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 rendition of detainees in the aftermath of events in the USA on 11 September 2001.
Held: The request for review failed. The claimants’ standing to bring proceedings has not been the subject of dispute, but it does not follow that they may step into the shoes of third party victims:’ In these judicial review proceedings, the claimants contend that the decision not to hold a public inquiry breaches the defendant’s duty to hold an effective investigation under article 3 of the Convention. We are willing to assume for present purposes that a breach of the State’s article 3 investigative duty may in principle give rise to individual rights that may be classified as ‘civil rights’ (for example, in claims brought by an individual for damages for breach of the duty). However, in any public inquiry, the claimants would not seek a determination of their own article 3 rights but would raise the rights of others who (on the claimants’ case) may have been the subject of mistreatment. The claimants in our judgment cannot possibly be regarded as victims of article 3 violations. It follows that any duty to investigate article 3 breaches by way of a public inquiry is not a duty owed to the claimants as victims. In these circumstances, it is difficult to envisage how the present judicial review proceedings – which concern the investigative duty – have anything to do with the claimants’ civil rights.’
‘claims made in public law proceedings cannot simply be elided with ‘civil rights’ under article 6(1). Administrative and executive decisions may involve the ‘hard core of public-authority prerogatives’ which do not engage article 6 ‘
Dame Victoria Sharp P, Farbey J
[2020] EWHC 1695 (Admin)
Bailii, Judiciary
European Convention on Human Rights 6(1)
England and Wales
Citing:
Cited – Secretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – El-Masri v The Former Yugoslav Republic of Macedonia ECHR 13-Dec-2012
(Grand Chamber) The applicant, a German national of Lebanese origin, alleged that he had been subjected to a secret rendition operation, namely that agents of the respondent State had arrested him, held him incommunicado, questioned and ill-treated . .
Cited – Ringeisen v Austria ECHR 16-Jul-1971
The Austrian District and Regional Real Property Transactions Commission refused to approve the sale of a number of plots of land. The applicant challenged the refusal alleging bias and contending that his article 6 rights were violated for that . .
Cited – Maaouia 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 . .
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 – 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 – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
Cited – Kiani v The Secretary of State for The Home Department CA 21-Jul-2015
Lord Dyson MR (with whom Richards LJ and Lewison LJ agreed) held that the requirements of article 6 ‘depend on context and all the circumstances of the case’. The court will strike an appropriate balance between the requirements of national security . .
Cited – Fayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
Cited – Aksoy 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 . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Mohamed and Another v Secretary of State for The Home Department CA 2-May-2014
The claimants were suspected of terrorism and subject to control orders and terrorism prevention and investigation measures. They brought proceedings for abuse of process relating to the manner in which they had been removed to the United Kingdom . .
Cited – Kamoka v The Security Service QBD 1205
The court hearing an application for disclosure, should consider both the nature of the issue at stake and what is needed for the fair disposal of the litigation in hand. . .
Cited – ZZ v Secretary of State for The Home Department CA 24-Jan-2014
The claimant had appealed against his exclusion, confirmed by the Special Immigration Appeal Commission. The case had been remitted to the European Court of Justice, which had now made its decision.
Held: The essence of the grounds for . .
Cited – Bank Mellat v Her Majesty’s Treasury CA 23-Oct-2015
Bank entitled to information needed for defence
Application to set aside the directions contained in two statutory instruments. The measures were ‘highly restrictive . . with very serious effects’. The court considered the procedures for the use of closed material and whether the claimant bank . .
Cited – AZ (Syria) v Secretary of State for The Home Department CA 27-Jan-2017
AZ, a refugee, had been refused general travel document for reasons of national security. The Court as now asked whether he was entitled to be told of the concerns in advance of defendant’s decision.
Burnett LJ referred to a ‘sliding scale for . .
Cited – K, A and B v Secretary of State for Defence Secretary of State for Foreign and Commonwealth Affairs Admn 26-Apr-2017
The Claimants have brought public law claims against the Defendants in relation to protection, relocation and compensation, claiming to have acted as covert human intelligence sources, CHIS, for the United Kingdom in Afghanistan. . .
Cited – QX v Secretary of State for The Home Department Admn 15-May-2020
Challenge to Temporary Exclusion Order.
Held: The concept of ‘civil rights and obligations’ cannot be interpreted solely by reference to national law but has an autonomous meaning within article 6(1) . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Administrative, Human Rights, Judicial Review
Updated: 09 November 2021; Ref: scu.652173