Category: Human Rights

I v Finland: ECHR 17 Jul 2008

The processing of information relating to an individual’s private life comes within the scope of article 8 and that personal information relating to a patient ‘undoubtedly belongs to his or her private life’

Citations:

(2009) 48 EHRR 31, 20511/03, [2008] ECHR 623

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 05 June 2022; Ref: scu.272685

Tani v Finland: ECHR 12 Oct 1994

The applicant had been convicted of murder. He complained to the European Commission of Human Rights that one of the prosecution witnesses had identified him when he was brought into a room where the witness was being questioned. For identification purposes he ought to have been placed in a room along with others of similar appearance. The Commission reminded itself that the task of the Convention organs when considering a complaint under article 6 was to ascertain whether the proceedings, considered as a whole, including the way in which evidence was taken and submitted, were fair. The Commission noted that the applicant’s conviction was based on an assessment of a significant amount of corroborative circumstantial evidence; that the identification in question had not played any decisive role in the applicant’s conviction; that the applicant was assisted by counsel throughout the proceedings and that he had been able to question the witness in the proceedings before the domestic court. ‘Having assessed all elements of the domestic proceedings’, the Commission rejected the application as manifestly ill-founded.

Citations:

Unreported, 12 October 1994, 20593/92

Jurisdiction:

Human Rights

Cited by:

Cited – Holland v Her Majesty’s Advocate (Devolution) PC 11-May-2005
The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 05 June 2022; Ref: scu.225524

X v United Kingdom: ECHR 5 Nov 1981

(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the discharge of the patient.
Held: This advisory power did not meet the Convention requirement: ‘Nonetheless, even supposing Mental Health Review Tribunals fulfilled these conditions, they lack the competence to decide ‘the lawfulness of [the] detention’ and to order release if the detention is unlawful, as they have advisory functions only.’
What was required was a review: ‘wide enough to bear on those conditions which, according to the Convention, are essential for the ‘lawful’ detention of a person on the ground of unsoundness of mind, especially as the reasons capable of initially justifying such a detention may cease to exist . . This means that in the instant case article 5(4) required an appropriate procedure allowing a court to examine whether the patient’s disorder still persisted and whether the Home Secretary was entitled to think that a continuation of the compulsory confinement was necessary in the interests of public safety.’

Citations:

7215/75, (1982) 4 EHRR 188, [1981] ECHR 6

Links:

Bailii

Statutes:

Mental Health Act 1959, European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v Secretary of State for the Home Department and Another ex parte IH HL 13-Nov-2003
The appellant had been found unfit to plead after assaulting his son, and he had been detained under the 1964 Act. He alleged his detention was in breach of his right to a fair trial. His release had been authorised subject to the appointment of a . .
Cited – MH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Cited – Juncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
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 . .
See Also – X v The United Kingdom ECHR 18-Oct-1982
. .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – 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 . .
Cited – Lee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 05 June 2022; Ref: scu.187939

Hughes and Others v HM Customs and Excise: Admn 21 Dec 2001

The applicants had either been acquitted of drugs trafficking offences, or were third parties. In each case, property had been taken into receivership, and orders had been made for the receivers to take their costs from the assets taken. The proprietors appealed that part of the orders.
Held: The receiver is an officer of the court, not an agent of the parties. He may not use an unconvicted defendant’s assets to meet the costs of the receivership. Human Rights law would in any event have interfered. Depriving an unconvicted defendant or a third party of his share of lawfully obtained assets to pay the costs of receivership is a disproportionate measure and a breach of Article 1 of the First Protocol.

Judges:

Mr Justice Hooper

Citations:

[2001] EWHC Admin 1102

Links:

Bailii

Statutes:

Drug Trafficking Act 1994, Criminal Justice Act 1988 1A 77(8)

Citing:

Cited – In Re Andrews CA 25-Feb-1999
The defendant and his son had been charged with offences relating to their joint business, and restraint orders were made. The son was convicted, but the defendant was acquitted and awarded his costs out of central funds. The taxing officer held . .
Cited – Gardner v London Chatham and Dover Railway Co (No 1) 1867
When Parliament expressly confers powers and imposes duties and responsibilities of an important kind upon a particular body, it is, as he put it, improper for the court by the appointment of a manager . . . itself to assume those powers and duties. . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, Criminal Practice, Human Rights

Updated: 05 June 2022; Ref: scu.167376

Langton, Allen, Regina (on the Application of) v Department for the Environment, Food and Rural Affairs and Another: Admn 17 Dec 2001

The claimants were farmers, who had been made subject to orders under the Act. They had accumulated maggot waste on their land. The second defendant accepted that the waste included material which would be high risk under the Directive. The defendant had entered the claimant’s land to execute works required under the notice, and the claimant argued this interfered with their property rights under the Convention. The maggot waste which had been supplied to him had included other animal wastes.
Held: Neither the Act for the Order allowed any provision for an appeal. Was judicial review a sufficient alternative remedy? Some of the significant decisions predated the Human Rights Act, and the actual procedure adopted allowed representations to be made, and for review if necessary. The Act was compliant.

Judges:

Mr Nigel Pleming QC (Sitting As A Deputy High Court Judge

Citations:

[2001] EWHC Admin 1047

Links:

Bailii

Statutes:

Animal Health Act 1981, Animal By-Products Order 1999, European Convention on Human Rights, Council Directive 90/667/EEC of 27th November 1990.

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 – McLellan v Bracknell Forest Borough Council; Reigate Borough Council v Benfield and Another CA 16-Oct-2001
The tenant was issued with a notice to quit for unpaid rent, within the first year, during an ‘introductory tenancy.’ She sought judicial review on the basis that the reduced security of tenure infringed her human rights.
Held: Review was . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Animals, Human Rights, Judicial Review, Administrative

Updated: 05 June 2022; Ref: scu.167368

Percy v Director of Public Prosecutions: Admn 21 Dec 2001

The defendant had been convicted of using words or behaviour likely to cause harassment alarm or distress, when she defaced the US flag, and stood on it before a US military officer. She said that the defacing of flags was a common form of protest, that she had no intention to cause alarm or distress, and that any such restriction unjustifiably restricted her right to freedom of expression.
Held: The conviction could not be supported. It was a proper purpose to prevent behaviour which caused insult and distress, and there is a pressing social need in a multicultural society to prevent the denigration of objects of veneration and symbolic importance for one cultural group. Nevertheless, the second stage of the test looked to whether any infringement was a proportionate response. The availability of alternate ways of expressing her feelings was only one factor, and the judge had taken insufficient note of the need to protect freedom of speech.

Judges:

Lord Justice Kennedy and Mrs Justice Hallett

Citations:

Times 21-Jan-2002, [2001] EWHC Admin 1125

Links:

Bailii

Statutes:

Public Order Act 1986 5, European Convention on Human Rights Art 10

Citing:

Cited – Texas v Johnson 1989
. .
Cited – The Sunday Times v The United Kingdom (No 2) ECHR 26-Nov-1991
Any prior restraint on freedom of expression calls for the most careful scrutiny. ‘Freedom of expression constitutes one of the essential foundations of a democratic society subject to paragraph (2) of Article 10. It is applicable not only to . .
Cited – Vigon v Director of Public Prosecutions QBD 9-Dec-1997
Using a hidden video camera, passively to film women in changing rooms, was an act of the camera owner, and constituted the insulting behaviour offence. . .
Cited – Brutus v Cozens HL 19-Jul-1972
The House was asked whether the conduct of the defendant at a tennis match at Wimbledon amounted to using ‘insulting words or behaviour’ whereby a breach of the peace was likely to be occasioned contrary to section 5. He went onto court 2, blew a . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Cited by:

Cited – Norwood v Director of Public Prosecutions Admn 3-Jul-2003
The appellant a BNP member had displayed a large poster in his bedroom window saying ‘Islam out of Britain’. He was convicted of an aggravated attempt to cause alarm or distress. The offence was established on proof of several matters, unless the . .
Cited – Abdul and Others v Director of Public Prosecutions Admn 16-Feb-2011
The defendants appealed against convictions for using threatening, abusive or insulting words or behaviour or disorderly behaviour . . within the hearing or sight of a person likely to be caused harassment, alarm or distress. He had attended a . .
Cited – Hayes v Willoughby CA 13-Dec-2011
Harassment Occurs on the Result, not the Intention
The claimant said that over several years, the respondent had pursued him in many ways challenging his management of a company’s affairs. Complaints had been investigated by the insolvency service and by the police who had discovered nothing to . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 05 June 2022; Ref: scu.167392

Regina (on the Application of Fuller, Wright, Tarr and Booth) v Chief Constable of Dorset Police and Another: Admn 12 Dec 2001

The applicants sought to test the human rights compatibility of the section when applied to gypsies. The travellers sought to stay on land within the district. The local authority used its policy, and agreed to tolerate the encampment for a short time. There was a serious incident with police officers being held temporarily. After refusing to leave, police raided the encampment. Held The section had to be construed tightly since it created a criminal offence. 61(1) requires that the trespassers have not complied with the occupier’s request that they leave as a condition of the making of a direction by the police The question was not whether the section infringed rights, but whether a direction given under the section was an infringement. A landowner requesting trespassers to remove their goods from his land is not infringing the right to possession of goods. The section provided remedies and was proportionate. Their presence on the land was temporary, and the encampment was not their home within the article, but there could be an interference with family life. In this case though the travellers had not been given opportunity to comply with the request for them to leave, and the reaction of the police was disproportionate. The direction was not valid.

Judges:

Justice Stanley Burnton

Citations:

[2001] EWHC Admin 1039

Links:

Bailii, Bailii, Bailii

Statutes:

Criminal Justice and Public Order Act 1994 61

Jurisdiction:

England and Wales

Crime, Human Rights, Land

Updated: 05 June 2022; Ref: scu.167345

Interbrew SA v Financial Times Ltd and Others: ChD 19 Dec 2001

The claimant was involved in takeover proceedings. Certain confidential documents were taken, doctored, and released to and published by the defendants who now resisted orders for disclosure of the source.
Held: The court must balance the right of freedom of expression, and the private rights of the claimants. The court should start from an assumption that it would be wrong to order disclosure of the source of a press story, The claimants could succeed only if the disclosure was so important as to override the public interest in protecting journalistic sources in order to ensure free communication of information to and through the press. The damage caused was serious, a criminal offence had been involved, and the claimant had a legitimate need to prevent further such disclosures. The source was to be revealed.

Judges:

Justice Lightman

Citations:

Times 04-Jan-2002, Gazette 27-Feb-2002, [2001] EWHC Ch 471, [2001] EWHC 480 (Ch), [2002] 1 Lloyds Rep 542

Links:

Bailii, Bailii

Statutes:

Contempt of Court Act 1981 10, European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

Appeal from – Financial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .
At first Instance – Financial Times Ltd and Others v The United Kingdom ECHR 15-Dec-2009
The claimants said that an order that they deliver up documents leaked to them regarding a possible takeover violated their right to freedom of expression. They complained that such disclosure might lead to the identification of journalistic . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 05 June 2022; Ref: scu.167322

Fleurose v The Securities and Futures Authority Ltd, The Disciplinary Appeal Tribunal of the Securities & Futures Authority Ltd: CA 21 Dec 2001

The applicant sought to challenge a decision suspending him from authorisation to act as a financial adviser. He was alleged to have sought to affect the Index of share values in order that his company should not be liable under certain options. He said the decision was in effect a criminal decision.
Held: It was not a criminal charge. Applying the principles set out in Human Rights case law, the proceedings were not sufficiently serious to take the case to that point. Nevertheless some aspects of the right to a fair trial might apply under article 6. The appellant knew the basis of the allegation against him, and decisions made by him as to the conduct of his defence made the question of free legal representation irrelevant. Because the charge was not criminal evidence obtained under compulsion was admissible.
Schiemann LJ said: ‘It is common ground between the parties, and we are content to accept, that the Disciplinary Tribunal was involved in the determination of M Fleurose’s civil rights for the purposes of Article 6. Therefore clearly the proceedings had to be fair. We accept for present purposes, as did the judge, that it was for the SFA to prove their case, that the SFA had to inform M Fleurose in good time of the nature of the charges, that he must have adequate time and facilities to prepare his defence, a proper opportunity to give and call evidence and question those witnesses called against him. What fairness requires will vary from case to case and manifestly the gravity and complexity of the charges and of the defence will impact on what fairness requires. In this context we have born in mind, as did the judge, the points made by the Human Rights Court in Paragraphs 30 and 39 of Albert and Le Compte v Belgium, and in paragraphs 32 and 33 of Dombo Beheer BV v The Netherlands [1993] 18 EHRR 213.’

Judges:

Lord Justice Schiemann, Lord Justice Clarke, And, Mr. Justice Wall

Citations:

Times 15-Dec-2001, [2001] EWHC Admin 1085, [2001] EWCA Civ 2015, [2002] IRLR 297

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights Art 6

Jurisdiction:

England and Wales

Citing:

Cited – Official Receiver v Stern and Another CA 20-Nov-2001
The director appealed against a 12 year disqualification. The basis of the disqualification was unlawful trading to the detriment of creditors, and taking excess drawings. . .
Appeal from – Regina v Securities and Futures Authority Limited Disciplinary Appeal Tribunal of Securities and Futures Authority Limited ex parte Bertrand Fleurose Admn 26-Apr-2001
Those elements of Human Rights law which related to criminal charges could not be applied to disciplinary proceedings of the Securities and Futures Authority. Such proceedings are in their nature civil proceedings. Although a financial penalty was . .

Cited by:

Cited – G, Regina (on The Application of) v X School and Others CA 20-Jan-2010
The claimant was a teaching assistant. A complaint had been made that he had kissed a boy having work experience at the school, but it had been decided that no criminal prosecution would follow. He sought judicial review of the school’s decision to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Administrative

Updated: 05 June 2022; Ref: scu.167307

Regina (on the Application of Bruno Quintavalle on Behalf of Pro-Life Alliance) v Secretary of State for Health: Admn 15 Nov 2001

Where procedures produced a clone of a human cell or embryo, that was not an embryo within and subject to regulation under the Act, since there had been no process of fertilisation, which is a pre-requisite under the Act. A cloned cell could not be a ’embryo where fertilisation is complete.’

Judges:

Mr Justice Crane

Citations:

Times 05-Dec-2001, [2001] EWHC Admin 918, [2001] 4 All ER 1013

Links:

Bailii

Statutes:

Human Fertilisation and Embryology Act 1990 1(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina (Quintavalle) v Secretary of State for Health CA 18-Jan-2002
A cloned cell, a cell produced by cell nuclear replacement came within the definition of embryo under the Act. The Act required that fertilisation was complete.
Held: The act could be applied in a purposive way. The legislative policy was that . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 05 June 2022; Ref: scu.167264

Pine v Law Society: CA 25 Oct 2001

The applicant said the procedure under which he was struck from the roll of solicitors was unfair. There was no provision for legal advice or representation, and given the nature and severity of the allegations and consequences, the trial was unfair.
Held: The Convention was to be applied to the particular facts. In this case, the applicant was experienced and was capable of representing himself, and had ample opportunity to present his case. No breach of his rights had taken place.

Judges:

Sir Andrew Morritt V-C, Buxton, Arden LJJ

Citations:

Gazette 04-Jan-2001, [2001] EWCA Civ 1574, [2002] 2 All ER 658, [2002] UKHRR 81

Links:

Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

England and Wales

Cited by:

Cited – Regina on the Application of Thompson v The Law Society CA 20-Feb-2004
The claimant complained at the disciplinary procedures of the Law Society.
Held: A failure to hold a disciplinary hearing in public was not an infringement of the claimant’s human rights. The two questions of whether there had been a . .
Cited – Gadd v Solicitors Regulation Authority CA 6-Jun-2013
Renewed application for permission to appeal against grant of summary judgment n favour of the defendant. He had sought to have set aside the respondent’s intervention in his solicitor’s practise. He said that he shuld have had legal assistance in . .
See Also – Pine v Law Society CA 20-Feb-2002
The applicant was a solicitor. The Respondent intervened in his practice, and a solicitor agent took it over. The agent submitted its accounts for payment by the Society and the applicant, who then sought to challenge the accounts under the Act. The . .
See also – Pine v Law Society CA 20-Feb-2002
The solicitor had succeeded in his challenge to the respondent’s disciplinary procedures, and the Society now accepted its liability to pay his costs, but asserted that there must be a set-off for that sum against sums it said were otherwise due to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 05 June 2022; Ref: scu.167324

CG v The United Kingdom: ECHR 19 Dec 2001

The applicant complained that her criminal trial had been conducted unfairly, insofar as the judge had interfered so heavily as to make it difficult for her to present her case. The English Court of Appeal had criticised the judge, but concluded that the result remained fair.
Held: Though the trial was subject to criticism, she had not been prevented from putting her case fully, and no breach of article 6.1 was found. Her complaint under article 13 need not be considered since the standards applied would be less demanding than those under article 6. ‘The central question raised is whether the nature and frequency of the trial judge’s interventions, combined with the deficiencies found by the Court of Appeal in his summing-up, were such as to render the proceedings against the applicant unfair. The Court recalls that, in determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appellate court (see, for example, the above-mentioned Edwards judgment, ss 34).’

Judges:

J-P Costa, P and Judges W. Fuhrmann, L. Loucaides, F. Tulkens, K. Jungwiert, Sir Nicolas Bratza and K. Traja.
Section Registrar S. Dolle

Citations:

Times 04-Jan-2002, 43373/98, [2002] 34 EHRR 31, [2001] ECHR 861, [2001] ECHR 870

Links:

Bailii

Statutes:

European Convention on Human Rights Art 6.1 and 13

Jurisdiction:

Human Rights

Cited by:

Followed – Cairnstores Ltd Generics (UK) Ltd and Another v Aktiebolaget Hassle CA 22-Oct-2002
Two patents had been invaildated for obviousness. They related to coatings on medicinal pills. The patent holder said the judge’s interruptions indicated bias.
Held: The sumissions were unjustified. The interventions were by no means . .
Cited – Michel v The Queen (The Court of Appeal of Jersey) PC 4-Nov-2009
michel_rPC2009
(Jersey) The defendant appealed, complaining that the number and character of the judge’s interventions in his trial for money laundering had made it unfair.
Held: The conviction was quashed and the case remitted for a decision as to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 05 June 2022; Ref: scu.167304

Regina v Pearce: CACD 11 Dec 2001

The defendant appealed against his conviction for murder. He said that the court had not allowed his alcoholism as a characteristic for the purposes of testing the defence of provocation, and that the evidence of his long standing partner should be treated as equivalent to that of a wife, making her evidence admissible but not compellable.
Held: As to the admission of evidence, that this was within the area of discretion allowed to convention states, and was a proper balance between the need for respect for family life, and the wider needs of the community. As to the alcohol abuse, there was no evidence of it having reached such a stage as to affect his control over how much he drank. The conviction stood.

Judges:

Lord Justice Kennedy, Mr Justice Hughes, And, Mr Justice Penry-Davey

Citations:

Times 21-Jan-2002, Gazette 21-Feb-2002, [2001] EWCA Crim 2834, [2002] 1 Cr App R 39, [2002] 1 WLR 1553

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 80(1), Homicide Act 1957 3

Citing:

Cited – X, Y and Z v The United Kingdom ECHR 22-Apr-1997
The court refused to find that the failure of United Kingdom law to recognise a female to male trans-sexual as the father of a donor insemination child, born to his partner and brought up as their child, was a breach of their rights to respect for . .
Cited – Regina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .

Cited by:

Cited – Bala and Others, Regina v CACD 10-May-2016
The court was asked whether parties to a polygamous marriage recognised in Nigeria could be exempt thereby from a charge as co-conspirators because of s2 of the 1977 Act. The judge had held the marriage invalid after finding that the defendant was . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence, Human Rights

Updated: 05 June 2022; Ref: scu.167064

In re B (a Minor) (Adoption: Natural parent): HL 17 Dec 2001

The parents of a child were not married. The mother stated and had maintained her disinterest in the child from birth, and the father had been caring for the child. The local authority looked to find a fostering place with a view to adoption. The father sought to adopt the child by himself, since this was the only way of making sure that his relationship with the child would not later be disturbed if the mother changed her mind. The Act required an adoption order in favour of one natural parent to the exclusion of the other only to be made for some proper reason.
Held: The Court of Appeal should only interfere with a first instance judgment as to the facts where such a judgement was plainly wrong. There was no indication of the judge having misdirected herself. Since the Act required the court to balance the competing interests, it already took account of the Article 8 rights of the mother and child. The order in favour of the father should stand.

Judges:

Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord Hoffmann, Lord Millett and Lord Rodger of Earlsferry

Citations:

Times 18-Dec-2001, [2001] UKHL 70

Links:

House of Lords, Bailii

Statutes:

Adoption Act 1976 15

Jurisdiction:

England and Wales

Citing:

Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Lists of cited by and citing cases may be incomplete.

Adoption, Human Rights

Updated: 05 June 2022; Ref: scu.167065

K K C v The Netherlands: ECHR 21 Dec 2001

Hudoc Judgment (Struck out of the list) Struck out of the list (friendly settlement)
The applicant, a Chechen complained that his proposed expulsion to Russia from the Netherlands would put his life at risk. Whilst in the Netherlands had had been convicted on several occasions of minor criminal offences. The claim was deemed admissible, and settled upon his being granted a residency permit without restrictions.

Judges:

Mrs E Palm, President, Mrs W Thomassen, Mr GaukurJorundsson, Mr R. Turmen, Mr C. Birsan, Mr J. Casadevall, Mr B. Zupancic

Citations:

58964/00, [2001] ECHR 878, [2001] ECHR 887

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 05 June 2022; Ref: scu.167074

London Borough of Newham v Adan: CA 14 Dec 2001

The applicant was a Dutch national. She appealed for housing as a homeless person. The local authority, after review found her not to have a settled intention to stay in England. She appealed, to the County Court, and succeeded, and the Authority now appealed.
Held: The County Court in reviewing such decisions under the section, was exercising a jurisdiction similar to that of the High Court on a judicial review, and therefore was bound by the factual findings of the reviewing officer. The county court has no power to direct a local housing authority how to carry out a review. If there was any question of unfairness in the procedure in denying her a fair trial, then that was for parliament to remedy. The reviewing officer’s decision was re-instated.

Judges:

Lord Justice Brooke, Lady Justice Hale, Mr Justice David Steel

Citations:

Gazette 27-Feb-2002, [2001] EWCA Civ 1916, [2002] 1 WLR 2120, [2001] NPC 185, [2002] UKHRR 229, [2002] HLR 28, [2002] HRLR 17, [2002] 1 All ER 931, 2002 Hous LR 11

Links:

Bailii

Statutes:

Housing Act 1996 204(1)

Jurisdiction:

England and Wales

Cited by:

Distinguished – London Borough of Tower Hamlets v Runa Begum CA 6-Mar-2002
The applicant had applied for rehousing as a homeless person. She was offered interim accommodation but refused it. Her case was reviewed, and her reasons rejected. She claimed the procedure was unfair, in that the authority was looking at decisions . .
Cited – Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
Cited – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 05 June 2022; Ref: scu.167059

Goode v Martin: CA 13 Dec 2001

The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served a statement of claim based upon the defendant’s statement. The defendants defence asserted a different version of the events.
Held: The Human Rights Act and the CPR gave the courts power to ensure that parties were given a fair trial. Rule 17.4(2) had been interpreted narrowly so as to disallow amendments arising from facts put in issue by the defendant. Section 3 HRA however now gave the courts power which would allow justice to be provided. The rule was not based on any sound reason of public policy. The court should interpret rule 17.4(2) to let the court allow the amendment if the same facts: ‘The court may allow an amendment whose effect will be to add . . a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.’

Judges:

Lord Justice Brooke, Lord Justice Latham, And, Lord Justice Kay

Citations:

Times 24-Jan-2002, [2001] EWCA Civ 1899, [2001] 3 All ER 562, [2002] 1 WLR 1828

Links:

Bailii

Statutes:

European Convention on Human Rights Art 6, Human Rights Act 1998 3(1), Civil Procedure Rules 1.2(b) 17.4(2)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .

Cited by:

Cited – Savings and Investment Bank Ltd (in Liquidation) v Fincken CA 6-Nov-2001
When the court was asked to decide whether a proposed form of amendment to the pleadings would add an issue which was out of time, the court must look to the pleadings before and after the proposed amendment, and the factual issues which would have . .
Cited – Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
Cited – Estate Acquisition and Development Ltd v Wiltshire and Another CA 4-May-2006
The defendants appealed a decision that they had no sufficient reason for not attending court on the day of the trial.
Held: The fact that the defendants had a continuing commercial relationship with the claimants was not enough to justify an . .
Cited – Rhone-Poulenc Rorer International Holdings Inc and Another v Yeda Research and Development Co Ltd ChD 16-Feb-2006
The patent application had been presented to the European Patent Office and granted only after 13 years. The claimant now appealed refusal to allow amendment of its claim to allow a claim in its sole name. The defendant argued that it was out of . .
Cited – Charles Church Developments Ltd v Stent Foundations Ltd and Another TCC 5-Dec-2006
The land owner sought damages for negligence against its builder and a sub-contractor. Having left the issue too late to complete the pre-action protocol, it issued proceedings, but then had to seek to amend the pleadings to add a further claim out . .
Cited – Berezovsky v Abramovich ComC 22-May-2008
Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed . .
Cited – S v Suren and Another QBD 10-Sep-2004
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Personal Injury, Civil Procedure Rules

Updated: 05 June 2022; Ref: scu.167061

Regina (Kashamu) v Governor of Brixton Prison and Another; Regina (Kashamu) v Bow Street Magistrates’ Court; Regina (Makhlulif and Another) v Bow Street Magistrates’ Court: QBD 23 Nov 2001

Where a magistrates’ court heard an application for extradition, it was within its proper ambit to assess the lawfulness of the detention of the suspect in the light of the Human Rights Convention, but not to stray onto issues which were only for the eventual court of trial to hear. Article 5 expressly required the lawfulness of a person’s detention to be determined speedily by a court. The Magistrates’ Court was the obvious and proper forum for this question. Existing case law which said that it was not for the Magistrates to decide whether the procedure as a whole was an abuse did not restrict this Human Rights power.

Judges:

Lord Justice Rose and Mr Justice Pitchford

Citations:

Times 12-Dec-2001, Gazette 01-Feb-2002, [2001] EWHC 980 (Admin), [2001] EWHC Admin 980, [2002] QB 887

Links:

Bailii

Statutes:

Extradition Act 1989 11(3) Sch1 Para 6(1), European Convention on Human Rights 5

Jurisdiction:

England and Wales

Citing:

Cited – Atkinson v Government of the United States HL 1969
The House heard an appeal from the magistrates’ refusal to commit the accused in the course of extradition proceedings.
Held: There is no abuse of process jurisdiction in extradition proceedings. There is no power to state a case in relation . .
Cited – Regina v Governor of Pentonville Prison, Ex parte Sinclair; Sinclair v Director of Public Prosecutions HL 1991
The applicant had left the USA after conviction, but before his prison term commenced, and a warrant issued. Nine years later he was arrested in the UK, and extradition sought. He said that the extradition was time-barred under the Order. The . .
Cited – In Re Schmidt HL 1-Jul-1994
The appellant sought to persuade the House that in extradition proceedings the courts enjoyed a similar jurisdiction to that exercised in Bennett.
Held: The appeal failed. The High Court has no inherent power to intervene in extradition . .
Cited – Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .

Cited by:

Cited – Raissi, Regina (on the Application of) v Secretary of State for the Home Department CA 14-Feb-2008
The claimant appealed against refusal of his request for judicial review of the defendant’s decision not to award him damages after his wrongful arrest and detention after he was wrongly suspected of involvement in terrorism. He had been discharged . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Lists of cited by and citing cases may be incomplete.

Extradition, Human Rights, Magistrates

Updated: 05 June 2022; Ref: scu.167014

Northern Ireland Devolution Issues, A Reference By The Attorney General (Northern Ireland): SC 5 Feb 2020

Devolution issue arises as to Act of NI Minister

The basis for the Attorney’s reference is his assertion that the universal credit provisions in question breach articles 8, 12 and 14 of the ECHR and article 1 of the first protocol to the ECHR and are therefore invalid per section 24 of the 1998 Act.
Held: The Supreme Court unanimously refused to accept the Attorney General’s application to refer this issue to the court under paragraph 34 of Schedule 10 to the 1998 Act. For a devolution issue to arise, it must be shown that an act or function has been carried out by a Northern Ireland minister or department, and that the act in question is invalid by reason of s. 24.

Judges:

Lady Hale, Lord Reed, Lord Kerr

Citations:

[2020] UKSC 2

Links:

Bailii, Summary

Statutes:

Northern Ireland Act 1998, Welfare Reform (Northern Ireland) Order 2015, European Cnvention on Human Rights 8 12 14, Northern Ireland (Welfare Reform) Act 2015

Jurisdiction:

Northern Ireland

Citing:

Cited – Northern Ireland of devolution issues, Reference by the Attorney General for (Northern Ireland) SC 14-Jan-2019
Five questions referred by the Attorney General for Northern Ireland.
Held: The matter was adjourned: ‘it is desirable that legal questions be determined against the background of a clear factual matrix, rather than as theoretical or academic . .
Cited – SC and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions and Others CA 16-Apr-2019
Challenge to two child limit for child tax credit. . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Benefits, Human Rights

Updated: 05 June 2022; Ref: scu.647068

Gerasimov And Others v Russia: ECHR 1 Jul 2014

Article 37
Special circumstances requiring further examination
Unilateral declarations in individual cases not addressing systemic problem: request to strike out rejected
Article 46
Pilot judgment
General measures
Respondent State required to provide effective domestic remedies in cases of non-enforcement or delayed enforcement of judgments imposing obligations in kind
Facts – The applicants are all Russian nationals living in various regions of the Russian Federation. They obtained binding judicial decisions ordering the State authorities to provide them with housing or various services in kind, but the enforcement of those judgments was considerably delayed. Some of the judgments remain unenforced. In the proceedings before the European Court, in all but two cases the Government submitted unilateral declarations acknowledging the lengthy enforcement of the judgments in the applicants’ favour and offering them monetary compensation.
Law – Article 37: The unilateral declarations submitted by the Government had ignored a key aspect of the case – the right to an effective domestic remedy – which had been explicitly raised by the Court in respect of all the applications when they were communicated to the Government.
The Court had also raised a question of principle as to the existence of a systemic problem arising both from delayed enforcement of domestic judgments imposing obligations in kind on the State authorities and the lack of domestic remedies in respect of such delays and a pilot judgment procedure had accordingly been set in motion. The Government’s declarations did not contain any undertaking to address this crucial issue under the Convention, although it still affected a very large group of people in Russia, including the applicants. While the material before the Court revealed certain initiatives seeking to rectify the situation, they did not in any way engage the Government vis-a-vis either the Court or the applicants. The acceptance of the Government’s request to strike the present ‘pilot’ applications out of the Court’s list would leave the current situation unchanged without any guarantee that a genuine solution would be found in the near future.
Conclusion: requests to strike out rejected (unanimously).
Article 13: The Court had already concluded in previous judgments that there was no effective domestic remedy in Russian law, either preventive or compensatory, allowing for adequate and sufficient redress in the event of prolonged non-enforcement of judicial decisions against the State authorities. That had also been the rationale behind two legislative proposals which had been tabled before and after the Burdov pilot judgment with a view to setting up a special judicial compensatory mechanism to ensure adequate redress for such repetitive violations at the domestic level.
The Government had opted for radically restricting the scope of the Compensation Act to judgments awarding monetary payments against the State. As a result, the effective domestic remedy set up by the Compensation Act was not available to the applicants in the present cases. The Court found no tangible element in the Government’s submissions to overrule the widely shared view that those remedies were ineffective in the applicants’ cases. The Government had not pointed to any major development in the domestic case-law demonstrating the contrary. The Court found it beyond any dispute that the Compensation Act was not applicable to the present applications, all of which concerned judgments ordering the authorities to provide housing or comply with other obligations in kind. The applicants had thus had no effective remedy available at the domestic level in respect of their arguable complaints.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been violations of Article 6 on account of the delays in enforcement of the binding judgments in the applicants’ favour and of Article 1 of Protocol No. 1 of the Convention in respect of six of the applicants on account of an unjustified interference with their right to peaceful enjoyment of their possessions.
Article 46
(a) General measures – The Court’s findings in respect of domestic remedies revealed essentially a legal problem that lent itself to resolution through an amendment of the domestic legislation. The Court considered that its findings imposed on the respondent State a legal obligation to set up, within one year of the date on which the judgment became final, an effective domestic remedy or combination of such remedies accessible to all persons in the applicants’ position.
(b) Redress to be granted in similar cases – Proceedings on all new applications lodged after the delivery of the present judgment and concerning the non-enforcement or delayed enforcement of domestic judgments imposing obligations in kind on the State authorities would be adjourned for a maximum period of two years.
As regards applications lodged before delivery of the present judgment, the respondent State was required to grant redress within two years provided the applications had been or would be communicated to the Government. In the Court’s view, such redress could be achieved through implementation proprio motu by the authorities of an effective domestic remedy or through ad hoc solutions such as friendly settlements or unilateral remedial offers in line with the Convention requirements. These cases were adjourned in the meantime.
Article 41: Awards ranging from EUR 900 to EUR 9,000 in respect of non-pecuniary damage.
(See Burdov v. Russia (no. 2), 33509/04, 15 January 2009, Information Note 115)

Citations:

29920/05 – Legal Summary, [2014] ECHR 871

Links:

Bailii

Statutes:

European Convention on Human Rights 37 46

Jurisdiction:

Human Rights

Cited by:

Legal Summary – Gerasimov And Others v Russia ECHR 1-Jul-2014
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 05 June 2022; Ref: scu.535693

Regina v Secretary of State for the Home Department ex parte R: QBD 29 Nov 2000

An applicant for asylum had had his case rejected and was separated from his family whose similar application had not yet been finally determined, but he remained in close contact with them. He was imprisoned, and on his release ordered to be deported to Argentina. He complained, successfully that the effect would be to destroy any chance of family life. It was held that the effect of deporting him without waiting for the result of his wife’s application was disproportionate in the effect it would have on his family life. No order was made on an undertaking from the Home Secretary to await that decision.

Citations:

Times 29-Nov-2000

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 05 June 2022; Ref: scu.88643

Regina v Secretary of State for the Environment, Transport and the Regions, Ex parte Challenger: QBD 11 Jul 2000

An order was due to come into effect, and there was to be a public enquiry. The applicants sought review of the decision not to provide legal assistance for local objectors, on the grounds that it would prejudice their rights under the Human Rights Act, alleging breach of their rights to a fair trial by inequality of arms.. The court held that it would not be correct to allow a judicial review to give current effect to an Act which itself had not yet come into effect.

Citations:

Times 11-Jul-2000

Jurisdiction:

England and Wales

Judicial Review, Human Rights

Updated: 05 June 2022; Ref: scu.88623

Regina v Secretary of State for the Home Department ex parte Anderson Same v Same, ex parte Taylor: QBD 27 Feb 2001

When the Home Secretary set a tariff sentence for a mandatory life sentence prisoner, in order to satisfy the requirement for retribution and deterrence, that exercise was not a judicial sentencing exercise to which the provisions of the Human Rights legislation applied. The issues he considered were wider than those involved in the strict sentencing process.

Citations:

Times 27-Feb-2001, Gazette 20-Apr-2001

Statutes:

European Convention on Human Rights Art 6.1

Jurisdiction:

England and Wales

Citing:

Appeal to – Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .

Cited by:

Appeal from – Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 05 June 2022; Ref: scu.88632

Regina v Secretary of State for the Home Department ex parte Javed, Regina v Secretary of State for the Home Department ex parte Zulfiqar Ali; Regina v Same ex parte Abid Ali: QBD 9 Feb 2001

The Home Secretary had designated Pakistan as a safe country for the return of asylum applicants. The applicants sought to review this decision. The Secretary submitted that the court was not competent to challenge his assessment since it had been approved by Parliament, unless it could be shown that he had acted in bad faith.
Held: The Human Rights Act now places the Courts under a positive duty to give effect to the Convention, and one requirement in particular was a prohibition of torture and in human and degrading treatment. An effective remedy has to be provided to avoid breaches of this right. The court having given detailed consideration to the relevant material, it was clear that the decision to include Pakistan in the list of designated countries could only have been reached on an erroneous view of the facts, of the law or of both. The decision was plainly wrong. The schedule was provided in order to enable unsuccessful claims to be summarily and expeditiously disposed of where there was no risk to the life of person of the asylum seekers. There was in the clearest evidence that the applicants had been tortured in the past and he returned to Pakistan would be likely again to be the subject of torture. Other applicants would be subject to persecution. The declaration was granted.

Citations:

Times 09-Feb-2001

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 05 June 2022; Ref: scu.88638

Secretary of State for the Home Department v JJ and others: HL 31 Oct 2007

The Home Secretary appealed against a finding that a non-derogating control order was unlawful in that, in restricting the subject to an 18 hour curfew and otherwise severely limiting his social contacts, the order amounted to such a deprivation of liberty as to be unlawful.
Held: The appeal failed. When looking at the lawfulness of an order, the court was to look at the effect of the order on the subject. The appellant had shown no error in law in the approach taken either by the court at first instance or on appeal. In practice the order imposed indefinite solitary confinement on the subject and exceeded his power to make them. It was not open to the court to quash individual elements of the order. Deprivation of liberty might take a variety of forms other than classic detention in prison or strict arrest.

Judges:

Bingham L, Hoffmann L (dissenting), Hale L, Carswell L (dissenting), Brown L

Citations:

[2007] UKHL 45, Times 05-Nov-2007, [2007] 3 WLR 642, [2008] 1 All ER 613, [2008] 1 AC 385, [2008] HRLR 5, [2008] UKHRR 80, [2008] Crim LR 489

Links:

Bailii, HL

Statutes:

European Convention on Human Rights 5, Prevention of Terrorism Act 2005

Jurisdiction:

England and Wales

Citing:

At First Instance – Secretary of State for the Home Department v JJ and others Admn 28-Jun-2006
The claimants challenged the terms of restrictions placed upon them under the Act. . .
Appeal from – Secretary of State for the Home Department v JJ and others CA 1-Aug-2006
The applicants had challenged non-derogating control orders restricting his liberty on the basis that he was suspected of terrorist intentions. The Home Secretary appealed an order finding the restrictions to be unlawful.
Held: The Home . .

Cited by:

Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – Secretary of State for the Home Department v E and Another HL 31-Oct-2007
The applicant, who was subject to a control order, complained that the respondent had failed as required to keep under review the possibility of a prosecution, and had renewed the order without satisfying that requirement.
Held: The appeal . .
Cited – Secretary of State for the Home Department v AH Admn 9-May-2008
The claimant, an Iraqi national, had been about to be deported when he was re-arrested for Terrorism offences for which he was acquitted. He was then made subject to a non-derogating control order. He now challenged the renewal of that order, even . .
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Secretary of State for the Home Deparment v AN Admn 31-Jul-2009
The court re-considered a control order made on the basis of material withheld from the defendant. The Secretary of State had now withdrawn his reliance on that material, rather than make further disclosures. The prosecution invited the court to . .
Cited – Secretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
Cited – Dolan and Others, Regina (on The Application of) v Secretary of State for Health and Social Care and Another CA 1-Dec-2020
Lockdown Measures not Ultra Vires the 1984 Act
The appellants, a businessman, and mother, appealed from refusal of leave to challenge regulations made in response to the Covid-19 pandemic on 26 March 2020 and since which introduced what was commonly known as a ‘lockdown’ in England. They . .
Cited – Dolan and Others v Secretary of State for Health and Social Care and Another Admn 6-Jul-2020
Challenge to closures of schools and other provisions taken under the Regulations.
Held: The Secretary of State had the legal power to make the Regulations. In making and maintaining the Regulations, he had not fettered his discretion. He had . .
Cited – Jalloh, Regina (on the application of) v Secretary of State for the Home Department SC 12-Feb-2020
Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Leading Case

Updated: 05 June 2022; Ref: scu.260313

Austin and Another v Commissioner of Police of the Metropolis: CA 15 Oct 2007

The claimants appealed dismissal of their claims for false imprisonment and unlawful detention by the respondent in his policing of a demonstration. They had been held within a police cordon in the streets for several hours to prevent the spread of violence. One claimant had been simply there on business.
Held: The appeal failed. In exceptional circumstances it was lawful for the police to act in this way to prevent an imminent breach of the peace.
Sir Anthony Clarke MR summarised the effect of the speeches in Laporte on the issue of third parties’ rights: ‘As we read the speeches of Lord Rodger and Lord Brown they give some support for the following propositions:
i) where a breach of the peace is taking place, or is reasonably thought to be imminent, before the police can take any steps which interfere with or curtail in any way the lawful exercise of rights by innocent third parties they must ensure that they have taken all other possible steps to ensure that the breach, or imminent breach, is obviated and that the rights of innocent third parties are protected;
ii) the taking of all other possible steps includes (where practicable), but is not limited to, ensuring that proper and advance preparations have been made to deal with such a breach, since failure to take such steps will render interference with the rights of innocent third parties unjustified or unjustifiable; but
iii) where (and only where) there is a reasonable belief that there are no other means whatsoever whereby a breach or imminent breach of the peace can be obviated, the lawful exercise by third parties of their rights may be curtailed by the police;
iv) this is a test of necessity which it is to be expected can only be justified in truly extreme and exceptional circumstances; and
v) the action taken must be both reasonably necessary and proportionate.’

Judges:

Sir Anthony Clarke MR

Citations:

[2007] EWCA Civ 989, Times 29-Oct-2007, [2008] QB 660, [2008] 1 All ER 564, [2008] HRLR 1, [2008] 2 WLR 415, [2008] UKHRR 205

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Appeal from – Austin and Another v The Commissioner of Police of the Metropolis QBD 23-Mar-2005
The claimants had variously been attending a demonstration in London, or passing through. The police detained them in a cordon for several hours. They sought damages. No unlawful acts were alleged against them.
Held: There was no deprivation . .
Cited – Ziliberberg v Moldova ECHR 1-Feb-2005
The court observed that: ‘the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society.’ it is possible to distinguish between interferences . .
Cited – Blum and others v Director of Public Prosecutions and others Admn 20-Dec-2006
. .
Cited – O’Kelly v Harvey 1882
(Court of Appeal in Ireland) The plaintiff, a nationalist Member of Parliament, sued the defendant for assault and battery. There had been a meeting which was to be held on 7 December 1880. On the day before, a placard appeared summoning local . .
Cited – Beatty v Gillbanks QBD 13-Jun-1882
The appellants assembled with others for a lawful purpose, and with no intention of carrying it out unlawfully, but with the knowledge that their assembly would be opposed, and with good reason to suppose that a breach of the peace would be . .
Cited – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .

Cited by:

Appeal from – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Castle and Others v Commissioner of Police for The Metropolis Admn 8-Sep-2011
The claimants, all under 17 years old, took a peaceful part in a substantial but disorderly demonstration in London. The police decided to contain the section of crowd which included the claimants. The claimants said that the containment of children . .
Cited – Jalloh, Regina (on the application of) v Secretary of State for the Home Department SC 12-Feb-2020
Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights, Torts – Other

Updated: 05 June 2022; Ref: scu.259838

Jalloh, Regina (on the application of) v Secretary of State for the Home Department: SC 12 Feb 2020

Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of Appeal in Austin and in Walker were right to say that there could be imprisonment at common law without there being a deprivation of liberty under article 5.

Judges:

Lady Hale, Lord Kerr, Lord Carnwath, Lord Briggs, Lord Sales

Citations:

[2020] 2 WLR 41, [2020] HRLR 8, [2021] AC 262, [2020] WLR(D) 85, [2020] 3 All ER 449, [2020] 1 Cr App R 31, UKSC 2018/0137

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2019 Nov 12 am Video, SC 2019 Nov 12 pm Video

Statutes:

European Convention on Human Rights, Immigration Act 1971

Jurisdiction:

England and Wales

Citing:

At Admin (1) – Jollah, Regina (on The Application of) v Secretary of State for The Home Department Admn 24-Feb-2017
Judicial review of refusal to lift curfew conditions . .
At Admin (2) – Jollah, Regina (on The Application of) v Secretary of State for The Home Department (No 2) Admn 9-Nov-2017
Claim for damages for false imprisonment arising out of the imposition of what has been referred to as a curfew, namely a requirement that the claimant be present for a certain number of hours each day at specified premises after release from . .
Appeal from – Jollah, Regina (on The Application of) v The Secretary of State for The Home Department CA 12-Jun-2018
. .
Cited – Gedi, Regina (on The Application of) v Secretary of State for The Home Department Admn 9-Oct-2015
Application for Judicial Review challenging the lawfulness of bail conditions (a curfew monitored by electronic tagging) imposed by the defendant during deportation proceedings under section 32(5) of the 2007 Act. . .
Cited – Gedi, Regina (on The Application of) v Secretary of State for Home Department CA 17-May-2016
The court considered the power of the Secretary of State for the Home Department and her immigration officials to impose conditions of curfew and electronic monitoring on those who have been released from immigration detention pending the conclusion . .
Cited – Berry v Adamson, Gent 22-May-1827
. .
Cited – Grainger v Hill CEC 1838
Misuse of Power for ulterior object
D1 and D2 lent C 80 pounds repayable in 1837, secured by a mortgage on C’s vessel. C was to be free to continue to use the vessel in the interim but the law forbade its use if he were to cease to hold its register. In 1836 the Ds became concerned . .
Cited – Bird v Jones QBD 11-Jan-1845
A section of public road (Hammersmith Bridge) was closed off to provide a vantage point for a boat race. The plaintiff refused to be excluded, and complained that he had not been allowed to use the public highway, and had therefore been imprisoned. . .
Cited – Warner v Riddiford 12-Feb-1858
The claimant was imprisoned when he was refused permission by police officers, acting on behalf of his employers, to leave the room and go upstairs in his own house. . .
Cited – Syed Mahamad Yusuf-ud-Din v Secretary of State for India 1903
For the tort of false imprisonment to be committed, the deprivation of liberty must be actual, rather than potential: ‘Nothing short of actual detention and complete loss of freedom would support an action for false imprisonment.’ . .
Cited – Robertson v The Balmain New Ferry Company Ltd PC 10-Dec-1909
High Court of Australia – The Plaintiff paid a penny on entering the wharf to stay there till the boat should start and then be taken by the boat to the other side. The Defendants were admittedly always ready and willing to carry out their part of . .
Cited – Meering v Grahame-White Aviation Co Ltd CA 1919
An unconscious or drugged person may be detained. For the tort of false imprisonment there must be shown a complete restriction in fact on the plaintiff’s freedom to move: ‘any restraint within defined bounds which is a restraint in fact may be an . .
Cited – Wright v Wilson 1699
An action for false imprisonment will not lie against a man for fastening one of two doors in a room in which A. is, though A. cannot go through the other without trespassing.
A. has a chamber adjoining to the chamber of B. and has a door that . .
Cited – Arrowsmith v Le Mesurier 13-Jun-1806
If a magistrate’s warrant be shown by the constable who has the execution of it to the person charged with an offence, and he thereupon, without compulsion, attend the constable to the magistrate, and after examination be dismissed, it seems this is . .
Cited – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
Cited – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
Cited – HL v United Kingdom ECHR 10-Sep-2002
(Admissibility) Whether a detention amounts to a deprivation of liberty depends upon all the facts and circumstances of the particular case . .
Cited – Walker v The Commissioner of The Police of The Metropolis CA 1-Jul-2014
The minimal extent of a person’s detention by a police officer who was not exercising the power of arrest would not prevent his detention from being unlawful and amounting to false imprisonment. It was held to be false imprisonment for a police . .
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 . .
Cited – Regina v Rumble CACD 2003
The defendant had surrendered to his bail at a Magistrates Court. There was no usher and no security staff. Following imposition of a custodial sentence, the defendant escaped through the public entrance. It was submitted on an appeal that the . .
Cited – McFadzean and Others v Construction Forestry Mining and Energy Union and Others 13-Dec-2007
The Union set a picket round a camp set up by anti-logging protesters to prevent the protesters getting out. The protesters could have asked the police to escort them out, but that did not mean that they were not imprisoned until they did so. But . .
Cited – Secretary of State for the Home Department v JJ and others HL 31-Oct-2007
The Home Secretary appealed against a finding that a non-derogating control order was unlawful in that, in restricting the subject to an 18 hour curfew and otherwise severely limiting his social contacts, the order amounted to such a deprivation of . .
Cited – Austin and Another v Commissioner of Police of the Metropolis CA 15-Oct-2007
The claimants appealed dismissal of their claims for false imprisonment and unlawful detention by the respondent in his policing of a demonstration. They had been held within a police cordon in the streets for several hours to prevent the spread of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Torts – Other

Updated: 05 June 2022; Ref: scu.647454

Guzzardi v Italy: ECHR 6 Nov 1980

The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently with him, practise the Catholic religion or ensure his son’s education.
Held: Confinement on such a small island was a deprivation of liberty under the convention. ‘The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.’ and ‘In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of article 5, the starting point must be [the] concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.’ The procedure did not however involve the determination of a criminal charge against him within the meaning of article 6.

Citations:

(1980 Series A No 39), 7367/76, [1980] ECHR 5, (1980) 3 EHRR 333, (1981) 3 EHRR 333

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 5 6

Jurisdiction:

Human Rights

Cited by:

Cited – McDonald v Procurator Fiscal, Elgin HCJ 20-Mar-2003
The defendant had been granted bail subject to conditions including a requirement that he must not leave his house for more than two hours a day. He complained that this infringed his Article 5 right to liberty.
Held: The right to freedom was . .
Cited – 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 . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – 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 . .
Applied – Secretary of State for the Home Department v JJ and others CA 1-Aug-2006
The applicants had challenged non-derogating control orders restricting his liberty on the basis that he was suspected of terrorist intentions. The Home Secretary appealed an order finding the restrictions to be unlawful.
Held: The Home . .
Cited – Austin and Another v Commissioner of Police of the Metropolis CA 15-Oct-2007
The claimants appealed dismissal of their claims for false imprisonment and unlawful detention by the respondent in his policing of a demonstration. They had been held within a police cordon in the streets for several hours to prevent the spread of . .
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Secretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – Re DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She . .
Cited – Dolan and Others, Regina (on The Application of) v Secretary of State for Health and Social Care and Another CA 1-Dec-2020
Lockdown Measures not Ultra Vires the 1984 Act
The appellants, a businessman, and mother, appealed from refusal of leave to challenge regulations made in response to the Covid-19 pandemic on 26 March 2020 and since which introduced what was commonly known as a ‘lockdown’ in England. They . .
Cited – Dolan and Others v Secretary of State for Health and Social Care and Another Admn 6-Jul-2020
Challenge to closures of schools and other provisions taken under the Regulations.
Held: The Secretary of State had the legal power to make the Regulations. In making and maintaining the Regulations, he had not fettered his discretion. He had . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .
Cited – Jalloh, Regina (on the application of) v Secretary of State for the Home Department SC 12-Feb-2020
Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Crime

Updated: 05 June 2022; Ref: scu.164899

HL v United Kingdom: ECHR 10 Sep 2002

(Admissibility) Whether a detention amounts to a deprivation of liberty depends upon all the facts and circumstances of the particular case

Citations:

[2002] ECHR 850, 45508/99, [2004] 40 EHRR 761

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

At HL – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
At Admn – L v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .
At CA – Regina v Bournewood Community and Mental Health NHS Trust, Ex parte L CA 2-Dec-1997
The applicant was severely autistic, and unable to consent to medical treatment. He had been admitted voluntarly to a mental hospital and detained under common law powers. The Hospital trust appealed a finding that his detention had been unlawful. . .

Cited by:

See Also – HL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Roberts, Regina (on the application of) v Commissioner of Police of the Metropolis and another SC 17-Dec-2015
The Court considered the validity of suspicionless stop and search activities under s 60 of the 1994 Act, by police officers.
Held: The claimant’s appeal failed. The safeguards attending the use of the s 60 power, and in particular the . .
Admissibility – L v United Kingdom ECHR 5-Oct-2004
The claimant had suffered mental illness and threatened to hurt himself. He was taken into hospital as a voluntary patient, but in effect detained compulsorily. He lacked capacity to consent to medical treatment.
Held: The holding of a patient . .
Cited – Jalloh, Regina (on the application of) v Secretary of State for the Home Department SC 12-Feb-2020
Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 05 June 2022; Ref: scu.443295

Reid, Robertson v City of Wakefield Metropolitan Council, Secretary of State for the Home Department: Admn 16 Nov 2001

The claimant requested the defendant authority to remove his details from the electoral register before it was sold on to third parties. They refused. He claimed that the information had been obtained from him under penalty of criminal charges, and that to sell it on was an interference with his right to a private and family life.
Held: The sale of the material was in breach of the applicant’s rights. Data from the registers was collected under force of law. The sale of the register affected electors as marketing targets and the interference with their private lives, exacerbated by technological advances, was both foreseeable and foreseen. The right to vote was lost if the information was not provided.

Judges:

Mr Justice Maurice Kay

Citations:

Times 27-Nov-2001, Gazette 10-Jan-2002, [2001] EWHC Admin 915, [2002] QB 1052

Links:

Bailii

Statutes:

European Directive 95/46/EC of October 24, 1995 (OJ 1995 L281/31), Representation of the People Act 1983, Representation of the People Regulations 1986 (1986 No 1081)

Jurisdiction:

England and Wales

Cited by:

Cited – Robertson, Regina (on the Application of) v Experian Ltd and Another (2) Admn 21-Jul-2003
The claimant sought a judicial review of the regulations allowing sale of the electoral role by local government bodies to registered credit reference agencies. An adjournment was refused, and the case proceeded in his absence.
Held: The . .
Cited – I-CD Publishing Ltd v The Secretary of State, The Information Commissioner (Interested Party) Admn 21-Jul-2003
The claimant sought judicial review challenging the restrictions on the sale of electoral registers to registered credit reference agencies. Following Robertson (1) the new regulations created two registers, and the claimant sought to be able to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Information, Elections

Updated: 04 June 2022; Ref: scu.166813

Regina (Yogathas) v Secretary of State for the Home Department: CA 9 Sep 2001

When assessing the propriety of an order requiring an asylum seeker to be removed and returned to a third country, it was wrong to look at the processes which might be applied by that third country. The court should look at the outcome of the decision and the test laid down, namely whether that third country might itself deal with him otherwise than in accordance with the Convention.

Judges:

Lord Justice Chadwick, Lord Justice Laws and Sir Anthony Evans

Citations:

Times 15-Nov-2001, [2001] EWCA Civ 1611

Links:

Bailii

Statutes:

Asylum and Immigration Act 1996 2, Convention Relating to the Status of Refugees (1951) (Cmd 9171)

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina on the Application of Santia Yogathas v Secretary of State for Home Department Admn 25-May-2001
When asking whether it was correct to certify the removal of an asylum seeker to a third country, in the light of a country’s compliance with the Convention, the issue should be approached in an intensely practical fashion. The question was not . .

Cited by:

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

Immigration, Human Rights

Updated: 04 June 2022; Ref: scu.166839

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 partial award
The applicant was ordered to strip naked and was subjected to humiliating abuse by guards when he tried to exercise his right to vote in facilities provided in prison. His complaint of degrading treatment was upheld.

Citations:

(2001) 38 EHRR 148, 25196/94, [2001] ECHR 748, [2001] ECHR 757

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 3

Jurisdiction:

Human Rights

Cited by:

Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 04 June 2022; Ref: scu.166787

Nemec And Others v Slovakia: ECHR 15 Nov 2001

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

Citations:

48672/99, [2001] ECHR 758

Links:

Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 04 June 2022; Ref: scu.166786

Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same: CA 13 Nov 2001

The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences carrying mandatory and discretionary life sentences. The decision as to what measure of deterrence was required was not solely a matter suitable for decisions by the courts, but included elements to be considered which looked to wider issues. The exercise of such powers with respect to discretionary lifers had been ruled unlawful. The legislation, following that decision, explicitly excluded tariffs for mandatory lifers, and it was not for the courts to set aside such decisions. The present system might not survive challenge in the Court of Human Rights, but it must be their decision

Judges:

Lord Woolf, Lord Chief Justice, Lord Justice Simon Brown and Lord Justice Buxton

Citations:

Times 16-Nov-2001, Gazette 06-Dec-2001, [2001] EWCA Civ 1698

Links:

Bailii

Statutes:

Crime (Sentences) Act 1997 29

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
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 . .
Appeal to – Regina v Secretary of State for the Home Department Ex parte Anderson HL 25-Nov-2002
The appellant had been convicted of double murder. The judge imposed a mandatory life sentence with a minimum recommended term. The Home Secretary had later increased the minimum term under the 1997 Act. The appellant challenged that increase.
Appeal from – Regina v Secretary of State for the Home Department ex parte Anderson Same v Same, ex parte Taylor QBD 27-Feb-2001
When the Home Secretary set a tariff sentence for a mandatory life sentence prisoner, in order to satisfy the requirement for retribution and deterrence, that exercise was not a judicial sentencing exercise to which the provisions of the Human . .

Cited by:

Appeal from – Regina v Secretary of State for the Home Department Ex parte Anderson HL 25-Nov-2002
The appellant had been convicted of double murder. The judge imposed a mandatory life sentence with a minimum recommended term. The Home Secretary had later increased the minimum term under the 1997 Act. The appellant challenged that increase.
Appeal to – Regina v Secretary of State for the Home Department ex parte Anderson Same v Same, ex parte Taylor QBD 27-Feb-2001
When the Home Secretary set a tariff sentence for a mandatory life sentence prisoner, in order to satisfy the requirement for retribution and deterrence, that exercise was not a judicial sentencing exercise to which the provisions of the Human . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 04 June 2022; Ref: scu.166778

Cerin v Croatia: ECHR 15 Nov 2001

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

Citations:

54727/00, [2001] ECHR 756

Links:

Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 04 June 2022; Ref: scu.166785

Regina (Wilkinson) v Broadmoor Special Hospital and Others: CA 22 Oct 2001

A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to challenge by judicial review the imposition of treatment without his consent, it was open to the court to investigate the merits of the decision to impose treatment, and it was not restricted to testing the reasonableness of the decision. This would include the power of the court to require the attendance and examination of medical witnesses. Had the patient proceeded by way of a claim for damages for assault that power would have existed. If the patient’s human rights were to be respected, an investigation of the merits must be allowed.

Judges:

Lord Justice Simon Brown, Lord Justice Brooke and Lady Justice Hale

Citations:

Gazette 15-Nov-2001, [2001] EWCA Civ 1545, [2002] 1 WLR 419, Times 02-Nov-2001, (2002) Lloyd’s Rep Med 41, (2002) UKHRR 390, (2002) 65 BMLR 15

Links:

Bailii

Statutes:

Mental Health Act 1983 58(3)(b), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Cited by:

Applied – Regina (G) v Ealing London Borough Council and Others QBD 28-Feb-2002
Nothing in the new rules prevented the court from allowing cross examination of witnesses in judicial review cases, though the procedure does not lend itself to cases with a high degree of factual debate. The court has a wide discretion, and the . .
Cited – Wooder, Regina (on the Application of) v Feggetter and Dr Grah CA 25-Apr-2002
The patient challenged the treatment given to him against his will as a detained mental patient. He said the opinion of the second doctor as required under the Act, had not been put into writing.
Held: Following Wilkinson, which allowed a . .
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 – PS, Regina (on the Application of) v Responsible Medical Officer, Dr G and others Admn 10-Oct-2003
The claimant had been compulsorily detained under the Act. He complained that the detention and compulsory medication infringed his rights, and amongst other things breached his religious beliefs.
Held: This was an exceptional case requiring . .
Cited – B, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
Cited – MH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
Cited – B, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
Cited – T-Mobile (Uk) Ltd. and Another v Office of Communications CA 12-Dec-2008
The claimant telecoms companies objected to a proposed scheme for future licensing of available spectrum. The scheme anticipated a bias in favour of auctioniung such content. It was not agreed whether any challenge to the decision should be by way . .
Cited – Al-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Q, Regina (on The Application of) v Q Constabulary and Another Admn 17-Mar-2011
The claimant renewed his request for an order against the defendant that he should be given a place on a witness protection scheme. He had given evidence for the prosecution in a gangland murder trial. A risk assessment had identified a risk ‘real . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Administrative

Updated: 04 June 2022; Ref: scu.166719

Porter, Searle and Others, Berry and Harty v South Buckinghamshire District Council, Chichester District Council, Wrexham County Borough Council, Hertsmere Borough Councilt: CA 12 Oct 2001

Local authorities had obtained injunctions preventing the defendants from taking up occupation, where they had acquired land with a view to living on the plots in mobile homes, but where planning permission had been refused. The various defendants appealed on the basis that the authorities had failed to make proper allowance for their human rights.
Held: Some of the appeals succeeded, because the planning authority had to consider the defendants human rights before acting, and they had not done so. They had to be satisfied that the legitimate aim of protecting the environment outweighed the gypsies’ right to respect for private and family life.

Judges:

Lord Justice Simon Brown, Lord Justice Peter Gibson And Lord Justice Tuckey

Citations:

Gazette 29-Nov-2001, Times 09-Nov-2001, [2001] EWCA Civ 1549, [2002] 1 WLR 1359

Links:

Bailii

Statutes:

Human Rights Act 1998 6(1), Town and Country Planning Act 1990 187B

Jurisdiction:

England and Wales

Citing:

Cited – Westminster City Council v Great Portland Estates plc HL 31-Oct-1984
The House was asked whether the 1971 Act permitted the relevant authorities, by resort to their development plans, to support the retention of traditional industries or was the ambit of the Act such as to permit only ‘land use’ aims to be pursued? . .

Cited by:

Cited – Buckinghamshire County Council v North West Estates plc and others ChD 31-May-2002
The planning authority sought injunctions for enforcement notices. The landowner argued that human rights law required the court when looking at such a request to look at the entire planning history.
Held: Although the court could look to a . .
Cited – North West Estates Plc v Buckinghamshire County Council CA 22-May-2003
There had been many attempts to enforce and resist enforcement of a planning notice.
Held: The landowner was not entitled now to challenge the application for injunctive relief, where he had not appealed the validity of the enforcement notice. . .
Appeal from – Wrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
Cited – Davis and Others v Tonbridge and Malling Borough Council CA 26-Feb-2004
The claimants were travelling showmen who had purchased land, and after failing to apply for permission, moved onto the land and began to live there.
Held: The cultural identity of travelling show-people and their status, as a matter of . .
Lists of cited by and citing cases may be incomplete.

Planning, Human Rights, Housing

Updated: 04 June 2022; Ref: scu.166647

McLellan v Bracknell Forest Borough Council; Reigate Borough Council v Benfield and Another: CA 16 Oct 2001

The tenant was issued with a notice to quit for unpaid rent, within the first year, during an ‘introductory tenancy.’ She sought judicial review on the basis that the reduced security of tenure infringed her human rights.
Held: Review was refused. The probationary regime was intended to protect other tenants and the local authority from anti-social and non-paying tenants. Additional procedural safeguards had been provided and gave adequate protection to the tenant.
Waller LJ considered the duties of a council under the introductory tenancy scheme: ‘If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed, that at first sight seems to raise issues of fact. But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that the breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy.’

Judges:

Lord Justice Waller, Lord Justice Latham, And Lord Justice Kay

Citations:

Gazette 29-Nov-2001, Times 03-Dec-2001, [2001] EWCA Civ 1510, [2002] QB 1129, [2002] LGR 191

Links:

Bailii

Statutes:

European Convention on Human Rights 8.1

Jurisdiction:

England and Wales

Citing:

Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Cited by:

Cited – Langton, Allen, Regina (on the Application of) v Department for the Environment, Food and Rural Affairs and Another Admn 17-Dec-2001
The claimants were farmers, who had been made subject to orders under the Act. They had accumulated maggot waste on their land. The second defendant accepted that the waste included material which would be high risk under the Directive. The . .
Cited – The Secretary of State for Health, Dorset County Council v The Personal Representative of Christopher Beeson CA 18-Dec-2002
The deceased had been adjudged by his local authority to have deprived himself of his house under the Regulations. Complaint was made that the procedure did not allow an appeal and therefore deprived him of his rights under article 6.
Held: . .
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 – Doran v Liverpool City Council CA 3-Mar-2009
The claimant sought to set aside an order requiring him to give up possession of a caravan pitch held under the 1968 Act.
Held: The decision to serve a notice to quit which was reasonable on the facts known to the local authority at the time . .
Cited – Orchard v Lee CA 3-Apr-2009
The claimant appealed rejection of her claim for personal injuries. She was supervising a school playground, and was injured by a 13 year old child running backwards into her. She claimed against the boy. The judge found it to be mere horseplay.
Cited – Salford City Council v Mullen CA 30-Mar-2010
The court considered the status of decisions to commence proceedings for possession by local authorities against tenants not protected under any statutory scheme. The tenants, on introductory tenancies and under the homelessness regime, argued that . .
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 . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 04 June 2022; Ref: scu.166645

O’Hara v The United Kingdom: ECHR 16 Oct 2001

Hudoc Judgment (Merits and just satisfaction) No violation of Art. 5-1; Violation of Art. 5-3; Violation of Art. 5-5; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award
The applicant had been arrested and interviewed for over six days, before being released without charge. The reasonableness of the suspicion on which an arrest had to be based formed an essential part of the safeguard against arbitrary arrest and detention, and terrorist investigations were particularly difficult. The suspicion against the applicant reached the required level being based on specific information that he was involved in the murder and the deprivation of his liberty was to confirm or dispel that suspicion. The delay in bringing him before a court was a breach of his rights.

Judges:

J-P Costa, P and Judges L Loucaides, P. Kuris, F. Tulkens, K. Jungwiert, Sir Nicolas Bratza and H S Greve Section Registrar S. Dolle

Citations:

Times 13-Nov-2001, [2001] ECHR 591, 37555/97, [2001] ECHR 598

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Citing:

Appeal from – O’Hara v Chief Constable of the Royal Ulster Constabulary HL 21-Nov-1996
Second Hand Knowledge Supports Resaobnable Belief
The plaintiff had been arrested on the basis of the 1984 Act. The officer had no particular knowledge of the plaintiff’s involvement, relying on a briefing which led to the arrest.
Held: A reasonable suspicion upon which an arrest was founded . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 June 2022; Ref: scu.166599

Secretary of State for the Home Department v Saadi, Maged, Osman, Mohammed: CA 19 Oct 2001

The Secretary appealed against a decision that the detention of certain asylum applicants was unlawful. The detention was for a limited period, but he had put forward no reason for the detentions of the individuals.
Held: The Act authorised detention up to the point where a decision was made. The Act empowered detention not for the purpose of examination or for the purpose of deciding whether to give or refuse leave to enter, but pending those events. It was simply to prevent a person entering without leave. The court doubted that detention was necessary to ensure effective and speedy processing of asylum applications, but that was speculation. It was impossible to condemn as irrational the subjection of those asylum seekers whose applications might be rapidly resolved to short-term of detention to ensure that the regime operated without dislocation. Article 5.1(f) recognised the state’s right to prevent unauthorised admission by detaining the person seeking to enter.
Lord Phillips MR said that lawful exercise of statutory powers can be restricted, according to established principles of public law, by government policy and the legitimate expectation to which such policy gives rise.

Judges:

Lord Phillips MR, Lord Justice Schiemann, Lord Justice Waller

Citations:

Times 22-Oct-2001, Gazette 15-Nov-2001, [2001] EWCA Civ 1512, [2002] 1 WLR 356

Links:

Bailii

Statutes:

Immigration Act 1971

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (on the application of Baram etc) v Secretary of State for the Home Department Admn 7-Sep-2001
Asylum seekers had been detained on arrival in the UK, and then released. They challenged the propriety of the detention. The policy was that detention was appropriate where entry had been achieved through breach of immigration control, and did not . .

Cited by:

Appealed to – Regina (on the application of Baram etc) v Secretary of State for the Home Department Admn 7-Sep-2001
Asylum seekers had been detained on arrival in the UK, and then released. They challenged the propriety of the detention. The policy was that detention was appropriate where entry had been achieved through breach of immigration control, and did not . .
Appeal from – Regina v Secretary of State for the Home Department Ex parte Saadi and others HL 31-Oct-2002
The applicants were Kurdish asylum seekers. The Home Secretary introduced powers to detain certain asylum seekers for a short period in order to facilitate the speedy resolution of their applications. Only those who it was suspected might run away . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 04 June 2022; Ref: scu.166634

Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners: Admn 18 Oct 2001

The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act could not be re-interpreted in the light of the Human Rights Act to protect a right of life. There is a direct conflict between the right of life, and the right to protect a body. The Convention protects life and the dignity of life, but does not protect any right to procure one’s own death or confer a right to die. The right to the dignity of life was not a right to die with dignity, but rather a right to live, with as much dignity as could possibly be afforded, until that life reached its natural end.

Judges:

Lord Justice Tuckey, Lady Justice Hale and Mr Justice Silber

Citations:

Times 23-Oct-2001, Gazette 22-Nov-2001, [2001] EWHC Admin 788

Links:

Bailii

Statutes:

Suicide Act 1961 2(1) 2(4)

Citing:

Cited – Attorney General of Trinidad and Tobago v Phillip PC 9-Nov-1994
A pardon which had been give to insurrectionists was invalid, since it purported to excuse future conduct also, but there had been no duress shown. There is no general power to excuse a crime before it is committed. Lord Woolf: ‘A pardon must in the . .
Cited – Regina v Commissioner of Police of the Metropolis, Ex parte Blackburn CA 1968
Answerability of Chief Constables
The constitutional status of the Commissioner had never been defined, either by statute or by the courts. By common law police officers owe to the general public a duty to enforce the criminal law. The court considered the extent to which a court . .
Cited – C (A Minor) v Director of Public Prosecutions HL 17-Mar-1995
The House considered whether the long established rule of the criminal law presuming that a child did not have a guilty mind should be set aside.
Held: Doli incapax, the presumption of a child’s lack of mens rea, is still effective and good . .

Cited by:

Appeal from – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – Rusbridger and Another v Attorney General CA 20-Mar-2002
The paper wanted to publish an article about the monarchy but was concerened that it might lead to it being prosecuted under the 1848 Act. The complainant sought declarations as to the incompatibility of the 1848 Act with the 1998 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Constitutional, Human Rights

Updated: 04 June 2022; Ref: scu.166631

Brennan v The United Kingdom: ECHR 16 Oct 2001

The applicant had complained that, after his arrest he had been refused adequate access to a lawyer. He had not been allowed to see his solicitor for two days, and only then in the presence of a police officer. No inferences had been drawn from his silence in the period before access to his lawyer, and therefore no detriment was shown because of the delay. The applicant was also protected in several ways in the adversarial system from that delay. However, if a lawyer is unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose its usefulness. The Convention guarantees rights that were practical and effective. Though jurisprudence indicated that such rights could be restricted for good cause, the manner of the officer’s presence did infringe his right to an effective exercise of his defence rights under art 6.1.
After citing S v Switzerland, the court held: ‘The Court has noted above that Article 6(3) normally requires that an accused be allowed to benefit from the assistance of a lawyer in the initial phases of an interrogation. Furthermore, an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial and follows from Article 6(3)(c). If a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective. The importance to be attached to the confidentiality of such consultations, in particular that they should be conducted out of the hearing of third persons, is illustrated by the international provisions cited above. However, the Court’s case-law indicates that the right of access to a solicitor may be subject to restrictions for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. While it is not necessary to prove, assuming such were possible, that restriction had a prejudicial effect on the course of the trial, the applicant must be able to claim he had been directly affected by the restriction in the exercise of the rights of the defence.
In this case, the trial judge found that the restriction served the purpose identified under section 45 of the 1991 Act of preventing information being passed on to suspects still at large. There was however no allegation that the solicitor was in fact likely to collaborate in such an attempt, and it was unclear to what extent a police officer would be able to spot a coded message if one was in fact passed. At most, it appears that the presence of the police officer would have had some effect in inhibiting any improper communication of information, assuming there was any risk that such might take place. While the Court finds that there is no reason to doubt the good faith of the police in imposing and implementing this measure-there is no suggestion, as pointed out by the Government, that the police sought to use the opportunity to obtain evidence for their own purposes, it nonetheless finds no compelling reason arising in this case for the imposition of the restriction.’
The court considered proportionality, and concluded ‘that the presence of the police officer would have inevitably prevented the applicant from speaking frankly to his solicitor and given him reason to hesitate before broaching questions of potential significance to the case against him’ [62] and that the presence of the police officer at the hearing and within earshot during the applicant’s first consultation with his solicitor infringed his right to an effective exercise of his defence rights and that there had been, in consequence, a violation of Article 6(3)(c) read in conjunction with Article 6(1).’

Judges:

JP Costa, President and Judges W Fuhrmann, L Loucaides, Sir Nicolas Bratza, HS Greve, K Traja and M Ugrekhelidze Section Registrar S. Dolle

Citations:

Times 22-Oct-2001, 39846/98, (2002) 34 EHRR 18, [2002] Crim LR 216, [2001] ECHR 596, [2001] Po LR 387, [2011] ECHR 2271

Links:

Bailii, Bailii

Statutes:

Prevention of Terrorism Act 1984, European Convention on Human Rights 6(3)

Jurisdiction:

Human Rights

Citing:

Cited – S v Switzerland ECHR 28-Nov-1991
ECHR Judgment (Merits and just satisfaction) – Violation of Art. 6-3-c; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention . .

Cited by:

Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
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, Legal Professions

Updated: 04 June 2022; Ref: scu.166600

Director of Public Prosecutions v Avery: QBD 11 Oct 2001

The case concerned an appeal following a demonstration. The Chief constable had made an order under section 60, anticipating serious violence. The respondent wore a mask, and the officer reached out to remove it. She hit out and broke his glasses. He did nothing to identify himself or the purpose of his action. Magistrates decided he had failed to comply with the PACE requirements before his action.
Held: The new section is a significant interference with the civil liberties of the citizen. However the request to remove the mask is explanation enough of its purpose. Parliament had considered these issues and set out the powers it required. The prosecution’s appeal was allowed.

Judges:

Lord Justice Brooke and Mr Justice Newman

Citations:

Times 08-Nov-2001, [2001] EWHC Admin 784

Links:

Bailii

Statutes:

Criminal Justice and Public Order Act 1994 60, Police and Criminal Evidence Act 1984

Citing:

Cited – Christie v Leachinsky HL 25-Mar-1947
Arrested Person must be told basis of the Arrest
Police officers appealed against a finding of false imprisonment. The plaintiff had been arrested under the 1921 Act, but this provided no power of arrest (which the appellant knew). The officers might lawfully have arrested the plaintiff for the . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 04 June 2022; Ref: scu.166540

Hatton and Others v United Kingdom: ECHR 2 Oct 2001

The appellants claimed that the licence of over-flying from Heathrow at night, by making sleep difficult, infringed their rights to a family life. The times restricting over-flying had been restricted. The applicants’ complaints fell within a positive duty on the state to take reasonable and appropriate measures to secure the applicants’ rights under article 8.1. The authorities had to find a balance within their margin of discretion. There had been no critical examination of the benefits of night flying to the economy. Judicial review would not be wide enough to allow a proper remedy, since it could not consider the Human rights of the appellants. There had therefore been a breach of article 13. ‘At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight.’

Judges:

J-P Costa, President and Judges L. Loucaides, P. Kuris, F. Tulkens, K. Jungwiert, H. S. Greve and Sir Brian Kerr, ad hoc judge Section Registrar S. Dolle

Citations:

36022/97, Times 08-Oct-2001, [2001] ECHR 561, [2003] ECHR 338, (2003) 37 EHRR 611, [2001] ECHR 565, [2000] ECHR 709

Links:

Worldlii, Worldlii, Bailii, Bailii, Bailii

Statutes:

European Convention on Human Rights Art 8.1, Civil Aviation Act 1982 78(3)

Jurisdiction:

Human Rights

Citing:

Cited – Powell and Rayner v The United Kingdom ECHR 21-Feb-1990
The applicants complained of the noise generated by Heathrow Airport saying that it affected their human rights to enjoy their private life and possessions.
Held: Whether the case was analysed in terms of a positive duty on the state to take . .
Cited – Guerra and Others v Italy ECHR 19-Feb-1998
(Grand Chamber) The applicants lived about 1km from a chemical factory which produced fertilizers and other chemicals and was classified as ‘high risk’ in criteria set out by Presidential Decree.
Held: Failure by a government to release to an . .
Referred to – Hatton and Others v The United Kingdom ECHR 8-Jul-2003
More Night Flights No Infringement of Family Life
The claimants complained that the respondent had acted to infringe their rights. They were residents living locally to Heathrow Airport. They claimed the respondent had increased the number of night flights, causing increased noise, but without . .

Cited by:

Cited – Dennis and Dennis v Ministry of Defence QBD 16-Apr-2003
The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. . .
Appeal from – Hatton and Others v The United Kingdom ECHR 8-Jul-2003
More Night Flights No Infringement of Family Life
The claimants complained that the respondent had acted to infringe their rights. They were residents living locally to Heathrow Airport. They claimed the respondent had increased the number of night flights, causing increased noise, but without . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – MGN Limited v United Kingdom ECHR 18-Jan-2011
The applicant publisher said that the finding against it of breach of confidence and the system of success fees infringed it Article 10 rights to freedom of speech. It had published an article about a model’s attendance at Narcotics anonymous . .
Lists of cited by and citing cases may be incomplete.

Transport, Environment, Human Rights, Judicial Review

Updated: 04 June 2022; Ref: scu.166529

Hubbard and Others v Lambeth Southwark and Lewisham Health Authority and Others: CA 7 Sep 2001

In a medical negligence case, the court ordered a pre-trial private meeting between the expert witnesses for the claimant and defendant. The claimant objected, fearing that pressure would be brought on his professional witness by his colleagues, thus denying him a fair trial under article 6.
Held: The aim of the experts’ meeting was to identify and limit the medical issues needed to be decided at trial. It was a necessary function, and the concerns of the claimant could be met by the recording of the meeting.

Judges:

Lord Justice Tuckey and Lady Justice Hale

Citations:

Times 08-Oct-2001, [2001] EWCA Civ 1455, [2002] Lloyds Rep Med 8, [2002] PIQR P14, [2001] CP Rep 117

Links:

Bailii

Statutes:

Civil Procedure Rules 35.12, European Convention for the Protection of Human Rights and Fundamental Freedoms 6

Jurisdiction:

England and Wales

Civil Procedure Rules, Human Rights, Litigation Practice

Updated: 04 June 2022; Ref: scu.166528

Kreuz v Poland: ECHR 19 Jun 2001

The requirement to pay fees to civil courts in connection with claims they are asked to determine could not in itself be regarded as a restriction on the right of access to a court that was incompatible with article 6(1). Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way, that provision embodies the ‘right to a court’, of which the right of access, that is the right to institute proceedings before a court in civil matters, constitutes one aspect only; however it is an aspect that makes it in fact possible to benefit from the further guarantees laid down in paragraph (1) of Article 6. The fair public and expeditious characteristics of judicial proceedings are indeed of no value at all if such proceedings are not first initiated. In civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.
However, a fee equivalent to the average annual salary in Poland was excessive.

Citations:

[2001] 11 BHRC 456, 28249/95, [2001] ECHR 394, [2001] ECHR 398, [2011] ECHR 1289

Links:

Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights 6.1

Jurisdiction:

Human Rights

Cited by:

Cited – Liubov Ford v Richard Labrador PC 22-May-2003
(Gibraltar) The appellant had failed in an action for defamation, she had been ordered to pay costs as a condition of her continuing the action.
Held: The order was made by the Chief Justice sitting as a judge of the Court of Appeal in an . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 June 2022; Ref: scu.166134

SBC v The United Kingdom: ECHR 19 Jun 2001

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Violation of Art. 5-5; No violation of Art. 13
The respondent government conceded that the absolute ban on the grant of bail to section 25 defendants provided for by section 25 violated article 5(3), insofar as it prohibited the grant of bail to defendants accused of a grave offence after being convicted for a first.

Citations:

(2001) 34 EHRR 619, [2001] ECHR 396, 39360/98, [2001] ECHR 400

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 5(3), Criminal Justice and Public Order Act 1994 25

Jurisdiction:

Human Rights

Cited by:

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

Human Rights, Criminal Practice

Updated: 04 June 2022; Ref: scu.166136

Farrakhan v Secretary of State for the Home Department: QBD 1 Oct 2001

The applicant challenged the Home Secretary’s decision to exclude him from the UK, on the grounds that his presence would exacerbate tensions between the Jewish and Muslim communities. A balance is to be found between freedom of speech and the need for public order. He agreed to sign an undertaking in the form requested by the Secretary, and had been admitted to Israel after signing a similar document. The Home Secretary no longer suggested he would use the opportunity to create tension, and there was no suggestion that other, secret, matters had affected the decision. The greater the interference of a decision with the human rights of the applicant, the more intense should be the scrutiny of the courts in reviewing that decision. In this case, the Home Secretary failed to establish ‘objective justification’ for his decision to continue the exclusion of the claimant from the United Kingdom.

Judges:

Mr Justice Turner

Citations:

[2001] EWHC Admin 781

Links:

Bailii

Statutes:

Immigration Act 1971 1

Citing:

Cited – Regina (Yaser Mahmood) v Secretary of State for Home Department Admn 9-Aug-2001
The Home Secretary had served notice that the applicant was an illegal immigrant, and liable to deportation. An order had been made for the cross examination of the applicant. He had come to England to study, but soon dropped his immediate plans. He . .

Cited by:

Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Appeal from – Farrakhan, Regina (on the Application of) v Secretary of State for the Home Department CA 30-Apr-2002
The applicant sought admission to the UK. In the past he had made utterances which were capable of being racist. He claimed to have recanted, and had given undertakings as to his behaviour. At first instance it was held that the Home Secretary had . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Judicial Review

Updated: 04 June 2022; Ref: scu.166234

Atlan v The United Kingdom: ECHR 19 Jun 2001

It was an infringement of the defendant’s right to a fair trial for the trial judge not to be involved in ex parte applications to exclude evidence. The defect could not be remedied by the same evidence later being presented also to the appeal court on an ex parte basis. There is a general requirement to disclose to the defence all material in the possession of the prosecutor which might be relevant. Though it might be necessary to withhold some material in order to protect the rights of somebody else, but that could only be appropriate where strictly necessary. Here the prosecutor had repeatedly denied the existence of such material, and such behaviour must make for a denial of a fair trial.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – finding of violation sufficient; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings

Citations:

Times 03-Jul-2001, 36533/97, (2001) 34 EHRR 833, [2001] ECHR 397

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights Art 6.1

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v Botmeh; Regina v Alami CACD 1-Nov-2001
In an appeal, the Crown sought leave to apply ex parte to have make certain information subject of a public interest immunity certificate. The defence argued that that was possible only on a first instance hearing.
Held: The procedures were . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 04 June 2022; Ref: scu.166135

James Murray King v Annie Marie Walden (HM Inspector of Taxes): ChD 12 Jun 2001

A decision to impose a penalty on a taxpayer, involved a charge of a criminal nature, for the purposes of article 6 of the Convention. It was necessary, therefore, to proceed with such a matter quickly. Even so, in the imposition of such penalties, there was no point upon which the burden of proof did not lay on the Crown, and the taxpayer had had opportunity at each stage to have his say. In this case, the matter had taken some five years. This was only just acceptable, and the Revenue should look at some way of fast tracking appeals in such matters.

Citations:

Times 12-Jun-2001, [2001] EWHC Ch 419, [2001] STC 822

Links:

Bailii

Statutes:

European Convention on Human Rights art 6(2)

Jurisdiction:

England and Wales

Cited by:

Cited – King v United Kingdom ECHR 16-Nov-2004
The claimant had been subject to tax penalty proceedings. They continued for more than 14 years.
Held: The length of the proceedings exceeded the time properly to be allowed, and infringed his right to a fair trial. Though the taxpayer himself . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Human Rights

Updated: 04 June 2022; Ref: scu.82788

Coster v The United Kingdom: ECHR 18 Jan 2001

While it is for the national authorities to make the initial assessment of what is necessary and proportionate in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention

Citations:

[2001] ECHR 44, 24876/94, [2001] 33 EHRR 20

Links:

Worldlii, Bailii

Cited by:

Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 June 2022; Ref: scu.166021

Cyprus v Turkey: ECHR 10 May 2001

Hudoc (Grand Chamber) Missing persons: No violation of Art. 2, Art. 4; Violation of Arts. 2 and 5 with regard to lack of effective investigation; No violation of Art. 5 with regard to alleged detention; Not necessary to examine Arts. 3, 6, 8, 13, 14 and 17; Violation of Art. 3 with regard to relatives; Not necessary to examine Arts. 8 and 10 with regard to relatives; Displaced persons: Violation of Art. 8, P1-1 and Art. 13; Not necessary to examine Arts. 14+8, 14+13 and 14+P1-1, 3, 17 and 18; No violation of Art. 2 with regard to access to medical services; Greek Cypriots in northern Cyprus: No violation of Arts. 5, 6 and 11; Violation of Art. 9; No violation of Art. 9 with regard to the Maronite population; Violation of Art. 10 with regard to censorship of school books; No violation of P1-1 with regard to alleged failure to protect property from interferences by private persons.
The abolition by the Turkish authorities of the Greek language secondary schools in Northern Cyprus constituted a breach of A2P1.

Judges:

L Wildhaber P

Citations:

25781/94, [2001] ECHR 331, (2002) 35 EHRR 30, (2001) 11 BHRC 45, ECHR 2001-IV, (2001) 11 BHRC 45

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights A2P1

Cited by:

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 – A v Essex County Council SC 14-Jul-2010
The claimant, a severely disabled child sought damages, saying that for well over a year, the local authority had made no provision for his education.
Held: His appeal against the striking out of his action failed. The correct approach had . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 June 2022; Ref: scu.166112

Tammer v Estonia: ECHR 6 Feb 2001

Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and the self-fulfilment of each individual. Criminal penalties imposed in respect of the reporting of a sexual relationship could not be said to violate Article 10 – notwithstanding that the persons concerned were the Prime Minister and a political aide.

Citations:

41205/98, (2001) 37 EHRR 857, [2001] ECHR 83, (2003) 37 EHRR 43

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 10

Jurisdiction:

Human Rights

Cited by:

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 – McKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 04 June 2022; Ref: scu.166024

Pialopoulos And Others v Greece: ECHR 15 Feb 2001

Hudoc Violation of P1-1; Violation of Art. 6-1; Not necessary to examine Art. 13; Just satisfaction reserved

Citations:

[2001] ECHR 92, 37095/97

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

See Also – Pialopoulos And Others v Greece ECHR 27-Jun-2002
Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award
Hudoc Judgment (Just . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 June 2022; Ref: scu.166031

G J v Luxembourg: ECHR 26 Oct 2000

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

Citations:

21156/93, [2000] ECHR 508, [2000] ECHR 510

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 04 June 2022; Ref: scu.165964

Kudla v Poland: ECHR 26 Oct 2000

Just what treatment is sufficiently severe to reach the high threshold required for a violation of article 3 ‘depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim’Treatment was held to be ‘inhuman’ because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also ‘degrading’ because it was such as to arouse in the victims feeling of fear, anguish and inferiority capable of humiliating and debasing them.

Citations:

30210/96, [2000] ECHR 512, (2000) 35 EHRR 198

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 3

Cited by:

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 – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 June 2022; Ref: scu.165966

Kliniecki v Poland: ECHR 21 Dec 2000

The applicant had been accused of fraud in Poland. After conviction he appealed and eventually succeeded. The government offered a friendly settlement which was accepted by the defendant.

Judges:

Ress, P, Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mrs N. Vajic, Mr M. Pellonpaa

Citations:

31387/96, [2000] ECHR 677, [2000] ECHR 686

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 04 June 2022; Ref: scu.166004

Beer v Austria: ECHR 6 Feb 2001

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

Citations:

[2001] ECHR 81, 30428/96

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Her Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor) PC 28-Jun-2005
(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 June 2022; Ref: scu.166035

Tanli v Turkey: ECHR 10 Apr 2001

ECHR Judgment (Merits and just satisfaction) Violation of Art. 2 with regard to the death; Violation of Art. 2 with regard to the investigation; No violation of Art. 3; No violation of Art. 5; Violation of Art. 13; No violation of Art. 14; No violation of Art. 18; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings

Citations:

[2001] ECHR 267, 26129/95, [2001] ECHR 270

Links:

Worldlii, Bailii

Human Rights

Updated: 04 June 2022; Ref: scu.166077

Telfner v Austria: ECHR 20 Mar 2001

ECHR The victim of a motor accident was able to identify the offending car, or even whether the driver was male or female. The car was owned by the applicant’s mother, and he denied driving at the time. There was no evidence that he had been driving beyond unsupported police observations that the car was mainly driven by the applicant. His conviction at trial was upheld on appeal.
Held: The Court had to ascertain that the proceedings as a whole were fair. In a criminal trial that included observance of the presumption of innocence. A court should not start with the preconceived idea that the accused had committed the offence charged. The burden of proof was on the prosecution and any doubt should benefit the accused. The presumption of innocence is infringed where the burden of proof is shifted from the prosecution to the defence. The case was not one in which adverse inferences could properly be drawn from the silence of the accused.

Citations:

[2001] ECHR 225, 33501/96, [2001] ECHR 228

Links:

Worldlii, Bailii

Cited by:

Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Road Traffic

Updated: 04 June 2022; Ref: scu.166062

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 degrading treatment had to achieve a certain standard of seriousness before it became an infringement, but after that might be relative to the circumstances. The court must also see whether an intention existed to debase and humiliate the person subjected to the treatment.
Despite the known risk, and identifiably increased risks, there were no medical notes for a period. The offence itself may have followed an unconsidered change in his medication. His article 3 rights had been infringed. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The ‘inquest, which did not permit the determination of issues of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities or obtaining damages.’ and ‘Given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life.’
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 2; Violation of Art. 3; Violation of Art. 13; Non-pecuniary damage – financial award; Costs and expenses partial award

Citations:

Times 18-Apr-2001, 27229/95, (2001) 33 EHRR 38, [2001] ECHR 239, [2001] 10 BHRC 319, [2001] ECHR 242, (2001) 33 EHRR 913, [2011] ECHR 2266

Links:

Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights Art 3

Citing:

Cited – Salman v Turkey ECHR 27-Jun-2000
Where someone dies or is injured whilst in custody the burden is on the state to provide a ‘satisfactory and convincing explanation’ of what has happened: ‘Persons in custody are in a vulnerable position and the authorities are under a duty to . .

Cited by:

Cited – 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 . .
Cited – PS, Regina (on the Application of) v Responsible Medical Officer, Dr G and others Admn 10-Oct-2003
The claimant had been compulsorily detained under the Act. He complained that the detention and compulsory medication infringed his rights, and amongst other things breached his religious beliefs.
Held: This was an exceptional case requiring . .
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 – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Cited – Van Colle and Another v Chief Constable of the Hertfordshire Police CA 24-Apr-2007
The deceased had acted as a witness in an intended prosecution. He had sought protection after being threatened. No effective protection was provided, and he was murdered. The chief constable appealed a finding of liability.
Held: The . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – 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 – 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 – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Coroners

Updated: 04 June 2022; Ref: scu.166065

Hasan and Chaush v Bulgaria: ECHR 26 Oct 2000

The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the Convention which safeguards associative life against unjustified State interference. Seen in this perspective, the believer’s right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members’ The court ‘recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.’ Not every act which is in some way motivated or inspired by religious belief is to be regarded as the manifestation of religion.
The court considered the need for precision in the formulation of law and said: ‘For domestic law to meet these requirements [that is, of accessibility and foreseeability] it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.
The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.’

Citations:

30985/96, (2002) 34 EHRR 55, [2000] ECHR 509, (2002) 34 EHRR 1339, [2000] ECHR 511

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 9 11

Cited by:

Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Begum, Regina (on the Application of) v Denbigh High School Admn 15-Jun-2004
A schoolgirl complained that she had been excluded from school for wearing a form of attire which accorded with her Muslim beliefs.
Held: The school had made great efforts to establish what forms of wear were acceptable within the moslem . .
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – SB, Regina (on the Application of) v Denbigh High School CA 2-Mar-2005
The applicant, a Muslim girl sought to be allowed to wear the gilbab to school. The school policy which had been approved by Muslim clerics prohibited this, saying the shalwar kameeze and headscarf were sufficient. The school said she was making a . .
Cited – The New Testament Church of God v Reverend Stewart CA 19-Oct-2007
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and Another QBD 29-Oct-2008
The applicant suffered mutiple sclerosis and considered that she might wish to go abroad to end her life. She asked the court to make more clear the guidance provided by the Director as to whether her partner might be prosecuted under section 2(1) . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and Another Admn 29-Oct-2008
The applicant said that the defendant had unlawfully failed to provide detailed guidance under section 10 of the 1985 Act, on the circumstances under which a prosecution might lie of a person performing acts which might assist another to commit . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Principal judgment – Hasan and Chaush v Bulgaria ECHR 2-Dec-2011
. .
Cited – The Church of Jesus Christ of Latter-Day Saints v United Kingdom ECHR 4-Mar-2014
latterdayECHR0314
The claimant said that it had been wrongfully deprived of relief from business rates for its two temples. It asserted that it was a religion, and that the treatment was discriminatory. The government said that the refusal was on the basis alone that . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Kenward and Another, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 4-Dec-2015
The claimants challenged the policy issued by the DPP on assisted suicide following the Nicklinson case.
Held: The request for judicial review was refused.
Sir Brian Leveson P said: ‘It is important not to misunderstand the effect either . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Ecclesiastical

Updated: 04 June 2022; Ref: scu.165967

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 notice were upheld by the inspector.
Held: The needs of gypsies for accommodation, and the refusal of permission to locate caravans on land purchased by them for this purpose, was not a sufficient infringement of their right to family life to outweigh the needs of society as reflected in the planning laws. The caravans were occupied as an integral part of their ethnic identity, but the planning laws required a large margin of appreciation to be afforded. to a national government. The interference was proportionate. ‘It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.’
‘When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established this factor would self evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.’

Citations:

Times 30-Jan-2001, 27238/95, (2001) 33 EHRR 18, [2001] ECHR 43, (2001) 33 EHRR 479, (2001) 33 EHRR 399

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1 8

Cited by:

Cited – Wrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
Cited – Wrexham County Borough v The National Assembly of Wales, Michael Berry, Florence Berry CA 19-Jun-2003
A traditional gypsy family had settled because of ill health, and sought to establish a caravan site. The authority claimed they were no longer to be treated as Gypsy and having the entitlement under the Act.
Held: The Act defined ‘Gypsies’ as . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Cited – 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 – 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 – 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 – South Bucks District Council v Secretary of State for Transport, Local Government and the Regions and Linda Porter CA 19-May-2003
The applicant, a gipsy had occupied land she had bought. Her occupation was in breach of planning control. The inspector found exceptional cirumstances for allowing her to continue to live there. The authority appealed.
Held: The inspector had . .
Cited – South Buckinghamshire District Council and Another v Porter (No 2) HL 1-Jul-2004
Mrs Porter was a Romany gipsy who bought land in the Green Belt in 1985 and lived there with her husband in breach of planning control. The inspector gave her personal permission to continue use, and it had been appealed and cross appealed on the . .
Cited – The First Secretary of State, Grant Doe, Gregory Yates, Paul Eames v Chichester District Council CA 29-Sep-2004
The appellants challenged a decision to grant planning consent for a private gipsy with mobile homes. The issue was whether the council in refusing permission and in issuing enforcement proceedings, had infringed the applicants human rights. The . .
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 – 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 – Wilson v Wychavon District Council and Another Admn 20-Dec-2005
The claimant complained that the law which protected an occupier of a dwelling house from a temporary stop notice did not apply to those living in caravans, and that this was discriminatory.
Held: The claim failed. ‘usually a change of use of . .
Cited – Ali v Head Teacher and Governors of Lord Grey School HL 22-Mar-2006
The claimant had been accused with others of arson to school property. He was suspended for the maximum forty five day period. The school then invited the family to discuss arrangements to return to the school, but the family did not attend. After . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Lee v Rhondda Cynon Taf County Borough Council CA 16-Jul-2008
The applicant, a gypsy had been living for some years on an illegal site with her children. The council closed the site down and she sought assistance as a homeless person. The council accepted her priority need, but she refused the property offered . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
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.

Discrimination, Planning, Human Rights

Updated: 04 June 2022; Ref: scu.166019

TP And KM v The United Kingdom: ECHR 10 May 2001

The Grand Chamber found a violation of Articles 8 and 13 and awarded each applicant GBP 10,000 in respect of a separation which lasted a year. Article 8 imposes positive obligations of disclosure on a local authority involved in care proceedings: ‘The positive obligation on the Contracting State to protect the interests of the family requires that this material be made available to the parent concerned, even in the absence of any request by the parent. If there were doubts as to whether this posed a risk to the welfare of the child, the matter should have been submitted to the court by the local authority at the earliest stage in the proceedings possible for it to resolve the issues involved.’

Citations:

28945/95, (2001) 34 EHRR 42, [2001] ECHR 332, [2001] 2 FLR 549, (2001) 3 LGLR 52, [2001] 2 FCR 289, (2001) 4 CCL Rep 398, [2001] Fam Law 590

Links:

Bailii

Statutes:

European Convention on Human Rights 8 13

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 – MAK and RK v The United Kingdom ECHR 23-Mar-2010
mak_ukECHR10
When RK, a nine year old girl was taken to hospital, with bruises, the paediatrician wrongly suspecting sexual abuse, took blood samples and intimate photographs in the absence of the parents and without their consent.
Held: The doctor had . .
Cited – Durham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Damages, Children, Litigation Practice

Updated: 04 June 2022; Ref: scu.166102

Niedbala v Poland: ECHR 4 Jul 2000

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Violation of Art. 5-4; Violation of Art. 8; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award
A warrant must be validated by an independent judicial authority.

Citations:

[2000] ECHR 359, 27915/95, [2000] ECHR 360, [2000] 33 EHRR 1137

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 5(3)

Cited by:

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

Human Rights, Criminal Practice

Updated: 04 June 2022; Ref: scu.165906

Sander v The United Kingdom: ECHR 9 May 2000

In a trial of an Asian defendant a juror complained that other jurors had made racist jokes, and feared that the defendant would not receive a fair trial. The judge obtained re-assurance from the jury that they would not so act, but did so in a way in which the complainor was identified. The trial was defective. The defendant could not be expected to accept that he had had a fair trial. The acquittal of an Asian co-defendant made no difference since the case against him was different.
Hudoc Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – claim rejected

Citations:

Times 12-May-2000, 34129/96, (2000) 8 BHRC 279, (2000) 31 EHRR 1003, [2000] ECHR 193, [2000] ECHR 194

Links:

Worldlii, Bailii

Cited by:

Distinguished – Regina v Qureshi CACD 23-Jul-2001
The appellant had been convicted of arson. A few days after the conviction, one juror reported concern about the behaviour of the jury.
Held: Authority was clear, that the court could not enter into an investigation of what had happened with . .
Distinguished – Regina v Smith (Lance Percival) CACD 19-Feb-2003
The defendant argued that the judge should have ensured that some members of the jury were black. He was a black man being tried by an all white jury, with a white victim and white witnesses.
Held: The judge had no part to play in the . .
Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 04 June 2022; Ref: scu.165869

Oldham v The United Kingdom: ECHR 26 Sep 2000

Where a parole board took two years to consider the applicant’s parole, this was unreasonable, and a breach of the Article 5.4 requirement to deal with such matters speedily. Accordingly the continued detention of the applicant became unlawful. The provisions apply not only to original proceedings, but also to statutory automatic reviews of detention. No standard time can be set down, because the situations of detention and of the prisoners varies. The automatic two year period left the applicant with no opportunity to seek an earlier review of detention. The Court awarded damages of andpound;1000 for a breach of Article 5(4) but said: ‘the court considers that the applicant must have suffered feelings of frustration, uncertainty and anxiety flowing from the delay in review which cannot be compensated solely by the finding of violation’.
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:

Times 24-Oct-2000, 36273/97, [2000] ECHR 432, [2000] ECHR 433

Links:

Worldlii, Bailii

Statutes:

European Convention on Hman Rights 5-4

Cited by:

Cited – Murray v The Parole Board Secretary of State for the Home Department CA 6-Nov-2003
The applicant had been convicted of murder and sentenced to life imprisonment. He had twice previously been released on licence and had his licence revoked. His tarriff had expired The period between reviews of his detention had been two years, but . .
Cited – Regina v Parole Board, ex parte MacNeil CA 18-Apr-2001
The interval between occasions of consideration of the granting of parole to a discretionary life prisoner, was to be determined on the facts and circumstances of each prisoner. There was no rule that the maximum period between reviews was to be two . .
Cited – Degainis, Regina (on The Application of) v Secretary of State for Justice Admn 3-Feb-2010
The claimant sought damages. He had been released from prison and recalled, but the review of his continued detention was not undertaken as it should have been. The defendant said that the acknowledgement and apology were sufficient just . .
Confirmed – Hirst v United Kingdom ECHR 24-Jul-2001
The applicant asserted that the delays in the reviews, undertaken by the Parole Board, of his continued detention as a discretionary life prisoner, was a breach of his right to a speedy decision. The delays were between 21 and 24 months. Such delays . .
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 04 June 2022; Ref: scu.165935

Velikova v Bulgaria: ECHR 18 May 2000

The applicant complained under Articles 2, 6, 13 and 14 of the Convention in respect inter alia of the alleged ineffective investigation into the death in police custody of Mr Tsonchev, the man with whom she had been living.
Held: ‘The Court recalls that the State’s obligation under Article 2 to protect the right to life, read in conjunction with its general duty under Article 1 of the Convention ‘to secure to everyone within their jurisdiction the rights and freedoms defined [therein]’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49 ssss 161-163, and the Cakici judgment . . The Court further considers that the nature and degree of scrutiny which satisfies the minimum threshold of the investigation’s effectiveness depends on the circumstances of the particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. It is not possible to reduce the variety of situations which might occur to a bare check list of acts of investigation or other simplified criteria (see the Tanrikulu v. Turkey judgment of 8 July 1999, Reports 1999-ssss 101-110, the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 325 and 326, ssss 89-91, and the Gulec v. Turkey judgment of 27 July 1998, Reports 1998-IV, pp. 1732-1733, ssss 79-81).’

Citations:

41488/98, [2000] ECHR 198

Links:

Worldlii, Bailii

Cited by:

Cited – A, Re Application for Judicial Review QBNI 25-Jun-2001
The applicant, who feared for his life if identified, sought the release to him of materials discovered by the police in searching premises associated with a loyalist paramiliitary group. He thought that they might include information sourced form . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 June 2022; Ref: scu.165867

Frydlender v France: ECHR 27 Jun 2000

The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute. for Article 6.1, in its ‘civil’ limb, to be applicable there must be a dispute over a ‘right’ that can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious. It may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for the civil right in question

Citations:

30979/96, 43 ECHR 2000-VII, (2001) EHRR 52, [2000] ECHR 352, [2000] ECHR 353

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1

Cited by:

Cited – B R v Poland ECHR 16-Sep-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage – financial award
The claimant complained that the criminal proceedings against him had exceeded a reasonable time . .
Cited – Stockholms Forsakrings- Och Skadestandsjuridik Ab v Sweden ECHR 16-Sep-2003
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion) ; Violation of P1-1 ; No violation of Art. 6-1 ; Violation of Art. 13 ; Pecuniary damage – financial award ; Costs and . .
Cited – Umek v Slovenia ECHR 8-Jan-2009
The claimant said that the defendant country had failed to provide her with an effective remedy for delay in proceedings before its courts. She had sought damages after being involved in a fire. She began proceedings in 1989, and they were concluded . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 04 June 2022; Ref: scu.165898

Varbanov v Bulgaria: ECHR 5 Oct 2000

Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (abuse of right of petition); Violation of Art. 5-1; Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
An authority responsible for the deprivation of liberty must establish through objective medical expertise that the person is of unsound mind. No such deprivation can occur without seeking the opinion of a medical expert which must be based on the present, not solely the past, circumstances. Any other approach falls short of the required protection against arbitrariness.

Citations:

[2000] ECHR 455, 31365/96, [2000] ECHR 457

Links:

Worldlii, Bailii

Cited by:

Cited – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 04 June 2022; Ref: scu.165941