Weddle, Regina (on The Application of) v Secretary of State for Justice: Admn 30 Jul 2013

The life prisoner claimant sought judicial review of the continuing failure of the Secretary of State for Justice to provide him with the means to demonstrate reduced risk so that he can progress to a lower security category while in prison.

Cranston J
[2013] EWHC 2323 (Admin)
Bailii
England and Wales

Prisons

Updated: 28 November 2021; Ref: scu.519977

Gaviria-Manrique v The Secretary of State for The Home Department: Admn 16 Jan 2014

Claim for judicial review seeking declarations that his detention by the defendant for two separate periods during 2008 was unlawful and claims an entitlement to damages for more than a nominal sum.

Judge Sycamore
[2014] EWHC 33 (Admin)
Bailii
England and Wales

Torts – Other, Prisons, Damages

Updated: 28 November 2021; Ref: scu.519790

Curley v The United Kingdom: ECHR 10 Mar 2011

(Execution of judgment) – Examination closed on satisfaction

[2011] ECHR 601, 32340/96
Bailii
Citing:
JudgmentCurley v United Kingdom ECHR 28-Mar-2000
A prisoner was sentenced to be detained during her majesty’s pleasure, but given a tariff which expired in 1987. Reviews of his continued detention did not lead to his release. He complained that the system of reviews by a Parole Board whose . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Torts – Other

Updated: 26 November 2021; Ref: scu.518897

Martin Corey, Re for Judicial Review: SC 4 Dec 2013

The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence information. The recall was considered by a panel of commissioners and material was served, the applicant having his own representative and a special advocate who was given access to the closed materials. The panel found that he had held a position of leadership within the Continuity Irish Republican Army. He had complained that the closed material procedure infringed his article 5.4 rights. His challenge succeeded at first instance, and the case was remitted for reconsideration with the grant of bail. The court now heard an appeal considering whether the court had had jurisdiction to release the claimant on bail under its inherent hjurisdiction or otherwise.
Held: The appeal failed. The claimant had not challeged the lawfulness of the detention itself, but rather the procedure. Therefore nor had the decision to release been based un any unlawfulnesss of the detention: ‘what Mr Corey claims is the right to have his valid recall to prison reviewed in a way that is compliant with article 5(4) of the Convention. A power to grant bail ancillary to the declaration that the appellant was entitled to that particular form of relief was not only unnecessary in order to make the grant of relief practical and effective, it was unrelated to it.’

Lord Mance, Lord Kerr, Lord Clarke, Lord Hughes, Lord Toulson
[2013] UKSC 76, [2014] 1 AC 516, [2013] WLR(D) 479, [2014] 1 All ER 863, [2013] 3 WLR 1612, UKSC 2012/0217
Bailii, WLRD, Bailii Summary, SC Summary, SC
Prison Act (Northern Ireland) 1953 23(1), Life Sentences (Northern Ireland) Order 2001, European Convention for the Protection of Human Rights 5.4
England and Wales
Citing:
At First InstanceCorey, Re Judicial Review QBNI 9-Jul-2012
C had been recalled from parole, and complained that the procedure had been unfair in that it had been almost entirely based upon closed materials.
Held: The Commissioners’ decision was indeed based solely or decisively on the closed material. . .
CitedEx parte Blyth 1944
The High Court did not have jurisdiction to grant bail post conviction . .
Appeal fromCorey, Re Judicial Review CANI 21-Dec-2012
The claimant had been recalled to prison from parole, and challenged his recall, saying that the procedure, being almost entirely based upon closed material infringed his rights to a fair trial. The respondent now appealed against an order finding . .
CitedRegina v Secretary of State for the Home Department, Ex parte Turkoglu CA 1987
The applicant had been granted bail by a High Court judge when he was given leave to apply for judicial review of the decision refusing him leave to enter the United Kingdom. His application for judicial review was subsequently dismissed and the . .
CitedSamaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
CitedWeeks v The United Kingdom ECHR 5-Oct-1988
The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. . .
CitedStafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
CitedVon Bulow v The United Kingdom ECHR 7-Oct-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings . .
CitedWells v The Parole Board and Another; Regina (Walker) v Secretary of State for the Home Department QBD 31-Jul-2007
The prisoners challenged their continued detention. They had been sentenced and had served their tariff terms but had been continued to be detained for public protection, but with no current or effective assessment of what risk was posed.
CitedLee and Another, Regina (on the Application of) v Secretary of State for Justice Admn 25-Jul-2008
The defendants appealed sentences imposed as indeterminate for public protection. Moses LJ said: ‘the position of a prisoner whose level of dangerousness cannot be ascertained is the same as one who ceases to be a danger. The original justification . .
CitedSecretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
CitedJames, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .

Cited by:
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Prisons, Human Rights, Litigation Practice

Updated: 26 November 2021; Ref: scu.518639

Robinson, Regina (on The Application of) v HMP Whatton and Another: Admn 4 Dec 2013

Two prisoners serving sentences of imprisonment for public protection sought judicial review of arrangements meaning that they had not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their complaints centre on delays they experienced in gaining access to a prison course they were assessed as needing to complete.
Held: The claims failed. The court applied the result of the decision in James at the House of Lords despite it having been overruled in the ECHR.

Richards LJ, Irwin J
[2013] EWHC 3777 (Admin)
Bailii
England and Wales
Citing:
AppliedSecretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
CitedJames, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .
CitedKay 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 . .
CitedClift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .

Cited by:
Appeal fromKaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
At AdminHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Constitutional

Updated: 26 November 2021; Ref: scu.518721

A B v The Netherlands: ECHR 15 Sep 2010

Execution of judgment – The case concerns the control of the applicant’s correspondence with the European Commission of Human Rights by prison authorities of the Netherlands Antilles between 1997 and 1998. The case also concerns interference with the applicant’s correspondence with his lawyer, who was a former inmate. The Court found that the complete ban that existed on correspondence with former fellow inmates could not be justified
Lastly, the case concerns the fact that the applicant had no effective remedy against the conditions in which he was detained or against the interference with his correspondence, since the authorities did not adequately implement the relevant judicial orders, as well as the urgent recommendations of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

[2010] ECHR 1419, 37328/97
Bailii
Citing:
JudgmentA B v The Netherlands ECHR 29-Jan-2002
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion); Violation of Art. 8 in respect of control of correspondence with the Commission and with lawyer; No violation of . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 26 November 2021; Ref: scu.518307

Helander v Finland (Dec): ECHR 10 Sep 2013

Article 8-1 – Respect for correspondence – Refusal by prison authorities to transmit to prisoner e-mail from his lawyer: inadmissible
Facts – While the applicant was in prison, his lawyer sent him an e-mail using the prison’s e-mail account. The prison governor refused to transfer the e-mail to the applicant and advised the lawyer to contact the applicant by post or telephone. The domestic law did not require the prison authorities to forward to prisoners e-mail communications which arrived at the prison’s electronic address. The applicant unsuccessfully applied to the domestic courts for an order directing the prison governor to transmit the e-mail to him.
Law – Article 8: Even though the electronic message in question had been submitted to the prison’s common electronic mailbox, it was nevertheless destined for the applicant and accompanied with a request that it be transmitted to him. The message thus fell within the scope of ‘correspondence’ for the purposes of Article 8 of the Convention. The domestic law was based on the principle that prisoners’ contacts with their lawyers were to be made by post, telephone or visits. Similar principles were found in the European Prison Rules. The Court accepted that the aforementioned means were sufficient and that the choice of introducing a possibility of receiving e-mails should be left to legislators. The Finnish legal system in respect of prisoners’ correspondence was drafted clearly and fulfilled the requirements of the Convention and the positive obligations imposed on the respondent State. There were legitimate reasons not to allow e-mails as the current legislation could not guarantee lawyer-client confidentiality in respect of such communications. The refusal by the domestic authorities to transmit the e-mail to the applicant could not be regarded as disproportionate. The sender had been immediately informed of the non-delivery and instructed to use proper means of communication. He had had several means of communication available which were as effective and rapid as e-mails. His failure to use them was not attributable to the respondent State. Hence, having regard to the margin of appreciation left to the State, the domestic authorities’ refusal to transmit the e-mail message in question to the applicant could not be regarded as unjustified. In particular, a fair balance had been struck between the different interests involved.
Conclusion: inadmissible (manifestly ill-founded).

10410/10 – Legal Summary, [2013] ECHR 963
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Prisons, Legal Professions

Updated: 21 November 2021; Ref: scu.516472

Soyler v Turkey: ECHR 17 Sep 2013

29411/07 – Chamber Judgment, [2013] ECHR 821
Bailii
European Convention on Human Rights
Human Rights
Cited by:
CitedChester, 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 . .

Lists of cited by and citing cases may be incomplete.

Prisons, Elections

Updated: 20 November 2021; Ref: scu.515298

Anchugov And Gladkov v Russia: ECHR 4 Jul 2013

Article 3 of Protocol No. 1
Vote
Automatic and indiscriminate ban on convicted prisoners’ voting rights: violation
Facts – Both applicants were convicted of murder and other criminal offences and death, later commuted to fifteen years’ imprisonment. They were also debarred from voting, in particular, in elections to the State Duma and in presidential elections, pursuant to Article 32 – 3 of the Russian Constitution. Both applicants challenged that provision before the Russian Constitutional Court, which, however, declined to accept the complaint for examination on the grounds that it had no jurisdiction to check whether certain constitutional provisions were compatible with others.
Law – Article 3 of Protocol No. 1
(a) Election of the Russian President – The obligations imposed on the Contracting States by Article 3 of Protocol No. 1 did not apply to the election of a Head of State.
Conclusion: inadmissible (incompatible ratione materiae).
(b) Parliamentary elections – Article 32 – 3 of the Constitution applied automatically and indiscriminately to all convicted prisoners, regardless of the length of their sentence and irrespective of the nature or gravity of their offence or of their individual circumstances. While the Court was prepared to accept that the applicants’ disenfranchisement had pursued the aims of enhancing civic responsibility and respect for the rule of law and of ensuring the proper functioning of civil society and the democratic regime, it could not accept the Government’s argument regarding the proportionality of the restrictions. Indeed, while a large category of prisoners, namely those in detention during judicial proceedings, retained their right to vote, disenfranchisement nonetheless concerned a wide range of offenders and sentences from two months – the minimum period of imprisonment following conviction in Russia – to life and from relatively minor offences to the most serious ones. Nor was there evidence that, when deciding whether or not an immediate custodial sentence should be imposed, the Russian courts took into account the fact that such a sentence would involve disenfranchisement, or that they could make a realistic assessment of the proportionality of disenfranchisement in the light of the circumstances of each case. The Court reiterated in that connection that removal of the right to vote without any ad hoc judicial decision did not, in itself, give rise to a violation of Article 3 of Protocol No. 1. The fact that the ban on prisoners’ voting rights in Russia was laid down in the Constitution – the basic law of Russia adopted following a nationwide vote – rather than in an act of parliament, was irrelevant as all acts of a member State were subject to scrutiny under the Convention, regardless of the type of measure concerned. Besides, no relevant materials had been provided to the Court showing that an attempt had been made to weigh the competing interests or to assess the proportionality of a blanket ban on convicted prisoners’ voting rights.
In such circumstances, the respondent Government had overstepped the margin of appreciation afforded to them in that field and failed to secure the applicants’ right to vote. As regards the implementation of the judgment, the Court noted the Government’s argument that the ban was imposed by a provision of the Russian Constitution which could not be amended by the Parliament and could only be revised by adopting a new Constitution, which would involve a particularly complex procedure. However, it was primarily for the Russian authorities to choose, subject to the supervision of the Committee of Ministers, the means to be used in order to bring its legislation into line with the Convention once the judgment in the instant case became final. Indeed, it was open to the Government to explore all possible ways to ensure compliance with Article 3 of Protocol No. 1, including through some form of political process or by interpreting the Russian Constitution in harmony with the Convention.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.

11157/04 15162/05 – Legal Summary, [2013] ECHR 791
Bailii
European Convention on Human Rights A3P1
Cited by:
Legal SummaryAnchugov And Gladkov v Russia ECHR 4-Jul-2013
. .
CitedMoohan 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.

Human Rights, Elections, Prisons

Updated: 19 November 2021; Ref: scu.515130

Tabbakh, Regina (on The Application of) v The Staffordshire and West Midlands Probation Trust and Another: Admn 9 Aug 2013

The claimant challenged the attaching additional licence conditions on his release from prison. He is serving the non-custodial part of a seven year sentence imposed for an offence of preparing a terrorist act. He was released automatically on licence on 23 June 2011, having served half his sentence. The claimant contends that he had no meaningful opportunity to participate in the process when his licence conditions were determined and that this constitutes a breach of the procedural guarantees under Article 8 of the European Convention on Human Rights.

Cranston J
[2014] 1 WLR 1022, [2013] EWHC 2492 (Admin)
Bailii
European Convention on Human Rights 8
Citing:
See AlsoTabbakh, Regina v CACD 3-Mar-2009
The defendant appealed against his conviction for preparing for terrorist offences, saying that the judge should not have allowed inferences to be drawn from from his decision not to give evidence. He had brought evidence that his physical or mental . .
See AlsoRegina v Tabbakh CACD 2009
The defendant applied for leave to appeal against his sentence after conviction for an offence under section 5 of the 2006 Act.
Held: The Court was not prepared to lay down any general range for s.5 offences. . .
See AlsoTabbakh v United Kingdom ECHR 21-Feb-2012
In 2000 the applicant fled Syria. In November 2001 he arrived in the United Kingdom and claimed political asylum. It was accepted that he had a well-founded fear of persecution if returned to Syria and in July 2005 he was granted Indefinite Leave to . .

Cited by:
See AlsoTabbakh, Regina (on The Application of) v Staffordshire and West Midlands Probation Trust and Another CA 19-Jun-2014
The claimant sought judicial review of the conditions imposed on him on being released from prison under licence, saying that interfered with his Article 8 rights. . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 18 November 2021; Ref: scu.514341

Grimailovs v Latvia: ECHR 25 Jun 2013

ECHR Article 3
Degrading treatment
Lack of independent access to prison facilities for paraplegic prisoner; lack of organised assistance with his mobility and daily routine: violation
Facts – In June 2002 the applicant, who had a metal insert in his spine after breaking his back two years earlier, was given a five and a half year prison sentence. In his application to the Court, the applicant complained, inter alia, that the prison facilities were unsuitable for him as he was paraplegic and wheelchair-bound. In 2006 he was conditionally released.
Law – Article 3: The applicant had been detained for nearly two-and-a-half years in a regular detention facility which was not adapted for persons in a wheelchair. Although the Government had stated that the applicant had been placed in a special unit for inmates with health problems, the facilities did not appear to have had less architectural or technical barriers than the facilities in the ordinary wings of the prison. A ramp had been installed to facilitate wheelchair access to the outdoor yard, but other areas, such as the canteen, toilets, sauna, library, shop, gym, meeting room and telephone room had remained inaccessible. While the applicant had not been locked up in his cell during daytime and could move around in the living area of his unit, his ability to use the facilities had been restricted by his paraplegia. He did not have access to a shower and his weekly visits to the sauna had not provided him with an adequate opportunity to maintain his personal hygiene, given its inaccessibility and limited availability. Moreover, no measures had been adopted to alleviate the hardship caused by the inaccessibility of the sanitation facilities while meeting his wife for conjugal visits, which under Latvian legislation could last up to forty-eight hours. In exercising their wide margin of appreciation in deciding whether or not to allow conjugal visits, the States had to have due regard to the needs and resources of the community and of individuals. Placing the applicant in facilities where he could not properly wash and use the toilet, even if only for a limited period, could hardly be considered compatible with respect for his human dignity.
The applicant had had to rely on his fellow inmates to assist him with his daily routine and mobility around the prison, even though they had not been trained and did not have the necessary qualifications. Although the medical staff had visited the applicant in his cell for ordinary medical check-ups, they had not provided any assistance with his daily routine. The State’s obligation to ensure adequate conditions of detention included making provision for the special needs of prisoners with physical disabilities and the State could not absolve itself from that obligation by shifting the responsibility to cellmates.
In the light of the foregoing considerations and their cumulative effects, the conditions of the applicant’s detention in view of his physical disability and, in particular, his inability to have access to various prison facilities, including the sanitation facilities, independently and the lack of any organised assistance with his mobility around the prison or his daily routine, had reached the threshold of severity required to constitute degrading treatment.
Conclusion: violation (unanimously).
The Court also found a violation of Article 3 on account of the lack of an effective investigation into the applicant’s allegations of police ill-treatment in September 2001.
Article 41: EUR 6,000 in respect of non-pecuniary damage.
(See also Cuprakovs v. Latvia, no. 8543/04, 18 December 2012; Turzynski v. Poland (dec.), no. 61254/09, 17 April 2012; D.G. v. Poland, no. 45705/07, 12 February 2013; Todorov v. Bulgaria (dec.), no. 8321/11, 12 February 2013)

6087/03 – Legal Summary, [2013] ECHR 737
Bailii
European Convention on Human Rights 3

Human Rights, Prisons

Updated: 18 November 2021; Ref: scu.514305

Clift, Regina (on the Application of) v Secretary of State for the Home Department: CA 29 Apr 2004

The claimant was a prisoner serving a determinate term exceeding 15 years. He complained that the respondent’s remaining juridsiction as to his release on licence infringed his human rights.
Held: This was the sole remaining element of the respondent’s control over the release on licence of prisoners. The reasonableness of his power was to be determined in line with Michalak. The distinction made was potentially subject to the Convention, and this situation had not been anticipated in Giles or Smith. The natural comparators were other also serving determinate sentences. The applicant took part in a similar process of discretionary licences, but the difference in arbiter, in this case the respondent, was a material difference. The seriousness of the offences however justified the differences, and the minister was reasonably involved.

[2004] EWCA Civ 514, Times 13-May-2004, Gazette 20-May-2004, [2004] 3 All ER 338
Bailii
European Convention on Human Rights 5 14
England and Wales
Citing:
CitedMichalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Appeal fromRegina on the Application of Clift v Secretary of State for the Home Department Admn 13-Jun-2003
The claimant had been sentenced to 18 years imprisonment. He challenged the differing treatment for parole purposes of those sentenced to more than 15 years, as infringing his human rights, insofar as the decision was retained by the Home Secretary. . .
CitedRegina on the Application of Giles v Parole Board and Secretary of State for the Home Department CA 4-Jul-2002
The prisoner had been sentenced to a punitive term, and an additional protective term under the Act. After the parole board had decided that he could be released from the punitive part of the sentence, he obtained declaration that the board should . .
CitedGiles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
CitedRegina (Smith) v Parole Board (No 2) CA 31-Jul-2003
The applicant having been released on licence had his licence revoked. The decision had been made at a hearing which considered evidence on paper only, which he said was unfair.
Held: The case law had maintained a proper distinction between . .

Cited by:
CitedSecretary 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 . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 17 November 2021; Ref: scu.196084

Foster, Regina (on The Application of) v Secretary of State for Justice: Admn 17 Jul 2013

The Claimant challenged the decision of the Secretary of State for Justice to refuse to allow him an oral hearing as part of his appeal against recall to prison after he had been released on Home Detention Curfew

Rafferty LJ, Kenneth Parker J
[2013] EWHC 1951 (Admin)
Bailii
England and Wales

Prisons

Updated: 17 November 2021; Ref: scu.513397

AO and Another, Regina (on The Application of) v Secretary of State for The Home Department: Admn 25 Nov 2011

Test cases concerning the Secretary of State’s policy of granting leave to remain in the United Kingdom for those sometimes called foreign national prisoners. In particular it focuses on those who have committed an offence in the United Kingdom which is deemed serious but whose removal from the country would breach the European Convention on Human Rights (‘ECHR’).

Cranston J
[2011] EWHC 3088 (Admin)
Bailii
England and Wales

Immigration, Human Rights, Prisons

Updated: 17 November 2021; Ref: scu.448996

Martinez Sala And Others v Spain: ECHR 8 Aug 2011

Execution of the judgments of the European Court of Human Rights

[2011] ECHR 1675, 58438/00
Bailii
Human Rights
Citing:
JudgmentMartinez Sala And Others v Spain ECHR 2-Nov-2004
ECHR Judgment (Merits and Just Satisfaction) – No violation of Art. 3 regarding the allegations of ill-treatments; Violation of Art. 3 regarding the lack of effective investigation; Non-pecuniary damage – . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 15 November 2021; Ref: scu.512183

Sturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2): SC 3 Jul 2013

From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision as to whether to impose an IPP senence and whether a prisoner was ready for release on licence had common elements but were substantially different. The test for imposing IPP were set higher.The court set out six reasons for marking a difference, including: ‘First, the two tests are, both in their terms and in their default position, substantially different. Imposition depends upon the court being positively satisfied of ‘a significant risk to members of the public of serious harm occasioned by the commission of further specified offences’. Release depends upon the Parole Board being ‘satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined’.
Second, the test for release applied under the 2003 Act to a sentence of IPP was the test for discretionary life sentences encapsulated in statutory form first in section 34(4)(b) of the 1991 Act, and later in section 28(6)(b) of the 1997 Act, and since also applied to mandatory life sentences. Those drafting and enacting the 1991 Act must be taken to have been aware of the decision in Ex p Bradley (decided on 4 April 1990). Those drafting and enacting the 1997 Act must be taken to have been aware of and accepted the line of authority consisting of Ex p Bradley, Ex p Wilson and Ex p Lodomez. Parliament therefore accepted a difference in the tests for imposing and for release from a discretionary life sentence. In introducing a sentence of IPP into the same framework for release as applies to discretionary life sentences, Parliament must on the face of it have intended to apply to sentences of IPP the same test for release as for discretionary life sentences, again even though that differed from the test for imposition.
Third, the phrase ‘no longer necessary for the protection of the public’ in the test for release does not import any reference to the threshold risk justifying the imposition of the sentence. The sentence imposed will itself operate as a complete protection of the public against any real risk during the tariff period. The phrase does no more than raise the question whether continued detention, after the tariff period, is any longer necessary to achieve that protection. ‘

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 47, [2013] PTSR D37, [2013] 3 WLR 281, [2013] 4 All ER 177, [2013] WLR(D) 274, UKSC 2013/0152
Bailii, WLRD, Bailii Summary, SC Summary, SC
Criminal Justice Act 2003 225 8229, Crime (Sentences) Act 1997 28 29 30 31 32 33 34
England and Wales
Citing:
At first instanceSturnham, Regina (on The Application of) v Parole Board, Secretary of State for Justice Admn 14-Mar-2011
S was serving a term of life imprisonment. After serving the tariff, his detention should have been reviewed. After several serious delays, and a decision that he should instead be transferred to open conditions, he brought proceedings for judicial . .
Appeal fromSturnham 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 . .
CitedRegina v Hodgson CACD 1967
The court stated that the exceptional circumstances required to justify imposition of a life sentence for an offence other than murder are present if three conditions. First, the offence or offences are in themselves serious enough to require a very . .
CitedRegina v Wilkinson CACD 1983
A discretionary life sentence should be reserved for the most exceptional circumstances, and for the most part for offenders who were incapable of being dealt with under the Mental Health Act 1959, ‘yet who are in a mental state which makes them . .
CitedRegina v Parole Board, Ex parte Bradley QBD 1990
A Parole Board should scrutinise ever more anxiously whether the level of risk is unacceptable on considering the release of a prisoner, the longer the time the prisoner has spent in prison following the expiry of his tariff. The Board had to carry . .
CitedAttorney-General’s Reference No 32 of 1996, Regina v Whittaker CACD 1997
The Court described the circumstances under which a life sentence of imprisonment can be imposed: ‘It appears to this Court that the conditions may be put under two heads. The first is that the offender should have been convicted of a very serious . .
CitedPedley, Martin and Hamadi v Regina CACD 14-May-2009
The court considered the justification for extended sentences of imprisonment for public protection: ‘Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which . .
CitedThynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
CitedRegina v Chapman CACD 22-Jul-1999
A discretionary life sentence intended to protect the public could now only be imposed after establishing compliance with the Act in that the sentence was so serious as to deserve a very long sentence, and for an unforeseeable time into the future, . .
CitedStafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
CitedRegina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
CitedLang and Others, Regina v CACD 3-Nov-2005
In each case the defendant had commited violent or sexual offences and were caught by the new mandatory sentencing provisions, and been made subject to life imprisonment, or detention for public protection, or an extended sentence.
Held: The . .
CitedRegina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
CitedMcClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
CitedJohnson, Regina v; Regina vHamilton; Attorney General’s Reference (No 64 of 2006) CACD 20-Oct-2006
The court provided explanation of the nature of sentences passed for public protection under the 2003 Act, and in particular whether it was correct to base the assessment on previous convictions.
Held: ‘dangerousness’ is intended to represent . .
CitedRegina v Kehoe CACD 8-Apr-2008
The defendant appealed against the imposition of a life sentence with a minimum of four and a half years imprisonment through section 225.
Held: A finding under section 225 would lead to adequate protection against the defendant, and the . .
CitedSecretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
ReservationsRegina v Smith (Nicholas) SC 20-Jul-2011
The defendant committed a series of armed robberies whilst released on licence from a term of life imprisonment. He appealed against an additional sentence of imprisonment for public protection (IPP), saying it was wrong to have two indeterminate . .
CitedBayliss, Regina (On the Application of) v Parole Board CA 22-Jul-2009
The prisoner, subject to a term of imprsonment for public protection, and had completed thr tariff period. He now challenged the decision of the Board not to direct his relase and or transfer to open conditions.
Held: The appeal failed. The . .
CitedPedley, Martin and Hamadi v Regina CACD 14-May-2009
The court considered the justification for extended sentences of imprisonment for public protection: ‘Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which . .
CitedSecretary of State for Justice v Walker; Same v James CA 1-Feb-2008
The claimant had been sentenced to a short period of imprisonment but with an indeterminate term until he demonstrated that it was no longer necessary for the protection of the public. He complained that the term having expired, no opportunity had . .

Cited by:
CitedKennedy 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 . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .

Lists of cited by and citing cases may be incomplete.

Prisons

Updated: 15 November 2021; Ref: scu.512118

Yepishin v Russia: ECHR 27 Jun 2013

591/07 – Chamber Judgment, [2013] ECHR 612
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoYepishin v Russia (Legal Summary) ECHR 27-Jun-2013
Article 34
Hinder the exercise of the right of petition
Prison administration’s refusal to pay postage for dispatch of prisoner’s letters to the European Court: no violation
Facts – The applicant, who was serving a prison sentence in . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 15 November 2021; Ref: scu.512105

Radu v Germany (Legal Summary): ECHR 16 May 2013

ECHR Article 5-1-a
After conviction
Applicant’s continued placement in psychiatric hospital after expiry of his prison term: no violation
Facts – In 1995 the applicant was convicted of homicide and sentenced to eight and a half years’ imprisonment and placement in a psychiatric hospital on grounds of diminished responsibility. In making the order for the applicant’s placement, the sentencing court relied on expert evidence indicating that the applicant suffered from a serious personality disorder characterised by violent outbursts and diminished capability to control his acts and was likely to kill again if he found himself in a similar conflict situation. No appeal was lodged against that order, which therefore became final. After spending four years in prison, the applicant was transferred to a psychiatric hospital in 1998. However, in subsequent proceedings for review of the applicant’s detention, the medical director of the hospital concluded that the applicant’s placement was wrongful as, although he had an ‘accentuated personality’ and was very likely to reoffend if released, the applicant was not in fact suffering from a persisting pathological mental disorder and lacked the motivation to complete a course of therapy. The court dealing with the execution of sentences then ordered his return to prison, where he served the remainder of his prison sentence. In the meantime, however, the court of appeal upheld a decision by the regional court not to declare the applicant’s placement in a psychiatric hospital terminated, despite further expert psychiatric evidence confirming the medical director’s view that the applicant had not been suffering from a serious personality disorder diminishing his criminal responsibility at the time the offence was committed. The court of appeal considered that even though the sentencing court’s order for the applicant’s placement in a psychiatric hospital was the result of an erroneous legal qualification, that qualification could not be corrected by the courts dealing with the execution of sentences as to do so would violate the constitutional principle of the finality of judicial decisions. Accordingly, after completing his prison sentence in October 2003 the applicant was transferred to a psychiatric hospital. The domestic courts came to a like conclusion on a further review of the applicant’s psychiatric placement in 2006 and the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.
In his application to the European Court, the applicant complained that his continued confinement in a psychiatric hospital had violated his right to liberty. His detention had been prolonged despite the fact that it had been established that he did not suffer and had in fact never suffered from a condition diminishing or excluding his criminal responsibility.
Law – Article 5-1 (a): The Court firstly had to establish whether there was a sufficient causal connection between the applicant’s conviction by the sentencing court in 1995 and his continuing deprivation of liberty from 2006 onwards. In that connection, it noted that both the sentencing court and the courts dealing with the execution of sentences agreed that the applicant suffered from a personality disorder and was likely to commit further offences if released. Further, even though they disagreed on the legal qualification of that disorder, the courts dealing with the execution of sentences had accepted that the classification by the sentencing court had acquired legal force and could not be changed. In that, connection, the Court noted that a court’s reliance on the findings in a final judgment of a criminal court to justify a person’s detention, even if such findings were or may have been wrong, did not, as a rule, raise an issue under Article 5-1: a flawed conviction would render a detention unlawful only if the conviction were the result of a flagrant denial of justice, which was not the case here. Given that the courts dealing with the execution of sentences had pursued the aims of protecting the public and providing treatment for the applicant’s personality disorder, the Court was satisfied that their decision not to release the applicant had been based on grounds consistent with the aims pursued by the sentencing court when ordering his detention in a psychiatric hospital. There therefore remained a sufficient causal connection for the purposes of sub-paragraph (a) of Article 5-1 between the applicant’s conviction in 1995 and his continuing detention in a psychiatric hospital. Such continuation of the applicant’s detention had a legal basis in domestic law, which under the domestic jurisprudence had been foreseeable in his case. Furthermore, the domestic courts had given detailed reasons for their decisions and their interpretation of the applicable provision of domestic law was aimed at protecting the finality of the sentencing court’s judgment, which could not be seen as contravening as such the purpose of Article 5. Finally, the applicant had not been arbitrarily deprived of his liberty since the domestic courts’ application of the domestic law did not render his release impossible as soon as it could be concluded that he would not commit any further unlawful acts. As the applicant had not yet met that condition, the execution of the detention order against him had not been suspended. Therefore, the order for the applicant’s continued confinement in a psychiatric hospital was ‘lawful’ and ‘in accordance with a procedure prescribed by law’, as required by Article 5-1.
Conclusion: no violation (five votes to two).

20084/07 – Legal Summary, [2013] ECHR 604
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoRadu v Germany ECHR 3-Jul-2012
. .

Cited by:
SummaryRadu v Germany ECHR 16-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Health

Updated: 15 November 2021; Ref: scu.512073

Lawless v Ireland (No 3): ECHR 1 Jul 1961

The Irish Government derogated from article 5 in July 1957 in order to permit detention without charge or trial and the applicant was detained between July and December 1957. He could have obtained his release by undertaking to observe the law and refrain from activities contrary to the Offences against the State (Amendment) Act 1940, but instead challenged the lawfulness of the Irish derogation. He admitted membership of the IRA, a terrorist group which had been declared by statute to be an unlawful organisation.
Held: His application failed. It was for the Court to determine whether the conditions laid down in article 15 for the exercise of the exceptional right of derogation had been made out. The words ‘for the purpose of bringing him before the competent legal authority’ qualify both limbs of art. 5(1)(c), and it was not be possible to justify the detention under the exceptions in paras (b) or (c). Persons detained must be brought before the Court in all cases to which Art 5(1)(c) refers. The Court was been acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a grave threat to human rights.

R Cassin P
332/57, (1979) 1 EHRR 15, [1961] 1 EHRR 15, [1961] ECHR 2
Worldlii, Bailii
European Convention on Human Rights 5(1)(c)
Human Rights
Citing:
See AlsoLawless v Ireland (No 1) ECHR 14-Nov-1960
ECHR Judgment (Preliminary objections) Preliminary objection rejected (incompatibility); Questions of procedure rejected. . .
See AlsoLawless v Ireland (No 1) ECHR 7-Apr-1961
‘The Court,
Having regard to the conclusions presented by the Delegates of the European Commission of Human Rights at the hearing on 7th April 1961;
Taking note of the fact that the Agent of the Irish Government does not intend to submit . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 14 November 2021; Ref: scu.511026

Kurkowski v Poland: ECHR 9 Apr 2013

Kurkowski_polandECHR2013

ECHR Article 8-1
Respect for family life
Unjustified physical separation of detainee from visiting family members: violation
Facts – The applicant was detained on remand between December 2004 and October 2006. During that period, on one occasion the authorities rejected his request to have an additional family visit without justifying their decision. On three further occasions the applicant’s contact with his family was restricted and he was separated from them by a Perspex partition.
Law – Article 8: As regards the refusal of the applicant’s request for a family visit, the Court noted that the relevant authority had absolute discretion in granting permission for family visits in prison. The applicable law provided no details as regards the conditions for granting permission or the possibility of appealing against a decision refusing permission. Consequently, the refusal of permission for the family visit had not been in accordance with the law.
As regards the physical separation from his visiting family members by the Perspex partition, the Court accepted that such a measure might in certain circumstances be compatible with Article 8. However, in the applicant’s case the Government had offered no explanation why such a measure had been necessary on three specific occasions but had not been imposed during any of the other twenty-nine visits. Moreover, no arguments had been adduced regarding the necessity or legitimacy of the aim pursued by the measure. The lack of a coherent pattern of application of the impugned measure led the Court to conclude that it had been applied in an arbitrary and random manner.
Conclusion: violation (unanimously).
The Court further concluded that there had been no violation of Article 3 (prison overcrowding) or of Article 5 ss 3 of the Convention (length of pre-trial detention).
Article 41: EUR 1,500 in respect of non-pecuniary damage.

36228/06 – Legal Summary, [2013] ECHR 475
Bailii
European Convention on Human Rights

Human Rights, Prisons, Family

Updated: 12 November 2021; Ref: scu.510782

Reznik v Russia: ECHR 4 Apr 2013

ECHR Article 10-1
Freedom of expression
Compensation award against Bar Council President comments regarding prison warders’ ‘search’ of female member of the Bar: violation
Facts – The case concerned defamation proceedings against the President of the Moscow City Bar for critical statements he had made on a live television show about the conduct of male prison warders who had searched a female lawyer representing the prominent businessman Mikhail Khodorkovskiy in criminal proceedings. The applicant had been invited to the talk show with a representative of the Ministry of Justice to speak about a request the Ministry had made for the lawyer to be disbarred after allegedly being found in possession of a note containing instructions aimed at interfering with the pending investigation into Mr Khodorkovskiy’s affairs. On the talk show, the applicant denied that there had been an attempt to pass a note from Mr Khodorkovskiy outside the remand centre, stated that there had been no grounds for carrying out a search and criticised the fact that it had been carried out by male prison warders ‘rummaging about the body’ of the female lawyer. The remand centre and two of its warders sued him in defamation claiming that they had not carried out a search but had merely inspected the lawyer’s documents. On appeal, the City Court found against the applicant and ordered him to pay 20 Russian roubles in damages. The television channel was ordered to broadcast a rectification. The council of the Moscow City Bar formally rejected the Ministry’s request for Mr Khodorkovskiy’s counsel to be excluded from the Bar.
Law – Article 10: The City Court’s judgment in the defamation proceedings had constituted interference with the applicant’s right to freedom of expression, which interference had a basis in national law and pursued the legitimate aim of protecting the reputation or rights of others.
As to whether the interference had been necessary in a democratic society, the Court noted firstly that the impugned statement had been made in a live television debate over the Ministry of Justice’s request to have Mr Khodorkovskiy’s counsel disbarred. That request had been made in the context of the criminal proceedings against Mr Khodorkovskiy which were themselves the subject of intense public debate and must have sparked a wave of public interest. However, although very strong reasons were required for restrictions on debates on questions of public interest, there was nothing in the text of the City Court’s judgment to suggest it had performed the necessary balancing exercise.
The Court was not convinced by the Government’s argument that, as a lawyer, the applicant should have been particularly meticulous in his choice of words. Lawyers were entitled to comment in public on the administration of justice provided their criticism did not overstep certain bounds. The applicant had been speaking to a lay audience of television viewers, not to legal experts and his use of the word ‘search’ rather than the technical term ‘inspection’ was in everyday language an appropriate description of the procedure to which Mr Khodorkovskiy’s counsel had been subjected. Moreover, the format of the television discussion had been designed to encourage an exchange of views or even an argument, so that the opinions expressed would counterbalance each other. As the discussion had been broadcast live, the applicant had had no possibility of reformulating his words before they were made public and, in any event, the Ministry representative could have dispelled any allegation he considered untrue and presented his own version of the incident.
In any event, nothing in the applicant’s statement had permitted the warders to be identified: the applicant had described them simply as ‘men’, without mentioning their names or their employer. Even assuming their names had become public, the applicant’s liability in defamation could not go beyond his own words or extend to statements made by others. So the domestic authorities had failed to establish an objective link between his statement and the claimants in the defamation action.
There had also been a sufficient factual basis for the applicant’s statement that the inspection was devoid of legal grounds: the Court had already established in Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011, Information Note no. 141) that no obvious provision of Russian law prohibited lawyers from keeping notes during meetings with clients and that a legal provision concerning the inspection of visitors carrying prohibited objects did not apply to meetings between defendants and their legal representatives and the Moscow Bar Council had made similar findings when rejecting the request for Mr Khodorkovskiy’s counsel to be disbarred. Further, while the applicant’s suggestion that the warders had ‘rummaged’ through Mr Khodorkovskiy’s counsel’s clothing appeared somewhat exaggerated, it had not gone beyond the limits of acceptable criticism, as he had been seeking a way to convey his indignation at the actions of the male warders who had taken it upon themselves examine a female lawyer’s clothing in breach of the requirements of Russian law for searches or inspections to be carried out by persons of the same sex. In sum, the applicant had not gone beyond the limits of acceptable criticism. His statement had rested on a sufficient factual basis and the City Court had not based its decision on an acceptable assessment of the relevant facts.
Lastly, in the light of the foregoing factors, the sanction imposed on the applicant, though negligible in financial terms, was not justified and the institution of defamation proceedings against him had been capable of having a deterrent effect on his freedom of expression.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.

4977/05 – Legal Summary, [2013] ECHR 480
Bailii
European Convention on Human Rights

Human Rights, Prisons, Defamation, Legal Professions

Updated: 12 November 2021; Ref: scu.510784

Rappaz v Switzerland (Dec) Legal Summary: ECHR 26 Mar 2013

ECHR Article 2
Positive obligations
Decision to force-feed rather than release prisoner on hunger strike: inadmissible
Article 3
Degrading treatment
Inhuman treatment
Possible force-feeding of prisoner on hunger strike in protest at his detention: inadmissible
Facts – In 2000 the applicant was sentenced to sixteen months’ imprisonment for drug trafficking. He began a hunger strike in prison. He was released for thirty days and then returned to prison and finished serving his sentence without major incident. In 2008 the Cantonal Court sentenced the applicant to five years and eight months’ imprisonment for various offences. The day he began serving his sentence in March 2010 he embarked on a hunger strike, seeking the legalisation of cannabis use and protesting against his sentence, which he considered excessively harsh. Arguing that his health was suffering, the applicant applied to be released. On 26 August 2010 the Federal Court rejected his application, finding that force-feeding was a viable alternative to release. In December 2010 the applicant ended his hunger strike without having been force-fed.
Law – Article 2: Where a prisoner went on hunger strike, the potential consequences for his or her state of health would not entail a violation of the Convention provided that the national authorities had duly examined and dealt with the situation. This was particularly the case where the person concerned continued to refuse food and drink despite the deterioration in his or her health. In the present case the administrative and judicial authorities concerned had immediately recognised the risk which the hunger strike posed to the applicant’s health and even his life and had taken the measures they deemed necessary in order to avert that risk. Thus, the applicant had first been released for fifteen days. He had subsequently been redetained and after resuming his hunger strike had been transferred to hospital to serve his sentence under medical supervision, before being placed under house arrest. When he was imprisoned again following the Federal Court judgment of 26 August 2010 he had again refused food and drink and had been transferred once more to hospital. The applicant’s condition had started to give cause for alarm in October 2010. By that time, he had no longer been in prison but had been admitted to the prison wing of the hospital. There he had been under the constant supervision of a medical team who had kept the authorities informed of any change in the situation and had declared their willingness to ‘make [the applicant] as comfortable as possible’ should he persist with his decision to end his life. Furthermore, in order to prevent further deterioration of the applicant’s health, the administrative authority, followed by the Cantonal Court, had ordered that he be force-fed. When the doctor treating the applicant had refused to perform such a step against his patient’s will, the Cantonal Court had even gone so far as to serve a formal injunction on him in person, with which he had to comply or face prosecution. It could therefore not be said that the national authorities had not duly examined and dealt with the situation as required by Article 2 of the Convention, nor was their intention to protect the applicant’s life open to doubt. Moreover, it had in no sense been established that, while in hospital, the applicant had not received the same care he would have been given had he embarked on a hunger strike outside prison.
Conclusion: inadmissible (manifestly ill-founded).
Article 3: With regard to the decision to force-feed the applicant, it was not established that it had actually been implemented. As to the issue of medical necessity, the order to force-feed the applicant had been given when his state of health had begun to give cause for alarm, and was to be carried out by a qualified medical team in a hospital setting which was likely to be equipped to deal with such situations; the only objections raised by the doctors had been of an ethical rather than a medical nature. As far as the existence of procedural safeguards was concerned, the regulations governing the situation of prisoners on hunger strike did not lay down specific provisions concerning force-feeding. However, the decisions ordering the doctor treating the applicant to begin force-feeding him had been based on the Federal Court judgment of 26 August 2010, which had examined the issue in depth and had established several principles which henceforth represented the state of Swiss law in this sphere. The Federal Court had also considered the general law and order clause laid down in the Federal Constitution to provide a sufficient legal basis, allowing as it did restrictions to be placed on fundamental rights by means other than legislation in the event of a serious, imminent and direct threat. The Court had already held that a similar provision satisfied the relevant requirements of foreseeability, clarity and proportionality. Accordingly, even if the decision to force-feed the applicant had been implemented – if he had not ended his hunger strike – there were no grounds for asserting a priori that this would have resulted in treatment exceeding the minimum threshold of severity required by Article 3 of the Convention. Any such assertion at that juncture would be mere speculation.
Conclusion: inadmissible (manifestly ill-founded).
(See also Horoz v. Turkey, no. 1639/03, 31 March 2009, Information Note no. 117; and Nevmerzhitsky v. Ukraine, no. 54825/00, 5 April 2005, Information Note no. 74)

73175/10 – Legal Summary, [2013] ECHR 509
Bailii
European Convention on Human Rights 2 3
Human Rights
Cited by:
Legal SummaryRappaz v Switzerland (Dec) ECHR 26-Mar-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 12 November 2021; Ref: scu.510729

McGetrick, Regina (on The Application of) v Parole Board and Another: CA 14 Mar 2013

The claimant prisoner appealed against refusal of review of the use of allegations and evidence of offences not tried against him when deciding as to his release on licence. The material would suggest that he might pose a continuing risk to children.
Held: The appeal was allowed. The Board members were free not to consider all papers put before it. It is for the Boad to establish appropriate procedures to give effect to the Ruling. It is a constant of judicial activity that a judge will see materials and assess and apply its value. The judge at trial will have seen this information, without an application to be recused. A parole board was similarly able, and the members here had indicated disquiet and had sought assistance. The task members have to perform, the assessment of risk to the public, is a different one from the task of deciding upon the correct sentence. A prisoner has the right to challenge particular documents by protest or judicial review.

Pill, Toulson, Tomlinson LJJ
[2013] EWCA Civ 182, [2013] 1 WLR 2064, [2013] WLR(D) 107, [2013] 3 All ER 636
Bailii,
Criminal Justice Act 2003 239, Parole Board Rules 2011
England and Wales
Citing:
CitedGirling v Secretary of State for the Home Department and Another CA 21-Dec-2006
The claimant had challenged the findings of the Parole Board in his case, saying that the Board was not an independent tribunal as required under human rights law, since it was subject to direction from the Home Secretary.
Held: The Home . .
CitedBrooke and Others, Regina (on the Application of) v The Parole Board and Another CA 1-Feb-2008
The claimant prisoner complained that the Parole Board was insufficiently independent of government to provide a fair hearing. The court at first instance had found that the relationship between the Parole Board and the sponsoring Department put the . .
Appeal fromMcGetrick, Regina (on The Application of) v The Parole Board and Another Admn 4-Apr-2012
Parole Board Must Consider All Material Before It
The court was asked whether it was lawful for the Parole Board, when deciding whether to release a prisoner on licence, to take into account material provided by the Secretary of State containing factual allegations about the prisoner’s pre-trial . .
CitedRegina v Parole Board ex parte Harris Admn 15-Sep-1997
Scott Baker J stated that: ‘it is incumbent upon the Parole Board to have before it the widest possible information.’ The range of information which may be relevant to that assessment is a broad one.
In stressing the need for the applicant to . .
CitedBrooke and Others, Regina (on the Application of) v The Parole Board and Another CA 1-Feb-2008
The claimant prisoner complained that the Parole Board was insufficiently independent of government to provide a fair hearing. The court at first instance had found that the relationship between the Parole Board and the sponsoring Department put the . .
CitedRoberts v Parole Board CA 28-Jul-2004
The discretionary life-prisoner faced a parole board. The Secretary of State wished to present evidence, but wanted the witness to be protected. The Parole Board appointed special counsel to hear the evidence on behalf of the prisoner on terms that . .
CitedRoberts 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: . .

Lists of cited by and citing cases may be incomplete.

Prisons

Updated: 12 November 2021; Ref: scu.471737

Roberts, Regina (on the Application of) v The Parole Board: Admn 7 Nov 2008

The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of having been returned to a closed prison, but that not all the material on which the decision had been based had been shown to him or to his lawyer. The House of Lords had said that a decision could only be based the facts eventually involved. A review was begun, but the claimant now challenged the very long delay saying that it was not fair, and alleged bias.
Held: The panel had withheld material, but had needed only the open material to act. ‘if the statement of the decision-maker as to what he or she has done or taken into account can be justified objectively and after a careful scrutiny by the reviewing Court the statement should be accepted.’ Any decision not to release the closed material could not therefore contribute any unfairness.

Wyn Williams J
[2008] EWHC 2714 (Admin)
European Convention on Human Rights 5, Crime (Sentences) Act 1997 28
England and Wales
Citing:
CitedLocabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
See AlsoRoberts 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: . .
CitedSecretary 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.
CitedMcClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
CitedSecretary of State for the Home Department v E and Another HL 31-Oct-2007
The applicant, who was subject to a control order, complained that the respondent had failed as required to keep under review the possibility of a prosecution, and had renewed the order without satisfying that requirement.
Held: The appeal . .
CitedSecretary of State for Justice v Walker; Same v James CA 1-Feb-2008
The claimant had been sentenced to a short period of imprisonment but with an indeterminate term until he demonstrated that it was no longer necessary for the protection of the public. He complained that the term having expired, no opportunity had . .
CitedWilliams v The Secretary of State for the Home Office CA 17-Apr-2002
The applicant was a post-tariff discretionary life prisoner, applying for a change in his security classification. He sought disclosure of his security report which was denied by the respondent. He alleged a breach of his human rights.
Held: . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 11 November 2021; Ref: scu.277632

Secretary of State for Justice v Walker; Same v James: CA 1 Feb 2008

The claimant had been sentenced to a short period of imprisonment but with an indeterminate term until he demonstrated that it was no longer necessary for the protection of the public. He complained that the term having expired, no opportunity had been given to him to show that he could be released.
Held: ‘The legality of the post-tariff period of an indeterminate sentence imposed for the public protection is dependent upon the prisoner remaining a threat to the public. Article 5(4) requires this legality to be subject to periodic review by a body with the qualities of a court. If, in the period between two such reviews, a prisoner ceases to be dangerous, this will not mean that his detention in the remainder of that period infringes Article 5(1). That Article must be read in conjunction with Article 5(4) so as to produce a practical result. If, however, a review is unreasonably delayed and it is shown that, by reason of the delay, the prisoner has been detained after the time that he should have been released, that period of detention will constitute an infringement of Article 5(1).’ and ‘There has been a systemic failure on the part of the Secretary of State to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the 2003 Act to function as intended. ‘

Lord Phillips of Worth Matravers CJ
[2008] EWCA Civ 30, Times 06-Feb-2008, [2008] 1 WLR 1977
Bailii
Criminal Justice Act 2003 225, European Convention on Human Rights 5
England and Wales
Citing:
CitedRegina (on the Application of Cawser) v Secretary of State for the Home Department CA 5-Nov-2003
The claimant was serving a prison sentence for serious sexual offences. He would not be released until he had completed a sex offenders programme, but one was not made available, delaying his release.
Held: ‘The Secretary of State is not under . .
CitedBrooke and Others, Regina (on the Application of) v The Parole Board and Another CA 1-Feb-2008
The claimant prisoner complained that the Parole Board was insufficiently independent of government to provide a fair hearing. The court at first instance had found that the relationship between the Parole Board and the sponsoring Department put the . .
CitedPadfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
CitedVan Droogenbroeck v Belgium ECHR 25-Apr-1983
Hudoc Judgment (Just satisfaction) Non-pecuniary damage – financial award; Pecuniary damage – claim rejected; Costs and expenses – claim rejected
For an imprisonment to be lawful, the ‘detention’ must result . .
CitedWeeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
CitedBrand v The Netherlands ECHR 11-May-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1 ; Non-pecuniary damage – financial award
The court set out a list of cases in which a person can be deprived of liberty without . .
CitedThynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
CitedHussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .
CitedRegina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
CitedStafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Appeal FromWells v The Parole Board and Another; Regina (Walker) v Secretary of State for the Home Department QBD 31-Jul-2007
The prisoners challenged their continued detention. They had been sentenced and had served their tariff terms but had been continued to be detained for public protection, but with no current or effective assessment of what risk was posed.
Cited by:
CitedBrooke and Others, Regina (on the Application of) v The Parole Board and Another CA 1-Feb-2008
The claimant prisoner complained that the Parole Board was insufficiently independent of government to provide a fair hearing. The court at first instance had found that the relationship between the Parole Board and the sponsoring Department put the . .
CitedRoberts, Regina (on the Application of) v The Parole Board Admn 7-Nov-2008
The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of . .
Appeal fromSecretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
CitedSturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2) SC 3-Jul-2013
From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 11 November 2021; Ref: scu.264054

Adams, Regina v (Northern Ireland): SC 13 May 2020

Secretary of State alone to consider confinement

The appellant had been detained under an Interim Custody Order (ICO) during internment during the troubles in Ireland, and then convicted of attempting to escape and escaping. He now appealed from that conviction saying that the order under which he had been detailed had been unlawful, In that the Secretary of State had been required to consider the evidence for detention personally, but had not done so.
Held: The appeal succeeded. The statutory language in this instance is unmistakably clear. It is the Secretary of State who must consider whether the person concerned is suspected of being involved in terrorism etc. Clear and distinct roles were assigned to the SS and to others. Absent the possible invocation of the Carltona principle, there could be no doubt that resort to the power to make an ICO was reserved to the Secretary of State alone. The matter should be approached as a matter of textual analysis, unencumbered by the application of a presumption, but with the enjoinder of Lord Griffiths well in mind.
‘The making of the ICO in respect of the appellant was invalid. It follows that he was not detained lawfully. It further follows that he was wrongfully convicted of the offences of attempting to escape from lawful custody and his convictions for those offences must be quashed.’

Lord Kerr, Lady Black, Lord Lloyd-Jones, Lord Kitchin, Lord Burnett
[2020] UKSC 19, UKSC 2018/0104
Bailii, Bailii Summary, SC 2019 11 19am Video, SC 20 11 19 pm Video, SC, SC summary, SC Summary Video
Detention of Terrorists (Northern Ireland) Order 1972
Northern Ireland
Citing:
Appeal fromAdams, Regina v CANI 14-Feb-2018
Appeal against convictions on 20 March 1975 and 18 April 1975 on counts of attempting to escape from detention contrary to paragraph 38(a) of Schedule 1 of the Northern Ireland (Emergency Provisions) Act 1973 (‘the 1973 Act’) and common law.
CitedCarltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .
Not approvedRe Golden Chemicals Limited 1976
In issue was a provision in the 1967 Act which stated that, if it appeared to the Secretary of State that it was expedient in the public interest that a corporate body should be wound up, he could present a petition for its winding-up. That power . .
CitedRegina v Secretary of State for the Home Department ex parte Oladehinde HL 18-Oct-1990
A decision at Senior Executive Officer level was accepted as appropriate in a deportation case. There was an express form of delegation, and acts of the immigration officers required to be regarded as the acts of the Home Secretary.
Lord . .
CitedDoody v Secretary of State for the Home Department CACD 1992
The Court considered the procedure for fixing the period for which prisoners sentenced to mandatory life imprisonment should serve for retribution and deterrence before their sentences could be reviewed. Held Staughton LJ considered the issue of . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedRegina v Harper CANI 1990
The appellant had been convicted of a number of serious offences, largely as a result of admissions made by him during interviews by the police. Among the grounds of appeal was a claim that extension of the appellant’s detention had wrongly been . .
CitedMcCafferty, Re Writ of Habeas Corpus CANI 16-Dec-2009
The applicant was a prisoner who had been released on licence while serving a sentence for possession of an explosive substance. His licence was revoked, and he was arrested a month after his release. The revocation of the licence was authorised by . .

Lists of cited by and citing cases may be incomplete.

Crime, Prisons

Updated: 11 November 2021; Ref: scu.650771

Noone, Regina (on The Application of) v Governor of HMP Drake Hall and Another: SC 30 Jun 2010

The prisoner had been sentenced to consecutive terms of imprisonment, one for less, and one for more than 12 months. She disputed the date on which she should be released to home detention under curfew under the Guidance issued by the Secretary of State explaining how the release date should be calculated where longest sentence as subject to the 2003 Act, and the shorter sentences subject to the 1991 Act. The CA had ruled the policy lawful.
Held: The appeal succeeded and the policy was declared unlawful. The 2003 Act brought in provisions which had not been implemented, and the Transitional Order applied. However the 2005 Order allowed the possibility of capricious results, and the result was not that intended by Parliament. Paragraph 14 of the 2005 Order was intended to apply only where all the sentences were less than twelve months, but this left a gap for the situation where one or more was not. It was intended that sections 262(3) and 264(2) and (3) should apply. The guidance incorrectly inferred that an order that two sentences are to be consecutive directs that the second should start when the custodial part of the first ends has no basis in law and converts a sentence that is directed to be consecutive into a sentence which is in part concurrent.

Lord Phillips, President, Lord Saville, Lord Brown, Lord Mance, Lord Judge
[2010] UKSC 30, [2010] WLR (D) 164, [2010] 1 WLR 1743, [2010] 4 All ER 463, [2010] 1 WLR 1743
Bailii, Bailii Summary, SC, SC Summary
Criminal Justice Act 1991, Criminal Justice Act 2003 181 244, Crime and Disorder Act 1998 101, Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005 14
England and Wales
Citing:
At First InstanceNoone, Regina (on the Application of) v HMP Drake Hall and Another Admn 31-Jan-2008
The court considered the complications created when the schemes for providing early release of short term prisoners had not been implemented, but the new Act impacted in the previous arrangements anyway as regards those sentenced to consecutive . .
Appeal fromNoone, Regina (on the Application of) v HMP Drake Hall and Another CA 17-Oct-2008
The prisoner disputed the calculation of the date when she would become entitled to consideration for early release under a Home Detention Curfew. The Secretary of State appealed against a decision that his policy guidance was unlawful.
Held: . .
CitedHighton, Regina (on the Application of) v Her Majesty’s Youth Offender Institute Lancaster Farms and Another Admn 17-Apr-2007
Challenge to calculation of servable sentence term. . .
CitedRound and Dunn v Regina CACD 16-Dec-2009
Non-consolidation of sentence to debar home curfew
Each defendant had been sentenced to consecutive terms of imprisonment under the 1991 and 2003 Acts. One was above and one below twelve months. They complained that the result of trying to reconcile the statutory provisions was that they had . .
CitedInco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
CitedAttorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .
CitedStellato, Regina (on the Application of)v Secretary of State for the Home Department HL 28-Feb-2007
The prisoner had served part of his ten year sentence, been released on licence and then recalled. He complained that the new parole system under which he had then to apply was invalid, having been made Parliament by negative resolution.
Held: . .
CitedBuddington v Secretary of State for the Home Department CA 27-Mar-2006
The court considered the validity of of the claimant’s recall to prison. The words ‘falls to be released’ in paragraph 23 mean ‘is entitled to be released’ or ‘is released’. The author of the Order may have been suffering from ‘Homeric exhaustion’. . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Prisons

Leading Case

Updated: 11 November 2021; Ref: scu.420018

Sherry v The Queen: PC 4 Mar 2013

Discretion as to credit for remand time

(Guernsey) In 1980 the appellant had been sentenced to three months imprisonment. He had spent 10 days on remand, but no allowance was given for that time. He gave notice of appeal, but after being released on open remand, he failed to appear at his appeal, and was ordered to serve the three months less only five days served. By then he had served the 33 days also following his initial conviction. He sought leave to appeal so that he could return to the island.
Held: The appeal failed. The law was not uncertain. Anyone entering such an appeal would know from the relevant statute that the court would be given a discretion as to the date from which his sentence would run, whether from the date of its own order or from the date when it was imposed, or from some other date which would take into account the time already served.

Lord Neuberger, Lady Hale, Lord Kerr, Lord Wilson, Lord Sumption
[2013] UKPC 7
Bailii
Commonwealth
Citing:
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
CitedBirmingham City Council, Regina (on the Application of) v Birmingham Crown Court, RR interested Party; similar Admn 17-Dec-2009
Applicant councils sought to challenge by judicial review leave given to appeal out of time against ASBO orders.
Held: The requests failed. The courts were required when considering such applications to allow for the age of the defendant. The . .
CitedTaylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
CitedCallachand and Another v State of Mauritius PC 4-Nov-2008
(Mauritius) ‘In principle it seems to be clear that where a person is suspected of having committed an offence, is taken into custody and is subsequently convicted, the sentence imposed should be the sentence which is appropriate for the offence. It . .
CitedGordon, Regina v; Regina v Taylor etc CACD 8-Feb-2007
The court considered the interaction of sections 240 of the 2003 Act, and 67 of the 1967 Act as applied to time spent on remand.
Held: The court laying down the sentence should address this issue, and declare whether all time or otherwise . .
CitedKumar Ali v The State (Appeal 56 of 2004) and Leslie Tiwari v The State PC 2-Nov-2005
PC (Trinidad and Tobago) The Board was asked to determine the date from which an unsuccessful appellant’s sentence should run. Pending an appeal or whilst on remand, a prisoner would be held in less demanding . .
CitedThe Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
CitedWinterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Prisons, Human Rights

Updated: 11 November 2021; Ref: scu.471319

Haney and Others, Regina (on The Application of) v The Secretary of State for Justice: SC 10 Dec 2014

The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had been bound by decisions of the House of Lords despite those decisions being ruled incorrect by the ECHR.
Held: The Court allowed Haney and Massey’s article 5 appeal, awarding Haney damages, but dismissed Haney’s article 14 appeal and Kaiyam’s article 5 appeal; and dismissed the article 5 appeal of Robinson by a majority of 4-1 (Lord Mance dissenting).
The Court was not bound by the ECHR in James -v- UK as regards a failure to allow progress toward release being an infringement. Article 5 imposed a duty on the SS to provide arrangements to facilitate prisoners’ rehabilitation and release, but a breach would sound only in damages without undermining the lawfulness of the detention.
Lord Mance, dissenting in the case of Robinson, said that article 5 required that Robinson be given a reasonable degree of access to the extended sexual offender’s treatment programme.
Otherwise: Regina (Kaiyam) v Secretary of State for Justice

Lord Neuberger, President, Lord Mance, Lord Hughes, Lord Toulson, Lord Hodge
[2014] UKSC 66, UKSC 2014/0036, [2015] 2 WLR 76, [2015] 2 All ER 822, [2015] 1 AC 1344, 38 BHRC 313
Bailii, SC, SC Summary, SC Video, Bailii Summary
Crime (Sentences) Act 1997 28(5) 28(6), Legal Aid, Sentencing and Punishment of Offenders Act 2012 122
England and Wales
Citing:
CitedSecretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
CitedJames, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .
At AdminRobinson, Regina (on The Application of) v HMP Whatton and Another Admn 4-Dec-2013
Two prisoners serving sentences of imprisonment for public protection sought judicial review of arrangements meaning that they had not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their . .
At CAKaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
CitedKay 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 . .
CitedClift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .
CitedCassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
CitedStafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
CitedRegina v Hodgson CACD 1967
The court stated that the exceptional circumstances required to justify imposition of a life sentence for an offence other than murder are present if three conditions. First, the offence or offences are in themselves serious enough to require a very . .
CitedRegina v Chapman CACD 22-Jul-1999
A discretionary life sentence intended to protect the public could now only be imposed after establishing compliance with the Act in that the sentence was so serious as to deserve a very long sentence, and for an unforeseeable time into the future, . .
CitedRegina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
CitedWeeks v The United Kingdom ECHR 5-Oct-1988
The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. . .
CitedThynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
CitedClift v The United Kingdom ECHR 13-Jul-2010
Mr Clift had been sentenced in England to a term of imprisonment of 18 years for crimes including attempted murder. The Parole Board recommended his release on licence once he had served half of his sentence. The Secretary of State rejected its . .
CitedSturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2) SC 3-Jul-2013
From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision . .
CitedMartin Corey, Re for Judicial Review SC 4-Dec-2013
The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence . .
CitedAmuur v France ECHR 25-Jun-1996
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Violation of Art. 5-1; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – domestic . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
CitedSaadi v United Kingdom ECHR 29-Jan-2008
(Grand Chamber) The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast-track processing. The decision was made pursuant to a policy under which all asylum claimants . .
CitedChester, 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 . .
CitedRabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
CitedManchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
CitedHorncastle 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 . .
CitedKafkaris v Cyprus ECHR 12-Feb-2008
(Grand Chamber) The claimant said that his rights had been infringed by the mandatory imposition of a life sentence after conviction for murder. Only the President could order the release of such a prisoner, either by exercising the power of mercy . .
CitedSaadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
CitedHall v United Kingdom ECHR 12-Nov-2013
The claimant had been imprisoned for sexual offences. Whilst in prison as an IPP prisoner, and after completion of his tariff, he completed courses required to assist his treatment and demonstrate his improvement, there was an undue delay in his . .
CitedFaulkner, 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 . .
CitedZagidulina v Russia ECHR 2-May-2013
The Court limited itself to article 5(1)(e), when it stated that: ‘the notion of ‘lawfulness’ in the context of article 5(1)(e) of the Convention might have a broader meaning than in national legislation. Lawfulness of detention necessarily presumes . .
CitedGrosskopf v Germany ECHR 21-Oct-2010
The Court considered whether a sufficient causal connection existed between the applicant’s original conviction and his continuing preventive detention.
Held: The Court expressed concern about the apparent absence of any special measures, . .

Cited by:
CitedLee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .
CitedDocherty, Regina v SC 14-Dec-2016
After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after . .
CitedBrown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
CitedRe Al M (Children) CA 28-Feb-2020
Publication of Children judgment – wide publicity
F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their . .
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.539821

MG (Prison-Article 28, (A) of Citizens Directive): UTIAC 12 Aug 2014

mg_prisonUTIAC1408

(1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion decision made against them must be based upon imperative grounds of public security.
(2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG, ECLI:EU:C:2014:9, in respect of the meaning of the ‘enhanced protection’ provision.
(3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far as establishing integration is concerned.

Storey, Allen UTJJ
[2014] UKUT 392 (IAC)
Bailii
Directive 2004/38/EC
England and Wales

Immigration, Prisons, European

Updated: 11 November 2021; Ref: scu.536462

Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals): HL 27 Jan 2005

Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: ‘While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may contribute to achieving a just decision. The possibility of a detainee being heard either in prison or, where necessary, through some form of representation has been recognised by the European Court as, in some instances, a fundamental procedural guarantee in matters of deprivation of liberty . .’
Lord Bingham concluded: ‘The common law duty of procedural fairness does not . . require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Board’s task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society. ‘ and ‘the Parole Board should be empowered (a) to examine whether circumstances have arisen sufficient in law to justify further detention of a determinate sentence prisoner released on licence and, if so, (b) to decide whether the protection of the public calls for the further detention of the individual detainee. The Parole Board is empowered to discharge those functions. Its review will in my opinion satisfy the requirements of article 5(4) provided it is conducted in a manner that meets the requirement of procedural fairness already discussed.’ The revocation of a licence is not itself a punishment. In each case, the prisoner might have made representations which would have helped the Board make a better decision.

Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Carswell
[2005] UKHL 1, Times 28-Jan-2005, [2005] 1 WLR 350, [2005] 1 All ER 755, 18 BHRC 267, [2005] HRLR 8, [2005] 2 Prison LR 14
Bailii, House of Lords
European Convention on Human Rights 5 6
England and Wales
Citing:
CitedKioa v West 18-Dec-1985
kioa_westHCA1985
(High Court of Australia) Immigration and Aliens – Deportation – Power of Minister – Principles of natural justice – Whether applicable – Standing as Australian citizen of infant daughter of aliens – Intended deportation order – Whether notice . .
Appeal fromRegina (Smith) v Parole Board (No 2) CA 31-Jul-2003
The applicant having been released on licence had his licence revoked. The decision had been made at a hearing which considered evidence on paper only, which he said was unfair.
Held: The case law had maintained a proper distinction between . .
Appeal fromWest, Regina (on the Application of) v Parole Board CA 13-Nov-2002
The prisoner had been released on licence, but then recalled and re-arrested it being alleged that he was in breach of his conditions. His solicitors sought to represent him at the hearing of the parole board which considered whether to recommend . .
CitedRegina v Sharkey CACD 10-Nov-1999
Where an offender had been released from prison under licence, but committed a further offence whilst released on licence, and had already been recalled to prison by way of his licence being revoked under section 39, that did not prevent a court . .
CitedWeeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
CitedPractice Direction (Custodial Sentences: Explanations) LCJ 24-Jan-1998
Courts sentencing offenders to imprisonment are now to explain the effect of remission etc in open court when sentencing; the exact form of words was set out. . .
CitedRegina v Parole Board, ex Parte Watson CA 11-Mar-1996
The test as to whether there was still a need to protect the public safety from the defendant was just as appropriate when considering the revocation of a licence, as it was when the need for continued detention was being reviewed before the grant . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedRegina v Governor of Her Majesty’s Prison Brockhill ex parte Evans (No 2) HL 27-Jul-2000
The release date for a prisoner was calculated correctly according to guidance issued by the Home Office, but case law required the guidance to be altered, and the prisoner had been detained too long. The tort of false imprisonment is one of strict . .
CitedIn re De Wilde, Ooms and Versyp v Belgium (No 1) ECHR 18-Nov-1970
The applicants had been detained under Belgian vagrancy laws. An earlier decision had found that their rights had been infringed because of the lack of effective means for them to challenge their detention. The Belgian government said that the . .
CitedSanchez-Reisse v Switzerland ECHR 21-Oct-1986
That a detainee may be heard either in person or, where necessary, through some form of representation can be a fundamental procedural guarantee in matters of deprivation of liberty. Article 5(4)was inspired by the English law of habeas corpus. . .
CitedDe Wilde, Ooms and Versyp v Belgium ECHR 18-Jun-1971
ECHR Judgment (Just satisfaction) Preliminary objection rejected (non-exhaustion); Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient 2832/66; 2835/66; 2899/66
CitedWinterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
CitedEngel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
CitedEzeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .
CitedLauko v Slovakia ECHR 2-Sep-1998
The applicant was fined under the domestic Minor Offences Act for accusing his neighbours, without justification, of causing a nuisance. The government relied on the modesty of the punishment capable of being imposed and the fact that the offence . .
CitedVan Droogenbroeck v Belgium ECHR 24-Jun-1982
The applicant was sentenced to two years’ imprisonment for theft. He had a previous convictions and was thought to have a persistent tendency to crime, and was placed at the government’s disposal for 10 years on that ground. This was subject to . .
CitedOzturk v Germany ECHR 21-Feb-1984
A minor infringement may be the subject of a criminal charge: ‘If the Contracting States were able at their discretion, by classifying an offence as ‘regulatory’ instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 . .
CitedGaryfallou Aebe v Greece ECHR 24-Sep-1997
The fact that only a fine was imposed did not prevent an allegation being one of a criminal offence. . .
CitedCampbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
CitedAP MP and TP v Switzerland ECHR 29-Aug-1997
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-2; Not necessary to examine Art. 6-1; Not necessary to examine Art. 6-3; Costs and expenses award – Convention proceedings
Fines were imposed . .
CitedBenham v United Kingdom ECHR 8-Feb-1995
Legal Aid was wrongfully refused where a tax or fine defaulter was liable to imprisonment, and the lack of a proper means enquiry, made imprisonment of poll tax defaulter unlawful. A poll tax defaulter had been wrongly committed to prison by . .
CitedThynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
CitedE v Norway ECHR 29-Aug-1990
The applicant suffered serious brain damage and was an untreatable psychopath. He was convicted of numerous violent offences and sentenced to a period of imprisonment. He was also sentenced to preventive detention under the Norwegian Penal Code, as . .
CitedAldrian v Austria ECHR 1990
(Admissibility) ‘The Commission recalls its constant case-law according to which proceedings concerning the execution of a sentence imposed by a competent court, including proceedings on the grant of conditional release, are not covered by Article 6 . .
CitedAerts v Belgium ECHR 30-Jul-1998
A person detained as a person of unsound mind should not be kept in a prison, but if the institution concerned is within the appropriate category, there is no breach of Article 5. While measures depriving a person of his liberty often involve an . .
CitedBrown v United Kingdom ECHR 26-Oct-2004
The applicant had been sentenced to eight years imprisonment for supplying heroin and released on licence after serving two-thirds of this sentence. He was recalled for breach of the residence conditions of his bail. The Parole Board then considered . .
CitedGanusauskas v Lithuania ECHR 7-Sep-1999
The applicant had been released on licence after serving half a six year prison service under a law which permitted the release of a prisoner on licence after serving half his sentence. There was then a series of court hearings which resulted in the . .
CitedMaaouia v France ECHR 5-Oct-2000
A deportation order, made against a Tunisian, was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to . .
CitedAmand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a . .
CitedRegina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
CitedJordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
CitedPabla Ky v Finland ECHR 22-Jun-2004
A member of the Finnish Parliament who also sat as an expert member of the Court of Appeal was said to lack independence as a judge.
Held: The complaint was rejected. Also there was no no objective justification for the applicant’s fear as to . .
CitedClingham (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 by:
Appealed toRegina (Smith) v Parole Board (No 2) CA 31-Jul-2003
The applicant having been released on licence had his licence revoked. The decision had been made at a hearing which considered evidence on paper only, which he said was unfair.
Held: The case law had maintained a proper distinction between . .
Appealed toWest, Regina (on the Application of) v Parole Board CA 13-Nov-2002
The prisoner had been released on licence, but then recalled and re-arrested it being alleged that he was in breach of his conditions. His solicitors sought to represent him at the hearing of the parole board which considered whether to recommend . .
CitedRegina (Broadbent) v Parole Board QBD 27-May-2005
The claimant was a long term prisoner released on licence. He had been stopped and charged with conspiracy to supply a controlled drug. He pleaded not guitly. He challenged revocation of his licence.
Held: A charge alone was not sufficient to . .
CitedMcClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
CitedRoberts 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: . .
CitedDudson, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The defendant had committed a murder when aged 16, and after conviction sentenced to be detailed during Her Majesty’s Pleasure. His tarriff had been set at 18 years, reduced to 16 years after review.
Held: ‘What is at issue is the general . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
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 . .
CitedBlack, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
CitedWhiston, Regina (on The Application of) v Secretary of State for Justice CA 25-Oct-2012
The claimant was a prisoner released on a home detention licence, but his licence had been revoked. He now said that the way it had been revoked, without the respondent’s decision being subject to confirmation by the Parole Board, nor to other . .
CitedKing, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
CitedOsborn v The Parole Board Admn 19-Mar-2010
The claimants complained that decisions had been made by the respondents without them having been first given a right to an oral hearing. They now sought permission to bring judicial review.
Held: Permission was refused. The facts in the . .
CitedOsborn and Another v The Parole Board CA 15-Dec-2010
The three claimants complained that the respondent had made decisions adverse to them as to their release to or recall from parole.
Held: Review was refused. While there was ‘some force in the submission that, contrary to the understanding of . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedRobinson, Regina (on The Application of) v Secretary of State for Justice CA 19-May-2010
The appellant had been released on licence during his sentence but then recalled. He contended that the effect of the newly introduced section 50A was a retrospective increase in his sentencce. . .
CitedWhiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
CitedYoungsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.222082

Clift, Regina (on the Application of) v Secretary of State for the Home Department: HL 13 Dec 2006

The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their early release had been vested in the respondent and not in the courts.
Held: It could no longer be said that there was any proper place for a political role in such decisions. The involvement of the respondent for foreign nationals only was discriminatory and unjustifiable.
Lord Bingham said: ‘In M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91, [2006] 4 All ER 929, the House had recent occasion to review the Strasbourg jurisprudence on the applicability of art 14, and attempted to distil the essence of the relevant principles. Although different members of the House used different language, and the outcome vividly illustrated the difficulty which may arise in applying the principles to a concrete case, none of these opinions was criticised as inaccurate or incomplete, and I do not think any purpose will be served by repeating those opinions or citing passages from them. Plainly, expressions such as ‘ambit’, ‘scope’ and ‘linked’ used in the Strasbourg cases are not precise and exact in their meaning. They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M, at para 14, for a value judgment. The court is required to consider, in respect of the Convention right relied on, what value that substantive right exists to protect.’
The House concluded: ‘i) There was agreement that the words ‘or other status’ in article 14 (in French ‘toute autre situation’) are far from precise, but that they are not intended to cover differential treatment on any ground whatever, because in that case, the list of grounds which precede them would be otiose (paras 27, 43, and 56).
ii) Reliance was placed on the passage quoted above from para 56 of Kjeldsen, and the search was for something in the nature of a ‘personal characteristic by which persons or groups of persons are distinguishable from each other’ (paras 27, 28, 42, and 56 for example).
iii) It was accepted that, as the specific grounds of discrimination listed in article 14 show, protection is extended not only to characteristics over which a person has no control, such as race or birth, but also to acquired characteristics, such as religion or political opinion (paras 28 and 45).
iv) Lord Bingham and Lord Hope both advanced the proposition that, to qualify, the personal characteristic in question must exist independently of the treatment of which complaint is made. Lord Bingham said, at para 28, that he did ‘not think that a personal characteristic can be defined by the differential treatment of which a person complains’, without giving any explanation, or authority, for this view. He did not appear to consider that Mr Clift would fall foul of this, as he was not complaining of the sentence passed on him, but of being denied a definitive Parole Board recommendation. Lord Hope agreed, at para 47, that ‘[i]t must be accepted, as Lord Bingham points out, that a personal characteristic cannot be defined by the differential treatment of which a person complains.’ Although he similarly did not spell out the foundation for his view, it may lie in his observation, at para 45, that each of the specific grounds shared a feature in common, namely that ‘they exist independently of the treatment of which complaint is made’ and ‘[i]n that sense, they are personal to the complainant.’ The remainder of para 47 is not entirely easy to understand, but might indicate that Lord Hope shared Lord Bingham’s opinion that this was not an area of difficulty for Mr Clift. It reads:
‘It is plain too that the category of long-term prisoner into which Mr Clift’s case falls would not have been recognised as a separate category had it not been for the Order which treats prisoners in his group differently from others in the enjoyment of their fundamental right to liberty. But he had already been sentenced, and he had already acquired the status which that sentence gave him before the Order was made that denied prisoners in his group the right to release on the recommendation of the Parole Board. The question which his case raises is whether the distinguishing feature or characteristic which enables persons or a group of persons to be singled out for separate treatment must have been identified as a personal characteristic before it is used for this purpose by the discriminator.’
v) There was an examination of the ambit of article 14 as demonstrated by decisions of the ECtHR and the domestic courts in various factual contexts. Baroness Hale included a particularly detailed list of authorities at para 58, which led her to make the observation that in the ‘vast majority of Strasbourg cases where violations of article 14 have been found, the real basis for the distinction was clearly one of the proscribed grounds or something very close’. Examples were given of cases in which the grounds for the discrimination were not within article 14 (see, for example, paras 27, 45, 59-61), including prisoners who were treated differently because of the legislature’s view of the gravity of their offences ( Gerger v Turkey 8 July 1999, [1999] ECHR 46, para 69, and see also Budak v Turkey (Application No 57345/00) (unreported), [2006] ECHR 1214). And there was discussion of R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196 where the House of Lords held that article 14 did not cover differential treatment on the basis that a person had previously been investigated by the police and provided fingerprints; the possession of fingerprints and DNA samples by the police in that situation was simply a matter of historical fact, not attributable to the personal characteristics of those who had provided them.’

Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2006] UKHL 54, Times 21-Dec-2006, [2007] 1 AC 484, [2007] 2 WLR 24, [2007] 2 All ER 1, 21 BHRC 704, [2007] HRLR 12, [2007] UKHRR 348
Bailii, HL
European Convention on Human Rights 5 14, Criminal Justice Act 2003
England and Wales
Citing:
CitedStec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
CitedSmith v Secretary of State for Work and Pensions and Another HL 12-Jul-2006
The House considered whether under the 1992 Regulations a self-employed parent could use for his child support calculation his net earnings as declared to the Revenue, which would allow deduction of capital and other allowances properly claimed . .

Cited by:
CitedAL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
CitedCountryside 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 . .
CitedBlack, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
See Also (HL)Clift v The United Kingdom ECHR 30-Apr-2009
Mr Clift was serving a sentence of 18 years’ imprisonment for very serious crimes, including attempted murder, and complained that the early release provisions in respect of his sentence gave rise to a violation of article 14. The House of Lords . .
CitedYoung, Regina (on The Application of) v Governor of Her Majesty’s Prison Highdown and Another Admn 6-Apr-2011
The claimant complained that he had not been considered for early release on Home Detention Curfew because the policy refused to allow those convicted of knife crimes to be so considered, and: ‘the failure to include other offences in the list of . .
CitedMathieson v Secretary of State for Work and Pensions SC 8-Jul-2015
The claimant a boy of three in receipt of disability living allowance (‘DLA’) challenged (through his parents) the withdrawal of that benefit whilst he was in hospital for a period of more than 12 weeks. He had since died.
Held: The appeal . .
CitedRobinson, Regina (on The Application of) v HMP Whatton and Another Admn 4-Dec-2013
Two prisoners serving sentences of imprisonment for public protection sought judicial review of arrangements meaning that they had not been given a timely opportunity to demonstrate to the Parole Board that they are safe to be released. Their . .
CitedKaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
See AlsoClift v The United Kingdom ECHR 13-Jul-2010
Mr Clift had been sentenced in England to a term of imprisonment of 18 years for crimes including attempted murder. The Parole Board recommended his release on licence once he had served half of his sentence. The Secretary of State rejected its . .
CitedSteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.

Prisons, Constitutional, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.247397

Yepishin v Russia (Legal Summary): ECHR 27 Jun 2013

Article 34
Hinder the exercise of the right of petition
Prison administration’s refusal to pay postage for dispatch of prisoner’s letters to the European Court: no violation
Facts – The applicant, who was serving a prison sentence in a correctional colony, complained that the colony authorities had refused to assist him with postage costs he could not afford for correspondence with the European Court. According to the Government, the authorities had twice paid for letters to be sent to the Court, but the supervising prosecutor had then informed the applicant’s representative that no federal budget funds had been allocated to provide free stationery to inmates. The applicant subsequently received money, stamps and envelopes from an NGO.
Law – Article 34: Not providing a prisoner with the resources required to correspond with the Court could contribute to a finding of a breach of the State’s obligations under Article 34 of the Convention. However, the Court did not consider the facts complained of by the applicant sufficient to disclose any prejudice in the presentation of his application. Although the authorities had on a number of occasions refused to pay the postage, it did not appear to have been excessively burdensome for him to bear the expenses himself. The applicant had been found fit for work and could have accepted employment that had been offered by the correctional colony. The fact that the applicant’s representative had sent him stamps and envelopes and cash to pay for the postage did not raise an issue under Article 34. Accordingly, the Government had not failed to comply with their obligation under that provision.
Conclusion: no violation (unanimously).
The Court found a violation of Article 3 on account of the conditions of the applicant’s detention and a violation of Article 13 on account of the lack of an effective remedy to complain about the conditions of detention. It awarded the applicant EUR 19,000 in respect of non-pecuniary damage.

591/07 – Legal Summary, [2013] ECHR 728
Bailii
European Convention on Human Rights 34
Human Rights
Cited by:
See AlsoYepishin v Russia ECHR 27-Jun-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 11 November 2021; Ref: scu.513588

Boulois v Luxembourg: ECHR 3 Apr 2012

(Grand Chamber) The claimant complained that as a prisoner he had been deprived of his right to a fair hearing and his right of access to a court in connection with the decisions refusing his requests for prison leave.
Held: The complaint was admissible, and a breach of the prisoner’s article 6 rights had been established. Although there was a right of appeal, the grant of any such visits remained discretionary, and ‘it cannot be consistent with the principle of the rule of law unless it is subject to review. Where there is no such review, the power becomes arbitrary.’
For article 6.1 in its civil limb to be applicable, there must be a dispute over a ‘right’ which can be said, at least on arguable grounds, to be recognised under domestic law: ‘The court may not create by way of interpretation of article 6(1) a substantive right which has no legal basis in the state concerned. The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. This court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law.’

Nicolas Bratza, P
37575/04, [2012] ECHR 587, (2012) 55 EHRR 32
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoBoulois v Luxembourg ECHR 14-Dec-2010
The applicant was serving a long sentence for serious offences. He had submitted several requests for ‘prison leave’ in order to carry out tasks in preparation for his eventual release. These had been refused by the Attorney General. The domestic . .

Cited by:
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
CitedPoshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Leading Case

Updated: 11 November 2021; Ref: scu.452585

V v The United Kingdom; T v The United Kingdom: ECHR 16 Dec 1999

The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the European Convention in that the decision maker was the Secretary of State rather than a court or tribunal independent of the executive.
Held: In order for a punishment or treatment associated with it to be ‘inhuman’ or ‘degrading’, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.

24888/94, (1999) 30 EHRR 121, Times 17-Dec-1999, ECHR 1999-IX, 24724/94, [1999] ECHR 170, [1999] ECHR 171, [1999] Prison LR 189, [2000] 2 All ER 1024, 7 BHRC 659, [2000] Crim LR 187, 12 Fed Sent R 266, [2000] 30 EHRR 121
Worldlii, Worldlii, Bailii, Bailii
European Convention on Human Rights 3 6.1
Human Rights
Citing:
See AlsoT and V v The United Kingdom ECHR 8-Apr-1999
Public trial in an adult court of juvenile charged with murder and imposition of a sentence of detention during Her Majesty’s pleasure with a tariff of fifteen years fixed by a member of the executive. The trial of two ten year olds in a public . .
See AlsoRegina v Secretary of State For The Home Department, Ex Parte Venables, Regina v Secretary of State For The Home Department, Ex Parte Thompson HL 12-Jun-1997
A sentence of detention during her majesty’s pleasure when imposed on a youth was not the same as a sentence of life imprisonment, and the Home Secretary was wrong to treat it on the same basis and to make allowance for expressions of public . .

Cited by:
CitedRegina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .
CitedRegina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
CitedRegina on the Application of Smith v The Secretary of State for the Home Department Admn 3-Apr-2003
The case asked what duty the respondent had, in respect of youths sentenced to be detained during Her Majesty’s Pleasure before 30th November 2000, to review their continued detention at regular intervals. A statement said that once a tarriff had . .
CitedEasterbrook v The United Kingdom ECHR 12-Jun-2003
The prisoner was convicted of an armed robbery in which a policeman had been shot, and had been sentenced to life imprisonment. The judge set no tariff himself. The tariff was set by the Home Secretary, but only after some time. The discretionary . .
CitedRe S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
CitedLorse 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 . .
CitedRegina (on the Application of Dudson) v Secretary of State for the Home Department and the Lord Chief Justice Admn 21-Nov-2003
The applicant had been sentenced to detention during Her Majesty’s Pleasure. He sought a judicial review of the Lord Chief Justice’s recommendation to the Home Secretary for the minimum term he was to serve.
Held: In exercising this function, . .
CitedSC v The United Kingdom ECHR 15-Jun-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses . .
CitedID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
CitedDudson, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The defendant had committed a murder when aged 16, and after conviction sentenced to be detailed during Her Majesty’s Pleasure. His tarriff had been set at 18 years, reduced to 16 years after review.
Held: ‘What is at issue is the general . .
CitedAdam, 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 . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
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 . .
CitedH, Regina v CACD 25-Apr-2006
The defendant youth appealed his conviction and sentence for rape by oral penetration of a six or seven year old boy. He complained that the evidence contained such inconsistences that the case should not have proceeded. Complaint was also made that . .
CitedMAK and RK v The United Kingdom ECHR 23-Mar-2010
mak_ukECHR10
When RK, a nine year old girl was taken to hospital, with bruises, the paediatrician wrongly suspecting sexual abuse, took blood samples and intimate photographs in the absence of the parents and without their consent.
Held: The doctor had . .
CitedRegina v Acton Youth Court ex parte Director of Public Prosecutions Admn 10-May-2000
The youth court had made an order that the victim could give evidence in-chief by video recording and the remainder of her evidence by television link. When the case came to trial before a differently constituted bench the defendant successfully . .
CitedE and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
CitedA 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 . .
CitedPNM 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.

Human Rights, Criminal Sentencing, Prisons

Leading Case

Updated: 11 November 2021; Ref: scu.165800

Rex v Huggins and Barnes: KBD 1730

Gaoler – Murder of Prisoner by Lack of Care

The defendant Huggins was warden of the Fleet Prison. A prisoner, Arne, died in 1725. Barnes, a gaoler had put him in a room ‘without fire, chamber-pot or close-stool, the walls being damp and unwholesome, and the room built over the common sewer’. Thus confined, Arne ‘by reason of his imprisonment in the said room sickened, and by duress thereof died’ 44 days later. Huggins was indicted and tried at the Old Bailey for his murder, under an allegation that as warden of the Fleet he ‘had the care and custody of the prisoners committed thither’, that ‘Barnes was his servant, employed by him in taking care of the prisoners’, that at the time of Arne’s imprisonment Barnes and Huggins knew the room to be as before described and that Huggins was ‘aiding and abetting Barnes in committing the said felony and murder.’ The jury had returned a special verdict finding that Barnes was in fact the servant of Huggins’ deputy, Gibbon, and that Huggins had visited the cell only once, some 15 days before Arne died.
Held: In a certiorari in the Kings Bench, the judges concluded that Barnes, if indicted, would, on the facts as found by the jury, have been guilty of murder, but that Huggins was not guilty.
Lord Raymond LCJ said: ‘Though he was warden, yet it being found, that there was a deputy; he is not, as warden, guilty of the facts committed under the authority of his deputy. He shall answer as superior for his deputy civilly, but not criminally. It has been settled, that though a sheriff must answer for the offences of his gaoler civilly, that is, he is subject in an action, to make satisfaction to the party injured; yet he is not to answer criminally for the offences of his under-officer. He only is criminally punishable, who immediately does the act, or permits it to be done. Hale’s P. C. 114. So that if an act be done by an under-officer, unless it is done by the command or direction, or with the consent of the principal, the principal is not criminally punishable for it. In this case the fact was done by Barnes; and it no where appears in the special verdict, that the prisoner at the Bar ever commanded, or directed, or consented to this duress of imprisonment, which was the cause of Arne’s death.’
In Strange’s report: ‘It is a point not to be disputed, but that in criminal cases the principal is not answerable for the act of the deputy, as he is in civil cases: they must each answer for their own acts, and stand or fall by their own behaviour. All the authors that treat of criminal proceedings, proceed on the foundation of this distinction; that to affect the superior by the act of the deputy, there must be the command of the superior, which is not found in this case.’
Fitz-Gibbons reported: ‘The act of the deputy cannot criminally affect the principal; so that unless the act be by command, consent, or privity of the principal, so as to make him an abettor, he cannot be guilty.’

Lord Raymond LCJ, Lord Chief Justice
(1730) 2 Str 883, (1730) 2 Ld Raym 1574, (1730) Fitz 177
England and Wales
Cited by:
CitedCraik, Chief Constable of Northumbria Police, Regina (on The Application of) v Newcastle Upon Tyne Magistrates’ Court Admn 30-Apr-2010
The claimant a retired Chief Constable sought judicial review of a decision to commit him for trial on a charge of unlawful imprisonment. The suspect and now prosecutor had been arrested and held in custody, but without the necessary timely review . .

Lists of cited by and citing cases may be incomplete.

Prisons, Crime, Vicarious Liability

Leading Case

Updated: 11 November 2021; Ref: scu.408854

Coll v Secretary of State for Justice: CA 31 Mar 2015

The appellant was serving a mandatory life sentence for murder. She was being considered for release from custody to ‘Approved Premises’. There were however more such centres for men and the provision for women was unplanned. The results, she said was dicriminatory in that women would be likely to be housed further away than men. She now appealed against rejection of her claim.
Held: The appeal failed. The provision was not discriminatory. The system did disadvantage women, but this was as an unintended result, not one of discrimination. Exactly the same rules were being applied for men and women, but it was the difference in numbers which created this result.

Lord Dyson MR, Elias Sharp LJJ
[2015] EWCA Civ 328, [2015] WLR(D) 157
Bailii, WLRD
Equality Act 2010 13 19
England and Wales
Citing:
Appeal fromGriffiths v Secretary of State for Justice Admn 19-Dec-2013
The claimants challenge what is said to be the continuing failure of the Secretary of State for Justice (‘the Secretary of State’) to make adequate provision for so called approved premises to accommodate women released from prison on licence. The . .

Cited by:
CitedColl, Regina (on The Application of) v Secretary of State for Justice SC 24-May-2017
The appellant female prisoner asserted that the much smaller number of probation and bail hostels provided for women prisoners when released on licence was discriminatory in leaving greater numbers of women far removed from their families.
Prisons, Discrimination

Updated: 11 November 2021; Ref: scu.544993

P, Regina (on The Application of) v HM Coroner for The District of Avon: CA 18 Dec 2009

The deceased was found hanging in her prison cell. The jury returned a verdict of accidental death, not being satisfied that she was not merely making a cry for help. The family appealed a finding that the inquest had satisfied the requirement for a fuller investigation of a death in custody, there having been an investigation and report by the Prisons’ Ombudsman. They said that the jury should have been advised that they could attach a narrative to their verdict. The deceased had given several signs of possible suicide, but these had not been put together.
Held: The jury had been given advice on completion of the form including the possibility of a narrative verdict. However, the direction gave the jury the impression that they could only attach a narrative if the verdict of suicide or accident was insufficient. That was, since Middleton, incorrect, a misdirection.
Nevertheless the verdict should not be quashed or a new inquest ordered. The presence of the Prisons ombudsman’s report, and the actions taken on it filled any lacunae in the satisfaction of the State’s article 2 obligations.

Dyson LJ, Maurice Kay LJ, Rimer LJ
[2009] EWCA Civ 1367
Bailii
European Convention on Human Rights 2, Coroners Act 1988 11(5)(b)(ii)
England and Wales
Citing:
Appeal fromP, Regina (On the Application of) v HM Coroner for the District Of Avon Admn 5-Mar-2009
The deceased was found suspended by a sheet in her prison cell. The jury found accidental death, not being satisfied that she was not issuing a cry for help. The family appealed saying that the jury had not been directed that they could provide a . .
CitedRegina v North Humberside and Scunthorpe Coroner ex parte Jamieson CA 27-Apr-1994
The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, . .
CitedMiddleton, 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.
CitedRegina (Cash) v County of Northamptonshire Coroner Admn 2007
. .
CitedAmin, 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 . .

Lists of cited by and citing cases may be incomplete.

Coroners, Human Rights, Prisons

Updated: 11 November 2021; Ref: scu.384363

TF, Regina (on the Application of) v Secretary of State for Justice: CA 18 Dec 2008

The claimant had been near to completing a sentence for serious violence. He now challenged the way in which, as his sentenced approached completion, the defendant had sought an order transferring him to a secure mental hospital. He was served with an order as he left the prison. The court had said that there was no evidence to sugest that he could receive any treatment which might alleviate his condition, but allowed a discretionary inclusion of later acquired evidence to support this.
Held: The appeal was allowed. At the time of the decision, the respondent did not have the requirements set down by the statute. The reports later produced were from interviews which were not recent.

Waller LJ VP, Thomas LJ, Aikens LJ
[2008] EWCA Civ 1457, Times 06-Feb-2009
Bailii
Mental Health Act 1983 47
England and Wales
Citing:
CitedRegina v Secretary of State for Home Office ex parte Gilkes Admn 21-Jan-1999
The prisoner challenged a decision to have her transferred to a mental hospital under scetion 47.
Held: It had not been reasonable for the Secretary of State to rely on one of the two medical reports she relied on. However since if the . .
CitedEshugbayi Eleko v Office Administering the Government of Nigeria HL 24-Mar-1931
The claimant sought a writ of habeas corpus.
Held: Lord Atkin said that in a habeas corpus case, ‘no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality . .
CitedLiversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
CitedMurray v Ministry of Defence HL 25-May-1988
The plaintiff complained that she had been wrongfully arrested by a soldier, since he had not given a proper reason for her detention.
Held: The House accepted the existence of an implied power in a statute which would be necessary to ensure . .
CitedRegina v Secretary of State for the Home Department ex parte Cheblak CA 1991
Because of the importance placed on the swift and efficient determination of lawfulness of the restraint, habeas corpus applications are given priority in the organisation of the business of the court.
In order to be permitted to present a . .
CitedID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .

Lists of cited by and citing cases may be incomplete.

Health, Prisons

Updated: 10 November 2021; Ref: scu.278951

Whiston, Regina (on The Application of) v Secretary of State for Justice: CA 25 Oct 2012

The claimant was a prisoner released on a home detention licence, but his licence had been revoked. He now said that the way it had been revoked, without the respondent’s decision being subject to confirmation by the Parole Board, nor to other opportunity to make representations, was infringement of his human rights.
Held: The appeal failed. ‘The critical question is whether in the particular circumstances of this case the recall from home detention curfew constitutes a fresh deprivation of liberty or whether that renewed detention remains justified by the original sentence of imprisonment.’ and ‘The release on home detention curfew was not properly to be viewed as the restoration of liberty sufficient to engage Article 5 if and when the prisoner was recalled to prison. It was a modified way of performing the original sentence imposed by the judge; the recall simply restores the primary way in which it was assumed that the sentence would be served.’

Pilll, Elias, Patten LJJ
[2012] EWCA Civ 1374, [2014] 1 QB 306, [2013] 2 WLR 1080
Bailii
European Convention on Human Rights 5(4), Criminal Justice Act 2003 246 255
England and Wales
Citing:
CitedBenson, Regina (on the Application of) v Secretary of State for Justice Admn 20-Aug-2007
The claimant complained that the revocation of his home detention licence under section 255 was an infringement of his human rights.
Held: There had been no deprivation of liberty.
Collins J said: ‘In my judgment, having regard to the . .
CitedGiles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
CitedMcAlinden, Regina (on The Application of) v Secretary of State for The Home Department Admn 4-May-2010
A section 255 home detention licence revocation does not involve a deprivation of liberty so as to engage Article 5(4). . .
CitedVan Droogenbroeck v Belgium ECHR 24-Jun-1982
The applicant was sentenced to two years’ imprisonment for theft. He had a previous convictions and was thought to have a persistent tendency to crime, and was placed at the government’s disposal for 10 years on that ground. This was subject to . .
CitedE v Norway ECHR 29-Aug-1990
The applicant suffered serious brain damage and was an untreatable psychopath. He was convicted of numerous violent offences and sentenced to a period of imprisonment. He was also sentenced to preventive detention under the Norwegian Penal Code, as . .
CitedHussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .
CitedStafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedBlack, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .

Cited by:
Appeal fromWhiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights, Prisons

Updated: 10 November 2021; Ref: scu.465364

Regina v Board of Visitors of Hull Prison, Ex parte St Germain (No 2): CA 1979

Proper Limits on Imprisonment

The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An essential characteristic of the right of a subject is that it carries with it a right of recourse to the courts unless some statute decrees otherwise.’
The disciplinary decisions of prison Boards of Visitors could be distinguished from those of prison governors and were amenable to judicial review. In exceptional cases, where a disciplinary hearing may depend on the disputed factual evidence of a witness, natural justice itself may require that the employee should be be allowed to cross examine the witness.
Jeffrey Laing LJ said: ‘In our judgement, the statutory obligation to make the rules, and R49 (2) in particular, are merely declaratory on one of the basic rules of natural justice, namely that every party to the controversy has the right to a fair hearing. He must know what evidence has been given and what statements have been made effecting him; he then must be given a fair opportunity to correct or contradict them.’
the court in judicial review proceedings is neither concerned nor equipped to resolve issues of fact. The public authority’s evidence of the facts will be accepted.

Shaw LJ, Jeffrey Laing LJ
[1979] QB 425, [1979] 3 All ER 545, [1979] 1 WLR 1401
England and Wales
Cited by:
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
ApprovedO’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
CitedSantamera v Express Cargo Forwarding (T/A IEC Ltd) EAT 26-Nov-2002
The claimant appealed against a decision that she had not been unfairly dismissed. She had been dismissed after complaints by a colleague, but had not been given the opportunity to examine him during the process.
Held: An employer was not duty . .
CitedAl-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .

Lists of cited by and citing cases may be incomplete.

Prisons, Judicial Review

Leading Case

Updated: 10 November 2021; Ref: scu.190126

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 been, and each had claimed there was no basis for his continued detention, and sought damages. In one case the Secretary now appealed against the level of damages awarded, and in the other the prisoner appealed against the quashing of the damages award.
Held: Though an appellate court should not normally interfere in a damages assessment because it would have set a different figure, in this case it was being asked to set guideline figures. The proper figure in Falkner’s case was andpound;6,500.
A delay in the review after the completion of the minimum term was not tortious false imprisonment, and would only amont to a breach of article 5(1) in exceptional circumstances. Damages under section 8 of the 1998 Act should follow Greenfield, and ‘First, at the present stage of the development of the remedy of damages under section 8 of the 1998 Act, courts should be guided, following Greenfield, primarily by any clear and consistent practice of the European court. Secondly, it should be borne in mind that awards by the European court reflect the real value of money in the country in question. The most reliable guidance as to the quantum of awards under section 8 will therefore be awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living. Thirdly, courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so. ‘
The ordinary approach to the relationship between domestic law and the Convention was that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK’s international obligations, the starting point being our own legal principles rather than the judgments of the international court.
The Court considered the differences in practice and law between national and European Court decisions on damages, saying: ‘First, at the present stage of the development of the remedy of damages under section 8 of the 1998 Act, courts should be guided, following Greenfield, primarily by any clear and consistent practice of the European court. Secondly, it should be borne in mind that awards by the European court reflect the real value of money in the country in question. The most reliable guidance as to the quantum of awards under section 8 will therefore be awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living. Thirdly, courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so. ‘
. . And ‘awards where detention has been prolonged for several months, as the result of a violation of article 5(4), could reasonably be expected to be significantly above awards for frustration and anxiety alone, but well below the level of awards for a loss of unrestricted liberty. It is however impossible to derive any precise guidance from these awards. In accordance with section 8(1) and (4), a judgment has to be made by domestic courts as to what is just and appropriate in the individual case, taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases. ‘

Lord Neuberger, President, Lord Mance, Lord Kerr, Lord Reed, Lord Carnwath
[2013] UKSC 23, [2013] WLR(D) 162, [2013] 2 WLR 1157, UKSC 2011/0156, UKSC 2011/0124, [2013] 2 AC 254, 35 BHRC 378, [2013] 2 All ER 1013, [2013] HRLR 24
Bailii, WLRD, SC Summary, SC, Bailii Summary
European Convention on Human Rights 5, Crime (Sentences) Act 1997 2, Powers of Criminal Courts (Sentencing) Act 2000 109, Criminal Justice Act 2003 225, Human Rights Act 1998 8
England and Wales
Citing:
CitedWeeks v The United Kingdom ECHR 5-Oct-1988
The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. . .
CitedThynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
CitedStafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
CitedRegina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
CitedGreenfield, 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 . .
CitedSecretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
CitedBezicheri v Italy ECHR 25-Oct-1989
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses – claim rejected . .
CitedCesky v The Czech Republic ECHR 6-Jun-2000
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; . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedDenizci And Others v Cyprus ECHR 23-May-2001
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Struck out of the list in respect of Aziz Marthoca; No violation of Art. 2; Violation of Art. 3; Violation of Art. 5; . .
CitedRutten v The Netherlands ECHR 24-Jul-2001
The claimant prisoner complained of the delay in his release, awaiting a review. Domestic court proceedings had lasted two and a half months at first instance and a further three months on appeal. The proceedings had been brought by the public . .
CitedOldham v The United Kingdom ECHR 26-Sep-2000
Where a parole board took two years to consider the applicant’s parole, this was unreasonable, and a breach of the Article 5.4 requirement to deal with such matters speedily. Accordingly the continued detention of the applicant became unlawful. The . .
CitedHirst v United Kingdom ECHR 24-Jul-2001
The applicant asserted that the delays in the reviews, undertaken by the Parole Board, of his continued detention as a discretionary life prisoner, was a breach of his right to a speedy decision. The delays were between 21 and 24 months. Such delays . .
At First InstanceFaulkner, Regina (On the Application of) v Secretary of State for Justice and Another Admn 5-Jun-2009
The claimant had sought to challenge his continued detention in prison when his situation should have been reviewed but had not been. As a lifer he had served the time set in his tariff.
Held: The applicant was unlawfully at large and had not . .
Main Appeal (Faulkner)Faulkner, Regina (on The Application of) v Secretary of State for Justice The Parole Board CA 14-Dec-2010
The claimant sought damages saying that his detention in prison beyond the minimum period pending a review was unlawful when that review was delayed. He now appealed against dismissal of his claim when he had not appeared at court, being unlawfully . .
At first InstanceSturnham, Regina (on The Application of) v Parole Board, Secretary of State for Justice Admn 14-Mar-2011
S was serving a term of life imprisonment. After serving the tariff, his detention should have been reviewed. After several serious delays, and a decision that he should instead be transferred to open conditions, he brought proceedings for judicial . .
CitedGuntrip, Regina (on The Application of) v Secretary of State for Justice and Another Admn 9-Dec-2010
The claimant prisoner should have had his detention reviewed after serving the tariff part of his sentence. He sought damages for the delay. The first hearing before the Board, following the expiry of the tariff, had not taken place until about two . .
CitedFaulkner, Regina (on The Application of) v Secretary of State for Justice The Parole Board CA 29-Mar-2011
The court considered the approriate level of damages where the claimant’s detention had been wrongly extended through a failure to hold a timely review of his continued detention.
Held: A sum of andpound;10,000 was awarded. The court should . .
CitedJames, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .
CitedNiedbala v Poland ECHR 4-Jul-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Violation of Art. 5-4; Violation of Art. 8; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award
A warrant . .
CitedMigon v Poland ECHR 25-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Non-pecuniary damage – finding of violation sufficient; Costs and expenses (domestic proceedings) – claim rejected
‘In the present case, . .
CitedK B and Others, Regina (on the Application of) v Mental Health Review Tribunal and Another Admn 13-Feb-2003
The claimants were entitled to damages for their detention as mental patients, where this had been found to be wrongful as an infringement of their human rights. The court considered the appropriate level of damages.
Held: There was no clear . .
CitedAl-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
CitedRabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Appeal fromSturnham 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 . .
CitedVan Droogenbroeck v Belgium ECHR 25-Apr-1983
Hudoc Judgment (Just satisfaction) Non-pecuniary damage – financial award; Pecuniary damage – claim rejected; Costs and expenses – claim rejected
For an imprisonment to be lawful, the ‘detention’ must result . .
CitedE v Norway ECHR 29-Aug-1990
The applicant suffered serious brain damage and was an untreatable psychopath. He was convicted of numerous violent offences and sentenced to a period of imprisonment. He was also sentenced to preventive detention under the Norwegian Penal Code, as . .
CitedKoendjbiharie v The Netherlands ECHR 25-Oct-1990
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings
Unsuccessful proceedings brought . .
CitedPavletic v Slovakia ECHR 22-Jun-2004
ECHR Judgment (Merits and just satisfaction) Preliminary objections dismissed (victim, non-exhaustion of domestic remedies) ; Violation of Art. 5-3 ; Violation of Art. 5-4 ; Violation of Art. 5-5 ; No separate . .
CitedNeumeister v Austria ECHR 7-May-1974
The applicant complained, inter alia, of the length of time he had spent in detention while on remand from 24 February to 12 May 1961, that is, two months and sixteen days, and from 12 July 1962 to 16 September 1964, that is two years, two months . .
CitedScordino v Italy ECHR 29-Jul-2004
(French Text) Grand Chamber. In the context of unreasonable delay in violation of article 6(1), there was a strong but rebuttable presumption that excessively long proceedings would occasion non-pecuniary damage. . .
CitedScordino v Italy ECHR 29-Mar-2006
Grand Chamber – Unreasonable delay had been found.
Held: There was a strong but rebuttable presumption that excessively long proceedings would occasion non-pecuniary damage. . .
CitedJohnson v The United Kingdom ECHR 24-Oct-1997
Mr Johnson awaited trial for crimes of violence. He was diagnosed mentally ill, and on conviction made subject to a hospital order, and restricted without limit of time. He made progress, but was not discharged or re-classified. At a fourth tribunal . .
CitedCaballero v United Kingdom ECHR 29-Feb-2000
Provisions were in place which said that a person charged with a very serious crime of violence having once been convicted previously of rape or murder he was to be refused bail automatically. Although the provision had later been altered, the . .
CitedJecius v Lithuania ECHR 31-Jul-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (six month period); Violation of Art. 5-1 as regards the applicant
The applicant complained of violation of his article 5 rights . .
CitedHL v United Kingdom ECHR 2004
Patient’s lack of Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
CitedBeet And Others v The United Kingdom ECHR 1-Mar-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 5-1 with regard to one applicant; Violation of Art. 5-5 with regard to one applicant; Violation of Art. 6-1+6-3-c with regard to four applicants; . .
CitedKolanis v The United Kingdom ECHR 21-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – No violation of Art. 5-1-e; Violation of Art. 5-4; Violation of Art. 5-5; No separate issue under Art. 13; Non-pecuniary damage – financial award; Costs and expenses . .
CitedVeniosov v Ukraine ECHR 15-Dec-2011
. .
CitedBlackstock v The United Kingdom ECHR 21-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 5-4; Violation of Art. 5-5; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings.
The claimant . .
CitedMedvedyev And Others v France ECHR 29-Mar-2010
(Grand Chamber) A Cambodian vessel, The Winner, trafficked drugs on the high seas (Cape Verde). It was detected and boarded by the French authorities, detaining the crew on board and took them on the vessel to France for trial. France was, but . .
CitedKucheruk v Ukraine ECHR 6-Sep-2007
. .

Cited by:
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
CitedShahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
CitedLee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .

Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other, Damages, Human Rights, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.503500

MC (Algeria), Regina (on The Application of) v Secretary of State for The Home Department: CA 31 Mar 2010

The claimant challenged his detention under the 1971 Act, now appealing against refusal of judicial review. His asylum claims had been rejected, and he had been convicted of various offences, including failures to answer bail. He had failed to report as required to comply with the deportation requirements. He had been transferred to a prison because of his disruptive behaviour. A psychiatric report said he suffered from a personality disorder.
Held: Though there were doubts about the claimant’s treatment, and inexcusable delays, they were not fundamental, and proper treatment was now being arranged and his appeal failed. The breaks in detention and intervening offences meant that the claimant could not have it treated as one unbroken detention. The claimant’s behaviour warranted some form of detention, and his medical condition fell short of being a mental illness.

Sullivan LJ
[2010] EWCA Civ 347
Bailii
Immigration Act 1971 Sch 3
England and Wales
Citing:
CitedRegina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
CitedRoberts v Chief Constable of Cheshire Constabulary CA 26-Jan-1999
The claimant had been detained at 11.25pm. His detention was not reviewed by an inspector until 7.45am the next morning, although it had been considered in the interim at 1.45am by an officer of junior rank. The plaintiff sued for unlawful . .
CitedAbdi, Regina (on the Application of) v Secretary of State for the Home Department Admn 22-May-2009
The applicant had spent 30 months in administrative detention pending removal but was described as having ‘a long history of criminal offending. His convictions variously include two counts of indecent assault, robbery, burglary, assault on a police . .

Lists of cited by and citing cases may be incomplete.

Immigration, Prisons, Health

Updated: 10 November 2021; Ref: scu.406678

Roberts, Regina (on the Application of) v Secretary of State for Home Department: Admn 12 Mar 2004

The claimant complained at a decision not to reduce his Category A status to that of a category B prisoner. He continued to maintain his innocence of the murders for which he had been convicted. He was therefore ineligible to take part in rehabilitation programmes.
Held: After Pate, the respondent had altered the policy to require a governor also to consider whether a prisoner might be prevented from escaping though re-classified as category B. The claimant said that in practice nothing had changed. What was required of a prisoner who maintained his innocence in order to achieve some reduction in his status was that he demonstrate some substantial reason why the risk of his escaping was reduced.

Elias J
[2004] EWHC 679 (Admin)
Bailii
England and Wales
Citing:
CitedWilliam Pate v Secretary of State for the Home Department Admn 2002
The court considered the prisoner’s complaint that the respondent’s policies on the re-classification of prisoners were unlawful in that they disallowed the prison governor from classifying him as Category B despite the fact that as a frail and . .
CitedRegina v Secretary of State Home Department, Ex Parte Duggan QBD 9-Dec-1993
A High Security prisoner is to know the gist of report and reasons for his categorisation: ‘on the first and subsequent annual reviews, fairness, in my view, requires that the gist of the reports be revealed in order to give the opportunity for . .
CitedRegina v Secretary of State for Home Department ex parte McAvoy CA 3-Dec-1997
A prisoner had the right to know the gist (though not the full contents) of reports used in deciding on a review of his security status. (Lord Woolf MR) ‘For my part, I accept that it is desirable, when something has the impact which being placed in . .
CitedLord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
CitedRegina v Secretary of State for Home Department ex parte Hepworth, Fenton-Palmer and Baldonzy and Regina v Parole Board ex parte Winfield Admn 25-Mar-1997
The applicants for judicial review had each been convicted and sentenced for sex offences. Each maintained his innocence, and now complained that that fact had prejudiced decisions as to early release on parole and as to their categorisation.
CitedRegina v Parole Board and others ex parte Oyston CA 1-Mar-2000
Lord Bingham set out the difficulties faced by the Parole Board when dealing with prisoners who maintained their denials of guilt: ‘Convicted prisoners who persistently deny commission of the offence or offences of which they have been convicted . .
CitedWilliams v The Secretary of State for the Home Office CA 17-Apr-2002
The applicant was a post-tariff discretionary life prisoner, applying for a change in his security classification. He sought disclosure of his security report which was denied by the respondent. He alleged a breach of his human rights.
Held: . .

Cited by:
AppliedOsborne, Regina (on The Application of) v HM Prison Littlehey Admn 26-May-2010
The claimant challenged the decision not to be reclassified to Category D. He was a convicted sex offender, but maintained his innocence. The defendant said this did not demonstrate a reduction in risk, since he was not eligible to participate in . .

Lists of cited by and citing cases may be incomplete.

Prisons

Leading Case

Updated: 10 November 2021; Ref: scu.195560

Young, Regina (on The Application of) v Governor of Her Majesty’s Prison Highdown and Another: Admn 6 Apr 2011

The claimant complained that he had not been considered for early release on Home Detention Curfew because the policy refused to allow those convicted of knife crimes to be so considered, and: ‘the failure to include other offences in the list of unsuitability offences renders the scheme unlawful on the grounds of discriminatory, irrational and unfair differentiation between one group of prisoners and another. It was also submitted that the policy treated the Claimant less favourably than an asserted comparator group consisting of other prisoners convicted of equally serious offences involving weapons but who happen not to have been charged separately with the weapons offence.’
Held: The request for a declaration failed. There was no practice as suggested by the claimant of undercharging for knife crimes, and the policies of CPS and otherwise were clear. There were no comparators properly identified who had been treated differently.

Lord Carlile of Berriew QC
[2011] EWHC 867 (Admin)
Bailii
Criminal Justice Act 2003 246
England and Wales
Citing:
CitedIn Re Findlay, in re Hogben HL 1985
A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person . .
CitedCross, Regina (on the Application of) v Governor HM Young Offenders Institute Thorn Cross Admn 20-Jan-2004
The claimant prisoner challenged the governor’s refusal to release him on the home detention curfew scheme. Henriques J said: ‘no risk assessment is necessary in cases where a prisoner has committed a presumed unsuitable offence. It is only if there . .
CitedKay 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 . .
CitedClift v The United Kingdom ECHR 30-Apr-2009
Mr Clift was serving a sentence of 18 years’ imprisonment for very serious crimes, including attempted murder, and complained that the early release provisions in respect of his sentence gave rise to a violation of article 14. The House of Lords . .
CitedClift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .
CitedMason v Ministry of Justice QBD 28-Jul-2008
The court considered whether the system of home detention was capable of amounting to a detention.
Held: The home detention curfew system satisfied the requirements of Article 5. . .
CitedYusuf, Regina (on The Application of) v The Parole Board Admn 22-Jun-2010
The Claimant prisoner complained at not being allowed to make representations before a decision was made as to a move to open conditions.
Held: Her solicitors did not actually request an oral hearing at the time, and the prison governor could . .

Lists of cited by and citing cases may be incomplete.

Prisons

Updated: 10 November 2021; Ref: scu.431836

PS (Prison Conditions; Military Service) Ukraine CG: IAT 22 Feb 2006

AIT Prison conditions in the Ukraine are likely to breach Article 3 of the ECHR.
This determination supersedes TV (Ukraine – Prison conditions) Ukraine [2004] UKIAT 00222.
There is insufficient evidence to establish a real risk of Article 3 ill-treatment to conscripts and new recruits from the practice of dedovshchina (hazing) in the Ukrainian armed forces.

[2006] UKAIT 00016
Bailii

Immigration, Prisons, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.240187

O’Reilly v Mackman: HL 1982

Remission of Sentence is a Privilege not a Right

The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time limits.
Held: The forfeiture of remission for a prisoner was, as a matter of law, not a loss of liberty but a loss of a privilege, the loss of right protected by public law. Any proceedings to enforce a public duty should not be by way of ordinary action.
Lord Diplock said: ‘it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities . . I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons.’ The purpose of the requirement was to protect the public administration against false, frivolous or tardy challenges to official action: ‘The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision’. An advantage of O.53 was that the court had an opportunity to exercise its discretion at the outset of the proceedings rather than would have happened at that time in proceedings begun by originating summons at the end of the proceedings. This was an important protection in the interests of good administration and for third parties who may be indirectly affected by the proceedings: ‘Unless such an action can be struck out summarily at the outset as an abuse of the process of the court the whole purpose of the public policy to which the change in O.53 was directed would be defeated.’ Though a respondent should not normally be cross examined as to its affidavit, nevertheless, ‘ . . leave to cross-examination should be granted where the interests of justice so require.’ The grant of leave to cross-examine deponents is goverened by the same principles in applications for judicial review as in actions commenced by originating summonses.

Lord Diplock, Lord Fraser of Tullybelton, Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brightman
[1983] 2 AC 237, [1982] 3 WLR 1096, [1982] 3 All ER 1124, [1983] UKHL 1
Bailii
RSC O53
England and Wales
Citing:
ApprovedRegina v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) CA 1979
Proper Limits on Imprisonment
The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An essential characteristic of . .

Cited by:
AppliedGillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
CitedKemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
AppliedRegina v City of Westminster ex parte Mbayi Admn 15-Jul-1997
The applicant sought review of the decision of the respondent that she had refused accommodation. She wanted to assert that they had failed to take account of her medical needs.
Held: The application had not proceeded at a proper case, but the . .
CitedSD, Re Application for Judicial Review OHCS 2-Oct-2003
Parents sought judicial review of a decision not to open a Record of Needs for their child. A report said that the child was dyslexic. The applicants said his condition had not improved after an earlier request to open a record had been refused.
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
AppliedCocks v Thanet District Council HL 25-Nov-1981
The applicant had been given temporary accomodation under the Act. He sought to enforce the obligation on the respondent to house him permanently by an action in the county court. The authority said the action should have been by judicial review. . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
CitedClark v University of Lincolnshire and Humberside CA 14-Apr-2000
A student had been failed after being falsely accused of cheating, but the academic review board, on remarking the paper marked it as zero.
Held: Where a University did not have the supervisory jurisdiction of a visitor, a breach of contract . .
CitedRoy v Kensington and Chelsea and Westminster Family Practitioner Committee HL 6-Feb-1992
The respondent had withheld part of the plaintiff’s GP payments saying that he had failed to devote himself full time to his practice. The plaintiff sued, and the defendant sought to strike out his application, saying that his application had to be . .
CitedMercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .
CitedSteed v Secretary of State for the Home Department HL 26-May-2000
The claimant surrendered guns and ammunition under the 1997 Act, and was due to be compensated. His claim was not settled, and he commenced an action in the County Court for the sums claimed. The defendant denied any duty to pay up within a . .
MentionedQRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
CitedStancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
CitedDavidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
CitedTweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
AppliedKing v East Ayrshire Council IHCS 3-Nov-1997
An application for the closure of a school need not be based upon an assessment of school’s pupil capacity as at time of assessment. The court may exercise its discretion to refuse judicial review where that is appropriate, having regard to the . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedSher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedBubb v London Borough of Wandsworth CA 9-Nov-2011
The appellant had sought housing assistance. She had been offered accomodation but refused it as unreasonable. The authority declined further assistance. She now appealed against the refusal of the county court judge to set aside the decision . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review, Prisons

Leading Case

Updated: 10 November 2021; Ref: scu.182909

Aranyosi and Caldararu: ECJ 5 Apr 2016

ECJ (Judgment) Preliminary reference – Police and judicial cooperation in criminal matters – Framework Decision 2002/584 / JHA – European arrest warrant – Execution Grounds for refusal – Charter of Fundamental Rights of the European Union – Article 4 – Prohibition treatments inhuman or degrading treatment – Conditions of detention in the issuing member State

C-404/15, [2016] EUECJ C-404/15, ECLI: EU:C:2016:198, [2016] EUECJ C-404/15 – CO
Bailii, Bailii
Framework Decision 2002/584/JHA, Charter of Fundamental Rights of the European Union 4
European

Human Rights, Extradition, Prisons

Updated: 10 November 2021; Ref: scu.561972

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 democratic society. Though the right is not absolute, any limitation had to be in pursuance of a legitimate aim. There is ‘no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.’
‘Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation’.
‘prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of article 5 of the Convention.’

L Wildhaber, P
Times 10-Oct-2005, 74025/01, (2006) 42 EHRR 41, [2005] ECHR 681
Worldlii, Bailii
European Convention on Human Rights 3, Representation of the People Act 1983 3
Human Rights
Citing:
At CommissionHirst v The United Kingdom (No. 2) ECHR 30-Mar-2004
(Commission) The prisoner alleged that the denial of his right to vote whilst in prison was disproportionate. He was serving a life sentence for manslaughter.
Held: The denial of a right to vote was in infringement of his rights and . .
CitedMathieu Mohin and Clerfayt v Belgium ECHR 2-Mar-1987
(Plenary Court) The court described and approved the way in which an ‘institutional’ right to vote had developed into ‘subjective rights of participation – the ‘right to vote’ and the ‘right to stand for election’.’ It described the ambit of Article . .
MentionedMelnychenko v Ukraine ECHR 19-Oct-2004
. .
CitedAziz v Cyprus ECHR 22-Jun-2004
Depriving a Turkish Cypriot living in the Government-controlled area of Cyprus of the right to vote was a breach of article 3. However: ‘States enjoy considerable latitude to establish rules within their constitutional order governing . . the . .
CitedPodkolzina v Latvia ECHR 9-Apr-2002
. .
Appeal fromRegina (Pearson Martinez and Hirst) v Secretary of State for the Home Department and Others; Hirst v Attorney-General QBD 17-Apr-2001
A law which removed a prisoner’s right to vote whilst in prison was not incompatible with his human rights. The implied right to vote under article 3 was not absolute, and states had a wide margin of appreciation as to how and to what extent the . .
CitedLabita v Italy ECHR 6-Apr-2000
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 . .
CitedThe United Communist Party of Turkey And Others v Turkey ECHR 30-Jan-1998
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 . .
CitedMatthews v The United Kingdom ECHR 18-Feb-1999
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 . .
CitedKalashnikov v Russia ECHR 15-Jul-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Violation of Art. 5-3; Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses . .
CitedVan Der Ven v The Netherlands ECHR 4-Feb-2003
The applicant’s complaint was that the detention regime to which he was subjected in a maximum security prison, including the use of intrusive strip searches, constituted inhuman and/or degrading treatment and infringed his right to respect for his . .
CitedPloski v Poland ECHR 12-Nov-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
The claimant had been in prison on . .
CitedYankov v Bulgaria ECHR 11-Dec-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 ; Violation of Art. 10 ; Violation of Art. 13 ; Violation of Art. 5-3 ; Violation of Art. 5-4 ; Violation of Art. 5-5 ; Violation of Art. 6-1 ; . .
CitedPoltoratskiy v Ukraine ECHR 29-Apr-2003
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 3 with regard to alleged assaults ; Violation of Art. 3 with regard to lack of effective investigation ; Violation of Art. 3 with regard to . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedSilver And Others v The United Kingdom ECHR 25-Mar-1983
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .

Cited by:
CitedWilson v Wychavon District Council and Another Admn 20-Dec-2005
The claimant complained that the law which protected an occupier of a dwelling house from a temporary stop notice did not apply to those living in caravans, and that this was discriminatory.
Held: The claim failed. ‘usually a change of use of . .
CitedSmith v KD Scott, Electoral Registration Officer SCS 24-Jan-2007
The prisoner claimed that his right to vote had not been re-instated despite a year having passed since the European Court of Human Rights had found that the withdrawal of that right for prisoners was an infringement.
Held: It was not possible . .
CitedWilson, Regina (on the Application of) v Wychavon District Council and Another CA 6-Feb-2007
The claimants said that an enforcement notice issued against them under a law which would prevent such a notice against the use of a building as a dwelling, but not against use of a caravan as a dwelling, discriminated against them as gypsies.
CitedAB, Regina (On the Application of) v Secretary of State for Justice and Another Admn 4-Sep-2009
The claimant was serving a sentence of imprisonment. She was a pre-operative transgender woman, but held in a male prison. She sought review of a decision to refuse transfer to a women’s prison. The Gender Recognition Panel was satisfied that the . .
CitedRegina (Chester) v Secretary of State for Justice and Another QBD 28-Oct-2009
The claimant a prisoner detained after the expiry of his lfe sentence tariff as dangerous, sought a declaration that the refusal to allow him to register as a voter in prison infringed his human rights.
Held: Such a claim had already succeeded . .
CitedBary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
Grand ChamberHirst v The United Kingdom ECHR 3-Dec-2009
(Resolutions) The court noted the long delay in the respondent in implementing the judgment of the court and giving prisoners voting rights, the present consultation and adjourned until March 2011 for further information. . .
Grand Chamber decisionTovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
CitedChester, 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 . .
CitedNicklinson 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 . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedGaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
CitedMcCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Elections

Leading Case

Updated: 09 November 2021; Ref: scu.231041

Dixon, Regina (on The Application of) v The Secretary of State for Justice: Admn 30 Sep 2015

‘the claimant, a former prisoner at HMP Manchester, complains of what he says was unacceptable delay by the prison service in 2013-2014 in providing a psychological assessment and report which the parole board had recommended should be obtained in respect of him. He contends that the unacceptable delay was of the order of 5.5 months, alternatively 4 months, and that but for that delay he would have been released from prison on licence earlier by an equivalent period. He seeks: (a) a declaration that the defendant, as the minister responsible for the prison service, acted in breach of duty under public law and/or article 5.4 of the European Convention on Human Rights; and (b) damages for breach of those duties.’

Stephen Davies HHJ
[2015] EWHC 2712 (Admin)
Bailii
England and Wales

Prisons

Updated: 09 November 2021; Ref: scu.562469

Lindstrom And Masseli v Finland: ECHR 14 Jan 2014

ECHR Article 3
Degrading treatment
Inhuman treatment
Obligation on prisoners to wear closed overalls while being held in isolation for short period: no violation
Facts – In 2004 the applicants, who were both serving prison sentences, were placed in isolation (the first applicant for three days, the second for seven) as they were suspected of attempting to smuggle drugs into the prison. While in isolation, they were forced to wear overalls covering them from neck to foot and ‘sealed’ by prison staff with plastic strips. They could not remove the overalls by themselves or draw their hands inside the sleeves. The applicants alleged that there had been instances in which they had been forced to defecate in their overalls, as prison guards had not been able to escort them to a supervised toilet quickly enough, and that they had not been allowed to change afterwards or to wash throughout their period in isolation. They had suffered skin problems as a result. In 2005 the applicants reported the matter to the police and the authorities pressed charges against the prison director and two senior guards. However, in 2007 the district court dismissed all the charges in a judgment that was upheld on appeal.
Law – Article 3: Maintaining order and security in prisons and guaranteeing prisoners’ well-being could be proper grounds for introducing a system of closed overalls to be used while prisoners were held in isolation. Moreover, the measures were designed to protect prisoners’ health and there was no intention to humiliate. Nevertheless, such a practice could be assessed differently if it led, in concrete circumstances, to situations which were contrary to Article 3. In the instant case, the domestic courts had found that it had not been intended that the prisoners should defecate in their overalls and that there was no evidence that the guards had delayed their response to the applicants’ calls to use the toilet. Nor had it been shown that the applicants had not had an appropriate possibility to wash whenever necessary or had had to continue wearing dirty overalls. They had failed to submit any evidence to prove that the plastic strips had caused abrasions to their wrists or that the overalls had caused an allergic reaction. It was not for the Court to re-examine the validity of the domestic courts’ assessment of the facts. Furthermore, where there were convincing security needs, the practice of using closed overalls during a relatively short period of isolation could not, in itself, reach the threshold of Article 3. This was especially so in the applicants’ case, given that they were unable to produce any evidence to support their allegations concerning the possibly humiliating elements of their treatment.
Conclusion: no violation (five votes to two).
The Court also held, unanimously, that there had been a violation of Article 8 of the Convention in that the interference with the applicants’ right to respect for their private life was not in accordance with law. The applicants were awarded EUR 3,000 each in respect of non-pecuniary damage for that violation.
(See Kudla v. Poland [GC], 30210/96, 26 October 2000, Information Note 23; Peers v. Greece, 28524/95, 19 April 2001, Information Note 29; Doerga v. the Netherlands, 50210/99, 27 April 2004, Information Note 63; and Wisse v. France, 71611/01, 20 December 2005)

24630/10 – Legal Summary, [2014] ECHR 177
Bailii
European Convention on Human Rights 3
Human Rights

Human Rights, Prisons

Updated: 09 November 2021; Ref: scu.521853

Hart v Governor of HMP Whitemoor: Admn 24 Nov 2014

The prisoner was subject to a sentence of life imprisonment being eligible to apply for parole only in 2027. He now challenged a decision by the prison governor that he should be subject to Safeguarding Children Measures. He had been convicted of murder and of very serious violence offences committed in the presence of children. Other prisons at which he had been held had not imposed the same restrictions.
Held: It was enough that the offences had aken place in the presence of children. The rules however were intended to prevent harm to children whch might occur during incarceration. In this case, whilst in custody, he was only a low risk to children. The challenge succeeded.

McGowan QC
[2014] EWHC 3913 (Admin)
Bailii
England and Wales

Prisons

Updated: 09 November 2021; Ref: scu.539129

Houchin v Lincolnshire Probation Trust: QBD 9 Apr 2013

houchin_lincsPSQBD2013

The defendant sought to have the claim struck out. The prisoner said that the defendant’s probation officer had through misfeasance in public office arranged for his transfer back to secure conditions from open ones. The parole board panel had found ‘It was clear to the panel that the decision to return Mr Houchin to closed conditions, both as recorded by . . and on any other basis not then considered, was flawed, unreasonable, ill-motivated and invalid in a public law sense.’ The Secretary of state had rejected the finding, and the defendant had found no evidence to support the allegations against the officer.
Held: The claim was struck out. There was no reason for the officer to dislike the claimant, nor to seek to defend the Service as alleged. Others had reached similar conclusions to his own. The claimant had no prospect of succeeding.

Supperstone J
[2013] EWHC 794 (QB)
Bailii
Citing:
CitedRacz v Home Office HL 17-Dec-1993
The Home Office can be liable for the actions of prison officers which amounted to an official misfeasance. The principles of vicarious liability apply as much to misfeasance in public office as to other torts involving malice, knowledge or . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
CitedHughes and others (By Their Litigation Friend) v Richards (Trading As Colin Richards and Co ) CA 9-Mar-2004
Parents and their children claimed against a tax adviser for negligence in relation to setting up an offshore trust. The defendant applied to strike out the children’s claim on the basis that the defendant owed them no duty of care and only the . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedKaragozlu v Commissioner of Police of the Metropolis CA 12-Dec-2006
The claimant made a claim for misfeasance in public office. The defendant argued that such a claim required proof of special damage. The claimant said that the deprivation of liberty amounted to such damage. Whilst serving a prison sentence the . .

Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other

Updated: 09 November 2021; Ref: scu.472249

Tymoshenko v Ukraine (Legal Summary): ECHR 30 Apr 2013

ECHR Article 5-1
Lawful arrest or detention
Pre-trial detention for allegedly contemptuous behaviour to trial court: violation
Article 18
Restrictions for unauthorised purposes
Deprivation of opposition leader’s liberty for reasons other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence: violation
Facts – The applicant was the leader of one of a leading opposition party and a former Prime Minister. In April 2011 criminal proceedings were brought against her for alleged excess of authority and abuse of office and in August 2011 the trial court ordered her detention pending trial. She was later convicted of the offences charged and given a prison sentence.
In her application to the European Court the applicant complained, inter alia, of her conditions of detention, of inadequate medical treatment in detention and of ill-treatment during a transfer to hospital (Article 3 of the Convention), that her detention was arbitrary and that she had had no legal remedy to challenge it or to seek compensation (Article 5) and that she had been detained for political motives (Article 18 in conjunction with Article 5).
Law – Article 3
(a) Conditions of her pre-trial detention – The Court accepted that the applicant may have experienced certain problems on account of the material conditions during part of her detention – in particular limited access to daylight, lack of hot water and lack of heating during limited periods . She had also been unable to take daily walks owing to problems with mobility when a stick or crutch could have facilitated matters. However, while the applicant’s situation may have been uncomfortable, it had not been so harsh as to bring it within the ambit of Article 3.
Conclusion: inadmissible (unanimously).
(b) Alleged lack of appropriate medical treatment during detention – It was clear from the materials before the Court that the applicant’s health had received considerable attention from the Ukrainian authorities, who had invested efforts far beyond the normal health-care arrangements available for ordinary detainees in Ukraine. The applicant, however, had been extremely cautious and because of a lack of confidence in the authorities had regularly refused to allow most of the medical procedures that were suggested to her. While the Court was mindful that patient trust was a key element of the doctor-patient relationship and could be difficult to create in detention, patients nevertheless had a responsibility to communicate and cooperate with health authorities and there was no specific incident noted in the applicant’s medical history while in detention which could have explained such a total lack of confidence on the applicant’s part. The European Committee for the Prevention of Torture (CPT) had visited one of the facilities in which the applicant was detained and had not raised any particular concern over the appropriateness of the medical care provided to her. The applicant had also been transferred to an outside hospital to receive specialist care. In sum, the domestic authorities had afforded the applicant comprehensive, effective and transparent medical assistance.
Conclusion: inadmissible (unanimously).
(c) Alleged ill-treatment during her transfer to hospital – Several bruises had appeared on the applicant’s body during her detention. That alone called for an explanation by the State authorities as to their origin. The location of the bruises – on her stomach and arms – was consistent with her account that she had been violently pulled from her bed and punched in the stomach on the day of her transfer to the hospital. Nevertheless, the Court could not ignore the medical evidence before it that the apparent age of the bruises did not correspond with the time she had indicated and that there had been other possible origins of the bruising which did not involve external trauma. Those findings could only have been satisfactorily confirmed or refuted if she had undergone a full forensic medical examination, which she had refused to allow on two occasions. Given the absence of such forensic evidence as a result of her decision not to undergo the examination, it had not been established to the necessary standard of proof that the bruising had resulted from treatment in breach of Article 3 during her transfer to hospital. Her refusal to undergo a forensic medical examination had also hindered the effectiveness of the investigation into her complaint of ill-treatment, which investigation had therefore been ‘effective’ for the purposes of Article 3.
Conclusion: no violation (four votes to three).
Article 5 – 1: The applicant’s detention pending trial had been ordered for an indefinite period, which in itself was contrary to the requirements of Article 5 and was a recurrent issue resulting from legislative lacunae. Further, no risk of absconding was discernible from the accusations which had been advanced among the reasons for her detention: these were all of a minor nature and had not resulted in her failing to attend the hearings. In fact, the main justification for her detention indicated by the judge had been her alleged hindering of the proceedings and contemptuous behaviour, which was not among the list of reasons that could justify deprivation of liberty under Article 5 – 1. Nor was it clear how the replacement of the applicant’s obligation not to leave town by her detention was a more appropriate preventive measure in the circumstances. Given that the reasons indicated for her pre-trial detention remained the same until her conviction, the entire period of pre-trial detention had been arbitrary and unlawful.
Conclusion: violation (unanimously).
Article 5 – 4: The domestic courts’ various reviews of the lawfulness of the applicant’s detention did not satisfy the requirements of Article 5 – 4 as they were confined to a mere statement that no appeal lay against a ruling on change of a judicially ordered preventive measure with the result that the deficient reasoning initially applied was reiterated. There was no indication that the domestic courts had considered the specific and pertinent arguments that had been advanced by the applicant in her numerous applications for release. Indeed, the Court had already found in other cases that on the whole Ukrainian law did not provide for a procedure to review the lawfulness of continued detention after the completion of a pre-trial investigation that would satisfy the requirements of Article 5 – 4.
Conclusion: violation (unanimously).
Article 5 – 5: Under Ukrainian law the right to compensation arose in particular when the unlawfulness had been established by a judicial decision. However, there was no procedure under Ukrainian law for seeking compensation for a deprivation of liberty that had been found to be in breach of Article 5 by the European Court. This lacuna had already been noted in other cases against Ukraine.
Conclusion: violation (unanimously).
Article 18 in conjunction with Article 5: An applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed or which could reasonably be inferred from the context. A mere suspicion that the authorities had used their powers for some other purpose than those defined in the Convention was not sufficient to prove that Article 18 was breached.
The applicant’s case showed an overall similarity to that of Lutsenko v. Ukraine (no. 6492/11, 3 July 2012, Information Note no. 154). As in that case, soon after a change of power, the applicant, who was the former Prime Minister and the leader of the strongest opposition party, was accused of abuse of power and prosecuted. The Court had already established that, although the applicant’s detention was formally effected for the purposes envisaged by Article 5 – 1 (c) of the Convention, both the factual context and the reasoning advanced by the authorities suggested that the actual purpose of the measure was to punish the applicant for a lack of respect towards the court which it was claimed she had been manifesting by her behaviour during the proceedings. Accordingly, the restriction of the applicant’s liberty was applied not for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.

49872/11 – Legal Summary, [2013] ECHR 468
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoTymoshenko v Ukraine ECHR 31-May-2012
. .
See AlsoTymoshenko v Ukraine ECHR 3-Jul-2012
. .

Cited by:
Legal SummaryTymoshenko v Ukraine ECHR 30-Apr-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 09 November 2021; Ref: scu.510786

Vintman v Ukraine: ECHR 23 Oct 2014

Article 8
Article 8-1
Respect for family life
Refusal to transfer prisoner to a prison nearer home so that he could receive visits from his elderly mother: violation
Facts – In his application to the European Court the applicant complained that he had been forced to serve his prison sentence far from his home, with the result that his elderly mother, who was in poor health, had been unable to visit him for over ten years. At the time of the Court’s judgment he was serving his sentence in a prison some 700 kilometres from home with a journey time that took between 12 and 16 hours. The prison authorities had repeatedly refused his requests for a transfer citing problems of space and, more recently, his behaviour.
Law – Article 8: The failure to transfer the applicant to a prison closer to home had effectively denied him any personal contact with his mother and thus amounted to interference with his right to respect for his family life under Article 8. The Court was prepared to accept that the interference was in accordance with the law and pursued the legitimate aims of preventing prison overcrowding and maintaining discipline. It was, however, disproportionate. Although the authorities had relied on the absence of available places, they had failed to give any details and there was no evidence that they had in fact considered placing him in any of the many regions closer to his home address. In point of fact, the region where the applicant was transferred in December 2009 was one of the furthest from his home. As regards the applicant’s behaviour, no differentiation was made between his requests for mitigation of his prison regime and those for his transfer to a prison of the same security level closer to home. In any event, the question of behaviour was raised by the authorities for the first time in April 2010, whereas the applicant had been asking for a transfer since December 2001. Lastly, the authorities did not dispute that the applicant’s elderly and frail mother was physically unable to travel to visit him in the regions where he was imprisoned. The fact of the matter was that the applicant’s personal situation and his interest in maintaining his family ties had never been assessed, and no relevant and sufficient reasons for the interference in question were ever adduced.
Conclusion: violation (unanimously).
The Court also found unanimously violations of Article 8 in conjunction with Article 13 in respect of the lack of an effective remedy for the applicant’s inability to obtain a transfer to a prison closer to home and of Article 8 taken alone on account of the monitoring of his correspondence.
Article 41: EUR 12,000 in respect of non-pecuniary damage.

28403/05 – Chamber Judgment, [2014] ECHR 1136, 28403/05 – Legal Summary, [2014] ECHR 1280
Bailii, Bailii
European Convention on Human Rights 8 13
Human Rights
Citing:
Communicated DecisionVintman v Ukraine ECHR 3-Jul-2012
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 09 November 2021; Ref: scu.538004

Walker v Secretary of State for Justice: Admn 28 Oct 2009

The claimant prisoner, subject to a sentence of imprisonment for public protection, sought leave to visit his father who was dying at home. The prison refused but said that the decision might be different if the claimant’s father was in a hospice or hospital. The decision was supported on security grounds. The father did not want to go to hospital.
Held: Though a practical solution now might be available, the court considered the law behind a decision. The court could not substitute its own risk assessment.
Though some thought had gone into the need for the visit, not enough thought had been applied to how the risks might be managed. A positive duty under the Convention was engaged. The Guidance from the defendant was not without difficulty. The governor’s initial decision to grant an escorted visit if conditions could be met in fact became a refusal to consider whether steps might be taken to reduce the risks. Judicial review was granted.

Grenfell J
[2009] EWHC 3634 (Admin)
Bailii
Prison Rules 9, European Convention on Human Rights 8
England and Wales
Citing:
CitedPloski v Poland ECHR 12-Nov-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
The claimant had been in prison on . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 09 November 2021; Ref: scu.401941

Somerville v Scottish Ministers: HL 24 Oct 2007

The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; whether time ran from the date of the first breach, whether want of proportionality is a relevant complaint of unlawfulness at common law, and whether claims for public interest mmunity had been properly allowed.
Held: Under the Human Rights Act 1988, a claim must be brought within one year. Two means were provided of seeking a remedy when the Scottish Executive acted outside its competence. That one choice might sidestep a limitation was no bar to using it. Damages may be payable for a breach of the Scotland Act.
The court must acknowledge the distinction between the acts of the governor of the prison and of the Scottish ministers. The time bar in section 7(5)(a) HRA did not apply to the proceedings as drafted because the petitioners’ case was that the acts of the Scottish Ministers were outside the limits of their devolved competence in terms of the Scotland Act.
The court should itself have examined the documents for which public interest immunity was claimed before allowing that claim.

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance
[2007] UKHL 44, 2007 SC 140, [2007] 1 WLR 2734, 2007 GWD 37-656, 2008 SC (HL) 45, 2007 SLT 1113, [2008] UKHRR 570, (2007) 151 SJLB 1398, [2008] HRLR 3, 2007 SCLR 830
Bailii
Human Rights Act 1998 7(5), European Convention on Human Rights, Scotland Act 1998 100
Scotland
Citing:
Appeal fromSomerville, Cairns, Ralston, Blanco and Henderson v The Scottish Ministers OHCS 3-Nov-2006
. .
CitedParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
CitedCarltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .
CitedAssociated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
CitedRegina v Secretary of State for the Environment, ex parte Nottinghamshire County Council HL 12-Dec-1985
The House heard a judicial review of the Secretary of State’s assessment of the proper level of expenditure by a local authority.
Held: A ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political . .
CitedRegina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
CitedRegina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
CitedVilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
CitedSempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
CitedRegina v Secretary of State for Transport, ex parte Factortame Ltd and others (No 5) HL 28-Oct-1999
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .
CitedFrancovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
CitedF Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
CitedDeutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
CitedGirvan v Inverness Farmers Dairy and Another HL 13-Nov-1997
(Scotland) A second re-trial in order to obtain a jury assessment of damages more in line with that assessed by judges would be wrong. Lord Clyde: ‘In a system in which damages may be assessed in different cases either by a jury or by a judge it is . .
CitedRegina v HM Advocate and The Advocate General for Scotland PC 28-Nov-2002
(The High Court of Justiciary) The prosecution had accepted that the matter had been the subject of unreasonable delay, but wished to continue. The defendant sought a plea in bar, on the basis that continuing would infringe his rights.
Held: . .
CitedBalfour v Foreign and Commonwealth Office CA 10-Dec-1993
A judge may choose not to inspect the documents behind a Public Interest immunity certificate if that certificate had been given for reasons of National Security. The court must always be vigilant to ensure that public interest immunity of whatever . .
CitedGreenfield, 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 . .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedStovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
CitedO’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
CitedKing v East Ayrshire Council IHCS 3-Nov-1997
An application for the closure of a school need not be based upon an assessment of school’s pupil capacity as at time of assessment. The court may exercise its discretion to refuse judicial review where that is appropriate, having regard to the . .
CitedLeech v Governor of Parkhurst Prison HL 1988
The House was asked whether a disciplinary decision by a governor was amenable to judicial review.
Held: The functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; . .
CitedWoolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
CitedTweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
CitedX (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
CitedBrasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
CitedBegum (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 . .
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedAttorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
CitedRegina v Governor of Her Majesty’s Prison Brockhill ex parte Evans (No 2) HL 27-Jul-2000
The release date for a prisoner was calculated correctly according to guidance issued by the Home Office, but case law required the guidance to be altered, and the prisoner had been detained too long. The tort of false imprisonment is one of strict . .

Cited by:
CitedCameron and Another v Hughes Dowdall SCS 28-Oct-2008
The pursuer sought damages for negligence by his solicitors. They had sold their business, but the solicitors were said to have failed to include in their contracts clauses necessary for their protection. The defenders claimed that the action should . .
CitedAxa General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
axaReSCS201
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedJude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
CitedShahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
CitedShahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
CitedCherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
CitedO’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Damages, Limitation

Leading Case

Updated: 09 November 2021; Ref: scu.260315

Bary and Others, Regina (on The Application of) v Secretary of State for Justice and Another: Admn 19 Mar 2010

The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were made in response to the transfer to the unit of one particular prisoner.
Held: Despite the changes given in the reasons for the new regime, it was not unreasonably imposed. The situation had been kept subject to regular reviews.
Two claimants said that the regime adversely affected their mental health. Those claims had not established to the high standard required, that any breach of article 3 had taken place. Similarly the interference with the claimants’ article 8 right was proportionate and necessary.

Aikens LJ, Openshaw J
[2010] EWHC 587 (Admin)
Bailii
Prison Act 1952 12(1), Prison Rules 1999 45(1), European Convention on Human Rights 3 8
England and Wales
Citing:
CitedVan Der Ven v The Netherlands ECHR 4-Feb-2003
The applicant’s complaint was that the detention regime to which he was subjected in a maximum security prison, including the use of intrusive strip searches, constituted inhuman and/or degrading treatment and infringed his right to respect for his . .
CitedDickson and Another v United Kingdom ECHR 15-Dec-2007
(Grand Chamber) The complainants were husband and wife. They had been married whilst the husband served a sentence of life imprisonment. They had been refused suport for artificial insemination treatment.
Held: The claim succeeded. The refusal . .
CitedHirst 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 . .
CitedOcalan v Turkey ECHR 12-May-2005
(Grand Chamber) – The applicant had been detained in Kenya. He had allowed himself to be taken by Kenyan officials to Nairobi airport in the belief that he was free to leave for a destination of his choice, but they took him to an aircraft in which . .
CitedMcFeeley and others v The United Kingdom ECHR 15-May-1980
(Commission) The claimants had been convicted of terrorist-type offences in Northern Ireland and were serving prisoners in HMP The Maze. They protested at a change of regime imposed in 1976, resulting in them not being permitted association with the . .
CitedKeenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
CitedBary and Another, Regina (on the Application of) v Secretary of State for the Home Department Admn 7-Aug-2009
The defendants resisted extradition to the US to face charges of conspiracy to murder US citizens, saying that as suspected terrorists the likely prison conditions in which they would be held would amount to inhuman or degrading treatment or . .
CitedOcalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .
CitedWood v Commissioner of Police for the Metropolis CA 21-May-2009
The appellant had been ostentatiously photographed by the police as he left a company general meeting. He was a peaceful and lawful objector to the Arms Trade. He appealed against refusal of an order for the records to be destroyed. The police had . .
CitedRegina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .

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

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 09 November 2021; Ref: scu.403376

Weeks v The United Kingdom: ECHR 5 Oct 1988

The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. Recommendations for release had not been acted upon. When the applicant was subsequently released, some years after his release had first been recommended, he repeatedly reoffended, and his licence was again revoked.
Held: Compliance with article 5(1)(a) requires more than that the detention is in compliance with domestic law.
‘The ‘lawfulness’ required by the Convention presupposes not only conformity with domestic law but also . . conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of article 5(1). Furthermore, the word ‘after’ in sub-paragraph (a) does not simply mean that the detention must follow the ‘conviction’ in point of time: in addition, the ‘detention’ must result from, ‘follow and depend upon’ or occur ‘by virtue of’ the ‘conviction’. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue.’
In the case of a discretionary life sentence imposed for the purpose of public protection: ‘The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. ‘In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5.”

(1988) 10 EHRR 293, [1988] ECHR 18, 9787/82
Worldlii, Bailii
European Convention on Human Rights 5(1)(a)
Human Rights
Citing:
Reserved fromWeeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .

Cited by:
CitedWaite v The United Kingdom ECHR 10-Dec-2002
The claimant had been sentenced to be detained at Her Majesty’s pleasure when a youth. After release on licence, the Parole Board met and revoked that licence without an oral hearing, and in contravention of the rules. He did not dispute the facts . .
CitedFaulkner, 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 . .
CitedMartin Corey, Re for Judicial Review SC 4-Dec-2013
The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing, Prisons

Leading Case

Updated: 09 November 2021; Ref: scu.165030

P, Regina (On the Application of) v Secretary Of State for Justice: CA 6 Jul 2009

P appealed against the refusal of a judicial review of a decision by the respondent not to hold an enquiry into the circumstances of P’s detention in Feltham Young Offenders’ Institution.
Held: The appeal failed. Before such an enquiry became necessary, there had to be shown a real and immediate risk to life.

Lord Justice Ward, Lord Justice Jacob and Lord Justice Stanley Burnton
[2009] EWCA Civ 701, Times 23-Jul-2009
Bailii
England and Wales
Citing:
AppliedAmin, 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 . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 09 November 2021; Ref: scu.347423

Pounder, Regina (on the Application of) v HM Coroner for the North and South Districts of Durham and Darlington and others: Admn 22 Jan 2009

The deceased died aged 14 in a Secure Training Centre by hanging. He had complained of his treatment and restraint methods used. The mother sought judicial review of the conduct of the inquest, wanting the coroner not to have ruled on the legality of the restraint methods used, and which of the STC Rules and the 1994 Act took precedence.
Held: The Rules were clear and the 1994 ACt could not be used to extend the powers of restraint. Not only was there no lawful authority to do any of this to Adam but doing this to him was subjecting him to at least degrading treatment contrary to Article 3 ECHR. The Coroner had put questions to the jury as to the appropriateness of the force used. The deceased had himself said that he wanted to challenge the legality of the force used, and ‘If Adam’s question had been answered by the Coroner or left open to the jury to consider with appropriate directions, the answers would have been clear. There was no right to hurt such a child in these circumstances. In my judgment it is fanciful to suppose that such an answer could have had no impact on the jury’s consideration of factors contributing to the death.’ The coroner should have considered whether the force used was legitimate. The inquest was quashed.

Blake J
[2009] EWHC 76 (Admin), [2009] 3 All ER 150
Bailii
Coroners Act 1988 8(1) 8(3) 11(5), Secure Training Centre Rules 1998 (SI 1998/472), Criminal Justice and Public Order Act 1994 9(3) 9(4)
England and Wales
Citing:
CitedAmin, 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 . .
CitedMiddleton, 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.
CitedHolgate-Mohammed v Duke HL 1984
A police officer had purported to arrest the plaintiff under the 1967 Act, suspecting her of theft. After interview she was released several hours later without charge. She sought damages alleging wrongful arrest. The judge had found that he had . .
CitedC, Regina (on the Application of) v Secretary of State for Justice CA 28-Jul-2008
The court was asked as to what methods of physical restraint were proper in institutions accommodating youths in custody.
Held: The Court had been wrong not to quash the amended rules on the grounds of procedural breaches. The amended rules . .
CitedAl-Nashif v Bulgaria ECHR 20-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Preliminary objections dismissed (non-exhaustion, abuse of right of petition); Violation of Art. 5-4; Violation of Art. 8; Violation of Art. 13; Not necessary to . .

Lists of cited by and citing cases may be incomplete.

Coroners, Prisons, Human Rights

Updated: 09 November 2021; Ref: scu.280142

Simm’s Application for Judicial Review; O’Brien’s Application for Judicial Review and Main’s Application for Judicial Review: CA 4 Dec 1997

In two cases, long term prisoners who asserted their innocence were in touch with journalists. Challenges were made against conditions imposed on their access that materials obtained during the visits should not be disclosed by the journalists. A third prisoner challenged the inspection of correspondence with his solicitor. The prison governors’ now appealed against rulings in the favor of the prisoners as to th validity of the Prison Service Standing Orders.

Kennedy, Judge, Chadwick LJJ
[1997] EWCA Civ 2913, [1998] 2 All ER 491
Bailii
Prison Rules 1964 33(1)
England and Wales
Citing:
CitedRegina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .

Lists of cited by and citing cases may be incomplete.

Prisons, Media

Leading Case

Updated: 09 November 2021; Ref: scu.143312

Khodorkovskiy and Lebedev v Russia: ECHR 25 Jul 2013

ECHR Article 7-1
Nullum crimen sine lege
Interpretation of offence of tax evasion derived by reference to other areas of law: no violation
Article 6
Civil proceedings
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Alleged lack of impartiality of trial judge who had already taken procedural decisions adverse to defence and had sat in trial of co-accused: no violation
Article 6-3-b
Adequate facilities
Adequate time
Need for applicants to study large volume of evidence in difficult prison conditions, but supported by highly qualified legal team: no violation
Article 6-3-c
Defence through legal assistance
Systematic perusal by prison authorities and trial judge of communications between accused and their lawyers: violation
Article 6-3-d
Examination of witnesses
Refusal to allow defence to cross-examine expert witnesses called by the prosecution or to call their own expert evidence: violation
Article 8
Article 8-1
Respect for family life
Respect for private life
Imprisonment in penal colonies thousands of kilometres from prisoners’ homes: violation
Article 18
Restrictions for unauthorised purposes
Allegedly politically motivated criminal proceedings against applicants: violation
Article 34
Hinder the exercise of the right of petition
Disciplinary and other measures against the lawyers acting for applicants in case pending before European Court: failure to comply with Article 8
Facts – Before their arrest the applicants were senior managers and major shareholders of a large industrial group which included the Yukos oil company. They were among the richest men in Russia. Mr Khodorkovskiy, the first applicant, was also politically active: he allocated significant funds to support opposition parties and funded several development programmes and NGOs. In addition, Yukos pursued large business projects which went against the official petroleum policy.
In 2003 the applicants were arrested and detained on suspicion of the allegedly fraudulent privatisation of one of the companies in the group. Subsequently tax and enforcement proceedings were brought against Yukos oil company, which was put into liquidation. New charges were brought against the applicants relating to alleged tax evasion through the registration of trading companies, which in fact had no business activities, in a low-tax zone, and through allegedly false income tax returns. In 2005 the applicants were found guilty of most of the charges. They were sentenced to nine years’ imprisonment and ordered to pay the State the equivalent of over EUR 500,000,000 in respect of unpaid company taxes. Their prison sentences were reduced to eight years on appeal. Both applicants were sent to serve their sentences in remote colonies, thousands of kilometres from their Moscow homes.
In their applications to the European Court, the applicants complained of various breaches of the Convention, in particular of their right to a fair trial (Article 6 – 1) and of their right not to be tried of an offence that was not an offence when it was committed (Article 7).
Law – Article 6 – 1: Both applicants complained of several distinct breaches of this provision. The first group of their arguments concerned alleged bias on the part of the presiding judge. The second group to procedural unfairness, in particular: a lack of time and facilities to prepare the defence, an inability to enjoy effective legal assistance, and an inability to examine prosecution evidence or adduce evidence for the defence.
(a) Impartiality – The applicants claimed that procedural decisions taken by the judge during their trial were indicative of bias, that the judge had herself been under investigation during their trial and that she was biased because of her previous findings in the case of another top Yukos manager.
As to the first point, the Court had to have stronger evidence of personal bias than a series of procedural decisions unfavourable to the defence. There was nothing in the trial judge’s decisions to reveal any particular predisposition against the applicants. As to the second point, the allegation that the trial judge was herself under investigation was based on rumour, and could not found a claim of impartiality. As to the final point – the fact that the judge had already sat in a case concerning another senior Yukos manager – the Court had previously clarified that the mere fact that a judge had already tried a co-accused was not, in itself, sufficient to cast doubt on the judge’s impartiality. Criminal adjudication frequently involved judges presiding over various trials in which a number of co-accused stood charged and the work of criminal courts would be rendered impossible if, by that fact alone, a judge’s impartiality could be called into question. An examination was, however, needed to determine whether the earlier judgments contained findings that actually prejudged the question of the applicant’s guilt. The judge in the applicants’ case was a professional judge, a priori prepared to disengage herself from her previous experience in the other manager’s trial. The judgment in the manager’s case did not contain findings that prejudged the question of the applicants’ guilt in the subsequent proceedings and the judge was not bound by her previous findings, for example as regards the admissibility of evidence, either legally or otherwise.
Conclusion: no violation (unanimously).
(b) Fairness of the proceedings
(i) Article 6 – 1 in conjunction with Article 6 – 3 (b): Time and facilities for the preparation of the defence – The second applicant had had eight months and twenty days to study over 41,000 pages of his case-file, and the first applicant five months and eighteen days to study over 55,000 pages. The Court noted the complexity of the documents, the need to make notes, compare documents, and discuss the case-file with lawyers. It also took account of the breaks in the schedule of working with the case-file, and of the uncomfortable conditions in which the applicants had had to work (for example, they had been unable to make photocopies in prison or to keep copies of documents in their cells and there had been restrictions on their receiving copies of documents from their lawyers). However, the issue of the adequacy of time and facilities afforded to an accused had to be assessed in the light of the circumstances of each particular case. The applicants were not ordinary defendants: they had been assisted by a team of highly professional lawyers of great renown, all privately retained. Even if they were unable to study each and every document in the case file personally, that task could have been entrusted to their lawyers. Importantly, the applicants were not limited in the number and duration of their meetings with their lawyers. The lawyers were able to make photocopies; the applicants were allowed to take notes from the case-file and keep their notebooks with them. Indeed, the applicants, who both had university degrees, were senior executives of one of the largest oil companies in Russia and knew the business processes at the heart of the case arguably better than anybody else. Thus, although the defence had had to work in difficult conditions at the pre-trial stage, the time allocated to the defence for studying the case file was not such as to affect the essence of the right guaranteed by Article 6 — 1 and 3 (b).
The Court further examined the conditions in which the defence had had to work at the trial and during the appeal proceedings. In particular, at some point the judge had decided to intensify the course of the trial and hold hearings every day. However, it had not been impossible for the applicants to follow the proceedings and the defence had been able to ask for adjournments when necessary.
At the appeal stage the defence had had over three months to draft written pleadings and to prepare for oral argument. Although the defence had had to start preparing their appeal without having the entirety of the trial materials before them and although there had been doubts as to the accuracy of the trial record, the Court was not persuaded that any such inaccuracies had made the conviction unsafe. Furthermore, the defence was aware of the procedural decisions that had been taken during the trial and what materials had been added. They had audio recordings of the trial proceedings and could have relied on them in the preparation of their points of appeal. The difficulties experienced by the defence during the appeal proceedings had thus not affected the overall fairness of the trial.
Conclusion: no violation (unanimously).
(ii) Article 6 – 1 in conjunction with Article 6 – 3 (c): Lawyer-client confidentiality – The applicants had claimed that that their confidential contacts with their lawyers had been seriously hindered. The Court reiterated that any interference with privileged material and, a fortiori, the use of such material against the accused in the proceedings should be exceptional and justified by a pressing need and would always be subjected to the strictest scrutiny.
As to the applicants’ complaint that one of their lawyers had received summonses from the prosecution, the Court noted that the lawyer concerned had refused to testify and that his refusal had not led to any sanctions against him. Accordingly, in the particular circumstances of the present case, lawyer-client confidentiality had not been breached on account of that episode.
In contrast, by carrying out a search of that lawyer’s office and seizing his working files, the authorities had deliberately interfered with the secrecy of lawyer-client contacts. The Court saw no compelling reasons for that interference. The Government had not explained what sort of information the lawyer might have had, how important it was for the investigation, or whether it could have been obtained by other means. At the relevant time the lawyer was not under suspicion of any kind. Most significantly, the search of his office had not been accompanied by appropriate procedural safeguards, such as authorisation by a separate court warrant, as required by the law. The search and seizure were thus arbitrary.
Another point of concern was the prison administration’s practice of perusing all written documents exchanged between the applicants and their lawyers during the meetings in the remand prison. Such perusal had no firm basis in the domestic law, which did not specifically regulate such situations. Furthermore, notes, drafts, outlines, action plans and other like documents prepared by the lawyer for or during a meeting with his detained client were to all intents and purposes privileged material. Any exception from the general principle of confidentiality was only permissible if the authorities had reasonable cause to believe that professional privilege was being abused in that the contents of the document concerned might endanger prison security or the safety of others or was otherwise of a criminal nature. In the present case, however, the authorities had taken as their starting point the opposite presumption, namely that all written communications between a prisoner and his lawyer were suspect. Despite there being no ascertainable facts to show that either the applicants or their lawyers might abuse professional privilege, the measures complained of had lasted for over two years. In the circumstances the rule whereby defence working documents were subject to perusal and could be confiscated if not checked by the prison authorities beforehand was unjustified, as were the searches of the applicants’ lawyers.
Finally, as regards the conditions in which the applicants had been able to communicate with their lawyers in the courtroom the trial judge had requested the defence lawyers to show her all written documents they wished to exchange with the applicants in accordance with the prison authorities’ security arrangements. While checking drafts and notes prepared by the defence lawyers or the applicants the judge might have come across information or arguments which the defence would not wish to reveal and which could have affected her opinion about the factual and legal issues in the case. In the Court’s opinion, it would be contrary to the principle of adversarial proceedings if the judge’s decision was influenced by arguments and information which the parties did not present and did not discuss at an open trial. Furthermore, the oral consultations between the applicants and their lawyers could have been overheard by the prison escort officers. During the adjournments the lawyers had had to discuss the case with their clients in close vicinity of the prison guards. In sum, the secrecy of the applicants’ exchanges, both oral and written, with their lawyers had been seriously impaired during the hearings.
Conclusion: violation (unanimously).
(iii) Article 6 – 1 in conjunction with Article 6 – 3 (d):- Taking and examination of evidence – As regards the applicants’ complaints that evidence from two experts consulted by the prosecution had been admitted without the applicants being able to challenge it, the Court noted, firstly, that the fact that the prosecution had obtained an expert report without any involvement of the defence did not of itself raise any issue under the Convention, provided that the defence subsequently had an opportunity to examine and challenge both the report and the credibility of those who prepared it, through direct questioning before the trial court.
In response to the Government’s submission that the defence had not shown why it had been necessary to question the expert witnesses, the Court stated that, contrary to the situation with defence witnesses, an accused was not required to demonstrate the importance of a prosecution witness. If the prosecution decided to rely on a particular person’s testimony as being a relevant source of information and if the testimony was used by the trial court to support a guilty verdict, the presumption arose that the personal appearance and questioning of the person concerned were necessary, unless the testimony was manifestly irrelevant or redundant. The two experts had clearly been key witnesses since their conclusions went to the heart of some of the charges against the applicants. The defence had taken no part in the preparation of the experts’ report and had not been able to put questions to them at an earlier stage. In addition, the defence had explained to the district court why they needed to question the experts and there were no good reasons for preventing them from coming to the court. Even if there were no major inconsistencies in the report, questioning experts could reveal possible conflicts of interest, insufficiency of the materials at their disposal or flaws in the methods of examination.
The applicants had also complained of the trial court’s refusal to admit expert evidence (both written and oral) proposed by the defence for examination at the trial. The Court noted that the trial court had refused to admit certain expert evidence which it deemed it irrelevant or useless. In that connection, the Court reiterated that the requirement of a fair trial did not impose an obligation on trial courts to order an expert opinion or any other investigative measure merely because a party had sought it and, having examined the nature of the reports in question, the Court was prepared to accept that the primary reason for not admitting certain of them was their lack of relevance or usefulness which matters were within the trial court’s discretion to decide. However, two audit reports (by Ernst and Young and Price Waterhouse Coopers) were in fact rejected for reasons related not to their content but to their form and origins. Unlike the other expert evidence the defence had sought to adduce, these reports were non-legal and concerned essentially the same matters as the reports produced by the prosecution and so were relevant to the accusations against the applicants. By excluding that evidence, the trial court had put the defence in a disadvantageous position as the prosecution had been entitled to select experts, formulate questions and produce expert reports, while the defence had had no such right. Furthermore, in order effectively to challenge a report by an expert the defence had to have the same opportunity to introduce their own expert evidence. The mere right of the defence to ask the court to commission another expert examination did not suffice. In practice, however, the only option that had been available to the applicants under Russian law had been to obtain oral questioning of ‘specialists’ at the trial, but ‘specialists’ had a different procedural status to ‘experts’, as they had no access to primary materials in the case and the trial court refused to consider their written opinions. In the circumstances, the decision to exclude the two audit reports had created an imbalance between the defence and the prosecution in the area of collecting and adducing ‘expert evidence’, thus breaching the equality of arms between the parties.
Conclusion: violation (unanimously).
Article 7
(a) Alleged procedural obstacles to prosecution – The applicants had claimed that by virtue of a Constitutional Court ruling of 27 May 2003 they could not be held criminally liable for tax evasion before their tax liability had been established in separate proceedings. The Court was not persuaded that the applicants’ understanding of that ruling was correct. It noted, however, that in any event the alleged ‘procedural obstacles’ did not mean that the acts imputed to the applicants were not defined as ‘criminal offences’ when they were committed. There had therefore been no violation of Article 7 on that account.
(b) Novel interpretation of the concept of ‘tax evasion’ – The applicants had argued that they had suffered from a completely novel and unpredictable interpretation of the provisions (Articles 198 and 199 of the Criminal Code) under which they were convicted. The Court observed that while those provisions defined tax evasion in very general terms, by itself such a broad definition did not raise any issue under Article 7. Forms of economic activity were in constant development, and so were methods of tax evasion. In order to define whether particular behaviour amounted to tax evasion in the criminal-law sense the domestic courts could invoke legal concepts from other areas of law. The law in this area could be sufficiently flexible to adapt to new situations, provided it did not become unpredictable. Thus, although in the criminal-law sphere there was no case-law directly applicable to the transfer-pricing arrangements and allegedly sham transactions at the heart of the applicants’ case, the concept of sham transaction was known to Russian law and the courts had the power to apply the ‘substance-over-form’ rule and invalidate a transaction as sham under the Civil and Tax Codes. The Court reiterated that in this area it was not called upon to reassess the domestic courts’ findings, provided they were based on a reasonable assessment of the evidence. In the present case, despite certain flaws, the domestic proceedings could not be characterised as a flagrant denial of justice.
The Court next turned to the question whether the substantive findings of the domestic courts were arbitrary or manifestly unreasonable.
(i) Charges under Article 199 of the Criminal Code (trading companies’ operation in the low-tax zone and the technique of ‘transfer pricing’) – While acknowledging that legitimate methods of tax minimisation could exist, the Court noted that the scheme deployed by Yukos was not fully transparent and that some elements of the scheme that might have been crucial for determining the companies’ eligibility for tax cuts had been concealed from the authorities. For instance, the applicants had never informed the tax authorities of their true relation to the trading companies. The benefits of the trading companies had been returned to Yukos indirectly. All business activities which had generated profit were in fact carried out in Moscow, not in a low-tax zone. The trading companies, which existed only on paper, had no real assets or personnel. Tax minimisation was the sole reason for the creation of the trading companies in the low-tax zone. Such behaviour could not be compared to that of a bona fide taxpayer making a genuine mistake. Finally, it was difficult for the Court to imagine that the applicants, as senior executives and co-owners of Yukos, had not been aware of the scheme or that the trading companies’ fiscal reports did not reflect the true nature of their operations. Thus, the applicants’ acts could be reasonably interpreted as submitting false information to the tax authorities, thus constituting the actus reus of the offence of tax evasion.
(ii) Charges under Article 198 of the Criminal Code (personal income-tax evasion) – In so far as the personal income tax evasion was concerned, the applicants had argued that they had given consulting services to foreign firms and that the tax cuts they had received as ‘individual entrepreneurs’ were legitimate. However, the domestic courts had concluded that such service agreements were in fact de facto payments for the applicants’ work in Yukos and its affiliated structures that would normally have been taxable under the general taxation regime and that the applicants had knowingly misinformed the tax authorities about the true nature of their activities. Those conclusions were not unreasonable or arbitrary.
(c) Application of allegedly dormant criminal law – Lastly, the Court did not accept the applicants’ argument that the authorities’ failure to prosecute and/or convict other businessmen who had been using similar tax-minimisation techniques had made such techniques legitimate and excluded criminal liability. While in certain circumstances a long-lasting tolerance of certain conduct, otherwise punishable under the criminal law, could grow into de facto decriminalisation of such conduct, this was not the case here, primarily because the reasons for such tolerance were unclear. It was possible that the authorities had simply not had sufficient information or resources to prosecute the applicants and/or other businessmen for using such schemes. It required a massive criminal investigation to prove that documents submitted to the tax authorities did not reflect the true nature of business operations. Finally, there was no evidence that tax minimisation schemes used by other businessmen had been organised in exactly the same way as that employed by the applicants. The authorities’ attitude could not therefore be said to have amounted to a conscious tolerance of such practices.
In sum, Article 7 of the Convention was not incompatible with judicial law-making and did not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development was consistent with the essence of the offence and could reasonably be foreseen. While the applicants may have fallen victim to a novel interpretation of the concept of tax evasion, it was based on a reasonable interpretation of the domestic law and consistent with the essence of the offence.
Conclusion: no violation (unanimously).
Article 8: The applicants had complained that their transfer to penal colonies situated thousands of kilometres from their homes had made it impossible for them to see their families. The Court accepted that the situation complained of constituted interference with the applicants’ private and family life and was prepared to accept that the interference was lawful and pursued the legitimate aims of preventing disorder and crime and of securing the rights and freedoms of others.
As to whether it was necessary in a democratic society, the Curt noted, firstly, that it was very likely that the rule set out in the Russian Code of Execution of Sentences, which convicts in areas where prisons were overpopulated to be sent to the next closest region (but not several thousand kilometres away), had not been followed in the applicants’ case. It was hardly conceivable that there were no free places for the applicants in any of the many colonies situated closer to Moscow. The Court stressed that the distribution of the prison population must not remain entirely at the discretion of the administrative bodies and that the interests of convicts in maintaining at least some family and social ties had to somehow be taken into account. In the absence of a clear and foreseeable method of distribution of convicts amongst penal colonies, the system had failed to provide a measure of legal protection against arbitrary interference by public authorities and had led to results that were incompatible with respect for the applicants’ private and family lives.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1: The first applicant had complained that, after convicting him of corporate-tax evasion, the trial court had made an award of damages which overlapped with the claims for back payment of taxes that had been brought against Yukos. The Court found, firstly, that the first applicant’s obligation to pay certain outstanding taxes could be considered an interference with his possessions falling within the scope of Article 1 of Protocol No. 1.
However, it was unnecessary for the Court to examine separately the first applicant’s claim that the State had been awarded the same amount of outstanding corporate taxes twice, as in any event, the interference did not have a lawful basis. The Court accepted that where a limited-liability company was used merely as a facade for fraudulent actions by its owners or managers, piercing the corporate veil may be an appropriate solution for defending the rights of its creditors, including the State. However, there had to be clear rules allowing the State to do this if the interference was not to be arbitrary. Neither the Russian Tax Code at the material time nor the Civil Code permitted the recovery of a company’s tax debts from its managers. Furthermore, the domestic courts had repeatedly interpreted the law as not allowing liability for unpaid company taxes to be shifted to company executives. Finally, the trial court’s findings regarding the civil claim were extremely short and contained no reference to applicable provisions of the domestic law or any comprehensible calculation of damages, as if it was an insignificant matter. In sum, neither the primary legislation then in force nor the case-law allowed for the imposition of civil liability for unpaid company taxes on the company’s executives. The award of damages in favour of the State had thus been arbitrary.
Conclusion: violation (unanimously).
Article 18 (alleged political motivation for prosecution): The Court reiterated that the whole structure of the Convention rested on the general assumption that public authorities in the member States acted in good faith. Though rebuttable in theory, that assumption was difficult to overcome in practice: an applicant alleging that his rights and freedoms were limited for an improper reason had to show convincingly that the real aim of the authorities was not the same as that proclaimed. Thus, the Court had to apply a very exacting standard of proof to such allegations.
That standard had not been met in the applicants’ case. While the circumstances surrounding it could be interpreted as supporting the applicants’ claim of improper motives, there was no direct proof of such motives. The Court was prepared to admit that some political groups or government officials had had their own reasons for pushing for the applicants’ prosecution. However, that was insufficient to conclude that the applicants would not have been convicted otherwise. In the final reckoning, none of the accusations against them even remotely concerned their political activities. Elements of ‘improper motivation’ which may have existed in the instant case did not make the applicants’ prosecution illegitimate from beginning to end: the fact remained that the accusations against the applicants of common criminal offences, such as tax evasion and fraud, were serious, that the case against them had a ‘healthy core’, and that even if there was a mixed intent behind their prosecution, this did not grant them immunity from answering the accusations.
Conclusion: no violation (unanimously).
Article 34: The first applicant had further complained that, in order to prevent him from complaining to the European Court, the authorities had harassed his lawyers.
In the Court’s opinion, there was a significant difference between the first applicant’s allegations under Article 18 and those under Article 34. In so far as his prosecution and trial were concerned, the aims of the authorities for bringing the first applicant to trial and convicting him were evident and did not require further explanation. By contrast, the aim of the disciplinary and other measures directed against his lawyers was far from evident. The Court had specifically invited the Government to explain the reasons for the disbarment proceedings, extraordinary tax audit and denial of visas to the first applicant’s foreign lawyers, but the Government had remained silent on those points. In such circumstances it was natural to assume that the measures directed against the first applicant’s lawyers were linked to his case before the Court. In sum, the measures complained of had been directed primarily, even if not exclusively, at intimidating the lawyers working on the first applicant’s case before the Court. Although it was difficult to measure the effect of those measures on his ability to prepare and argue his case, it was not negligible.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 3 of the Convention on account of the fact that the second applicant appeared at his trial in a metal cage and no violation of that provision in respect of the conditions of his detention in the remand prison; a violation of Article 5 – 3 of the Convention in respect of the length of the second applicant’s pre-trial detention and a violation of Article 5 – 4 on account of delays in the review of his detention.
Article 41: EUR 10,000 to the first applicant in respect of non-pecuniary damage. The second applicant’s pecuniary claims were rejected in full.
(See also Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011, Information Note 141; and OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, 20 September 2011, Information Note 144)

11082/06 13772/05 – Chamber Judgment, [2013] ECHR 747, 11082/06 13772/05 – Legal Summary, [2013] ECHR 774
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Legal Professions, Crime, Prisons

Leading Case

Updated: 09 November 2021; Ref: scu.515133

Racz v Home Office: HL 17 Dec 1993

The Home Office can be liable for the actions of prison officers which amounted to an official misfeasance. The principles of vicarious liability apply as much to misfeasance in public office as to other torts involving malice, knowledge or intention. Lord Jauncey said: ‘My Lords, in my view, striking out paragraph 6 of this claim could only be justified if the inevitable result of proof of the averments therein was that the unauthorised acts of the prison officers was so unconnected with their authorised duties as to be quite independent of and outside those duties’.
And ‘ the Court of Appeal were dealing with the question of mode of trial upon the basis that the claim in respect of misfeasance in public office would not proceed. However, the facts relevant to that claim are likely to be identical to those which will be considered under the remaining heads of claim and the issue of exemplary damages also falls to be considered under those heads of claim.’ However, there can be no false imprisonment of a prisoner who is lawfully confined under section 12(1) of the 1952 Act, and a restraint upon movement which is not in accordance with the Prison Rules 1964 does not give rise to a cause of action for either false imprisonment or breach of statutory duty.

Lord Jauncey of Tullichettle
Times 17-Dec-1993, Independent 17-Dec-1993, [1994] 2 WLR 23, [1994] 1 All ER 97, [1994] 2 AC 45
England and Wales
Citing:
CitedCanadian Pacific Railway Co v Lockhart PC 1941
When considering the imposition of vicarious liability, ‘the first consideration is the ascertainment of what the servant is employed to do.’ (Lord Thankerton) and ‘It is clear that the master is responsible for acts actually authorised by him: for . .

Cited by:
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
CitedHouchin v Lincolnshire Probation Trust QBD 9-Apr-2013
houchin_lincsPSQBD2013
The defendant sought to have the claim struck out. The prisoner said that the defendant’s probation officer had through misfeasance in public office arranged for his transfer back to secure conditions from open ones. The parole board panel had found . .
CitedElliott v Chief Constable of Wiltshire and Others ChD 20-Nov-1996
Vice-Chancellor was asked to consider whether to strike out a statement of claim based upon alleged misfeasance by a police officer in his public office. The allegation against the police officer was that he had deliberately and falsely supplied . .

Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Prisons, Torts – Other

Leading Case

Updated: 09 November 2021; Ref: scu.85636

Semikhvostov v Russia: ECHR 6 Feb 2014

ECHR Article 3 – Degrading treatment – Inhuman treatment
Lack of independent access to prison facilities for paraplegic prisoner; lack of organised assistance with his mobility and daily routine resulting in his segregation and stigmatisation: violation
Facts – The applicant, who was wheelchair-bound and suffering from numerous health problems, including complete paralysis of the lower body and extremely poor eyesight, was detained for almost three years in a correctional facility that was not adapted for the disabled. He had to rely on the help of other inmates to leave the dormitory and to access facilities such as the lavatory, bathhouse, library, shop and medical unit, which were inaccessible in a wheelchair.
Law – Article 3: The limitations on the applicant’s personal mobility were so severe that he had been unable to eat at the canteen with fellow inmates. While it was not possible to verify the applicant’s allegation that he had been denied food or had received it on dirty tableware, his formal segregation from the rest of the inmate population had stigmatised him and by itself served as the main restriction on his leading a dignified life in the already harsh environment of a penal facility.
The State’s obligation to ensure adequate conditions of detention included making provision for the special needs of prisoners with physical disabilities, and the State could not absolve itself from that obligation by shifting the responsibility to other inmates. By appointing fellow inmates to care for the applicant the State had not taken the necessary steps to remove the environmental and attitudinal barriers which had seriously impeded the applicant’s ability to participate in daily activities with the general prison population which, in its turn, had precluded his integration and stigmatised him even further. Many of the applicant’s access problems could have been solved by reasonable improvements which would have been neither costly nor complicated. However, the authorities’ response had been restricted to the temporarily installation of an entrance ramp, the provision of a chair for use in the lavatory and assigning inmates to assist him. Those arrangements could not have ensured the applicant’s autonomy or promote his physical and moral integrity. The restrictions on his personal mobility and lack of reasonable accommodation during his three-year long detention must have had a dehumanising effect. The domestic authorities had failed to treat him in a safe and appropriate manner consistent with his disability. In sum, the conditions of the applicant’s detention and, in particular, his lack of independent access to parts of the facility, including the canteen and sanitation blocks, and the lack of any organised assistance with his mobility, must have caused the applicant unnecessary and avoidable mental and physical suffering amounting to inhuman and degrading treatment.
Conclusion: violation (unanimously).
The Court also found a violation of Article 13 of the Convention.
Article 41: EUR 15,000 in respect of non-pecuniary damage.

2689/12 – Legal Summary, [2014] ECHR 295
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Prisons

Updated: 02 November 2021; Ref: scu.522578

McGetrick, Regina (on The Application of) v The Parole Board and Another: Admn 4 Apr 2012

Parole Board Must Consider All Material Before It

The court was asked whether it was lawful for the Parole Board, when deciding whether to release a prisoner on licence, to take into account material provided by the Secretary of State containing factual allegations about the prisoner’s pre-trial conduct, which formed part of the original prosecution case against him, but in relation to which he was never convicted.
Held: A declaration that the Board’s action was unlawful was refused. The Board was ‘dealing with a case’ within section 239 of the 2003 Act, and was therefore required by the statute to consider all the material placed before it.

Stanley Burnton LJ, King J
[2012] EWHC 882 (Admin), [2012] ACD 83, [2012] 1 WLR 2488, [2012] WLR(D) 114
Bailii, WLRD
Criminal Justice Act 2003 239, Parole Board Rules 2011
England and Wales
Cited by:
Appeal fromMcGetrick, Regina (on The Application of) v Parole Board and Another CA 14-Mar-2013
The claimant prisoner appealed against refusal of review of the use of allegations and evidence of offences not tried against him when deciding as to his release on licence. The material would suggest that he might pose a continuing risk to . .

Lists of cited by and citing cases may be incomplete.

Prisons

Leading Case

Updated: 02 November 2021; Ref: scu.452479

Leech v Governor of Parkhurst Prison: HL 1988

The House was asked whether a disciplinary decision by a governor was amenable to judicial review.
Held: The functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; they are subject to the supervision of the courts in their compliance with the rules of natural justice. A governor carrying out his disciplinary functions under the English Prisons Rules 1964 ‘is not a mere servant or alter ego of the Secretary of State but a statutory officer performing statutory duties.’
The adequacy of the reach of any alternative remedy will be an important consideration in deciding whether or not it is appropriate for judicial review to be sought.
Lord Oliver of Aylmerton said that the susceptibility of a decision to the supervision of the courts must depend, in the ultimate analysis, upon the nature and consequences of the decision and not upon the personality or individual circumstances of the person called on to make the decision.
Lord Bridge of Harwich said: ‘The governor of a prison holds an office created by the Act of 1952 and exercises certain powers under rules 47 to 55 of the Rules of 1964 [the disciplinary provisions then in force] which are conferred upon him and him alone.’
Lord Bridge went on to address the reasoning in an earlier decision of the Court of Appeal, which had distinguished between prison governors and boards of visitors on the basis that governors were servants or agents of the Secretary of State: ‘A prison governor may in general terms be aptly described as the servant of the Secretary of State, but he is not acting as such when adjudicating upon a charge of a disciplinary offence. He is then exercising the independent power conferred on him by the rules. The Secretary of State has no authority to direct the governor, any more than the board of visitors, as to how to adjudicate on a particular charge or what punishment should be awarded. If a Home Office official sought to stand behind the governor at a disciplinary hearing and tell him what to do, the governor would properly send him packing.’

Lord Oliver of Aylmerton, Lord Bridge of Harwich
[1988] AC 533, [1988] UKHL 16, [1988] 1 All ER 485, [1988] 2 WLR 290
Bailii
Prisons Rules 1964
England and Wales
Cited by:
CitedRegina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
CitedRegina (Tucker) v Director General of the National Crime Squad CA 17-Jan-2003
The applicant was a senior officer seconded to the National Crime Squad. He complained that his secondment had been terminated in a manner which was unfair, and left him tainted without opportunity to reply. He appealed against rejection of his . .
CitedErlam and Others v Rahman and Another QBD 23-Apr-2015
The petitioners had alleged that the respondent, in his or his agent’s conduct of his campaign to be elected Mayor for Tower Hamlets in London in May 2014, had engaged in corrupt and illegal practices.
Held: The election was set aside for . .
CitedWatch Tower Bible and Tract Society of Britain v Charity Commission Admn 12-Dec-2014
The respondent had instigated a statutory inquiry under the 2011 Act into the claimant’s child safeguarding practices, and policies after compaints made to it. The Society now sought judicial review of that decision, and to production orders made to . .
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .

Lists of cited by and citing cases may be incomplete.

Administrative, Prisons, Judicial Review

Leading Case

Updated: 02 November 2021; Ref: scu.197037

Dorset Yacht Co Ltd v Home Office: HL 6 May 1970

A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use reasonable care to prevent a borstal trainee from escaping from his custody, was owed only to persons whom he could reasonably foresee had property situated in the vicinity of the place of detention of the detainee, and which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and capture. Where human action forms one of the links between the original wrongdoing of the defendant and the plaintiff’s loss that action must ‘at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation.’
Lord Reid said: ‘there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that.’
Lord Diplock described the process by which a legal principle was to be derived from authority, describing it as inductive, testing the characteristics of the cases: ‘This analysis leads to a proposition which can be stated in the form:
‘In all the decisions that have been analysed a duty of care has been held to exist wherever the conduct and the relationship possessed each of the characteristics A, B, C, D, etc, and has not so far been found to exist when any of these characteristics were absent.’
For the second stage, which is deductive and analytical, that proposition is converted to: ‘In all cases where the conduct and relationship possess each of the characteristics A, B, C, D, etc, a duty of care arises.’ The conduct and relationship involved in the case for decision is then analysed to ascertain whether they possess each of these characteristics. If they do the conclusion follows that a duty of care does arise in the case for decision’

Reid, Morris of Borth-y-Guest, Pearson, Diplock, LL, Viscount Dilhorne
[1970] AC 1004, [1970] 2 WLR 1140, [1970] 2 All ER 94, [1970] UKHL 2
Bailii
England and Wales
Citing:
Appeal fromDorset Yacht Co Ltd v Home Office CA 1969
. .
CitedDonoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
CitedGeddis v Proprietors of Bann Reservoir HL 18-Feb-1878
The owner of land injured by operations authorised by statute ‘suffers a private loss for the public benefit’, and in the absence of clear statutory authority is unable to claim: ‘It is now thoroughly well established that no action will lie for . .

Cited by:
CitedAnns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
CitedK v the Secretary of State for the Home Department CA 31-May-2002
The applicant sought damages from the defendant who had released from custody pending deportation a man convicted of violent sexual crimes and who had then raped her. She appealed against a strike out of her claim. She had been refused information . .
CitedMutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC 16-Nov-1971
The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
Held: The company was not itself in the business of giving such . .
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
CitedOsman 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, . .
CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
CitedDutton v Bognor Regis Urban District Council CA 1972
The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective.
Held: The Council had control of the work and with such control came a responsibility to take care in . .
CitedHill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
CitedMullaney v Chief Constable of West Midlands Police CA 15-May-2001
The claimant police officer was severely injured making an arrest. He claimed damages from the respondent for contributory negligence of other officers in failing to come to his assistance.
Held: If a police officer owes a duty of care to . .
AppliedTate and Lyle Industries Ltd v Greater London Council HL 24-Mar-1983
The plaintiff had constructed and used two jetties, and dredged a channel down to the Thames for their use. The Council constructed two terminals nearby, the result of which was to cause a build up of silt blocking the channel.
Held: The . .
AppliedPeabody Donation Fund v Sir Lindsay Parkinson and Co Ltd HL 18-Oct-1983
Architects proposed a system of flexible drains for a site, but the contractors persuaded them to accept rigid drains which once laid proved inadequate at considerable cost. The local authority had permitted the departure from the plans.
Held: . .
CitedSmith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
CitedThe Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .
CitedBinod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
CitedGorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
CitedRegina v Lam and Others (T/a ‘Namesakes of Torbay’) and Borough of Torbay CA 30-Jul-1997
The claimant sought damages after the planning authority allowed the first defendant to conduct a manufacturing business in the course of which spraying activities took place which caused them personal injuries and loss of business.
Held: The . .
CitedHertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
CitedMitchell and Another v Glasgow City Council HL 18-Feb-2009
(Scotland) The pursuers were the widow and daughter of a tenant of the respondent who had been violently killed by his neighbour. They said that the respondent, knowing of the neighbour’s violent behaviours had a duty of care to the deceased and . .
CitedGlaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
CitedPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
CitedWoodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
CitedMichael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
CitedRobinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .

Lists of cited by and citing cases may be incomplete.

Negligence, Prisons

Leading Case

Updated: 02 November 2021; Ref: scu.179786

Cannan v HMP Full Sutton: Admn 29 Jun 2009

The prisoner challenged his re-assessment for a status of ‘standard’ within a scheme operated by the prison allocating privileges according to behaviour. He maintained denial of guilt for the offences for which had been convicted and so was unable to apply for a programme necessary for a better rating. He said that he had been ready to undertake other work which would have helped work toward the achievement of the purposes of the treatment programme. He had offered to take part in initerviews provided he could record them, which was refused by the prison.
Held: Valid reasons remained for requiring participation in the treatment before the prisoner could be awarded enhanced status. The application failed.

Wyn Williams J
[2009] EWHC 1517 (Admin)
Bailii
England and Wales
Citing:
CitedRegina v Secretary of State for Home Department ex parte Hepworth, Fenton-Palmer and Baldonzy and Regina v Parole Board ex parte Winfield Admn 25-Mar-1997
The applicants for judicial review had each been convicted and sentenced for sex offences. Each maintained his innocence, and now complained that that fact had prejudiced decisions as to early release on parole and as to their categorisation.
CitedPotter and Others, Regina (On the Application of) v Secretary of State for the Home Department and Another Admn 30-Nov-2001
Four prisoners challenged the refusal to grant them enhanced status under the prison’s Incentives and Earned Privileges Scheme. Each maintained a denial of guilt and so was not eligible for a treatment programme.
Held: The applications failed. . .

Lists of cited by and citing cases may be incomplete.

Prisons

Updated: 02 November 2021; Ref: scu.347288

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: The appeal failed (by a majority). The court should focus on the need of the Parole Board to carry out its work balancing the rights of the prisoner and the needs of society.
Lord Carswell said: ‘The present case is a classic instance of weighing up competing interests. The appellant’s interest in presenting his case effectively with sufficient knowledge of the allegations made against him is clear and strong. The informant has a compelling interest in being protected from dangerous consequences which might ensue if any indication leaked out which could lead to his identification. Thirdly, there is the public interest in ensuring that the Parole Board has all proper material before it to enable it to decide which prisoners are safe to release from prison. Having balanced these interests, I conclude that the interests which I have outlined of the informant and the public must prevail over those of the appellant, strong though the latter may be. I emphasise, however, that my conclusions relating to the powers of the Parole Board to use the SAA procedure and their compatibility with article 5(4) are a decision in principle, for that was all that was before the House. We were not asked, nor were we in a position to decide, whether it was proper in the instant case of the appellant. I accept that there may well be cases in which it would not be sufficiently fair to be justifiable and each case will require consideration on its own facts.’
The withholding of material was a clear breach of accepted rules of natural justice. The special advocate procedure had severe shortcomings. The statute made no provision for the procedure adopted, and it was unlawful Lord Steyn: ‘it is a formalistic outcome to describe a phantom hearing involving a special advocate (as directed by the Board) as meeting minimum standards of fairness. In truth the special advocate procedure empties the prisoner’s fundamental right to an oral hearing of all meaningful content.’ (Lord Bngham and Lord Steyn dissenting).

Lord Bingham of Cornhill, Lord Woolf, Lord Steyn, Lord Rodger of Earlsferry, Lord Carswell
[2005] UKHL 45, [2005] 2 AC 738, [2005] HRLR 38, [2005] UKHRR 939, [2006] 1 All ER 39, [2005] RPC 10, [2005] 3 WLR 152
Bailii, House of Lords
Crime (Sentences) Act 1997 28(5), European Convention on Human Rights 5
England and Wales
Citing:
Appeal fromRoberts v Parole Board CA 28-Jul-2004
The discretionary life-prisoner faced a parole board. The Secretary of State wished to present evidence, but wanted the witness to be protected. The Parole Board appointed special counsel to hear the evidence on behalf of the prisoner on terms that . .
CitedRegina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
CitedGirling v Parole Board and Secretary of State for the Home Department Admn 8-Apr-2005
Once the punitive or tariff term of imprisonment on a convicted murderer, is completed, risk to life and limb provides the sole ground for continued detention. The Parole Board, being subject to directions from the Home Secretary, was not an . .
At First InstanceRoberts v Parole Board Admn 19-Dec-2003
The prisoner had been convicted in 1996 of the murder of three police officers. His tariff had been fixed at 30 years. Material was to be placed before the parole board which was not to be disclosed to the appellant or his legal advisers. Instead it . .
CitedWeeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedRoberts v Parole Board Admn 19-Dec-2003
The prisoner had been convicted in 1996 of the murder of three police officers. His tariff had been fixed at 30 years. Material was to be placed before the parole board which was not to be disclosed to the appellant or his legal advisers. Instead it . .
CitedRegina v Parole Board, ex Parte Watson CA 11-Mar-1996
The test as to whether there was still a need to protect the public safety from the defendant was just as appropriate when considering the revocation of a licence, as it was when the need for continued detention was being reviewed before the grant . .
CitedRegina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
CitedRegina 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.
CitedDoorson v The Netherlands ECHR 26-Mar-1996
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, . .
CitedVan Mechelen And Others v The Netherlands ECHR 23-Apr-1997
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 . .
CitedTinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
CitedJasper v The United Kingdom ECHR 16-Feb-2000
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 . .
CitedIn Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
CitedRe D (Minors) (Adoption Reports: Confidentiality) HL 1-Sep-1995
The House considered whether it was right for a tribunal to see and rely upon papers not disclosed to the parties. Lord Mustill said: ‘a first principle of fairness that each party to a judicial process shall have an opportunity to answer by . .
CitedIn Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
CitedRegina v Parole Board and Another ex parte Wilson CA 6-May-1992
It was natural justice to allow a discretionary lifer to see the reports which had been prepared for consideration on his application for release on licence. W had been sentenced to life imprisonment for buggery, and was a discretionary life . .
CitedLamy v Belgium ECHR 30-Mar-1989
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; . .
CitedD (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 . .
CitedRegina v Secretary of State for Home Department Ex Parte Hickey and Others, Same Ex Parte Bamber; Same Ex Parte Malone (No 2) QBD 29-Nov-1994
The Home Secretary is obliged to disclose new evidence to a defendant before rejecting his application for a reference to Court of Appeal. The Home Secretary’s powers to refer a case back to the Court of Appeal (Criminal Division) was an integral . .
CitedKostovski 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 . .
CitedRegina v Secretary of State for Home Department ex parte H and Others, Regina v Same ex parte Hickey CA 29-Jul-1994
A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those . .
CitedBrandstetter v Austria ECHR 28-Aug-1991
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; No violation of Art. 6-1+6-3-d; No violation of Art. 6-3-c; Pecuniary damage – claim . .
CitedEdwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
mentionedSanchez-Reisse v Switzerland ECHR 21-Oct-1986
That a detainee may be heard either in person or, where necessary, through some form of representation can be a fundamental procedural guarantee in matters of deprivation of liberty. Article 5(4)was inspired by the English law of habeas corpus. . .
MentionedAl-Nashif v Bulgaria ECHR 20-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Preliminary objections dismissed (non-exhaustion, abuse of right of petition); Violation of Art. 5-4; Violation of Art. 8; Violation of Art. 13; Not necessary to . .
MentionedLuca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .
CitedGarcia Alva v Germany ECHR 13-Feb-2001
The complainant had been arrested on suspicion of drug trafficking and was detained on remand. When he brought an application for review of his detention his lawyers were not given access to a number of documents in the file, including the . .
CitedThe Secretary of State for the Home Department v M CA 18-Mar-2004
The applicant had been detained under the appellant’s certificate that he was a suspected terrorist.
Held: The fact that there were suspicions surrounding the detainee did not mean that those suspicions were necessarily reasonable suspicions . .
CitedAttorney General and Another v Great Eastern Railway Company HL 27-May-1880
An Act of Parliament authorised a company to construct a railway. Two other companies combined and contracted with the first to supply rolling stock. An injunction was brought to try to restrain this, saying that such a contract was not explicitly . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 21-May-1997
The Home Secretary may not later extend the tariff for a lifer after it had been set by an earlier Home Secretary merely to satisfy needs of retribution and deterrence. ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
CitedColes v Odhams Press Ltd 1936
Lord Hewart CJ said that courts should avoid ‘taking blind shots at a hidden target’. . .
CitedBouamar v Belgium ECHR 29-Feb-1988
Hudoc Violation of Art. 5-1; Violation of Art. 5-4; Just satisfaction reserved; Judgment (Just satisfaction) Struck out of the list (friendly settlement)
A person detained as a juvenile in need of . .
CitedHussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .
CitedSecretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
CitedRegina 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.
MentionedRegina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
CitedWaite v The United Kingdom ECHR 10-Dec-2002
The claimant had been sentenced to be detained at Her Majesty’s pleasure when a youth. After release on licence, the Parole Board met and revoked that licence without an oral hearing, and in contravention of the rules. He did not dispute the facts . .
CitedRegina v Davis; Regina v Rowe; Regina v Johnson CA 10-Mar-1993
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the . .
CitedRegina on the Application of S v Waltham Forest Youth Court, The Crown Prosecution Service, The Secretary of State for the Home Department Admn 31-Mar-2004
There was no inherent power to allow a defendant to give evidence by live link, on the ground that Parliament had sought since 1988 to provide exclusively for the circumstances in which live link might be used in a criminal trial. . .
QuotedUnited States v Rabinowitz 1950
(US Supreme Court) Justice Frankfurter said: ‘It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.’ . .
CitedRegina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
CitedHazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .

Cited by:
CitedMcClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
CitedAl-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
CitedHenshall v General Medical Council and others CA 13-Dec-2005
The claimant had lodged a complaint against a medical practitioner. The preliminary proceedings committee had accepted evidence from the doctor, but had not given the complainant opportunity to see it and comment upon it.
Held: the rules must . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedGardner, Regina (on the Application Of) v the Parole Board Admn 21-Dec-2005
The court considered whether a parole review board can exclude the prisoner from part of a hearing and if so on what grounds.
Held: The parole board had the required power. Both Rule 19 (2) and 19 (3) gave the panel the power which they . .
CitedGardner, Regina (on the Application of) v Parole Board CA 5-Sep-2006
The prisoner challenged his exclusion from a parole board hearing whilst evidence was taken. He was serving a long sentence for a violent attack, and had re-offended only shortly after his release. His ex-wife had been unwilling to confront him, and . .
CitedA, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
CitedMurungaru v Secretary of State for the Home Department and others Admn 4-Oct-2006
The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with . .
See AlsoRoberts, Regina (on the Application of) v The Parole Board Admn 7-Nov-2008
The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of . .
CitedAl Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
CitedBank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
CitedAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
CitedSher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
CitedChief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
CitedMcGetrick, Regina (on The Application of) v Parole Board and Another CA 14-Mar-2013
The claimant prisoner appealed against refusal of review of the use of allegations and evidence of offences not tried against him when deciding as to his release on licence. The material would suggest that he might pose a continuing risk to . .
CitedBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.228285

Regina v Governor of Durham Prison, ex parte Hardial Singh: QBD 13 Dec 1983

Unlawful Detention pending Deportation

An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he had then been detained was too long and that the detention had become unlawful, and he sought habeas corpus to secure release.
Held: The detention was on the borderline of being unlawful, and unless an order was made within a few days, Mr Singh’s application should succeed. A short adjournment was granted on this basis.
The power of the Secretary of State was subject to limitation to a period which is reasonably necessary for that purpose, depending on the circumstances of the particular case. If it is apparent to the Secretary of State that he is not going to be able to remove someone intended to be deported within a reasonable period, it would be wrong for the Secretary of State to seek to exercise his power of detention.
In relation to the power of deportation, Woolf J said: ‘Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained . . pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.
In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.’

Woolf J
[1984] 1 WLR 704, [1983] EWHC 1 (QB), [1983] Imm AR 198, [1984] 1 All ER 983
Bailii, Bailii
Immigration Act 1971 Sch 3 Para 2
England and Wales
Citing:
CitedRegina v Governor of Richmond Remand Centre, Ex Parte Asghar QBD 1971
The Secretary of State had detained two persons who were awaiting removal with the object that they should testify in a pending criminal trial. Lord Parker J rejected the suggestion that the detention could be justified as reasonable in these . .
CitedIn re Sital Singh QBD 8-Jul-1975
Mtr Singh was suspected to be an illegal immigrant. The Secretary of State had authorized his removal on 24 April 1975. The matter came before the court on 8 July 1975. The applicant had been in custody since 17 March, three and a half months prior . .

Cited by:
CitedI, Regina (on the Application of) v Secretary of State for the Home Department CA 28-Jun-2002
The appellant obtained asylum but was convicted of offences after entering, and ordered to be deported. Whilst serving his sentence the deportation order was served, but he was not released on licence at the time he would normally have been . .
CitedSecretary of State for the Home Department v Regina on the Application of Khadir CA 3-Apr-2003
The Secretary of State appealed an order requiring him to reconsider refusal of exceptional leave to remain. The applicant was an Iraqi Kurd. It was not possible to make immediate arrangements for repatriation after the order.
Held: The . .
ApprovedTan Te Lam v Superintendent of Tai A Chau Detention Centre PC 27-Mar-1996
(Hong Kong) Migrants from Vietnam of Chinese ethnic origin had landed in Hong Kong by boat, and been refused refugee status. They were detained for several years under section 13D of the Immigration Ordinance ‘pending . . removal from Hong Kong’. . .
CitedRegina v Secretary of State for the Home Department Ex parte Saadi and others HL 31-Oct-2002
The applicants were Kurdish asylum seekers. The Home Secretary introduced powers to detain certain asylum seekers for a short period in order to facilitate the speedy resolution of their applications. Only those who it was suspected might run away . .
CitedA 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 . .
CitedID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
FollowedRe Wasfi Suleman Mahmod Admn 1995
The applicant was an Iraqi who had been granted asylum in Germany. On entering England as a visitor he was found in possession of opium and sentenced to four years’ imprisonment with a recommendation for deportation. He was served with a deportation . .
CitedKhadir, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Jun-2005
The applicant who had entered England hidden in a lorry, claimed asylum, and had his claim rejected. It was said that as an Iraqi Kurd, he would be safe in the Kurdish area of Iraq. No safe means had been found of ensuring his return over some four . .
CitedHwez and Khadir v Secretary of State for the Home Departmentand Another Admn 29-Jul-2002
. .
CitedSK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
CitedSK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
CitedRostami, Regina (on the Application of) v Secretary of State for the Home Department QBD 7-Aug-2009
The claimant had been detained for nearly three years while his application for asylum was determined. He sought judicial review, saying that the detention was unlawful. Whilst in detention he had self harmed and said: ‘I will stay in detention for . .
CitedSaleh, Regina (On the Application of) v Secretary Of State for the Home Department Admn 5-Oct-2009
The claimant challenged his past and continuing detention pending deportation. He had a long series of convictions for dishonesty.
Held: ‘it is indeed disconcerting to find that a non-violent person subject to immigration control has been in . .
CitedAnam v Secretary of the State for the Home Department Admn 13-Oct-2009
The claimant said that his detention pending deportation was unlawful being in his case in breach of the respondent’s policy of not detaining those with mental health problems. He had committed various offences but was receiving a treatment which . .
CitedMC (Algeria), Regina (on The Application of) v Secretary of State for The Home Department CA 31-Mar-2010
The claimant challenged his detention under the 1971 Act, now appealing against refusal of judicial review. His asylum claims had been rejected, and he had been convicted of various offences, including failures to answer bail. He had failed to . .
CitedMohamed, Regina (on the Application of) v Secretary of State for the Home Department Admn 16-Jun-2003
The claimant challenged his continued detention under the 1971 Act after his appeal to the Immigration Appeal tribunal had been successful. He had been accused of rape, but was convicted of a sexual assault, though still serious. Before being . .
CitedIn re Wasfi Suleman Mahmod Admn 17-Jan-1994
Laws J considered the Hardial Singh principles, adding: ‘While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it . .
CitedMH, Regina (on The Application of) v Secretary of State for The Home Department CA 14-Oct-2010
The claimant complained that his administrative detention for over 40 months had been unlawful. He now appealed against a finding that it had been lawful save for the final two months.
Held: The appeal failed. The period of time for which he . .
ApprovedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedAbdi and others v Secretary of State for the Home Department Admn 19-Dec-2008
The claimants, foreign nationals, had been detained pending deportation after completion of sentences of imprisonment. They challenged the policy that such deportees should be held by default pending deportation.
Held: David J granted . .
CitedLumba, Regina (on the Application of) v Secretary of State for the Home Department Admn 4-Jul-2008
The failed asylum claimant challenged as unlawful his continued detention pending return to Congo. . .
CitedKambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
CitedNouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .
CitedO, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Apr-2016
The appellant failed asylum seeker had been detained for three years pending deportation. She suffered a mental illness, and during her detention the medical advice that her condition could be coped with in the detention centre changed, recommending . .
CitedHemmati and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Nov-2019
The Home Secretary appealed from a finding that illegally entered asylum seekers had been unlawfully detained pending removal. The five claimants had travelled through other EU member states before entering the UK. The court considered inter alia . .
CitedB v Secretary of State for The Home Department (Deportation – Hardial Singh – Dismissed) SIAC 29-Jan-2014
. .
CitedB v The Secretary of State for The Home Department CA 6-May-2015
The appellant was detained under immigration rules. He refused to provide details of his nationality and now complained of his continuing detention in the light of a finding that he was unlikely to be returnable to Algeria, that being what was . .
CitedB (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .

Lists of cited by and citing cases may be incomplete.

Immigration, Prisons, Administrative

Leading Case

Updated: 02 November 2021; Ref: scu.180466

Regina (P) v Secretary of State for the Home Department and Another; Regina (Q and Another) v Same: CA 20 Jul 2001

The court was asked as to the separation on sentence of a mother from a very young child.
Held: A sentencing court is bound by section 6(1) of the Human Rights Act 1998 to have regard for the provisions of the Convention when sentencing. Whilst the prison service was entitled to have a policy that children should not in general stay with their mothers in prison after the child reaches eighteen months, it was not permissible for that policy to be inflexible or to be applied inflexibly. The overriding aim of the policy was the welfare of the child, and that required allowance for the circumstances such as potentially catastrophic effect of separation, the potentially unsatisfactory alternative care arrangements. The right to family life must also now be respected.

L Phillips of Worth Matravers, MR, Brooke, Hale LJJ
Times 01-Aug-2001, Gazette 06-Sep-2001, [2001] EWCA Civ 1151, [2001] 2 FLR 1122, [2001] UKHRR 1035, [2001] 1 WLR 2002, [2001] 3 FCR 416, [2001] Prison LR 297, [2001] Fam Law 803
Bailii
Prison Service Order No 4801, European Convention on Human Rights Art 8.2, Human Rights Act 1998 691)
England and Wales
Cited by:
CitedRegina v Qazi and Another CACD 4-Nov-2010
The defendant appealed against sentence, saying that given his serious medical condition, any imprisonment would threaten his human rights.
Held: The court set out the law. A court imposing a sentence should not concern itself with the . .

Lists of cited by and citing cases may be incomplete.

Prisons, Children, Human Rights, Family, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.136152

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 appeals failed.
Lord Mance summarised the reasons for his conclusions: ‘(A) Human Rights Act
In respect of Chester’s claim under the Human Rights Act, which only relates to elections to the European and United Kingdom Parliaments, I would decline the Attorney General’s invitation to this Court not to apply the principles in Hirst v United Kingdom (No 2) (2005) 42 EHRR 41 (‘Hirst (No 2)’) and Scoppola v Italy (No 3) (2013) 56 EHRR 19 (paras 34-35) (‘Scoppola’), but also decline to make any further declaration of incompatibility with the Convention rights.
(B) European law
a. In respect of McGeoch’s and Chester’s claims under European law, which can at most relate to elections to the European Parliament and municipal authorities (paras 9, 45 and 46), I conclude that European law does not incorporate any right to vote paralleling that recognised by the European Court of Human Rights in its case-law or any other individual right to vote which is engaged or upon which, if engaged, they are able to rely.
b. Had European law conferred any right to vote on which McGeoch and Chester can rely:
i. the only relief that might have been considered would have been a generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Community or Union law but that would not have appeared appropriate in the particular cases of Chester and McGeoch;
ii. the general ban on voting in European Parliamentary and municipal elections could not have been disapplied as a whole;
iii. it would not have been possible to read the RPA section 3 or EPEA section 8 compatibly with European law;
iv. the Supreme Court could not itself devise a scheme or arrangements that would or might pass muster with European law; that would be for Parliament;
v. neither of the appellants could have had any arguable claim for damages in respect of any breach of European law which may be involved in RPA section 3 and/or EPEA section 8.
(C) European Court of Justice
The resolution of these appeals does not necessitate a reference to the European Court of Justice. In so far as it raises issues of European law for determination, they are either not open to reasonable doubt or involve the application by this Court to the facts of established principles of European law.
(D) Both appeals fall therefore, in my opinion, to be dismissed
Baroness Hale said that when the court was considering remedies under the 1998 Act it should adopt the ‘sensible practice’ of asking in what way the particular claimant’s Convention rights had been violated. She continued:’That leaves the possibility of a declaration of incompatibility under section 4(2) of the Human Rights Act 1998. This applies ‘in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right’: section 4(1). This does appear to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant. There may be occasions when that would be appropriate. But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims.’

Lady Hale, Deputy President, Lord Hope, Lord Mance, Lord Kerr, Lord Clarke, Lord Sumption, Lord Hughes
[2013] UKSC 63, [2014] 1 AC 271, [2014] HRLR 3, [2013] 3 WLR 1076, [2014] 1 All ER 683, [2013] WLR(D) 392, [2014] 1 CMLR 45, 2014 SC (UKSC) 25, 2014 SLT 143, 2013 GWD 34-676, UKSC 2012/0151
Bailii, WLRD, Bailii Summary, SC Summary, SC
European Convention on Human Rights, Human Rights Act 1998 4(2)
Scotland
Citing:
At First InstanceChester, Regina (on The Application of) v Secretary of State for Justice and Another Admn 28-Oct-2009
Burton J dismissed a claim for judicial review brought by the serving prisoner, to challenge his statutory disfranchisement from voting in domestic and European Parliamentary elections. . .
Appeal fromChester v Secretary of State for Justice and Wakefield Metropolitan District Council CA 17-Dec-2010
The prisoner claimant appealed against refusal of his request for judicial review of his disenfranchisement whilst a prisoner.
Held: The appeal was dismissed. It was not possible to read into the Act as suggested a duty on a judge on . .
CitedMatthews v The United Kingdom ECHR 18-Feb-1999
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 . .
CitedHirst 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 . .
CitedBarclay and Others, Regina (on The Application of) v Secretary of State for Justice and Others SC 1-Dec-2009
The claimants said that restrictions within the constitution of Sark on who could sit in the Chief Pleas were incompatible with their human rights. The claimants variously owned property on Sark but had restricted rights to vote and stand.
CitedGreens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedScoppola v Italy (No 3) ECHR 22-May-2012
(Grand Chamber) A prisoner serving a sentence of 30 years imprisonment for murder, attempted murder and other offences object to his disenfranchisement under Italian law. . .
CitedMcLean and Cole v The United Kingdom ECHR 11-Jun-2013
The applicants complained that, as convicted prisoners, they had been subject to a blanket ban on voting in elections and had been, or would be, prevented from voting in one or more of the following: elections to the European Parliament on 4 June . .
CitedMcLean and Cole v The United Kingdom ECHR 11-Jun-2013
The applicants complained that, as convicted prisoners, they had been subject to a blanket ban on voting in elections and had been, or would be, prevented from voting in one or more of the following: elections to the European Parliament on 4 June . .
CitedAnchugov And Gladkov v Russia ECHR 4-Jul-2013
. .
CitedSoyler v Turkey ECHR 17-Sep-2013
. .
CitedAnimal Defenders International v The United Kingdom ECHR 22-Apr-2013
ECHR (Grand Chamber) Article 10-1
Freedom of expression
Refusal of permission for non-governmental organisation to place television advert owing to statutory prohibition of political advertising: no . .
CitedManchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
CitedSauve v Canada (Chief Electoral Officer) 31-Oct-2002
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Right to vote – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences . .
CitedSpain v United Kingdom ECJ 12-Sep-2006
ECJ Law Governing The Institutions – European Parliament – Elections – Right to vote – Commonwealth citizens residing in Gibraltar and not having citizenship of the Union. . .
CitedEman and Sevinger (European Citizenship) ECJ 12-Sep-2006
ECJ (Opinion) European Parliament – Elections – Right to vote – Requirements of residence in the Netherlands for Netherlands citizens of Aruba – Citizenship of the Union. . .
CitedSmith v KD Scott, Electoral Registration Officer SCS 24-Jan-2007
The prisoner claimed that his right to vote had not been re-instated despite a year having passed since the European Court of Human Rights had found that the withdrawal of that right for prisoners was an infringement.
Held: It was not possible . .
CitedGreens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
CitedVinter And Others v The United Kingdom ECHR 9-Jul-2013
(Grand Chamber) The three appellants had each been convicted of exceptionally serious murders, and been sentenced to mandatory life sentences, but with provision that they could not be eligible for early release, making them whole life terms. They . .
CitedMangold v Helm ECJ 22-Nov-2005
ECJ Grand Chamber – Directive 1999/70/EC – Clauses 2, 5 and 8 of the Framework Agreement on fixed-term work – Directive 2000/78/EC – Article 6 – Equal treatment as regards employment and occupation – Age . .
CitedKucukdevici v Swedex GmbH ECJ 7-Jul-2007
ECJ Directive 2000/78/EC in principle non’discrimination age – National legislation on dismissal not taking into account the period of service completed before the employee reaches the age of 25 to calculate the . .
CitedBartsch v Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH ECJ 23-Sep-2008
ECJ Equal treatment in employment and occupation Article 13 EC Directive 2000/78/EC Occupational pension scheme excluding the right to a pension of a spouse more than 15 years younger than the deceased former . .
CitedFrancovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
CitedBrasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
CitedRegina v Secretary of State for Transport, ex parte Factortame Ltd and others (No 5) HL 28-Oct-1999
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .
CitedRobins and Others v Secretary of State for Work and Pensions ECJ 25-Jan-2007
ECJ Free movement of persons – Protection of employees in the event of the employer’s insolvency – Directive 80/987/EEC Transposition Article 8 Supplementary company or inter-company pension schemes – Old-age . .
CitedKucukdeveci v Swedex GmbH and Co KG ECJ 19-Jan-2010
ECJ Principle of non-discrimination on grounds of age – Directive 2000/78/EC – National legislation on dismissal not taking into account the period of employment completed before the employee reaches the age of . .
CitedFrodl v Austria ECHR 8-Apr-2010
The applicant alleged that his disenfranchisement because he was serving a term of imprisonment of more than one year constituted a breach of his rights under Article 3 of Protocol No. 1. . .
CitedRegina v H M Treasury, ex parte British Telecommunications ECJ 26-Mar-1996
The Government should not be ordered to pay compensation for failing to implement a European Directive which remained ambiguous. A failure to implement a directive into national law may be actionable but there would normally be only small damages. . .

Cited by:
CitedNicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedWalker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Elections, European

Leading Case

Updated: 02 November 2021; Ref: scu.516496

LD and Others, Regina (on The Application of) v Secretary of State for Justice: Admn 17 Jul 2014

Three claimant female prisoners asserted that strip searches conducted against them under Regulation 41 had been unlawful. The defendant admitted the unlawfulness, but the claimants now sought declarations accordingly, saying that the Guidance issued by the respondent gave insufficient weight to the degradation imposed by searches.
Held: The searches had not complied with the procedures imposed which differentiated two stages of search and set out the requirements for proper explanations being given. A to the Article 3 complaint: ‘strip-searches can result in degrading treatment, which can breach Article 3. No doubt, if carried out in a thoroughly abusive fashion contrary to the instruction or if, for example, in the presence of an officer of another sex then, indeed, it would be a breach of Article 3. But there is nothing in this instruction which, in our judgment, could lead to a real risk that that breach might occur, provided that searches are carried out in conformity with it. ‘
As to article 8: ‘ there is a risk that a strip-search looked at in isolation can breach Article 8. But the purpose of it is a proper one, namely to ensure that contraband does not come into prisons and, again, provided that it is carried out in a manner which is in conformity with the policy there is, in our view, no possible breach of Article 8.’

Rafferty LJ, Collins J
[2014] EWHC 3517 (Admin), [2014] WLR(D) 333
Bailii, WLRD
Prison Rules 1991 41, European Convention on Human Rights 3 8
England and Wales
Citing:
CitedGillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .

Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other, Human Rights

Updated: 02 November 2021; Ref: scu.538310

King, Regina (on The Application of) v Secretary of State for Justice: CA 27 Mar 2012

In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with recent decisions of the European Court of Human Rights, acknowledged that serving prisoners have a right to enjoy association with their fellow inmates; that that right is a ‘civil right’ within the meaning of Article 6; and that decisions of a Governor or SRB to interfere with it by authorising or continuing cellular confinement on segregation are ‘determinations’ of it.
Held: In practice the complaint was that there is an implied right of a prisoner of association with other prisoners which amounts to a ‘civil right’? The appeals were dismissed. The segregations did not infringe the claimants’ article 6 rights.
As to Article 6, Elias J said: ‘the decision-making processes within the prison and the role of the SRB provide a satisfactory framework for professional and evaluative judgments with the safeguard of judicial review. Accordingly, if Article 6 is engaged, I consider that, notwithstanding the absence of the elements of independence and impartiality in the Article 6 sense within the prison, the procedure as a whole is Article 6 compliant on a ‘full jurisdiction’ basis.’

Maurice Kay LJ VP, Lloyd, Elias LJJ
[2012] EWCA Civ 376, [2012] HRLR 17, [2012] WLR(D) 102, [2012] 4 All ER 44, [2012] 1 WLR 3602
Bailii, WLRD
Prison Rules 45, Prisons Act 1952, Euriopean Convention on Human Rights 6
England and Wales
Citing:
Appeal fromKing v Secretary of State for Justice Admn 13-Oct-2010
The claimant sought judicial review of decisions that the claimant had committed a disciplinary offence whilst in custody at a Young Offenders Institute.
Held: The claim failed.
Pitchford LJ considered the ECHR jurisprudence, and said: . .
Appeal fromBourgass and Another, Regina (on The Application of) v Secretary of State for Justice Admn 18-Feb-2011
The prisoner claimants each challenged the way that decisions had been taken which had led to their being held in segregation units. They said the procedures were unfair.
Held: The applications were dismissed. Article 3 was not engaged. . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
CitedEzeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .
CitedGanci v Italie ECHR 30-Oct-2003
The applicant was serving two life sentences for Mafia related activities. He challenged nine decrees issued by the Minister of Justice under which he was held under a special prison regime for a period of four years. His case related to delays by . .
CitedGanci v Italie ECHR 30-Oct-2003
The applicant was serving two life sentences for Mafia related activities. He challenged nine decrees issued by the Minister of Justice under which he was held under a special prison regime for a period of four years. His case related to delays by . .
CitedBoulois v Luxembourg ECHR 14-Dec-2010
The applicant was serving a long sentence for serious offences. He had submitted several requests for ‘prison leave’ in order to carry out tasks in preparation for his eventual release. These had been refused by the Attorney General. The domestic . .
CitedGulmez v Turkey ECHR 20-May-2008
The applicant complained inter alia of successive decisions which had deprived him of visitation rights for about a year as punishment for disciplinary offences whilst in prison.
Held: ‘the restriction on the applicant’s visiting rights . .
CitedEnea v Italy ECHR 17-Sep-2009
(Grand Chamber) The applicant, a prisoner serving a long sentence for Mafia-type criminal offences, was subjected to a special regime by ministerial decrees. The restrictions included not only very limited family visits but also a long period . .
CitedStegarescu and Bahrin v Portugal ECHR 6-Apr-2010
The two applicants complained that they had been held in solitary confinement for seven months after receipt of intelligence about an escape plan.
Held: There had been a violation of the prisoners’ article 6 rights. They had been given no . .
CitedX v The United Kingdom ECHR 14-Dec-1979
(Commission – Plenary) – Inadmissible – article 6 inapplicable. The categorisation of a prisoner is ‘administrative’ rather than a determination of disputes about civil rights. . .
CitedMcFeeley and others v The United Kingdom ECHR 15-May-1980
(Commission) The claimants had been convicted of terrorist-type offences in Northern Ireland and were serving prisoners in HMP The Maze. They protested at a change of regime imposed in 1976, resulting in them not being permitted association with the . .
CitedBirmingham City Council v Ali and Others; Moran v Manchester City Council HL 1-Jul-2009
Homelessness Status Requires LA Action
The House considered appeals challenging whether local authorities who gave unacceptable housing to the homeless had satisfied their obligations to them as homeless people. What was meant by the phrase ‘accommodation which it would be reasonable for . .
CitedIn re S (Minors) (Care Order: Implementation of Care Plan) HL 14-Mar-2002
Section 3(1) of the 1998 Act is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute. The judge’s task is to interpret, not to legislate. The proposed . .
CitedRamirez Sanchez v France ECHR 4-Jul-2006
ramirez_sanchezECHR2006
(Grand Chamber) The applicant, better known as ‘Carlos the Jackal’, complained that he had been held in solitary confinement for 8 years by the respondent whilst in prison contrary to article 3, and that he had not been given any means of challening . .
CitedSecretary of State for The Home Department, Regina (on The Application of) v BC and Another Admn 11-Nov-2009
The applicants were subject to control orders. They were ‘light touch’, not involving a deprivation of liberty. . .
CitedRegina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
CitedHassan v Secretary of State for Justice Admn 27-May-2011
The claimant prisoner complained that his confinement to a segregation unit had been unlawful.
Held: A period of segregation in HMP Full Sutton for some seven weeks ‘did not interfere with the claimant’s Article 8 rights as a prisoner . .
CitedGraham, Re an Application for Judicial Review QBNI 2-Apr-2004
The applicant sought judicial review of his cellular confinement after being found to have assaulted a prison guard.
Held: Weatherup J said: ‘the loss of association or loss of privileges as a consequence of a prison adjudication do not . .
CitedCorden, Re an Application for Judicial Review QBNI 9-Jul-2004
On his return to the Young Offenders Institution, the applicant was found with positive indications of contact with drugs, and he was removed from association. He complained that his human rights had been infringed, contending that the ‘right’ in . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedRB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
CitedBary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
CitedSecretary of State for The Foreign Office and Commonwealth Affairs v Maftah CA 13-Apr-2011
The Secretary of State appealed against an order granting judicial review of his decision to place the claimants on a list of those associated with terrorist organisations. They had been placed on the list without being given opportunity to make . .
CitedYoung v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague CA 5-Jun-1990
A decision to segregate a prisoner under rule 43 is to be made by the governor of the prison where he is held. Taylor LJ said: ‘Apart from the urgency of decisions under r 43, there may well be other public policy grounds for not giving reasons in . .
CitedBryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedNorth Range Shipping Ltd v Seatrans Shipping Corporation CA 14-Mar-2002
The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why.
Held: Human Rights law required a right of appeal. That right could only be exercised properly . .
CitedRuna Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
CitedTsfayo v The United Kingdom ECHR 14-Nov-2006
The applicant challenged the prodecures for deciding her appeal against the council’s refusal to pay backdated housing benefits. She complained that the availability of judicial review of the decision was not adequate.
Held: The system did not . .
CitedSecretary of State for the Home Department v SP CA 21-Dec-2004
The applcant, a girl aged 17 was in a young offender institution. She complained that she had been removed to segregation without first giving her chance to be heard. The respondent argued that there were sufficient post decision safeguards to . .

Cited by:
Appeal fromBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.452366

Chater, Regina (on The Application of) v Secretary of State for Justice and Another: Admn 2 Aug 2010

The claimant sought judicial review of his treatment after recall to prison from licence. He had a history of the sexual abuse of children. A police surveillance report had been rejected by the Parole Board, but they had nevertheless continued his detention.
Held: The Parole Board had a two stage decision, first as to whether the recall had been inappropriate, but also, and in any event, whether its own risk assessment suggested that a release was appropriate. Although it had mis-stated the decision mechanism, that did not entitle the claimant to the quashing of the decision. He had not challenged two earlier decisions that he remained a risk.

Pelling QC J
[2010] EWHC 2257 (Admin)
Bailii
Powers of Criminal Court Sentencing Act 2000 85, Criminal Justice Act 2003 239 254
England and Wales
Citing:
CitedRegina (Gulliver) v Parole Board CA 4-Jul-2007
The claimant had been released on licence, and recalled. He complained that the parole board had, in considering his re-release taken into account circumstances beyond those which had directly caused his recall.
Held: The prisoner’s appeal . .
CitedPennington, Regina (On the Application of) v The Parole Board Admn 18-Sep-2009
The court considered possible human rights infringements caused by delay in the processing of Parole Board hearings. . .
CitedBetteridge, Regina (On the Application of) v the Parole Board Admn 23-Jun-2009
Application was made for damages after a wrongful delay in the prisoner’s release.
Held: Collins J urged practitioners not to pursue actions which are ‘not likely to achieve any sensible redress’. Claims in damages cannot be brought unless it . .
CitedSecretary of State for the Home Department v Sim and The Parole Board CA 19-Dec-2003
The prisoner was subject to an extended sentence, and had been recalled to prison. He now complained that the recall procedure had infringed his human rights. . .
CitedRegina (Sim) v Secretary of State for the Home Department Admn 11-Feb-2003
The defendant had been convicted of a serious offence involving violece or sex, and been made subject to a extended sentence. He had been released on licence but recalled, and now challenged the system under which it had been decided that he should . .
CitedJarvis, Regina (on the Application of) v Parole Board Admn 31-Mar-2004
The prisoner challenged his continued detention after release on licemce and recall. He was subject to an extended sentence. He submitted that the objective of the sentence was that following a period to be served in custody he should be released . .
CitedRegina (Dean Solomon) v The Parole Board Admn 2006
. .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 02 November 2021; Ref: scu.424085

McClean, Re: HL 7 Jul 2005

The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a seriously violent incident, and it was found that he continued to support a specified organisation, the LVF. Information supporting the revocation of his certificate had been withheld under the rules, and he now complained as to the use of a special advocate to hear evidence against him.
Held: The rights of release were properly to be respected, but they were subordinate to the need to protect public safety, and there could be no presumption in favour of the prisoner. The procedure adopted was fair. The Secretary of State had communicated the gist of the allegations against him, and the Commissioner had been quite clear that he had not taken account of the evidence because he had reached his decision without relying upon it.

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2005] UKHL 46, [2005] UKHRR 826
Bailii, House of Lords
Northern Ireland (Sentences) Act 1998, European Convention on Human Rights 5.4 6.1
Northern Ireland
Citing:
CitedRegina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
CitedRegina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Appeal fromMcclean, Re an Application for Judicial Review 14 CANI 23-Apr-2004
The appellant was serving a prison term for murder. He was being considered for release under the Good Friday agreement, but on home leave he was again involved in further serious violence. He was recalled and his entitlement to early release was . .
CitedRegina on the Application of Brooks v The Parole Board CA 10-Feb-2004
The court had to decide the extent to which the Parole Board could rely on hearsay evidence in a case in which a discretionary life prisoner’s licence had been revoked. The evidence was crucial to the issue of risk.
Held: (majority) The . .
CitedRegina (Sim) v Parole Board CA 18-Dec-2003
The prisoner had been sentenced to an extended term of five years imprisonment for indecent assault. He had been released, and then recalled for alleged breaches of his licence. The respondent appealed findings that such a recall was subject to . .
CitedRegina v Parole Board, ex Parte Watson CA 11-Mar-1996
The test as to whether there was still a need to protect the public safety from the defendant was just as appropriate when considering the revocation of a licence, as it was when the need for continued detention was being reviewed before the grant . .
CitedRoberts 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: . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedSecretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
CitedGiles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .

Cited by:
CitedO 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 . .
CitedRoberts, Regina (on the Application of) v The Parole Board Admn 7-Nov-2008
The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of . .
CitedSturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2) SC 3-Jul-2013
From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 02 November 2021; Ref: scu.228284

Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office: HL 24 Jul 1991

The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to authorise the segregation of a prisoner on his arrival at another prison to which he was being transferred, as required by an instruction issued by the Home Office. The prisoner’s continued segregation at his new prison, after the initial period of segregation expired, was then automatically authorised by the regional director of prisons on behalf of the Secretary of State, in accordance with the same instruction.
Held: The House characterised the Prison Rules as regulatory in character, to the extent that they dealt with the management, treatment and control of prisoners.
A prisoner ‘is lawfully committed to a prison and while there is subject to the Prison Act 1953 and the Prison Rules 1954. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime. Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty which they had not already lost when initially confined.’ A person who has been deprived of his liberty in pursuance of a lawful power to detain cannot through the medium of the tort of false imprisonment complain about the conditions in which he is detained, at least by those who are lawfully detaining him, though unauthorised persons, such as other prisoners, might indeed be guilty of false imprisonment if they confined another prisoner within the prison. Whether a statutory duty gives rise to a private cause of action is a question of construction of the statute. When justifying a detention, the issue of detention must be considered and determined before one can turn to the issue of justification.
As to an allegation of novus actus interveniens, Lord Bingham emphasised that the duty was a duty to take reasonable care and not to guarantee that a fatality did not occur: ‘Since an act of self-destruction by the deceased was the very risk against which the defendant was bound in law to take reasonable precautions, I cannot see how that act can be regarded as a novus actus. So to hold would be to deprive the duty of meaningful content. This was, after all, the very thing against which the defendant was duty- bound to take precautions. It can make no difference that the deceased was mentally ‘normal’ (assuming he was), since it is not suggested that the defendant’s duty was owed only to the abnormal. The suicide of the deceased cannot in my view be regarded as breaking the chain of causation.’ and ‘If the defendant owed the deceased a duty of care despite the fact that the deceased was of sound mind, then it again seems to me to empty that duty of meaningful content if any claim based on breach of the duty is inevitably defeated by a defence of volenti.’
Lord Bridge of Harwich said that the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it.

Lord Bridge of Harwich, Lord Ackner, Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Lowry
[1992] 1 AC 58, Times 25-Jul-1991, [1991] 3 All ER 733, [1990] UKHL 8, [1991] 3 WLR 340, [1992] COD 69, (1993) 5 Admin LR 425, [1991] UKHL 13, [1991] BCC 713, 1991 SLT 523, 1991 SC (HL) 22
Bailii, Bailii
Prison Act 1953 12 13, Prison Rules 1964 43
England and Wales
Citing:
Appeal fromRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague CA 5-Jun-1990
A decision to segregate a prisoner under rule 43 is to be made by the governor of the prison where he is held. Taylor LJ said: ‘Apart from the urgency of decisions under r 43, there may well be other public policy grounds for not giving reasons in . .
CitedRegina v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) CA 1979
Proper Limits on Imprisonment
The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An essential characteristic of . .
CitedLeech v Governor of Parkhurst Prison HL 1988
The House was asked whether a disciplinary decision by a governor was amenable to judicial review.
Held: The functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; . .
CitedGroves v Lord Wimborne CA 1898
The court heard a case dealing with a claim for breach of a duty to fence dangerous machinery under the Act.
Held: Legislation protecting safety in the workplace gives rise to an action by a person for whom the protection was intended for . .
CitedArbon v Anderson 1943
The court was asked whether a cause of action arose from a breach of the Prison Rules 1933. Goddard LJ said: ‘With regard to the prison rules, it would be enough to say that there were no breaches, but, in case a higher court should take a different . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office QBD 1990
A prisoner challenged the decision that he should be segregated under rule 43.
Held: Ralph Gibson LJ said: ‘In this case Mr Sedley acknowledged that there could not be an unqualified obligation in all cases upon the governor to allow the right . .
CitedLonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .
CitedLondon Passenger Transport Board v Upson HL 1949
‘A prudent man will guard against the possible negligence of others when experience shows such negligence to be common’.
Lord Wright said: ‘a claim for damages for breach of a statutory duty intended to protect a person in the position of the . .
CitedBecker v Home Office CA 1972
Mrs. Becker had started an action as trustee when she was sent to prison for obtaining credit as a bankrupt. She applied to leave prison in order to conduct her case. The Home Secretary made a direction for her production under Section 29 of the . .
ErroneousMiddleweek v The Chief Constable of Merseyside (Note) CA 1990
The plaintiff had been awarded damages for false imprisonment by the jury on the basis that his otherwise lawful detention at a police station had been made unlawful because it was unreasonable in the circumstances to keep him in a police cell.
CitedYorke v Chapman 1839
The plaintiff was a prisoner committed to the Queen’s Bench Prison for debt. He had been further confined by the marshal in terms of a rule of court in a strong room for disorderly behaviour. He had a statutory right to petition the court on the . .
CitedCobbett v Grey 1849
A prisoner complained that he had been falsely imprisoned in a part of a prison in which he could not lawfully be confined. . .
CitedOsborne v Milman 1886
The plaintiff sought damages, saying that though a prisoner he had been further unlawfully confined within the prison. . .
CitedCutler v Wandsworth Stadium Ltd HL 1949
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently . .
CitedWilliams v Home Office (No 2) 1981
Tudor-Evans J said: ‘In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
CitedRegina v Board of Visitors of Gartree Prison, Ex parte Sears 14-Mar-1985
A prisoner sought damages in respect of cellular confinement and loss of privileges.
Held: Mann J. said: ‘If a person is imprisoned in a place where he is lawfully so imprisoned, then it does not seem to me that a variation in conditions of . .

Cited by:
CitedLondon Borough of Tower Hamlets v Runa Begum CA 6-Mar-2002
The applicant had applied for rehousing as a homeless person. She was offered interim accommodation but refused it. Her case was reviewed, and her reasons rejected. She claimed the procedure was unfair, in that the authority was looking at decisions . .
CitedS v Airedale National Health Service Trust QBD 22-Aug-2002
The patient had been detained, and then secluded within the mental hospital for 11 days. He claimed to have been subjected to inhuman treatment, and false imprisonment.
Held: His claim failed. The policy allowed the authority to confine him to . .
CitedCullen v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) HL 10-Jul-2003
The claimant had been arrested. He had been refused access to a solicitor whilst detaiined, but, in breach of statutory duty, he had not been given reasons as to why access was denied. He sought damages for that failure.
Held: If damages were . .
CitedMunjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
CitedStovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
CitedJD, MAK and RK, RK and Another v East Berkshire Community Health, Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council, Oldham NHS Trust and Dr Blumenthal CA 31-Jul-2003
Damages were sought by parents for psychological harm against health authorities for the wrongful diagnosis of differing forms of child abuse. They appealed dismissal of their awards on the grounds that it was not ‘fair just and reasonable’ to . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
CitedIn Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
CitedSecretary of State for the Home Department v SP CA 21-Dec-2004
The applcant, a girl aged 17 was in a young offender institution. She complained that she had been removed to segregation without first giving her chance to be heard. The respondent argued that there were sufficient post decision safeguards to . .
CitedB, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
No longer authoritativeRegina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
CitedCommissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 11-Feb-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedPrison Officers Association v Iqbal CA 4-Dec-2009
The claimant, a prisoner, alleged false imprisonment. The prison officers had taken unlawful strike action leaving him to be confined within his cell and unable to be involved in his normal activities. In view of the strike, a governor’s order had . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedKambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
CitedKing, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
CitedOlutu v Home Office CA 29-Nov-1996
The claimant said that she had been detained in excess of the period allowed under the 1987 Regulations, and that that detention was unlawful. She now appealed against the striking out of her claim.
Held: Her action failed. The availablility . .
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
CitedShahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
CitedCampbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .
CitedHemmati and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Nov-2019
The Home Secretary appealed from a finding that illegally entered asylum seekers had been unlawfully detained pending removal. The five claimants had travelled through other EU member states before entering the UK. The court considered inter alia . .

Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other

Leading Case

Updated: 02 November 2021; Ref: scu.183200

Edwards v The United Kingdom: ECHR 14 Mar 2002

The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His family asserted that the prison authorities had failed to protect his Article 2 right to life, and Article 13 right to a remedy. A series of shortcomings had been found in the Prison Service’s management, but no remedy had been offered.
Held: The deceased’s article 2 and 13 rights had been infringed. There had been no inquest, and the enquiry, whilst detailed, had been private and without the ability to compel witnesses to attend. The limits placed on the appellants’ involvement meant that that enquiry could not be seen as a proper opportunity for them to represent their interests. The remedies under the 1976 Act would not provide damages for non-financial loses, and legal aid would not be available.
‘The applicants, parents of the deceased, were only able to attend three days of the inquiry when they were themselves giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel, or, for example, through the Inquiry Panel. They had to wait for the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.’

I Cabral Barreto, President and Judges Sir Nicolas Bratza, L. Caflisch, P. Kuris, R. Turmen, H. S. Greve and K. Traja
Times 01-Apr-2002, 46477/99, (2002) 35 EHRR 487, [2002] ECHR 303
Worldlii, Bailii
European Convention on Human Rights, Fatal Accidents Act 1976
Human Rights
Cited by:
AppliedRegina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
CitedKhan, Regina (on the Application of) v Secretary of State for Health CA 10-Oct-2003
The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There . .
CitedAmin, 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 . .
CitedMiddleton, 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.
CitedMiddleton, 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.
CitedD, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
CitedPlymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
CitedTakoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
CitedRegina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
CitedD, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
CitedVan 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 . .
CitedGentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
CitedHertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
CitedJL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
CitedSavage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
CitedRabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
See AlsoEdwards v The United Kingdom ECHR 3-Dec-2009
. .
CitedMousa and Others v Secretary of State for Defence and Another Admn 16-Jul-2010
The claimants sought judicial review of the respondent in respect of alleged mistreatment when detained in Iraq. They sought a judicial inquiry. . .
CitedRabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.168003

Waite v The United Kingdom: ECHR 10 Dec 2002

The claimant had been sentenced to be detained at Her Majesty’s pleasure when a youth. After release on licence, the Parole Board met and revoked that licence without an oral hearing, and in contravention of the rules. He did not dispute the facts which led to his recall. However, he submitted that issues arose concerning his character and mental state which rendered an oral hearing essential to the fairness of the proceedings.
Held: The effect of compliance with article 5.4 by the adoption of ppropriate procedures did not extend beyond the consequences of the first court decision. Where new issues arose affecting the lawfulness of a detention, such as after the expiry of the initial tariff period, the article 5.4 rights were revived. In this case they had been breached. There was no breach of article 5.1 rights because the applicant had given good cause for his recall. References to his relationship with another male whilst under the age of 18 had not affected the decision to recall, and he had not been discriminated against for his sexual orientation.
‘The court is not persuaded by the Government’s argument which appears to be based on the speculative assumption that whatever might have occurred at an oral hearing the Board would not have exercised its power to release. Article 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention – an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success of obtaining his release. In matters of such crucial importance as deprivation of liberty and where questions arise involving, for example, an assessment of the applicant’s character or mental state, the Court’s case-law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant’s personality and level of maturity and reliability are of importance in deciding on his dangerousness, Article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses . . ‘

(2002) 36 EHRR 1001, Times 31-Dec-2002, 53236/99, [2002] ECHR 798, [2002] ECHR 804, [2003] Prison LR 160, (2003) 36 EHRR 54,
Worldlii, Bailii
Human Rights
Citing:
CitedWynne v United Kingdom ECHR 18-Jul-1994
A Discretionary lifer is not entitled to a review by a court of his continued detention. His article five rights were not breached. Where a national court imposed a fixed sentence of imprisonment, the supervision required by article 5.4 was . .
CitedWeeks v The United Kingdom ECHR 5-Oct-1988
The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. . .

Cited by:
CitedRoberts 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: . .
CitedHirst v Secretary of State for the Home Department CA 6-Jul-2006
The prisoner had been released on licence but then recalled. He complained that the procedure infringed his human rights. He had been convicted of manslaughter, and was seen to be a long term danger. The court awarded him compensation saying that . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedOsborn and Another v The Parole Board CA 15-Dec-2010
The three claimants complained that the respondent had made decisions adverse to them as to their release to or recall from parole.
Held: Review was refused. While there was ‘some force in the submission that, contrary to the understanding of . .
CitedOsborn v The Parole Board Admn 19-Mar-2010
The claimants complained that decisions had been made by the respondents without them having been first given a right to an oral hearing. They now sought permission to bring judicial review.
Held: Permission was refused. The facts in the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Criminal Sentencing

Leading Case

Updated: 01 November 2021; Ref: scu.178372

Engel And Others v The Netherlands (1): ECHR 8 Jun 1976

engel_netherlandsECHR1976

The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government. However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the criminal sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so. It is on the basis of these criteria that the court will ascertain whether some or all of the applicants were the subject of a ‘criminal charge’ within the meaning of Article 6(1).’
The Court established three criteria for determining whether proceedings are ‘criminal’ within the meaning of the Convention, namely (a) the domestic classification, (b) the nature of the offence, and (c) the severity of the potential penalty which the defendant risks incurring.
Article 5 is concerned with the deprivation of liberty and not with mere restrictions on freedom of movement. Article 6 applied to a Board of Visitors’ adjudication within a prison.
A distinction based on the rank of soldiers was a distinction based on status within Article 14. ‘A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman.’
The list in sub-paragraphs (a) to (f) of the cases where deprivations of liberty are permitted is exhaustive and is to be narrowly interpreted.

5101/71, 5354/72, 5102/71, 5370/72, [1976] ECHR 3, 5100/71, (1976) 1 EHRR 647
Worldlii, Bailii
European Convention on Human Rights 5(1) 14
Cited by:
CitedRegina v H (On appeal from the Court of Appeal (Criminal Division)) HL 30-Jan-2003
The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the . .
CitedRegina (Mudie and Another) v Dover Magistrates’ Court and Another CA 4-Feb-2003
The applicants wished to challenge the confiscation of their goods by the Commissioners of Customs and Excise on their return to Dover. They appealed the refusal of Legal Aid.
Held: The Convention guaranteed the right to legal assistance for . .
CitedGillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
CitedCampbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
CitedClingham (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 . .
CitedTangney v The Governor of HMP Elmley and Another CA 29-Jul-2005
The claimant was a serving a life sentence. During prison disciplinary proceedings he was refused legal and other assistance, and an outside tribunal on the basis that since any finding would not lead to any loss of remission or extra time, his . .
CitedFrancis v Secretary of State for Work and Pensions CA 10-Nov-2005
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedGentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
CitedRJM, 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 . .
CitedAustin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
CitedSecretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
See AlsoEngel And Others v The Netherlands (Article 50) ECHR 23-Nov-1976
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient. . .
CitedSecretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
CitedGale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
CitedKaplan v United Kingdom ECHR 14-Dec-1978
(Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper . .
CitedMubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Armed Forces

Leading Case

Updated: 01 November 2021; Ref: scu.164879

Babar Ahmad And Aswat v United Kingdom: ECHR 10 Apr 2012

The applicants said that if extradited to the USA to face charges related to terrorism, they would risk facing either imprisonment by Presidential decree, or full life terms.
Held: Detention conditions and length of sentences of five alleged terrorists would not amount to ill-treatment if they were extradited to the USA. There would be no violation of Article 3 (prohibition of inhuman and degrading treatment) as a result of conditions of detention at ADX Florence (a ‘supermax’ prison in the United States).
The court distinguished between a mandatory whole life sentence, and a discretionary sentence of life imprisonment without the possibility of parole. A whole life mandatory sentence was not, of itself, incompatible with the Convention, although the trend in Europe militated against the imposition of such sentences. Such a sentence ‘would be much more likely to be disproportionate than any other type of life sentence, especially if it required the sentencing court to disregard mitigating factors which are generally understood as indicating a significantly lower level of culpability on the part of the defendant such as youth or severe mental health problems’.
As to the discretionary whole life order (ii) the court observed: ‘normally such sentences are imposed for offences of the utmost severity, such as murder or manslaughter. In any legal system, such offences, if they do not attract a life sentence normally attract a substantial sentence of imprisonment, perhaps of several decades. Therefore, any defendant who is convicted of such an offence must expect to serve a significant number of years in prison before he can realistically have any hope of release, irrespective of whether he is given a life sentence or a determinate sentence. It follows, therefore, that, if a discretionary life sentence is imposed by a court after due consideration of all relevant mitigating and aggravating factors, an Article 3 issue cannot arise at the moment when it is imposed. Instead, the court agrees with the Court of Appeal in Bieber and the House of Lords in Wellington that an Article 3 issue will only arise when it can be shown:
(i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation); and
(ii) as the Grand Chamber stated in Kafkaris . . the sentence is reducible de facto and de jure’.
The circumstances in which the solitary confinement of prisoners will violate article 3 are well established in ECHR case law: ‘Solitary confinement is one of the most serious measures which can be imposed within a prison and, as the Committee for the Prevention of Torture has stated, all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. Indeed, as the Committee’s most recent report makes clear, the damaging effect of solitary confinement can be immediate and increases the longer the measure lasts and the more indeterminate it is.
At the same time, however, the court has found that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. In many states parties to the Convention more stringent security measures, which are intended to prevent the risk of escape, attack or disturbance of the prison community, exist for dangerous prisoners.
Thus, whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.
In applying these criteria, the court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for article 3. The court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely’

Lech Garlicki, P
[2012] ECHR 609, 24027/07, (2013) 56 EHRR 1, 11949/08, 36742/08, 66911/09
Bailii, Bailii Summary
European Convention on Human Rights 8
Human Rights
Citing:
See AlsoAhmad and Aswat v United Kingdom ECHR 10-Jun-2007
(Statement of Facts) The applicants resisted extradition from the respondent country to the USA to face allegations of terrorist related crime. . .
See AlsoAhmad And Aswat v United Kingdom ECHR 10-Jul-2007
(Statement of Facts) To resist an extradition application to America to stand trial on various federal charges, the appellants claimed that if they were extradited there was a real prospect that they would be made subject to a determination by the . .
See AlsoAhmad and Aswat v United Kingdom ECHR 6-Jul-2010
It will only be in exceptional circumstances that an applicant’s private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. Recalling that there is no right in the Convention not to be . .
CitedHarkins And Edwards v The United Kingdom ECHR 17-Jan-2012
Each defendant objected to their proposed extradition to the US, saying that if extradited and convicted they would face the possibility of a death sentence or of a life sentence without the possibility of parole, each being incompatible with . .

Cited by:
CitedOakes and Others v Regina CACD 21-Nov-2012
A specially constituted CACD heard sentencing appeals for defendants serving life terms for very grave crimes, and in particular, the judicial assessment of the minimum term to be served by the appellants for the purposes of punishment and . .
CitedShahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
CitedLord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 01 November 2021; Ref: scu.463499

Regina (Daly) v Secretary of State for the Home Department: HL 23 May 2001

A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence of prisoners. Particularly when examining documents subject to legal professional privilege, the rules did not allow sufficient protection. The policy went well beyond what was necessary, and so was a disproportionate interference in the prisoner’s right to respect for his correspondence. There are real differences between the tests of Wednesbury unreasonableness and as to proportionality of interference in human rights. The intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued. The principles of judicial review depend on the context in which they fall to be applied.
Lord Bingham said: ‘Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment.’ and
‘the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations.’
Lord Steyn said that the court should ask: ‘. . whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective’ and ‘in law context is everything’.
Lord Cooke of Thorndon said: ‘It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.’

Lord Steyn, Lord Cooke of Thorndon
Times 25-May-2001, Gazette 21-Jun-2001, [2001] 3 All ER 433, [2001] 1 AC 532, [2001] 2 WLR 1622, [2001] UKHL 26
Bailii, House of Lords
England and Wales
Citing:
CitedDe Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
CitedRegina v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) CA 1979
Proper Limits on Imprisonment
The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An essential characteristic of . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
CitedRegina v Secretary of State for the Home Department, Ex parte Anderson QBD 1984
A prisoner challenged a standing order which restricted visits by his legal adviser as he contemplated proceedings concerning his treatment in prison when he had not at the same time made any complaint to the prison authorities internally.
CitedCampbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
CitedCampbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
CitedRegina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 21-May-1997
The Home Secretary may not later extend the tariff for a lifer after it had been set by an earlier Home Secretary merely to satisfy needs of retribution and deterrence. ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedRegina v Governor of Whitemoor Prison, Ex parte Main QBD 1999
The court considered whether prison staff should be able to read letters between a prisoner and his legal advisers before proceedings were actually commenced.
Held: The policy represented the minimum intrusion into the rights of prisoners . .
CitedSmith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
CitedRegina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .
CitedRegina v Secretary of State for Home Department ex parte Peter Isiko; Susan and Shemy Isiko CA 20-Dec-2000
. .
CitedRedmond-Bate v Director of Public Prosecutions Admn 23-Jul-1999
The police had arrested three peaceful but vociferous preachers when some members of a crowd gathered round them threatened hostility.
Held: Freedom of speech means nothing unless it includes the freedom to be irritating, contentious, . .

Cited by:
CitedRegina on the Application of Anna Ford v The Press Complaints Commission Admn 31-Jul-2001
The complainant had been photographed wearing a bikini, whilst on holiday by a photographer using a long lens. She had been on a quiet part of public beach. She complained to the Press Complaints Commission who rejected her complaint. The rules . .
CitedAbacha, Bagudu v The Secretary of State for the Home Department, The Federal Republic of Nigeria Interested Party Admn 18-Oct-2001
Attempts were being made by the Federal Government of Nigeria to recover moneys alleged to have been taken fraudulently from the state. They sought assistance from the UK, and the claimants sought details of that request. The statute provided that . .
CitedRegina (Ponting) v Governor of HMP Whitemoor, Secretary of State for the Home Department CA 22-Feb-2002
The applicant appealed a refusal of permission to use a computer for preparation of materials for his litigation save under conditions imposed by the Prisons Service. He was dyslexic, and with a low IQ. He claimed that the conditions operated so as . .
CitedThe Association of British Civilian Internees – Far Eastern Region (ABCIFER) v Secretary of State for Defence CA 3-Apr-2003
The association sought a judicial review of a decision not to pay compensation in respect of their or their parents or grandparents’ internment by the Japanese in the Second World War. Payment was not made because those interned were not born in . .
CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
CitedRegina (on the Application of Ellis) v The Chief Constable of Essex Police Admn 12-Jun-2003
An officer proposed to print the face of a convicted burglar on posters to be displayed in the town. The court considered the proposal. The probation service objected that the result would be to make it more difficult for him to avoid criminality on . .
CitedLord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
CitedRowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
CitedNilsen, 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 . .
CitedDurant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .
CitedSamaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
CitedOffice of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
CitedGillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
CitedLough 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 . .
CitedCoates and others v South Buckinghamshire District Council CA 22-Oct-2004
The local authority had required the applicants to remove their mobile homes from land. They complained that the judge had failed properly to explain how he had reached his decision as to the proportionality of the pressing social need, and the . .
Cite164876dBritish American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
CitedAl-Fayed and others v Commissioner of Police of the Metropolis and others CA 25-Nov-2004
The appellants appealed from dismissal of their claims for wrongful imprisonment by the respondent. Each had attended at a police station for interview on allegations of theft. They had been arrested and held pending interview and then released. Mr . .
CitedSecretary of State for the Home Department v SP CA 21-Dec-2004
The applcant, a girl aged 17 was in a young offender institution. She complained that she had been removed to segregation without first giving her chance to be heard. The respondent argued that there were sufficient post decision safeguards to . .
CitedMachado v Secretary of State for the Home Deptment CA 19-May-2005
At issue was a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue was whether the decision of the IAT to uphold . .
CitedBradley v The Jockey Club CA 12-Jul-2005
The Jockey had been disqualified from riding for five years for breaches of the club’s rules. He said the punishment was disproportionate in effectively preventing him working for a living.
Held: The appeal failed, and the judge’s analysis was . .
CitedLangley and others v Liverpool City Council and others CA 11-Oct-2005
Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the . .
CitedRegina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
CitedWiggins, Regina (on the Application Of) v Harrow Crown Court Admn 20-Apr-2005
The defendant appealed against refusal of bail. He had failed to attend court in time of the day of his trial and said he had overlooked the date.
Held: Collins J said: ‘[T]he question of whether bail should be continued or removed in . .
CitedAxon, 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.
CitedBegum (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 . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedBaiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedTweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
CitedX, 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 . .
CitedHuang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
CitedSecretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
CitedSuryananda, Regina (on the Application of) v The Welsh Ministers Admn 16-Jul-2007
The claimants, trustees of a Hindu temple, sought judicial review of a decision that a bullock in their temple should be slaughtered having positively reacted to a test for bovine tuberculosis bacterium. They said that the animal posed no threat . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedTabernacle v Secretary of State for Defence Admn 6-Mar-2008
The court considered the validity of bye-laws used to exclude protesters from land near a military base at Aldermarston.
Held: The byelaw which banned an ‘camp’ was sufficiently certain, but not that part which sought to ban any person who . .
CitedRe E (A Child); E v Chief Constable of the Royal Ulster Constabulary and Another (Northern Ireland Human Rights Commission and others intervening) HL 12-Nov-2008
(Northern Ireland) Children had been taken to school in the face of vehement protests from Loyalists. The parents complained that the police had failed to protect them properly, since the behaviour was so bad as to amount to inhuman or degrading . .
CitedT-Mobile (Uk) Ltd. and Another v Office of Communications CA 12-Dec-2008
The claimant telecoms companies objected to a proposed scheme for future licensing of available spectrum. The scheme anticipated a bias in favour of auctioniung such content. It was not agreed whether any challenge to the decision should be by way . .
CitedMedical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedBrown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
CitedYoussef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Judicial Review

Leading Case

Updated: 01 November 2021; Ref: scu.85961

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 did. A British subject, who was suspected in the exact same way, and there were many such, could not be similarly held. The Government had derogated from their obligations under the Convention to allow such detentions.
Held: The holding of a person without trial must require the strongest justification. Article 5 does not permit internment on security grounds.
Other countries faced with similar threats had not issued derogations from the Convention. Derogating measures must go no further than is strictly required by the exigencies of the situation and the prohibition of discrimination on grounds of nationality or immigration status has not been the subject of derogation. The SIAC set too low a standard for the scrutiny that the national court must carry out in order to test the proposition that the derogation is strictly necessary. The derogation was not proportionate. ‘ There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. ‘
Lord Hoffmann said: ‘The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.’
Lord Hope of Craighead: ‘the indefinite detention of foreign nationals without trial has not been shown to be strictly required, as the same threat from British nationals whom the government is unable or unwilling to prosecute is being met by other measures which do not require them to be detained indefinitely without trial. The distinction which the government seeks to draw between these two groups – British nationals and foreign nationals – raises an issue of discrimination. But, as the distinction is irrational, it goes to the heart of the issue about proportionality also. It proceeds on the misconception that it is a sufficient answer to the question whether the derogation is strictly required that the two groups have different rights in the immigration context. So they do. But the derogation is from the right to liberty. The right to liberty is the same for each group. If derogation is not strictly required in the case of one group, it cannot be strictly required in the case of the other group that presents the same threat.’
Lord Walker of Gestingthorpe (dissenting) said: ‘I maintain, a different opinion. I do so for three main reasons: (1) When this country is faced, as it is, with imminent threats from enemies who make use of secrecy, deception and surprise, the need for anti-terrorist measures to be ‘strictly necessary’ must be interpreted in accordance with the precautionary principle recognised by the Strasbourg Court in Ireland v United Kingdom. (2) I agree with the Court of Appeal, and very respectfully disagree with SIAC and the majority of the House, on the issue of discrimination. (3) SIAC is an independent and impartial tribunal of unquestioned standing and expertise. It carefully considers any appeal by a suspected terrorist, and periodically reviews any of its decisions which have been adverse to a detained suspect. I would in no way dissent from condemning the odiousness of indefinite detention at the will of the Executive, but such a description cannot be applied to detention under Part 4 of the 2001 Act without so much qualification as to amount almost to contradiction.’
Baroness Hale of Richmond said: ‘Democracy values each person equally. In most respects, this means that the will of the majority must prevail. But valuing each person equally also means that the will of the majority cannot prevail if it is inconsistent with the equal rights of minorities. As Thomas Jefferson said in his inaugural address: ‘Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable . . The minority possess their equal rights, which equal law must protect, and to violate would be oppression.’ No one has the right to be an international terrorist. But substitute ‘black’, ‘disabled’, ‘female’, ‘gay’, or any other similar adjective for ‘foreign’ before ‘suspected international terrorist’ and ask whether it would be justifiable to take power to lock up that group but not the ‘white’, ‘able-bodied’, ‘male’ or ‘straight’ suspected international terrorists. The answer is clear.’
Lord Bingham said in relation to the application of Article 15 ECHR and whether there was a public emergency threatening the life of the nation: ‘The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions.’

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
[2004] UKHL 56, Times 17-Dec-2004, [2005] 2 WLR 87, [2005] 2 AC 68, [2005] 3 All ER 169
House of Lords, Bailii
Anti-Terrorism, Crime and Security Act 2001 21, Terrorism Act 2000, Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644), European Convention on Human Rights 5(1)(f)
England and Wales
Citing:
CitedRegina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
CitedTan Te Lam v Superintendent of Tai A Chau Detention Centre PC 27-Mar-1996
(Hong Kong) Migrants from Vietnam of Chinese ethnic origin had landed in Hong Kong by boat, and been refused refugee status. They were detained for several years under section 13D of the Immigration Ordinance ‘pending . . removal from Hong Kong’. . .
Appeal fromA, X and Y, and others v Secretary of State for the Home Department CA 25-Oct-2002
The applicant challenged regulations brought in by the respondent providing for foreigners suspected of terrorism to be detained where a British national suspect would not have been detained. The respondent had issued a derogation from the . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
CitedLawless v Ireland (No 3) ECHR 1-Jul-1961
The Irish Government derogated from article 5 in July 1957 in order to permit detention without charge or trial, and the applicant was detained between July and December 1957. He could have obtained his release by undertaking to observe the law and . .
CitedBrannigan and McBride v The United Kingdom ECHR 26-May-1993
(Plenary) The applicants who had been detained without trial, challenged the derogation for the Convention by the respondent in respect of terrorist associated activity in Northern Ireland and on the mainland.
Held: The derogation in respect . .
CitedGreek Case ECHR 1969
The Government of Greece sought to persuade the Commission that there had been a public emergency threatening the life of the nation such as would justify a derogation from the Convention.
Held: The contention was rejected. The Commission . .
CitedThe Republic of Ireland v The United Kingdom ECHR 18-Jan-1978
The UK lodged a derogation with the Court as regards its human rights obligations in Northern Ireland because of the need to control terroist activity. The Government of Ireland intervened. From August 1971 until December 1975 the UK authorities . .
CitedAksoy v Turkey ECHR 18-Dec-1996
In the context of Kurdish separatist terrorism which had claimed almost 8000 lives, the court accepted a derogation from the Convention because of a state of emergency. However the applicant had been detained, tortured and finally released without . .
CitedSecretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
CitedPadfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
CitedHatton 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 . .
CitedBrogan and Others v The United Kingdom ECHR 29-Nov-1988
ECHR Judgment (Merits) – Violation of Art. 5-3; Violation of Art. 5-5; No violation of Art. 5-1; No violation of Art. 5-4; Not necessary to examine Art. 13; Just satisfaction reserved.
The four applicants . .
CitedGarcia Alva v Germany ECHR 13-Feb-2001
The complainant had been arrested on suspicion of drug trafficking and was detained on remand. When he brought an application for review of his detention his lawyers were not given access to a number of documents in the file, including the . .
CitedFox, Campbell and Hartley v The United Kingdom ECHR 30-Aug-1990
The court considered the required basis for a reasonable suspicion to found an arrest without a warrant: ‘The ‘reasonableness’ of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and . .
CitedRegina v Governor of Brixton Prison and Another Ex Parte Evans HL 22-Jul-1994
A defendant in extradition proceedings may not bring his own evidence. He can make representations only. ‘There are thus six steps in the extradition of a suspect from the United Kingdom. First, the foreign court must consider that a charge of . .
CitedDe Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
CitedRe Wasfi Suleman Mahmod Admn 1995
The applicant was an Iraqi who had been granted asylum in Germany. On entering England as a visitor he was found in possession of opium and sentenced to four years’ imprisonment with a recommendation for deportation. He was served with a deportation . .
CitedKurt v Turkey ECHR 25-May-1998
The court referred to ‘the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities’ and to the need to interpret . .
CitedHandyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
CitedMurray v The United Kingdom ECHR 28-Oct-1994
The Army’s powers of arrest in Northern Ireland, did not breach the European Convention on Human Rights. . .
CitedFrette v France ECHR 2002
There are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment, including sexual orientation: ‘. . the Contracting States enjoy a margin of appreciation in assessing . .
CitedIn re S-C (Mental Patient: Habeas Corpus) CA 22-Nov-1995
The Court of Appeal issued habeas corpus because the applicant was committed to a mental institution pursuant to an application which was made by somebody who lacked the statutory authority to make it. The right of personal freedom is fundamental. . .
CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
CitedSecretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
CitedRelating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
CitedS, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
ApprovedCarson 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 . .
CitedRegina (Annette Carson) v Secretary of State for Work and Pensions Admn 22-May-2002
The claimant received a UK state pension. She lived in South Africa, and challenged the exclusion of foreign resident pensioners from the annual uprating of pension benefits. She asserted that the state pension, or its uprating, were pecuniary . .
CitedAgee v United Kingdom ECHR 1976
(Commission) The Convention does not create any civil right to nationality or to a right of residence. The Secretary of State had made a deportation order against the applicant, who was a United States citizen, on grounds which included that he had . .
CitedMichalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
CitedMaaouia v France ECHR 5-Oct-2000
A deportation order, made against a Tunisian, was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to . .
CitedStubbings and Others v The United Kingdom ECHR 22-Oct-1996
There was no human rights breach where the victims of sex abuse had been refused a right to sue for damages out of time. The question is whether and to what extent differences in otherwise similar situations justify a different treatment in law: . .
CitedMoustaquim v Belgium ECHR 18-Feb-1991
The applicant was a Moroccan national who arrived in Belgium in 1965 when he was aged under 2. In 1984, nineteen years later, after a career of juvenile crime, he was deported, but the deportation order was suspended in 1989 and he returned to . .
CitedRegina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
CitedLeander 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 . .
CitedChassagnou and Others v France ECHR 29-Apr-1999
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 . .
CitedMarshall v United Kingdom ECHR 10-Jul-2001
In 1998 the authorities in Northern Ireland continued to be confronted with the threat of terrorist violence, even although, by that time, its actual incidence had gone down. There had therefore been no return to normality and there was no basis for . .
CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
CitedGaygusuz v Austria ECHR 16-Sep-1996
The applicant was a Turkish national resident in Austria. While working there he had paid unemployment insurance contributions. At a stage when he was unemployed he applied for an advance on his pension in the form of emergency assistance. That was . .

Cited by:
CitedAlabaster v Barclays Bank Plc and Another CA 3-May-2005
The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a . .
CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
CitedForbes v Secretary of State for the Home Department QBD 26-Jul-2005
The defendant argued that the 2003 Act was in breach of his article 8 rights. He had been registered as a sex offender, but the offence for which he had been convicted involved no proof of intention.
Held: The claimant having brought the . .
See AlsoA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
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 . .
CitedGillan, 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 . .
CitedSK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
CitedCorner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
CitedMurungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
CitedSK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
CitedRostami, Regina (on the Application of) v Secretary of State for the Home Department QBD 7-Aug-2009
The claimant had been detained for nearly three years while his application for asylum was determined. He sought judicial review, saying that the detention was unlawful. Whilst in detention he had self harmed and said: ‘I will stay in detention for . .
CitedBank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
CitedHXA v The Home Office QBD 21-May-2010
The claimant challenged as unlawful his administrative detention for 10 months pending deportation. . .
CitedKambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
CitedBritish Broadcasting Corporation (BBC) and Another, Regina (on The Application of) v Ahmad Admn 11-Jan-2012
The BBC wished to interview the prisoner who had been detained pending extradition to the US since 2004, and now challenged decision to refuse the interview.
Held: The claim succeeded. The decision was quashed and must be retaken. If ever any . .
CitedNunn v Suffolk Constabulary and Another Admn 4-May-2012
The claimant had been convicted of murder and his appeal had failed. He now sought disclosure of the forensic material held by the police to his own legal team.
Held: Permission to apply for review was granted, but the claim failed. ‘It is . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
CitedLord 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 . .
CitedSteinfeld 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 . .
CitedMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
CitedReprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .
CitedB (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.220326

Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson: CA 27 Apr 1994

The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, but the Coroner directed the jury not to return a verdict which included any reference to lack of care.
Held: A finding of neglect is rarely consistent with a suicide, or one where the deceased contributed to his own death. It would be wrong to allow the jury to attribute blame.
Sir Thomas Bingham MR said: ‘Despite the rulings given by the appellate courts, problems continue to arise both for coroners seeking to conduct inquests and direct juries in accordance with the law as they understand it and for those interested in the death of a deceased person seeking to explore the full circumstances of the death and draw lessons which may prevent repetition. Coroners do their utmost to confine the proceedings before them within the bounds of what they consider to be proper. Interested parties not infrequently strain to pursue their quarry well beyond the boundaries set by the coroner.’ and ‘General Conclusions. An inquest is a fact finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbid any expression of opinion on any other matter.
Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, ‘how’ is to be understood as meaning ‘by what means.’ It is noteworthy that the task is not to ascertain how the deceased died, which might reach general and far-reaching issues, but ‘how the deceased came by his death,’ a more limited question directed to the means by which the deceased came by his death. It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.’
‘It is not the function of a coroner or his jury to determine or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame . . the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not. Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression ‘lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by ‘neglect’. Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show he obviously needs it may amount to neglect . . Neglect can rarely, if ever, be an appropriate verdict on its own . . Neglect may contribute to a death from natural causes. Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.’

Sir Thomas Bingham MR
Times 28-Apr-1994, Independent 27-Apr-1994, [1995] QB 1, [1994] 3 All ER 972, [1994] 3 WLR 82, (1994) 158 JP 1011;, (1994) 19 BMLR 35
Coroners Act 1988 11(5)(b)(ii), Coroners Rules 1984 36(1) 40
England and Wales
Citing:
Appeal fromRegina v North Humberside and Scunthorpe Coroner ex parte Jamieson QBD 12-Jul-1993
northhumberside_jamiesonCA1993
A prisoner had hanged himself after being left unsupervised in a single cell. He was a known suicide risk, but the Coroner directed the jury not to return a verdict which included any reference to lack of care.
Held: A coroner was free not to . .
CitedRegina v Coroner for Surrey, ex parte Wright 18-Jun-1966
The deceased died when unconscious under general anaesthetic in the course of dental surgery, as a result of an obstruction to his airway.
Held: There was no basis in such circumstances for contending that the verdict of accident should have . .

Cited by:
CitedRegina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
CitedKhan, Regina (on the Application of) v HM Coroner for West Hertfordshire and Another Admn 7-Mar-2002
The deceased died in police custody. The coroner refused to leave to the jury possible verdicts of unlawful killing, or death contributed to by neglect, or breach of his right to life. He adjourned the hearing to allow this challenge.
Held: . .
CitedRegina on the Application of Mullholland v HM Coroner for St Pancras QBD 7-Nov-2003
The applicant sought to re-open a coroner’s inquest. The deceased had been drunk, slipped banged his head and fallen to the ground. Police and ambulance were called. The ambulance worker was not told he had been unconscious, and he was taken to the . .
CitedIn the Matter of Captain Christopher John Kelly Admn 14-Jun-1996
The deceased was killed by ‘friendly fire’ during a night exercise in Kenya. A verdict of accidental death was returned, and a fresh inquest was sought particularly in the light of a statement from a fellow officer.
Held: The emergence of . .
CitedSacker, Regina (on the Application of) v Coroner for the County of West Yorkshire HL 11-Mar-2004
The deceased committed suicide in prison. Her family sought to have added to the verdict the words ‘contributed by neglect’ and complained that the inquest had not provided a full and proper investigation of the death.
Held: The Act needed to . .
CitedIn Re Neal (Coroner: Jury) QBD 17-Nov-1995
The father of the deceased sought to have the coroner quash the inquest. His daughter had died in Spain from carbon monoxide poisoning, apparently emanated from a faulty water heater in the apartment in which she had stayed. Her body had been . .
CitedIn re Catherine Lucy Clegg (an Application to Quash Inquisition on Inquest) Admn 2-Dec-1996
The father of the deceased sought an order quashing the inquest on her death. He had recorded a verdict of suicide. She had died from acute salicylate poisoning, an aspirin overdose. The hospital was said not to have recognised her condition and not . .
CitedBloom v HM Assistant Deputy Coroner for the Northern District of London and Another Admn 20-Dec-2004
The deceased had gone to hospital and was diagnosed as having a kidney stone. As it was removed there was evidence of infection. She declined and was transferred to the local NHS hospital in intensive care. She died and a post-mortem identified . .
CitedLM, Re (Reporting Restrictions; Coroner’s Inquest) FD 1-Aug-2007
A child had died. In earlier civil proceedings, the court had laid responsibility with the mother. Restrictions had been placed on the information which would effectively prevent the coroner conducting his inquest. The coroner sought a lifting of . .
CitedO’Connor, Regina (On the Application of) v HM Coroner for District of Avon and Another Admn 7-May-2009
Two children died when their father jumped with them from a hotel balcony. The father had been acquitted in Crete of manslaughter after evidence of his psychiatric condition. The applicant now challenged the English coroner’s verdict of unlawful . .
CitedP, Regina (on The Application of) v HM Coroner for The District of Avon CA 18-Dec-2009
The deceased was found hanging in her prison cell. The jury returned a verdict of accidental death, not being satisfied that she was not merely making a cry for help. The family appealed a finding that the inquest had satisfied the requirement for a . .
CitedJones v HM Coroner for The Southern District of Greater London and Another Admn 28-Apr-2010
The mother of the deceased asked for a new inquest, saying that there had been insufficient enquiry. He was an adult suffering Asperger’s syndrome and other difficulties, but had sought and been given excess prescriptions of fentanyl a drug to . .
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
CitedWilkinson, Regina (on The Application of) v HM Coroner for The Greater Manchester South District Admn 11-Oct-2012
The court was asked whether evidence of the commission of the criminal offence of causing death by careless driving contrary to section 2B of the 1988 Act is capable of justifying a verdict of ‘unlawful killing’ at an inquest.
Held: The . .
CitedKent County Council, Regina (on The Application of) v HM Coroner for The County of Kent (North-West District) and Others Admn 15-Oct-2012
The council sought review of the coroner’s decision that the inquest would be an article 2 inquest and with a jury. The deceased was 14 years old and had taken methadone. In the months before his death, he had had involvement with the council’s . .
CitedSreedharan, Regina (on The Application of) v HM Coroner for The County of Greater Manchester Admn 28-May-2012
The claimant doctor renewed his application for judicial review of the jury verdict of unlawful killing at the inquest into a patient. The patientwas alcoholic. The doctor prescribed a sedative drug for him, but it was known to be potentially lethal . .
CitedTyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .

Lists of cited by and citing cases may be incomplete.

Coroners, Health Professions, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.87444

Walker v Secretary of State for Justice: Admn 16 Dec 2009

The claimant challenged his prisoner classification and risk assessment which led to him being held at a high security prison. He was over 60 years old, and in poor health.
Held: The request for review failed. The court was satisfied that at all stages, full account has been taken of the possible impact of the Claimant’s disabilities on his allocation and risk assessment. The precise weight which is given to the Claimant’s disabilities is a matter for the decision maker, and expert evidence had been taken and applied. The placement was neither unreasonable nor disproportionate.

Lloyd Jones J
[2009] EWHC 3292 (Admin)
Bailii
Prison Act 1952 12 47(1), Prison Rules 1999 3 4(1)
England and Wales

Prisons

Updated: 01 November 2021; Ref: scu.384154