Stanley Brunton J
[2004] EWHC 776 (QB)
Agricultural Holdings Act 1986, European Convention on Human Rights
England and Wales
Updated: 10 June 2022; Ref: scu.195571
The claimants were members of the Jesus Fellowship church, living communally. Their claim for housing benefit was rejected on the basis that the payment made was not by way of a commercial rental.
Held: The court could take into account the background of the payments in deciding whether the tenancy agreements were on a commercial basis. To take that into account was not discrimination infringing their freedom of religion. The question posed was one of fact, and the Convention did not operate to make evidence inadmissible on such an issue.
Lord Justice Aldous Lord Justice Peter Gibson Lord Justice Jacob
[2004] EWCA Civ 409, Times 23-Apr-2004, [2004] 3 All ER 387
Housing Benefit (General) Regulations 1987 7
England and Wales
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.195490
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses – claim rejected
36258/97, [2004] ECHR 134, [2004] ECHR 135
European Convention on Human Rights 5-3
Updated: 10 June 2022; Ref: scu.195508
The student had been unlawfully excluded from school. The school had not complied with the procedural requirements imposed by the Act.
Held: Though the 1996 Act placed the responsibilty for exclusion upon the local authority, the head and school must also follow the rules. The duty on the local authority was a fallback duty. The school had failed to make a decision within the 45 day limit on temporary exclusions. The concession that a head teacher of a publicly maintained school was exercising a public role was correct.
Lord Justice Clarke Lord Justice Sedley The President
[2004] EWCA Civ 382, Times 09-Apr-2004, Gazette 08-Apr-2004, [2004] QB 1231
European Convention on Human Rights, Education Act 1996 19, School Standards and Framework Act 1998
England and Wales
Appeal from – Ali v Head and Governors of Lord Grey School QBD 27-Jun-2003
The claimant had been expelled from school unlawfully, and now sought damages for the breach of his right to an education.
Held: The claimant had received and had refused appropriate offers of alternate schools. The duty was imposed generally . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
Cited – Campbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
Mentioned – Whitman v United Kingdom ECHR 4-Oct-1989
Commission decision – a reasonable denial of the right to education does not violate the Convention. . .
Cited – In re L (a minor by his father and litigation friend); Regina v Governors of J School, ex parte L HL 27-Feb-2003
A pupil had been excluded from school, then ordered to be re-instated by the independent appeal panel. The teachers’ union objected to his return to the school. The head-teacher arranged for him to be taught and supervised at school by a non-union . .
Cited – Yanasik v Tukey ECHR 1994
(Commission) A reasonable denial of the right to education does not violate the Convention. . .
Cited – Sulak v Turkey ECHR 1996
(Commission) A reasonable denial of the right to education does not violate the Convention. . .
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 – Begum, Regina (on the Application of) v Denbigh High School Admn 15-Jun-2004
A schoolgirl complained that she had been excluded from school for wearing a form of attire which accorded with her Muslim beliefs.
Held: The school had made great efforts to establish what forms of wear were acceptable within the moslem . .
Cited – SB, Regina (on the Application of) v Denbigh High School CA 2-Mar-2005
The applicant, a Muslim girl sought to be allowed to wear the gilbab to school. The school policy which had been approved by Muslim clerics prohibited this, saying the shalwar kameeze and headscarf were sufficient. The school said she was making a . .
Appeal From – Ali v Head Teacher and Governors of Lord Grey School HL 22-Mar-2006
The claimant had been accused with others of arson to school property. He was suspended for the maximum forty five day period. The school then invited the family to discuss arrangements to return to the school, but the family did not attend. After . .
At Court of Appeal – Ali v United Kingdom ECHR 11-Jan-2011
The applicant had been excluded from school after a fire for which he was suspected pending completion of the police enquiry, which extended beyond the maximum allowed. Though the investigation was completed with no action against him, the scholl . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.195018
Objection was made to the removal of an old on-license by the magistrates.
Held: The justices had had no jurisdiction under section 15 because, at the time the application came before the justices, the premises of Mim’s Bar were not ‘occupied’ or about to be ‘occupied’ for a ‘public purpose’ within the meaning of section 15(1)(a).
Lightman J
[2004] EWHC 446 (Admin)
England and Wales
Appeal from – Bushell and Others, Regina (on the Application of) v Newcastle Licensing Justices and others Admn 31-Jul-2003
The claimants objected to a forced transfer of an unused justices on-line for the benefit of the licencee applicants. The licensees had first been refused a licence for certain premises, but then requested and were given transfer of an obsolete . .
At first instnce – Bushell and Others, Regina (on the Application of) v Newcastle Upon Tyne Licensing Justices and Another HL 15-Feb-2006
Licensees appealed against the grant of judicial review of decisions granting special removal of old on-licences for premises. The grant had been challenged on the basis that the magistrates had had no jurisdiction to make the award because the . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194699
The deceased committed suicide in prison. Her family sought to have added to the verdict the words ‘contributed by neglect’ and complained that the inquest had not provided a full and proper investigation of the death.
Held: The Act needed to be read in its broader meaning to be compliant with the 1998 Act. ‘The word ‘how’ in section 11(5)(b)(ii) of the 1988 Act and rule 36(1)(b) of the 1984 Rules is open to the interpretation that it means not simply ‘by what means’ but rather ‘by what means and in what circumstances . . it should now be given the broader meaning.’ A fresh inquest was appropriate.
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell
Times 12-Mar-2004, [2004] UKHL 11, Gazette 22-Apr-2004, [2004] Lloyds Rep Med 281, [2004] UKHRR 521, [2004] 2 All ER 487, (2004) 79 BMLR 40, [2004] 1 WLR 796
Coroners Act 1988 8(1)(c) 11(5)(b)(ii), Human Rights Act 1998 3
England and Wales
Appeal from – Sacker v HM Coroner for the County of West Yorkshire CA 27-Feb-2003
The court expressed scepticism about the suitability of a coroner’s inquest, in its present form, as a vehicle for carrying out a state’s obligations under Article 2. Those considerations may accentuate the need for an overdue improvement in the . .
Cited – Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson CA 27-Apr-1994
The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Appealed to – Sacker v HM Coroner for the County of West Yorkshire CA 27-Feb-2003
The court expressed scepticism about the suitability of a coroner’s inquest, in its present form, as a vehicle for carrying out a state’s obligations under Article 2. Those considerations may accentuate the need for an overdue improvement in the . .
Cited – Parkin v HM Coroner for North Lincolnshire and Grimsby District Admn 23-Mar-2005
The family appealed against an open verdict. Her son was found hanged at school. The coroner felt unable to be sure that he had committed suicide. He had been looking forward to a new job as a theatre technician.
Held: There was evidence . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – Lewis, Regina (on The Application of) v HM Coroner for The Mid and North Division of The County of Shropshire and Another CA 21-Dec-2009
The claimant’s son was found hanging in his prison cell. He appealed refusal of a judicial review of the coroner’s decision not to put to the jury a question as to certain possible causative matters. The youth was seen hanging, but the guard called . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194439
The applicant had been detained under the appellant’s certificate that he was a suspected terrorist.
Held: The fact that there were suspicions surrounding the detainee did not mean that those suspicions were necessarily reasonable suspicions as required by the Act. Though a detainee could leave this country as an alternative to detention, his safe removal might not be practical. The order required demonstration of links to al-Qaeda. A special advocate could look to the detainee’s interests, but was ‘undoubtedly under a grave disadvantage’, and a heavy responsibility remained upon the court and the appellant to ensure that the powers were not used in an unlawful way. ‘To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on an individual’s rights’. The commission did not second guess the Home Secretary, but reached its independent view of the basis of the suspicion. The commission had looked at all the evidence presented by the Home Secretary, and concluded that it did not justify a reasonable suspicion.
Lord Justice Clarke, Lord Justice Potter, Lord Chief Justice Of England And Wales
[2004] 2 All ER 863, [2004] EWCA Civ 324, Times 24-Mar-2004
Special Immigration Appeals Commission Act 1997, Human Rights Act 1998 (Designated Derogation) Order 2001 (2001 No 3644)
England and Wales
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 – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194570
The making of an interim Anti-Social Behaviour Order not on notice was not an infringement of the subject’s human rights, since the order was limited in time and subject to review by the courts. However, ‘The more intrusive the order the more the court will require proof that it is necessary that it should be made, and made in the particular form sought, but there is nothing intrinsically objectionable about the power to grant an interim ASBO without notice.’ The test to be adopted by a Magistrates’ Court, when deciding whether or not to make an interim order, must be the statutory test, whether it is just to make the order. That itself involves consideration of all relevant circumstances including the fact that the application has been made without notice. The court must consider whether the application for the final order has been properly made, but there is no justification for requiring the Magistrates’ Court, when considering whether to make an interim order, to decide whether the evidence in support of the full order discloses an extremely strong prima facie case.
Lord Justice Kennedy Lord Phillips Of Worth Matravers, Mr Lord Justice Neuberger
[2004] EWCA Civ 312, Times 31-Mar-2004, [2004] 1 WLR 2298
Crime and Disorder Act 1998 1D
England and Wales
Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Cited – Manchester City Council, Regina (on the Application Of) v Manchester Magistrates’ Court Admn 8-Feb-2005
The council appealed the refusal of the magistrates to grant an interim Anti-Social Behaviour Order (ASBO) without notice. The magistrates clerk had said that there had been no violence, and no further incident after the police had given a warning. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194572
The defendant had been convicted under a system of trial later confirmed not to be compliant with the need for a fair trial.
Held: The judge advocate in this trial had been a serving officer. Unless the positive obligation to show an independent tribunal could be shown, a trial could not normally be shown to be fair. There was no criticism of the judge advocate, but the trial was unfair as a matter of principle and authority. Other appeals out of time might not be allowed.
Mr Justice Douglas Brown Mr Justice Newman Lord Justice Rose VP
Times 18-Mar-2004, [2004] EWCA Crim 621
England and Wales
Cited – Grieves v The United Kingdom ECHR 16-Dec-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Costs and expenses partial award – Convention proceedings
The claimant had been dismissed from the Royal Navy after a court martial. He . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Regina v Boyd, Hastie, Spear (Courts Martial Appeal Court), Regina v Saunby, Clarkson, English, Williams, Dodds, and others HL 18-Jul-2002
Corts Martial System Complant with Human Rights
The applicants were each convicted by courts martial of offences under civil law. They claimed that the courts martial were not independent tribunals because of the position of the president of the court, and that it was wrong to try a serviceman by . .
Applied – Regina v Hawkins (Paul) CACD 2-Aug-1996
The defendant sought leave to appeal out of time after a guilty plea.
Held: Leave was not granted despite a subsequent ruling on the Theft Act, which showed the basis of the original plea to have been wrong in law. No injustice had been shown, . .
Cited – Regina v Khan and Hanif CACD 14-Mar-2008
Each defendant appealed against his conviction saying that the presence on the jury of certain people involved in the law gave the appearance of bias.
Held: The court should be made aware if any potential juror either is or has been a police . .
Cited – Dowsett v Criminal Cases Review Commission Admn 8-Jun-2007
The claimant had been convicted in 1993 of involvement in a murder. He had complained that the police had failed to disclose material which would have been of assistance to him. He had requested the Commission to take examine and pursue his appeal. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194575
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to refusal of custody and access ; No violation of Art. 8 with regard to involvement in the proceedings ; No violation of Art. 6 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award
74969/01, [2004] ECHR 88, [2004] ECHR 89
Human Rights
Updated: 10 June 2022; Ref: scu.193997
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Violation of Art. 8 ; Not necessary to examine P1-1 ; Pecuniary damage – financial award ; Costs and expenses award – Convention proceoedings
71549/01, [2004] ECHR 87, [2004] ECHR 88
Human Rights
Updated: 10 June 2022; Ref: scu.193998
In a hearing where the threshold standard was at issue, a party challenged the compliance with Human Rights law of the 1989 Act. The court adjourned the case for transfer to the High Court.
Held: The correct court to hear such suggestions was the court seized of the case, and it should not be transferred. A transfer must bring additional delay. The court had to balance the need to respect family life and the rights of the child. The result had to be proportionate and best in the interests of the child.
Tuckey, Ward LJJ
Times 17-Feb-2004, Gazette 18-Mar-2004, [2004] EWCA Civ 54, [2004] 1 WLR 1433
England and Wales
Endorsed – In re L (Care proceedings: Human Rights Claims) 2003
The court set out appropriate procedures designed to human rights claims, even properly brought, from de-railing care proceedings. . .
Cited – In re V (a Child) (Care: pre-birth actions) CA 12-Oct-2004
Immediately after a child was born, the social worker began proceedings for it to be taken into care. The judge severely criticised the actions of the social worker before the birth. The local authority now appealed against an order at the . .
Cited – Cheshire County Council and others v DS (Father) and others CA 15-Mar-2007
The court granted an appeal in care proceedings, but examined the relationship between the court and local authorities. There had been a late change in the proposed care plan and an application by grandparents to be made party. Some in the . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194050
An elder child had died, and the local authority felt unable to exculpate either the father or the mother. On the birth of this child all three had been brought in for a residential assessment. First one then another extension was sought. The court found that this service had become therapeutic rather than for assessment, and said it had no standing to order and extension. The authority amended its care plan for the child to live with the grandparents.
Held: The correct approach was rather as in In re C, not In re M. ‘The essential question should always be, can what is sought be broadly classified as an assessment to enable the court to obtain the information necessary for its own decision?’ The judge did have standing to extend the assessment. It was still directed to providing the court with material on which it might make a decision. In this case the psychotherapeutic involvement was an essential part of the assessment. The authority had not substantiated its claims as to lack of funding, and had given the family no opportunity to challenge its decision.
Elizabeth Butler-Sloss President, Thorpe, Latham LJJ
Times 29-Jan-2004, Gazette 04-Mar-2004, [2004] EWCA Civ 24, [2004] 1 FLR 876
Children Act 1989 38(6), Human Rights Act 1998
England and Wales
Distinguished – In Re M (Residential Assessment Directions) FD 23-Sep-1998
When ordering a local authority to pay the costs of residential assessment of mother and child, the court should allow for these factors. It must be assessment not treatment, in long term interests of the child, to enable court to decide and not . .
Cited – In Re C (A Minor) (Interim Care Order: Residential Assessment) HL 29-Nov-1996
The parents were suspected of causing the child non-accidental injury. The court wanted a residential assessment of the family, but the local authority refused, saying it would be too expensive, and would expose the child to continuing risk. The . .
Doubted – Re M (Residential Assessment Directions) CA 1997
The mother was seen to be unstable with a history of self harm, and with a violent association. Two older children were in care, and despite psychiatric evidence that she was improving the authority resisted a suggestion that there be a residential . .
Appeal from – Kent County Council v G and others HL 24-Nov-2005
A residential assessment order had been made under the 1989 Act in care proceedings. When the centre recommended a second extension of the assessment, the council refused, saying that the true purpose was not the assessment of the child but the . .
Cited – Holmes-Moorhouse v Richmond Upon Thames HL 4-Feb-2009
The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded.
‘When any family court decides with whom the children of separated . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194062
It was conceded that there had been a breach of article 8 in the obtaining of covert video and audio recordings of the appellants’ incriminating conversations.
Held: If there was a breach by the police of article 8, it did not follow that the evidence thereby obtained was inadmissible. Any breach of article 8 in the obtaining of the evidence was due to acts of the police, not the Lord Advocate.
Lord Justice Clerk Gill said that the act that was relevant to section 57(2) of the Scotland Act 1998 was the act of the Lord Advocate in leading the evidence.
Lord Johnston And Lord Justice Clerk And Lord Wheatley
[2004] ScotHC 13, 2004 SCCR 193, 2004 JC 60
Police Act 1997, European Convention on Human Rights 6 8, Scotland Act 1998 57(2)
Scotland
Cited – Kinloch v Her Majesty’s Advocate SC 19-Dec-2012
The appellant said that the police officers had acted unlawfully when collecting the evidence used against him, in that the information used to support the request for permission to undertake clandestine surveillance had been insufficiently . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.193809
The bankrupt sought to protect his personal pension taken out before his bankruptcy. The bankruptcy was initiated by the Inland Revenue, and sought protection under Human Rights law.
Held: The alleged infringement of the former bankrupt’s rights had taken place before the coming into force of the Human Rights Act 1998, and he could therefore only rely on that Act if the retrospective provision of section 22(4) applied. That section would only have effect if the proceedings were instigated by a public authority. The proceedings here were begun by the trustee in bankruptcy. The bankrupt could not rely upon protection by the 1998 Act.
The Hon Mr Justice Lloyd
Gazette 01-Apr-2004, [2004] EWHC Ch 339
England and Wales
Appeal from – Malcolm v Mackenzie, Allied Dunbar Plc CA 21-Dec-2004
The bankrupt complained that having been made bankrupt, his self-employed pension was subject to attachment by his trustee, but had he been a member of a company scheme the asset would not, and that this was discriminatory.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.193898
Discovery was sought of statements created during the investigation of a complaint against a police officer. The claimant argued that a police officer had deliberately driven his car at him.
Held: The investigation by a separate police force satisfied the high requirement for investigations of allegations against law enforcement officers, and was human rights compliant. Therefore there was no way around the effect of section 80 which prevented such disclosure.
Lord Carswell approved dicta of Simon Brown LJ in the Court of Appeal: ‘For the sake of completeness, I would add that I agree with the judgment of Simon Brown LJ rather than that of Chadwick LJ on the ability of the Authority to re-open an investigation if they think it necessary in the light of representations made or evidence supplied following the issue of a provisional decision letter.’
Lord Bingham of Cornhill, Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell
[2004] UKHL 6, Times 27-Feb-2004, Gazette 25-Mar-2004, [2004] 1 WLR 725, [2004] 2 All ER 209, [2004] HRLR 19, [2004] UKHRR 939
England and Wales
Cited – McCann and Others v The United Kingdom ECHR 6-Oct-1995
Wrong assumptions made by police officers in the killing of terrorists amounted to a human rights breach, despite the existence of danger to the public of an imminent attack. Article 2(1) is ‘one of the most fundamental provisions in the . .
Cited – Assenov and Others v Bulgaria ECHR 28-Oct-1998
An allegation of violence by a police officer did require a thorough, impartial and careful investigation by a suitable and independent state authority: ‘The court considers that in these circumstances, where an individual raises an arguable claim . .
At First Instance – Regina (Green) v Police Complaints Authority and Others QBD 21-Dec-2001
The applicant complained about a breach of his human rights by police behaviour and sought to inspect statements made by eye witnesses to the incidents complained of. The Police Complaints Authority replied that it was necessary for their function . .
Appeal From – The Police Complaints Authority and Others v Regina CA 26-Mar-2002
Simon Brown LJ said: ‘Given the PCA’s right under section 76(7)(b) to such other information as they need for the purpose of reaching their section 76 decision, I am inclined to think that, if, after obtaining the complainant’s comments upon any . .
Cited – Saunders and Tucker, Regina (on the Application of) v The Association of Chief Police Officers and others Admn 10-Oct-2008
The deceased had been shot by police during an armed siege. His family complained that the Independent Police Complaints Commission had declined to order the officers not to confer with each other before making statements.
Held: The authority . .
Cited – The Independent Police Complaints Commission, Regina (On the Application of) v Commissioner Of Police Of the Metropolis Admn 3-Jul-2009
Delay defeated Request for review
A police dog had bitten a child on his arrest. His mother complained and again at the handling of her complaint by the IPCC. The MPS had disciplined in accordance with a letter from the IPCC, and having acted refused to re-open the complaint.
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.193889
The claimant complained at the disciplinary procedures of the Law Society.
Held: A failure to hold a disciplinary hearing in public was not an infringement of the claimant’s human rights. The two questions of whether there had been a determination of articlce 6 rights, and then whether there had been an infringement of them must not be separated artifiicially. Despite the professional consequences, the the decision to issue a reprimand did not become a determination of his civil rights.
Lord Justice Clarke Lord Justice Kennedy Lord Justice Jacob
[2004] EWCA Civ 167, Times 01-Apr-2004, Gazette 01-Apr-2004
England and Wales
Cited – Regina v Law Society ex parte Singh and Choudry (A Firm) QBD 1-Apr-1994
The disciplinary jurisdiction of the Law Society is not dependent on prejudice having been shown to have affected any client. The jurisdiction is disciplinary in nature, its intention being to maintain standards in the profession. . .
Cited – Pine v Law Society CA 25-Oct-2001
The applicant said the procedure under which he was struck from the roll of solicitors was unfair. There was no provision for legal advice or representation, and given the nature and severity of the allegations and consequences, the trial was . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.193884
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings
‘the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention.’ and ‘In examining whether the non-enforcement of the access arrangements amounted to a lack of respect for the applicant’s family life the Court must strike a balance between the various interests involved, namely the interests of the applicant’s daughter, those of the applicant herself and the general interest in ensuring respect for the rule of law.’
60457/00, [2004] 1 FCR 427, [2004] ECHR 58
European Convention on Human Rights 8
Human Rights
Cited – F v M FD 1-Apr-2004
The court considered the ‘ongoing debate’ about the court’s role in contact disputes. ‘this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 June 2022; Ref: scu.193564
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 14+8 with regard to different treatment of homosexuals and heterosexuals ; Not necessary to examine Art. 14+8 with regard to alleged discrimination on basis of age ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses partial award – Convention proceedings
The complainant argued that the UK law providing different ages for consent for homosexual and heterosexual activity was discriminatory. He had been prosecuted after complaining of an assault by a youth with whom he had had consensual sex. The court noted that the prosecution was later dropped, and the law had been changed.
53760/00, Times 18-Feb-2004, [2004] ECHR 65
Human Rights
Updated: 09 June 2022; Ref: scu.193562
The claimant had sought asylum on the day after arrival, and had therefore been refused any assistance beyond the provision of a list of charities who might assist. His lawyers were unable to secure either shelter or maintenance, and he had been left to sleep rough outside a police station.
Held: The treatment amounted to inhuman or degrading treatment under the Convention. The threshold was high. The court had to consider just what ‘treatment’ had been given. Here the claimant was left without shelter or money, and he already had health problems, and might be expected to suffer psychiatric problems if the treatment continued. The only alternative left to him was crime or begging.
Collins J
Times 09-Feb-2004, [2004] EWHC 219 (Admin)
European Convention on Human Rights 8, Nationality, Immigration and Asylum Act 2002 55
Cited – Regina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .
Cited – Regina (T) v the Secretary of State for the Home Department; similar CA 23-Sep-2003
The claimant asylum seeker had been refused benefits having failed to declare his application on entry. The Secretary now appealed a finding that the decision was flawed. Was the treatment of the applicant inhuman or degrading?
Held: No simple . .
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 . .
Appeal from – The Secretary of State for the Home Department v Limbuela, Tesema, Adam CA 21-May-2004
The appellant brought in policies which denied to asylum claimants who had failed to declare their status immediately upon entry, any shelter or support or the right to work. They were to be left to starve on the streets if they so wished. He . .
At first instance – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 June 2022; Ref: scu.193420
The prisoner was subject to a long term of imprisonment, and also to a deportation order which was to take effect upon his release. He complained that, because of the latter, he had not been considered for parole, and that this was discriminatiry.
Held: The difference in treatment occurred because of the nationality of the prisoner. Such a decision in respect of French nationals would be discriminatory. It was not for the court to speculate as to the reasons for the policy, but it was discriminatory and unlawful.
McCombe J
Times 05-Feb-2004, [2004] EWHC 78 (Admin)
Criminal Justice Act 1991 31, European Convention on Human Rights 14
England and Wales
Cited – Regina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 June 2022; Ref: scu.192687
Appeal against the determination dismissing the respondent’s appeal on asylum grounds but allowed it on human rights grounds.
N H Goldstein
[2003] UKIAT 00131
England and Wales
Updated: 09 June 2022; Ref: scu.192541
68066/01, [2003] ECHR 383
European Convention on Human Rights
Human Rights
Updated: 09 June 2022; Ref: scu.213472
Application by the fathers of Martin McCaughey and Desmond Grew, who were killed by soldiers on 9 October 1990, for Judicial Review of the decisions of the Chief Constable and the Coroner concerning the disclosure of documents for the purposes of the Inquests into the deaths.
Weatherup J
[2004] NIQB 2
Northern Ireland
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Jordan v Lord Chancellor and Another (Northern Ireland) HL 28-Mar-2007
In each case a death had occurred many years earlier where the deceased had apparently died at the hands of the armed forces. The relatives now challenged the range of verdicts which could be left to a coroner’s jury.
Lord Bingham said: ‘The . .
See Also – Police Service of Northern Ireland v McCaughey and Another CANI 14-Jan-2005
. .
See Also – McCaughey and Quinn, Re Judicial Review CANI 26-Mar-2010
The claimants challenged the mode of inquest sought to be carried out. They had been refused an undertaking that the inquest would comply with obligations under article 2.
Held: The appeal failed. McKerr remained binding on the court, even if . .
See Also – McCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 June 2022; Ref: scu.192356
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings
64258/01, [2004] ECHR 44
Human Rights
Updated: 09 June 2022; Ref: scu.192311
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Violation of Art. 13 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award
53084/99, [2004] ECHR 49
Human Rights
Updated: 09 June 2022; Ref: scu.192312
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Violation of Art. 6-2 ; Violation of Art. 6-3-a ; Not necessary to examine Art. 10 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings
The complaint was as to the independence and impartiality of the first instance court.
Held: The defect was not remedied by review of the decision by the Supreme Court: ‘There was no retrial of the case by the Supreme Court. As a court of appeal, the Supreme Court did not have full competence to deal de novo with the case, but could only review the first instance judgment for possible legal or manifest factual errors. It did not carry out an ab initio, independent determination of the criminal charge against the applicant for contempt of the Assize Court. Furthermore, the Supreme Court found that it could not interfere with the judgment of the Assize Court, accepting that that court had a margin of appreciation in imposing a sentence on the applicant.’
73797/01, [2004] ECHR 43
European Convention on Human Rights
Human Rights
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
See Also – Kyprianou v Cyprus ECHR 15-Dec-2005
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 June 2022; Ref: scu.192314
Hudoc Judgment (Merits and just satisfaction) No violation of P1-1 with regard to one set of proceedings ; No violation of Art. 6-1 with regard to one set of proceedings ; Violation of P1-1 with regard to other proceedings ; Violation of Art. 6-1 with regard to other proceedings ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings
40465/98, [2004] ECHR 50
Human Rights
Updated: 09 June 2022; Ref: scu.192313
Hudoc Judgment (Merits and just satisfaction) Violation of Art.5-1 ; Violation of Art. 5-3 ; No violation of Art. 34 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award
34221/96, [2004] ECHR 26
Updated: 08 June 2022; Ref: scu.192166
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Violation of Art. 13 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
48339/99, [2004] ECHR 29
Updated: 08 June 2022; Ref: scu.192170
EAT Practice and Procedure – Application. The application had been presented timeously at the ET in Edinburgh, but was out of time when retransmitted to Glasgow. The tribunal had found the Edinburgh office to be an area office, and not a regional office and therefore the application was not accepted within the Regulations. The appellant argued that the Rules were unclear since Scotland had only one Region. He also argued that the interpretation infringed his Article 6 rights.
Held: The appeal failed. The Tribunal came to a conclusion that correctly interpreted the legislation against the background of the admitted facts. And ‘The place where the application is to be made is not the manner in which it is to be made but is a mandatory, in our opinion, direction rather then merely a directory provision.
On this simple basis we do not consider that the legislation is incompatible as we construe it with the Convention. If the issue of disproportionality does arise in this context we consider that the avoidance of administrative chaos that would result from applicants being able to pick which office of the Tribunal system in Scotland they were going to make their application is a legitimate aim which is not disproportionate to the interpretation that we have put upon the provision.’
The Honourable Lord Johnston
EATS/0048/03, [2003] UKEAT 0048 – 03 – 1612
Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001, European Convention on Human Rights 6
Cited – Perez De Rada Cavanilles v Spain ECHR 28-Oct-1998
ECHR Inadmissibility, for being out of time, of reposicion application against court decision whereby a settlement agreement which the applicant had sought to enforce had been declared void
In a dispute . .
Cited – Stubbings and Others v The United Kingdom ECHR 22-Oct-1996
There was no human rights breach where the victims of sex abuse had been refused a right to sue for damages out of time. The question is whether and to what extent differences in otherwise similar situations justify a different treatment in law: . .
Cited – Petch v Gurney (Inspector of Taxes) CA 8-Jun-1994
The thirty day time limit for the forwarding of a case stated is mandatory. The Court of Appeal has no discretion to extend the time limit. Millett LJ analysed the position by reference to the traditional dichotomy of directory or mandatory . .
Cited – John E Melville v Brown Brothers and Co Ltd EAT 8-Jun-1999
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.192121
The applicants sought to amend earlier pleadings to add a claim that their human rights had been infringed by the 1982 Act, which gave the respondents certain immunities.
Held: The Human Rights Act 1998 was not retrospective. At the time when it should have been made, the amendment would have been doomed to failure by virtue of the 1982 Act. Lloyd’s had an accrued right under section 14(3) of the 1982 Act, namely that they had no liability in damages except where bad faith could be established. S3(1) of the HRA could not be used to construe section 14(3) of the Lloyd’s Act in such a way as to alter that accrued right, which depended upon the way in which section 14(3) would be construed but for section 3 of the HRA.
Lord Justice Clarke Lord Justice Waller Lord Justice Chadwick
[2003] EWCA Civ 1887, Times 23-Jan-2004
European Convention on Human Rights 6, Lloyd’s Act 1982 14(3), Human Rights Act 1998 3
England and Wales
See Also – Society of Lloyd’s v Laws and others ComC 28-Jan-2004
. .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – Green v Eadie and Others ChD 18-Nov-2011
The claimant as PR of her husband’s estate sought damages for misrepresentation and, against his former solicitiors for negligence in regards to the boundaries of a property he had bought from the first defendants using the second defendants as his . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.191988
The applicant complained that the adjudicator who had heard his asylum appeal in 1997 had not been sufficiently independent.
Held: The tribunal lacked what had come to be called ‘structural independence’ The common law test for impartiality was the appropriate test for the time of the hearing. That test would have differed substantially.
Lord Kirkwood And Lord President And Lord Weir
[2003] ScotCS 342, Times 23-Jan-2004
Scotland
Cited – Starrs and Chalmers and Bill of Advocattion for Procurator Fiscal, Linlithgow v Procurator Fiscal, Linlithgow and Hugh Latta Starrs and James Wilson Chalmers; Starrs v Ruxton, Ruxton v Starrs ScHC 11-Nov-1999
The system in Scotland whereby lesser judges were appointed by the executive, for a year at a time, and could be discharged without explanation or challenge, meant that they could be seen not to be independent, and the system was a breach of the . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.190783
[2011] ECHR 2401, 57967/00
European Convention on Human Rights
Human Rights
SeeAlso – Kmetty v Hungary ECHR 16-Dec-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 ; Non-pecuniary damage – financial award ; Costs and expenses award – Convention proceedings . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.190522
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
63514/00, [2003] ECHR 641, [2003] ECHR 646
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.190194
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
62175/00, [2003] ECHR 630, [2003] ECHR 634
Updated: 08 June 2022; Ref: scu.190199
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses (domestic proceedings) – claim rejected
53129/99, [2003] ECHR 623, [2003] ECHR 627, [2011] ECHR 2163
European Convention on Human Rights 5-3
Updated: 08 June 2022; Ref: scu.190203
Hudoc Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses (domestic proceedings) – claim rejected
42042/98, [2003] ECHR 627, [2003] ECHR 631
Updated: 08 June 2022; Ref: scu.190201
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings
60659/00, [2003] ECHR 645, [2003] ECHR 650
European Convention on Human Rights
Updated: 08 June 2022; Ref: scu.190191
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
62844/00, [2003] ECHR 660, [2003] ECHR 665
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.190192
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
68103/01, [2003] ECHR 666
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.190196
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to length ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings ; Inadmissible under Art. 6-1 with regard to fairness
70661/01, [2003] ECHR 681
Human Rights
Updated: 08 June 2022; Ref: scu.190184
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10 ; Pecuniary damage – financial award ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses partial award – Convention proceedings
39069/97, [2003] ECHR 683
Human Rights
Updated: 08 June 2022; Ref: scu.190185
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 ; Violation of Art. 10 ; Violation of Art. 13 ; Violation of Art. 5-3 ; Violation of Art. 5-4 ; Violation of Art. 5-5 ; Violation of Art. 6-1 ; Non-pecuniary damage – financial award ; Costs and expenses partial award
39084/97, [2003] ECHR 680, [2003] ECHR 685
Human Rights
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.190186
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – claim rejected ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings
64449/01, [2003] ECHR 657, [2003] ECHR 662
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.190195
The applicant complained that she had been raped by two men when she was 14 years old. The men were interviewed but it was concluded that they had not used threats or violence and there was no evidence of resistance. The district prosecutor issued a decree terminating the proceedings. The complainant applied on the twin assertions that Bulgarian law did not provide effective protection against rape and sexual abuse as only cases where the victim had actively resisted were prosecuted, and that the authorities had not properly investigated her allegations.
Held: The failure properly to investigate her allegations constituted violation of her rights under articles 3 and 8 of ECHR. The second aspect of her complaint – that there was not a proper investigation of her allegations was a distinct and unconnected ground on which the court decided that article 3 had been breached.
The prohibition of torture was described as: ‘a positive obligation . . to enact criminal-law provisions effectively punishing [serious crime] and to apply them in practice through effective investigation and prosecution.’ and ‘ . . the court considers that states have a positive obligation inherent in articles 3 and 8 of the Convention to enact criminal-law provisions, effectively punishing rape and to apply them in practice through effective investigation and prosecution.’
Rozakis P
39272/98, [2003] ECHR 646, [2003] ECHR 651, (2005) 40 EHRR 20, 15 BHRC 627
European Convention on Human Rights
Human Rights
Cited – NXB v Crown Prosecution Service QBD 12-Mar-2015
The claimant, saying that she had been abused as a child by another, sought damages alleging breach of her human rights after the defendant failed to prosecute her attacker: ‘it is the Claimant’s case that the CPS made a series of rushed, . .
Judgment – MC v Bulgaria ECHR 10-Mar-2011
Execution of the judgment . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Explained – DSD and Another v The Commissioner of Police for The Metropolis QBD 28-Feb-2014
The claimants sought damages alleging negligent failure by the police to investigate and find a serial rapist.
Held: The claim succeeded. The claimants were entitled to damages from the defendant, the Commissioner of the Police of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.190198
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings
59367/00, [2003] ECHR 651, [2003] ECHR 656
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.190190
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 dismissed ; Costs and expenses partial award – Convention proceedings
48129/99, [2003] ECHR 629, [2003] ECHR 633
European Convention on HumAN Rights 6-1
Human Rights
Updated: 08 June 2022; Ref: scu.190205
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Non-pecuniary damage – financial award ; Costs and expenses partial award
52071/99, [2003] ECHR 649
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.190189
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
47355/99, [2003] ECHR 689
Human Rights
Updated: 08 June 2022; Ref: scu.190169
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (exhaustion of domestic remedies) ; Violation of Art. 5-1 ; Violation of Art. 5-5 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award
42098/98, [2003] ECHR 695, [2003] ECHR 700, [2003] ECHR 700
Human Rights
Updated: 08 June 2022; Ref: scu.190165
Hudoc Judgment (Merits and just satisfaction)
The claimant had been dismissed from the RAF after a court martial. He complained that the tribunal was not independent, and that his trial was unfair.
Held: The court rejected the submission that no court martial could act independently. There was sufficient separation between the various roles and the chain of command, and the claimant’s rights were not infringed.
48843/99, Times 12-Jan-2004, (2004) 39 EHRR 171, [2003] ECHR 686
European Convention on Human Rights 6.1
Human Rights
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 – Ezeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .
Cited – Haase, Regina (on the Application of) v Independent Adjudicator and Another CA 14-Oct-2008
The appellant complained that as a prisoner he was subjected to disciplinary proceedings for refusing to co-operate with drugs tests. He said that he had not been informed that there would be a penalty if he did not comply. He now complained that . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.190176
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
64254/01, [2003] ECHR 684
Human Rights
Updated: 08 June 2022; Ref: scu.190182
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Costs and expenses partial award – Convention proceedings
The claimant had been dismissed from the Royal Navy after a court martial. He complained that the tribunal did not have sufficient independence.
Held: The claimant’s rights were infringed. Though there was facility to appoint a prosecutor from outside the chain of command, that had not happened in the applicant’s case, and he was part of the prosecuting authority. The use of a civilian to administer the procedure helped. There was no permanence to the position of president of the court martial. The judge advocates were serving officers carrying out regular naval duties.
57067/00, Times 12-Jan-2004, ECHR 2003-XII, (2004) 39 EHRR 51, [2003] ECHR 688
European Convention on Human Rights 6.1, Naval Discipline Act 1957
Human Rights
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 – Ezeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .
Cited – Regina v Dundon CMAC 18-Mar-2004
The defendant had been convicted under a system of trial later confirmed not to be compliant with the need for a fair trial.
Held: The judge advocate in this trial had been a serving officer. Unless the positive obligation to show an . .
Applied – G.W. v The United Kingdom 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 partial award – Convention . .
Applied – Le Petit 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 . .
Cited – Haase, Regina (on the Application of) v Independent Adjudicator and Another CA 14-Oct-2008
The appellant complained that as a prisoner he was subjected to disciplinary proceedings for refusing to co-operate with drugs tests. He said that he had not been informed that there would be a penalty if he did not comply. He now complained that . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.190177
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 ; Non-pecuniary damage – financial award ; Costs and expenses award – Convention proceedings
57967/00, [2003] ECHR 690
European Convention on Human Rights
Human Rights
SeeAlso – Kmetty v Hungary ECHR 13-Dec-2011
. .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.190175
ECHR Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Violation of Art. 8 ; Not necessary to examine Art. 34 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award
42083/98, [2003] ECHR 692
Human Rights
Updated: 08 June 2022; Ref: scu.190174
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Not necessary to examine Art. 6-3-c ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention proceedings
42775/98, [2003] ECHR 702
Human Rights
Updated: 08 June 2022; Ref: scu.190167
The magistrates had been taking a deposition, and ordered police officers to be excluded from court.
Held: The witness sought not to have to answer questions on the ground that he would be incriminated by his answers. Magistrates should not accept a claim for privilege without investigation. It was insufficient also to accept that this was claimed solely on the grounds of legal advice. The proceedings of taking the deposition were in open court, and the exclusion of those charged with investigating crime was an irregularity.
Kennedy LJ, Royce J
Times 07-Nov-2003, [2003] EWHC 2697 (Admin), [2004] 1 WLR 835
Crime and Disorder Act 1998 Sch3 P-4
England and Wales
Updated: 08 June 2022; Ref: scu.190141
[2002] NICA 8, [2002] NI 130
Northern Ireland
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.189650
ECHR Judgment : Protection of property : Fifth Section Committee
56903/10, [2020] ECHR 914
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.656977
ECHR Judgment : Right to a fair trial : Third Section Committee
42301/11, [2020] ECHR 869
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.657002
ECHR Judgment : Remainder inadmissible : Fifth Section
459/18, [2020] ECHR 912
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.657019
In cases involving children, Article 3 provides that the best interests of the child are a primary consideration, not the primary consideration.
The court looked at the test for making an interim ASBO: ‘Consideration of whether it is just to make an order without notice is necessarily a balancing exercise. The court must balance the need to protect the public against the impact that the order sought will have upon the defendant. It will need to consider the seriousness of the behaviour in issue, the urgency with which it is necessary to take steps to control such behaviour, and whether it is necessary for orders to be made without notice in order for them to be effective. On the other side of the equation it will consider the degree to which the order will impede the defendant’s rights as a free citizen to go where he pleases and to associate with whosoever he pleases.
It is submitted on behalf of the Claimants that such relief can only be granted in exceptional circumstances, and that there must be compelling urgency to justify an application without notice. In my judgment that would be an unwarranted and unnecessary gloss upon the test set out in section 1D. But it is implicit in the balancing exercise that the considerations that weigh in favour of injunctive relief must be sufficiently serious to warrant what may amount to a serious interference with the civil rights of a defendant.’
Owen J
[2003] EWHC 2963 (Admin), [2004] 1 All ER 1333
Crime and Disorder Act 1998 1D, European Convention on Human Rights 3
Cited – A (A Child), Regina (on the Application of) v Leeds Magistrate’s Court and Another Admn 19-Mar-2004
The father sought judicial review of an anti-social behaviour order (ASBO) made in respect of his son.
Held: Although the child’s best interests remained a primary consideration when making such an order, they were not the primary . .
Cited – Manchester City Council, Regina (on the Application Of) v Manchester Magistrates’ Court Admn 8-Feb-2005
The council appealed the refusal of the magistrates to grant an interim Anti-Social Behaviour Order (ASBO) without notice. The magistrates clerk had said that there had been no violence, and no further incident after the police had given a warning. . .
Cited – Webster and Others v The Governors of the Ridgeway Foundation School QBD 21-May-2009
The first claimant had been severely beaten as he left school. He and his parents also claimed post traumatic stress. They alleged that the school had been negligent in having allowed racial tensions to develop. The claimant was white, and his . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.188532
The Secretary of State’s published policy was that, if legal proceedings were initiated, removal would not be treated as imminent even if it otherwise was. The Secretary of State also had an unpublished policy, namely that information that proceedings were about to be initiated would be disregarded, however credible that information might be.
Held: The Secretary of State could not rely on an aspect of an unpublished policy to render lawful that which was at odds with his published policy. Lord Phillips of Worth Matravers, MR said: ‘Thus the relevance of Article 5 is that the domestic law must not provide for, or permit, detention for reasons that are arbitrary. Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of State’s published policy, which, under principles of public law, he is obliged to follow. These appeals raise the following questions: (1) What is the Secretary of State’s policy? (2) Is that policy lawful? (3) Is that policy accessible? (4) Having regard to the answers to the above questions, were N and A lawfully detained?’
Lady Justice Arden Lord Phillips Of Worth Matravers, MR, Lord Justice Dyson
[2003] EWCA Civ 1768, [2004] INLR 139
England and Wales
See Also – Regina (Nadarajah) v Secretary of State for the Home Department Admn 2-Dec-2002
The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, . .
See Also – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
Cited – ID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – SK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Regina (Konan) v Secretary of State for the Home Department Admn 21-Jan-2004
The claimants alleged that their immigration detention had been unlawful.
Held: Collins J said: ‘Since the detention at least since 24 June 2002 was contrary to the defendant’s own policy as published in Chapter 38, it was unlawful. In so . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.188644
Birmingham Council had granted H and W a joint secure tenancy of a three-bedroom home. The marriage broke down and W left with the two children. She obtained a non-molestation order and an ouster order against him. H tried to force his way into the home. W applied to the council, and it provided her with alternative accommodation. H returned to the house and then applied to the council for a mutual exchange with another tenant because the house was larger than he required. An officer persuaded W to surrender the tenancy, but did not advise her that this would leave H homeless. The council obtained an order for possession.
Held: H argued that in seeking to obtain from the wife the notice to quit the council had circumvented the statutory powers in relation to recovery of possession of a secure tenancy. Article 8 was not available as a defence even though the property was H’s ‘home’ under the Convention.
The council had acted within its powers and the notice to quit at common law terminated the secure tenancy. Section 82 did not apply. The notice had effect though W signed without appreciating the consequences for H. This was not a ‘wholly exceptional’ case where, for example, something had happened since the service of the notice to quit which had fundamentally altered the rights and wrongs of the proposed eviction, and the council might be required to justify its claim to override the Article 8 right.
Lord Justice Mummery Lord Justice Tuckey Lord Phillips Of Worth Matravers, Mr
[2003] EWCA Civ 1783, [2004] HLR 27
England and Wales
Applied – Hammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
Appeal from – McCann v The United Kingdom ECHR 13-May-2008
The applicant and his wife were secure joint tenants of a house of a local authority under section 82. Their marriage broke down, and the applicant’s wife moved out of the house with the two children of the marriage. She returned after obtaining a . .
Cited – Coombes, Regina (on The Application of) v Secretary of State for Communities and Local Government and Another Admn 8-Mar-2010
The landlord council brought proceedings for possession. The tenant (C) had remained in possession after his mother’s death, but enjoyed no second statutory succession. He had lived there since 1954 when he was six. C sought a declaration of . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.188690
The applicant had come to the UK to seek asylum, but had advanced HIV/AIDS. When her asylum claim failed she sought permission to continue her stay saying that if returned she would not receive proper treatment and would die.
[2003] EWCA Civ 1369, [2004] 1 WLR 1182
England and Wales
Appealed to – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
Appeal from – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.188478
ECHR 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
41431/98, [2003] ECHR 612
Human Rights
Cited – Umek v Slovenia ECHR 8-Jan-2009
The claimant said that the defendant country had failed to provide her with an effective remedy for delay in proceedings before its courts. She had sought damages after being involved in a fire. She began proceedings in 1989, and they were concluded . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.188384
Police had made secret tape recordings of conversations in the claimant’s home, which recordings had later been used as evidence against him, and had led to his conviction.
Held: At the time of the recordings there was no statutory system regulating such recordings, and therefore the interference in his private and family life was an infringement of his right. However the claimant had faled to bring evidence of his damages, and no award could be made.
Hudoc Violation of Art. 8 ; Violation of Art. 13
1303/02, Times 05-Dec-2003, [2003] ECHR 601
European Convention on Human Rights 8.2 13
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.188387
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
63543/00, [2003] ECHR 621
European Cnvention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.188383
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Inadmissible under Art. 6-1 with regard to fairness
57966/00, [2003] ECHR 611
Human Rights
Updated: 08 June 2022; Ref: scu.188385
[2003] EWHC 2831 (Admin)
Updated: 08 June 2022; Ref: scu.188325
The nurse suffered bipolar disorder, and was suspended. She wanted to have her suspension reviewed. The rules made no express provision for such an application.
Held: The absence of an express power did not mean that such a power did not exist. It did. The refusal in this case was not because the health committee of the respondent saw itself as not having a power to do so, but rather on the facts. Though the registration as a nurse or midwife might be a property right protected by the Convention, that right had not been infringed.
Schieman, Sedley, Jacob LJJ
[2003] EWCA Civ 1600, Times 12-Nov-2003
European Convention on Human Rights, Nurses, Midwifery and Health Visitors (Professional Conduct) Rules (1993 no 893)
England and Wales
Updated: 08 June 2022; Ref: scu.188118
The applicant had been sentenced to detention during Her Majesty’s Pleasure. He sought a judicial review of the Lord Chief Justice’s recommendation to the Home Secretary for the minimum term he was to serve.
Held: In exercising this function, the LCJ was acting in a judicial capacity, and therefore his recommendation was not subject to judicial review. ‘Article 6.1 may require an appellate court conducting an appeal against a sentence to afford the appellant an oral hearing, and perhaps occasionally to give or lead evidence at that hearing, if on the facts of his case and the issues arising in it such a step is necessary to ensure that the procedure is fair.’ In this case it was not. The Lord Chief Justice had been under no obligation to afford the appellant an oral hearing and, alternatively, that, if he was entitled to an oral hearing, he had waived that entitlement. The Lord Chief Justice had paid due regard to the appellant’s welfare.
Lord Justice Kennedy Mr Justice Mackay
[2003] EWHC 2797 (Admin), Times 27-Nov-2003
Children and Young Persons Act 1933 53(1), European Convention on Human Rights 6.1
England and Wales
Cited – Regina v Secretary of State For The Home Department, Ex Parte Venables, Regina v Secretary of State For The Home Department, Ex Parte Thompson HL 12-Jun-1997
A sentence of detention during her majesty’s pleasure when imposed on a youth was not the same as a sentence of life imprisonment, and the Home Secretary was wrong to treat it on the same basis and to make allowance for expressions of public . .
Revisited – Regina (Smith, Trevor) v Parole Board CA 30-Jun-2003
The applicant had been granted leave to present a petition for judicial review, but on certain grounds only. On the hearing, he sought again to present the case including the grounds upon which permission had not been granted.
Held: The judge . .
Cited – V v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
Not followed – Regina v Secretary of State for Home Department ex parte Furber Admn 30-Jun-1997
The court, not the Home Secretary should set the tariff for the detention of a young offender sentenced to life- half determinate sentence. The role of the Lord Chief Justice in relation to tariffs is that ‘The Lord Chief Justice in this context is . .
Cited – Practice Statement (Juveniles: Murder Tariffs) CACD 27-Jul-2000
Legislation is to be enacted to set the tariff for life sentences for youths to be sentenced to life for murder. Until enacted the Lord Chief Justice gave recommendations for both existing and new cases, and the Home Secretary will follow them. . .
Cited – Practice Statement (Crime: Life sentences) LCJ 31-May-2002
The statement followed the report of the Sentencing Advisory Panel of March 15, 2002. The statement contained guidance, not firm rules. The phrase ‘minimum term’ should replace the term ‘tariff’. Offenders are normally not released on the expiry of . .
Cited – Regina on the Application of Smith v The Secretary of State for the Home Department Admn 3-Apr-2003
The case asked what duty the respondent had, in respect of youths sentenced to be detained during Her Majesty’s Pleasure before 30th November 2000, to review their continued detention at regular intervals. A statement said that once a tarriff had . .
Cited – Regina v Secretary of State for the Home Department and Another Ex Parte Bulger QBD 7-Mar-2001
The family of a murder victim has no standing to intervene to challenge the tariff set for the sentence to be served by the youths convicted of the murder. They had been invited to state the impact of their son’s death, but not the sentence to be . .
Cited – Regina v Secretary of State for Home Department ex parte Easterbrook CA 22-Mar-1999
A prisoner subject to a discretionary life sentence argued that as the Lord Chief Justice, in advising the Secretary of State on his tariff, was performing an act equivalent to an act of sentencing the appropriate course was to allow him to make . .
Cited – Easterbrook v The United Kingdom ECHR 12-Jun-2003
The prisoner was convicted of an armed robbery in which a policeman had been shot, and had been sentenced to life imprisonment. The judge set no tariff himself. The tariff was set by the Home Secretary, but only after some time. The discretionary . .
Cited – Goc v Turkey ECHR 9-Nov-2000
The applicant had claimed compensation for unlawful detention and mistreatment during that detention; although the proceedings were civil in nature, they were governed by the code of criminal procedure. The applicant was not given an oral hearing . .
Mentioned – Colozza v Italy ECHR 12-Feb-1985
The defendant complained that he had been tried and convicted in his absence.
Held: The right to a fair trial had been breached: ‘the object and purpose of [article 6] taken as a whole show that a person ‘charged with a criminal offence’ is . .
Cited – Botten v Norway ECHR 19-Feb-1996
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1 (fair hearing); Costs and expenses – claim withdrawn
The lower court had had taken . .
Cited – Zumtobel v Austria ECHR 21-Sep-1993
The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate Government committee heard their objections but confirmed the order. They appealed to an . .
Cited – Rolf Gustafson v Sweden ECHR 1-Jul-1997
Article 6 was engaged by an application for compensation under a statutory compensation scheme. . .
At First Instance – Dudson, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The defendant had committed a murder when aged 16, and after conviction sentenced to be detailed during Her Majesty’s Pleasure. His tarriff had been set at 18 years, reduced to 16 years after review.
Held: ‘What is at issue is the general . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.188050
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 supervising psychiatrist. He complained that his detention was unlawful from that date until a decision was taken correctly.
Held: Though the tribunal lacked the power to secure compliance with its conditions, it did not lack the coercive power which is one of the essential attributes of a court. The lengthy failure to find accomodation did infringe the applicant’s rights. However the detention was not unlawful since there was no concensus for his release. A decision to defer is to be treated as a provisional decision which can be altered if there is a material change of circumstances.
Lord Bingham Of Cornhill Lord Steyn Lord Hobhouse Of Woodborough Lord Scott Of Foscote Lord Rodger Of Earlsferry
[2003] UKHL 59, Times 14-Nov-2003, Gazette 15-Jan-2004, [2003] 3 WLR 1278
Criminal Procedure (Insanity) Act 1964 5, European Convention on Human Rights 5
England and Wales
Appeal from – Regina (IH) v Secretary of State for the Home Department and Another CA 15-May-2002
The applicant was a restricted mental patient. His conditional release had been ordered, but required a consultant psychiatrist to be found who would agree to supervise him. None such could be found, and his detention continued. After two years he . .
Cited – Regina (on the application of K) v Camden and Islington Health Authority CA 21-Feb-2001
The duty of a local authority to seek to provide resources to care for a mental patient after release into the community, is not absolute, and is subject to the limitations of the availability of a sufficient budget. A continued detention in . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – X v United Kingdom ECHR 5-Nov-1981
(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the . .
Cited – Johnson v The United Kingdom ECHR 24-Oct-1997
Mr Johnson awaited trial for crimes of violence. He was diagnosed mentally ill, and on conviction made subject to a hospital order, and restricted without limit of time. He made progress, but was not discharged or re-classified. At a fourth tribunal . .
Cited – Regina v Oxford Regional Mental Health Review Tribunal, Ex parte Secretary of State for the Home Department (Campbell’s Case) HL 1988
The House decided that section 73 of the 1983 Act provided a two-stage process in relation to a patient’s conditional discharge. The tribunal first decides that it will direct the discharge subject to conditions, but defers giving the direction so . .
Cited – 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. . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.187759
The patient was ordered to be discharged and released from hospital. The tribunal making the order had not accepted the medical recommendations. His release was deferred pending the finding of accommodation, but in the meantime, a social worker applied for his re-admission.
Held: The approved social worker could not apply in these circumstances unless he considered reasonably and in good faith that he knew of circumstances which were not before the tribunal, and which would put a different complexion on that decision. The common law respects and protects the personal freedom of the individual, which may not be curtailed save for a reason and in circumstances sanctioned by the law of the land, but law may properly provide for the compulsory detention in hospital of those who suffer from mental disorder if detention is judged to be necessary for the health or safety of the patient or the protection of others. A person compulsorily detained on mental health grounds should have the right to take proceedings by which the lawfulness of his detention may be decided by a court.
Lord Bingham of Cornhill Lord Steyn Lord Hobhouse of Woodborough Lord Scott of Foscote Lord Rodger of Earlsferry
[2003] UKHL 58, Times 14-Nov-2003, Gazette 05-Feb-2004, [2004] 2 AC 280, [2004] Lloyds Rep Med 228, (2004) 7 CCL Rep 121, [2004] 1 All ER 400, [2003] 3 WLR 1265, [2004] HRLR 6, (2004) 76 BMLR 168
England and Wales
Appeal from – Regina (Count Franz Von Brandenburg (aka Hanley) ) v East London and The City Mental Health NHS Trust, Snazell, Approved Social worker CA 21-Feb-2001
The court was asked ‘When a mental health review tribunal has ordered the discharge of a patient, is it lawful to readmit him under section 2 or section 3 of the [Mental Health Act 1983] where it cannot be demonstrated that there has been a relevant . .
Mentioned – Regina v Managers of South Western Hospital and Another, Ex Parte M QBD 24-Mar-1993
The patient was detained on the application of an AMHP. In purported pursuance of section 11(4) the AMHP had consulted the patient’s mother as her nearest relative. However, the patient’s mother was not ordinarily resident in the UK, and, according . .
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 – Johnson v The United Kingdom ECHR 24-Oct-1997
Mr Johnson awaited trial for crimes of violence. He was diagnosed mentally ill, and on conviction made subject to a hospital order, and restricted without limit of time. He made progress, but was not discharged or re-classified. At a fourth tribunal . .
Appealed to – Regina (Count Franz Von Brandenburg (aka Hanley) ) v East London and The City Mental Health NHS Trust, Snazell, Approved Social worker CA 21-Feb-2001
The court was asked ‘When a mental health review tribunal has ordered the discharge of a patient, is it lawful to readmit him under section 2 or section 3 of the [Mental Health Act 1983] where it cannot be demonstrated that there has been a relevant . .
Cited – P, Regina (on the Application of) v Secretary of State for the Home Department Admn 11-Dec-2003
The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
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.
Updated: 08 June 2022; Ref: scu.187758
Hudoc Judgment (Struck out of the list)
34669/97, [2003] ECHR 573
European Convention on Human Rights
Updated: 08 June 2022; Ref: scu.187662
Hudoc Judgment (Struck out of the list) Struck out of the list (friendly settlement)
37774/97, [2003] ECHR 579
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.187660
Hudoc Judgment (Struck out of the list) Struck out of the list (friendly settlement)
31731/96, [2003] ECHR 575
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.187659
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost entirely male.
Held: (Majority) Since juries are chosen at random from jury lists, a non-discriminatory method of compilation of the jury lists is an essential ingredient of a fair trial by jury. This is inherent in the concept of a fair trial by an impartial jury. Fairness is achieved in the composition of a jury by random selection from a list which is itself fairly constituted. Section 19 of the Supreme Court Ordinance violates section 8 of the Constitution in so far as it discriminates between men and women regarding liability for jury service. There is a strong but rebuttable presumption that a jury acts impartially.
Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough, Lord Millett, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe
[2003] UKHL 76, Times 13-Nov-2003, [2003] UKPC 76, [2004] 1 WLR 201
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Ponsamy Poongavanam v Regina PC 6-Apr-1992
(Mauritius) The defendant appealed conviction on the ground that the jury had been all male. Women being effectively excluded from jury service in Mauritius. The question was whether, having regard to the composition of the jury, the appellant’s . .
Cited – Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .
Cited – Commissioner of Police v Davis PC 1994
(Bahamas) Certain statutory provisions relating to drug offences infringed the Constitution of The Bahamas. A question then arose on the severability of one of the offending statutory provisions, section 22(8) of the Dangerous Drugs Act. This . .
Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .
Cited – Regina v Hughes PC 11-Mar-2002
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading . .
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Cited – Director of Public Prosecutions of Jamaica v Mollison (No 2) PC 22-Jan-2003
(Jamaica ) The appellant had been convicted of murder as a youth. He was sentenced to be detained during Her Majesty’s pleasure. The actual length of time to be served was decided by the Governor-General. The decision by the Governor was clearly a . .
Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Marshall and Others v Deputy Governor of Bermuda and Others PC 24-May-2010
marshall_dgPC10
(Bermuda) The claimants challenged their recruitment by conscription to the Bermuda Regiment on several different grounds. The issues now were whether conscription was lawful only where volunters were insufficient, and whether the acceptance of . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.187746
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses partial award – Convention proceedings
34442/97, [2003] ECHR 572
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.187661
ECHR 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
59635/00, [2003] ECHR 574
Human Rights
Updated: 08 June 2022; Ref: scu.187664
ECHR Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
53844/00, [2003] ECHR 571
Human Rights
Updated: 08 June 2022; Ref: scu.187668
ECHR Judgment (Merits and just satisfaction) Violation of Art. 10 ; Pecuniary damage – financial award ; Costs and expenses award – domestic proceedings ; Costs and expenses award – Convention proceedings
40284/98, [2003] ECHR 577
Human Rights
Updated: 08 June 2022; Ref: scu.187666
ECHR 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
53161/99, [2003] ECHR 578
European Convention on Human Rights
Human Rights
Updated: 08 June 2022; Ref: scu.187665
ECHR Judgment (Merits and just satisfaction) No violation of Art. 6-1 in respect of one set of proceedings ; Violation of Art. 6-1 in respect of one set of proceedings ; Pecuniary damage – claim rejected ; Costs and expenses partial award
52037/99, [2003] ECHR 570
Human Rights
Updated: 08 June 2022; Ref: scu.187667
[2003] EWHC 2479 (Admin)
England and Wales
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.187609