Category: Human Rights

Perotti v Collyer-Bristow (A Firm) and others: CA 6 Oct 2003

So far as civil proceedings are concerned, the funding of particular cases by civil legal aid was a matter for the Legal Services Commission. The courts have no residual power to make an order for assistance. The most it could do would be to indicate that it considered legal representation to be necessary to avoid the claimant’s human rights being infringed.

Judges:

Chadwick, Carnwath LJJ

Citations:

[2003] EWCA Civ 1521, Times 27-Nov-2003

Links:

Bailii

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

England and Wales

Citing:

See also – Perotti v Collyer-Bristow (A Firm) CA 21-May-2004
The claimant had been dissatisfied with the way in which the defendant had administered the estate of his deceased uncle. The court had faced 14 applications by him.
Held: ‘They are all totally devoid of merit. They were all made long after . .
See also – Perotti v Watson and others CA 26-Feb-2004
The appellant seeking leave to appeal had previously asked for legal assistance. Mr Perottis had been involved in litigation against his father’s administrator over many years. A civil restraint order had been made against him. The first defendant . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Aid, Human Rights

Updated: 08 June 2022; Ref: scu.187580

Gillan and Another, Regina (on the Application of) v Commissioner of the Police for the Metropolis and Another: Admn 31 Oct 2003

The applicants challenged by way of judicial review the way they had been stopped and searched under the Act. They attended a demonstration. The search revealed nothing suspicious. General authorisations for such searches had been issued under the Act.
Held: The section should not be read so as to restrict the power to issue authorisations for searches only when there was some imminent threat. Lord Justice Brooke said: ‘the powers are so sweeping and far beyond anything ever permitted by common law powers – the police can stop and search anybody at any time anywhere without any prior grounds of suspicion within a huge metropolitan district – it behoves the police to take particular care to ensure that these powers are not used arbitrarily or against any particular group of people’ and
‘There is just enough evidence available to persuade us that in the absence of any evidence that these powers were being habitually used on occasions which might represent symbolic targets, the arms fair was an occasion which concerned the police sufficiently to persuade them that the use of section 44 powers was needed ‘ The claim failed.
‘It seems to us that a lot of the trouble in this case has arisen because what should be a very quick random stop/search procedure has been elevated into a slow bureaucratic process that would be far more appropriate for a stop/search where there is reasonable cause for police suspicion. No wonder people got annoyed. ‘

Judges:

Lord Justice Brooke And Mr Justice Maurice Kay

Citations:

[2003] EWHC 2545 (Admin), Times 05-Nov-2003, [2003] All ER (D) 526

Links:

Bailii

Statutes:

Terrorism Act 2000 44, European Convention on Human Rights 5 8 10

Jurisdiction:

England and Wales

Citing:

Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .

Cited by:

Appeal from – Gillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
At first instance – Gillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .
At First Instance – Gillan and Quinton v The United Kingdom ECHR 10-Jun-2008
The court set the questions to be answered later in response to the complaint as to the use of stop and search powers by the British police. . .
At First Instance – Gillan and Quinton v The United Kingdom ECHR 12-Jan-2010
The claimants had been stopped by the police using powers in the 2000 Act. They were going to a demonstration outside an arms convention. There was no reason given for any suspicion that the searches were needed.
Held: The powers given to the . .
At First Instance – Gillan and Quinton v The United Kingdom ECHR 12-May-2009
(Admissibility and Summary) . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 08 June 2022; Ref: scu.187314

PD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal: Admn 22 Oct 2003

The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the applicant’s right to a fair trial. The issue was whether a fair-minded and informed observer, having considered the facts would perceive a real possibility of subconscious bias. The tribunal had to offer sufficient guarantees to exclude any legitimate doubt as to its impartiality. The consultant’s denial of bias was of no consequence. The consultant had no contact outside the tribunal with the case or any party to it. He was acting outside the roles in which he might be subject to any pressure, and his employment rights were established. No threat of bias was established.

Judges:

Silber J

Citations:

[2003] EWHC 2469 (Admin), Times 31-Oct-2003, Gazette 02-Jan-2004

Links:

Bailii

Statutes:

Mental Health Act 1983 3, Mental Health Review Tribunal Rules 1983 (SI 1983/942) 2

Jurisdiction:

England and Wales

Citing:

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 – Aerts v Belgium ECHR 30-Jul-1998
A person detained as a person of unsound mind should not be kept in a prison, but if the institution concerned is within the appropriate category, there is no breach of Article 5. While measures depriving a person of his liberty often involve an . .
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 – Johnson v Johnson 7-Sep-2000
(High Court of Australia) When looking to test whether a member of the public would perceive bias in a court, it is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. One is entitled to conclude . .
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 . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Sramek v Austria ECHR 22-Oct-1984
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings
The . .
Cited – Belilos v Switzerland ECHR 29-Apr-1988
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (validity of declaration); Violation of Art. 6-1; Costs and expenses award – domestic proceedings; Costs and expenses award – . .
Cited – Langborger v Sweden ECHR 22-Jun-1989
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 award – Convention proceedings
Cited – Morris v The United Kingdom ECHR 26-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to general structure of court martial system; No violation of Art. 6-1 with regard to specific complaints; No violation of Art. . .
Cited – Re A Company CA 1980
The court considered that even when not narrowly construing the word ‘officer’ in the Act, that word meant, in that context, ‘a person in a managerial position in regard to the company’s affairs’ . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 08 June 2022; Ref: scu.187120

Menson v United Kingdom: ECHR 6 May 2003

There had been a racist attack. The victim was set on fire and killed in the street by assailants. His relatives sought compensation. However the assailants were not agents of the state and they were duly prosecuted, convicted and sentenced. No blame attached to state authorities for the killing and no breach of the state’s investigative duty was found.
Held: While certain familiar principles were rehearsed, the complaint was held to be manifestly ill-founded.
‘The Court observes that the applicants have not laid any blame on the authorities of the respondent State for the actual death of Michael Menson; nor has it been suggested that the authorities knew or ought to have known that Michael Menson was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against that risk. The applicants’ case is therefore to be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see, for example, McCann v United Kingdom (1995) [21 EHRR 97]; Jordan v United Kingdom (2001) [37 EHRR 52]; Shanaghan v United Kingdom, (Application No 37715/97, BAILII: [2001] ECHR 330), judgment of 4 May 2001, ECHR 2001-III (extracts), or in which the factual circumstances imposed an obligation on the authorities to protect an individual’s life, for example where they have assumed responsibility for his welfare (see, for example, Edwards v United Kingdom (2002) [35 EHRR 487]), or where they knew or ought to have known that his life was at risk (see, for example, Osman v United Kingdom (1998) 29 EHRR 245 . . However, the absence of any direct state responsibility for the death of Michael Menson does not exclude the applicability of article 2. It recalls that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see LCB v United Kingdom (1998) 27 EHRR 212] para 36), article 2 para 1 imposes a duty on that state to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions.
With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in Michael Menson’s case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life.’

Citations:

47916/99, [1998] ECHR 107, (2003) 37 EHRR CD 220, [2003] Inquest LR 146, [2003] Po LR 155

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Human Rights

Cited by:

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 . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
Cited – Reynolds, Regina (on the Application of) v Independent Police Complaints Commission and Another CA 22-Oct-2008
The court was asked to consider whether the IPCC could investigate the circumstances leading to the arrest of a suspect who fell into a coma after being arrested for being drunk. The IPCC appealed, saying that it did not have jurisdiction to . .
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.
Cited – Secic v Croatia ECHR 31-May-2007
The applicant had been attacked and beaten by skinheads shouting racial abuse. He complained that as a Roma, the police had failed through race discrimination properly to investigate his complaint.
Held: The court repeated the statement that . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Coroners

Updated: 08 June 2022; Ref: scu.186853

Konig v Federal Republic of Germany: ECHR 28 Jun 1978

The reasonableness of the duration of proceedings must be assessed according to the circumstances of each case, including its complexity, the applicant’s conduct and the manner in which the administrative and judicial authorities dealt with the matters. ‘Both the Commission and the government agree that the concept of ‘civil rights and obligations’ cannot be interpreted solely by reference to the domestic law of the respondent state. . . the concept of ‘civil rights and obligations’ is autonomous. Whilst the court thus concludes that the concept of ‘civil rights and obligations’ is autonomous, it nevertheless does not consider that, in this context, the legislation of the state concerned is without importance. Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right – and not its legal classification – under the domestic law of the state concerned. In the exercise of its supervisory functions, the court must also take account of the object and purpose of the Convention and of the national systems of other contracting states.’

Citations:

(1978) 2 EHRR 170, 6232/73, [1978] ECHR 3, [1978] ECHR 3, [1980] ECHR 2

Links:

Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights

Cited by:

Cited – Aaron v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have . .
Cited – Secretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
See Also – Konig v Germany ECHR 10-Mar-1980
Hudoc Judgment (Just satisfaction) Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 June 2022; Ref: scu.186742

Khan, Regina (on the Application of) v Secretary of State for Health: CA 10 Oct 2003

The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There remained unresolved suspicions of negligence having been covered up. They had been refused legal aid to be represented at the inquest.
Held: ‘Where agents of a state bear potential responsibility for the loss of a human life, the state should provide a procedural mechanism whereby the cause of death may be investigated, and responsibility for the death ascertained, through an investigation held in public which must be both judicial and effective; The Convention is not prescriptive about the manner in which this investigation should take place, but the more serious the events that call for inquiry, the more intensive should be the process of public scrutiny. In such cases the families of the deceased should be involved in the procedure to the extent that is necessary to safeguard their interests.’
The inquest might not be sufficiently wide ranging to satisfy the right, and the respondent should take an opportunity to reconsider his decision not to provide assistance: ‘The procedural obligation introduced by article 2 has three interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; and to assuage the anxieties of the public.’
‘the function of an inquest is inquisitorial, and in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented’

Judges:

Brooke VP, Waller, Clarke LJJ

Citations:

[2004] 1 WLR 971, [2003] EWCA Civ 1129, Times 15-Oct-2003, Gazette 20-Nov-2003, [2003] Inquest LR 70, [2003] 3 FCR 341, (2004) 76 BMLR 118, [2003] ACD 89, (2004) 7 CCL Rep 361, [2003] 4 All ER 1239, [2004] Lloyd’s Rep Med 159

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

Cited – Powell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
Cited – Regina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Sieminska v Poland ECHR 29-Mar-2001
The applicant’s husband died in hospital, but she later complained that the ambulance had not been equipped with the necessary resuscitation devices. Under Polish law she had a right to appeal against decisions of the prosecuting authorities not to . .
Cited – Calvelli and Ciglio v Italy ECHR 17-Jan-2002
The applicants’ baby had died shortly after birth in 1987. They complained about the medical care. The complaint was not investigated speedily by the authority, resulting in a criminal complaint becoming time barred after a conviction in 1994 was . .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
Cited – Oneryildiz v Turkey ECHR 30-Nov-2004
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house killing his close relatives.
Held: The . .
Cited – Mastromatteo v Italy ECHR 24-Oct-2002
The deceased had been a bystander killed by a group of criminals, some of whom were on leave of absence from prison and one of whom had absconded from prison. A complaint was made by the applicant that there had been a breach of the positive duty to . .
Cited – Hurst v Coroner Northern District of London Admn 4-Jul-2003
The deceased was killed by Mr Reid, a neighbour, who was convicted of his manslaughter.
Held: The court quashed the coroner’s refusal to accede to the application of the deceased’s father to resume an adjourned inquest into the death, at which . .
Cited – 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 Secretary of State for Health, Ex Parte Wagstaff etc QBD 31-Aug-2000
The Secretary of State announced a public enquiry into the Shipman case. He did not say whether it would be a public enquiry. The bereaved families and media wanted it to be public, and contended that it had been invalidly constituted, that an . .
Cited – Credit Suisse and Another v Waltham Forest London Borough Council CA 20-May-1996
Parliament had made detailed provision in a number of Acts for the discharge of the housing duties by local authorities. These detailed provisions did not contain a power to give a guarantee in connection with a bank loan to a company which the . .
Appeal from – Khan, Regina (on the Application Of) v Secretary of State for Health Admn 17-Jun-2003
. .

Cited by:

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 – Plymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
Cited – Letts, Regina (on The Application of) v The Lord Chancellor and Another Admn 20-Feb-2015
Application for judicial review concerning the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Legal Aid, Coroners

Updated: 08 June 2022; Ref: scu.186692

Von Bulow v The United Kingdom: ECHR 7 Oct 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings

Citations:

75362/01, [2004] ECHR 721, [2003] ECHR 478

Links:

Worldlii, Bailii, Bailii

Cited by:

Cited – Martin Corey, Re for Judicial Review SC 4-Dec-2013
The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 June 2022; Ref: scu.186662

Wainwright and another v Home Office: HL 16 Oct 2003

The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched which was a battery.
Held: The policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. Wilkinson v Downton does not provide a remedy for distress not amounting to recognized psychiatric injury. The prison officers acted in good faith, and there had been no more than ‘sloppiness’ in their failures to comply with the rules. The House could not extend the law to create a new tort of invasion of privacy to provide for damages for distress alone. The existence of a Convention right cannot call for instant manufacture of a corresponding common law right where none exists.

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Lord Scott of Foscote

Citations:

[2003] UKHL 53, Times 20-Oct-2003, [2003] 3 WLR 1137, 2004] 2 AC 406

Links:

House of Lords, Bailii

Statutes:

Prisons Act 1952 47(1), European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Letang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
Cited – Collins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
Mentioned – Wilson v Pringle CA 26-Mar-1986
Two boys played in a school yard. D said he had pulled a bag from the other’s shoulder as an ordinary act of horseplay. The plaintiff said it was a battery.
Held: The defendant’s appeal against summary judgment was allowed. A claim of trespass . .
Distinguished – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
Cited – Malone v Commissioner of the Police for the Metropolis (No 2) ChD 28-Feb-1979
The court considered the lawfulness of telephone tapping. The issue arose following a trial in which the prosecution had admitted the interception of the plaintiff’s telephone conversations under a warrant issued by the Secretary of State. The . .
Cited – Khorasandjian v Bush CA 16-Feb-1993
The plaintiff was an eighteen year old girl who had had a friendship with the defendant, aged 28. The friendship broke down and the plaintiff said she would have no more to do with him, but the defendant did not accept this. There were many . .
Mentioned – Khan v The United Kingdom ECHR 12-May-2000
Evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. The police had installed covert listening devices on private property without the knowledge or consent of the owner. UK national law did . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Regina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
Cited – Kaye v Robertson CA 16-Mar-1990
A newspaper reporter and photographer invaded the (famouse) plaintiff’s hospital bedroom, purported to interview him and took photographs.
Held: The law of trespass provided no remedy because the plaintiff was not owner or occupier of the room . .
Cited – Earl Spencer v United Kingdom ECHR 1998
The English law of confidence provided an adequate remedy to restrain the publication of private information about the applicants’ marriage and medical condition and photographs taken with a telephoto lens. These developments showed that the basic . .
Cited – Campbell v Mirror Group Newspapers plc CA 14-Oct-2002
The newspaper appealed against a finding that it had infringed the claimant’s privacy by publishing a photograph of her leaving a drug addiction clinic.
Held: The claimant had courted publicity, and denied an involvement in drugs. The defence . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
Cited – Peck v The United Kingdom ECHR 28-Jan-2003
peck_ukECHR2003
The claimant had been filmed by CCTV. He had, after attempting suicide, left home with a knife, been arrested by the police and disarmed, but then sent home without charge. The CCTV film was used on several occasions to advertise the effectiveness . .
Cited – Wong v Parkside Health NHS Trust and Another CA 16-Nov-2001
The claimant had sued her former employer for post-traumatic stress resulting from alleged harassment at her place of work. The claimant appealed against an order refusing damages. The court had held that outside the 1997 Act which was not in force . .
Cited – Victorian Railway Commissioners v Coultas PC 21-Jan-1888
(Victoria) The appellant’s gatekeeper had negligently invited the plaintiffs to cross a railway line as a train approached. There was no collision, but the plaintiff sought damages for physical and mental injuries from shock.
Held: The . .
Cited – Dulieu v White and Sons KBD 1901
A pregnant barmaid suffered nervous shock causing her to give premature birth as a result of the tortfeasor’s horse van bursting into her bar at the Bonner Arms in Bethnal Green from the roadway. The defendant pleaded that the damages claimed were . .
Cited – Janvier v Sweeney 1919
During the First World War Mlle Janvier lived as a paid companion in a house in Mayfair and corresponded with her German lover who was interned as an enemy alien on the Isle of Man. Sweeney was a private detective who wanted secretly to obtain some . .
Cited – Valasinas v Lithuania ECHR 24-Jul-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 with regard to body search; No violation of Art. 3 with regard to other complaints; Violation of Art. 8; No violation of Art. 34; Non-pecuniary . .
Cited – Iwanczuk v Poland ECHR 15-Nov-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Violation of Art. 5-3; Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Lorse and Others v The Netherlands ECHR 4-Feb-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 with regard to the first applicant ; No violation of Art. 3 with regard to the other applicants ; No violation of Art. 8 ; No violation of Art. 13 . .
Cited – Hicks v Chief Constable of the South Yorkshire Police 1992
. .
Appeal from – The Home Office v Wainwright and Wainwright CA 20-Dec-2001
The claimants were awarded damages, following the way they were searched on seeking to enter prison on a visit. The Home Office appealed. They were asked to sign a consent form, but only after the search was nearly complete. They were told the . .

Cited by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Greene v Associated Newspapers Ltd CA 5-Nov-2004
The claimant appealed against refusal of an order restraining publication by the respondent of an article about her. She said that it was based upon an email falsely attributed to her.
Held: ‘in an action for defamation a court will not impose . .
Cited – Langley and others v Liverpool City Council and others CA 11-Oct-2005
Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Cited – KD v Chief Constable of Hampshire QBD 23-Nov-2005
The claimant’s daughter had made a complaint of rape. She alleged that she was sexually harassed by the investigating police officer, and sought damages also from the defendant, his employer. The officer denied that anything improper or . .
At House of Lords – Wainwright v The United Kingdom ECHR 26-Sep-2006
The claimants complained of having been strip searched when visiting a relative at Leeds Prison.
Held: The complaint succeeded: ‘the searches were proportionate to that legitimate aim in the manner in which they were carried out. Where . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – Google Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other, Human Rights

Updated: 08 June 2022; Ref: scu.186776

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 engaged the defendants article 6 rights. The need for prison discipline was not a justification for removing such rights. The offences were not purely disciplinary. Though the additional days would not extend the terms served beyond the original periods set down by the courts, the effect was still to extend the actual term to be served. The refusal of legal representation was an infringement of their rights.

Citations:

40086/98, 39665/98, Times 30-Oct-2003, [2003] ECHR 485

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Citing:

See also – Ezeh and Connors v The United Kingdom ECHR 15-Jul-2002
The applicants were serving prisoners. They had been the subject of disciplinary proceedings in which they had been denied the right to representation. They claimed an infringement of their right to a fair trial.
Held: Both proceedings had . .

Cited by:

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 – Cooper v The United Kingdom ECHR 16-Dec-2003
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.
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – 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 . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 08 June 2022; Ref: scu.186650

Purja and others v Ministry of Defence: CA 9 Oct 2003

The applicants were Gurkha soldiers who complained at the differences in treatment of them as against other members of the forces as regards payment, pensions and otherwise, alleged infringement oftheir Article 14 rights, which prevented discrimination on the grounds of national or social origin.
Held: In isolation, these soldiers were treated differently and worse. Howeevr the greater cost of living in Britain rather than Nepal justified that difference. There were also other additional benefits for Gurkhas, including longer leave periods. The two groups were not in a comparable position. Rix LJ, dissenting, the restriction which did not allow more than 25% of Gurkha soldiers to have their wives accompany them was discriminatory.

Judges:

Lord Justice Chadwick Lord Justice Rix Lord Justice Simon Brown

Citations:

[2003] EWCA Civ 1345, Times 16-Oct-2003, Gazette 16-Oct-2003, [2004] 1 WLR 289

Links:

Bailii

Statutes:

European Convention on Human Rights 14

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (Purja) v Ministry of Defence; Regina (Lama) v Same Admn 21-Feb-2003
The applicants served as Gurkha soldiers with the army. They claimed that the pensions they received, being substantially less than those paid to other servicemen were discriminatory.
Held: The positions of a retired serviceman in England and . .

Cited by:

See Also – Limbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others Admn 30-Sep-2008
The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Armed Forces, Human Rights

Updated: 08 June 2022; Ref: scu.186637

Karner v Austria: ECHR 24 Jul 2003

A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of unmarried different-sex partners and unmarried same-sex partners, and that that view is supported by recommendations and legislation of European institutions’.
Held: The claim succeeded. As to the margin of appreciation the ECHR stated: ‘The Court can accept that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment. It remains to be ascertained whether, in the circumstances of the case, the principle of proportionality has been respected. The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it. In cases in which the margin of appreciation afforded to Member States is narrow, as [is] the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary to exclude persons living in a homosexual relationship from the scope of [the relevant provision] of the Rent Act in order to achieve that aim.’ The court expressly did not decide whether the applicant’s case fell within the scope of ‘family life’ or ‘private life’.

Judges:

CL ROZAKIS, P

Citations:

(2003) 38 EHRR 528, 40016/98, (2003) 2 FLR 623, [2003] ECHR 395, [2003] Fam Law 724, [2004] 2 FCR 563, 14 BHRC 674, [2004] 38 EHRR 24

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Superceded – S v United Kingdom ECHR 1986
The applicant was not entitled in domestic law to succeed to a tenancy on the death of her partner. The aim of the legislation is question was to protect the family, a goal similar to the protection of the right to respect for family life guaranteed . .
Superceded – Roosli v Germany ECHR 1996
. .

Cited by:

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 – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Rodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
Cited – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing, Discrimination

Updated: 08 June 2022; Ref: scu.186171

A, Regina (on the Application of) v Harrow Crown Court and others: Admn 14 Aug 2003

The applicant sought his release from detention in hospital, correction of records at the Crown Court, and confirmation that his detention had infringed his human rights. He had been accused of two assaults, but was found unfit to plead under section 4 by a jury. He was however later made subject to the s37 order.
Held: Following Fairley, the court did not have power to make the order it had. However the earlier order remained valid until revoked.

Judges:

The Honourable Mr Justice Stanley Burnton

Citations:

[2003] EWHC 2020 (Admin)

Links:

Bailii

Statutes:

Offences Against the Persons Act 1861 16, Criminal Procedure (Insanity) Act 1964 4, Mental Health Act 1983 31

Jurisdiction:

England and Wales

Citing:

Cited – Regina v H (On appeal from the Court of Appeal (Criminal Division)) HL 30-Jan-2003
The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the . .
Cited – Regina v Fairley CACD 2003
A section 37 order is not available to a court where a defendant has been found unfit to plead, with an additional finding fo fact that he had committed the act. That finding was not a finding of guilt. . .
Cited – Chuck v Cremer 24-Jul-1846
The plaintiff’s solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been . .
Cited – Hadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 08 June 2022; Ref: scu.185651

Ibbotson v United Kingdom: ECHR 1998

While the applicant was serving a sentence for possession of obscene material, the 1997 Act came into force, requiring him to register with the police. It was argued that the passing of the Act and its impact on the offender involved a ‘penalty’ within the meaning of Article 7. The registration requirements applied automatically to an offender in the applicant’s position in that case and the judge had no role in the imposition of the Act’s requirements.
Held: ‘Overall the Commission considers that, given in particular the way in which the measures imposed by the Act operate completely separately from the ordinary sentencing procedures, and the fact that the measures do not, ultimately, require more than mere registration, it cannot be said that the measures imposed on the applicant amounted to a ‘penalty’ within the meaning of Article 7 of the Convention.’

Citations:

40146/98, [1999] Crim LR 153, (1998) 27 EHRR CD332, [1998] ECHR 119

Links:

Bailii

Statutes:

Sex Offenders Act 1997

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v R (Sentencing: Extended licences) CACD 25-Jul-2003
The imposition of an extended period of licence in respect of offences committed before 1992 did not infringe the defendant’s human rights. The defendant had been convicted of offences from 1976 and 1982. The commencement date for the 1991 Act was 1 . .
Cited – Regina v JT CACD 2003
The provisions of section 68 were punitive, and therefore could not be read to have retrospective effect. . .
Cited – Regina on the Application of Uttley v Secretary of State for the Home Department CA 30-Jul-2003
Licence conditions imposed at the time of sentence would restrict the defendant after he had served his sentence and been released, and so operated as a heavier penalty, and section 33(1) was incompatible with the defendant’s Art 7.1 rights.
Cited – R, Regina (on the Application of) v Durham Constabulary and Another HL 17-Mar-2005
The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable . .
Cited – F and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 08 June 2022; Ref: scu.185764

Lambeth London Borough Council v Howard: CA 6 Mar 2001

Any attempt to evict a person, whether directly or indirectly or by process of law, from his or her home is on the face of it a derogation from the respect to which the home is prima facie entitled. Courts should be careful fully to explain any weighing of proportionality in a human rights case where social need was used to justify interference with a right. In this case ‘the shadow of the past was too heavy’ to be ignored and prevent an outright possesion order.

Judges:

Sedley LJ

Citations:

[2001] 33 HLR 636, [2001] EWCA Civ 468

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Coates and others v South Buckinghamshire District Council CA 22-Oct-2004
The local authority had required the applicants to remove their mobile homes from land. They complained that the judge had failed properly to explain how he had reached his decision as to the proportionality of the pressing social need, and the . .
Cited – Knowsley Housing Trust v McMullen CA 9-May-2006
The defendant tenant appealed an order for possession of her flat. She was disabled and living with her 19 year old son. He had been made subject to an anti-social behaviour order. The court had found that she could have required him to leave. The . .
Cited – London and Quadrant Housing Trust v Root CA 12-Jan-2005
The tenant had a partner whom she could not control, and who had terrorised her to the nuisance also of her neighbours. The landlord sought possession, and until that was granted an anti-social behaviour order (ASBO) against the partner. Before the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 07 June 2022; Ref: scu.185444

Di Palma v United Kingdom: ECHR 1 Dec 1986

(Commission/admissibility) The applicant’s lease was forfeited on her non-payment of a service charge and possession was ordered. Her primary claim was made (unsuccessfully) under article 1 of the First Protocol to the Convention. But she also complained that her eviction from her home constituted an unjustified interference with the right to respect for her home protected by article 8. The Commission held this complaint to be manifestly ill-founded because ‘any interference with [her] right to respect for her home which the forfeiture of her lease engendered was in conformity with Article 8(2).’ The interference with the applicant’s article 8 rights brought about by the forfeiture of her lease on account of her failure to pay a service charge ‘ . . was in conformity with Art.8(2) as a measure which was in accordance with the law and necessary in a democratic society for the protection of the rights of others.’
A private sector landlord forfeited a long and valuable residential lease for non-payment of a relatively small amount of service charge, and the court refused the tenant relief from forfeiture owing to her refusal to apply within the statutorily prescribed time. The Commission rejected the tenant’s application, which was based on articles 6, 8, 13 and 14 and on A1P1, as manifestly ill-founded, as the Government’s Convention responsibilities were not engaged by an ‘exclusively private law relationship between the parties’
The fact that a domestic court made the orders granting forfeiture and refusing relief made no difference, as the court ‘merely provided a forum for the determination of the civil right in dispute between the parties’.

Citations:

(1986) 10 EHRR 149, 11949/86, [1986] ECHR 19

Links:

Bailii

Statutes:

European Convention on Human Rights 1 8

Jurisdiction:

Human Rights

Cited by:

Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Manchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
Cited – Sims v Dacorum Borough Council SC 12-Nov-2014
Surrender at Common Law Survives Human Rights Law
The tenants held a secure weekly tenancy of the respondent under a joint tenancy. After a relationship breakdown, Mrs Sims had given notice to quit. Mr Sims, left in possession now argued that the common law rules should not be allowed to deprive . .
Cited – McDonald v McDonald and Others SC 15-Jun-2016
Her parents had bought a house and granted tenancies to their adult daughter (the appellant), who suffered a personality disorder. They became unable to repay the mortgage. Receivers were appointed but the appellant fell into arrears with the rent. . .
Cited – Watts v Stewart and Others CA 8-Dec-2016
The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security.
Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 07 June 2022; Ref: scu.185438

London Borough of Harrow v Qazi: CA 3 Dec 2001

The applicant had been a joint tenant of the respondent. His co-tenant had terminated the tenancy. He now challenged the possession proceedings saying that they would deprive him of his home.
Held: The appeal succeeded. The question before the court was ‘whether a former tenant whose tenancy has come to an end by operation of law can, after that time, have a right to a home for the purposes of Article 8 of the Convention’ The court rejected the argument that article 8 is not engaged where a former tenant lacks any legal or equitable right or interest in the house.

Judges:

Arden LJ, Peter Gibson LJ, Mantell LJ

Citations:

[2001] EWCA Civ 1834, [2002] HLR 276, [2001] EWCA Civ 1834

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 07 June 2022; Ref: scu.185434

Allen v United Kingdom: ECHR 10 Sep 2002

The court rejected as inadmissible an application challenging admissibility of evidence obtained from him by the Revenue either by compulsion or inducement.
Held: ‘The Court notes that in this case the applicant does not complain that the information about his assets which he gave the Inland Revenue was used against him in the sense that it incriminated him in the commission of an offence due to acts or omissions in which he had been involved prior to that moment. His situation may therefore be distinguished from that of the applicant in Saunders . . The applicant was charged with and convicted of the offence of making a false declaration of his assets to the Inland Revenue. In other words, he lied, or perjured himself through giving inaccurate information about his assets. This was not an example of forced self-incrimination about an offence which he had previously committed; it was the offence itself. It may be that the applicant lied in order to prevent the Inland Revenue uncovering conduct which might possibly be criminal and lead to a prosecution. However, the privilege against self-incrimination cannot be interpreted as giving a general immunity to actions motivated by the desire to evade investigation by the revenue authorities.’ The court noted small penalties for refusing a declaration and the two years imprisonment for refusing to answer questions in Saunders and added: ‘Nor does the Court consider that any improper inducement was brought to bear through the use of the so-called ‘Hansard Warning’ which informed the applicant of the practice of the Inland Revenue of taking into account the co-operation of the taxpayer in deciding whether to bring any prosecution for fraud. There is no indication that the applicant was misled as to the effect of the warning, accepting that it could not be interpreted as any kind of guarantee of freedom from prosecution. Consequently, the Court does not find that the facts of this case disclose any infringement of the right to silence or privilege against self-incrimination or that there has been any unfairness contrary to Article 6 ss 1 of the Convention.’

Citations:

76574/01, [2002] ECHR 858

Links:

Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v Sewa Singh Gill and Paramjit Singh Gill CACD 31-Jul-2003
The appellants sought to challenge their convictions for cheating the Inland Revenue. They were accused of having hidden assets and income from the revenue. The appellants objected to the use at trial of material obtained in a ‘Hansard’ interview. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Taxes Management

Updated: 07 June 2022; Ref: scu.185070

Giles, Regina (on the Application of) v Parole Board and Another: HL 31 Jul 2003

The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. He wanted a consideration which would parallel the new won rights of review for discretionary lifers.
Held: His appeal was dismissed. The structure of the Act did not envisage such a review. Any relief would have to be found in Human Rights law. The primary target of article 5(4), read with article 5(1), is deprivation of liberty which is arbitrary, or directed or controlled by the executive. The sentence was imposed by the judge, and should be treated as any other sentence. The parallel with discretionary lifers failed. Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court.
Lord Bingham described the core rights which Article 5 is designed to protect in the following terms: ‘Its primary target is deprivation of liberty which is arbitrary or directed or controlled by the executive.’
Lord Hope considered the cases of E v Norway and Van Droogenbroeck, saying: ‘The important point which emerges from these two decisions for present purposes is that a distinction is drawn between detention for a period whose length is embodied in the sentence of the court on the one hand and the transfer of decisions about the prisoner’s release or re-detention to the executive. The first requirement that must be satisfied is that according to article 5(1) the detention must be ‘lawful’. That is to say, it must be in accordance with domestic law and not arbitrary. The review under article 5(4) must then be wide enough to bear on the conditions which are essential for a determination of this issue. Where the decision about the length of the period of detention is made by a court at the close of judicial proceedings, the requirements of article 5(1) are satisfied and the supervision required by article 5(4) is incorporated in the decision itself. That is the principle which was established in De Wilde, Ooms and Versyp. But where the responsibility for decisions about the length of the period of detention is passed by the court to the executive, the lawfulness of the detention requires a process which enables the basis for it to be reviewed judicially at reasonable intervals. This is because there is a risk that the link between continued detention and the original justification for it will be lost as conditions change with the passage of time. If this happens there is a risk that decisions which are taken by the executive will be arbitrary. That risk is absent where the length of the period of detention is fixed as part of its original decision by the court.’

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Hope of Craighead, Lord Hutton, Lord Scott of Foscote

Citations:

[2004] 1 AC 1, [2003] UKHL 42, Times 01-Aug-2003, [2003] 3 WLR 736, [2003] UKHRR 1035, [2003] 4 All ER 429, [2003] HRLR 37

Links:

Bailii, House of Lords

Statutes:

European Convention on Human Rights 5.4, Powers of Criminal Courts (Sentencing) Act 2000 80(2)(b)

Jurisdiction:

England and Wales

Citing:

Cited – De Wilde, Ooms and Versyp v Belgium ECHR 18-Jun-1971
ECHR Judgment (Just satisfaction) Preliminary objection rejected (non-exhaustion); Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient 2832/66; 2835/66; 2899/66
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 – Regina v Governor of Brockhill Prison ex parte Evans; Regina v Governor of Onley Young Offender Institution Rugby ex parte Paul Reid CACD 15-Nov-1996
Time which had been spent in custody by the defendant awaiting trial and otherwise, was to be allowed to be set off against the sentence to be served, but once only and against all concurrent sentences. . .
Cited – Weeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
Cited – Wynne v United Kingdom ECHR 18-Jul-1994
A Discretionary lifer is not entitled to a review by a court of his continued detention. His article five rights were not breached. Where a national court imposed a fixed sentence of imprisonment, the supervision required by article 5.4 was . .
Cited – McLeod v The United Kingdom ECHR 23-Sep-1998
A Police Officer assisting in recovery of items ordered to be returned in matrimonial proceedings acted in excess of his powers and trespassed in entering house where there was no immediate threat of breach of the peace, and no sight of disorder. An . .
Cited – Torbet v H M Advocate HCJ 1999
The appellant had offended while on licence from a life sentence for murder. When sentencing the trial judge took into account the fact that he posed a moderate risk of future violence to women with whom he had had an intimate relationship. The . .
Cited – Regina v Chapman CACD 22-Jul-1999
A discretionary life sentence intended to protect the public could now only be imposed after establishing compliance with the Act in that the sentence was so serious as to deserve a very long sentence, and for an unforeseeable time into the future, . .
Cited – Thynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
Cited – Hussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .
Cited – Van Droogenbroeck v Belgium ECHR 24-Jun-1982
The applicant was sentenced to two years’ imprisonment for theft. He had a previous convictions and was thought to have a persistent tendency to crime, and was placed at the government’s disposal for 10 years on that ground. This was subject to . .
Cited – E v Norway ECHR 29-Aug-1990
The applicant suffered serious brain damage and was an untreatable psychopath. He was convicted of numerous violent offences and sentenced to a period of imprisonment. He was also sentenced to preventive detention under the Norwegian Penal Code, as . .
Cited – Perez v France ECHR 1995
The applicant complained that, having been convicted in Andorra, no provision availed for review of his detention in France where he served his sentence.
Held: There was no violation ‘The review required by article 5(4) is incorporated in the . .
Cited – Silva Rocha v Portugal ECHR 15-Nov-1996
The applicant was tried on charges of aggravated homicide and others, but the court found him mentally disturbed, preventing criminal responsibility. He was dangerous it and ordered him to be detained. This security measure remained for a minimum . .
Cited – Mansell v United Kingdom ECHR 2-Jul-1997
The judge imposed a longer than commensurate sentence in an indecent assault case to protect the public. The applicant complained that he should have been entitled to a review of the lawfulness of his detention as he was in the same position as a . .
Cited – Regina v King CACD 1973
Two men carried out offences, including going equipped for stealing, burglary, possessing an imitation pistol, and carrying offensive weapons, which included an unloaded revolver for which they had no ammunition. They pleaded guilty to the charges . .
Cited – Regina v Sargeant CACD 1974
The judge had imposed a longer sentence for a crime of violence in order to protect the public against the violent propensities of the accused.
Held: Lawton LJ said: ‘What ought the proper penalty to be? We have thought it necessary not only . .
Appeal from – Regina on the Application of Giles v Parole Board and Secretary of State for the Home Department CA 4-Jul-2002
The prisoner had been sentenced to a punitive term, and an additional protective term under the Act. After the parole board had decided that he could be released from the punitive part of the sentence, he obtained declaration that the board should . .

Cited by:

Cited – Regina (on the Application of Cawser) v Secretary of State for the Home Department CA 5-Nov-2003
The claimant was serving a prison sentence for serious sexual offences. He would not be released until he had completed a sex offenders programme, but one was not made available, delaying his release.
Held: ‘The Secretary of State is not under . .
Cited – Regina (Sim) v Parole Board CA 18-Dec-2003
The prisoner had been sentenced to an extended term of five years imprisonment for indecent assault. He had been released, and then recalled for alleged breaches of his licence. The respondent appealed findings that such a recall was subject to . .
Cited – Clift, Regina (on the Application of) v Secretary of State for the Home Department CA 29-Apr-2004
The claimant was a prisoner serving a determinate term exceeding 15 years. He complained that the respondent’s remaining juridsiction as to his release on licence infringed his human rights.
Held: This was the sole remaining element of the . .
Cited – Secretary of State for the Home Department v Hindawi and Headley CA 13-Oct-2004
The applicant was a foreign national serving a long-term prison sentence. He complained that UK nationals would have had their case referred to the parole board before his.
Held: The right to be referred to the parole board was a statutory . .
Cited – McClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
Cited – Black, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
Cited – Whiston, Regina (on The Application of) v Secretary of State for Justice CA 25-Oct-2012
The claimant was a prisoner released on a home detention licence, but his licence had been revoked. He now said that the way it had been revoked, without the respondent’s decision being subject to confirmation by the Parole Board, nor to other . .
Cited – Whiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 07 June 2022; Ref: scu.185218

Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested;: CA 16 Jul 2003

The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not obligatory, but following it would generally ensure that a patient’s rights were not infringed. It recognised the potential damage from seclusion, and therefore the need for proper systems for its use. The Special Hospitals had sought to operate their own procedures, reflecting their own needs. Seclusion infringes Article 8 unless it can be justified under Article 8(2). Seclusion of a detained psychiatric patient was capable of amounting to a breach of Article 3.
Ashworth were not entitled to treat as being in seclusion a large number of patients who are not in fact secluded as defined by the Code of Practice and then depart from the Code of Practice in relation to a group which was defined solely by reference to how long its members have been secluded. Airedale were not justified in keeping Mr S in seclusion from the time when it ceased to be a necessary and proportionate response to the risk he presented to others.

Judges:

The Master Of The Rolls Lady Justice Hale Lord Justice Latham

Citations:

[2003] EWCA Civ 1036, Times 25-Jul-2003, [2004] QB 395, [2003] Lloyds Rep Med 534, [2003] 3 WLR 1505, (2003) 74 BMLR 178, [2003] HRLR 38

Links:

Bailii

Statutes:

European Convention on Human Rights 3 8, Mental Health Act 1983 118

Jurisdiction:

England and Wales

Citing:

Appeal from – S v Airedale National Health Service Trust QBD 22-Aug-2002
The patient had been detained, and then secluded within the mental hospital for 11 days. He claimed to have been subjected to inhuman treatment, and false imprisonment.
Held: His claim failed. The policy allowed the authority to confine him to . .
Cited – Pountney v Griffiths; Regina v Bracknell Justices, Ex parte Griffiths HL 1976
The applicant was a male nurse at Broadmoor Special Hospital. He was on duty while patients were saying goodbye to visitors. He approached the detained patient telling him to ‘come on’ and allegedly punched him on the shoulder. The patient brought . .
Cited – B v Croydon Health Authority CA 30-Nov-1994
The feeding by tube of a mental patient who was unable and unwilling to consent can remain treatment, and within the decision of the doctors. In the context of whether the force-feeding an anorexic was authorised by section 63, the Court of Appeal . .
Cited – Regina v Broadmoor Special Hospital Authority and Secretary of State for Department of Health ex parte S, H and D (2) CA 5-Feb-1998
Persons detained under Mental Health Acts could be subject to random non-consensual searches even if this went against medical opinion. The power to seclude a patient within the hospital is implied from the power to detain as a ‘necessary ingredient . .
Cited – Hutchison Reid v Secretary Of State For Scotland and Another HL 5-Feb-1998
(Scotland) A detention in hospital which was capable of preventing the deterioration of a psychopathic disorder in a patient was sufficient to bring his detention within the requirement for treatment which might alleviate a condition, which phrase . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – Regina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
Cited – A v United Kingdom ECHR 1980
The Commission declared admissible a complaint from a Broadmoor patient who had been secluded for five weeks after a fire. A friendly settlement was reached, without admission of liability but on the basis that new guidelines for the use of . .
Cited – Regina v Hallstrom and another, ex parte W (No 2) 1986
A judicial review application by a mental patient, requires the permission of a High Court judge: ‘There is . . a canon of construction that Parliament is presumed not to enact legislation which interferes with the liberty of the subject without . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Keenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Herczegfalvy v Austria ECHR 24-Sep-1992
The applicant was detained in an institution for mentally deranged offenders. While so detained he was subjected to the forcible administration of food and neuroleptics and to handcuffing to a security bed. He complained of violation of his Article . .
Cited – Raninen v Finland ECHR 16-Dec-1997
The complainant had been handcuffed unjustifiably and in public but not with the intention of debasing or humiliating him and not so as to affect him sufficiently to attain the minimum level of severity.
Held: The application was rejected The . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Bouamar v Belgium ECHR 29-Feb-1988
Hudoc Violation of Art. 5-1; Violation of Art. 5-4; Just satisfaction reserved; Judgment (Just satisfaction) Struck out of the list (friendly settlement)
A person detained as a juvenile in need of . .
Cited – Aerts v Belgium ECHR 30-Jul-1998
A person detained as a person of unsound mind should not be kept in a prison, but if the institution concerned is within the appropriate category, there is no breach of Article 5. While measures depriving a person of his liberty often involve an . .
Cited – Regina v Secretary of State for the Environment, ex parte Hackney London Borough Council CA 1984
The court doubted whether the doctrine of issue estoppel is applicable in judicial review proceedings. After holding that on the facts of the case it did not arise as a defence, the court approved, by the way, the judgment at first instance which . .
See Also – Regina v Ashworth Special Hospital Trust, ex parte Munjaz 10-Oct-2000
The claimant was detained iin a secure mental hospital. He complained of being held in seclusion for a long period, and as to the hospital’s policy.
Held: The hospital’s policy, by reducing the frequency of review of a patient’s seclusion . .
Appeal from – Regina v Ashworth Hospital Authority, Ex parte Munjaz (No 2) Admn 5-Jul-2002
The court dismissed the claimant’s complaint that the seclusion policies operated at Ashworth Special Hospital infringed his human rights. The Special Hospitals operated policies for seclusion which differed from the Code of Practice laid down under . .

Cited by:

Appeal from – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
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 . .
At Court of Appeal – C Munjaz v United Kingdom ECHR 20-Mar-2008
The applicant complained of his seclusion whilst being detaned at a secure mental hospital.
Held: The court referred several questions back to the parties to be answered. . .
At Court of Appeal – Munjaz v The United Kingdom ECHR 17-Jul-2012
The applicant was detained in a secure mental hospital. He complained that he had been held in seclusion.
Held: The complaints under articles 5 and 8 were admissible, but there had been no violation of the applicant’s rights in these . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 07 June 2022; Ref: scu.184769

AE and FE v Secretary of State for the Home Department: CA 16 Jul 2003

The appellants challenged orders denying them asylum status. The result would be to require them to return home but subject to relocation within a different geographical area.
Held: For the purposes of considering refugee status, the conditions to which they would be returned in a different area were not relevant. They might become relevant when considering whether the return would infringe the claimants human rights, because they would not enjoy the basic notions of civil political and socio-economic human rights. The court emphasised the need to distinguish between: ‘(1) the right to refugee status under the Refugee Convention; (2) the right to remain by reason of rights under the Human Rights Convention; and (3) consideration to the grant of leave to remain for humanitarian reasons.’ and ‘Consideration of the reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home (in context that means his home in his country of origin, rather than the place at which he has been living while his application was considered and decided). If it would be ‘unduly harsh’ for the individual applicant to be relocated in a different part of his own country of origin, it would then normally follow that refugee status should be granted.’

Judges:

Lord Justice Ward Lord Justice Simon Brown Lord Philips Of Worth Matravers MR

Citations:

[2003] EWCA Civ 1032, Times 25-Jul-2003, C1/2003/0047, [2003] INLR 475, [2004] QB 531

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Home Department Immigration Appeals Tribunal ex parte Robinson CA 11-Jul-1997
Where an asylum seeker was seeking to escape from persecution in one area of his home country, the court must ask if an escape to a safe area in his country of origin is available and appropriate. A failure of the country to which an asylum seeker . .

Cited by:

Cited – Hysi v Secretary of State for the Home Department CA 15-Jun-2005
The claimant appealed an order to be returned to Kosovo.
Held: As the son of a gypsy mother and and an Albanian father. As such, he would face persecution if returned if his mixed race parentage became known. If order to return he would be . .
Cited – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.184612

Murphy v Ireland: ECHR 10 Jul 2003

A pastor attached to an evangelical protestant centre based in Dublin wished to broadcast an advertisement during the week before Easter 1995, but the broadcast was stopped by the Independent Radio and Television Commission because section 10(3) of the Radio and Television Act 1988 prohibited the broadcasting of any advertisement directed towards any religious or political end or having any relation to an industrial dispute. The applicant applied for judicial review against the Commission and the attorney general, but failed in the High Court and the Supreme Court. A bill was introduced in the Dail to amend section 10(3) of the 1988 Act, but the amending bill never became law. The Minister for Arts, Heritage, Gaeltacht and the Islands opposed the amendment, noting the great power of the radio and television media, but resisting the proposal that Commission officials should distinguish between acceptable and unacceptable advertisements. He pointed to the difficulty of framing a selective ban and to the distinction between religious advertising and advertising for goods and services. When the Irish government introduced its own bill, section 10(3) was largely preserved but was extended to digital and other broadcasting services.
Held: Member states enjoyed a wider margin of appreciation in relation to matters of morals and religion as compared with restrictions on political speech or debate on matters of public interest. The potential impact of the medium was an important factor in assessing the proportionality of an interference, and audio-visual media have a more immediate and powerful effect than the print media. The court paid attention to the peculiar characteristics and sensitivity of religious broadcasting, but noted that the prohibition concerned only the audio-visual media: these, as the applicant, the government and the court all agreed, had a more immediate, invasive and powerful impact than other media, but the applicant was free to advertise the same matter in any of the print media, or at public meetings and other assemblies. Moreover the prohibition applied only to advertising. The applicant retained the same right as any other citizen to participate in programmes on religious matters, but advertising tended to be partial, and was not subject to the broadcaster’s duty of impartiality, so that the purchase of advertising time would lean in favour of unbalanced usage by religious groups with larger resources. The court considered these (para 75) to be highly relevant reasons justifying the Irish state’s prohibition.

Citations:

44179/98, [2003] ECHR 352, (2003) 38 EHRR 212, (2004) 38 EHRR 13

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Citing:

Distinguished – VGT Verein Gegen Tierfabriken v Switzerland ECHR 28-Jun-2001
The applicant association dedicated itself to the protection of animals, from animal experiments and industrial animal production. In reaction to television commercials broadcast by the meat industry it prepared a TV advertisement contrasting the . .

Cited by:

Cited – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
Cited – Gaunt v OFCOM and Liberty QBD 13-Jul-2010
The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being . .
Cited – Core Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 07 June 2022; Ref: scu.184412

Powell v United Kingdom: ECHR 4 May 2000

A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health authority, and discontinued a claim for damages for negligence against the doctors, and a claim against those doctors for alleged falsification of records had been struck out. They complained about the falsification of these records. They had abandoned an appeal against a decision of a local NHS Medical Services Committee with which they were dissatisfied, and had not pursued their negligence claim against the doctors to trial.
Held: The case was rejected as inadmissible: ‘an applicant must be able to demonstrate an arguable claim under domestic law that there has been a breach of a civil right actionable in law. It is still impermissible for the Court to arrogate to itself the task of creating in favour of an individual a substantive right where none is recognised under domestic law’ and ‘it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.’

Citations:

45305/99, (2000) 30 EHRR CD 152, [2000] ECHR 703

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Citing:

Cited – LCB v United Kingdom ECHR 9-Jun-1998
The applicant’s father had been present on Christmas Island during British nuclear tests. She was diagnosed with leukaemia. She claimed the UK had been should have warned her parents of the risks associated with exposure to radiation and monitored . .

Cited by:

Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Khan, Regina (on the Application of) v Secretary of State for Health CA 10-Oct-2003
The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There . .
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 – Plymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
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 – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Cited – Birks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions

Updated: 07 June 2022; Ref: scu.184429

Stretch v The United Kingdom: ECHR 24 Jun 2003

The claimant had taken a lease of property from a local authority. Relying upon an option for renewal, he invested substantially in the property, but it was then decided that the option was ultra vires.
Held: Property rights protected under the Convention included such rights. The concept of ‘possessions’ in Art. 1 includes a legitimate expectation of obtaining effective enjoyment of a property right resulting from the ultra vires act of a public authority. The council had acted under a mistaken belief as to its capacity. No third party interest would have been affected, and the interference in private property rights was disproportionate.
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings

Judges:

Pellonpaa, President, Sir Nicolas Bratza, E. Palm, V. Stranick, S. Pavlovschi, L. Garlicki, J. Borrego Borrego

Citations:

44277/98, Times 03-Jul-2003, (2003) 38 EHRR 12, [2003] ECHR 320

Links:

Worldlii, Bailii

Statutes:

Local Government Act 1933

Jurisdiction:

Human Rights

Citing:

Appeal from – Stretch v West Dorset District Council CA 10-Nov-1997
A local authority has no ability to grant an option to renew a lease, even though it has the power to grant a lease and would benefit from the wrongful grant. The land was held for an express statutory purpose and was not ‘corporate land’ within the . .
Cited – Pine Valley Developments Ltd And Others v Ireland ECHR 29-Nov-1991
ECHR Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); No violation of P1-1; No violation of Art. 14+P1-1; Violation of Art. 14+P1-1; No violation of Art. 13; Just . .
Cited – Credit Suisse v Allerdale Borough Council CA 20-May-1996
Builder’s Guarantee Ultra Vires LA
The council set out to provide a swimming pool using powers under s.19 of the 1976 Act. Purporting to use powers under s.111 of the 1972 Act, it set up a company to develop a site by building a leisure pool and time-share units, with a view to . .
Cited – Pressos Compania Naviera S A And Others v Belgium (Article 50) ECHR 3-Jul-1997
Hudoc Judgment (Just satisfaction) Struck out of the list; Pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient
‘possessions’ can be ‘existing possessions’ or assets, . .

Cited by:

Appealed to – Stretch v West Dorset District Council CA 10-Nov-1997
A local authority has no ability to grant an option to renew a lease, even though it has the power to grant a lease and would benefit from the wrongful grant. The land was held for an express statutory purpose and was not ‘corporate land’ within the . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Birmingham City Council v Qasim and Others CA 20-Oct-2009
The council argued that the defendant was not a tenant granted to him as a secure tenancy since he had not been granted the tenancy in accordance with its policies. An employee had manipulated the Council’s system to grant tenancies to bypass the . .
Cited – Times Newspapers Ltd and Others v Flood and Others SC 11-Apr-2017
Three newspaper publishers, having lost defamation cases, challenged the levels of costs awarded against them, saying that the levels infringed their own rights of free speech.
Held: Each of the three appeals was dismissed. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Landlord and Tenant, Local Government

Updated: 07 June 2022; Ref: scu.184221

Petition of Gurung (Ramesh) for Judicial Review: SCS 27 Feb 2003

The applicant sought asylum having fled from Nepal. The Home Secretary had made an order for his removal. He said that he had been involved in the political opposition as a student and had accordingly suffered attacks by police.

Judges:

Lord Clarke

Citations:

[2003] ScotCS 49

Links:

Bailii

Jurisdiction:

Scotland

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.184000

Carson and Reynolds v Secretary of State for Work and Pensions: CA 17 Jun 2003

The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a ‘possession’ within the Convention or the discrimination was arbitrary so as to breach the applicants human rights.
Held: The meaning of possessions within the Convention was autonomous. In the field of social security the Strasbourg court has drawn a line between contributory and non-contributory benefits. The decision to exclude foreign residents from uprating of benefits was objectively justified without regard to cost. Equally there was an objective justification for the differentiation between under and over 25s in the payment of benefits, at least as regards jobseekers allowance.

Judges:

Lord Justice Laws Lord Justice Rix Lord Justice Simon Brown

Citations:

[2003] EWCA Civ 797, Times 28-Jun-2003, [2003] 3 All ER 577

Links:

Bailii

Statutes:

European Convention on Human Rights , Jobseekers Allowance Regulations 1996 79, Jobseekers Act 1995 4(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (Annette Carson) v Secretary of State for Work and Pensions Admn 22-May-2002
The claimant received a UK state pension. She lived in South Africa, and challenged the exclusion of foreign resident pensioners from the annual uprating of pension benefits. She asserted that the state pension, or its uprating, were pecuniary . .
Appeal from – Reynolds, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 7-Mar-2002
. .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Willis v The United Kingdom ECHR 11-Jun-2002
Discrimination in the payment of ‘widows payment’ and widowed mother’s allowance infringed the rights conferred by article 14 read with article 1 of Protocol 1 but no finding was made about the widow’s pension. The risk of the applicant being . .
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 – E (A Minor) v Dorset County Council CA 1995
It is generally unwise to give summary judgment in cases where the relevant law is uncertain or in a state of development: ‘This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of . .
Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
Cited – Vaughan v United Kingdom ECHR 1987
Article 8 does not impose any positive obligation to provide financial assistance to support a person’s family life. . .
Cited – Gaygusuz v Austria ECHR 16-Sep-1996
The applicant was a Turkish national resident in Austria. While working there he had paid unemployment insurance contributions. At a stage when he was unemployed he applied for an advance on his pension in the form of emergency assistance. That was . .
Cited – Carlin v United Kingdom ECHR 1-Dec-1997
The Commission dismissed as manifestly unfounded a complaint that the suspension of Industrial Injuries Disability Benefit during a person’s imprisonment involved any violation of Article 1P. It reiterated that ‘it is still necessary, in order for . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – Szrabjer and Clarke v United Kingdom ECHR 17-Jun-1998
The applicants were denied the earnings-related element of their pensions while they were in prison, pursuant to s.113(1)(d) of the 1992 Act which I have set out. They claimed violations both of Article 1P, and of Article 14 read with Article 1P. . .
Cited – Petrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
Cited – Chapman v United Kingdom; similar ECHR 18-Jan-2001
The question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Cited – Quintavalle, Regina (on the Application of) v Human Fertilisation and Embryology Authority CA 16-May-2003
A licence was sought so that a couple could have a child who would be tissue typed to establish his suitability to provide an umbilical cord after his birth to help treat his future brother. A licence had been granted subject to conditions, and the . .

Cited by:

Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Bishop of Roman Catholic Diocese of Port Louis and Others v Suttyhudeo Tengur and Others PC 3-Feb-2004
PC (Mauritius) A father challenged the constitutionality of a system where 50% of places in Catholic run secondary schools were allocated to Catholic childen, and fifty per cent according to merit. He feared this . .
Cited – Douglas v North Tyneside Metropolitan Borough Council CA 19-Dec-2003
The applicant had sought a student loan to support his studies as a mature student. It was refused because he would be over 55 at the date of the commencement of the course. He claimed this was discriminatory.
Held: The Convention required the . .
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 – Evans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Khan v Royal Air Force Summary Appeal Court Admn 7-Oct-2004
The defendant claimed that he had gone absent without leave from the RAF as a conscientous objector.
Held: The defendant had not demonstrated by complaint to the RAF that he did object to service in Iraq. In some circumstances where there was . .
Cited – Secretary of State for the Home Department v Hindawi and Headley CA 13-Oct-2004
The applicant was a foreign national serving a long-term prison sentence. He complained that UK nationals would have had their case referred to the parole board before his.
Held: The right to be referred to the parole board was a statutory . .
Approved – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Appeal from – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
At Court of Appeal – Carson and Others v The United Kingdom ECHR 4-Nov-2008
(Grand Chamber) Pensioners who had moved abroad complained that they had been excluded from the index-linked uprating of pensions given to pensioners living in England.
Held: This was not an infringement of their human rights. Differences in . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Human Rights, Benefits

Updated: 07 June 2022; Ref: scu.184064

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, the following should be considered. First, the claimant’s case in relation to his private life in the deporting state should be examined. Where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, the court must look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant’s case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged.

Judges:

Mr Justice Pumfrey Lord Justice Dyson Lord Justice Judge

Citations:

[2003] EWCA Civ 840, [2003] Imm AR 529

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 72(2)(a), European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .
Cited – D v The United Kingdom ECHR 2-May-1997
The applicant, an AIDS sufferer, resisted his removal to St Kitts where lack of medical treatment would hasten his death.
Held: The deportation of a convicted person suffering from Aids to a country with less care facilities was inhuman or . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Appeal from – Razgar, Regina (on the Application of) v Secretary of State for the Home Department Admn 2002
The claimant challenged the respondent’s certificate that his appeal was manifestly unfounded.
Held: The certificate was wrongly given. . .
Appeal from – 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, . .

Cited by:

Appeal from – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Atkinson v Secretary of State for the Home Department CA 5-Jul-2004
The applicant sought judicial review of the respondent’s certification under s94 that his cliam for asylum was hopeless. He said that he had acted as an informer against criminal gangs in Jamaica, and that the state of Jamacia could not provide him . .
See Also – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
See Also – Nadarajah and Amirhanathan v Secretary of State for the Home Department CA 8-Dec-2003
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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.183684

Ekinci, Regina (on the Application of) v Secretary of State for the Home Department: CA 17 Jun 2003

The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements were made for his removal to Germany, he married a woman whom he had known in Turkey and who had since acquired British citizenship. He now claimed the right to remain here with her under article 8. A child was born. His claim was certified by the Secretary of State pursuant to section 72(2)(a) to be ‘manifestly unfounded’ and the refusal of his application for judicial review of that was now appealed. He said it would be wrong to return him to Germany to apply for entry clearance there because he would in any event fail to qualify. He would be unable to show that he could live here ‘without recourse to public funds’. He had an appalling immigration history; on granting him leave to appeal Sedley LJ had observed that ‘few claimants come to court with a track record of such prolonged evasion and mendacity’.
Held: The court noted that there was scope for permission to enter outside the rules if article 8 required it and that the time taken to process entry clearance applications in Germany was something under a month. There was: ‘nothing even arguably disproportionate in requiring this appellant to return to Germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules. That the Secretary of State is not contemplating or intending any longer-term, let alone permanent, separation of the appellant from his family seems to me abundantly plain.’
Simon Brown LJ said: ‘Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant’s human rights.’

Judges:

Lord Justice Kay, Mr Justice Bodey, Lord Justice Simon Brown

Citations:

[2003] EWCA Civ 765, [2004] Imm AR 15

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .

Cited by:

Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – LH (Truly Exceptional, Ekinci Applied) Jamaica IAT 24-Jan-2006
. .
Cited – Mukarkar v Secretary of State for the Home Department CA 25-Jul-2006
The applicant, a Yemeni citizen, obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. He had numerous ailments and his health was continuing to . .
Cited – SB (Bangladesh) v Secretary of State for the Home Department CA 31-Jan-2007
A Bangladeshi woman entered into an arranged polygamous marriage in Bangladesh and many years later dishonestly (led by her husband) obtained entry clearance as a visitor before then unsuccessfully seeking leave to remain as being financially . .
Cited – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 07 June 2022; Ref: scu.183640

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 life prisoner had been refused the right to make oral representations to the Lord Chief Justice upon him recommending the tariff he was to serve.
Held: There had been a violation of Article 6.1 regarding the procedure adopted in fixing the applicant’s tariff: ‘The Court would observe that the sentencing exercise carried out in criminal cases must necessarily be carried out by an independent and impartial tribunal, namely a court offering guarantees and procedure of a judicial nature. It was not a court that fixed the applicant’s tariff in a public adversarial hearing and in the circumstances it is not sufficient to satisfy the fundamental principal relating the separation of powers that the member of the executive who issued the decision was guided by judicial opinion’.

Citations:

48015/99, Times 18-Jun-2003, [2003] ECHR 278, [2003] 37 EHHR 812

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1

Jurisdiction:

Human Rights

Citing:

Cited – V v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
Cited – Stafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Cited – Benjamin and Wilson v The United Kingdom ECHR 26-Sep-2002
The applicant challenged the system in the UK of deciding on his release from a secure mental hospital. He had been a discretionary life prisoner, but then later his detention was continued because of his mental condition. Though an independent . .

Cited by:

Cited – Regina (on the Application of Dudson) v Secretary of State for the Home Department and the Lord Chief Justice Admn 21-Nov-2003
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, . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – 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.

Criminal Sentencing, Constitutional, Human Rights

Updated: 07 June 2022; Ref: scu.183759

Spence, Regina (on the Application of) v Secretary of State for the Home Department: CA 23 May 2003

The court rejected a challenge to the Home Secretary’s decision to substitute a period of 18 months for the 9 months recommended by the Parole Board to be passed in open conditions before the prisoner’s next review. ‘[The right not to be detained arbitrarily] can be breached as a matter of law if the Home Secretary does not take proper steps to offer available offending behaviour courses designed to reduce risk and assess the level to which risk has been reduced because, absent such a duty, post-tariff detention could be reduced to ‘warehousing’ and the right to a review could become hollow. . . The claimant submits that the existence of a duty grounded in Article 5 allows a prisoner in an appropriate case to secure a remedial order from a court to prevent a breach of Article 5(1).’ In determining whether the interval between the review dates complied with article 5(4) on the facts of a particular case:- ‘the court asks itself whether the interval was reasonable. The answer to this question is a matter for the court. The court does not, therefore, apply the Wednesbury test and ask whether the interval was not one which a reasonable decision-maker could determine. In considering the question of reasonableness, the court would give appropriate weight to the views both of the Home Secretary and of the Parole Board.’

Judges:

Lord Justice Clarke Lord Justice Brooke Lady Justice Arden

Citations:

[2003] EWCA Civ 732, [2003] Prison Law Reports 290

Links:

Bailii

Statutes:

European Convention on Human Rights 5.1

Jurisdiction:

England and Wales

Citing:

Appeal from – Spence, Regina (on the Application Of) v Secretary of State for the Home Office Admn 19-Dec-2002
. .

Cited by:

Cited – Regina (on the Application of Cawser) v Secretary of State for the Home Department CA 5-Nov-2003
The claimant was serving a prison sentence for serious sexual offences. He would not be released until he had completed a sex offenders programme, but one was not made available, delaying his release.
Held: ‘The Secretary of State is not under . .
Appealed to – Spence, Regina (on the Application Of) v Secretary of State for the Home Office Admn 19-Dec-2002
. .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 07 June 2022; Ref: scu.183066

South Coast Shipping v Havant Borough Council: 21 Dec 2001

With respect to privileged material produced to the Costs Judge, once a document is of sufficient importance to be taken into account in arriving at a conclusion as to recoverability, then, unless otherwise agreed, it must be shown to the paying party or the receiving party must content himself with other evidence. If the costs judge has seen documents and required the receiving party to elect between giving secondary evidence of the retainer and waiving the privilege, there was no incompatibility with the Convention. This does not mean the costs judge may put the receiving party to its election for every document, regardless of relevance. The paying party may be content to agree that the costs judge alone should see the privileged documents. Only where it is necessary and proportionate should the receiving party be put to his election. The redaction and production of privileged documents, or the adducing of further evidence, will lead to additional delay and increased costs.
CourtService The court considered the impact on detailed assessment proceedings of the European Convention on Human Rights, with particular relevance to the disclosure to the paying party of sensitive material relating to their bill of costs to which privilege attached. The European cases did not override the longstanding principle of privilege in English law, but the principle that a court should not decide issues after hearing and seeing only one side of the argument was a very powerful one. He indicated that much greater use should be made of Costs Judges and District Judges of paragraph 40.14 of the Costs Practice Direction in relation to the putting of receiving parties to their election as to how they proved particular issues of this nature.
However, on the facts, and because the Costs Judge from whom the appeal was brought had clearly considered all the relevant factors in coming to his decision that there had been no breach of the indemnity principle on the evidence available to him, the Judge dismissed the appeal, saying that to do otherwise would be to generate unfortunate and unnecessary satellite litigation.

Judges:

Mr Justice Pumfrey sitting with Assessors

Citations:

[2002] 3 All ER 779, [2001] EW Costs 16, [2001] EWHC 9017 (Costs)

Links:

Bailii

Cited by:

Approved – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Lists of cited by and citing cases may be incomplete.

Costs, Human Rights

Updated: 07 June 2022; Ref: scu.182521

European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another: CA 20 May 2003

A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now subjected to a much more rigorous examination than others, and also that the arrangement put the respondent in breach of its international obligations by preventing the flight of refugees in danger.
Held: The right to claim asylum did not include a right of entry. The vast majority of asylum applicants from the Czech Republic are Roma. The policy was not to refuse Roma as Roma; but to refuse entry to those who could not satisfy the immigration officer to the requisite standard that they would not claim asylum on arrival. The policy was not discriminatory, and did not operate unlawfully. (Mantell dissenting)

Judges:

Simon Brown, Mantell, Laws LJJ

Citations:

[2004] QB 811, [2003] EWCA Civ 666, Times 22-May-2003, Gazette 17-Jul-2003, [2004] 2 WLR 147, [2003] IRLR 577, [2003] 15 BHRC 51, [2003] INLR 374, [2003] 4 All ER 247, [2003] ACD 64

Links:

Bailii

Statutes:

Geneva Convention (1951) and Protocol (1967) relating to the Status of Refugees

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Home Department ex parte Hoverspeed Admn 2-Feb-1999
Immigration control laws required pre-entry clearance of visitors. To do so it imposed carriers’ liability without which, the requirement for prior entry clearance would have little effect: ‘What, then, is it which is said to justify placing these . .
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – T v Home Secretary HL 1996
Although it is easy to assume that the appellant invokes a ‘right of asylum’, no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. . .
Cited – Nguyen Tuan Cuong and others v The Director of Immigration and others (Hong Kong) PC 21-Nov-1996
(Dissenting judgment) A person who satisfies [the Convention] definition is said to have refugee status. The Convention imposes obligations towards persons having that status. For immigration, Article 31 forbids the imposition of penalties on . .
Cited – Regina v Secretary of State for Home Department ex parte Hoverspeed Admn 2-Feb-1999
Immigration control laws required pre-entry clearance of visitors. To do so it imposed carriers’ liability without which, the requirement for prior entry clearance would have little effect: ‘What, then, is it which is said to justify placing these . .
Cited – Regina v Uxbridge Magistrates and Another ex parte Adimi; R v CPS ex parte Sorani; R v SSHD and Another ex parte Kaziu Admn 29-Jul-1999
The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception . .
Cited – Secretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
Cited – Chundawadra v Immigration Appeal Tribunal CA 1988
Ratification of the European Convention on Human Rights did not create a justiciable legitimate expectation that the Convention’s provisions would be complied with. Slade LJ said there was no evidence of ‘any relevant express promise or regular . .
Cited – Regina v Secretary of State for Home Department ex parte Behluli CA 7-May-1998
The appellant argued that he had a legitimate expectation, based on letters to his solicitor from the Secretary of State, that his application for asylum would be considered pursuant to the Dublin Convention, an unincorporated international treaty. . .
Cited – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
Cited – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
Cited – Hurley v Mustoe EAT 1981
The EAT was concerned with an employer’s refusal to employ women with small children because he regarded them as unreliable employees and needed to have reliable staff for his small business. ‘[W]e are not deciding whether or not women with children . .
Cited – Regina v Commission for Racial Equality (ex parte Westminster City Council) QBD 1984
The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds.
Held: The council’s motive for doing so, to avert industrial action, could not avail them. Woolf J said: ‘In this case although the . .
Cited – West Midlands Passenger Transport Executive v Singh CA 1988
The court identified ‘a conscious or unconscious racial attitude which involves stereotyped assumptions’ underlying discrimination. Statistical evidence may be used to establish a discernible pattern in the treatment of a particular group such as to . .
Cited – Bain v Bowles CA 1991
The Lady magazine had no defence to a complaint by a man whose advertisement for a housekeeper in Tuscany they had refused to accept. Following past complaints of sexual harassment, the magazine’s policy was to accept such advertisements only where . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – Regina v Home Secretary, ex parte Sivakumaran HL 16-Dec-1987
The House of Lords were concerned with the correct test to be applied in determining whether asylum seekers are entitled to the status of refugee. That in turn gave rise to an issue, turning upon the proper interpretation of Article 1.A(2) of the . .
Appeal from – European Roma Rights Centre and 6 others v Tthe Immigration Officer at Prague Airport, The Secretary of State for the Home Department Admn 8-Oct-2002
There is an ‘administrative, financial and indeed social burden borne as a result of failed asylum seekers’. . .

Cited by:

Appeal From – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Gillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.182341

Perna v Italy: ECHR 25 Jul 2001

Citations:

48898/99, [2001] ECHR 485

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) and Others CA 22-Feb-2012
The defendants sought to appeal against an order for them to vacate land outside St Paul’s Cathedral in London which they occupied as a protest.
Held: The application for leave to appeal failed. The only possible ground for appeal was on the . .
See Also – Perna v Italy ECHR 6-May-2003
Hudoc No violation of Art. 6-1 and 6-3-d ; No violation of Art. 10 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 June 2022; Ref: scu.182434

Tashin Acar v Turkey: ECHR 6 May 2003

Hudoc Judgment (Preliminary objections) Government

Citations:

26307/95, (2004) 38 EHRR 2, [2003] ECHR 233

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – Tahsin Acar v Turkey ECHR 8-Apr-2004
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 2 with regard to disappearance ; Violation of Art. 2 with regard to lack of effective investigation ; No violation of Art. 3 ; No violation of . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 June 2022; Ref: scu.181910

Appleby and Others v The United Kingdom: ECHR 6 May 2003

The claimants sought to demonstrate against a development in their home town. The respondents who owned the shopping mall which dominated the town centre, refused to allow them to demonstrate in the mall or to distribute protesting leaflets. The claimants complained of interference with their rights to free speech and expression, saying a public authority had transferred the land to the private company. The Government argued that it was not for the Court to prescribe the necessary content of domestic law by imposing some ill-defined concept of ‘quasi-public’ land to which a test of reasonable access should be applied.
Held: There was no infringement of the Convention because the ban did not have ‘the effect of preventing any effective exercise of freedom of expression or [of destroying] the essence of the right’, not least because they could carry out their activities elsewhere. A balance had to be found between competing needs. Freedom of expression is a precondition of a functioning democracy. Shopping centres, though primarily for private commercial interests, increasingly serve as gathering places and events centres. Individuals are not merely invited to shop but encouraged to linger and participate in activities covering a broad spectrum from entertainment to community, educational and charitable events. Shopping centres assume the characteristics of the traditional town centre and in this case, the Galleries is labelled on maps as the town centre. The importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. No violation had occurred.
‘In the present case, the restriction on the applicants’ ability to communicate their views was limited to the entrance areas and passageways of the Galleries. It did not prevent them from obtaining individual permission from businesses within the Galleries (the manager of a hypermarket granted permission for a stand within his store on one occasion) or from distributing their leaflets on the public access paths into the area. It also remained open to them to campaign in the old town centre and to employ alternative means, such as calling door-to-door or seeking exposure in the local press, radio and television. The applicants did not deny that these other methods were available to them. Their argument, essentially, was that the easiest and most effective method of reaching people was to use the Galleries, as shown by the local authority’s own information campaign (see para 21 above). The Court does not consider however that the applicants can claim that they were as a result of the refusal of the private company, Postel, effectively prevented from communicating their views to their fellow citizens’

Judges:

M Pellonpaa, P, Nicolas BRATZA, E. PALM, V. STRAZNICKA, R. MARUSTE, S. PAVLOVSCHI, L. GARLICKI, judges, M O’BOYLE, Section Registrar

Citations:

44306/98, Times 13-May-2003, [2003] ECHR 222

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 10 11 13

Jurisdiction:

Human Rights

Citing:

Cited – CIN Properties Ltd v Rawlins CA 1995
Young men were barred from a shopping centre. The private company owner considered that their behaviour was a nuisance.
Held: The owner had the right to determine any licence which the applicants might have had to enter the Centre. The local . .
Cited – Ozgur Gundem v Turkey ECHR 16-Mar-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; No violation of Art. 14; Struck out of the list in respect of the first applicant; Pecuniary damage – financial award; Non-pecuniary damage – . .
Cited – Rees v The United Kingdom ECHR 17-Oct-1986
The applicant had been born and registered as a female, but later came to receive treatment and to live as a male. He complained that the respondent had failed to amend his birth certificate.
Held: The court accepted that, by failing to confer . .

Cited by:

Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 June 2022; Ref: scu.181914

R v Her Majesty’s Advocate and Another: HCJ 31 May 2002

Citations:

[2002] ScotHC 67

Links:

Bailii, Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – R v Her Majesty’s Advocate and Another PC 1-Nov-2002
Section 57(2) provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. It is not open to the court if this subsection is breached to assess what the consequences of . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 07 June 2022; Ref: scu.181694

Coppard v The Commissioners of Customs and Excise, Lord Chancellor intervening: CA 9 Apr 2003

The judge, a circuit judge who had been appointed a judge of the TCC, had adjudicated on the claimant’s case in the High Court in the false belief that the appointment allowed him to do so.
Held: The judge had not wilfully closed his eyes to the law, and his mistake was understandable. On established principle, the judge was a judge de facto. The true logic of the doctrine was not only that the acts were validated but also the office. Accordingly, the judge was a properly constituted court for Article 6 purposes.

Citations:

[2003] EWCA Civ 631, Times 11-Apr-2003, Gazette 19-Jun-2003, [2003] EWCA Civ 511, [2003] QB 1428, [2003] 3 All ER 351, [2003] 2 WLR 1618

Links:

Bailii, Bailii

Statutes:

Supreme Court Act 1981 68, European Court of Human Rights 6(1)

Jurisdiction:

England and Wales

Citing:

Cited – Fawdry and Co (A Firm) v Murfitt CA 14-May-2002
The judge at first instance who was ticketed to sit as a judge in the Technology and Construction Court, had been asked to sit as a judge of the High Court to take this case. The appellant said she was acting outside her powers.
Held: The . .
Grant of leave – Coppard v Customs and Excise CA 5-Nov-2002
Application for leave to appeal out of time – granted. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights, Constitutional

Updated: 07 June 2022; Ref: scu.180988

Klamecki v Poland (No 2): ECHR 3 Apr 2003

ECHR Judgment (Merits and just satisfaction) Violation of Art. 5-3 with regard to the right to be brought promptly before a judge or other officer ; Violation of Art. 5-3 with regard to the length of pre-trial detention ; Violation of Art. 5-4 ; Violation of Art. 8 with regard to correspondence ; Violation of Art. 8 with regard to family life ; No separate issue under Art. 34 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings

Citations:

31583/96, [2003] ECHR 142

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 07 June 2022; Ref: scu.180475

Fuchs v Poland: ECHR 11 Feb 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to proceedings concerning building permit ; Violation of Art. 6-1 with regard to proceedings concerning demolition order ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings

Citations:

33870/96, [2003] ECHR 73

Links:

Worldlii, Bailii

Human Rights

Updated: 07 June 2022; Ref: scu.180501

Guerrera and Fusco v Italy: ECHR 3 Apr 2003

ECHR Judgment (Merits and just satisfaction) Preliminary objection rejected (victim) ; Violation of Art. 6-1 ; No violation of P1-1; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings

Citations:

40601/98, [2003] ECHR 140

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – Guerrera and Fusco v Italy ECHR 31-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 June 2022; Ref: scu.180476

Malescia v Italy: ECHR 3 Apr 2003

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 – Convention proceedings
The complainant said that her rights to a fair trial within a reasonable time, and peaceful enjoyment of her possessions had been infringed. A possession order had been made in 1991, but because of failures in the court system, she recovered actual possession only in June 2000.
Held: Breach of 6.1 was established.

Citations:

42343/98, [2003] ECHR 144

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 07 June 2022; Ref: scu.180471

Barnette v Government of the United States of America; United States Government v Montgomery (No 2): CA 24 Mar 2003

The appellant sought to resist the registration here of a confiscation order made in the US. She argued it would be contrary to the interests of justice to register it, that the US procedure would be unlawful here under the Convention, the appeal having been held in her absence.
Held: It could not be said that the registration here of the order would lead to a breach of the applicant’s human rights. Any breach of the applicant’s human rights in the US was not flagrant. English law itself allowed such a hearing in limited circumstances. The US proceedings were seen as civil. In the interests of comity, the order should be registered.

Judges:

Lord Justice Scott Baker Lord Chief Justice Of England And Wales Lord Justice Kennedy

Citations:

[2003] EWCA Civ 392, Times 28-Mar-2003, Gazette 05-Jun-2003, [2003] 1 WLR 1916

Links:

Bailii

Statutes:

Criminal Justice Act 1988 97, European Convention on Human Rights 6.1

Jurisdiction:

England and Wales

Citing:

See also – United States Government v Montgomery and Another HL 6-Feb-2001
An English court had power to make a restraining order against the disposal of assets pending an application for confiscation pursuant to a US order. This applied even if the US original judgment predated the date on which the US was added to the . .
Distinguished – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Hadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
Cited – Wim Harry Gerard Maronier v Bryan Larmer CA 29-May-2002
The defendant had been a dentist in the Netherlands. An action for damages was begun against him, but then stayed. Judgment was later entered in the Netherlands after he had moved to the UK, and of which he was ignorant. There was no subsisting . .
Appeal from – Government of the United States of America v Barnette and another Admn 2002
The applicant sought to register, under the Act, an order against the funds of the defendant, who replied that the order sought to be registered had been obtained in a way which would infringe her human rights if obtained here. As a fugitive she had . .

Cited by:

See Also – United States Government v Montgomery and Another HL 6-Feb-2001
An English court had power to make a restraining order against the disposal of assets pending an application for confiscation pursuant to a US order. This applied even if the US original judgment predated the date on which the US was added to the . .
Appeal from – Government of the United States of America v Barnette and Montgomery (No 2) HL 22-Jul-2004
The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights, Jurisdiction, International

Updated: 07 June 2022; Ref: scu.180050

In re McKerr: CANI 10 Jan 2003

The appellant’s son and two others had been shot dead by police officers. There remained considerable controversy over the circumstances. The matter had been taken to the ECHR which had found the enquiry inadequate. The parties now disputed the steps taken to give effect to that decision. The court held that the 1998 is not to be applied retrospectively.

Judges:

Carswell LCJ

Citations:

[2003] NICA 1, [2004] 1 WLR 807

Links:

Bailii

Statutes:

Human Rights Act 1998, European Convention on Human Rights

Jurisdiction:

Northern Ireland

Cited by:

Appeal from – 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 – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 June 2022; Ref: scu.180230

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 to any asylum applicant who did not claim asylum immediately upon entry, was unfair. There were several possible reasons which might lead to a claim not being made as soon as reasonably practical. These reasons would be disregarded under the appellant’s system. The burden of establishing the promptness of the application lay on the asylum seeker. A decision not to provide support could not become unlawful until it became clear that charitable aid would not be forthcoming, and the applicant would be unable to fend for himself. The threshold for establishing inhuman or degrading treatment by the failure to provide support was a high one. The system failed in not explaining properly to the applicant the nature and purpose of the interview. The case workers were not properly directed as to the tests to apply. Regard had to be given to the applicant’s state of mind, and the reasons for not applying immediately should be investigated. The interviewer and decision maker needed to be the same person. The applicants had been treated unfairly, and the Secretary of State’s appeal was dismissed.
Lord Phillips of Worth Matravers MR said: ‘The common law of judicial review in England and Wales has not stood still in recent years. Starting from the received checklist of justiciable errors set out by Lord Diplock in the CCSU case [1985] AC 374, the courts (as Lord Diplock himself anticipated they would) have developed an issue-sensitive scale of intervention to enable them to perform their constitutional function in an increasingly complex polity. They continue to abstain from merits review – in effect, retaking the decision on the facts – but in appropriate classes of case they will today look very closely at the process by which facts have been ascertained and at the logic of the inferences drawn from them.’

Judges:

Lord Justice Sedley Lord Justice Clarke Lord Phillips Mr

Citations:

Times 19-Mar-2003, [2003] EWCA Civ 364, Gazette 29-May-2003, [2003] 2 All ER 905, [2003] HRLR 21, [2004] QB 36, [2003] UKHRR 607, [2003] 3 WLR 365, (2003) 6 CCL Rep 136, (2003) 6 CCL Rep 136, [2003] ACD 46

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 55, European Convention on Human Rights 3 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (Q) v Secretary of State for the Home Department; Regina (D) v Same; Regina (J) v Same etc Admn 19-Feb-2003
The several applicants challenged the implementation of the section, which required an asylum seeker to make his application at the very first opportunity on arriving in the UK, and denied all benefit and support to those who did not do so. A form . .
Cited – Rex v Inhabitants of Eastbourne 1803
As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .

Cited by:

Appealed to – Regina (Q) v Secretary of State for the Home Department; Regina (D) v Same; Regina (J) v Same etc Admn 19-Feb-2003
The several applicants challenged the implementation of the section, which required an asylum seeker to make his application at the very first opportunity on arriving in the UK, and denied all benefit and support to those who did not do so. A form . .
Cited – K v London Borough of Lambeth CA 31-Jul-2003
The claimant appealed against refusal of judicial review. She had entered the UK, and applied for asylum. She was then found to have contracted a marriage of convenience, and thus become ineligible for support. She appealed and now sought housing . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Regina (Limbuela) v Secretary of State for the Home Department QBD 4-Feb-2004
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 . .
Cited – 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 . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Benefits

Updated: 07 June 2022; Ref: scu.179864

Ocalan v Turkey: ECHR 12 Mar 2003

The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none of which countries was prepared to allow him to stay. Ultimately, he achieved a temporary refuge in the home of the Greek Ambassador in Nairobi. He was then tricked into believing that arrangements had been made for him to fly to the Netherlands, where he would be given refuge. Instead, when he got to Nairobi airport he was arrested by Turkish officials and put on a plane to Turkey.
Held: This took place with the agreement of the Kenyan authorities. In Turkey he was tried, convicted and sentenced to death, a sentence which was subsequently commuted. The issue was whether his arrest by the Turkish authorities at Nairobi airport infringed the applicant’s Article 5 rights. Before dealing with the question of jurisdiction the Court considered the principles governing the question of whether the arrest was lawful: ‘The Court accepts that an arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person’s individual rights to security under Article 5 (1).’
Bankovic was distinguished: ‘Directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the ‘jurisdiction’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. The Court considers that the circumstances of the present case are distinguishable from those in the aforementioned Bankovic and Others case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey (see in this respect the aforementioned decisions in the cases of Illich Sanchez Ramirez v France and Freda v Italy).’
The Court then considered whether the acts of the Turkish officials were permissible under international law: ‘The Court must decide in the light of the parties’ arguments whether the applicant’s detention in Kenya resulted from acts of the Turkish officials that violated Kenyan sovereignty and international law (as the applicant has submitted) or from cooperation between the Turkish and Kenyan authorities (as the Government have submitted).’ The Court concluded that the Kenyan authorities had been party to the plan that the Turkish officials should arrest the applicant, which led to the conclusion that his arrest was an exercise of extradition which was not unlawful, so that it did not infringe Article 5.
The court considered the restrictions on the claimants access to his lawyers: ‘However, as stated above . . restrictions may be imposed on an accused’s access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing.
. . In the present case, the Court accepts . . that the applicant and his lawyers were unable to consult out of hearing of the authorities at any stage. It considers that the inevitable consequence of that restriction, which was imposed during both the preliminary investigation and the trial, was to prevent the applicant from conversing openly with his lawyers and asking them questions that [might prove] important to the preparation of his defence. The rights of the defence were thus significantly affected.
The Court observes in that connection that the applicant had already made statements by the time he conferred with his lawyers and made further statements at hearings before the State Security Court after consulting them. If his defence to the serious charges he was required to answer was to be effective, it was essential that those statements be consistent.
Accordingly, the Court considers that it was necessary for the applicant to be able to speak with his lawyers out of hearing of third parties.
As to the Government’s contention that the supervision of the meetings between the applicant and his lawyers was necessary to ensure the applicant’s security, the Court observes that the lawyers had been retained by the applicant himself and that there was no reason to suspect that they had threatened their client’s life. They were not permitted to see the applicant until they had undergone a series of searches. Mere visual surveillance by the prison officials, accompanied by other measures, would have sufficed to ensure the applicant’s security’.
Consequently, the Court holds that the fact that it was impossible for the applicant to confer with his lawyers out of the hearing of members of the security forces infringed the rights of the defence.’

Citations:

46221/99, [2003] ECHR 125, (2003) 37 EHRR 10, 15 BHRC 297

Links:

Worldlii, Bailii

Citing:

Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .

Cited by:

Cited – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs Admn 22-Jul-2003
The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
See Also – Ocalan v Turkey ECHR 12-May-2005
(Grand Chamber) – The applicant had been detained in Kenya. He had allowed himself to be taken by Kenyan officials to Nairobi airport in the belief that he was free to leave for a destination of his choice, but they took him to an aircraft in which . .
Cited – Bary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
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.
Cited – Brown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 June 2022; Ref: scu.179804

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 arrangements for inquests

Judges:

The Hon Mr Justice Latham Lord Justice Mummery Lord Justice Pill

Citations:

[2003] EWCA Civ 217, [2003] Lloyds Med LR 326

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

Appealed to – Sacker, Regina (on the Application of) v Coroner for the County of West Yorkshire HL 11-Mar-2004
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 . .

Cited by:

Cited – Khan, Regina (on the Application of) v Secretary of State for Health CA 10-Oct-2003
The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There . .
Appeal from – Sacker, Regina (on the Application of) v Coroner for the County of West Yorkshire HL 11-Mar-2004
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 . .
Cited – Gentle and Others, Regina (on the Application of) v the Prime Minister and others Admn 20-Dec-2005
The applicants sought leave to bring judicial review of the decisions which led to the invasion of Iraq. They were relatives of servicemen who had died there.
Held: The court’s only duty at this stage was to ask whether there was an arguable . .
Lists of cited by and citing cases may be incomplete.

Coroners, Human Rights

Updated: 07 June 2022; Ref: scu.179565

Regina on the Application of Lester v The London Rent Assessment Committee: CA 12 Mar 2003

The court faced the question of, whether if a landlord serves a notice on an assured tenant under section 13(2) of the Act proposing an increase in rent, that will be the rent unless, before the beginning of the new period specified in the notice the tenant refers the notice to a rent assessment committee under 13(4). Does the word ‘refer’ refer to the receipt of a notice, or does it include it having been posted. If not the latter, should the provision be read down under the Human Rights Act 1988.
Held: The question is not a true access to justice question since the tenant was not exercising a right until the procedure was implemented. The word had to be given its ordinary meaning unsupported by reference to the Form used. It means here that it must be received by the Rent Assessment Committee. The Form itself should be amended.

Judges:

Lord Justice Sedley, Lord Justice Waller Lord Justice Tuckey

Citations:

[2003] EWCA Civ 319, Times 25-Mar-2003

Links:

Bailii

Statutes:

Housing Act 1988 13(4), Human Rights Act 1998 3, Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 (SI 1997 No. 194)

Jurisdiction:

England and Wales

Citing:

Cited – Miragall Escolano And Others v Spain (Article 41) ECHR 25-May-2000
Hudoc Judgment (Struck out of the list) Struck out of the list (arrangement) 38366/97; 38688/97; 40777/98; 40843/98; 41015/98; 41400/98; 41446/98; 41484/98; 41487/98; 41509/98 . .
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 – Nash v Ryan Plant International Limited 1977
The court considered the meaning of the word ‘refer’ in the section.
Held: Words such as ‘deliver’ or ‘present’ ordinarily require that the transfer shall be completed. Words like ‘send’ or ‘despatch’ do not. The argument on the word . .
Appeal from – Regina (Lester) v London Rent Assessment Committee QBD 7-Nov-2002
The tenant sought to request the Committee to fix his rent. He sent the application, but it was not received before it came into effect. He appealed a rejection of his claim as out of time.
Held: The regulation required the rent to be referred . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 07 June 2022; Ref: scu.179743

Sheldrake v Director of Public Prosecutions: Admn 24 Feb 2003

The defendant challenged the application of the section, under which he was deemed to have intended to drive a vehicle whilst under the influence of alcohol, unless he could prove it was not his intent to drive, saying this infringed his right to a fair trial.
Held: The section must be read down to comply with the Convention. The burden to be placed on a defendant was the evidential burden only, and not the legal burden. Once he raised the issue, and pointed to some evidence that there was no likelihood of his driving, the burden of proving there was some real risk of him driving must fall on the prosecution. It was not necessary to impose the legal burden of proof on the defendant.

Judges:

Lord Justice Clarke Mr Justice Henriques Mr Justice Jack

Citations:

Times 25-Feb-2003, [2003] EWHC 273 (Admin), Gazette 03-Apr-2003, [2004] QB 487

Links:

Bailii

Statutes:

European Convention on Human Rights 6.2, Road Traffic Act 1988 5(8)

Cited by:

Cited – Attorney General’s Reference No 4 of 2002 CACD 21-Mar-2003
The defendant had been tried for an offence under the Act of being a member of a proscribed organisation, and professing membership of Hamas. At trial the Crown accepted an evidential burden, that the offence had to be read down to comply with the . .
Appeal from – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights, Road Traffic

Updated: 07 June 2022; Ref: scu.179573

Grundy and Co Excavations Ltd and Another, Regina (on the Application of) v Halton Division Magistrates Court: Admn 24 Feb 2003

A reverse legal burden applied to defendants accused of an offence under section 17 of the Forestry Act 1967 which, in specified circumstances, created an absolute offence of felling a tree without a felling licence. Clarke LJ said: ‘It is thus clear that, while the general principles are those set out in Edwards, each case depends upon the construction of the particular statute. The question in each case will be whether the provision concerned is an ‘exception, exemption, proviso, excuse or qualification’ within the meaning of section 101 of the Magistrates’ Courts Act 1980. It is also clear from Hunt, and indeed from the express terms of section 101, that in such a case ‘the burden of proving the exception, proviso, excuse or qualification, shall be on the defendant’.
As I read the decision in Hunt, the House rejected the submission that any burden on the accused should be construed as evidential and not legal . . Lord Griffiths rejected the submission in this way . .
‘My Lords, I am, of course well aware of the body of distinguished opinion that urges that wherever a burden of proof is placed upon a defendant by statute the burden should be an evidential burden and not a persuasive burden, and that it has the support of the 11th Report of the Criminal Law Revision Committee, Evidence (General) 1972 (Cmnd 4991). My Lords, such a fundamental change is, in my view, a matter for Parliament and not a decision for your Lordships’ House.’
It is thus quite clear that where, applying the principles in Edwards and Hunt and the provisions of section 101 of the Magistrates’ Courts Act 1980 there is a burden on the accused, it is a legal burden and not an evidential burden.’

Judges:

Lord Justice Clarke Mr Justice Jack

Citations:

[2003] EWHC 272 (Admin), [2003] 1 PLR 89

Links:

Bailii

Statutes:

Forestry Act 1967 9(1), Magistrates’ Courts Act 1980 101

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Edwards 1975
On a charge of selling intoxicating liquor without a justices’ licence, it is not for the prosecutor to prove that the defendant had no licence but for the defendant to prove that he had. The burden of establishing a statutory exemption by way of a . .
Cited – Regina v Hunt (Richard) HL 1987
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of . .

Cited by:

Cited – Clarke v Regina CACD 23-Apr-2008
The defendant appealed his conviction for providing immigration services when not qualified to do so. . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 07 June 2022; Ref: scu.179691

AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B: QBD 26 Feb 2003

An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents had been given, and the concept under the Act of ‘treatment together’. Any interference with the right to family life was proportionate and necessary.

Judges:

The President

Citations:

[2003] EWHC 259 (QB), Gazette 01-May-2003, [2003] 1 FLR 1091

Links:

Bailii

Statutes:

Family Law Act 1986 55A, Human Fertilisation and Embryology Act 1990 28 29

Jurisdiction:

England and Wales

Citing:

Cited – U v W (Attorney-General Intervening) FD 4-Mar-1997
The restriction on the freedom to provide human fertility treatment to licensees of the Authority was not a breach of the EU treaty. There is a particular need for certainty in provisions affecting the status of a child. There is a mental element . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Kroon And Others v The Netherlands ECHR 27-Oct-1994
Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
Cited – Re B (Parentage) FD 1996
A mother applied for financial provision for her twin children under 1989 Act Sch 1. The father asked whether he was their parent within the Schedule. They had been born by artificial insemination. He accepted that he was the donor of the sperm and . .
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB CA 6-Feb-1997
At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
Cited – McMichael v United Kingdom ECHR 2-Mar-1995
In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. . .
Cited – Re H; Re G (Adoption: Consultation of Unmarried Fathers) CA 2001
Not every natural father has a right to respect for his family life with regard to every child of whom he may be the father (see also McMichael v United Kingdom (1995) 20 EHRR 205). The application of Art 8(1) will depend upon the facts of each . .
Cited – Re S (Freeing for Adoption) CA 2002
If parliament always foresaw what possibilities might arise, courts would never have anything to interpret. . .
Cited – Mrs U v Centre for Reproductive Medicine CA 2002
The 1990 Act lays great emphasis upon consent. Scientific techniques developed since the first IVF baby open up the possibility of creating human life in quite new ways bringing huge practical and ethical difficulties. These have to be balanced . .
Cited – Mikulic v Croatia ECHR 7-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 8; Violation of Art. 13 with regard to the complaint under Article 6-1; Not necessary to examine Art. 13 with regard to the . .
Cited – Re R (A Child) CA 19-Feb-2003
. .
Cited – Regina (Rose and Another) v Secretary of State for Health and the Human Fertilisation and Embryology Authority Admn 26-Jul-2002
Applications were made, challenging the refusal of the Secretary of State for Health, and the Human Fertilisation and Embryology Authority, to institute a system where a child born by artificial insemination could make enquiries as to his or her . .
Cited – Johansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
See also – Leeds Teaching Hospitals NHS Trust v Mr and Mrs A, YA, ZA, Mr and Mrs B T Authority QBD 4-Nov-2002
At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
Held: Difficult issues of . .

Cited by:

See also – Leeds Teaching Hospitals NHS Trust v Mr and Mrs A, YA, ZA, Mr and Mrs B T Authority QBD 4-Nov-2002
At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
Held: Difficult issues of . .
Cited – Quintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .
Lists of cited by and citing cases may be incomplete.

Family, Health, Human Rights

Updated: 07 June 2022; Ref: scu.179570

Regina (Sim) v Secretary of State for the Home Department: Admn 11 Feb 2003

The defendant had been convicted of a serious offence involving violece or sex, and been made subject to a extended sentence. He had been released on licence but recalled, and now challenged the system under which it had been decided that he should serve the balance of the first sentence.
Held: The system of extended sentences went beyond sentencing for the actual offence asking also whether there was a risk of re-offending. The parole board exercised an important public function, and made decisions with serious consequences to individuals. That this might require an assessment of the risk he posed made the decisions even more requiring of fairness. Where however further information came to light which suggested that there was a risk, then it was proper to recall a prisoner. There was no severance of the causal link with the original sentence, and the factor which caused the re-assessment need not be an offence of the same type as that whch gave rise to the sentence. A parole board could receive hearsay evidence.
Elias J spoke of the purpose of extended sentences: ”In such cases the object of the sentence is not to subject the prisoner to detention for the extended licence period, and indeed frequently when such sentences are imposed there would be no power at that stage to detain the prisoner in custody for that period. The aim of the sentence is to manage the risk in the community rather than in prison, albeit that it is recognised that it may be necessary to resort to further detention if that aim fails. The offender is not on licence as an alternative to prison; rather he is on licence as an alternative to liberty . . Once the prison sentence imposed by the court has been served, once cannot say that the sentencing court had it in mind that the offender should be detained unless it was shown that he was no longer a danger. The presumption implicit in the sentence passed is that during the extension period the offender need not be in custody.’ and ‘To have a presumption, therefore, that detention is justified after recall during the extension period is contrary to article 5. No court has decided, prior to matter being dealt with by the Parole Board, that detention is necessary during that period. The executive will be definition have taken that view, since it has decided to recall the offender, but that is not enough for compliance with article 5. As Elias J said, at para 54, the board should not be required to start from the premise that the executive’s assessment was correct. It is something about which the Parole Board itself should be satisfied.’

Judges:

Elias J

Citations:

Times 21-Feb-2003, Gazette 03-Apr-2003, [2003] EWHC 152 (Admin), [2003] 2 WLR 1374, [2004] QB 1288

Links:

Bailii

Statutes:

European Convention on Human Rights 5, Powers of Criminal Courts (Sentences) Act 2000 85

Cited by:

Appeal from – Regina (Sim) v Parole Board CA 18-Dec-2003
The prisoner had been sentenced to an extended term of five years imprisonment for indecent assault. He had been released, and then recalled for alleged breaches of his licence. The respondent appealed findings that such a recall was subject to . .
Cited – O v Crown Court at Harrow HL 26-Jul-2006
The claimant said that his continued detention after the custody time limits had expired was an infringement of his human rights. He faced continued detention having been refused bail because of his arrest on a grave charge, having a previous . .
Appeal from – Secretary of State for the Home Department v Sim and The Parole Board CA 19-Dec-2003
The prisoner was subject to an extended sentence, and had been recalled to prison. He now complained that the recall procedure had infringed his human rights. . .
Cited – Chater, Regina (on The Application of) v Secretary of State for Justice and Another Admn 2-Aug-2010
The claimant sought judicial review of his treatment after recall to prison from licence. He had a history of the sexual abuse of children. A police surveillance report had been rejected by the Parole Board, but they had nevertheless continued his . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Evidence

Updated: 07 June 2022; Ref: scu.179543

Gary Follen v Her Majesty’s Advocate: PC 8 Mar 2001

PC High Court of Justiciary (Scotland) The defendant said that a trial under the section infringed his right to a fair trial, because of a ten month delay by the prosecutor. On arrest he had been recalled to serve the remainer of a sentence, and served longer than the 110 day maximum before his case came to trial.
Held: Upon re-arrest he was serving the time under earlier sentence. The defendant had raised the devolution issue only at this stage. The Committee had itself no original jurisdiction to hear such a complaint. Following Montgomery, it had to be heard first in the High Court of Justiciary. In this case, the court refusing leave to appeal would have avoided much difficulty by giving reasons for its refusal.
Where the Appeal Court refused leave without giving reasons, the Board might find it difficult to appreciate that a petition for special leave to appeal was without merit from the information given on paper by the petitioner.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Millett

Citations:

DP No. 1 of 2000, [2001] UKPC D2

Links:

PC, PC, Bailii

Statutes:

Misuse of Drugs Act 1971 4(3)(b)

Citing:

Applied – Wallace v H M Advocate 1959
The running of the 110 day maximum period for detention after which a trial must have begun, was interrupted when the accused began to serve a sentence of imprisonment on another matter. He was no longer being detained because of the committal . .
Cited – Montgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
Cited – Re X, Petitioner 1995
. .
Cited – J T A K v H M Advocate 1991
. .

Cited by:

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.

Scotland, Crime, Human Rights

Updated: 07 June 2022; Ref: scu.179259

Barnfather v London Borough of Islington Education Authority, Secretary of State for Education and Skills: QBD 7 Mar 2003

The appellant was convicted of the crime of being a parent whose child had failed to attend school regularly. She challenged saying that the offence required no guilty act on her part, but was one of strict liability, and contrary to her human rights.
Held: Although the offence is one of strict liability, there is no reversal of the burden of proof. Article 6(2) has no bearing on the reduction or elimination of mens rea requirements, and is therefore compatible with offences of strict or even absolute liability. The section engaged article 6.2 but was compliant. Authorities should however be careful before exercising their discretion to prosecute.
Elias J said: ‘I recognise that the penalties are small, being only a fine, and that is a factor which can properly be considered when determining whether an offence of strict liability is justified. However, in my opinion there is nonetheless a real stigma attached to being found guilty of a criminal offence of this nature. It suggests either an indifference to one’s children, or incompetence at parenting, which in the case of the blameless parent will be unwarranted.’

Judges:

Mr Justice Elias, The Honourable Mr Justice Mackay

Citations:

[2003] EWHC 418 (Admin), Times 20-Mar-2003, [2003] 1 WLR 2318

Links:

Bailii

Statutes:

Education Act 1996 444(1), European Convention on Human Rights 6.2

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Regina v Daniel CACD 22-Mar-2002
The defendant appealed a conviction for hiding assets from her receiver following her bankruptcy. He said that recent case law suggested that the burden of establishing the defence under section 352 was evidential only.
Held: The conviction . .
Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – Regina v S (Trade Mark Defence) (Roger Sliney v London Borough of Havering) CACD 20-Nov-2002
The defendant alleged that the offence of which had been convicted, under the 1994 Act, infringed his rights under article 6.2 in reversing the burden of proof.
Held: The principle that the duty of proof lay on the prosecution was subject to . .

Cited by:

Cited – Sutton London Borough Council v S and Another QBD 26-Oct-2004
Parents had had charges brought against them by the appellant for failing to ensure the attendance of their child at school dismissed. The authority appealed.
Held: The authority should have considered more carefully whether it was appropriate . .
Cited – Regina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
Cited – London Borough of Sutton v S Admn 26-Oct-2004
The Borough appealed against acquittal by the magistrates of the defendant parent accused of failure to ensure the regular attendance of their child at school. The child had attended only irregularly. The parents had contacted the school and . .
Cited – Isle of Wight Council v Platt Admn 13-May-2016
The Council appealed by case stated against a decision by magistrates that a parent who took his child out of school to take a holiday hod not failed to ensure that the child attended regularly. The record was otherwise regular and satisfactory.
Lists of cited by and citing cases may be incomplete.

Education, Crime, Human Rights

Updated: 07 June 2022; Ref: scu.179544

Clark (Procurator Fiscal, Kirkcaldy) v Kelly: PC 11 Feb 2003

PC (The High Court of Justiciary) The minuter challenged the role of the legal adviser to the district courts in Scotland, and as to his independence.
Held: The legal adviser was not subject to the same system of appointments as the justices. However the system provided for a right of appeal (section 175) on questions of law, which would cover the role played by the adviser, and also the wider power under section 193 would allow general redress, in circumstances involving a possible miscarriage of justice. The adviser should make known to the parties, the legal advice he had given in private, and opportunity for comment allowed.

Judges:

Bingham of Cornhill, Hoffmann, Hope of Craighead, Hutton, Rodger of Earsferry LL

Citations:

Times 12-Feb-2003, [2003] UKPC 14, Gazette 01-May-2003, [2003] UKPC D1, [2003] UKHRR 1167, [2003] 1 All ER 1106, [2003] 2 WLR 1586, 2003 SCCR 194, 2003 GWD 7-164, [2003] HRLR 17, 2003 SC (PC) 77, [2004] 1 AC 681, 14 BHRC 369, 2003 SLT 308

Links:

PC, Bailii, PC

Statutes:

Scotland Act 1998 Sch 6 33, Criminal Procedure (Scotland) Act 1995 175 193, European Convention on Human Rights ^.1

Jurisdiction:

Scotland

Citing:

Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Cited – Albert And Le Compte v Belgium ECHR 10-Feb-1983
Hudoc Violation of Art. 6-1; Just satisfaction reserved . .

Cited by:

Cited – Watson v General Medical Council Admn 26-Aug-2005
The claimant said that the procedure of the fitness to practice panel was unfair in that representations had been accepted by the panel from an expert witness without him having an opportunity to challenge or comment on that evidence.
Held: . .
Cited – The British Medical Association, Regina (on the Application of) v The General Medical Council and Another Admn 4-May-2016
The BMA sought to challenge the validity of the rules governing the procedure of Fitness to Practice panels. In particular the BMA challenged the new absence of a requirement that the panel’s legal advice and assistance be available to the parties. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice, Magistrates

Updated: 07 June 2022; Ref: scu.179139

Hammern v Norway: ECHR 11 Feb 2003

The claimant was acquitted by a jury at trial and he then sought compensation for the period of his detention on remand. The test applied was whether ‘it is shown to be probable that he did not perform the act that formed the basis for the charge’.
Held: Article 6(2) was applicable and there was a violation of it. The compensation proceedings did not give rise to a ‘criminal charge’ against the applicant, but went on to hold that the linkage between the compensation proceedings and the criminal proceedings had the consequence of bringing the former ‘within the scope’ of article 6(2). At para 44 the Court held that it was significant that the proceedings engaged the responsibility of the state, not a private party. Article 6(2) applied: ‘Moreover, unlike in criminal proceedings – where it was for the prosecution to prove beyond reasonable doubt that the defendant had committed the incriminated act – in a compensation case of the present kind it was for the acquitted person to show that, on the balance of probabilities, it was more than 50% probable that he or she did not carry out the act grounding the charge. Leaving aside this difference in evidentiary standards, the latter issue overlapped to a very large extent with that decided in the applicant’s criminal trial. It was determined on the basis of evidence from that trial by the same court, sitting largely in the same formation, in accordance with the requirements of article 447 of the Code.
Thus, the compensation claim not only followed the criminal proceedings in time, but was also tied to those proceedings in legislation and practice, with regard to both jurisdiction and subject-matter. Its object was, put simply, to establish whether the state should have a financial obligation to compensate the burden it had created for the acquitted person by the prosecution it had engaged against him. Although the applicant was not ‘charged with a criminal offence’, the Court considers that, in the circumstances, the conditions for obtaining compensation were linked to the issue of criminal responsibility in such a manner as to bring the proceedings within the scope of article 6(2), which accordingly is applicable.’

Citations:

30287/96, [2003] ECHR 75, [2011] ECHR 2150

Links:

Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights 6(2)

Cited by:

Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – Dr D, Regina (on the Application of) v Secretary of State for Health CA 19-Jul-2006
The doctor complained of the use of Alert letters where he was suspected of sexual abuse of patients, but the allegations were unsubstantiated. He complained particularly that he had been acquitted in a criminal court and then also by the . .
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Cited – Gale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 June 2022; Ref: scu.179052

Jakupovic v Austria: ECHR 6 Feb 2003

ECHR Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – domestic proceedings ; Costs and expenses award – Convention proceedings
The complainant had come to live in Austria and his family were there. After convictions for burglary and other offences of violence, he was ordered to leave Austria at the age of 16 for 10 years. He complained that this infringed his right to family life. The Austrian state argued that it was a proportionate response to the complainant’s criminaility and necessary in a democratic society.
Held: Given the complainant’s age, and the possible return to an unstable society which would follow, the response was disproportionate (majority opinion).

Judges:

G. Ress, President, I. Cabral Barreto, L. Caflisch, P. Kuris, H.S. Greve, K. Traja, E. Steiner, JJ

Citations:

36757/97, [2003] ECHR 67

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 23

Human Rights

Updated: 07 June 2022; Ref: scu.178992

Wilkinson v S and Lord Chancellor’s Department: CA 4 Feb 2003

The appellant challenged his imprisonment for contempt of court. At and after a family court hearing he had verbally and physically assaulted other parties. He had been detained overnight, then sentenced to six months imprisonment.
Held: Where a court looked to deal summarily with a contempt, and the defendant had been locked up, but the case could not be dealt with on that day, the case should be mentioned again to allow consideration of bail. The court had a power hold a defendant overnight, but for no longer than was necessary to arrange a summary trial, and in fairness to th defendant. Here, the summary procedure was appropriate because of the seriousness of the contempt. The judge could deal with the case himself and remain an impartial tribunal, since the procedure was to protect the court not the judge. Where there was any delay, reference to another judge should be considered. A suspended committal order was a committal order at least to the extent that leave to appeal is not required.

Judges:

Woolf LCJ, Hale, Latham LJJ

Citations:

Times 07-Feb-2003, [2003] EWCA Civ 95, [2003] 1 WLR 1254

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .

Cited by:

Cited – Regina v Serumaga CACD 11-Feb-2005
The witness had failed to attend court to give evidence against his estranged wife on a charge against her of assaulting him. He had been held in contempt and refused bail pending the determination of his own guilt.
Held: The judge who had . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Human Rights, Litigation Practice

Updated: 07 June 2022; Ref: scu.178989

In re Kanaris (application for a writ of Habeas Corpus): HL 30 Jan 2003

The defendant faced charges with others on the same indictment. The judge called a preparatory hearing under the 1996 Act, against the others, but held a separate hearing for the defendant, at which he held a similar preparatory hearing for him alone. The defendant now complained that a separate hearing could not be held for different defendants, and that accordingly it was now out of time for him under the 1987 Regulations, and that he should be released.
Held: The judge had been wrong to hold that the defendants could only be arraigned together, and a preparatory hearing held for them all. There was no rule to say that they must be dealt with together. The defendant still retained some rights to apply for bail. Courts should be careful before setting up inflexible rules, and should still bear in mind the need not to deny the defendant the protection of the 1987 Regulations artificially so as to infringe his Article 5 rights.
Lord Hope said: ‘a judge who is minded to order a preparatory hearing in a long and complex case should be careful not to deprive an accused who is in custody of the protection of the statutory custody time limit until it has become necessary for him to do so. Section 32(2)(a) of the 1996 Act enables a judge to exercise the powers under section 31(4) to (7) before the preparatory hearing begins, and thus before arraignment, in a way that would be compatible with the accused’s Convention right. The use of this procedure should enable considerable progress to be made in the preparation and exchange of information before the judge engages in a detailed discussion of how the trial is to be managed, while at the same time preserving to the accused in the meantime the full protection of the statutory custody time limit.’

Judges:

Nichyols of Birkenhead, Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Hutton

Citations:

Times 31-Jan-2003, [2003] UKHL 2, [2003] 1 WLR 443, [2003] 1 All ER 593, [2003] 2 Cr App Rep 1

Links:

House of Lords, Bailii

Statutes:

Prosecution of Offences (Custody Time Limits) Regulations 1987 (1987 No 299) 5(6B), Criminal Procedure and Investigations Act 1996 29 30 32(2)(a), European Convention on Human Rights 5.3

Jurisdiction:

England and Wales

Citing:

Appeal from – Andreas Kanaris v Governor of H M P Pentonville Admn 17-Jan-2002
The defendant sought a writ of habeas corpus, asserting that the custody time limits in his matter had expired before his trial began. An application to extend the limits had to be made before the limit, and had to show proper conduct of the case. . .
Cited – Regina v Southwark Crown Court, Ex parte Customs and Excise Commissioners QBD 1993
The court found that there was one preparatory hearing in existence, and that that had been conducted before Judge Anwyl-Davies QC. But the trial was listed for hearing before Judge Mota Singh QC, simply because of a direction by the presiding judge . .

Cited by:

Cited – H, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 07 June 2022; Ref: scu.178820

Regina (ZL and VL) v Secretary of State for the Home Department and Lord Chancellor’s Department: CA 24 Jan 2003

The applicants’ claims for asylum had been rejected as bound to fail, and under the new Act, they were to be removed from the UK. If they wanted to appeal, they they would have to do so from outside the jurisdiction. The section had been brought into effect before the Act had been formally published.
Held: An Act took effect on Royal assent irrespective of publication, but that rule was not echoed in Human Rights law. Could the respondent give effect to the section before publication? Here the applicant retained a right to apply for judicial review to argue that the absence of publication had caused prejudice. The courts were themselves well placed to judge the issues. The courts should look carefully at the individual circumstances of the case, as well as the fact that certain countries were listed as safe. The fast track procedure was capable of protecting the rights of applicants.
‘If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded’- The test of whether a claim is ‘clearly unfounded’ is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof.

Judges:

Lord Justice Waller, Lord Justice Sedley, Lord Phillips MR

Citations:

[2003] 1 WLR 1230, Times 30-Jan-2003, [2003] EWCA Civ 25, Gazette 20-Mar-2003, [2003] 1 All ER 1062, [2003] Imm AR 330, [2003] INLR 224

Links:

Bailii

Statutes:

Nationality and Asylum Act 2002 115, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .

Cited by:

Cited – Bagdanavicius, Bagdanaviciene v the Secretary of State for Home Department Admn 16-Apr-2003
The applicants sought asylum, saying they had been subjected to repeated ill-treatment by Lithuanian Mafiosi. The claims were rejected as clearly unfounded, denying any right to an appeal.
Held: The court could examine the basis upon which the . .
Cited – The Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .
Cited – Yogachandran, Regina (on the Application Of) v Secretary of State for the Home Department Admn 7-Feb-2006
The applicant appealed rejection of his claim for asylum.
Held: ‘the claimant has wholly failed to demonstrate, even to the very low level of possibility which suffices to quash a certificate, that there is any risk to him if he is returned to . .
Cited – ZT (Kosovo) v Secretary of State for the Home Department HL 4-Feb-2009
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
Cited – EM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 19-Feb-2014
SSHD must examine safety of country for return
The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional, Human Rights

Updated: 07 June 2022; Ref: scu.178797

Regina v H (On appeal from the Court of Appeal (Criminal Division)): HL 30 Jan 2003

The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the basis that the later finding was incompatible with the Convention.
Held: A difficult balance had to be found between the rights of a defendant unable to defend himself, and the need to control someone who might pose a risk to the public. The court must first under s4A, see how the issue is classified in British law. Here a crime was alleged. However the function of a hearing under section 4A was to protect the defendant, not to decide whether he had committed an offence, and no conviction or penalty would follow. The section was compatible.

Judges:

Bingham of Cornhill, Nicholls of Birkenhead, Hutton, Hobhouse of Woodborough, Walker of Gestingthorpe LL

Citations:

Times 31-Jan-2003, [2003] UKHL 1, [2003] 1 WLR 411, [2003] 2 Cr App R 2, (2003) 167 JPN 155, [2003] 1 All ER 497, (2003) 71 BMLR 146, [2003] HRLR 19, (2003) 167 JP 125

Links:

House of Lords, Bailii

Statutes:

Criminal Procedure (Insanity) Act 1964 4A, European Convention on Human Rights 6

Citing:

Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – Regina v Antoine HL 30-Mar-2000
The appellant sought to argue that despite having been found unfit to plead under the 1964 Act, it was still open to him to argue that the defence under section 2 of the 1957 Act applied, and that he was entitled to be plead diminished . .

Cited by:

Cited – A, Regina (on the Application of) v Harrow Crown Court and others Admn 14-Aug-2003
The applicant sought his release from detention in hospital, correction of records at the Crown Court, and confirmation that his detention had infringed his human rights. He had been accused of two assaults, but was found unfit to plead under . .
Cited – Regina on the Application of South West Yorkshire Mental Health NHS Trust v Crown Court at Bradford CA 19-Dec-2003
A appealed an order made by the Crown Court under the 1964 Act for his detention in a mental hospital on the grounds that he was unfit to enter a plea to the charge of murder.
Held: The Court of Appal had no jurisdiction to hear the appeal. . .
Cited – W v Doncaster Metropolitan Borough Council CA 6-May-2004
The claimant had been detained by the respondent under the Act. A trubunal had ordered his release subject to proper arrangements for his support in the community. In the absence of such arrangements being made, he complained at his continued . .
Cited – Regina v Chal CACD 5-Oct-2007
The defendant appealed the decision of the court in a hearing under the 1964 Act that he had been involved in the offence at issue. He said the court had been wrong to admit hearsay evidence.
Held: The prosecution had had to present evidence . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Health, Human Rights

Updated: 07 June 2022; Ref: scu.178821

R v Her Majesty’s Advocate and Another: PC 1 Nov 2002

Section 57(2) provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. It is not open to the court if this subsection is breached to assess what the consequences of any particular violation of an individual’s Convention rights should be. Parliament has decided that members of the Scottish Executive, including the Lord Advocate, should have no power to do acts that are incompatible with any of the Convention rights.

Judges:

Lord Rodger of Earlsferry

Citations:

[2002] UKPC 56

Links:

Bailii

Statutes:

Scotland Act 1998 57(2)

Jurisdiction:

Scotland

Citing:

Appeal from – R v Her Majesty’s Advocate and Another HCJ 31-May-2002
. .

Cited by:

Cited – Sinclair v Her Majesty’s Advocate PC 11-May-2005
(Devolution) The defendant complained that the prosecutor had failed to disclose all the witness statements taken, which hid inconsistencies in their versions of events.
Held: The appeal was allowed. It was fundamental to a fair trial that the . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 07 June 2022; Ref: scu.178864

Venema v The Netherlands: ECHR 17 Dec 2002

A young child aged 11 months was separated from her mother because of fears that the mother was suffering from Munchausen syndrome by proxy and would injure her. The child was returned five months later, following medical reports which found that the child’s arrested breathing had a physical explanation and that there was no sign the mother was suffering from any psychiatric disorder. The court noted that its approach in cases where a child has been taken into care is that it must be satisfied the circumstances justified taking such a step: ‘In this respect, [the court] must have particular regard to whether, in the light of the case as a whole, the reasons adduced to justify the measure were relevant and sufficient such as to allow the conclusion that it was ‘necessary in a democratic society’.
Held: There had been a breach of article 8 because the parents had not been sufficiently involved in the decision-making process. They had not been able to put forward their point of view before the court order was made.
‘The court accepts that when action has to be taken to protect a child in an emergency, it may not always be possible, because of the urgency of the situation, to associate in the decision-making process those having custody of the child. Nor, as the Government point out, may it even be desirable, even if possible, to do so if those having custody of the child are seen as the source of an immediate threat to the child, since giving them prior warning would be liable to deprive the measure of its effectiveness. The court must however be satisfied that the national authorities were entitled to consider that there existed circumstances justifying the abrupt removal of the child from the care of its parents without any prior contact or consultation. In particular, it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to the removal of the child from its family, was carried out prior to the implementation of a care measure.’

Judges:

J-P Costa P

Citations:

35731/97, (2002) 39 EHRR 102, [2002] ECHR 823, [2003] 1 FLR 552

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 8

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Langley and others v Liverpool City Council and others CA 11-Oct-2005
Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the . .
Judgment – Venema v The Netherlands ECHR 4-Mar-2010
Execution of judgment . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 June 2022; Ref: scu.178598

Salapa v Poland: ECHR 19 Dec 2002

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3 ; Violation of Art. 5-4 ; No violation of Art. 6-1 ; Violation of Art. 8 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient

Citations:

35489/97, [2002] ECHR 840

Links:

Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 06 June 2022; Ref: scu.178689

A v The United Kingdom: ECHR 17 Dec 2002

The applicant complained that the absence of legal aid to allow a challenge what had been said about her in Parliament by way of defamation, violated her right of access to court.
Held: The right to absolute parliamentary privilege was within the margin of freedom enjoyed by a nation state. The applicant was not left entirely without remedy, and the freedom of parliament was properly to be protected. As to the availability of legal aid, limited legal advice was available, and a conditional fee arrangement might also have been available. ‘However, the right of access to court is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.’

Citations:

Times 28-Dec-2002, 35373/97, [2002] ECHR 805, (2002) 36 EHRR 917, [2002] ECHR 811

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6 8.1

Cited by:

Cited – Gray v Avadis QBD 30-Jul-2003
The claimant had made complaints against the defendant solicitor to the Office for the Supervision of Solicitors. In answer the defendant made assertions about the claimant’s mental health, and she now sought to bring action iin defamation on those . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Cited – Westcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Legal Aid, Constitutional

Updated: 06 June 2022; Ref: scu.178596

Mitchell and Holloway v The United Kingdom: ECHR 17 Dec 2002

The applicant had become involved in civil proceedings which extended over ten years. They complained of an infringement of their human rights through the delay.
Held: The court had to take account of the complexity of the matter. This had been complex in fact and law, and one party had been obstructive. Nevertheless, some four years had passed between the action being ready for trial, and a date being made available by the respondent. That delay could not be excused by saying the party might have taken alternative steps. The failure to provide resources had denied the applicant’s right to a hearing within a reasonable time.

Citations:

Times 28-Dec-2002, 44808/98, [2002] ECHR 812, [2002] ECHR 818

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1

Human Rights, Litigation Practice

Updated: 06 June 2022; Ref: scu.178597

Sanella v Italy: ECHR 19 Dec 2002

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 – Convention proceedings

Citations:

32644/96, [2002] ECHR 835, [2002] ECHR 841

Links:

Worldlii, Bailii

Human Rights

Updated: 06 June 2022; Ref: scu.178584

MC v Italy: ECHR 19 Dec 2002

ECHR 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 – Convention proceedings
The claimant had terminated a residential lease in 1990. Enforcement of possession orders was not effective because no police assistance was given. She sold the flat in 1996. She now complained that the lack of ways of enforcing the orders for possession interfered with her rights under Article 1 of Protocol 1.
Held: The delay was unreasonable. In the absence of evidence as to pecuniary losses, the court assumed there must be some losses and assessed them equitably at 3,000 Euros comparable with Bottazzi.

Citations:

32391/96, [2002] ECHR 837

Links:

Bailii

Statutes:

European Convention on Human Rights P1-A1

Citing:

Cited – Bottazzi v Italy ECHR 28-Jul-1999
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing, Damages

Updated: 06 June 2022; Ref: scu.178583

Geni Srl v Italy: ECHR 19 Dec 2002

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

Citations:

32662/96, [2002] ECHR 825, [2002] ECHR 831

Links:

Worldlii, Bailii

Human Rights

Updated: 06 June 2022; Ref: scu.178585

Fleres v Italy: ECHR 19 Dec 2002

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
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

Citations:

34454/97, 34454/97, [2002] ECHR 823, [2002] ECHR 829

Links:

Worldlii, Bailii

Human Rights

Updated: 06 June 2022; Ref: scu.178591

Regina v HM Advocate and The Advocate General for Scotland: PC 28 Nov 2002

(The High Court of Justiciary) The prosecution had accepted that the matter had been the subject of unreasonable delay, but wished to continue. The defendant sought a plea in bar, on the basis that continuing would infringe his rights.
Held: Once it was accepted that the delay took the prosecution outside the defendant’s right to a fair trial within a reasonable time, the prosecution must fail. Section 57 simply came into effect. The reasonable time provisions of the convention must be applied throughout the proceedings until they were determined. The Scottish system had accepted rigorous time limits, and they must be applied. This case would reinforce the need for compliance.

Judges:

Steyn, Hope of Craighead, Clyde, Rodger of Earlsferry, Walker of Gestingthorpe LL

Citations:

Times 06-Dec-2002, [2002] UKPC D3, [2003] 2 WLR 317, 2003 SCCR 19, [2004] 1 AC 462, 2002 GWD 39-1280, 2003 SC (PC) 21, [2003] UKHRR 1, 2003 SLT 4

Links:

PC, Bailii

Statutes:

Scotland Act 1998 57(2), European Convention on Human Rights 6.1, Human Rights Act 1998

Citing:

Cited – Stogmuller v Austria ECHR 10-Nov-1969
Hudoc Violation of Art. 5-3; Just satisfaction reserved
The court contrasted the stipulation in article 6(1)-the general requirement for a hearing of any proceedings, civil or criminal, ‘within a reasonable . .
Cited – Attorney General’s Reference (No 2 of 2001) CACD 12-Jul-2001
When assessing whether the defendant’s right to a trial within a reasonable time had been infringed, the court should look as from the date at which he was charged, or served with a summons, and not from the date of the first interview. Although a . .

Cited by:

Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Spiers v Ruddy PC 12-Dec-2007
Limits to Powers in Devolution Cases
Mr Spiers had complained as to the competency of two temporary sheriffs called to hear case against him, saying that the temporary nature of their appointments did not allow them to constitute an independent tribunal. He now complained that the . .
Cited – Rutter, Regina (on the Application of) v The General Teaching Council for England Admn 1-Feb-2008
The applicant challenged a decision of disciplinary committee to go ahead with an allegation of misconduct after considerable delay by council and failure to abide by its own rules. After not receiving a notice of proceedings the applicant had . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Scotland, Human Rights

Updated: 06 June 2022; Ref: scu.178348