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 from – King 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 from – Bourgass 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. . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – Ezeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .
Cited – Ganci 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 . .
Cited – Ganci 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 . .
Cited – Boulois 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 – Gulmez 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 . .
Cited – Enea 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 . .
Cited – Stegarescu 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 . .
Cited – X 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. . .
Cited – McFeeley 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 . .
Cited – Birmingham 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 . .
Cited – In 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 . .
Cited – Ramirez 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 . .
Cited – Secretary 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. . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – Hassan 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 . .
Cited – Graham, 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 . .
Cited – Corden, 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 . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – RB (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 . .
Cited – Bary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
Cited – Secretary 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 . .
Cited – Young 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 . .
Cited – Regina 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 . .
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – North 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 . .
Cited – Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Tsfayo 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 . .
Cited – Secretary 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 from – Bourgass 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

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:
Cited – Regina (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 . .
Cited – Pennington, 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. . .
Cited – Betteridge, 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 . .
Cited – Secretary of State for the Home Department v Sim and The Parole Board CA 19-Dec-2003
The prisoner was subject to an extended sentence, and had been recalled to prison. He now complained that the recall procedure had infringed his human rights. . .
Cited – Regina (Sim) v Secretary of State for the Home Department Admn 11-Feb-2003
The defendant had been convicted of a serious offence involving violece or sex, and been made subject to a extended sentence. He had been released on licence but recalled, and now challenged the system under which it had been decided that he should . .
Cited – Jarvis, 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 . .
Cited – Regina (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

Discrimination on grounds of prisoner status was recognised as falling within ‘other’ status in Article 14: ‘[T]he Court would observe that being a convicted prisoner may be regarded as placing the individual in a distinct legal situation, which even though it may be imposed involuntarily and generally for a temporary period, is inextricably bound up with the individual’s personal circumstances and existence, as may be said, variously, of those born out of wedlock or married. Prisoners’ complaints do not therefore fall outside the scope of Article 14 on this ground. The legal status of a prisoner, is however, very relevant to the assessment of compliance with the other requirements of Article 14.’

Josep Casadevall, P
23800/06, [2008] ECHR 108, (2008) 46 EHRR SE16
Bailii
European Convention on Human Rights 14
Human Rights
Cited by:
Cited – Stewart v Secretary of State for Work and Pensions CA 29-Jul-2011
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained . .
Cited – Stott, 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.

Human Rights, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.264333

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 circumstances. Neuberger L formulated a broader principle that where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4) because, for the duration of the sentence period, ‘the lawfulness of his detention’ has been ‘decided . . by a court’, namely the court which originally sentenced him to the term of imprisonment.
Lady Hale (dissenting) said: ‘In my view, the present law draws a principled distinction between those determinate prisoners who have reached the point in their sentence at which they are entitled to be released on licence and those who have not. If the former are recalled from their licence, and their representations to the Secretary of State fall on deaf ears, they are entitled to have their case referred to the Parole Board. The latter, whose release on licence was discretionary, are not.’ and ‘ our domestic law, which gives the Parole Board the power to decide upon the continued detention of a prisoner recalled after mandatory release on licence, but not after release on home detention curfew, draws a principled distinction. It is a distinction which is certainly consistent with the principles contained in article 5(1) and (4) of the European Convention. It is for that reason that, although agreeing with the ratio of the decision in this case, I would prefer it not to be taken further than the situation with which this case is concerned. ‘

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Carnwath, Lord Hughes
[2014] 4 All ER 251, [2014] UKSC 39, [2014] 3 WLR 436, [2015] 1 AC 176, UKSC 2012/0279
Bailii Summary, Bailii, SC, SC Summary
European Convention on Human Rights 5(4), Criminal Justice Act 2003 246
England and Wales
Citing:
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Appeal from – Whiston, Regina (on The Application of) v Secretary of State for Justice CA 25-Oct-2012
The claimant was a prisoner released on a home detention licence, but his licence had been revoked. He now said that the way it had been revoked, without the respondent’s decision being subject to confirmation by the Parole Board, nor to other . .
Cited – In 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 . .
Cited – X v United Kingdom ECHR 5-Nov-1981
(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the . .
Cited – Van Droogenbroeck v Belgium ECHR 24-Jun-1982
The applicant was sentenced to two years’ imprisonment for theft. He had a previous convictions and was thought to have a persistent tendency to crime, and was placed at the government’s disposal for 10 years on that ground. This was subject to . .
Cited – Weeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
Cited – Ganusauskas 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 . .
Cited – Giles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
Cited – Brown 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 . .
Cited – Black, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
Cited – Osborn 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 . .

Cited by:
Cited – Youngsam, 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. . .
Cited – Stott, 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

Leading Case

Updated: 01 November 2021; Ref: scu.533882

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 release, but that had been overriden by the respondent. had not yet reached the point in his sentence when he was entitled to be released on licence. He was arguing that article 5(4) applied once he became eligible for discretionary release, so that it was a violation of his rights for the Secretary of State to reject the Parole Board’s recommendation that he be released. So his too was not a case of recall after mandatory release.
Held: There had been considerable difficulty arising from the failure to distinguish between discretionary life sentences imposed as punishment and those imposed for public protection. Nevertheless, the system was compliant. There was in fact no need in human rights terms to have involved the Parole Board. (Lord Phillips dissenting).
Lord Rodger re-formulated the question for the court as: ‘whether article 5(4) gives a long term prisoner, with a determinate sentence of more than 15 years, the right to take legal proceedings, at the half way stage of his sentence, to determine the lawfulness of his continuing detention.’, concluding that Article 5(4) did not confer that right: ‘According to the constant jurisprudence of the European Court conveniently summarised by Lord Hope of Craighead in R (Giles) v Parole Board [2004] 1 AC 1 , 30, para 40, the answer to that question is No. In 1995 and 1996, judges determined that it would be appropriate, and therefore lawful by virtue of section 2 of the 1991 Act, for Mr Black to be sentenced to be detained for a total of 24 years. In these circumstances, failing any fresh development which might make his detention unlawful, Mr Black’s article 5(4) Convention right to have the lawfulness of his detention after conviction decided by a court was satisfied by the original sentencing procedures.
Is the mere fact that he has reached the half-way stage in his sentences a fresh development which might make his detention unlawful? Plainly not: his detention would not be unlawful after the half-way point and before the two-thirds point, unless the Secretary of State had ordered his release under section 35 and he remained in custody. In fact, however, the Secretary of State has decided that he should not be released. So he remains detained in terms of the original lawful sentences and has no right to be set free. Other things being equal, he will not have a right to be set free until he has served two-thirds of his sentence and section 33(2) applies to him. At that point, if he were not released on licence, he would indeed have an article 5(4) Convention right to bring proceedings to have the lawfulness of his detention determined. In English law he would bring habeas corpus proceedings to secure his release.’
Lord Brown analysed the Strasbourg and domestic cases, and concluded that there was no infringement of Article 5. He differentiated determinate and indeterminate sentences : ‘The essential contrast struck by the European court is between on the one hand ‘the administrative implementation of the sentence of the court’, for example decisions regarding ‘early or conditional release from a determinate term of imprisonment’ (para 87 of the court’s judgment in Stafford 35 EHRR 1121), and on the other hand ‘fixing the tariff’ and later determining the length of post-tariff detention in life sentence cases. The administrative implementation of determinate sentences does not engage article 5(4); the decision when to release a prisoner subject to an indeterminate sentence does.’
As to a prisoners recall from licence, Lord Brown said: ‘Inescapably it follows from West that contrary to the view expressed in the Strasbourg court’s admissibility decision in Brown, a prisoner’s recall for breach of his licence conditions does raise, ‘new issues affecting the lawfulness of the detention’ such as to engage article 5(4) . And that seems to me clearly correct: it would not be lawful to recall a prisoner unless he had breached his licence conditions and there could well be an issue as to this. I wonder, indeed, if the European court would have decided Brown as they did had it followed, rather than preceded, the House’s decision in West. Be that as it may, recall cases certainly so far as domestic law goes, are to be treated as akin both to lifer cases in the post-tariff period and to the Van Droogenbroeck-type of case where, upon the expiry of the sentence, a prisoner is subjected to an executive power of preventive detention. And all these cases, submits Mr Owen, weaken the Secretary of State’s contention that there exists a core principle of Convention law that article 5(4) cannot be engaged during the term of a determinate sentence . . ‘

Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2009] UKHL 1, [2009] UKHRR 382, [2009] 2 WLR 282, [2009] 1 AC 949, [2009] 4 All ER 1, 26 BHRC 664, [2009] Prison LR 395, [2009] HRLR 15
Bailii, Times, HL
European Convention on Human Rights, Criminal Justice Act 1991 35(1)
England and Wales
Citing:
Cited – In 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 . .
Appeal from – Black, Regina (on the Application of) v Secretary of State for Justice CA 15-Apr-2008
The prisoner complained of the power given to the defendant to block the early release of prisoners sentenced between certain dates for serious offences, saying that such a decision was for the courts only.
Held: The provision was incompatible . .
Cited – Van Droogenbroeck v Belgium ECHR 24-Jun-1982
The applicant was sentenced to two years’ imprisonment for theft. He had a previous convictions and was thought to have a persistent tendency to crime, and was placed at the government’s disposal for 10 years on that ground. This was subject to . .
Cited – Weeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
Cited – Stafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Cited – Thynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
Cited – Ganusauskas 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 . .
Cited – Mansell v United Kingdom ECHR 2-Jul-1997
The judge imposed a longer than commensurate sentence in an indecent assault case to protect the public. The applicant complained that he should have been entitled to a review of the lawfulness of his detention as he was in the same position as a . .
Cited – Wynne v United Kingdom ECHR 18-Jul-1994
A Discretionary lifer is not entitled to a review by a court of his continued detention. His article five rights were not breached. Where a national court imposed a fixed sentence of imprisonment, the supervision required by article 5.4 was . .
Cited – Hussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .
Cited – Practice Statement (Crime: Sentencing) LCJ 1992
1. Sections 32 to 40 of the Criminal Justice Act 1991 come into force on 1 October 1992. They make radical changes with regard to sentences.
2. Remission is abolished.
3. Parole will affect only those sentenced to four years’ . .
Cited – Brown 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 . .
Cited – Giles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – Gebura v Poland ECHR 6-Mar-2007
The applicant had, by court proceedings, established that he had under Polish law a right to release on licence after serving three-quarters of a determinate sentence. He complained that he had been unlawfully detained for 48 hours before being . .
Cited – 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 . .

Cited by:
Cited – Whiston, Regina (on The Application of) v Secretary of State for Justice CA 25-Oct-2012
The claimant was a prisoner released on a home detention licence, but his licence had been revoked. He now said that the way it had been revoked, without the respondent’s decision being subject to confirmation by the Parole Board, nor to other . .
Cited – Robinson, 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. . .
Cited – Whiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
Cited – Youngsam, 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. . .
Cited – Stott, 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.

Human Rights, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.280075

The claimant sought damages. He had been released from prison and recalled, but the review of his continued detention was not undertaken as it should have been. The defendant said that the acknowledgement and apology were sufficient just satisfaction. The claimant wanted damages.
Held: The delay did not go as to his release, but ony as to a move to open conditions, and it could not be said that any eventual release would have been delayed. As to the feelings of frustration and distress, it was established that to found such a claim the frustration felt must be particularly acute. ‘I am not satisfied on the balance of probabilities that the breach of Article 5(4) will have extended the period that the Claimant has to spend in custody. I am not satisfied that the Claimant has suffered the sort of frustration or anxiety that merits an award of damages and accordingly the claim for damages fails.’

Saunders J
[2010] EWHC 137 (Admin)
Bailii
England and Wales
Citing:
Cited – Nikolova v Bulgaria ECHR 25-Mar-1999
(Grand Chamber) The claimant had been detained for long periods after coming under suspicion of theft of large sums. Her detention had initially been ordered by prosecutors. Her initial appeals against her detention were also decided by prosecutors. . .
Cited – Betteridge, 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 . .
Cited – Regina (on the application of Downing) v The Parole Board Admn 2008
The claimant sought damages after a delay in his parole board hearing was said to have delayed his release.
Held: The court identified four factors affecting the level of damages which might be awarded: The length of the delay, the effect of . .
Cited – KB and Others, Regina (on the Applications of) v Mental Health Review Tribunal Admn 23-Apr-2002
Damages were claimed by three mental health patients whose rights under Article 5(4) had been infringed because of inordinate delay in processing their claims to mental health review tribunals.
Held: Article 5.5 did not make an award of . .
Cited – Oldham v The United Kingdom ECHR 26-Sep-2000
Where a parole board took two years to consider the applicant’s parole, this was unreasonable, and a breach of the Article 5.4 requirement to deal with such matters speedily. Accordingly the continued detention of the applicant became unlawful. The . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 01 November 2021; Ref: scu.396591

(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 of the suspension of rights of detained terrorist suspects was justified by and within the margin of appreciation allowed for, the government’s assessment of the need to defend society: ‘in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.’
Hudoc Derogation of Art. 5-3 satisfies the requirements of Art. 15; No violation of Art. 5-5; No violation of Art. 13
ECHR Judgment (Merits) – Derogation of Art. 5-3 satisfies the requirements of Art. 15; No violation of Art. 5-5; No violation of Art. 13.

R Ryssdal P
Times 28-May-1993, Independent 28-May-1993, 5/1992/350/423-424, 14553/89, [1993] ECHR 21, 14554/89, (1993) 17 EHRR 539, (2006) 43 EHRR SE10, (1994) 17 EHRR 539
Worldlii, Bailii
Prevention of Terrorism (Temporary Provisions) Act 1984, European Convention on Human Rights
Human Rights
Cited by:
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Human Rights, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.165252

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.
Held: the respondent sought to rely upon what was no more than a slip of drafting. The intention of the 1947 Act was that equivalent remedies should be available in both England and Scotland. The appeal succeeded.

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance
2006 SC (HL) 41, [2005] UKHL 74, Times 19-Dec-2005
Bailii
European Convention on Human Rights 3, Crown Proceedings Act 1947 21, Scotland Act 1998 126(4)
Scotland
Citing:
Cited – Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
See Also – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Cited – McDonald v Secretary of State for Scotland IHCS 2-Feb-1994
The pursuer, a prisoner, complained that he had been subject to repeated searches which he claimed were illegal. He sought damages and an injunction.
Held: The action which the pursuer had raised was an ordinary action in the sheriff court was . .
Cited – Scott Davidson v The Scottish Ministers (No 2) IHCS 11-Sep-2002
. .
Cited – British Medical Association v Greater Glasgow Health Board HL 1989
The House considered the availability of orders against the Crown in Scotland. It is inconceivable that Parliament should have intended to fetter the right of the subject to obtain a prohibitory order more strictly in Scotland than in England. The . .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .
Cited – Adams v Naylor HL 1946
The House disapproved of the practice of appointing a nominee defendant in tort actions against whom damages could be awarded as opposed to a party with crown immunity. The House refused to entertain a claim against a nominated army officer arising . .
Cited – Royster v Cavey CA 1946
The plaintiff sought damages after being injured on her way to work. The Crown nominated the superintendent of a factory in which the plaintiff was injured as its occupier in order to allow the claim which would otherwise have failed for Crown . .
Cited – West v Secretary of State for Scotland SCS 1992
The court asked what was to be considered to be truly an application to the supervisory jurisdiction of the court.
Held: Lord President (Hope): ‘The public or private nature of the inferior body or tribunal is not decisive, nor is it necessary . .
Cited – Davy v Spelthorne Borough Council HL 13-Oct-1983
Although section 243(1)(a) provides that the ‘validity’ of an enforcement notice is not to be questioned except as therein provided, the word ‘validity’ is evidently not intended to be understood in its strict sense. It is used to mean merely . .
Cited – Connor v Strathclyde Regional Council 1986
. .
Cited – Tehrani v Argyll and Clyde Health Board 1989
. .
Cited – Safeway Food Stores Ltd v Scottish Provident Institution 1989
. .
Cited – Lord Saltoun v Advocate General for Scotland 1860
. .
Cited – Law Hospital NHS Trust v Lord Advocate and Another IHCS 20-May-1996
The patient suffered from irreversible damage to the cerebral cortex and fell into a persistent vegetative state in 1992. Permanently insensate, she remained alive only because feeding and hydration were provided to her artificially and because of . .
Cited – Income Tax Special Commissioners v Pemsel HL 20-Jul-1891
Charitable Purposes used with technical meaning
The House was asked whether, in a taxing statute applying to the whole of the United Kingdom and allowing for deductions from and allowances against the income of land vested in trustees for charitable purposes, the words ‘charitable purposes’ . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .
Cited – William Ian Frederick Beggs v The Scottish Ministers for Judicial Review of A Decision From Hm Prison, Edinburgh To Hm Prison, Peterhead OHCS 24-Mar-2005
. .
Cited – Clark 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 . .
Cited – Forbes v Underwood 1886
The supervisory jurisdiction of the Court of Session was used to compel an arbiter to proceed with an arbitration agreed under a private contract. . .
Cited – AB v Lord Advocate 1916
The complainers in a note of suspension and interdict, owned lands round a loch and the loch itself. The military took possession of the lands and loch in September 1915 in order to carry out works. They sought interdict against the commanding . .
Cited – 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 . .
Cited – St Johnstone Football Club v Scottish Football Association Ltd 1965
The Supervisory jurisdiction of the Court of Session was available to check whether the proceedings leading to a disciplinary decision of the Scottish Football Association, a private association, had been conducted in accordance with natural . .

Cited by:
Cited – Beggs v Scottish Ministers HL 7-Feb-2007
The claimant, a serving prisoner, had sought to sue the prison authorities for the conditions in which he was kept. He complained that his correspondence with his lawyers had been unlwafully opened by the prison. Repeatedly, undertakings were given . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.237555

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: ‘In the series of prison cases [Ganci, Gulmez, Enea and Stegarescu] the European Court recognized as personal, and therefore ‘civil’, those residual rights prisoners claimed to enjoy by virtue of the ‘normal’ prison regime subject to legitimate executive action to remove them . . When a person receives a custodial sentence he forfeits the freedom (and the right) to associate with whomever he wishes but he does not, in my view, thereby forfeit his right of association with all his fellow human beings. He does not, in other words, receive a sentence of solitary or cellular confinement. The YOI Rules and the system of privileges described by PSO4000 implicitly recognise the basic right of the prisoner to associate with his fellows during certain activities which the YOI Rules require the Secretary of State to provide. I accept the Secretary of State’s submission that the extent of the ‘basic’ association to which the inmate will be entitled, subject to the performance of his statutory duty, in the discretion of the governor of the institution; but, in my view, the existence of that discretion does not remove from association its quality as a personal right. It is a right which is subject to the lawful exercise of discretion by the governor. There can, it seems to me, be no doubt that a prisoner has the right of access to a court if he asserts that the governor has arbitrarily removed him from any association with those of his fellow inmates with whom he would normally enjoy joint activities. That right of access to the courts exists because association is one of those residual rights which the prisoner retains subject to the lawful exercise of disciplinary or other powers. This, I think, is the distinction between the case of a prisoner and the case of the discretionary recipient of a welfare or other benefit . . I accept that within the autonomous meaning afforded to ‘civil rights’ by the European court a right of association, in the sense I have described it, is a civil right.’

Pitchford LJ, Maddison J
[2010] EWHC 2522 (Admin), [2011] ACD 13, [2011] 1 WLR 2667, [2010] UKHRR 1245
Bailii
The Young Offender Institution Rules 2000
England and Wales
Citing:
Cited – Ganci 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 . .
Cited – Gulmez 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 . .
Cited – Enea 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 . .
Cited – Stegarescu 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 . .

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

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 01 November 2021; Ref: scu.425204

The applicant complained of his excessive detention on remand pending trial, suspected of fraud.

[1964] ECHR 8, 1936/63
Bailii
European Convention on Human Rights
Cited by:
See Also – Neumeister v Austria ECHR 27-Jun-1968
Hudoc Violation of Art. 5-3; Just satisfaction reserved . .
See Also – Neumeister 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 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 31 October 2021; Ref: scu.510157

The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to resist claims for damages, and now complained of bias.
Held: Though the particular judge was clearly above criticism, a ‘fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’ It would be difficult to lay down a clear line, but in this case, a litigant might he would be affected by a desire in the judge not to breach a promise he had made to the Scottish Parliament. In many cases, a judge having declared his previous actions would be welcomed by the parties, but if not, he should be ready to recuse himself if necessary.
Lord Bingham of Cornhill said: ‘The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen, or between the citizen and the state, should be independent and impartial. This means that such tribunals should be in a position to decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case. Thus a judge will be disqualified from hearing a case (whether sitting alone, or as a member of a multiple tribunal) if he or she has a personal interest which is not negligible in the outcome, or is a friend or relation of a party or a witness, or is disabled by personal experience from bringing an objective judgment to bear on the case in question. Where a feature of this kind is present, the case is usually categorised as one of actual bias. But the expression is not a happy one, since bias suggests malignity or overt partiality, which is rarely present. What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge’s judgment.’
Lord Bingham of Cornhill, Lord Woolf, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Cullen of Whitekirk
2004 GWD 27-572, [2004] UKHL 34, Times 16-Jul-2004, 2005 1 SC (HL) 7, 2004 SLT 895, [2004] UKHRR 1079, [2004] HRLR 34, [2005] ACD 19, 2004 SCLR 991
House of Lords, Bailii
Scotland
Citing:
Appeal from – Scott Davidson v The Scottish Ministers (No 2) IHCS 11-Sep-2002
. .
Cited – Locabail (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 . .
Cited – McDonald v Secretary of State for Scotland IHCS 2-Feb-1994
The pursuer, a prisoner, complained that he had been subject to repeated searches which he claimed were illegal. He sought damages and an injunction.
Held: The action which the pursuer had raised was an ordinary action in the sheriff court was . .
Cited – Procola v Luxembourg ECHR 28-Sep-1995
A dairy association complained of milk quota orders made with retrospective effect under domestic provisions. A regulation had been submitted in draft to the Conseil d’Etat, which had advised that a statute was necessary to give retrospective effect . .
Cited – McGonnell v The United Kingdom ECHR 8-Feb-2000
The applicant owned land in the parish of St Martin’s in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a . .
Cited – Pabla 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 . .
Cited – Kartinyeri v Commonwealth of Australia 1998
(Australia) Objection was taken to the participation of a judge in a High Court decision on the constitutionality of a Commonwealth statute, on the basis that the judge, as counsel, had given an opinion on the point. The judge concluded that he . .
Cited – Panton and Panton v The Minister of Finance and the Attorney General PC 12-Jul-2001
(Jamaica) The appellants were shareholders in failed financial institutions. Arrangements were made which compensated creditors and depositors, through the contribution of funds by the government, but shareholders were not compensated. The Attorney . .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .
Cited – McDonald v Secretary of State for Scotland ScSf 1994
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for . .
Cited – Re S (Children: Care Plan); In re W and B (Children: Care plan) In re W (Child: Care plan) HL 14-Mar-2002
The Court of Appeal had imposed conditions upon the care plan to be implemented by the local authorities, identifying certain ‘starred’ essential milestones. The local authorities appealed.
Held: This was not a legitimate extension of the . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .

Cited by:
Appealed to – Scott Davidson v The Scottish Ministers (No 2) IHCS 11-Sep-2002
. .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
See Also – Davidson 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.
Cited – Kaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.198760

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 his re-release. He complained that the refusal to allow representation infringed his right to a fair trial.
Held: The decision as to whether he should again be released on licence was not a determination of criminal charges so as to engage his human rights, and create a right to be represented. The decision related to public safety, and did not involve any punitive element. Unlike in Ezeh, no further change was being considered. The Board ‘plainly have the power under section 32 of the Act to adopt whatever procedures they think necessary’.
Simon Brown, Sedley, Hale LJJ
Times 21-Nov-2002, Gazette 23-Jan-2003, [2002] EWCA Civ 1641, [2003] 1 WLR 705
Bailii
Criminal Justice Act 1991 39(5), European Convention on Human Rights Art 5
England and Wales
Citing:
Distinguished – Ezeh and Connors v The United Kingdom ECHR 15-Jul-2002
The applicants were serving prisoners. They had been the subject of disciplinary proceedings in which they had been denied the right to representation. They claimed an infringement of their right to a fair trial.
Held: Both proceedings had . .
Appeal from – West, Regina (on the Application Of) v Parole Board Admn 26-Apr-2002
. .
Appealed to – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .

Cited by:
Cited – Roberts 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 . .
Appeal from – 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: . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.178113

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 held that Mr Clift’s classification, as a long-term prisoner serving a determinate sentence of 15 years or more, did not amount to an ‘other status’, and accordingly there was no infringement of article 14.
Held: The ECtHR took the contrary view, holding that Mr Clift did come within article 14 and that there was no objective justification for the different release provisions applied to prisoners in his category.
7205/07, [2009] ECHR 718
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also (HL) – 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 . .

Cited by:
Cited – 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 . .
See Also – Clift 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 . .
Cited – Stott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
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.
Updated: 19 October 2021; Ref: scu.341989

Challenge to Rule 7(1A) of the Prison Rules 1999 (‘Rule 7(1A)’), which provides that the Secretary of State for Justice must not transfer any prisoner to open conditions if they are subject to a deportation order and have exhausted their rights of appeal.
Lord Justice Haddon-Cave
[2021] EWCA Civ 898, [2021] WLR(D) 350, [2021] 4 WLR 94
Bailii, Judiciary, WLRD
Human Rights Act 1998, Prison Rules 1999
England and Wales

Updated: 06 October 2021; Ref: scu.663397

The court was concerned with the monitoring of the correspondence of prisoners, including legal correspondence. The Italian law permitted such monitoring if a judge, in his discretion, ordered it in a reasoned decision.
Held: ‘The Court reiterates that while a law which confers a discretion must indicate the scope of that discretion, it is impossible to attain absolute certainty in the framing of the law, and the likely outcome of any search for certainty would be excessive rigidity. In this instance, however, Law No 354 leaves the authorities too much latitude. In particular, it goes no further than identifying the category of persons whose correspondence may be censored and the competent court, without saying anything about the length of the measure or the reasons that may warrant it. The gaps in . . . the Law weigh in favour of rejecting the Government’s argument. In sum, the Italian Law does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities, so that Mr. Domenichini did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society. There has therefore been a breach of Article 8.’
15943/90, [1996] ECHR 55
Worldlii, Bailii
Human Rights
Cited by:
Cited – Kent Pharmaceuticals Ltd, (Regina on the Application of ) v Serious Fraud Office and Another Admn 17-Dec-2003
The claimant sought judicial review of the decision of the respondent to disclose documents obtained by it from them during an investigation.
Held: The decisions to disclose material to the DoH were ‘in accordance with law’ within the meaning . .
Cited – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.165455

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; Costs and expenses award – Convention proceedings
The first applicant had been convicted and sentenced for murder and subsequent acts of violence within prison. Whilst in prison he discovered an aptitude for writing and sculpture. Whilst on a special regime he was given certain privileges, but was then transferred to a standard regime pending his release on licence, losing those privileges. He complained that a letter had been stopped on the ground that it might be published. The second applicant also complained aboiut the reading of private correspondence by the prisons.
Held: The stopping of the letter did infringe the first applicant’s human rights. A claim could be considered by the court even though it had been dismissed by the Commission. The remedies available to him for these breaches were adequate, and the facts of the case disclosed no violation of Article 13 .
Times 13-May-1988, 9659/82, 9658/82, [1988] ECHR 3
Worldlii, Bailii
European Convention on Human Rights 3
Human Rights
Citing:
Cited – Airey v Ireland ECHR 9-Oct-1979
Family law proceedings such as judicial separation do give rise to civil rights. In complex cases article 6 might require some provision for legal assistance, the precise form being a matter for the member state. The Court reiterated the importance . .

Cited by:
Cited – McGlinchey and Others v The United Kingdom ECHR 29-Apr-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 ; Violation of Art. 13 ; Non-pecuniary damage – financial award
A prisoner was admitted but with a heroin addiction. Through various mistakes . .
Cited – Stockholms Forsakrings- Och Skadestandsjuridik Ab v Sweden ECHR 16-Sep-2003
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion) ; Violation of P1-1 ; No violation of Art. 6-1 ; Violation of Art. 13 ; Pecuniary damage – financial award ; Costs and . .
Cited – Keegan v United Kingdom ECHR 18-Jul-2006
The claimant had been the subject of a raid by armed police on his home. The raid was a mistake. He complained that the English legal system, in rejecting his claim had not allowed him to assert that the police action had been disproportionate.
Updated: 30 August 2021; Ref: scu.165005

Detention in prison facilities where the applicant was confined to a shared cell for substantial parts of the day without integral toilet facilities was an infringement of the claimant’s human rights under article 3.
Lord Macfadyen
Times 15-Nov-2001, [2001] ScotCS 162
Bailii
Scotland

Updated: 17 August 2021; Ref: scu.164236

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 with regard to body search; No violation of Art. 3 with regard to other complaints; Violation of Art. 8; No violation of Art. 34; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings
Strip-searches may be necessary on occasions to ensure prison security or to prevent disorder or crime. Here the applicant had been made to strip naked and have his sexual organs touched in front of a woman.
44558/98, [2001] ECHR 483
Worldlii, Bailii
European Convention on Human Rights 3 8 34
Human Rights
Cited by:
Cited – Lorse and Others v The Netherlands ECHR 4-Feb-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 with regard to the first applicant ; No violation of Art. 3 with regard to the other applicants ; No violation of Art. 8 ; No violation of Art. 13 . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.164826

Rights of transgender prisoners
Holroyde LJ, Swift J
[2021] EWHC 1685 (Admin), [2021] WLR(D) 367
Bailii, WLRD
England and Wales

Updated: 06 August 2021; Ref: scu.663438

Being a foreign subject serving a sentence of over two years, the claimant was liable to depoirtation on her release. She now complained at the defendant;’s failure to consider her suitability for a home detention curfew to which she would otherwise be entitled.
Toulson LJ, Lloyd Jones J
[2011] EWHC 1271 (Admin)
Bailii
England and Wales

Updated: 27 July 2021; Ref: scu.440077