Category: Human Rights

Koutroubas and Others v Greece: ECHR 10 Feb 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1 with regard to the length of the proceedings; Inadmissible under Art. 6-1 as regard to the fairness of the proceedings, and under P1-1; Non-pecuniary damage – financial award; Costs and expenses (domestic proceedings) – claim rejected; Costs and expenses (Convention proceedings) – claim rejected.

Citations:

34362/02, [2005] ECHR 86

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 13 June 2022; Ref: scu.227617

Khan v Royal Air Force Summary Appeal Court: Admn 7 Oct 2004

The defendant claimed that he had gone absent without leave from the RAF as a conscientous objector.
Held: The defendant had not demonstrated by complaint to the RAF that he did object to service in Iraq. In some circumstances where there was no procedure to make his objection known, the failure to do so might be taken account of, but here such a procedure did exist. For article 9, ”law’ (i) must have the status of law, (ii) must be adequately accessible, (iii) must be of sufficient precision to be foreseeable, and (iv) must be compatible with the rule of law. ‘ Although the appellant’s recall papers did not expressly refer to conscientious objection as a ground for claiming exemption, it did sufficiently identify a relevant ground, namely ‘any other grounds . . for compassionate reasons’. Nevertheless there was no relevant manifestation of conscientious objection and no interference with any such manifestation by reason of the appellant’s recall, arrest, prosecution or conviction.

Judges:

Mr Justice Forbes Lord Justice Rix

Citations:

[2004] EWHC 2230 (Admin), Times 28-Oct-2004

Links:

Bailii

Statutes:

European Convention on Human Rights 9.1, Air Force Act 1955, The Reserve Forces (Call Out and Recall) (Exemption Etc) Regulations 1997 (SI 1997 No 307)

Jurisdiction:

England and Wales

Citing:

Cited – Gaygusuz v Austria ECHR 16-Sep-1996
The applicant was a Turkish national resident in Austria. While working there he had paid unemployment insurance contributions. At a stage when he was unemployed he applied for an advance on his pension in the form of emergency assistance. That was . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Cited – Sepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
Cited – Thlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The applicant was a Jehovah’s Witness who had been convicted of insubordination under the Military Criminal Code for refusing to wear a military uniform at a time of general mobilisation. He was subsequently refused appointment as a . .
Cited – X v Federal Republic of Germany ECHR 5-Jul-1977
(Commission) A complaint was brought by a Jehovah’s witness who objected not only to military service but also to compulsory civilian substitute service.
Held: The complaint was inadmissible. The Commission referred to article 4(3)(b) and . .
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 . .
Cited – Johansen v Norway ECHR 14-Oct-1985
(Commission) A pacifist objected to civilian substitute service on the ground that it tended to uphold respect for military service.
Held: The complaint was inadmissible. Referring to article 4(3)(b): ‘The Convention does not prevent a state . .
Cited – Regina (Williamson and Others) v Secretary of State for Education and Employment CA 12-Dec-2002
The claimants sought a declaration that the restriction on the infliction of corporal punishment in schools infringed their human right of freedom of religion. The schools concerned were Christian schools who believed that moderate corporal . .
Cited – Kalac v Turkey ECHR 1-Jul-1997
In exercising his freedom to manifest his beliefs an individual ‘may need to take his specific situation into account.’ ‘The Commission recalls that the expression ‘in accordance with the law’, within the meaning of Article 9(2), requires first that . .
Cited – Krotov v Secretary of State for the Home Department CA 11-Feb-2004
. .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Crime, Human Rights

Updated: 13 June 2022; Ref: scu.215931

Nasser v United Bank of Kuwait: CA 11 Apr 2001

The claimant, a foreign resident, alleged that her jewels had been stolen from a deposit box while in possession of the defendants. The defendants sought security for costs.
Held: An order for security may not legitimately be based on the bare fact of residence abroad, which would amount in most cases to discrimination on grounds of national origin, but requires an established difficulty of enforcement there. There may be a need for caution about treating the four Michalak questions as a series of hurdles, to be surmounted in turn. The court observed, in effect, that questions (iii) and (iv) set out in Michalak tend to merge into another. ‘The new arrangements for funding litigation certainly appear capable of throwing up possible imbalance, in so far as they permit contingency fee arrangements with uplifts potentially recoverable from losing defendants but enable claimants to pursue litigation without insuring or securing the defendants’ fees.’
Mance LJ said: ‘The exercise of discretion conferred by rule 25.13.1(2)(a)(i) raises, in my judgment, different considerations. That discretion must itself be exercised by the courts in a manner which is not discriminatory. In this context at least I consider that all personal claimants or appellants before the English courts must be regarded as the relevant class. It would be both discriminatory and unjustifiable if the mere fact of residence outside any Brussels/Lugano Member State could justify the exercise of discretion to make orders for security for costs. But the purpose of protecting defendants or respondents to appeals against risk to which they would be equally subject in relation to which they would have no protection if the claim or appeal were being brought by a resident of a Brussels or Lugano State. Potential difficulties or burdens of enforcement in States not parties to the Brussels or Lugano Conventions are the rationale for the existence of any discretion. The discretion should be exercised in a manner reflecting its rationale, not so as to put residents outside the Brussels and Lugano sphere at a disadvantaged compared with residents within. The distinction in the rules based on considerations of enforcement cannot be used to discriminate against those whose national origin is outside any Brussels and Lugano State on grounds unrelated to enforcement.’

Judges:

Mance, Simon Brown LJJ

Citations:

[2002] 1 All ER 401, [2002] 1 WLR 1868, [2001] EWCA Civ 556

Links:

Bailii

Statutes:

Civil Procedure Rules 25.15

Jurisdiction:

England and Wales

Citing:

Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
See also – Nasser v United Bank of Kuwait CA 21-Dec-2001
The claimant appealed against a decision to strike out her claim for want of prosecution, and a failure to pay a sum ordered as security for costs. She had put jewelry with the defendants for safe keeping, and alleged it had been stolen. The lock on . .

Cited by:

Cited – Regina on the Application of Clift v Secretary of State for the Home Department Admn 13-Jun-2003
The claimant had been sentenced to 18 years imprisonment. He challenged the differing treatment for parole purposes of those sentenced to more than 15 years, as infringing his human rights, insofar as the decision was retained by the Home Secretary. . .
See Also – Nasser v United Bank of Kuwait CA 21-Dec-2001
The claimant appealed against a decision to strike out her claim for want of prosecution, and a failure to pay a sum ordered as security for costs. She had put jewelry with the defendants for safe keeping, and alleged it had been stolen. The lock on . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Cited – Somerset-Leeke and Another v Kay Trustees and Another ChD 1-May-2003
The defendants sought to challenge a refusal of the court to order security for costs to be made by the claimants on the basis that they had hidden assets to protect themselves against costs if the case did not succeed.
Held: The appeal . .
Cited – Allen v Bloomsbury Publishing Ltd and Another CA 14-Jul-2011
The claimant appealed against an order requiring him to deposit a substantial sum as security for costs for the bringing of his action for copyright infringement in respect of the Harry Potter series of books.
Held: The appeal failed. The . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Human Rights

Updated: 11 June 2022; Ref: scu.200986

Scaravaggi v Italy: ECHR 4 Dec 2003

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings

Citations:

63414/00, [2003] ECHR 660

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 11 June 2022; Ref: scu.190193

Foley v The United Kingdom: ECHR 22 Oct 2002

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
The applicant alleged, in particular, that civil proceedings brought by him were not determined within a reasonable time.

Judges:

J-P Costa P

Citations:

39197/98, [2002] ECHR 687, (2003) 36 EHRR 15

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

Appeal from – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .

Cited by:

Appeal from – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination

Updated: 11 June 2022; Ref: scu.177456

Olsson v Sweden (No 2): ECHR 27 Nov 1992

Hudoc Judgment (Merits and just satisfaction) Lack of jurisdiction; No violation of Art. 6-1; No violation of Art. 8; Violation of Art. 8; Violation of Art. 6-1 (access); No separate issue under Art. 53; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings

Citations:

13441/87, [1992] ECHR 75

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Keegan v United Kingdom ECHR 18-Jul-2006
The claimant had been the subject of a raid by armed police on his home. The raid was a mistake. He complained that the English legal system, in rejecting his claim had not allowed him to assert that the police action had been disproportionate.
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 11 June 2022; Ref: scu.165221

Launikari v Finland: ECHR 5 Oct 2000

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

Citations:

34120/96, [2000] ECHR 454

Links:

Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 11 June 2022; Ref: scu.165943

Kanlibas v Turkey: ECHR 8 Dec 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 2 (in its procedural aspect); Violation of Art. 3 (in its procedural aspect); No separate issue under Art. 3; Non pecuniary damage – financial award in respect of applicant as well his brother’s beneficiaries; Costs and expenses partial award – Convention proceedings.

Citations:

32444/96, [2005] ECHR 834

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 11 June 2022; Ref: scu.236816

Karhuvaara and Iltalehti v Finland: ECHR 16 Nov 2004

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 10; Pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings.

Citations:

53678/00, [2004] ECHR 630

Links:

orldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 11 June 2022; Ref: scu.227752

In re H (Children): CA 2003

The maternal grandmother sought permission to intervene in care proceedings to put herself forward as the carer of her young grandchild. The local authority and the guardian objected to the intervention. The judge had refused it. The grandmother appealed.
Held: The appeal was allowed. When considering such an application for leave to make an application for a residence order, the statutory checklist must be given its proper respect. It was not appropriate to substitute the test ‘has the applicant satisfied the court that he or she has a good arguable case’ for the test set out by Parliament in s. 10(9) of the 1989 Act. Thorpe LJ: ‘The statutory language is transparent. Nowhere does it import any obligation on the judge to carry out independently a review of future prospects.’ and ‘I would observe that all that is said directly in relation to the discharge of the judicial task under s. 34(3) and not directly in relation to the discharge of the judicial task under s. 10(9). In my experience, trial judges have interpreted the decision in Re M (Care: Contact: Grandmother’s Application for Leave) as requiring them, in the determination of applications under s. 10(9) to apply the three-fold test formulated by Ward LJ which has the laudable purpose of excluding from the litigation exercise applications which are plainly hopeless.
I am particularly anxious at the development of a practice that seems to substitute the test, ‘has the applicant satisfied the court that he or she has a good arguable case’ for the test that Parliament applied in s. 10(9). That anxiety is heightened in modern times where applicants under s. 10(9) manifestly enjoy Art 6 rights to a fair trial and, in the nature of things, are also likely to enjoy Art 8 rights.’
and ‘The whole purpose of the decision in Re J was to draw the attention of trial judges to the need to adopt a careful review of the section 10(9) criteria and not to replace those tests simply with a broad evaluation of the applicant’s future prospects of success.’

Judges:

Thorpe LJ, Ferris J

Citations:

[2003] EWCA Civ 369

Statutes:

Children Act 1989 10(9)

Jurisdiction:

England and Wales

Cited by:

Cited – In re R (a Child) (Adoption: Contact) CA 18-Aug-2005
The child was placed for adoption. In the period before adoption, contact with her family continued. The prospective adopters said that this was unsettling.
Held: It would be unusual to make an order for contact against the wishes of the . .
Cited – In re R (A Child) CA 18-Aug-2005
An application was made for continued contact after a proposed adoption. The mother was young and had herself lost her family and taken into care when very young.
Held: Her request for permission to appeal failed. Wall LJ ‘I am reasonably . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 11 June 2022; Ref: scu.230064

Regina (National Union of Journalists) v Central Arbitration Committee and Another: CA 21 Jul 2005

The Union complained that the company had rejected its application for bargaining rights. The company replied that an agreement was in place, but the Union said that that agreement was ineffective.
Held: There was nothing to prevent a company recognising a union which might have only minimal support within the company. Recognition of a union by a company was voluntary. An agreement was ‘in force’ even though it might prove very effective. Human rights law had not gone so far as to recognise a human right for a trades union to be recognised.

Judges:

Buxton, Latham LJJ, Sir Martin Nourse

Citations:

Times 29-Jul-2005

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (National Union of Journalists) v Central Arbitration Committee Admn 19-Nov-2004
The NUJ appealed refusal of collective negotiating rights with the Daily Mirror, having a majority of the members in the sports division. The paper had previously given exclusive rights to a competing union. At the time of the hearing the competing . .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights

Updated: 11 June 2022; Ref: scu.229681

Gascoyne v Customs and Excise and Another: CA 28 Jul 2004

The Commissioners had found what they considered to be an excess of dutiable goods brought into the country by the tax payer, and had forfeited the car. The court considered the effect of the Gora case.
Held: The difficult statements in Gora were obiter. In a case where the deeming provisions under paragraph 5 are applied, the tribunal can reopen those issues: though the tribunal will always have very well in mind, considerations of, or similar to, abuse of process in considering whether such issues should in fact be ventilated before it. The notice was to be read in its context to see whether it raised the issue that the goods were solely for the importer’s personal use. The letter to the customs was a notice of claim. There is a ‘very unsatisfactory mismatch of the two statutory procedures derived from different historical sources. That is something which only the legislature can correct. ‘ It was open to the tribunal to consider issues of proportionality. Here however the appeal was dismissed.
While an importer was not completely shut out from raising own use before the Tribunal, the Tribunal would have to be very conscious of issues of abuse of process when deciding that this could be done.
Buxton LJ drew attention to the impact of the Convention on the tribunal’s jurisdiction. In particular, he said that the potential impact of Article 1 of the First Protocol protecting rights of property is that the deeming provisions of the 1979 Act may not adequately enable the owner to assert his Convention rights. The deeming consequences may not therefore be paramount in every case. They may not necessarily prevent any further consideration by the FTT of the issues of fact relating to the purpose of the importation and the legality of the seizure. The FTT may allow those issues to be re-opened on hearing a restoration appeal, but must also bear in mind general considerations of, or similar to, abuse of process.

Judges:

Brooke LJ VP, Buxton LJ, Carbwath LJ

Citations:

[2004] EWCA Civ 1162, [2005] 2 WLR 222, [2005] Ch 215

Links:

Bailii

Statutes:

Excise Duties (Personal Reliefs) Order 1992, Customs and Excise Management Act 1979 3 139 1141, European Convention on Human Rights 1

Jurisdiction:

England and Wales

Citing:

Appeal from – Gascoyne v Commissioners of Customs and Excise ChD 21-Feb-2003
The applicant challenged the respondent’s policy on restoration of vehicles confiscated on being found to be used for commercial smuggling. Vehicles would only be returned exceptionally. The applicant had written to the respondents who considered . .
Obiter – Gora and others v Commissioners of Customs and Excise and others CA 11-Apr-2003
The appellants challenged decisions of the VAT and Duties Tribunal after seizure of their goods, and in particular whether the cases had been criminal or civil cases and following Roth, whether the respondent’s policy had been lawful and . .
Cited – Lindsay v Commissioners of Customs and Excise CA 20-Feb-2002
The applicant was stopped at Customs carrying cigarettes over the quantity set for personal use. His car was seized, and Customs refused to return it. The cigarettes were for his own use and for sale to family members. He claimed the seizure was an . .
Cited – Commissioners of Customs and Excise v Newbury Admn 3-Mar-2003
The commissioner appealed a finding that a car and other goods they had forfeited should be returned. The owner said that matters had been imported for personal use under the directive.
Held: The directive had direct effect and precedence over . .

Cited by:

Appealed to – Gascoyne v Commissioners of Customs and Excise ChD 21-Feb-2003
The applicant challenged the respondent’s policy on restoration of vehicles confiscated on being found to be used for commercial smuggling. Vehicles would only be returned exceptionally. The applicant had written to the respondents who considered . .
Cited – Davidson v Revenue and Customs Excs 25-Jul-2008
VDT EXCISE – seizure of vehicle and goods – whether seizure challenged – restoration refused – whether appeal against non-restoration of vehicle – whether decision not to restore goods proportionate – whether . .
Cited – Revenue and Customs v Jones and Another CA 18-Jul-2011
HMRC appealed against an order for the return to the owner of goods seized under the 1979 Act. The respondents imported tobacco and alcohol which was seized. They said it had been for personal use. HMRC now said that the Tribunal’s jurisdiction to . .
Explained – HM Revenue and Customs v Dawkin ChD 2008
David Richards J reviewed the authorities and stated the test which has been applied in the tribunals and courts since Gascoyne: ‘The issue is whether the Tribunal misdirected itself in its consideration of the question of abuse of process. The . .
Explained – Customs and Excise v Smith ChD 9-Nov-2005
Lewison J cited the case of Gascoyne saying that it was clear that ‘in the run-of-the-mill case where there has been a failure to give a paragraph 3 notice invoking the condemnation proceedings, the deeming provision will indeed operate against the . .
Cited – Martin v Director of Border Revenue FTTTx 14-Dec-2010
FTTTx EXCISE DUTY – restoration of car – 15 kilos of hand-rolling tobacco, 1,200 cigarettes and 2,050 cigars between three people – whether reasonable not to restore – yes – appeal dismissed . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, Human Rights

Updated: 11 June 2022; Ref: scu.200534

Blecic v Croatia: ECHR 29 Jul 2004

The applicant had for many years before 1992 had a protected tenancy of a publicly-owned flat in Zadar. Under Croatian law a specially-protected tenancy might be terminated if the tenant ceased to occupy the flat for a continuous period of six months, but not if the tenant’s failure was attributable to medical treatment, military service or ‘other justified reasons’. The applicant left to visit her daughter in Rome. War then intervened, conditions in Zadar were bad, and the applicant did not return until a time by which another occupant had, without permission, moved into the flat. The local authority had already initiated proceedings to terminate the tenancy. The applicant claimed that she had had justified reasons for not using the flat. This was accepted by an intermediate court, but rejected at first instance and by the Supreme Court. Thus, without justified reasons, the applicant had no grounds for resisting the termination of her tenancy.
Held: The premises in question were, for purposes of article 8, the applicant’s home. The facts disclosed an interference with the applicant’s right to respect for her home. Under the domestic property law there was no arguable defence to the claim once she had been found to have no justified reasons for her absence. The court considered, at some length, the excepting conditions in article 8. The interference had a legitimate aim. The interference was necessary in a democratic society, namely whether the interference answered a pressing social need and was proportionate to the legitimate aim pursued. The Court respected the margin of appreciation accorded to national authorities and found that the applicant had had a fair opportunity to put forward her views and resist the claim made against her. The claim was inadmissible.
‘State intervention in socio-economic matters such as housing is often necessary in securing social justice and public benefit. In this area, the margin of appreciation available to the State in implementing social and economic policies is necessarily a wide one. The domestic authorities’ judgment as to what is necessary to achieve the objectives of those policies should be respected unless that judgment is manifestly without reasonable foundation. Although this principle was originally set forth in the context of complaints under article 1 of Protocol No 1 . . the State enjoys an equally wide margin of appreciation as regards respect for the home in circumstances such as those prevailing in the present case, in the context of article 8. Thus, the Court will accept the judgment of the domestic authorities as to what is necessary in a democratic society unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued.’

Citations:

59532/00, [2004] ECHR 397, (2005) 41 EHRR 185

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
See Also – Blecic v Croatia ECHR 8-Mar-2006
The applicant alleged that her rights to respect for her home and to peaceful enjoyment of her possessions had been violated on account of the termination of her specially protected tenancy.
Held: Ratione temporis, the court had had no . .
Cited – Manchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Cited – MGN Limited v United Kingdom ECHR 18-Jan-2011
The applicant publisher said that the finding against it of breach of confidence and the system of success fees infringed it Article 10 rights to freedom of speech. It had published an article about a model’s attendance at Narcotics anonymous . .
Cited – Manchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
Cited – ZH and CN, Regina (on The Applications of) v London Boroughs of Newham and Lewisham SC 12-Nov-2014
The court was asked whether the 1977 Act required a local authorty to obtain a court order before taking possession of interim accommodation it provided to an apparently homeless person while it investigated whether it owed him or her a duty under . .
Cited – Watts v Stewart and Others CA 8-Dec-2016
The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security.
Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 11 June 2022; Ref: scu.199860

McVeigh, O’Neill and Evans v United Kingdom: ECHR 1981

(Commission) The Commission was asked whether the retention of fingerprints or samples amounts to an interference with the right to respect for private life.
Held: A distinction was made between the taking of fingerprints, photographs and records, and their retention. As to retention: ‘it is open to question whether the retention of fingerprints, photographs and records of such information amounts to an interference with the applicants’ right to respect for private life under Article 8(1) of the Convention.’
As an island nation it has long been the British way to concentrate controls at its national frontiers, and to maintain a correspondingly greater freedom from random checks inland. This is not always the practice adopted in continental countries which have long land frontiers. But our geography gives us a unique opportunity to target checks where they are likely to be most effective; namely at the ‘choke points’ provided by our ports and airports. That, of course, is where immigration and customs controls are also to be found. But it is only by virtue of the PTA [ie the then Prevention of Terrorism (Temporary Provisions) Act 1989] that the police have any power to stop and question people passing through ports. Immigration checks on EU nationals having in most eases been reduced to a simple passport check, only a separate police check is likely to identify a terrorist suspect if he is a national of an EU country.’

Citations:

(1983) 5 EHRR 71, (1981) 25 DR 15, 8022/77, 8025/77, 8027/77, [1981] ECHR 11, (1982) DR 25

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 11 June 2022; Ref: scu.199814

Nadarajah Senthuran v Secretary of State for the Home Department: CA 16 Jul 2004

The claimant appealed refusal of his claim for asylum, saying that an order for his removal would breach his article 8 rights in separating him from his family.
Held: The Tribunal was wrong to think that Advic said that family ties could never give rise to an article 8 infringement on removal. The issue was one of fact in each case. The applicant had lived with one or other of his siblings since arrival, and there would be a fresh hearing.

Judges:

The President

Citations:

[2004] EWCA Civ 950, Times 03-Aug-2004, [2005] 1 FLR 229

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Salad IAT 2002
. .
Cited – Advia / Advic v United Kingdom ECHR 6-Sep-1995
(Commission) In the ordinary course of events the fact that there are siblings in the same jurisdiction as an applicant does not establish a family life per se. There must be some genuine connection between siblings for family life to obtain, . .

Cited by:

Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 11 June 2022; Ref: scu.199811

Mersey Care NHS Trust, Regina (on the Application of) v Mental Health Review Tribunal and others: Admn 22 Jul 2004

Proceedings before the Mental Health Review Tribnal had been very nearly all held in private. The patient, Ian Brady sought to have his hearing in public.
Held: Beatson J approved the Tribunal’s reasons forfind that their privacy rules were a proper and proportionate departure from the principle of open justice and thus compatible with article 6 of the European Convention on Human Rights:
‘By definition the issues which the mental health review tribunal has to deal with involve personal and clinical confidential information affecting individuals who are often very vulnerable and not always in a position to make an informed decision as to what may or may not be in their best interests. Questions of capacity may frequently arise and clinical progress may be affected by the consequences of publicity.’

Judges:

Beatson J

Citations:

[2005] 1 WLR 2469, [2004] EWHC 1749 (Admin), [2005] 2 All ER 820

Links:

Bailii

Statutes:

Mental Health Act 1983 78, Mental Health Review Tribunal Rules 1983, Administration of Justice Act 1960 12

Jurisdiction:

England and Wales

Citing:

Cited – Pickering v Liverpool Daily Post and Echo Newspapers plc HL 1991
Damages were awarded for a breach of statutory duty where the claimant had suffered loss or damage by reason of the breach. The publication at issue went beyond reporting and ‘it reached deeply into the substance of the matter which the court had . .

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Health, Media, Human Rights

Updated: 11 June 2022; Ref: scu.199832

Government of the United States of America v Barnette and Montgomery (No 2): HL 22 Jul 2004

The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the US court had refused to allow her to be heard in appeals against the liability orders because of her fugitive status, and that the court here ought not to recognise an order which would not be made here in breach of her right to a fair trial.
Held: The fugitive entitlement doctrine is not an arbitrary deprivation of a party’s right to a hearing, but is intended to be a means of securing proper obedience to the orders of the court. The appeal failed.

Judges:

Lord Steyn, Lord Slynn of Hadley, Lord Hoffmann, Lord Clyde, Lord Carswell

Citations:

[2004] UKHL 37, [2004] 4 All ER 289, [2004] 1 WLR 2241

Links:

House of Lords, Bailii

Statutes:

Criminal Justice Act 1988 97

Jurisdiction:

England and Wales

Citing:

Cited – United States Government v Montgomery and Another HL 6-Feb-2001
An English court had power to make a restraining order against the disposal of assets pending an application for confiscation pursuant to a US order. This applied even if the US original judgment predated the date on which the US was added to the . .
Appeal from – Barnette v Government of the United States of America; United States Government v Montgomery (No 2) CA 24-Mar-2003
The appellant sought to resist the registration here of a confiscation order made in the US. She argued it would be contrary to the interests of justice to register it, that the US procedure would be unlawful here under the Convention, the appeal . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
Cited – Tomic v United Kingdom ECHR 14-Oct-2003
The applicant sought to resist his expulsion from the UK.
Held: ‘The Court does not exclude that an issue might exceptionally be raised under Article 6 by an expulsion decision in circumstances where the person being expelled has suffered or . .
Cited – Einhorn v France ECHR 16-Oct-2001
The applicant had resisted extradition from France: ‘ . . the Court reiterates that it cannot be ruled out that an issue might exceptionally be raised under article 6 of the Convention by an extradition decision in circumstances where the fugitive . .
Cited – Pellegrini v Italy ECHR 2002
The court considered the relationship between the Italian civil courts and the Ecclesiastical Court of the Rome Vicariat, a church court classed by the European Court as a court of the Vatican (properly the Holy See), a state which is not a party to . .

Cited by:

Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and Another QBD 29-Oct-2008
The applicant suffered mutiple sclerosis and considered that she might wish to go abroad to end her life. She asked the court to make more clear the guidance provided by the Director as to whether her partner might be prosecuted under section 2(1) . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 11 June 2022; Ref: scu.199579

Hrico v Slovakia: ECHR 20 Jul 2004

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award
There is little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest.

Judges:

Sir Nocholas Bratza

Citations:

49418/99, [2004] ECHR 365, (2005) 41 EHRR 18

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 10

Cited by:

Cited – Spiller and Another v Joseph and Others SC 1-Dec-2010
The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
Held: The defendants’ appeal succeeded, and the fair . .
Cited – Economou v De Freitas QBD 27-Jul-2016
Failed action for defamation on rape allegations
The claimant had been accused by the defendant’s daughter of rape. He was never charged but sought to prosecute her alleging intent to pervert the course of justice. She later killed herself. The defendant sought to have the inquest extended to . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 11 June 2022; Ref: scu.199505

Corden, Re an Application for Judicial Review: QBNI 9 Jul 2004

On his return to the Young Offenders Institution, the applicant was found with positive indications of contact with drugs, and he was removed from association. He complained that his human rights had been infringed, contending that the ‘right’ in issue was the right to association, being the right to maintain relationships with other prisoners as an aspect of the right to private life under Article 8 and the right to liberty within the confines of the prison.
Held: The decision in issue did not involve a criminal charge or a civil right and Article 6 is not applicable.

Judges:

Weatherup J

Citations:

[2004] NIQB 44

Links:

Bailii

Cited by:

Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Prisons, Human Rights

Updated: 11 June 2022; Ref: scu.199400

Kay, Gorman, etc v London Borough of Lambeth, London and Quadrant Housing Trust: CA 20 Jul 2004

The defendant local authority had licenced houses to a housing trust, which in turn granted sub-licences to the claimants who were applicants for housing under homelessness provisions, and who now asserted that they became secure tenants of the authority once the trusts licence was revoked.
Held: The properties were short life properties, being scheduled for eventual demolition. The original arrangement was informal being only later reduced to writing in a formal licence. There was no basis for saying that a non-secure licence became a secure tenancy on the revocation of the head lease. The trust acted as principal and not as the authority’s agent. As to the tenants’ claims under article 8 of the Convention: ‘The fact is that Lambeth has an unqualified right to possession. And on the basis of the majority opinions in Qazi by which we are bound that is a sufficient answer to the claims under Article 8’ As to eth Connors decision: (Auld LJ) ‘Whilst there is, in those general statements of principle, some support for the argument of Mr Luba, they cannot, it seems to us, affect this court’s assessment of the decision in Qazi. The general statement of principle in paragraph 83 of the Court’s judgment is based upon the Court’s decisions in Buckley, and Chapman, to which it refers, both of which were cited to and considered by the House of Lords in Qazi. Connors is therefore only of assistance to the courts of this country in relation to cases involving gypsies.’

Judges:

Lord Justice Auld Lord Justice Latham Lady Justice Arden

Citations:

[2004] EWCA Civ 926, Times 26-Jul-2004, [2005] QB 352, [2004] 3 WLR 1396

Links:

Bailii

Statutes:

Housing Act 1985 Part IV

Jurisdiction:

England and Wales

Citing:

Cited – Bruton v London and Quadrant Housing Trust HL 24-Jun-1999
The claimant sought to oblige the respondent to repair his flat under the 1988 Act. The respondent replied that the arrangement was a licence only, and not protected under the Act.
Held: The housing association had a temporary licence to . .
Cited – Family Association v Jones CA 1990
The association as licensee of a local authority granted what was described as a licence to the defendant to occupy premises on a temporary basis. They sought possession.
Held: A tenancy had been granted. As to the argument that there were . .
Cited – Westminster City Council v Clarke HL 29-Apr-1992
An occupant of a hostel for homeless and vulnerable single men had only a licence to occupy the room, and was not a tenant. There was a resident warden and a team of support workers. The intention was that residents should use the hostel as a . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society and Others CA 1-Nov-1996
Public policy rendered an assignment of a remedy void, where the assignment was an attempt to split it from another remedy. For the purpose of construing a contract the law excludes from the admissible factual background the previous negotiations of . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .

Cited by:

Cited – Price and others v Leeds City Council CA 16-Mar-2005
The defendant gypsies had moved their caravans onto land belonging to the respondents without planning permission. They appealed an order to leave saying that the order infringed their rights to respect for family life.
Held: There had been . .
Appeal from – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Islington v Uckac and Another CA 30-Mar-2006
The council’s tenant had unlawfully secured assignment of a secure tenancy to the defendant. The council sought possession.
Held: A secure tenancy granted by an authority pursuant to a misrepresentation by the tenant is nonetheless valid. The . .
Cited – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
Lists of cited by and citing cases may be incomplete.

Housing, Local Government, Human Rights

Updated: 11 June 2022; Ref: scu.199315

Pla and Puncernau v Andorra: ECHR 13 Jul 2004

A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to pass to the children and grandchildren of the testatrix’s daughters. She died in 1949. In 1995 Francesc-Xavier made a will in favour of his wife, but in a codicil he left the assets inherited under his mother’s will to his wife for life and then to their adopted son Antoni, who was born in 1966 and adopted by them, in Spain, in 1969. The assets were described in the report as real estate. Francesc-Xavier died in 1996.
Two great-granddaughters of the testatrix applied to the Tribunal des Batlles to have the codicil declared void. That Tribunal dismissed the application on the basis that the case was governed by the testatrix’s intention determined by the terms of her will, that there was no statutory or constitutional provision relating to adopted children at that time in Andorra, that customary law was derived partly from Roman law under which adopted children ranked equally with natural-born children, and accordingly the testatrix, by making no express exclusion of adopted children, should not be taken to have excluded them by implication. I understand that legislation was introduced in 1958 putting adopted children on an equality, but that this did not affect the matter.
The great-granddaughters appealed, and in 2000 the High Court of Justice allowed the appeal and set aside the codicil in its entirety. It agreed that the matter was governed by the testatrix’s expressed intention when she made her will, and that Antoni could not rely on the legislation of 1958. But it was significant that in the first half of the 20th century adoption was virtually unknown in Andorra, that provisions of Roman law ‘could not easily be transposed’ to Andorran families living at that time, that in any event the relevant Spanish legislation (under which Antoni had been adopted) gave an adopted child rights of inheritance from his or her adoptive parents but not from more remote family members; so that, by not explicitly including adopted children, the testatrix should not be taken to have intended to include her son’s adopted son.
Antoni and his mother made two attempts to have this ruling annulled by the national courts in Andorra, but those attempts failed. They then brought the claim in the ECHR, saying that the appeal court had acted in breach of articles 8 and 14 by allowing the appeal from the decision of the Tribunal, and they maintained that the case should be governed by private law in the light of Andorran law in force in 1996, when Francesc-Xavier died, and the Convention. The ECHR took the relevant national legislation to be that in force in 1939 and 1949 (rather than 1996).
The government of Andorra took a preliminary point that no relevant ‘family life’ was affected because Antoni had been adopted 20 years after the testatrix had died, but the ECHR ruled unanimously that inheritance by children and grandchildren does fall within the scope of article 8, The Court was divided on the main issue, with a majority concluding that Antoni’s rights under articles 8 and 14 had been infringed, but with two members of the court, namely Judge Bratza and Judge Garlicki, dissenting. The majority began by pointing out that previous cases of this kind before the ECHR had concerned the discriminatory effect of statutes in various member states, whereas the instant case related to the interpretation or construction of a testamentary disposition. They went on to record the principle that domestic law should normally be determined by the domestic courts, all the more so with a disposition such as a will. ‘Accordingly . . an issue of interference with private and family life could only arise under the Convention if the national courts’ assessment of the facts or domestic law were manifestly unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the Convention.’
The majority went on to find that the decision of the appeal court was blatantly inconsistent with the Convention: ‘In the present case the Court observes that the legitimate and canonical nature of the marriage contracted by the first applicant’s father [Francesc-Xavier] is indisputable. The sole remaining question is therefore whether the notion of ‘son’ in [the testatrix’s] will extended only, as the [appeal court] maintained, to biological sons. The Court cannot agree with that conclusion of the Andorran appellate court. There is nothing in the will to suggest that the testatrix intended to exclude adopted grandsons. The Court understands that she could have done so, but as she did not the only possible and logical conclusion is that this was not her intention.
‘The [appeal court’s] interpretation of the testamentary disposition, which consisted in inferring a negative intention on the part of the testatrix and concluding that since she did not expressly state that she was not excluding adopted sons this meant that she did intend to exclude them, appears over contrived and contrary to the general legal principle that where a statement is unambiguous there is no need to examine the intention of the person who made it.
Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.
In the present case the [appeal court’s] interpretation of the testamentary disposition in question had the effect of depriving the first applicant [Antoni] of his right to inherit under his grandmother’s estate and benefiting his cousin’s daughters in this regard. Furthermore, the setting aside of the codicil of 3 July 1995 also resulted in the second applicant [Antoni’s mother] losing her right to the life tenancy of the estate assets left her by her late husband.
Since the testamentary disposition, as worded by [the testatrix], made no distinction between biological and adopted children it was not necessary to interpret it in that way. Such an interpretation therefore amounts to the judicial deprivation of an adopted child’s inheritance rights.’
‘The Court reiterates that the Convention, which is a dynamic text and entails positive obligations for states, is a living instrument, to be interpreted in the light of present-day conditions and that great importance is attached today in the Member States of the Council of Europe to the question of equality between children born in and children born out of wedlock as regards their civil rights. Thus, even supposing that the testamentary disposition in question did require an interpretation by the domestic courts, that interpretation could not be made exclusively in the light of the social conditions existing when the will was made or at the time of the testatrix’s death, namely in 1939 and 1949, particularly where a period of 57 years had elapsed between the date when the will was made and the date on which the estate passed to the heirs. Where such a long period has elapsed, during which profound social, economic and legal changes have occurred, the courts cannot ignore these new realities. The same is true with regard to wills : any interpretation should endeavour to ascertain the testator’s intention and render the will effective, while bearing in mind that ‘the testator cannot be presumed to have meant what he did not say’ and without overlooking the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpreted in the Court’s case law.’

Citations:

69498/01, [2004] ECHR 334, (2006) 42 EHRR 25, [2004] 2 FCR 630

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Larkos v Cyprus ECHR 18-Feb-1999
The applicant had rented a house from the government, but was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would . .

Cited by:

Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Judgment – Pla and Puncernau v Andorra ECHR 8-Aug-2011
Execution – The court was asked to interpret a testamentary provision and as to the right of an adopted son to inherit from his grandmother under her will.
When a child is adopted under a full adoption procedure, the child is in the same legal . .
Cited – Hand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
Cited – Khurshid Mustafa And Tarzibachi v Sweden ECHR 8-Jun-2011
The Strasbourg court considered a claim by applicants who had been evicted by a court order at the suit of their landlords, who had determined their tenancy for installing a satellite dish in breach of covenant.
Held: This infringed the . .
Cited – McDonald v McDonald and Others SC 15-Jun-2016
Her parents had bought a house and granted tenancies to their adult daughter (the appellant), who suffered a personality disorder. They became unable to repay the mortgage. Receivers were appointed but the appellant fell into arrears with the rent. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Wills and Probate, Adoption

Updated: 11 June 2022; Ref: scu.198704

Lough and others v First Secretary of State Bankside Developments Ltd: CA 12 Jul 2004

The appellants challenged the grant of planning permission for neighbouring land. They sought to protect their own amenities and the Tate Modern Gallery.
Held: The only basis of the challenge was under article 8. Cases established of a breach of Art 8 in these circumstances had been for very serious breaches only. No absolute rights of amenity existed. Here the interference with rights was not by the state, but another private individual. Article 8 made no significant impact upon the task to be performed by the Inspector. The Inspector struck a balance which was entirely in accord with the requirements of Article 8 and the jurisprudence under it.

Judges:

Lord Justice Pill Lord Justice Keene And Lord Justice Scott Baker

Citations:

[2004] EWCA Civ 905, Times 29-Jul-2004, [2004] 1 WLR 2557

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Lough and others v First Secretary of State Admn 21-Jan-2004
The claimants challenged the grant of planning permission for neighbouring land. . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Lopez Ostra v Spain ECHR 9-Dec-1994
A waste treatment plant was built close to the applicant’s home in an urban location and the plant released fumes and smells which caused health problems to local residents.
Held: A duty exists to take reasonable and appropriate measures to . .
Cited – Guerra and Others v Italy ECHR 19-Feb-1998
(Grand Chamber) The applicants lived about 1km from a chemical factory which produced fertilizers and other chemicals and was classified as ‘high risk’ in criteria set out by Presidential Decree.
Held: Failure by a government to release to an . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Gosbee and Another, Regina (on the Application Of) v First Secretary of State and Another Admn 20-Mar-2003
A bungalow was not demolished as required by a condition when planning permission for a new dwelling was given. An enforcement notice was issued requiring the demolition of the bungalow.
Held: ‘in determining whether the interference is . .
Cited – Hatton and Others v The United Kingdom ECHR 8-Jul-2003
More Night Flights No Infringement of Family Life
The claimants complained that the respondent had acted to infringe their rights. They were residents living locally to Heathrow Airport. They claimed the respondent had increased the number of night flights, causing increased noise, but without . .
Cited – Powell and Rayner v The United Kingdom ECHR 21-Feb-1990
The applicants complained of the noise generated by Heathrow Airport saying that it affected their human rights to enjoy their private life and possessions.
Held: Whether the case was analysed in terms of a positive duty on the state to take . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Connors v The United Kingdom ECHR 27-May-2004
The applicant gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .

Cited by:

Appealed to – Lough and others v First Secretary of State Admn 21-Jan-2004
The claimants challenged the grant of planning permission for neighbouring land. . .
Cited – O’Brien and others v South Cambridgeshire District Council CA 24-Oct-2008
The court considered the use of injunctions to restrain breaches of planning control. The applicants were gypsies who had taken up occupation of land in mobile homes. The respondent had given them twelve months for them to find alternative . .
Lists of cited by and citing cases may be incomplete.

Planning, Human Rights

Updated: 11 June 2022; Ref: scu.198852

Pabla Ky v Finland: ECHR 22 Jun 2004

A member of the Finnish Parliament who also sat as an expert member of the Court of Appeal was said to lack independence as a judge.
Held: The complaint was rejected. Also there was no no objective justification for the applicant’s fear as to a lack of independence and impartiality of the Court of Appeal resulting from the dual role of the expert member. In distinguishing Procola and McGonnell, the Court pointed out that the expert member ‘had not exercised any prior legislative, executive or advisory function in respect of the subject-matter or legal issues before the Court of Appeal for decision in the applicant’s appeal’.

Citations:

47221/99, [2004] ECHR 279, [2006] 42 EHRR 34

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Citing:

Distinguished – Procola v Luxembourg ECHR 28-Sep-1995
A dairy association complained of milk quota orders made with retrospective effect under domestic provisions. A regulation had been submitted in draft to the Conseil d’Etat, which had advised that a statute was necessary to give retrospective effect . .
Distinguished – McGonnell v The United Kingdom ECHR 8-Feb-2000
The applicant owned land in the parish of St Martin’s in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a . .

Cited by:

Cited – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Barclay and Others, Regina (on the Application of) v The Seigneur of Sark and Another Admn 18-Jun-2008
The claimants said that the the laws restricting residence and voting rights and oher constitutional arrangements on the Isle of Sark were in breach of European law, and human rights law.
Held: The claims failed. The composition of Chief Pleas . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional

Updated: 11 June 2022; Ref: scu.198558

Koc v Turkey: ECHR 22 Jun 2004

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to the length of the proceedings ; Violation of Art. 6-1 with regard to the lack of independence and impartiality ; Non-pecuniary damage – financial award ; Costs and expenses partial award

Citations:

32580/96, [2004] ECHR 269, [2004] ECHR 269, [2011] ECHR 1667

Links:

Worldlii, Bailii, Bailii

Human Rights

Updated: 11 June 2022; Ref: scu.198279

Pavletic v Slovakia: ECHR 22 Jun 2004

ECHR Judgment (Merits and just satisfaction) Preliminary objections dismissed (victim, non-exhaustion of domestic remedies) ; Violation of Art. 5-3 ; Violation of Art. 5-4 ; Violation of Art. 5-5 ; No separate issue under Art. 13 ; No violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award
The applicant’s detention prior to trial, for a period of two years, had lasted an unreasonably long time.
Held: The European court found a violation of article 5(3). There was also a breach of article 5(4) relating to an application which the applicant had made to the public prosecutor to be released on bail. The prosecutor had transmitted the request to the domestic court, which had failed to deal with it. However the applicant’s detention on remand had been justified. In dealing with the claim under article 41, it noted that the period spent on remand had been deducted from the prison sentence which the applicant was ordered to serve following his conviction; and the court accepted that the deduction of a period of detention from the ultimate sentence removed the need for any further award in respect of non-pecuniary loss arising from a violation of article 5(3).

Citations:

39359/98, [2004] ECHR 280

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 5(3)

Cited by:

Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Damages, Prisons

Updated: 11 June 2022; Ref: scu.198282

Broniowski v Poland: ECHR 22 Jun 2004

Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion of domestic remedies) ; Violation of P1-1 ; Just satisfaction reserved ; Costs and expenses partial award – Convention proceedings
Grand Chamber – the principle of lawfulness inherent in A1P1 ‘presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application.’

Citations:

31443/96, [2004] ECHR 274, (2005) 40 EHRR 21, 16 BHRC 573

Links:

Worldlii, Worldlii, Bailii

Statutes:

European Convention on Human Rights A1P1

Cited by:

See Also – Broniowski v Poland ECHR 28-Sep-2005
. .
See Also – Broniowski v Poland ECHR 30-Sep-2009
. .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 11 June 2022; Ref: scu.198275

Aziz v Cyprus: ECHR 22 Jun 2004

Depriving a Turkish Cypriot living in the Government-controlled area of Cyprus of the right to vote was a breach of article 3. However: ‘States enjoy considerable latitude to establish rules within their constitutional order governing . . the composition of the Parliament, and . . the relevant criteria may vary according to the historical and political factors peculiar to each States.’

Citations:

69949/01, [2004] ECHR 271

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 3

Cited by:

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

Human Rights, Elections

Updated: 11 June 2022; Ref: scu.198281

Leszczynska v Poland: ECHR 22 Jun 2004

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to the first set of proceedings ; Inadmissible under Art. 6-1 with regard to the second set of proceedings ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses partial award – Convention proceedings

Citations:

47551/99, [2004] ECHR 277

Links:

Worldlii, Bailii

Human Rights

Updated: 11 June 2022; Ref: scu.198277

Clinique Mozart Sarl v France: ECHR 8 Jun 2004

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

Citations:

46098/99, [2004] ECHR 250, [2004] ECHR 250

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 11 June 2022; Ref: scu.198284

Thompson v The United Kingdom: ECHR 15 Jun 2004

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention proceedings

Citations:

36256/97, [2004] ECHR 267, [2004] ECHR 267

Links:

Worldlii, Bailii

Cited by:

Cited – Mistry v Thakor and others CA 5-Jul-2005
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Criminal Practice

Updated: 11 June 2022; Ref: scu.198174

Tamminen v Finland: ECHR 15 Jun 2004

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

Citations:

40847/98, [2004] ECHR 266, [2004] ECHR 266, [2009] ECHR 2273

Links:

Worldlii, Bailii, Bailii

Human Rights

Updated: 11 June 2022; Ref: scu.198176

Editions Plon (Societe) v France: ECHR 18 May 2004

Hudoc Judgment (Merits and just satisfaction) No violation of Art. 10 with regard to the interim injunction ; Violation of Art. 10 with regard to the permanent injunction ; Pecuniary damage – claim rejected ; Costs and expenses partial award – domestic proceedings ; Costs and expenses award – Convention proceedings

Citations:

58148/00, (2006) 42 EHRR 36, [2004] ECHR 200

Links:

Worldlii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Associated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
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

Updated: 10 June 2022; Ref: scu.196979

Andrews v Reading Borough Council: QBD 29 Apr 2004

The claimant sought damages for increased road noise resulting from traffic control measures taken by the respondent.
Held: The defendants action to strike out the claim could not succeed. They had not shown that the claim was unarguable, however difficult were the prospects of success.

Judges:

Mr Justice Collins

Citations:

[2004] EWHC 970 (QB)

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Hatton and Others v The United Kingdom ECHR 8-Jul-2003
More Night Flights No Infringement of Family Life
The claimants complained that the respondent had acted to infringe their rights. They were residents living locally to Heathrow Airport. They claimed the respondent had increased the number of night flights, causing increased noise, but without . .
Cited – Anufrijeva v Secretary of State for the Home Department CA 22-Mar-2002
Three asylum-seekers brought claims of breach of their Article 8 rights. One complained of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum . .
Cited – Regina v Secretary of State for the Home Department ex parte Anufrijeva HL 26-Jun-2003
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Damages, Human Rights

Updated: 10 June 2022; Ref: scu.196629

Doerga v The Netherlands: ECHR 27 Apr 2004

ECHR Judgment (Merits and just satisfaction) Violation of Art. 8 ; Costs and expenses partial award – Convention proceedings

Citations:

50210/99, [2004] ECHR 175

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – Doerga v The Netherlands ECHR 8-Aug-2011
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 10 June 2022; Ref: scu.196504

N v the Secretary of State for the Home Department: CA 16 Oct 2003

The applicant entered the UK illegally. She was unwell and was given treatment. She resisted removal on the grounds that the treatment available to her would be of such a quality as to leave her life threatened.
Held: D -v- UK should be strictly confined. The applicant’s condition was not one created by the respondent, and did not result from any mistreatment. ‘where the complaint in essence is of want of resources in the applicant’s home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State.’

Judges:

Lord Justice Laws Lord Justice Dyson Lord Justice Carnwath

Citations:

[2003] EWCA Civ 1369, Times 23-Oct-2003

Statutes:

European Convention on Human Rights 3

Jurisdiction:

England and Wales

Citing:

Strictly Confined – 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 – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Tyrer v The United Kingdom ECHR 25-Apr-1978
Three strokes with a birch constituted degrading punishment for a 15-year-old boy, which violated article 3 having regard to the particular circumstances in which it was administered.
Preliminary objection rejected (disappearance of object of . .
Cited – BB v France ECHR 7-Sep-1998
Hudoc Judgment (Struck out of the list) Struck out of the list (solution of the matter)
The applicant came from the Congo. He came to France, where he was a failed asylum seeker and a convicted drug . .
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 – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Henao v Netherlands ECHR 24-Jun-2003
The applicant was a national of Colombia. While serving a prison sentence in Holland for a drugs offence he was diagnosed HIV-positive. He sought to resist expulsion to Columbia on Article 3 grounds.
Held: ‘ . . the Court considers that, . .

Cited by:

Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 10 June 2022; Ref: scu.187005

Regina v Williams; Regina v Saunby; Regina v Ashby; Regina v Schofield; Regina v Marsh, Regina v Webb; Regina v Leese; Regina v Dodds; Regina v Clarkson; Regina v English: CMAC 30 Jul 2001

The appellants variously claimed their convictions should be set aside because the court which had heard their cases was not independent and impartial. They alleged in particular that questions of military discipline and morale would affect the court process making it unfair. The merits of the decision to prosecute were outside the ambit of article 6, and, even if it were not, there was no vice in those considerations affecting the decision.

Judges:

Laws LJ, Turners and McCombe JJ

Citations:

Gazette 04-Oct-2001, Times 08-Oct-2001

Jurisdiction:

England and Wales

Citing:

Cited – Findlay v The United Kingdom ECHR 25-Feb-1997
The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights

Updated: 10 June 2022; Ref: scu.166230

Secretary of State for Home Department, Regina (on the Application of) v Mental Health Review Tribunal: Admn 7 Oct 2004

Order for release of mental patient conditional upon facilities being made available – infringement of human rights through continued detention.

Judges:

The Honourable Mr Justice Collins

Citations:

[2004] EWHC 2194 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department and Another ex parte IH HL 13-Nov-2003
The appellant had been found unfit to plead after assaulting his son, and he had been detained under the 1964 Act. He alleged his detention was in breach of his right to a fair trial. His release had been authorised subject to the appointment of a . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 10 June 2022; Ref: scu.215933

Hemsworth, Re an Application for Judicial Review: QBNI 26 Apr 2004

Application for Judicial Review of a decision of the Legal Aid Department on an application for legal aid under the green form scheme in connection with preparatory legal work for the Inquest into the death of the applicant’s husband. This application involves two broad attacks, the first being to the particular decision and the second being to the compatibility of the green form scheme with the procedural requirements of Article 2 of the European Convention.

Judges:

Weatherup J

Citations:

[2004] NIQB 26

Links:

Bailii

Northern Ireland, Coroners, Human Rights, Legal Aid

Updated: 10 June 2022; Ref: scu.196127

National Westminster Bank Plc, Malhan Malhan v Malhan, The Secretary of State for Consitutional Affairs and Lord Chancellor: ChD 22 Apr 2004

Judges:

Vice-Chancellor, The Vice-Chancellor

Citations:

[2004] EWHC 847 (Ch)

Links:

Bailii

Statutes:

Law of Property Act 1925 2(1)

Jurisdiction:

England and Wales

Citing:

Cited – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
Lists of cited by and citing cases may be incomplete.

Land, Human Rights, Banking

Updated: 10 June 2022; Ref: scu.195975

Regina v Edwards, Denton and Jackson Hendley Crowley; Attorney General’s Reference (No. 1 of 2004): CACD 29 Apr 2004

The court considered references by the Attorney-General with regard to offences imposing a burden of proof upon the defendant. ‘An evidential burden will be discharged by a defendant by ensuring that there is some evidence before the court which could result in a reasonable court or jury determining the issue which is the subject of the reverse burden in the accused’s favour. A classic every day example is self defence; if the defendant adduces some evidence raising the issue, the prosecution then has the burden of disproving self defence. The defendant does not have to prove that he was acting in self defence. Rather the prosecution must prove beyond reasonable doubt that he was not so acting. A ‘legal burden’ is a greater hurdle for the defendant to clear, as he must satisfy a court on the balance of probabilities (but not beyond reasonable doubt) on the issues that are the subject of the reverse burden. The imposition of an evidential burden is therefore considerably easier to justify than a legal burden. ‘ The court gave detailed guidance on when a reverse legal burden of proof might be acceptable. A reverse evidential burden should not be a problem. The court also explained and described the different purposes and consequences of pre-trial and preparatory hearings. ‘Courts should strongly discourage the citation of authority to them other than the decision of the House of Lords in Johnstone and this guidance. Johnstone is at present the latest word on the subject.’

Judges:

Mr Justice Elias Mr Justice Gage Lord Justice Judge Justice, Lord Chief Justice Mr Justice Stanley Burnton

Citations:

[2004] EWCA Crim 1025, Times 30-Apr-2004, Gazette 20-May-2004, [2004] 1 WLR 2111, [2004] 2 Cr App R(S) 27

Links:

Bailii

Statutes:

European Convention on Human Rights 6, Criminal Procedure and Investigations Act 1996 29

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .

Cited by:

Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Director of Public Prosecutions v Barker Admn 19-Oct-2004
Driving whilst disqualified – ban expired but no test taken – burden of evidence . .
Cited – Goodyear, Karl, Regina v CACD 19-Apr-2005
The defendant complained that he had pleaded guilty to a charge of corruption on the basis of an indication from the judge that he would not receive a custodial sentence. Having pleaded guilty he had then been sentenced to a six months prison . .
Applied – Regina v L, G etc CACD 17-Jun-2005
A cash sum of andpound;87,000 was transferred. The defendants appealed against a ruling under the 1996 Act, saying that at the time of its transfer, the property did not represent criminal property under the Act.
Held: The pre-conditions for . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights, Evidence

Updated: 10 June 2022; Ref: scu.196055

Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for the Foreign and Commonwealth Affairs: CA 29 Apr 2004

The claimant sought damages for having had its licence to catch Patagonian toothfish off South Georgia revoked, saying that it had infringed its property rights under the Convention.
Held: Though the Convention rights had been extended to cover the Falkland Islands and its dependencies, the rights under the first protocol had not been so extended, and the claim failed. In issuing an instruction the Queen had acted in right of the United Kingdom, and not the overseas territory, by reason of the particular facts of that case, and in particular (i) the fact that it was concerned with a dependent territory, not a sovereign state; (ii) the small size, population and resources of the territory; and (iii) the wording of its constitution. ‘…. In respect of the Protocol, South Georgia does not fall within its legal space on the ground that the Convention applies there, or for any other reason, or because the June instruction was unlawful as contrary to the law of England and Wales ….. ‘

Judges:

Pill, Thomas and Jacob LJJ

Citations:

[2004] EWCA Civ 527, Times 10-May-2004, [2005] I QB 93

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

See also – Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited CA 30-Oct-2002
Order confirmed. ‘while for my part I have found nothing to demonstrate bad faith on the part of the Secretary of State, the history of this case has demonstrated to my mind that the approach taken to the public decisions that had to be made fell . .
Appeal from – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs Admn 22-Jul-2003
The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy . .
Cited – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
Cited – X v Belgium ECHR 1961
The Commission considered claims by long standing residents of the Belgian Congo who suffered as a result of upheavals on independence. One claim was based upon exclusion, albeit of Belgian nationals, from participation in the elections held in . .

Cited by:

Cited – Fitzgibbon v HM Attorney General ChD 9-Feb-2005
The claimant sought declarations that the government of Australia was not being conducted in accordance with the 1900 Act as it should be.
Held: Though the Act was an English Act, the Courts of England now have no jurisdiction over Australia: . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
Appeal from – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Lists of cited by and citing cases may be incomplete.

Damages, Agriculture, Human Rights

Updated: 10 June 2022; Ref: scu.196090

Graham, Re an Application for Judicial Review: QBNI 2 Apr 2004

The applicant sought judicial review of his cellular confinement after being found to have assaulted a prison guard.
Held: Weatherup J said: ‘the loss of association or loss of privileges as a consequence of a prison adjudication do not constitute a breach of Article 8. First of all there must be a ‘right’ which has a basis in domestic law. In the prison disciplinary context the matters to which the applicant refers are not rights but privileges that are removed for disciplinary reasons. Secondly the right must be ‘civil’ in nature as determined ‘by reference to the substantive contents and effects of the right’ (Konig v Germany [1980] 2EHRR 170 at paragraph 89). Again the matters to which the applicant refers are privileges. Thirdly there must be a ‘determination’ of the civil right in the proceedings. This requires a direct relationship between the dispute and the right. In prison adjudications the impact on privileges is indirectly engaged by the contest. In professional disciplinary proceedings the civil right to practice a profession is directly engaged in the dispute. That the loss of prison privileges may have repercussions on private life or family life would not involve a dispute as to civil rights for the purposes of Article 6. Nor would loss of earnings involve a dispute as to civil rights for the purposes of Article 6. ‘

Judges:

Weatherup J

Citations:

[2004] NIQB 24

Links:

Bailii

Statutes:

Prison and Young Offenders Centre Rules (Northern Ireland) 1995, European Convention on Human Rights 8

Cited by:

Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Prisons, Human Rights

Updated: 10 June 2022; Ref: scu.195913

In re J (a child) (Child returned abroad: Convention Rights, Human Rights): CA 2 Apr 2004

The mother resisted an order requiring her to return to Saudi Arabia her child, saying that his human rights would be breached in Saudi.
Held: The court could apply the convention only as regards actions which would take place in a convention country. Speed was essential in dealing with international child abduction cases. Whilst there could be no criticism of the judge’s ‘impeccable direction’ on the applicable legal principles, the court allowed the father’s appeal on the ground that the judge had ‘elevated this specific anxiety above a level that the evidence justified.’ Accordingly it should not have had such a decisive effect in what had earlier been described as ‘an otherwise balanced judgment.’

Judges:

Thorpe LJ, Wall LJ, Gage J

Citations:

[2004] EWCA Civ 417, Times 14-Apr-2004, [2004] 2 FLR 85

Links:

Bailii

Statutes:

Children Act 1989 8, Hague Convention on the Civil Aspects of International Child Abduction

Jurisdiction:

England and Wales

Cited by:

Appeal from – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 10 June 2022; Ref: scu.195742