fundamental was that article 3 did not require signatory states to admit and treat Aids sufferers from all over the world and to provide them with treatment for life. Nor should the humane treatment of an asylum applicant whilst his application is determined put him in a better position than someone who had not managed to reach these shores.
Baroness Hale said: ‘In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. This is to the same effect as the text prepared by my noble and learned friend, Lord Hope of Craighead. It sums up the facts in D. It is not met on the facts of this case.’

Judges:

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

Citations:

[2005] UKHL 31, [2005] 2 AC 296, [2005] 2 WLR 1124, [2005] INLR 388, (2005) 84 BMLR 126, [2005] 4 All ER 1017, [2005] HRLR 22, [2005] Imm AR 353, [2005] UKHRR 862

Links:

Bailii, House of Lords

Statutes:

European Convention on Human Rights 3

Jurisdiction:

England and Wales

Citing:

Appeal from – N v Secretary of State for the Home Department CA 16-Oct-2003
The applicant had come to the UK to seek asylum, but had advanced HIV/AIDS. When her asylum claim failed she sought permission to continue her stay saying that if returned she would not receive proper treatment and would die. . .
Cited – D v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .

Cited by:

Appealed to – N v Secretary of State for the Home Department CA 16-Oct-2003
The applicant had come to the UK to seek asylum, but had advanced HIV/AIDS. When her asylum claim failed she sought permission to continue her stay saying that if returned she would not receive proper treatment and would die. . .
Applied – ZT v Secretary of State for the Home Department CA 24-Nov-2005
The applicant entered the UK as a visitor, but resisted her return home saying that she had HIV, and would not receive proper treatment for her condition if returned to Zimbabwe.
Held: the prohibition against inhuman and degrading treatment . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Eastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
Cited – Barclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
Cited – McKinnon, Regina (On the Application of) v Secretary Of State for Home Affairs Admn 31-Jul-2009
Assurances for Extradition
Extradition of the defendant was sought to the US to face allegations of hacking into defence computers there. He said this would infringe his article 3 rights, saying that he suffered Autism Spectrum Disorder.
Held: The application failed. US . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 14 June 2022; Ref: scu.224575

Kurt v Turkey: ECHR 25 May 1998

The court referred to ‘the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities’ and to the need to interpret narrowly any exception to ‘a most basic guarantee of individual freedom.’
Enforced disappearance is a violation of article 5 of the European Human Rights Convention in the case of persons within the jurisdiction of a Convention state

Citations:

[1998] ECHR 44, 24276/94, (1998) 27 EHRR 373, (1999) 27 EHRR 373, [1998] HRCD 576, 5 BHRC 1

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 5

Jurisdiction:

Human Rights

Cited by:

Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 June 2022; Ref: scu.165628

Regina v Horseferry Road Justices, Ex Parte Bennett (No 2): QBD 12 Nov 1993

The Crown Prosecution Service may voluntarily disclose documents covered by a public interest immunity certificate if the Treasury Solicitor approves. A list should be maintained of all voluntary disclosures. A question about the propriety of the means used to bring the defendant before the court takes precedence over the desire to prosecute. A committal was quashed after improper means had been used to bring the Defendant within the jurisdiction.

Citations:

Independent 12-Nov-1993, Times 01-Apr-1994, Times 26-Nov-1993, Independent 06-May-1994, [1993] CLY 809

Jurisdiction:

England and Wales

Criminal Practice, Human Rights

Updated: 14 June 2022; Ref: scu.86884