Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Costs and expenses award – domestic proceedings.
33082/96, [2000] ECHR 424, [2000] ECHR 425
Human Rights
Updated: 04 June 2022; Ref: scu.165929
Mr Cornwell’s wife had died on 24 October 1989, leaving a dependent child. On 7 February 1997 his representative had ‘contacted’ the Benefits Agency to enquire about widow’s benefits. On 14 February 1997 the Agency ‘answered’ to say that legislation provided only for widows and not widowers. On 28 March 1997 the Agency confirmed that if Mrs Cornwell’s record had been that of a man, her survivor would have been entitled to Widow’s Payment and WMA. The position of the Government was set out in the decision as follows: ‘The Government contest the admissibility of the application insofar as it relates to the period 24 October 1989 to 7 February 1996. They point out that the applicant did not attempt to claim widows’ benefits until 7 February 1997 and that it was only from this date onwards that the legislation was applied to him. Had a woman claimed widows’ benefits on 7 February 1997 in respect of the death of her husband in October 1989, she would have been told that she was out of time for claiming a widow’s payment and that she could only claim widowed mothers’ allowance with effect from 8 February 1996. The UK had agreed to pay the benefit equally until the coming into force of legislation which would correct the situation.
Times 10-May-2000, 36578/97, (2000) 27 EHRR CD62, [2000] ECHR 167, [2000] ECHR 168
Human Rights
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 18-Jun-2003
The appellants were widowers whose wives had died at a time when the benefits a widow would have received were denied to widowers. The legislation had since changed but they variously sought compensation for the unpaid sums.
Held: The appeal . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165864
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3 with regard to length of detention; No violation of Art. 5-3 with regard to refusal of bail; No violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award
31315/96, [2000] ECHR 170
Human Rights
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.
Updated: 04 June 2022; Ref: scu.165866
‘The essential object of Article 8 is to protect individuals against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective ‘respect’ for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific steps. In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the state’s margin of appreciation.’ Speed was essential in determining disputes about children.
32346/96, (2001) 33 EHRR I, [2001] 1 FLR 153, [2000] ECHR 419, [2000] 3 FCR 193, 2001 Fam LR 103, [2000] Fam Law 880
European Convention on Human Rights 8
Human Rights
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 . .
Mentioned – F v M FD 1-Apr-2004
The court considered the ‘ongoing debate’ about the court’s role in contact disputes. ‘this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact . .
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 – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165932
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 6-3-a; Violation of Art. 6-3-b; Violation of Art. 6-1 as regards the length of proceedings; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award
23969/94, [2000] ECHR 383, [2009] ECHR 1680
Human Rights
Updated: 04 June 2022; Ref: scu.165916
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 8; No violation of Art. 13; Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings; Costs and expenses partial award – domestic proceedings
‘the consideration of what is in the best interests of the child is of crucial importance.’
Mr G. Ress
[2000] ECHR 175, 25651/94, [2000] ECHR 176, [2000] 2 FLR 118, [2000] Fam Law 536, (2001) 31 EHRR 30, [2000] 3 FCR 219, 31 EHRR 30
Human Rights
Cited – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165861
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings
The applicant claimed the equivalent of andpound;5660 for four years’ lost earnings, on the basis of average earnings in the Czech Republic between 1993 and 1997.
[2000] ECHR 213, 33644/96, [2000] ECHR 214
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.
Updated: 04 June 2022; Ref: scu.165884
Evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. The police had installed covert listening devices on private property without the knowledge or consent of the owner. UK national law did not regulate sufficiently the use of covert listening devices to protect the individual’s rights under the Convention to respect for private and family life, and nor did the law give any effective remedy for such intrusion. The court in admitting such evidence had taken proper account of the unfairness and lack of regulation. The UK courts had not considered the admission of the evidence to be unfair. The complaint under article 8 was upheld, that under article 6 was rejected.
Times 23-May-2000, 35394/97, ECHR 2000-V, [2000] ECHR 194, (2000) 31 EHRR 1016, [2000] ECHR 195, (2001) 31 EHRR 45
Police and Criminal Evidence Act 1984 78, European Convention on Human Rights 6 8.1
Appeal from – Regina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
Cited – Hewitson v The United Kingdom ECHR 27-May-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention proceedings
The applicant had been . .
Mentioned – 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 – Wood v United Kingdom ECHR 16-Nov-2004
Police officers had placed suspects in a cell together and covertly recorded their conversation in order to obtain evidence against them. The events took place in 1999.
Held: The recording was outside any legal system of control and interefred . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – C Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Cited – McE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
Cited – Regina v P and others HL 19-Dec-2000
Where communications had been intercepted in a foreign country, and the manner of such interceptions had been lawful in that country, the evidence produced was admissible in evidence in a trial in England. An admission of such evidence was not an . .
Cited – Kinloch v Her Majesty’s Advocate SC 19-Dec-2012
The appellant said that the police officers had acted unlawfully when collecting the evidence used against him, in that the information used to support the request for permission to undertake clandestine surveillance had been insufficiently . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165868
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.
[2000] ECHR 359, 27915/95, [2000] ECHR 360, [2000] 33 EHRR 1137
European Convention on Human Rights 5(3)
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.
Updated: 04 June 2022; Ref: scu.165906
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Violation of Art. 5-4; Violation of Art. 6-1; Damage – finding of violation sufficient; Costs and expenses partial award
[2000] ECHR 369, 25792/94, [2000] ECHR 370, [2011] ECHR 2145
Human Rights
Updated: 04 June 2022; Ref: scu.165913
The court considered a complaint that the Norwegian defamation law interfered with the applicant’s freedom of speech, and placed an unfair burden of proof on them in defending themselves. One of the defamatory phrases under consideration was ‘deliberate lie’.
Held: The allegation was required to be proved as a fact but, as it happened, there was no factual basis for it. What is objectionable is any rule which requires defendants, and especially journalists, to ‘prove’ opinions as though they were capable of objective verification. Freedom of expression is applicable ‘not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.’
23118/93, (1999) 30 EHRR 878, [1999] ECHR 134
European Convention on Human Rights 10
Applied – Keays v Guardian Newspapers Limited, Alton, Sarler QBD 1-Jul-2003
The claimant asserted defamation by the defendant. The parties sought a decision on whether the article at issue was a comment piece, in which case the defendant could plead fair comment, or one asserting fact, in which case that defence would not . .
Cited – Nilsen, Regina (on the Application of) v Governor of HMP Full Sutton and Another Admn 19-Dec-2003
The prisoner complained that having written an autobiography, the manuscript materials had been withheld, and that this interfered with his rights of freedom of expression.
Held: Such an action by the prison authorities was not incompatible . .
Cited – Lowe v Associated Newspapers Ltd QBD 28-Feb-2006
The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
Held: To claim facts in aid of a defence of fair . .
Cited – Spiller and Another v Joseph and Others SC 1-Dec-2010
The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
Held: The defendants’ appeal succeeded, and the fair . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165781
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Violation of Art. 11; Not necessary to examine Arts. 9, 10 or 14; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award
[1999] ECHR 139, 23885/94
Updated: 04 June 2022; Ref: scu.165788
ECHR Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion); Violation of Art. 6-1+6-3-c; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
25878/94, [2000] ECHR 63
Human Rights
Updated: 04 June 2022; Ref: scu.165816
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 2 in respect of failure to protect life; Violation of Art. 2 in respect of ineffective investigation; Not necessary to examine Art. 10; Violation of Art. 13; Not necessary to examine Art. 14; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
The applicant relied inter alia on article 2 and complained that his brother had been killed by or with the connivance of the security forces. The court considered whether the authorities did all that could reasonably be expected of them to avoid the risk to the brother’s life.
Held: There had been ‘an absence of any operational measures of protection’. This was despite the fact that the Government disputed that it could have effectively provided protection against attacks. A wide range of measures was available which would have ‘assisted in minimising the risk’ to the brother’s life, and the authorities had failed to take reasonable measures available to them to prevent a real and immediate risk to the brother’s life. Accordingly, there had been a violation of article 2.
(2000) 33 EHRR 58, [2000] ECHR 127, 22492/93, [2000] ECHR 128
European Convention on Human Rights 2
Cited – Sarjantson v Humberside Police CA 18-Oct-2013
The claimant had been severely injured in an attack by a group of young men. He said that the defendant had failed in its duty to protect him and his family. He now appealed against the action being struck out.
Held: the judge’s interpretation . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165844
The court modified the approach taken in earlier decisions, that there are excluded from the scope of article 6(1) disputes raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities.
28541/95, ECHR 1999-II, (2001) 31 EHRR 52, [1999] ECHR 140
European Convention on Human Rights 6(1)
Applied – Devlin v The United Kingdom ECHR 30-Oct-2001
National Security Certificates issued in Northern Ireland which had the effect of preventing his making a claim of discrimination, was disproportionate. The Act guaranteed person’s a right not to be discriminated for religious belief or political . .
Cited – Matthews v The Ministry of Defence QBD 22-Jan-2002
The claimant sought damages for asbestos related diseases, incurred whilst working as an engineer in the Royal Navy. He claimed that the bar on claiming against the Crown infringed his rights to a remedy. The 1987 Act removed the bar to a claim, but . .
Cited – Meerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165789
The defendants had been required to enter into a recognisance to be of good behaviour after disrupting a hunt by blowing of a hunting horn. They were found to have unlawfully caused danger to the dogs. Though there had been no breach of the peace, they had acted contrac bonos mores. They complained that the offence was insufficiently precise as to allow them to know what was required.
Held: The case concerned an interference with freedom of expression which was not expressed to be a ‘sanction’, or punishment, for behaviour of a certain type, but rather an order, imposed on the applicants, not to breach the peace or behave contra bonos mores in the future. Conduct contra bonos mores is defined as behaviour which is ‘wrong rather than right in the judgment of the majority of contemporary fellow citizens’ The offence lacked the quality of being ‘prescribed by law’ and infringed article 10.
Wildhaber P
(1999) 30 EHRR 241, 25594/94, [1999] ECHR 133, [2000] Crim LR 185, 8 BHRC 104
European Convention on Human Rights 10 11, Justices of the Peace Act 1361
Human Rights
Cited – Regina v County Quarter Sessions Appeals Committee ex parte Metropolitan Police Commissioner 1948
A breach of the peace does not constitute a criminal offence. . .
Cited – Regina v Howell (Errol) CACD 1981
The court considered the meaning of the legal concept of a breach of the peace.
Held: The essence is to be found in violence or threatened violence. ‘We entertain no doubt that a constable has a power of arrest where there is reasonable . .
Cited – Percy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .
Cited – Rex v Sandbach, ex parte Williams KBD 1935
The Court rejected the view that a person could not be bound over to be of good behaviour when there was no reason to apprehend a breach of the peace. As in the case of binding over to keep the peace, there had to be some reason to believe that . .
Cited – Regina v Nicol and Selvanayagam QBD 10-Nov-1995
The appellants appealed a bind-over for a finding that each appellant had been guilty of conduct whereby a breach of the peace was likely to be occasioned. The appellants, concerned about cruelty to animals, had obstructed an angling competition by . .
Cited – Hughes v Holley 1988
Lord Justice Glidewell said that behaviour contra bonos mores meant ‘conduct which has the property of being wrong rather than right in the judgment of the majority of contemporary fellow citizens.’ . .
Cited – Regina v Ayu CCA 1959
It is not open to the justices to attach specific conditions to a binding-over order. . .
Cited – Goodlad v Chief Constable of South Yorkshire 1979
Magistrates may not attach particular conditions to a requirement that a defendant be bound over to be of good behaviour. . .
Cited – Regina v Ghosh CACD 5-Apr-1982
The defendant surgeon was said to have made false claims for payment for operations, and was charged under the 1968 Act. He claimed to have been entitled to the sums claimed, and denied that he had been dishonest. The court considered the meaning of . .
Cited – Rekvenyi v Hungary ECHR 20-May-1999
Hudoc Grand Chamber – No violation of Art. 10; No violation of Art. 11; No violation of Art. 14+10; No violation of Art. 14+11 Reports of Judgments and Decisions 1999-III
The level of precision required of . .
Cited – Chorherr v Austria ECHR 25-Aug-1993
The applicant was one of two arrested demonstrating against the Austrian armed forces at a military parade. They had rucksacks on their backs, with slogans on them. The rucksacks were so large that they blocked other spectators’ view of the parade. . .
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 – Regina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
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. . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
See Also – Hashman and Harrup v The United Kingdom ECHR 14-Sep-2011
Grand Chamber – Execution of the judgment . .
Cited – Howarth v Commissioner of Police of The Metropolis QBD 3-Nov-2011
The claimant sought judicial review of a decision to search him whilst travelling to a public protest in London. A previous demonstration involving this group had resulted in criminal damage, but neither the claimant nor his companions were found to . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165782
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Not necessary to examine Art. 14+10; Pecuniary damage – claim rejected; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings
The rights in article 10 include the right to choose not just the content of what is to be expressed but also the form of such expression: ‘The Court recalls that it is not for the Court, or for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed.’
E Palm, P
[2000] ECHR 5, 31457/96, (2001) 31 EHRR 8
Updated: 04 June 2022; Ref: scu.165803
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was breached insofar as the prosecution had themselves sought to make that assessment without judicial involvement. Disclosure at a later stage on appeal was not a sufficient remedy, since the task of the appellate court was different. Nevertheless if the judge had been given some involvement, a necessary withholding could be proper. The court recognised that it was a ‘fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6(1) requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused’ but ‘the European Court’s task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused’.
Wildhaber P
Times 01-Mar-2000, 28901/95, (2000) 30 EHRR 441, (2000) 30 EHHR 1, (2000) 30 EHRR 480, [2000] ECHR 90
European Convention on Human Rights 5 6.1
Conjoined Hearing – Fitt v United Kingdom ECHR 16-Feb-2000
(Grand Chamber) Complaint as to non-disclosure of prosecution evidence. . .
Conjoined Hearing – Rowe and Davis v The United Kingdom ECHR 16-Feb-2000
(Grand Chamber) Complaint as to non-disclosure of prosecution evidence. . .
Conjoined Hearing – Amann v Switzerland ECHR 16-Feb-2000
(Grand Chamber) Complaint as to non-disclosure of prosecution evidence.
Held: The holding and use of the information in question had not been ‘in accordance with the law’, as required by article 8(2), because of the absence from the relevant . .
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 – Dowsett v The United Kingdom ECHR 24-Jun-2003
The applicant had been convicted along with others of a murder. He now alleged that the police had refused to disclose evidence which would have supported his defence. Some had been disclosed but some still withheld on public interest grounds by the . .
Cited – Edwards and Lewis v The United Kingdom ECHR 22-Jul-2003
(Commission) The claimants said that the procedures used to secure their convictions amounted to entrapment, and that UK criminal procedures did not give sufficient protection so as to provide a fair trial. One was arrested with heroin, and the . .
Cited – Regina v H; Regina v C CACD 16-Oct-2003
The defendants were charged with serious drugs offences. The prosecutor had applied for public interest immunity certificates. The judge had required the appointment of independent counsel. The prosecutor appealed.
Held: The same district . .
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.
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – Regina v Lewis CACD 6-Apr-2005
The defendant had been convicted under the 1981 Act. The European Court of Human Rights had found that police officers had infringed his human rights by their entrapment of him into offering them counterfeit currency. He now appealed his conviction. . .
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 . .
Cited – Sinclair v Her Majesty’s Advocate PC 11-May-2005
(Devolution) The defendant complained that the prosecutor had failed to disclose all the witness statements taken, which hid inconsistencies in their versions of events.
Held: The appeal was allowed. It was fundamental to a fair trial that the . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – 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 – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Cited – Regina v Sargent HL 25-Oct-2001
When a telephone engineer used his position to make unauthorised telephone intercepts, and produced apparent evidence of criminal activity, he was, under the Act, a person engaged in providing a public communications system, and the recordings were . .
Cited – Secretary of State for the Home Department v AF AM and AN etc CA 17-Oct-2008
The claimants were subject to non-derogating control orders, being non EU nationals suspected of terrorism. They now said that they had not had a compatible hearing as to the issue of whether they were in fact involved in terrorist activity.
Cited – Smith v Director of Public Prosecutions Admn 30-Jan-2007
The defendant appealed his conviction for driving with excess alcohol, arguing that the prosecution had failed to provide the roadside breath test figures.
Held: The appeal failed, and was indeed hopeless. Pill LJ said: ‘The specimens of . .
Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
Cited – Kennedy v United Kingdom ECHR 18-May-2010
The claimant complained that after alleging unlawful interception of his communications, the hearing before the Investigatory Powers Tribunal was not attended by appropriate safeguards. He had been a campaigner against police abuse. His requests to . .
Conjoined Hearing – Amann v Switzerland ECHR 16-Feb-2000
(Grand Chamber) Complaint as to non-disclosure of prosecution evidence.
Held: The holding and use of the information in question had not been ‘in accordance with the law’, as required by article 8(2), because of the absence from the relevant . .
Conjoined Hearing – Rowe and Davis v The United Kingdom ECHR 16-Feb-2000
(Grand Chamber) Complaint as to non-disclosure of prosecution evidence. . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165820
ECHR Judgment (Merits and just satisfaction) Violation of Art. 10; Violation of Art. 13; Not necessary to examine Art. 6-1; Not necessary to examine Art. 14+10; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings
[1999] ECHR 107, 28396/95
Updated: 04 June 2022; Ref: scu.165773
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings
The Commission had found a violation of article 8 where the prison had opened a number of letters, probably not deliberately, but repeatedly. This amounted to an interference with the applicant’s right to respect for his correspondence within the meaning of article 8 and the court awarded 5,000 French francs by way of compensation.
Bratza P
[1999] ECHR 173, 34821/97
European Convention on Human Rights 8
Human Rights
Cited – Bruton v The Governor of HMP Swaleside and Another Admn 19-Apr-2017
The prisoner complained that his protected correspondence had been wrongfully opened by prison staff. Despite a finding in his favour by the Prisons Ombudsman, the service had repeatedly failed either to change its behaviour or to apologise.
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165805
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 3 with regard to alleged ill-treatment; Violation of Art. 3 with regard to lack of effective investigation; No violation of Art. 3 with regard to conditions of transfer; Violation of Art. 5-3; Violation of Art. 5-1; Violation of Art. 8; Not necessary to examine Art. 6-3; Violation of P4-2; Violation of P1-3; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings.
Where the authorities detain a suspect for a lengthy period before trial, they must show special diligence in the conduct of the proceedings to justify continued detention. Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and of the victim’s behaviour.
26772/95, [2000] 119 ECHR 2000 IV, [2000] ECHR 160, [2000] ECHR 161
European Convention on Human Rights 3
Cited – Al Akidi v Bulgaria ECHR 31-Jul-2003
The applicant asserted infringement of his rights by virtue of his detention before trial. He was arrested and detained in 1993, but his case was not concluded until 1997, with appeals running through to 1997.
Held: Suspicion is a sine qua non . .
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 – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165854
ECHR Judgment (Merits and just satisfaction) Violation of Art. 14+P1-1; Not necessary to examine Art. 14+8; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings
34406/97, [2000] ECHR 48, (2006) 42 EHRR 9
Human Rights
Cited – Hand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165807
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not definitive, as is evidenced by the adverb notamment (in English: ‘any ground such as’) . . the [national] Appeal Court used a distinction dictated by considerations relating to the applicant’s sexual orientation, a distinction which cannot be tolerated under the Convention. Discrimination based on sexuality was covered by the in article 8 prohibition, not because ‘sex’ includes ‘sexuality’ but because the list is not exhaustive.
(1999) 31 EHRR 1055, (2001) 31 EHRR 47, 33290/96, [1999] ECHR 176, [2001] 1 FCR 653
European Convention on Human Rights 14
Human Rights
See also – Salgueiro da Silva Mouta v Portugal ECHR 1-Dec-1998
A homosexual claimed that an award of custody of his daughter to her mother was an unjustified interference with his right to respect for family life, and also with his right to respect for his private life since he was required in respect of his . .
Cited – Ghaidan v Godin-Mendoza CA 5-Nov-2002
The applicant sought to succeed to the tenancy of his deceased homosexual partner as his partner rather than as a member of his family.
Held: A court is bound by any decision within the normal hierachy of domestic authority as to the meaning . .
Mentioned – 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: . .
See also – Salgueiro da Silva Mouta v Portugal ECHR 1-Dec-1998
A homosexual claimed that an award of custody of his daughter to her mother was an unjustified interference with his right to respect for family life, and also with his right to respect for his private life since he was required in respect of his . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Cited – Rodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
Cited – Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales and Another ChD 17-Mar-2010
The charity appealed against refusal of permission to amend its charitable objects as set out in the memorandum of association. The charity was successful as an adoption agency particularly in placing children who would otherwise have had difficulty . .
Cited – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165806
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses award – Convention proceedings
[1999] ECHR 138, 38952/97
Updated: 04 June 2022; Ref: scu.165790
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
A conclusion that a mental disorder is of such a kind or degree as to warrant compulsory confinement can only be justified if other, less severe measures, have been considered and found to be insufficient to safeguard the person of unsound mind.
[2000] ECHR 140, 26629/95, [2000] ECHR 141
European Convention on Human Rights 5(1)(e)
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.
Updated: 04 June 2022; Ref: scu.165850
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings
[1999] ECHR 136, 22811/93
Human Rights
Updated: 04 June 2022; Ref: scu.165792
ECHR Judgment (Merits and just satisfaction) Preliminary objection joined to merits; Preliminary objection rejected; Violation of Art. 5-3; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses partial award – Convention proceedings Reports of Judgments and Decisions 1999-III
25642/94, [1999] ECHR 21
Human Rights
Updated: 04 June 2022; Ref: scu.165702
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 10; Preliminary objection rejected (non-exhaustion, estoppel); Violation of Art. 6-1; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings
[1999] ECHR 53, 24735/94
Updated: 04 June 2022; Ref: scu.165717
A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically of the hunting association so that they could now hunt over other land also subject to the same new access provision. There was also some compensation for those who thereby had lost a source of actual income.
Held: The law made no provision for those wishing to prevent use of their lands for hunting. There was an interference with the right to use property and ccordingly had to decide whether, in the absence of compensation for those opposed to hunting over their land, the control of use was disproportionate. ‘In conclusion, notwithstanding the legitimate aims of the Loi Verdeille when it was adopted, the Court considers that the result of the compulsory-transfer system which it lays down has been to place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified under the second paragraph of Article 1 of Protocol No. 1. There has therefore been a violation of that provision.’ There was unjustified discrimination in that large landowners did have the right to object to their land being used in that way and so only those who had larger holdings were entitled to use their land in accordance with their conscience.
Wildhaber P
25088/94, (1999) 29 EHRR 615, 28331/95, [1999] ECHR 22, 28443/95
European Convention on Human Rights 814
Human Rights
Cited – Adams and Others v Lord Advocate IHCS 31-Jul-2002
(Opinion) The applicants challenged the introduction of restrictions of hunting by foxes, arguing that the law would infringe their human rights.
Held: The Act was not infringing. Fox hunting as such was not a private activity protected by the . .
Cited – Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
Cited – Whitmey, Regina (on the Application of) v the Commons Commissioners CA 21-Jul-2004
The applicant sought to leave to appeal against refusal of his challenge to the registration of land as a green.
Held: The 1965 Act did not limit the registration of greens to those which were registered by 3 January 1970. The Commons . .
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 – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – Connolly v Director of Public Prosecutions Admn 15-Feb-2007
The defendant appealed against her conviction under the Act for having sent indecent or grossly offensive material through the post in the form of pictures of an aborted foetus sent to pharmacists. She denied that they were offensive, or that she . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – John v Germany ECHR 2006
The court considered the operation of post-reunification German land re-organisation: ‘The Court reiterates that an interference with the peaceful enjoyment of possessions must strike a ‘fair balance’ between the demands of the general interest of . .
Cited – Cusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165704
Member states have obligations to ensure that citizens of each state were given opportunity to vote in European elections. Britain failed to give the vote to its citizens in Gibraltar in breach of the convention right to participate in free elections. The European Parliament is for these purposes a legislature within the meaning of A3P1
Hudoc Judgment (Merits and just satisfaction) Violation of P1-3; Not necessary to examine Art. 14+P1-3; Costs and expenses partial award – Convention proceedings Reports of Judgments and Decisions 1999-I
Times 03-Mar-1999, 24833/94, [1999] ECHR 12, (1999) 28 EHRR 361, [2011] ECHR 1895
European Convention on Human Rights Art 3 Protocol 1
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165694
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
34884/97, ECHR 1999-V, ss 30, [1999] ECHR 62, [1999] ECHR 62
Human Rights
Cited – MC v Italy ECHR 19-Dec-2002
ECHR Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165737
Hudoc Grand Chamber – No violation of Art. 10; No violation of Art. 11; No violation of Art. 14+10; No violation of Art. 14+11 Reports of Judgments and Decisions 1999-III
The level of precision required of domestic legislation 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: ‘whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.’
Lawfulness ‘implies qualitative requirements in the domestic law such as foreseeability and, generally, an absence of arbitrariness’.
[1999] ECHR 31, 25390/94
Worldlii, Bailii, Bailii, Bailii
European Convention on Human Rights
Human Rights
Cited – Hashman and Harrup v The United Kingdom ECHR 25-Nov-1999
The defendants had been required to enter into a recognisance to be of good behaviour after disrupting a hunt by blowing of a hunting horn. They were found to have unlawfully caused danger to the dogs. Though there had been no breach of the peace, . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165713
Hudoc Judgment (Merits and just satisfaction) Preliminary objection joined to merits; Preliminary objection rejected; Violation of Art. 5-3; Not necessary to examine Art. 5-4; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses partial award – Convention proceedings
25644/94, [1999] ECHR 23
Human Rights
Updated: 04 June 2022; Ref: scu.165703
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Not necessary to examine Art. 8; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings Reports of Judgments and Decisions 1999-I
[1999] ECHR 10, 33158/96
Updated: 04 June 2022; Ref: scu.165695
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Not necessary to examine Art. 14+10; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
[1999] ECHR 44, 23556/94
Updated: 04 June 2022; Ref: scu.165743
(Grand Chamber) The claimant had been detained for long periods after coming under suspicion of theft of large sums. Her detention had initially been ordered by prosecutors. Her initial appeals against her detention were also decided by prosecutors. After three weeks she appealed to a court, which refused her appeal about four weeks later. It confined its consideration to the question whether she had been charged with a serious crime and whether her medical condition required that she be released. It did not consider the applicant’s arguments that she was unlikely to abscond or to interfere with the investigation. The case was examined in camera and without the participation of the parties, and the court considered written comments from the prosecutor to which the applicant had no opportunity to respond.
Held: The claimant’s human rights had been violated. The bail hearings, having been held in a closed court did not satisfy the claimant’s article 5(4) rights, and furthermore, the onus was on the claimant to establish that she was to be given bail: ‘Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.’ The proceedings before the domestic court were not truly adversarial and did not ensure equality of arms, and the court had failed to consider the applicant’s contentions.
Nevertheless in the particular circumstances, a declaration was sufficient satisfaction.
Dissenting as to the assessment of damages, Judge Bonello said: I do not share the Court’s view. I consider it wholly inadequate and unacceptable that a Court of Justice should ‘satisfy’ the victim of a breach of fundamental rights with a mere handout of legal idiom. The first time the Court appears to have resorted to this hapless formula was in the Golder case of 1975 . . Disregarding its own practice that full reasoning should be given for all decisions, the Court failed to suggest one single reason why the findings should also double up as the remedy. Since then, propelled by the irresistible force of inertia, that formula has resurfaced regularly. In view of the many judgments which relied on it did the Court seem eager to upset the rule that it has to give neither reasons nor explanations’.
L Wildhaber P
[1999] ECHR 16, 31195/96, (2001) 31 EHRR 64
European Convention on Human Rights 5(4)
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
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 . .
Cited – Sturnham v Secretary of State for Justice CA 23-Feb-2012
The claimant life sentence prisoner had inter alia been detained after the expiry of his tarriff pending a review of whether his continued detention was required for public protection. That review had been delayed, and the claimant was awarded . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165709
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 3; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings
The claimant said that he had been severely beaten whilst detained in police custody for interview.
Held: ‘Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment . . Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15(2) even in the event of public emergency threatening the life of the nation . . In order to determine whether a particular form of ill-treatment should be qualified as torture, the court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As the European Court has previously found, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering . . The acts complained of [in Selmouni] were such as to arouse in the applicant feelings of fear, anguish, and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. The court therefore finds elements which are sufficiently serious as to render such treatment inhuman and degrading . . In any event, the court reiterates that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 . .
The court has previously examined cases in which it concluded that there had been treatment which could only be described as torture . . However, having regard to the fact that the Convention is a ‘living instrument which must be interpreted in the light of present-day conditions’, the court considers that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future . . It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.’
L Wildhaber, P
(1999) 29 EHRR 403, 25803/94, [1999] ECHR 66, (2000) 7 BHRC 1
European Convention on Human Rights 3
Cited – Selmouni v France ECHR 25-Nov-1996
. .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
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 – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Judgment – Selmouni v France ECHR 3-Dec-2009
Execution of judgment . .
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.
Updated: 04 June 2022; Ref: scu.165752
Hudoc Violation of Art. 6-1 by reason of lack of fair hearing; Violation of Art. 6-1 by reason of refusal of right of access to court; Violation of P1-1; Just satisfaction reserved
[1999] ECHR 105, 28342/95
European Convention on Human Rights
See Also – Brumarescu v Romania ECHR 23-Jan-2001
. .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165772
ECHR Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings
[1998] ECHR 34, 31648/96
Updated: 04 June 2022; Ref: scu.165617
ECHR Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Violation of P1-1; Not necessary to examine Art. 8; Not necessary to examine Art. 13; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings
[1998] ECHR 42, 27053/95
Human Rights
Updated: 04 June 2022; Ref: scu.165629
An allegation of violence by a police officer did require a thorough, impartial and careful investigation by a suitable and independent state authority: ‘The court considers that in these circumstances, where an individual raises an arguable claim that he has been seriously ill treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in . . [the] Convention’, requires by implication that there should be an effective official investigation. This obligation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible . . If this were not the case the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.’
24760/94, (1998) 28 EHRR 652, [1998] ECHR 98
Human Rights
Cited – Regina v Police Complaints Authority ex parte Green HL 26-Feb-2004
Discovery was sought of statements created during the investigation of a complaint against a police officer. The claimant argued that a police officer had deliberately driven his car at him.
Held: The investigation by a separate police force . .
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 – Secretary of State for the Home Department v JN CA 14-May-2008
The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165674
The presumption of innocence is one of the elements of the fair criminal trial required by article 6(1). Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); No violation of Art. 6-1; No violation of Art. 6-2
[1998] ECHR 31, 22885/93, (1998) 30 EHRR 808
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.
Updated: 04 June 2022; Ref: scu.165620
The restriction on local government officers and other against some political activities were not an infringement of their human rights and fell within the requirements for free expression and for free elections
‘The Court recalls that in its above-mentioned Vogt judgment (pp. 25-26, – 52) it articulated as follows the basic principles laid down in its judgments concerning Article 10:
(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any exceptions must be convincingly established.
(ii) The adjective ‘necessary’, within the meaning of Article 10 – 2 implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it is ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts.’
Times 02-Oct-1998, 22954/93, [1998] ECHR 78
European Convention on Human Rights 10, Local Government Officers (Political Restrictions) Regulations 1990
Approved – Vogt v Germany ECHR 1-Nov-1995
The German courts construed a teacher’s duty of loyalty as absolute and owed equally by every civil servant, regardless of his or her function and rank under national law. Every civil servant, whatever his or her own opinion on the matter, must . .
Cited – Lord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165668
Hudoc Judgment (Just satisfaction) Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings; Costs and expenses award – domestic proceedings
[1998] ECHR 15, 12718/87
Human Rights
Cited – Clooth v Belgium ECHR 12-Dec-1991
Hudoc Violation of Art. 5-3; Just satisfaction reserved . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165595
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); No violation of Art. 2; Violation of Art. 2 (effective investigation); Violation of Art. 13; Not necessary to examine Art. 10; Not necessary to examine Art. 14; Not necessary to examine Art. 18; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
22495/93, [1998] 28 EHRR 408, [1998] ECHR 83
European Convention on Human Rights 2(1)
Human Rights
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Reynolds, Regina (on the Application of) v Independent Police Complaints Commission and Another CA 22-Oct-2008
The court was asked to consider whether the IPCC could investigate the circumstances leading to the arrest of a suspect who fell into a coma after being arrested for being drunk. The IPCC appealed, saying that it did not have jurisdiction to . .
Cited – Secic v Croatia ECHR 31-May-2007
The applicant had been attacked and beaten by skinheads shouting racial abuse. He complained that as a Roma, the police had failed through race discrimination properly to investigate his complaint.
Held: The court repeated the statement that . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165653
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1+6-3-c; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings Reports of Judgments and Decisions 1999-I
[1999] ECHR 5, 26103/95
Updated: 04 June 2022; Ref: scu.165683
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 11; Not necessary to examine Art. 9; Not necessary to examine Art. 10; Not necessary to examine Art. 14; Not necessary to examine Art. 18; Not necessary to examine P1-1; Not necessary to examine P1-3; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings.
‘Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘necessary in a democratic society’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘democratic society’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.’
[1998] ECHR 1, 19392/92, [1998] 26 EHRR 121, [1998] HRCD 247, 4 BHRC 1
European Convention on Human Rights 8 9 10 11
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Cited – Regina v F CACD 16-Feb-2007
The defendant was charged with offences for having been in possession of a document or record containing information of a kind ‘likely to be useful to a person committing or preparing an act of terrorism’. It was thought he was associated with a . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165590
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
[1998] ECHR 32, 26256/95, [1998] ECHR 32
Updated: 04 June 2022; Ref: scu.165619
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 (access to court); Violation of Art. 6-1 (length of proceedings); Non-pecuniary damage – financial award; Pecuniary damage – financial award
[1998] ECHR 104, 38212/97
Human Rights
Updated: 04 June 2022; Ref: scu.165685
The court had no jurisdiction to consider allegations not raised before the commission or predating a country’s accession to the convention. There was no breach in a failure to record an exposure to radiation in a test. Article 2 imposes substantive obligations not to take life without justification and to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.
Hudoc Lack of jurisdiction (new complaint) (Art. 2); No violation of Art. 2; No violation of Art. 3; Lack of jurisdiction (new complaint) (Art. 8, Art. 13); Not necessary to examine Art. 8
Times 15-Jun-1998, 14/1997/798/1001, (1998) 27 EHRR 212, 23413/94, [1998] ECHR 49, [1998] ECHR 49, [1995] ECHR 101
European Convention on Human Rights 2
Human Rights
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – 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.
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165640
Mr De Castro had been the target of an unwarranted, unauthorised, unsupervised police operation in which undercover officers incited him to supply drugs. He challenged a conviction for trafficking in heroin, based mainly on statements of two police officers.
Held: The necessary inference from the circumstances was that these officers had ‘exercised an influence such as to incite the commission of the offence’. The court concluded there had been a violation of the applicant’s right to a fair trial under article 6(1). ‘The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. .’
25829/94, [1998] 28 EHRR 101, [1998] ECHR 52
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – 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 . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Regina v P and others HL 19-Dec-2000
Where communications had been intercepted in a foreign country, and the manner of such interceptions had been lawful in that country, the evidence produced was admissible in evidence in a trial in England. An admission of such evidence was not an . .
Cited – Regina v Moore and Another CACD 13-Feb-2013
The appellants said that they had been entrapped into committing the offences of which they stood convicted. Their applications for stay on the ground of abuse of process had been rejected.
Held: The appeal failed.
Rix Lj said: ‘the . .
Cited – Regina v Looseley (orse Loosely); Attorney General’s Reference No 3 of 2000 HL 25-Oct-2001
Police Entrapment is no defence to Criminal Act
The defendant complained of his conviction for supplying controlled drugs, saying that the undercover police officer had requested him to make the supply.
Held: It was an abuse of process for the police to go so far as to incite a crime.
Cited – Palmer and Others v Regina CACD 7-Aug-2014
Three defendants appealed against convictions for selling stolen goods, saying that the police had used entrapment. The officers had established a shop at which thieves might expect to sell goods. Each defendant had pleaed guilty after a ruling . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165622
ECHR Preliminary objection joined to merits (non-exhaustion); No violation of Art. 3; No violation of Art. 5-1; No violation of Art. 8; No violation of Art. 18; No violation of P1-1; Not necessary to examine Art. 6-1; No violation of Art. 13; Not necessary to examine preliminary objection (non-exhaustion)
[1998] ECHR 43, 22275/93
Updated: 04 June 2022; Ref: scu.165626
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings.
[1998] ECHR 62, 25554/94
Human Rights
Updated: 04 June 2022; Ref: scu.165648
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.’
In this case article 8 was not applicable: ‘The right asserted . . to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant’s private life.’ Positive obligations to comply with article 8 may arise where there is a ‘direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life. Recognised instances include circumstances where the criminal law is required to offer protection for family life against particular dangers.’
21439/93, [1998] ECHR 12, [1996] ECHR 83
European Convention on Human Rights 8
See Also – Botta v Italy ECHR 15-Jan-1996
. .
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 – 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 – Zehnalova and Zehnal v Czech Republic ECHR 14-May-2002
The applicants were husband and wife and the wife was physically handicapped. They complained that their Article 8 rights were infringed because, in breach of Czech law, the authorities had failed to install facilities that would enable her to gain . .
Cited – X v Y (Employment: Sex Offender) CA 28-May-2004
The claimant had been dismissed after it was discovered he had been cautioned for a public homosexual act. He appealed dismissal of his claim saying that the standard of fairness applied was inappropriate with regard to the Human Rights Act, and . .
Cited – X, A Woman Formerly Known As Mary Bell v Stephen O’Brien, News Group Newspapers Ltd MGN Ltd QBD 21-May-2003
An injunction effective against the world, was granted to restrain any act to identify the claimant in the media, including the Internet. She had been convicted of murder when a child, and had since had a child herself. An order had been granted . .
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 – Secretary of State for the Home Department v Hindawi and Headley CA 13-Oct-2004
The applicant was a foreign national serving a long-term prison sentence. He complained that UK nationals would have had their case referred to the parole board before his.
Held: The right to be referred to the parole board was a statutory . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
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 – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – McDonald, Regina (on The Application of) v Royal Borough of Kensington and Chelsea SC 6-Jul-2011
The claimant, a former prima ballerina, had suffered injury as she grew old. She came to suffer a condition requiring her to urinate at several points during each night. The respondent had been providing a carer to stay with her each night to . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165599
In some fields of law legal rules may not be laid down with total precision. Undue delay in child contact proceedings may have irreversible effects upon the child.
[1998] ECHR 46, 22430/93, (1998) 33 EHRR 81
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 . .
Cited – NJDB v JEG and Another SC 23-May-2012
Mother and father disputed whether the father should be allowed contact with their child S. Court orders had been made for residential and non-residential contact, but there were difficulties and the order for contact was reversed on the basis that . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165623
The applicant, an AIDS sufferer, resisted his removal to St Kitts where lack of medical treatment would hasten his death.
Held: The deportation of a convicted person suffering from Aids to a country with less care facilities was inhuman or degrading treatment. ‘In its Vilvarajah and Others judgment and its Soering judgment the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 in the contexts of deportation and extradition. It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.
The applicant maintained that the effectiveness of the remedy invoked first before the High Court and subsequently before the Court of Appeal was undermined on account of their failure to conduct an independent scrutiny of the facts in order to determine whether they disclosed a real risk that he would be exposed to inhuman and degrading treatment. He relied on the reasoning in the Chahal v United Kingdom judgment. However the Court notes that in that case the domestic courts were precluded from reviewing the factual basis underlying the national security considerations invoked by the Home Secretary to justify the expulsion of Mr Chahal. No such considerations arise in the case at issue.’
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Not necessary to examine Art. 2; Not necessary to examine Art. 8; No violation of Art. 13; Costs and expenses partial award – Convention proceedings
Times 12-May-1997, (1997) 2 BHRC 273, 146/1996/767/964, (1997) 24 EHRR 423, 30240/96, [1997] ECHR 25, (1998) 42 BMLR 149
European Convention on Human Rights Art 3
Cited – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – TN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165491
(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 affected population details of known pollution risks could amount to breach of their human rights: ‘The Court considers that Italy cannot be said to have ‘interfered’ with the applicants’ private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life’ and
‘The Court reiterates that severe environmental pollution may affect individuals’ well being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely . . The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants’ right to respect for their private and family life, in breach of Article 8 of the Convention.’
As to Article 10: ‘The Court reiterates that freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, ‘basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him’. That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion.’
In conclusion, Article 10 is not applicable in the instant case.’
Gazette 20-May-1998, 14967/89, (1998) 26 EHRR 357, [1998] ECHR 7
European Convention on Human Rights 8 810
Cited – Lopez Ostra v Spain ECHR 9-Dec-1994
A waste treatment plant was built close to the applicant’s home in an urban location and the plant released fumes and smells which caused health problems to local residents.
Held: A duty exists to take reasonable and appropriate measures to . .
Applied – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – 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 . .
Cited – Lough and others v First Secretary of State Bankside Developments Ltd CA 12-Jul-2004
The appellants challenged the grant of planning permission for neighbouring land. They sought to protect their own amenities and the Tate Modern Gallery.
Held: The only basis of the challenge was under article 8. Cases established of a breach . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – Times Newspapers Ltd (Nos. 1 And 2) v The United Kingdom ECHR 10-Mar-2009
The applicant alleged that the rule under United Kingdom law whereby each time material is downloaded from the Internet a new cause of action in libel proceedings accrued (‘the Internet publication rule’) constituted an unjustifiable and . .
Cited – Bryant and Others, Regina (on The Application of) v The Commissioner of Police of The Metropolis Admn 23-May-2011
Several claimants sought leave to bring judicial review of decisions taken by the defendant in the investigation of suggestions that their telephone answering systems had been intercepted by people working for the News of the World. They said that . .
Cited – Kennedy v Charity Commission CA 20-Mar-2012
The claimant sought disclosure of an investigation conducted by the respondent. The respondent replied that the material was exempt within section 32(2). The court had found that that exemption continued permanently even after the inquiry was . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165586
Mr Johnson awaited trial for crimes of violence. He was diagnosed mentally ill, and on conviction made subject to a hospital order, and restricted without limit of time. He made progress, but was not discharged or re-classified. At a fourth tribunal hearing in June 1989 the opinion was that he was no longer suffering from mental illness but needed supervision if released. He was ordered for conditional discharge, subject to psychiatric supervisiona residence. His discharge was deferred until for accommodation to be found. It was not found. In 1990, he sought an absolute discharge, but the tribunal again directed a conditional discharge until suitable accommodation was found. A trial in another hospital unsuccessful and he was returned to Rampton. Another review repeated the same order. At a final review in 1993, the tribunal ordered his absolute discharge on the basis that he ‘is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled for further treatment’. Mr Johnson was accordingly released from hospital. He first contended was that the tribunal should have ordered his immediate and unconditional release. The Court rejected this contention, recognising the desirability of rehabilitation in the community and found no violation in the imposition of conditions to that end. Mr Johnson’s alternative submission was that conditions must not hinder immediate or near immediate release and certainly not delay it excessively as had occurred in this case. This argument succeeded. ‘It is however of paramount importance that appropriate safeguards are in place so as to ensure that any deferral of discharge is consonant with the purpose of Article 5(1) and with the aim of the restriction in [Article 5(1)] sub-paragraph (e) and, in particular, that discharge is not unreasonably delayed.’ The Court drew attention to the absence of power in the tribunal or the authorities to ensure that the conditions could be implemented within a reasonable time, and to the 12-monthly interval between tribunal reviews, and concluded: ‘In these circumstances it must be concluded that the imposition of the hostel residence condition by the June 1989 Tribunal led to the indefinite deferral of the applicant’s release from Rampton Hospital especially since the applicant was unwilling after October 1990 to co-operate further with the authorities in their efforts to secure a hostel, thereby excluding any possibility that the condition could be satisfied. While the 1990 and 1991 Tribunals considered the applicant’s case afresh, they were obliged to order his continued detention since he had not yet fulfilled the terms of the conditional discharge imposed by the June 1989 Tribunal. Having regard to the situation which resulted from the decision taken by the latter Tribunal and to the lack of adequate safeguards including provision for judicial review to ensure that the applicant’s release from detention would not be unreasonably delayed, it must be considered that his continued confinement after 15 June 1989 cannot be justified on the basis of Article 5(1)(e) of the Convention. For these reasons the Court concludes that the applicant’s continued detention after 15 June 1989 constituted a violation of Article 5(1) of the Convention.’ The lack of a system for discharging mental patients whose treatment was no longer necessary, was a breach of the convention.
The court awarded andpound;10,000 in damages.
Times 04-Dec-1997, 22520/93, (1997) 27 EHRR 296, [1997] ECHR 88, (1998) 40 BMLR 1, [2010] ECHR 1857, [2010] ECHR 1859, [1998] HRCD 41, (1999) 27 EHRR 296
Worldlii, Bailii, Bailii, Bailii
European Convention on Human Rights 5.1
Human Rights
Cited – Regina (IH) v Secretary of State for the Home Department and Another CA 15-May-2002
The applicant was a restricted mental patient. His conditional release had been ordered, but required a consultant psychiatrist to be found who would agree to supervise him. None such could be found, and his detention continued. After two years he . .
Cited – Regina (W) v Doncaster Metropolitan Borough Council Admn 13-Feb-2003
The claimant sought damages for false imprisonment. The mental health tribunal had ordered his release, but the respondent had delayed that release.
Held: False imprisonment is established on proof of imprisonment without lawful authority. An . .
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 – Regina (on the application of K) v Camden and Islington Health Authority CA 21-Feb-2001
The duty of a local authority to seek to provide resources to care for a mental patient after release into the community, is not absolute, and is subject to the limitations of the availability of a sufficient budget. A continued detention in . .
Cited – Regina v East London and the City Mental Health NHS Trust and Another ex parte Von Brandenburg (Aka Hanley) HL 13-Nov-2003
The patient was ordered to be discharged and released from hospital. The tribunal making the order had not accepted the medical recommendations. His release was deferred pending the finding of accommodation, but in the meantime, a social worker . .
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 – 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, . .
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.
Updated: 04 June 2022; Ref: scu.165568
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 their family life under article 8. The de facto ties linking X, Y and Z were sufficient to establish family life between them, but there was no infringement. ‘When deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.’
Gazette 30-Apr-1997, Times 23-Apr-1997, 21830/93, [1997] 24 EHRR 143, [1997] ECHR 20
European Convention on Human Rights Art 8
Cited – 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 . .
Cited – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Cited – Singh v Entry Clearance Officer New Delhi CA 30-Jul-2004
The applicant, an 8 year old boy, became part of his Indian family who lived in England, through an adoption recognised in Indian Law, but not in English Law. Though the adoption was genuine, his family ties had not been broken in India. The family . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165496
Captain Serves was a French officer charged in 1988 before a military court, together with a lieutenant and corporal of his company, with the murder of a civilian in the Central African Republic. In 1989 the proceedings were quashed for procedural irregularity and on 19 April 1990 fresh proceedings were commenced against the lieutenant and the corporal. The charge against Captain Serves was not reinstated until 6 May 1992 and he was convicted in May 1994. During the period while the second charges were pending only against the lieutenant and corporal, Captain Serves was summoned to appear as a witness before the military investigating judge. He refused to take the oath and was fined for failing to give evidence.
Held: Although the first proceedings had been quashed in 1989, the evidence on which that investigation was based remained on the file and Captain Serves remained ‘charged’ with murder within the meaning of Article 6(1): see para. 42. He was therefore entitled to refuse to answer any questions from the judge which might tend to incriminate him. However, he should have taken the oath, heard the questions and refused to answer rather than simply refusing to be sworn. On this ground his complaint was dismissed.
[1997] ECHR 82, 20225/92, (1997) 28 EHRR 265, [1997] ECHR 82
European Convention on Human Rights 6
Human Rights
Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165554
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 3; No violation of Art. 9; No violation of P1-2; Violation of Art. 13+P1-2; Violation of Art. 13+9; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings
A child was punished by her school for refusing to attend a National Day parade in contravention of her beliefs as a Jehovah’s Witness, to which her parents were also party.
Held: The application failed. Article 9 did not confer a right to exemption from disciplinary rules which applied generally and in a neutral manner and there had been no interference with the child’s right to freedom to manifest her religion or belief.
21787/93, [1996] ECHR 72, (1996) 24 EHRR 294, [1996] ECHR 72
European Convention on Human Rights 9
Human Rights
Cited – Regina (K) v Newham London Borough Council and Another QBD 19-Feb-2002
Parents applied for secondary school places, indicating three single sex schools. This was from a clear religious conviction. The local authority allocated another place, without giving reasons, but did provide a pamphlet setting out its policy, . .
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 – X, Regina (on the Application of) v Y School Admn 21-Feb-2007
The court was asked whether a school was entitled to refuse to allow a Muslim girl to wear the niqab full face veil at school. The reasons were ‘first educational factors resulting from a teacher being unable to see the face of the girl with a . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165480
ECHR Judgment (Merits and just satisfaction) Violation of Art. 6-1; Not necessary to examine Art. 13; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings
[1997] ECHR 28, 21522/93
Human Rights
Updated: 04 June 2022; Ref: scu.165507
ECHR Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings
[1997] ECHR 47, 22839/93
Human Rights
Updated: 04 June 2022; Ref: scu.165530
Hudoc Preliminary objection rejected (abuse of process); Preliminary objection rejected (non-exhaustion); No violation of Art. 2; No violation of Art. 6-1
25052/94, [1995] ECHR 89
Cited – Andronicou And Constantinou v Cyprus ECHR 9-Oct-1997
ECHR Cyprus – alleged unlawful killing of a young couple by officers of a special police unit (MMAD) in the course of a rescue operation
I. GOVERNMENT’S PRELIMINARY OBJECTIONS
A. Non-exhaustion of . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165556
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings
21802/93, [1997] ECHR 11
Human Rights
Updated: 04 June 2022; Ref: scu.165484
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (six month period); Violation of Art. 6-1; Not necessary to examine Art. 14+6-1; Not necessary to examine Art. 13+6-1; Non-pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient; Costs and expenses – claim rejected
[1997] ECHR 86, 24628/94
Updated: 04 June 2022; Ref: scu.165570
ECHR Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); No violation of Art. 5-1; Violation of Art. 5-3; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings
[1996] ECHR 71, 21335/93
Human Rights
Updated: 04 June 2022; Ref: scu.165479
ECHR Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Not necessary to examine Art. 5; Not necessary to examine Art. 6; Violation of Art. 13; No violation of Art. 14; No violation of Art. 18; No violation of Art. 2; No violation of Art. 3; No violation of Art. 5; No violation of Art. 6; No violation of Art. 8; No violation of Art. 13; Costs and expenses partial award – Convention proceedings; Pecuniary damage – reserved; Non-pecuniary damage – reserved; Not necessary to examine Art. 3; Violation of Art. 8
[1997] ECHR 98, 23186/94
Human Rights
See Also – Mentes and Others v Turkey ECHR 24-Jul-1998
. .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165578
Turkey – prison sentence imposed by Diyarbakir National Security Court on account of a statement to journalists (Articles 168 and 312 of the Criminal Code) – accused unable to appear at hearing in that court (Article 226 – 4 of the Code of Criminal Procedure in force at material time) – length of criminal proceedings against him.
In reviewing the necessity for the interference with the right to freedom of speech, the court will ask not only whether the standards applied by the national authorities were in conformity with Art 10 but also whether they based themselves on unacceptable assessment of the relevant facts. Article 10 ‘is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.’
18954/91, [1997] ECHR 94, [2011] ECHR 2394
European Convention on Human Rights 10
Cited – Dow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
Cited – Interfact Ltd and Another v Liverpool City Council Admn 23-May-2005
The defendants, operators of licensed sex shops, appealed convictions for offences under the Act. The shops had supplied videos rated R*18 by mail order from the shops. The Trading Standards Officer said this did not satisfy the requirement that . .
Cited – City of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165562
Hudoc Violation of Art. 6-1; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings
An alleged Article 6 breach has to be considered in the overall context of the case, and is not to be addressed in relation to any one, discrete aspect of it. The court emphasised the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which was ‘likely to have a preponderant influence on the assessment of the facts by [the] court.’
[1997] ECHR 14, 21497/93, (1997) 24 EHRR 370
European Convention on Human Rights 6
Human Rights
Cited – Barracks v Coles and Commissioner of Police for the Metropolis CA 21-Jul-2006
The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said . .
Cited – Q v Q FD 21-May-2014
The father sought contact with his child. It was resisted by the mother. He was a convicted sex offender with offences against young male children. Expert evidence had been obtained, and he wished to challenge it. However, legal aid had been . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165483
A Dutch court had convicted the applicants of attempted manslaughter and robbery on the basis of statements made, before their trial, by anonymous police officers, none of whom gave evidence before the Regional Court or the investigating judge. The Court of Appeal referred the case to the investigating judge who arranged hearings in which he, a registrar and the anonymous witnesses were in one room, while the applicants, their lawyers and the Advocate General were in another room. The two rooms were connected by a sound link only. Held: There had been a breach of article 6(3)(d) since the defence were not only unaware of the identity of the police witnesses but were also prevented from observing their demeanour under direct questioning, and thus from testing their reliability. It had not been explained to the Court’s satisfaction why it was necessary to resort to such extreme limitations on the right of the accused to have the evidence against them given in their presence, or why less far-reaching measures were not considered. Any handicaps placed on the defence in criminal proceedings should be sufficiently counterbalanced by the procedures allowed by the judicial authorities, and ‘Having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied’.
ECHR Judgment (Merits and just satisfaction) – Violation of Art. 6-1+6-3-d; Just satisfaction reserved; Costs and expenses award – Convention proceedings.
(1997) 25 EHRR 647, [1997] ECHR 22, 2 BHRC 486, 21427/93, 21363/93
European Convention on Human Rights 6.1
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.
Cited – D (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
Cited – Sellick and Sellick, Regina v CACD 14-Mar-2005
The defendants appealed convictions for murder saying that the court had had read to it the statements of four witnesses who refused to attend for fear, having been intimidated. Other witnesses had been unco-operative and had been treated by the . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
See Also – Van Mechelen And Others v The Netherlands ECHR 30-Oct-1997
The defendant’s right to a fair trial had been infringed where anonymous police witnesses gave evidence against the defendant in circumstances such that, not only did the defendant know their identities, but he was unable to observe their demeanour . .
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 – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Secretary of State for the Home Department v AF AM and AN etc CA 17-Oct-2008
The claimants were subject to non-derogating control orders, being non EU nationals suspected of terrorism. They now said that they had not had a compatible hearing as to the issue of whether they were in fact involved in terrorist activity.
Cited – Regina v D(R) Misc 16-Sep-2013
Crown Court at Blackfriars – the court was asked to what extent a witness wanting, from religious conviction, to hide her face with the niqaab form of Islamic dress should be allowed to do so, whilst giving evidence.
Held: The court considered . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165495
Hudoc Sweden – communication, without the patient’s consent, of personal and confidential medical data by one public authority to another and lack of possibility for patient, prior to the measure, to challenge it before a court (Secrecy Act 1980 and Industrial Injury Insurance Act 1976)
The applicant having sustained an injury objected to disclosure of medical records to the Social Insurance Office to allow assessment of her compensation claim.
Held: The object of the disclosure was proper – to enable the office to determine whether the conditions for granting compensation had been met. It also recognised the ‘fundamental importance’ of protecting personal data, guaranteed by Article 8 of the Convention. It then ‘examine[d] whether, in the light of the case as a whole, the reasons adduced to justify the interference were relevant and sufficient and whether the measure was proportionate to the legitimate aim pursued.’ The court noted that the information was ‘communicated by one public institution to another in the context of an assessment of whether she satisfied the legal conditions for obtaining a benefit which she herself had requested.’ Under the relevant law it was a condition of imparting the information that the office had requested it, and the office was under a duty to treat it as confidential: ‘The Court considers that there were relevant and sufficient reasons for the communication of the applicant’s medical records by the clinic to the office and that the measure was not disproportionate to the legitimate aim pursued. Accordingly, it concludes that there has been no violation of the applicant’s right to respect for her private life, as guaranteed by Article 8 of the convention’ though ‘respecting the confidentiality of health data is a vital principle in the legal systems of all contracting parties to the Convention’.
20837/92, [1997] ECHR 49, [1999] 28 EHRR 313, 3 BHRC 248
Human Rights
Cited – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Applied – General Dental Council v Savery and Others Admn 16-Nov-2011
Complaints had been made against certain dentists. Their patients object that they had not been asked about disclosure of their medical records to the tribunals hearing the fitness to practice cases.
Held: The GDC was under no obligation to . .
Cited – Re C (A Child) FC 29-Sep-2015
There had been care proceedings as to C. The mother was treated by a psychiatrist, X, and an associate Y. They also prepared expert reports. M formally complained about X, and the charges having been dismissed, the doctors now sought disclosure of . .
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.
Updated: 04 June 2022; Ref: scu.165528
The Commission had concluded, by a narrow majority, that the measures taken by the respondent in refusing planning permission and enforcing planning orders were excessive and disproportionate, even allowing a margin of appreciation enjoyed by the national authorities. The Commission found that the interests of the applicant outweighed the general interest. The Court, also by a majority, took the opposite view, concluding that the responsible planning authorities had arrived at their decision after weighing in the balance the various competing interests at issue; that it was not for the Court to sit in appeal on the merits of that decision; that the reasons relied on by the planning authorities were relevant and sufficient; and that the means employed to achieve the legitimate aims pursued could not be regarded as disproportionate. A denial of permission for a gypsy to live on his own land was not a breach of his human rights. ”Home’ is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a ‘home’ which attracts the protection of Article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links. The factor of ‘unlawfulness’ is relevant rather to considerations under paragraph 2 of that provision of ‘in accordance with law’ and to the balancing exercise undertaken between the interests of the community and those of the individual in assessing the necessity of any interference’.
Hudoc No violation of Art. 8; No violation of Art. 14+8
Times 09-Oct-1996, 20348/92, 23/1995/529/615, [1996] ECHR 39, (1996) 23 EHRR 101, [1996] ECHR 39
European Convention on Human Rights 14
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 – 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 – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – 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 . .
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 – London Borough of Hounslow v Powell, Leeds City Council v Hall etc SC 23-Feb-2011
In each case the tenant occupied the property as his home, but was not a secure tenant of the local authority. The Court was asked whether, in granting a possession order in such a case, the court was obliged to consider the proportionality of the . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165449
One of the characteristics of a fair trial under article 6 is that the proceedings should be ‘adversarial’. The applicant’s right, in an adversarial hearing, to see and reply to material before the court: ‘means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the Court’s decision.’
[1996] ECHR 6, 15764/89, (1996) 23 EHRR 79
European Convention on Human Rights 6
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165401
ECHR Judgment (Merits and just satisfaction) Violation of art. 6-1 (adversarial trial); Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings
[1996] ECHR 7, 19075/91
Updated: 04 June 2022; Ref: scu.165402
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, they were ultimately questioned at an appeal stage, in the presence of counsel, but not the defendant, and without the identity of the witnesses being revealed to counsel.
Held: Admissibility of evidence is primarily a matter of domestic law. The Convention does not guarantee a right to face to face confrontation. Even in the case of anonymous witnesses, the Court accepted that exceptions may be made, provided that sufficient steps are taken to counter-balance the handicaps under which the defence laboured and a conviction is not based solely or decisively on anonymous statements.
‘While it would clearly have been preferable for the applicant to attend the questioning of the witnesses, the court considers on balance that the Amsterdam Court of Appeal was entitled to consider that the interests of the applicant were in this respect outweighed by the need to ensure the safety of the witnesses.’ and ‘principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify’
(1996) 22 EHRR 330, 20524/92, [1996] ECHR 14
European Convention on Human Rights 6
Human Rights
Cited – D (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
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 – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Kostovski v The Netherlands ECHR 20-Nov-1989
No Anonymity for Witnessses in Criminal Trial
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Cited – Re B (Disclosure to Other Parties) 2001
Witnesses and others involved in children proceedings have article 8 rights. . .
Cited – British Broadcasting Corporation v CAFCASS Legal and others FD 30-Mar-2007
Parents of a child had resisted care proceedings, and now wished the BBC to be able to make a TV programme about their case. They applied to the court for the judgment to be released. Applications were also made to have a police officer’s and . .
Cited – Dowsett v Criminal Cases Review Commission Admn 8-Jun-2007
The claimant had been convicted in 1993 of involvement in a murder. He had complained that the police had failed to disclose material which would have been of assistance to him. He had requested the Commission to take examine and pursue his appeal. . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 20-Jan-2009
Each complainant said that in allowing hearsay evidence to be used against them at their trials, their article 6 human rights had been infringed. In the first case the complainant had died before trial but her statement was admitted.
Held: In . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
Cited – Kennedy v United Kingdom ECHR 18-May-2010
The claimant complained that after alleging unlawful interception of his communications, the hearing before the Investigatory Powers Tribunal was not attended by appropriate safeguards. He had been a campaigner against police abuse. His requests to . .
Cited – Adeojo and Another v Regina CACD 6-Feb-2013
The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165413
A court had considered itself bound by a decision of the Provincial Executive within the Netherlands adverse to the applicant company.
Held: That was in breach of article 6(1). There was not access to a tribunal with sufficient jurisdiction to decide the case before it.
[1996] ECHR 66, 20641/92, (1997) 24 EHRR 456
European Convention on Human Rights 6(1)
Cited – Lamont-Perkins v Royal Society for The Prevention of Cruelty To Animals (RSPCA) Admn 24-Apr-2012
The defendant had been convicted of animal cruelty. She appealed to the Crown Court, and now appealed against rulings made by the judge as to the time limits for a prosecution under the 2006 Act in the Magistrates Court. She said that the RSPCA . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165464
No violation of Art. 8; No violation of P1-1. A restriction on a landlord’s right to terminate a tenant’s lease constitutes control of the use of property within the meaning of the second paragraph of the article
[1995] ECHR 49, 18072/91
Cited – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165396
A Turkish father, who had been permitted on humanitarian grounds to reside with his wife in Switzerland, failed to establish that, by refusing to allow their seven-year-old son to join them in Switzerland, the state had interfered with respect for his family life.
Held: The father and his wife had no permanent right of abode in Switzerland. The Court recognised the possibility that a State might be under an obligation to admit relatives of settled immigrants in order to develop family life. The right to care for ‘your own children’ is ‘a fundamental element of an elementary right.’
23218/94, (1996) 22 EHRR 93, [1996] ECHR 5
Worldlii, Bailii, Bailii, Bailii
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 – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 June 2022; Ref: scu.165404