Blackman, Regina v: CACD 22 May 2014

The appellant had been convicted of murder. As an Army sergeant serving in Afghanistan, he had killed a captured insurgent.

Lord Thomas of Cwmgiedd, CJ
[2015] 1 All ER 148, [2015] 1 WLR 1900, [2014] EWCA Crim 1029, [2014] 2 Cr App R 18
Bailii
England and Wales
Cited by:
See AlsoBlackman, Regina v CACD 15-Mar-2017
The defendant appealed against his conviction for murder. As an army officer serving in Afghanistan he had killed an injured captured insurgent.
Held: The defendant had at the time of the offence suffered a recognised psychiatric condition, . .
See AlsoBlackman, Regina v (Media) CACD 28-Mar-2017
The defendant officer appealed against his conviction for murder. Whilst serving a s an officer in Afghanistan, he had killed a captured soldier. That conviction had been quashed and a conviction for manslaughter on diminished responsibility . .
See AlsoBlackman, Regina v (Sentence) CACD 28-Mar-2017
Sentence – manslaughter of prisoner
The defendant whilst serving in Afghanistan had killed a prisoner. His appeal against his conviction for murder had been successful, and a conviction for manslaughter had been substituted on the basis that he was at the time suffering a recognised . .

Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces, Human Rights

Updated: 03 December 2021; Ref: scu.525766

Oruk v Turkey (Summary): ECHR 4 Feb 2014

Article 2
Positive obligations
Article 2-1
Life
Death of six children as a result of failure to secure and supervise firing range containing unexploded ordnance: violation
Facts – In October 1993 a mortar rocket exploded in a village near a military firing range containing unexploded ordnance, killing six children, including the applicant’s son. A rough sketch of the place where the explosion took place was made by the gendarmerie, many statements were taken and an expert’s report commissioned. In December 1993 the public prosecutor declined jurisdiction and transmitted the case file to the military prosecutor’s office. In December 1995 the military prosecutor discontinued the proceedings. The applicant lodged an appeal against that decision in June 2003, but in January 2004 the military tribunal dismissed her appeal.
Law – Article 2 (substantive limb): The present case concerned the exercise of military activity under the responsibility of the State, the dangerousness of which was not in doubt and was fully known to the domestic authorities. The firing range was not surrounded by a fence or barbed wire, it had no warning signs and a panel had been set up only after the incident that claimed the lives of six children. In view of the danger of unexploded military ordnance, it was primarily the responsibility of the military authorities to ensure the safety and supervision of the area to prevent access to it and minimise the risk of the ordnance being moved. To this end, signs warning of the dangerous nature of the area should have been put in place to clearly delineate the perimeter of the ground at risk. In the absence of such signs, it was for the State to ensure that the firing range was cleaned up in order to eliminate all unexploded ordnance. The fact that the villagers were informed through the village muhtar (chief) about the firing exercises and the presence of unexploded ordnance could not be regarded as sufficient to exempt the national authorities from their responsibility towards the people living near such training areas. Such information was not, in any event, likely to reduce significantly the risks in question, because the military authorities themselves were not able to locate the ordnance. Having regard to the seriousness of the danger, the domestic authorities should have ensured that all civilians living near the military firing range were warned of the risks that they incurred from unexploded ordnance. The authorities should have particularly made sure that children, who were more vulnerable than adults, were fully aware of the dangers of such devices that they were likely to play with, believing them to be harmless. The shortcomings in the present case in terms of safety had been such that they exceeded mere negligence on the part of army personnel in the locating and destruction of unexploded ordnance.

In addition, and in view of the seriousness of the shortcomings observed, the violation of right to life of the applicant’s son could not be remedied merely by an award of damages. The applicant could not therefore be criticised for failing to use the compensatory remedies relied on by the Government in their plea of non-exhaustion of domestic remedies. The Government’s preliminary objection to that effect was thus rejected.
In conclusion, the national authorities had an obligation, which they had failed to fulfil, to take the appropriate measures as a matter of urgency in order to protect the lives of the people living near the firing range, independently of any action by the applicant herself, and to provide an explanation as to the cause of death of her son and any liability in that connection through a procedure initiated spontaneously.
Conclusion: violation (five votes to two).
Article 41: EUR 50,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

33647/04 – Legal Summary, [2014] ECHR 472
Bailii
European Convention on Human Rights
Human Rights
Cited by:
SummaryOruk v Turkey (Judgment) ECHR 4-Feb-2014
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 03 December 2021; Ref: scu.525409

Mustafa Tunc And Fecire Tunc v Turkey (LS): ECHR 25 Jun 2013

Article 2-1
Effective investigation
Effectiveness of investigation into death impaired on account of lack of independence of court upholding a decision to discontinue the proceedings: violation
Facts – In February 2004, while he was doing his military service, a sergeant was fatally injured by gunfire. A judicial investigation was opened as a matter of course. In June 2004 the prosecutor discontinued the proceedings, finding that no third party could be held responsible for the sergeant’s death. In October 2004 a military tribunal of the air-force upheld an appeal by the applicants – the sergeant’s parents – and ordered the prosecutor to carry out a further investigation. In December 2004 the prosecutor closed the inquiries and sent the file back to the military tribunal, together with a report on the further investigation requested, presenting the measures taken and addressing the shortcomings identified by the tribunal. The military tribunal dismissed a further appeal by the applicants.
The applicants complained that the authorities had failed to carry out an effective investigation into their son’s death. They argued in particular that the legislation in force at the relevant time did not confer all the requisite guarantees of independence on the judicial authorities and, more specifically, on the military tribunal which had examined the case at last instance.
Law – Article 2
(a) Whether the investigation was prompt, appropriate and comprehensive – The inquiries in question had been carried out with the requisite diligence and the investigation had not been vitiated by any excessive delay. The authorities had taken appropriate measures to collect and preserve the evidence relating to the incident at issue. As regards the examination of witnesses, a number of statements had been taken immediately after the death. There was nothing to suggest that the authorities had failed to examine material witnesses or that the interviews had been conducted inappropriately.
(b) Whether the investigation was independent – The investigation had been carried out by the military prosecutor, assisted by detectives from the national gendarmerie. The decision to discontinue the proceedings after the inquiries had been subjected to the scrutiny of the air-force’s military tribunal, ruling on an appeal by the applicants. The Court referred to its previous finding in the Gurkan v. Turkey* judgment that, as composed at the material time, the military tribunal which had convicted the applicant in that case could not be regarded as independent and impartial within the meaning of Article 6 of the Convention, and that there had been a violation of that Article. In so ruling, the Court had pointed to the fact that one of the three judges sitting on the bench of the military tribunal was an officer appointed by his hierarchy and subject to military discipline, and that he did not enjoy the same constitutional safeguards as the two other judges, who were professionals from the judiciary. Those considerations were also valid in the present case, in so far as the tribunal acting as the supervisory body in the investigation at issue had the same composition. In that connection, it was to be noted that the doubts about impartiality in the present case concerned the judicial body responsible for the supervision at last instance of the investigation, and not simply the prosecutor’s office. It followed that the procedure could not meet the requirement of independence that was inherent in the national authorities’ obligation to carry out an effective investigation into the sergeant’s death.
(c) The participation in the investigation of the deceased’s family – The applicants had enjoyed access to the information emanating from the investigation to a sufficient degree to enable them to participate effectively in the proceedings.
In conclusion, notwithstanding its findings concerning the prompt, appropriate and comprehensive nature of the investigative measures and the effective participation of the applicants, the Court was of the view that there had been a violation of Article 2 under its procedural head, as the military tribunal did not have the requisite independence in its capacity as supervisory body, at last instance, in respect of the judicial investigation.
Conclusion: violation (four votes to three). Article 41: EUR 10,000 jointly in respect of non-pecuniary damage.

24014/05 – Legal Summary, [2013] ECHR 793
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal SummaryMustafa Tunc And Fecire Tunc v Turkey ECHR 25-Jun-2013
. .

Lists of cited by and citing cases may be incomplete.

Armed Forces

Updated: 19 November 2021; Ref: scu.515126

Mustafa Tunc And Fecire Tunc v Turkey: ECHR 25 Jun 2013

24014/05 – Chamber Judgment (French Text), [2013] ECHR 587
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal SummaryMustafa Tunc And Fecire Tunc v Turkey (LS) ECHR 25-Jun-2013
Article 2-1
Effective investigation
Effectiveness of investigation into death impaired on account of lack of independence of court upholding a decision to discontinue the proceedings: violation
Facts – In February 2004, while he . .

Lists of cited by and citing cases may be incomplete.

Armed Forces

Updated: 15 November 2021; Ref: scu.512092

Ali Hussein v Secretary of State for Defence: Admn 1 Feb 2013

The claimant sought to challenge the legality of techniques of interrogation intended to be used by forces members detaining person captured in Afghanistan. He had himself been mistreated by such officers in Iraq. The defendant denied he had standing to challenge a policy which would not affect him. He said it was in issue of such importance that it must be litigated.
Held: The claim failed: ‘whether or not treatment in interrogation can be regarded as unlawful will depend on whether it contravenes a prohibition on treatment which would be regarded as inhumane. A useful guide can be obtained from Article 3 of the ECHR since it is clear that any physical ill-treatment of a detainee is likely to contravene it and other forms of coercion may, if sufficiently serious. I have no doubt that if used in accordance with and applying the controls required by the policy the use of Challenge Direct cannot be regarded as a breach of the obligation of humane treatment. ‘

Hallett LJ DBE, Collins J
[2013] EWHC 95 (Admin)
Bailii
England and Wales
Citing:
CitedTrendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
CitedEquality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .
CitedRegina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
CitedRegina v Fulling CACD 1987
It was alleged that evidence had been obtained by police oppression. She had at first refused to answer questions, but an officer talked to her during a break between interviews, telling her that her lover had been having an affair. The . .
CitedThe Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Torts – Other

Leading Case

Updated: 10 November 2021; Ref: scu.470696

Matthews v Ministry of Defence: HL 13 Feb 2003

The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided procedural bars to their enforcement. The issue of what is a substantive and what a procedural bar is a difficult distinction. At common law, the crown could do no wrong, and therefore no action lay against the crown. That was substantive law, and the 1947 did not stand as a bar to an action which would otherwise lie. The contention that a right existed from the happening of the injury until the Secretary of State issued his certificate did not succeed. The Act did not operate first to create then withdraw a right of action.

Bingham of Cornhill, Hoffman, Hope of Craighead, Millett, Walker of Gestingthorpe LL
Times 14-Feb-2003, [2003] UKHL 4, [2003] 2 WLR 435, Gazette 03-Apr-2003, [2003] 1 AC 1163, 14 BHRC 585, [2003] PIQR P24, [2003] UKHRR 453, [2003] ACD 42, [2003] ICR 247, [2003] 1 All ER 689, [2004] HRLR 2
House of Lords, Bailii
European Convention on Human Rights 6, Crown Proceedings Act 1947 10
England and Wales
Citing:
Appeal fromMatthews v Ministry of Defence CA 29-May-2002
The Ministry appealed against a finding that the Act, which deprived the right of a Crown employee to sue for personal injuries, was an infringement of his human rights.
Held: The restriction imposed by the section was not a procedural . .
CitedBell v Secretary of State for Defence CA 1986
The deceased was injured serving in the forces in Germany. His injury was worstened after negligent communications between army doctors. The defendant relied upon State Immunity to defend a claim, saying he had issued a certificate that he had died . .
CitedMulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
CitedQuinn v Ministry of Defence CA 28-Nov-1997
. .
CitedDerry v Ministry of Defence CA 18-Mar-1999
Where an army doctor was accused of failing to diagnose a serviceman’s ocular cancer, the negligence which caused the consequent injury was caused by the delay in a correct diagnosis, and the treatment fell within the scope of Crown Immunity. . .
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 . .
CitedAshingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
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: . .
CitedPowell and Rayner v The United Kingdom ECHR 21-Feb-1990
The applicants complained of the noise generated by Heathrow Airport saying that it affected their human rights to enjoy their private life and possessions.
Held: Whether the case was analysed in terms of a positive duty on the state to take . .
CitedFayed 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 . .
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, . .
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 . .
CitedWaite and Kennedy v Germany ECHR 18-Feb-1999
The grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by . .
CitedZ And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
CitedMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
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 . .

Cited by:
Appealed toMatthews v Ministry of Defence CA 29-May-2002
The Ministry appealed against a finding that the Act, which deprived the right of a Crown employee to sue for personal injuries, was an infringement of his human rights.
Held: The restriction imposed by the section was not a procedural . .
CitedBarnfather v London Borough of Islington Education Authority, Secretary of State for Education and Skills QBD 7-Mar-2003
The appellant was convicted of the crime of being a parent whose child had failed to attend school regularly. She challenged saying that the offence required no guilty act on her part, but was one of strict liability, and contrary to her human . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedSecretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
CitedKehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
CitedO’Connor and Another v Wiltshire County Council CA 9-May-2007
The claimants sought compensation for the diminution in the values of their properties because of noise pollution from a new highway. The defendant highway authority said that liability had been transferred to its contractors, and it had not been . .
CitedReader and others v Molesworths Bright Clegg Solicitors CA 2-Mar-2007
The claimants were children of the victim of a road traffic accident. The solicitors were conducting a claim on his behalf for damages, but when he died, they negligently discontinued the action.
Held: The claimants’ action as dependants of . .
CitedRegina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Personal Injury, Armed Forces

Leading Case

Updated: 09 November 2021; Ref: scu.179117

Regina v Secretary of State for Defence ex parte Perkins: Admn 16 Jul 1998

The ECJ ruling that discrimination against same sex couples did not constitute sex discrimination under the Equal Pay Directive was also effective to decide that the Armed Forces rules against employment of homosexuals was not discrimination.

Times 16-Jul-1998, Gazette 03-Sep-1998, [1998] EWHC Admin 746
Bailii
Council Directive 75/117/EEC (Equal Treatment) Council Directive 76/297/EEC Equal Treatment
England and Wales

Discrimination, Armed Forces

Updated: 09 November 2021; Ref: scu.87700

Blackman, Regina v (Sentence): CACD 28 Mar 2017

Sentence – manslaughter of prisoner

The defendant whilst serving in Afghanistan had killed a prisoner. His appeal against his conviction for murder had been successful, and a conviction for manslaughter had been substituted on the basis that he was at the time suffering a recognised medical condition. The court now considered sentencing.
Held: A sentence of seven years was imposed, which would, allowing for time served, lead to his imminent release.

[2017] EWCA Crim 325
Bailii
England and Wales
Citing:
See AlsoBlackman, Regina v (Media) CACD 28-Mar-2017
The defendant officer appealed against his conviction for murder. Whilst serving a s an officer in Afghanistan, he had killed a captured soldier. That conviction had been quashed and a conviction for manslaughter on diminished responsibility . .
See AlsoBlackman, Regina v CACD 15-Mar-2017
The defendant appealed against his conviction for murder. As an army officer serving in Afghanistan he had killed an injured captured insurgent.
Held: The defendant had at the time of the offence suffered a recognised psychiatric condition, . .
See AlsoBlackman, Regina v CACD 22-May-2014
The appellant had been convicted of murder. As an Army sergeant serving in Afghanistan, he had killed a captured insurgent. . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Armed Forces

Updated: 09 November 2021; Ref: scu.581276

Limbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others: Admn 30 Sep 2008

The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were substantially similar to those applied to other commonwealth citizens retring from the armed forces. However the examples set out as the basis for the exercise of the decision were so restrictive as to be irrational and did not reflect the policy as expressed. The instructions given to the entry clearance officers were unlawful and needed urgent revisiting.

Blake J
[2008] EWHC 2261 (Admin), Times 07-Oct-2008
Bailii
England and Wales
Citing:
See AlsoGurung, Pun and Thapa v Ministry of Defence QBD 27-Nov-2002
The applicants were British Nepalese soldiers who had been imprisoned by the Japanese in the second world war. They challenged the decision of the respondent in November 2000 to exclude them from a compensation scheme, but to allow other British . .
See AlsoRegina (Purja) v Ministry of Defence; Regina (Lama) v Same Admn 21-Feb-2003
The applicants served as Gurkha soldiers with the army. They claimed that the pensions they received, being substantially less than those paid to other servicemen were discriminatory.
Held: The positions of a retired serviceman in England and . .
See AlsoGurung and Shrestha, Regina (on the Application of) v Secretary of State for Defence Admn 2-Jul-2008
Second challenge to the lawfulness of the Terms and Conditions of Service and the pension arrangements of the Gurkha soldier retired from the British Army. . .
See AlsoPurja and others v Ministry of Defence CA 9-Oct-2003
The applicants were Gurkha soldiers who complained at the differences in treatment of them as against other members of the forces as regards payment, pensions and otherwise, alleged infringement oftheir Article 14 rights, which prevented . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Immigration

Updated: 02 November 2021; Ref: scu.276535

Commodore Royal Bahamas Defence Force and Others v Laramore: PC 8 May 2017

Soldier’s right not to attend religious service

(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to freedom of conscience when he was obliged, on pain of disciplinary action, to remain present and doff his cap during Christian prayers at ceremonial parades and at morning and evening colours. This was a sufficiently active participation to hinder the claimant in the enjoyment of his conscientious beliefs. Nor had any justification been shown for it: ‘The Board has no doubt that Mr Laramore was ‘hindered in the enjoyment of his freedom of conscience’ in the present case. His conscience told him that he should not be taking part in the prayers which were part of regular colours parades. He made this point after he had converted to the Muslim religion in 1993, and he pursued it after the 2006 Memorandum reversed the dispensation introduced in 1993. The effect of the 2006 Memorandum was that he was no longer able to enjoy or give effect to his freedom of conscience by falling out during prayers.’
Nor was the interference justified in the circumstances.

Lord Mance, Lord Kerr, Lord Sumption, Lord Reed. Lord Hughes
[2017] UKPC 13, [2017] 1 WLR 2752, [2017] WLR(D) 334
Bailii, WLRD
Commonwealth
Citing:
CitedThe Honourable Dr. Paul Borg Oliver and Another v The Honourable Dr. Anton Buttigieg PC 19-Apr-1966
The Archbishop of Malta had declared it a mortal sin to print, write, sell, buy, distribute or read a left-wing weekly newspaper, the Voice of Malta. The Maltese Medical and Health Department had followed this up by prohibiting all its 2,660 . .
CitedBanton v Alcoa Minerals of Jamaica Inc 1971
. .
CitedHope v New Guyana Ltd 1979
. .
CitedAttorney-General v Momodou Jobe PC 26-Mar-1984
(Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction . .
CitedRegina v Big M Drug Mart 1985
Supreme Court of Canada – A company was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act. It challenged the legislation. The freedom affected was that of persons prevented by the Act from working on a . .
ApprovedScott v Regina 2004
Participation in religious prayers were required of soldiers during routine parades at a Canadian Forces base. The soldiers were preceded by an order to remove headdress. The soldier had no religious convictions, had (after having previously raised . .

Cited by:
CitedLee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Constitutional, Human Rights

Updated: 02 November 2021; Ref: scu.582134

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

Hassan v The United Kingdom (LS): ECHR 16 Sep 2014

ECHR Grand Chamber – Article 5-1
Lawful arrest or detention
Internment in Iraq under Third and Fourth Geneva Conventions: no violation
Article 1
Jurisdiction of states
Responsibility of states
Territorial jurisdiction in relation to detention of Iraqi national by coalition of armed forces in Iraq
Facts – In March 2003 a coalition of armed forces led by the United States of America invaded Iraq. After occupying the region of Basrah, the British army started arresting high-ranking members of the ruling Ba’ath Party and the applicant, a senior member of the party, went into hiding leaving his brother Tarek behind to protect the family home in Umm Qasr. On the morning of 23 April 2003 a British Army unit came to the house hoping to arrest the applicant.
According to their records, they found Tarek Hassan in the house armed with an AK-47 machine gun and arrested him on suspicion of being a combatant or a civilian posing a threat to security. He was taken later that day to Camp Bucca, a detention facility in Iraq operated by the United States. Parts of the camp were also used by the United Kingdom to detain and interrogate detainees. Following interrogation by both United States and United Kingdom authorities, Tarek Hassan was deemed to be of no intelligence value and, according to the records, was released on or around 2 May 2003 at a drop-off point in Umm Qasr. His body was discovered, bearing marks of torture and execution, some 700 kilometres away in early September 2003.
In 2007 the applicant brought proceedings in the English administrative court, but these were dismissed on the grounds that Camp Bucca was a United States rather than a United Kingdom military establishment.
In his application to the European Court, the applicant alleged that his brother was arrested and detained by British forces in Iraq and subsequently found dead in unexplained circumstances. He complained under Article 5 — 1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities had failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.
Law – Articles 2 and 3: There was no evidence to suggest that Tarek Hassan had been ill-treated while in detention such as to give rise to an obligation under Article 3 to carry out an official investigation. Nor was there any evidence that the United Kingdom authorities were responsible in any way, directly or indirectly, for his death, which had occurred some four months after his release from Camp Bucca, in a distant part of the country not controlled by United Kingdom forces. In the absence of any evidence of the involvement of United Kingdom State agents in the death, or even of any evidence that the death occurred within territory controlled by the United Kingdom, no obligation to investigate under Article 2 could arise.
Conclusion: inadmissible (manifestly ill-founded).
Article 5 — 1, 2, 3 and 4
(a) Jurisdiction
(i) Period between capture by British troops and admission to Camp Bucca: Tarek Hassan was within the physical power and control of the United Kingdom soldiers and therefore fell within United Kingdom jurisdiction. The Court rejected the Government’s argument that jurisdiction should not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State were operating in territory of which they were not the occupying power, and where the conduct of the State should instead be subject to the requirements of international humanitarian law. In the Court’s view, such a conclusion was inconsistent with its own case-law and with the case-law of the International Court of Justice holding that international human rights law and international humanitarian law could apply concurrently.*
(ii) Period after admission to Camp Bucca: The Court did not accept the Government’s argument that jurisdiction should be excluded for the period following Tarek Hassan’s admission to Camp Bucca as it involved a transfer of custody from the United Kingdom to the United States. Tarek Hassan was admitted to the Camp as a United Kingdom prisoner. Shortly after his admission, he was taken to a compound entirely controlled by United Kingdom forces. Under the Memorandum of Understanding between the United Kingdom, United States and Australian Governments relating to the transfer of custody of detainees it was the United Kingdom which had responsibility for the classification of United Kingdom detainees under the Third and Fourth Geneva Conventions and for deciding whether they should be released. While it was true that certain operational aspects relating to Tarek Hassan’s detention at Camp Bucca were transferred to United States forces (such as escorting him to and from the compound and guarding him elsewhere in the camp) the United Kingdom had retained authority and control over all aspects of the detention relevant to the applicant’s complaints under Article 5.
Tarek Hassan had thus been within the jurisdiction of the United Kingdom from the moment of his capture on 23 April 2003 until his release, most probably at Umm Qasr on 2 May 2003.
Conclusion: within the jurisdiction (unanimously).
(b) Merits: There were important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict. Detention under the powers provided for in the Third and Fourth Geneva Conventions was not congruent with any of the permitted grounds of deprivation of liberty set out in subparagraphs (a) to (f) of Article 5-1.
The United Kingdom had not lodged any formal request under Article 15 of the Convention (derogation in time of emergency) allowing it to derogate from its obligations under Article 5 in respect of its operations in Iraq. Instead, the Government had in their submissions requested the Court to disapply United Kingdom’s obligations under Article 5 or in some other way interpret them in the light of the powers of detention available to it under international humanitarian law.
The starting point for the Court’s examination was its constant practice of interpreting the Convention in the light of the 1969 Vienna Convention on the Law of Treaties, Article 31-3 of which made it necessary when interpreting a treaty to take into account (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions, (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation and (c) any relevant rules of international law applicable in the relations between the parties.
As to Article 31-3 (a), there had been no subsequent agreement between the Contracting States as to the interpretation of Article 5 in situations of international armed conflict. However, as regards Article 31-3(b), the Court had previously stated that a consistent practice on the part of the Contracting States, subsequent to their ratification of the Convention, could be taken as establishing their agreement not only as regards interpretation but even to modify the text of the Convention. The practice of the Contracting States was not to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. That practice was mirrored by State practice in relation to the International Covenant for the Protection of Civil and Political Rights.
As to the criterion contained in Article 31-3(c), the Court reiterated that the Convention had to be interpreted in harmony with other rules of international law, including the rules of international humanitarian law. The Court had to endeavour to interpret and apply the Convention in a manner which was consistent with the framework under international law delineated by the International Court of Justice. Accordingly, the lack of a formal derogation under Article 15 of the Convention did not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in the applicant’s case.
Nonetheless, even in situations of international armed conflict, the safeguards under the Convention continued to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out under subparagraphs (a) to (f) should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court was mindful of the fact that internment in peacetime did not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15. It could only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security were accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.
As with the grounds of permitted detention set out in those subparagraphs, deprivation of liberty pursuant to powers under international humanitarian law had to be ‘lawful’ to preclude a violation of Article 5-1. That meant that detention had to comply with the rules of international humanitarian law, and most importantly, that it should be in keeping with the fundamental purpose of Article 5-1, which was to protect the individual from arbitrariness.
As regards procedural safeguards, the Court considered that, in relation to detention taking place during an international armed conflict, Article 5-2 and 4 must also be interpreted in a manner which took into account the context and the applicable rules of international humanitarian law. Articles 43 and 78 of the Fourth Geneva Convention provided that internment ‘shall be subject to periodical review, if possible every six months, by a competent body’. Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent ‘court’ in the sense generally required by Article 5-4, nonetheless, if the Contracting State is to comply with its obligations under Article 5-4 in this context, the ‘competent body’ should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay. Article 5-3, however, had no application in the present case since Tarek Hassan was not detained in accordance with the provisions of paragraph 1(c) of Article 5.
Turning to the facts of the applicant’s case, the Court considered that the United Kingdom authorities had had reason to believe that Tarek Hassan, who was found by British troops armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value had been retrieved, might be either a person who should be detained as a prisoner of war or whose internment was necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention under the Third and Fourth Geneva Conventions. Almost immediately following his admission to Camp Bucca, he had been subject to a screening process in the form of two interviews by United States and United Kingdom military intelligence officers, which had led to his being cleared for release since it was established that he was a civilian who did not pose a threat to security. The evidence pointed to his having been physically released from the Camp shortly thereafter.
Against this background, it would appear that Tarek Hassan’s capture and detention was consistent with the powers available to the United Kingdom under the Third and Fourth Geneva Conventions, and was not arbitrary. Moreover, in the light of his clearance for release and physical release within a few days of being brought to the Camp, it was unnecessary for the Court to examine whether the screening process constituted an adequate safeguard to protect against arbitrary detention. Finally, it would appear from the context and the questions that Tarek Hassan was asked during the two screening interviews that the reason for his detention would have been apparent to him.
Conclusion: no violation (thirteen votes to four).

29750/09 – Legal Summary, [2014] ECHR 1145
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Armed Forces

Updated: 01 November 2021; Ref: scu.537995

Gentle, 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 appeal was dismissed. The right to an inquiry was procedural and depended first on the claimants establishing an arguable case that the substantive right was infringed. There would be no ability at common law to require such and inquiry, and no obligation was to be created through human rights law.
The issue was however justiciable. Baroness Hale said: ‘it is now common ground that if a Convention right requires the court to examine and adjudicate upon matters which were previously regarded as non-justiciable, then adjudicate we must.’
Lord Bingham of Cornhill observed: ‘issues which judicial tribunals have traditionally been very reluctant to entertain because they recognise their limitations as suitable bodies to resolve them. This is not to say that if the claimants have a legal right the courts cannot decide it. The defendants accept that if the claimants have a legal right it is justiciable in the courts, and they do not seek to demarcate areas into which the courts may not intrude.’

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance
[2008] UKHL 20, Times 10-Apr-2008, [2008] 2 WLR 879, [2008] 1 AC 1356, [2008] UKHRR 822, [2008] HRLR 27, [2008] 3 All ER 1
Bailii, HL
European Convention on Human Rights 2 3
England and Wales
Citing:
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 . .
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 . .
CitedEdwards 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 . .
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.
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
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 . .
CitedRegina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
At first instanceGentle and Others, Regina (on the Application of) v the Prime Minister and others Admn 20-Dec-2005
The applicants sought leave to bring judicial review of the decisions which led to the invasion of Iraq. They were relatives of servicemen who had died there.
Held: The court’s only duty at this stage was to ask whether there was an arguable . .
Appeal fromRegina (on the appication of Gentle and Clarke) v The Prime Minister; Secretary of Sate for Defence; Attornery General CA 12-Dec-2006
The mothers of two servicemen who had died whilst on service in the war in Iraq challenged refusal to hold an independent inquiry into the circumstances leading to the invasion of Iraq.
Held: The appeal failed. . .
CitedButtes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
CitedCouncil of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
CitedRegina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
CitedJH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
CitedRegina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
CitedTakoushis, Regina (on the Application of) v HM Coroner for Inner North London Admn 16-Dec-2004
A patient suffering schizophrenia had been a voluntary patient. He was allowed to visit another unit within the hospital grounds, but then left altogether and was next found preparing to jump from Tower Bridge. He was taken by ambulance to Hospital . .
CitedRegina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
CitedCampaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
CitedBubbins v United Kingdom ECHR 17-Mar-2005
The deceased had returned home drunk, and climbed in through a window. His girlfriend saw only his legs and reported an intruder to the police. He refused to identify himself when challenged by the police and on pointing a gun from the window he was . .
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 . .
CitedTaylor v United Kingdom ECHR 1994
. .
CitedBanks v United Kingdom ECHR 6-Feb-2007
The applicants complained of maltreatment by prison officers in breach of article 3. The matter had been investigated by the Crown Prosecution Service which had decided not to prosecute. Civil proceedings had been raised and settled. The applicants . .
CitedScholes v Secretary of State for the Home Department CA 17-Oct-2006
The deceased had committed suicide whilst in prison. The judge had requested that prison should be told of the risk of self harm. The mother appealed refusal of the judge to grant a judicial review of the Home Secretary’s refusal to grant, as . .
CitedMcShane v The United Kingdom ECHR 28-May-2002
HER Judgment (Merits and just satisfaction) Violation of Art. 2; No violation of Art. 6-1; No violation of Art. 14; No violation of Art. 13; Failure to comply with obligations under Article 34
The deceased . .
CitedGrigoriades v Greece ECHR 25-Nov-1997
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; No violation of Art. 7; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings . .
CitedMcBride v United Kingdom ECHR 2006
. .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .

Cited by:
CitedSmith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
CitedCorner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
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 . .
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.
CitedSmith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
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 . .
CitedShergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
CitedLetts, Regina (on The Application of) v The Lord Chancellor and Another Admn 20-Feb-2015
Application for judicial review concerning the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which . .
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.

Armed Forces, Coroners, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.266539

Hassan v The United Kingdom (GC): ECHR 16 Sep 2014

Grand Chamber – The applicant alleged that his brother was arrested and detained by British forces in Iraq and was subsequently found dead in unexplained circumstances. He complained under Article 5-1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.
Held: ‘the powers of internment under the Third and Fourth Geneva Conventions, relied on by the Government as a permitted ground for the capture and detention of Tarek Hassan, are in direct conflict with Article 5 – 1 of the Convention. The Court does not have any legitimate tools at its disposal, as a court of law, to remedy this clash of norms. It must therefore give priority to the Convention, as its role is limited under Article 19 to ‘[ensuring] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto’. By attempting to reconcile the irreconcilable, the majority’s finding today does not, with respect, reflect an accurate understanding of the scope and substance of the fundamental right to liberty under the Convention, as reflected in its purpose and its historical origins in the atrocities of the international armed conflicts of the Second World War.’

Dean Spielmann, P
29750/09 – Grand Chamber Judgment, [2014] ECHR 936, [2014] ECHR 1162
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Coroners, Armed Forces, News

Updated: 01 November 2021; Ref: scu.536666

Regina v Army Board of Defence Council, ex parte Anderson: QBD 1991

army_anderson1991

Members of the Armed Forces who alleged discrimination did not have access to Industrial Tribunals. The only recourse was to make a service complaint which would then be considered by the Army Board. Anderson complained of race discrimination. His service complaint had been dismissed and in his application for judicial review he challenged the procedure which the Panel had adopted including not holding an oral hearing.
Held:
Taylor LJ said: ‘The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing: see Local Government Board v. Arlidge [1915] A.C. 120, 132-133; Reg. v. Race Relations Board, Ex parte Selvarajan [1975] 1 W.L.R. 1686, 1694B-D and Reg. v. Immigration Appeal Tribunal, Ex parte Jones (Ross) [1988] 1 W.L.R. 477, 481B-G. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available written evidence. This does not mean that whenever there is a conflict of evidence in the statements taken, an oral hearing must be held to resolve it. Sometimes such a conflict can be resolved merely by the inherent unlikelihood of one version or the other. Sometimes the conflict is not central to the issue for determination and would not justify an oral hearing. Even when such a hearing is necessary, it may only require one or two witnesses to be called and cross-examined.’

Taylor LJ, Morland J
[1992] QB 169, [1991] 3 All ER 375, [1991] 3 WLR 42
Citing:
CitedLocal Government Board v Arlidge HL 1914
A right of appeal against the exercise of a statutory authority requires no general right to an oral hearing before an administrative decision maker, and a hearing on the papers may be perfectly fair for legal purposes.
Lord Shaw said: ‘The . .
CitedRegina v Race Relations Board, Ex parte Selvarajan CA 1975
Lord Denning MR said: ‘In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion . . In all these cases it has been held that the investigating body is under a duty to act . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Discrimination, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.539816

Regina v Boyd, Hastie, Spear (Courts Martial Appeal Court), Regina v Saunby, Clarkson, English, Williams, Dodds, and others: HL 18 Jul 2002

Corts Martial System Complant with Human Rights

The applicants were each convicted by courts martial of offences under civil law. They claimed that the courts martial were not independent tribunals because of the position of the president of the court, and that it was wrong to try a serviceman by court martial an offence committed in the UK or abroad.
Held: The law laid down no rules to settle where a serviceman should be tried, but those involving service property or personnel would normally be dealt with by a courts martial, and where no such interests were involved, by a civil court. This was not unfair. The Presidents of the courts martial were senior officers reaching the end of their career. They had permanent positions, and sought no further advancement. They were independent. The lesser duties of lower court officers meant that the court could properly rely upon them to fulfil their oaths, and they were impartial. The system had been substantially improved, and was now compliant.
Lord Bingham of Cornhill observed: ‘Officers will appreciate, better than anyone, that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny. In the absence of any evidence at all to support it, I could not accept the suggestion that any modern officer would, despite the oath he has taken, exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so.’

Lord Bingham of Cornhill, Lord Steyn, Lord Hutton, Lord Scott of Foscote and Lord Rodger of Earlsferry
Times 19-Jul-2002, Gazette 19-Sep-2002, [2002] UKHL 31, [2003] 1 AC 734, [2002] 3 All ER 1074, [2002] ACD 97, [2002] HRLR 40, [2002] 3 WLR 437, [2002] HRLR 43, [2003] 1 Cr App R 1
House of Lords, Bailii
Army Act 1955 70, Air Force Act 1955 70, European Convention on Human Rights, Courts-Martial (Army) Rules 1997 (SI 1997/169)
England and Wales
Citing:
CitedMorris v The United Kingdom ECHR 26-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to general structure of court martial system; No violation of Art. 6-1 with regard to specific complaints; No violation of Art. . .
ApprovedFindlay v The United Kingdom ECHR 25-Feb-1997
The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had . .
Appeal fromRegina v John Spear, Philip Hastie and David Morton Boyd CMAC 15-Jan-2001
The fact that the President of a Court Martial was appointed within the same authority as was prosecuting, did not necessarily mean that the tribunal was not impartial. Such officers were typically appointed at the end of their careers, and they . .

Cited by:
CitedPD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
Appealed toRegina v John Spear, Philip Hastie and David Morton Boyd CMAC 15-Jan-2001
The fact that the President of a Court Martial was appointed within the same authority as was prosecuting, did not necessarily mean that the tribunal was not impartial. Such officers were typically appointed at the end of their careers, and they . .
CitedRegina v Dundon CMAC 18-Mar-2004
The defendant had been convicted under a system of trial later confirmed not to be compliant with the need for a fair trial.
Held: The judge advocate in this trial had been a serving officer. Unless the positive obligation to show an . .
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 . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
CitedAppleyard, Regina v CACD 17-Oct-2005
Resumed hearing of appeal against conviction at a court martial – suggestions that directions given by the judge advocate on duress were defective rejected. Now consideration on words used to jury as to attempts to reach a unanimous verdict.
Crime, Armed Forces, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.174397

Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another: CA 19 Mar 2014

In 1948, there had been an incident in what later became part of Malaysia, in a counter insurgency patrol, when 24 civilians were said to have been killed by a patrol from the Scots Guards. The claimant now appealed against the refusal of a further inquiry.
Held: The appeal failed.
Maurice Kay, Rimer, Fulford LJJ
[2014] 4 All ER 99, [2014] WLR(D) 138, [2015] 1 QB 57, [2014] 3 WLR 948
Bailii, WLRD
European Convention on Human Rights 2, Inquiries Act 2005 1, Human Rights Act 1998
England and Wales
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 . .
Appeal fromKeyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another Admn 4-Sep-2012
It was said that a squad of the British army had caused the deaths of 24 civilians in 1948 in Batang Kali (now part of Malaysia.
Held: No inquiry was required. It was a matter of discretion, and there were no sustainable reasons for . .

Cited by:
Appeal fromKeyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another SC 25-Nov-2015
The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.522605

Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc: CA 6 Nov 1995

A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations. ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’ Profound cultural changes do take time, but ‘A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z.’
Sir Thomas Bingham MR
Times 06-Nov-1995, [1996] QB 517
England and Wales
Citing:
Appeal fromRegina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
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 . .

Cited by:
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: . .
Appeal fromSmith 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 . .
CitedBennett v Officers A and B and Commissioner of Police for the Metropolis CA 2-Nov-2004
Police Officers had been involved in a shooting in which a man died. They were granted anonymity before the coroner’s court, on evidence suggesting they might be at risk. The family of the deceased appealed.
Held: The coroner misdirected . .
CitedA and Others, Regina (on the Application of) v Lord Saville of Newdigate and others CA 28-Jul-1999
Former soldiers who had been involved in the events in Londonderry in 1972, and were to be called to give evidence before a tribunal of inquiry, still had cause to fear from their names being given, and so were entitled to anonymity when giving such . .
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 . .
CitedSecretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.87689

Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another: Admn 4 Sep 2012

It was said that a squad of the British army had caused the deaths of 24 civilians in 1948 in Batang Kali (now part of Malaysia.
Held: No inquiry was required. It was a matter of discretion, and there were no sustainable reasons for overturning the decisions of the respondents.
Sir John Thomas P, Treacy J
[2012] EWHC 2445 (Admin), [2012] WLR(D) 261
Bailii, WLRD
Inquiries Act 2005 1, Human Rights Act 1998, European Convention on Human Rights
England and Wales
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 . .

Cited by:
Appeal fromKeyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another CA 19-Mar-2014
In 1948, there had been an incident in what later became part of Malaysia, in a counter insurgency patrol, when 24 civilians were said to have been killed by a patrol from the Scots Guards. The claimant now appealed against the refusal of a further . .
At first instanceKeyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another SC 25-Nov-2015
The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in . .

These lists may be incomplete.
Updated: 19 April 2021; Ref: scu.463812

Bici and Bici v Ministry of Defence: QBD 7 Apr 2004

Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was not argued that they occurred in combat, and it was established that in cases of riot, soldiers would be liable in tort. In civil law a belief that a defendant was under threat had to be reasonable to avoid liability. Even so, soldiers were in a particularly difficult position. Soldiers owe the same duties as ordinary citizens, and the latter clearly owe a duty of care in the circumstances. No contributory negligence could be supported. The court applied English law when giving the judgment. Elias J: ‘In trespass, any unlawful interference with the bodily integrity of the claimant will not be unlawful if it is justified and it will be justified if the defendant can establish that the claimant’s conduct was such that the defendant reasonably apprehended that he would be imminently attacked and used reasonable force to protect himself.’
Mr Justice Elias
[2004] EWHC 786(QB), Times 11-Jun-2004
Bailii
England and Wales
Citing:
CitedPalmer v The Queen PC 23-Nov-1970
It is a defence in criminal law to a charge of assault if the defendant had an honest belief that he was going to be attacked and reacted with proportionate force: ‘If there has been an attack so that defence is reasonably necessary, it should be . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedAttorney General for Northern Ireland’s Reference no 1 of 1975 HL 1975
Often a soldier has to act intuitively, and, in assessing his conduct and judging the action of the reasonable soldier, it is important to recognise that his action ‘is not undertaken in the calm analytical atmosphere of the court room after counsel . .
CitedJames v Campbell 1832
The defendant was involved in a fight at a parish dinner and it was suggested that he had hit the claimant by mistake, giving him two black eyes. The jury were that even on that premise he would be liable. . .
CitedBall v Axten 1866
A defendant who was aiming to hit a farmer’s dog and by mistake hit the farmer’s wife who was trying to protect it was liable in assault. . .
CitedPage v Smith HL 12-May-1995
The plaintiff was driving his car when the defendant turned into his path. Both cars suffered considerable damage but the drivers escaped physical injury. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . .
CitedLivingstone v Ministry of Defence CANI 1984
The plaintiff was injured when a soldier fired a baton round after some soldiers were attacked by rioters. The round had been deliberately fired, but not to strike the plaintiff. The claim was in negligence and assault and battery. The trial judge . .
CitedF v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
CitedLetang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
CitedRegina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
No part in current lawWilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
CitedRegina v Savage; Director of Public Prosecutions v Parmenter HL 7-Nov-1991
The first defendant had been convicted of wounding. She had intended to throw beer over her victim, but her glass slipped from her hand, and cut the victim. The second defendant threw his three year old child in the air and caught him, not realising . .
CitedEntick 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 . .
CitedMulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
CitedNissan v The Attorney General HL 11-Feb-1969
The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United . .
CitedBurmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
CitedShaw Savill and Albion Company Ltd v The Commonwealth 1940
(High Court of Australia) The plaintiff owned a ship ‘The Coptic’ which was in a collision with His Majesties Australian Ship ‘Adelaide’. The plaintiff alleged that the collision resulted from the negligence of the defendant’s officers, saying the . .
CitedHughes v National Union of Mineworkers QBD 1991
The court struck out as disclosing no cause of action a claim by a police officer who was injured while policing the miners’ strike and who alleged that the police officer in charge had deployed his men negligently.
Held: The officer in charge . .
CitedBell, Multiple claimants v Ministry of Defence (1) and (2) QBD 21-May-2003
The claimants sought damages for psychiatric injury for stress and anxiety in being engaged on the behalf of the respondent in the course of combat.
Held: The defendant had no duty to maintain a safe system of work for military personnel . .

Cited by:
CitedAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
CitedAshley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
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.
Updated: 10 April 2021; Ref: scu.195488

(Un-named) (Armed Forces Pension): SSCS 20 Oct 2006

Whether a person in a marriage-like relationship with a former member of the armed forces whose death is due to service is entitled to a pension under the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 1983 although she does not meet the conditions of Article 29 (pensions to widows and widowers) or Article 30 (pensions to certain unmarried dependants who lived as spouses). The argument for entitlement is based on interpreting those provisions so as not to contravene the European Convention on Human Rights (ECHR) and in particular Article 14 on discrimination.
[2006] UKSSCSC CAF – 52 – 2006
Bailii
England and Wales

Updated: 02 February 2021; Ref: scu.249711

Isayeva, Yusupova And Bazayeva v Russia: ECHR 24 Feb 2005

ECHR Judgment (Merits and Just Satisfaction). The court considered the duties of a signatory state under article 2 when taking substantial military actions against insurgents.
57949/00, [2005] ECHR 129, 57947/00, 57948/00, (2005) 41 EHRR 39
Worldlii, Bailii
European Convention on Human Rights 2
Human Rights
Cited by:
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.
Updated: 24 January 2021; Ref: scu.227547

Al-Waheed v Ministry of Defence: SC 17 Jan 2017

‘These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. In both cases, the claim is based in part on article 5(1) of the European Convention on Human Rights, which provides that no one shall be deprived of his liberty except in six specified cases and in accordance with a procedure prescribed by law. They also rely on article 5(4), which requires that the detainee should be entitled to take proceedings by which the lawfulness of his detention may be tested. The appeals have been heard together with a view to resolving one of the more controversial questions raised by such actions, namely the extent to which article 5 applies to military detention in the territory of a non-Convention state in the course of operations in support of its government pursuant to mandates of the United Nations Security Council.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes, Lord Toulson, Lord Hodge
[2017] UKSC 2, [2017] 3 All ER 215, 43 BHRC 137, [2017] AC 821, [2017] 2 WLR 327, [2017] WLR(D) 50, [2017] HRLR 1, UKSC 2014/0219
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC Summary video
European Convention on Human Rights 5(1) 5(4), Human Rights Act 1998
England and Wales
Cited by:
See AlsoBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
See AlsoRahmatullah (No 2) v Ministry of Defence and Another SC 17-Jan-2017
‘another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and . .

These lists may be incomplete.
Updated: 15 January 2021; Ref: scu.573212

Al-Saadoon and Others v Secretary of State for Defence: Admn 17 Mar 2015

Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state to acknowledge the detention or disclose the fate of the person who has been detained. Its cruelty and vice lie in the facts that the disappeared person is completely isolated from the outside world and at the mercy of their captors and that the person’s family is denied knowledge of what has happened to them.’
Leggatt J
[2015] EWHC 715 (Admin), [2015] WLR(D) 168, [2015] 3 WLR 503
Bailii, WLRD
England and Wales
Citing:
See AlsoAl-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
CitedAl-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .

Cited by:
See AlsoAl-Saadoon and Others v Secretary of State for Defence Admn 26-Jun-2015
Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European . .
See AlsoAl-Saadoon and Others v Secretary of State for Defence Admn 7-Apr-2016
The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
See AlsoAl-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .

These lists may be incomplete.
Updated: 15 January 2021; Ref: scu.544341

Thompson 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 partial award – Convention proceedings
36256/97, [2004] ECHR 267, [2004] ECHR 267
Bailii, Bailii
Cited by:
CitedMistry v Thakor and others CA 5-Jul-2005
. .

These lists may be incomplete.
Updated: 13 January 2021; Ref: scu.198174

Secretary of State for Defence v President of the Pension Appeal Tribunals (England and Wales): QBD 4 Feb 2004

The secretary appealed a decision of the Pensions Appeal Tribunal to set aside a decision of the Pensions Tribunal. The applicant had been awarded a service pension.
Held: The PAT had no general power to set aside a decision of the tribunal for an irregularity. The rules provided for a right of appeal to the High Court, and therefore no great hardship resulted. The PAT should have remitted the case for directions.
The Honourable Mr Justice Newman
[2004] EWHC 141 (Admin), Times 27-Feb-2004
Bailii
Pensions Appeal Tribunals Act 1943
England and Wales

Updated: 12 January 2021; Ref: scu.192631

Cooper v The United Kingdom: ECHR 16 Dec 2003

Hudoc Judgment (Merits and just satisfaction)
The claimant had been dismissed from the RAF after a court martial. He complained that the tribunal was not independent, and that his trial was unfair.
Held: The court rejected the submission that no court martial could act independently. There was sufficient separation between the various roles and the chain of command, and the claimant’s rights were not infringed.
48843/99, Times 12-Jan-2004, (2004) 39 EHRR 171, [2003] ECHR 686
Bailii
European Convention on Human Rights 6.1
Human Rights
Citing:
CitedFindlay v The United Kingdom ECHR 25-Feb-1997
The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had . .
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 . .

Cited by:
CitedHaase, Regina (on the Application of) v Independent Adjudicator and Another CA 14-Oct-2008
The appellant complained that as a prisoner he was subjected to disciplinary proceedings for refusing to co-operate with drugs tests. He said that he had not been informed that there would be a penalty if he did not comply. He now complained that . .

These lists may be incomplete.
Updated: 11 January 2021; Ref: scu.190176

Grieves v The United Kingdom: ECHR 16 Dec 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Costs and expenses partial award – Convention proceedings
The claimant had been dismissed from the Royal Navy after a court martial. He complained that the tribunal did not have sufficient independence.
Held: The claimant’s rights were infringed. Though there was facility to appoint a prosecutor from outside the chain of command, that had not happened in the applicant’s case, and he was part of the prosecuting authority. The use of a civilian to administer the procedure helped. There was no permanence to the position of president of the court martial. The judge advocates were serving officers carrying out regular naval duties.
57067/00, Times 12-Jan-2004, ECHR 2003-XII, (2004) 39 EHRR 51, [2003] ECHR 688
Bailii
European Convention on Human Rights 6.1, Naval Discipline Act 1957
Human Rights
Citing:
CitedFindlay v The United Kingdom ECHR 25-Feb-1997
The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had . .
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 . .

Cited by:
CitedRegina v Dundon CMAC 18-Mar-2004
The defendant had been convicted under a system of trial later confirmed not to be compliant with the need for a fair trial.
Held: The judge advocate in this trial had been a serving officer. Unless the positive obligation to show an . .
AppliedG.W. v The United Kingdom ECHR 15-Jun-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention . .
AppliedLe Petit 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 partial award – Convention proceedings . .
CitedHaase, Regina (on the Application of) v Independent Adjudicator and Another CA 14-Oct-2008
The appellant complained that as a prisoner he was subjected to disciplinary proceedings for refusing to co-operate with drugs tests. He said that he had not been informed that there would be a penalty if he did not comply. He now complained that . .

These lists may be incomplete.
Updated: 11 January 2021; Ref: scu.190177

Secretary of State for Defence v Shaun Francis Rusling: QBD 13 Jun 2003

The applicant sought a war pension, saying he had been affected by ‘Gulf War Syndrome.’ The Pensions Appeal Tribunal had found the condition to be capable of justifying a pension. The Secretary said the matter had been resolved.
Held: The Tribunal had a duty before accepting that a matter was concluded, to ensure that all the issues had been resolved. To do that it was necessary for the Secretary of State to put before the tribunal all relevant material and the full terms of the subsequent decision.
The Honourable Mr Justice Newman
[2003] EWHC 1359 (QB), Times 17-Jul-2003
Bailii
England and Wales

Updated: 09 January 2021; Ref: scu.184645

R v Her Majesty’s Attorney-General for England and Wales: PC 17 Mar 2003

PC (From Court of Appeal of New Zealand) T had been a member of the British SAS. Other members had written books and the Army sought to impose confidentiality contracts or to impose a return to their unit. R signed, but alleged this had been under duress and without resource to independent advice.
Held: The finding that the contract was an agreement which anyone who wished to serve or continue serving in the SAS could reasonably have been required to sign was fatal to any suggestion of undue influence or duress. It was a matter for regret that members of SAS were not told explicitly that arrangements could be made for them to obtain legal advice. However, R did not allege that he did not understand the implications of what he was being asked to do. The contract was in simple terms and the explanatory memorandum even plainer. Consideration had been given in not returning R to his base unit. Appeal dismissed. Lord Scott dissenting on undue influence: ‘the relationship between the appellant and his senior officers and the circumstances, as found by the judge, in which the contract came to be signed by the appellant produced a classic ‘relationship’ case in which undue influence should be presumed.’
Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Millett, Lord Scott of Foscote
[2003] UKPC 22, [2003] EMLR 24
PC, Bailii, PC
England and Wales
Citing:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedUniverse Tankships Inc of Monrovia v International Transport Workers Federation HL 1-Apr-1981
A ship belonging to the appellants had been blacked by the defendant union. Negotiations to clear the threat resulted in payment by the appellants to a welfare fund of the defendant. The company sought its refund saying that it had been paid under . .
CitedThorne v Motor Trade Association HL 1937
The House confirmed a declaration granted as to validity of a rule of association notwithstanding the absence of any dispute. The House considered the nature of the threat required to establish a defence of duress.
Lord Wright observed that the . .
CitedAlliance Bank Ltd v Broom 1864
The bank demanded security for its loan in circumstances in which it would otherwise have enforced payment. It made no promise not to demand payment but: ‘the [bank] did in effect give, and the defendant received, the benefit of some degree of . .
CitedBarton v Armstrong PC 5-Dec-1973
(New South Wales) The appellant had executed a deed on behalf of a company to sell shares to the respondent in the context of a long running boardroom battle. He said that the deed had been obtained by duress and was voidable. The respondent was . .
CitedDunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
CitedRegina 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 . .
CitedAllcard v Skinner CA 1887
allcard_skinnerCA1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .

These lists may be incomplete.
Updated: 09 January 2021; Ref: scu.179985

Murray 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.
Ryssdal, President
Times 01-Nov-1994, 14310/88, [1994] ECHR 39, (1994) 19 EHRR 193
Bailii, Bailii
European Convention on Human Rights
Human Rights
Cited by:
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 . .
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.
Updated: 22 December 2020; Ref: scu.165336

Regina v Ministry of Defence ex parte Colin James Murray: QBD 15 Dec 1997

The defendant sought judicial review of his court-martial and of the confirming officers. He said the court should have heard that he committed the offence whist intixicated after taking an anti-malarial drug. The court dd not explain why it had found no causal connection beween the treatment and the offence.
Held: There is no over-riding principle of law that reasons must be given for a decision in disciplinary decisions, but fairness will often require them to be given. Does ‘fairness require in this case that reasons should have been given both as to why the Court reached the conclusion that there was no causal connection and why it decided that the sentence of imprisonment was required rather than some lesser sentence which would not have had the same dire consequences for the Applicant? The answer to that question must be in the affirmative. Are there public interest reasons why reasons should not be required? The only public interest reasons . . . advanced relied upon drawing analogies with other judicial bodies. I accept . . . submissions . . . that the examples which he gave are not analogous.’
Lord Bingham of Cornhill LCJ, Hooper J
Times 17-Dec-1997, [1997] EWHC Admin 1136
Bailii
Army Act 1955 70, Armed Forces Act 1996, Rules of Procedure (Army) 1972 (SI 1972/316) 76(1)
Citing:
CitedRegina v Civil Service Appeal Board, Ex parte Cunningham CA 1991
The court considered the effect of a disciplinary board failing to give reasons. The absence of any right to appeal may be a factor in deciding that reasons should be given. If it is ‘important that there should be an effective means of detecting . .
[1991] 4 All ER 310, [1992] ICR 816
CitedRegina v Guppy and Another CACD 8-Mar-1994
Court of Appeal (Criminal Division) may hear (but not require) evidence in person from an appellant. . .
Times 08-Mar-94, (1995) 16 Cr App R(S) 26
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’, . .
Independent 25-Jun-93, Times 29-Jun-93, [1993] 3 All ER 92, [1994] 1 AC 531, [1993] UKHL 8, [1993] 3 WLR 154
CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
[1987] AC 625, [1987] UKHL 5, [1987] 1 All ER 1118, [1987] 2 WLR 821
CitedRegina v Universities Funding Council ex parte Institute of Dental Surgery QBD 30-Jul-1993
When considering whether a disciplinary board should have given reasons, the court may find the absence critical ‘where the decision appears aberrant’. ‘the giving of reasons may among other things concentrate the decision-maker’s mind on the right . .
Independent 28-Sep-93, [1993] EWHC Admin 5, [1994] 1 WLR 241
CitedRegina v Mayor, Commonalty and Citizens of the City of London, ex parte Matson CA 18-Aug-1995
The court considered the need to give reasons for the election of Aldermen. . .
(1996) 8 Admin LR 49, [1997] 1 WLR 765, [1996] COD 161, 94 LGR 443

These lists may be incomplete.
Updated: 18 December 2020; Ref: scu.87364

Regina v Clegg: HL 25 Jan 1995

The defendant was a soldier on patrol in Northern Ireland. He was convicted of the murder of the passenger and attempted murder of the driver of a stolen car. He said he had fired in self defence. The Court of Appeal had rejected his appeal saying that on the facts it had been a grossly excessive and disproportionate use of force. The House was asked: ‘whether a soldier on duty, who kills a
person with the requisite intention for murder, but who would be entitled to rely on self-defence but for the use of excessive force, is guilty of murder or manslaughter.’
Held: The use of grossly excessive force in self defence can be no justification for murder, even when the act was committed by a soldier on duty. The alternative of manslaughter was not available in such a case.
Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead
Gazette 22-Feb-1995, Independent 01-Feb-1995, Times 25-Jan-1995, [1995] UKHL 1, [1995] 1 All ER 334, [1995] 1 AC 482
Bailii
Criminal Law Act (Northern Ireland) 1967
Northern Ireland
Citing:
MentionedRex v Cook 1640
The intent to resist unlawful apprehension is treated as a state of mind constituting ‘that lighter degree of malice which is necessary to the crime of manslaughter’ rather than murder. . .
(1640) Cro Car 537
CitedThe Queen v Howe 1958
High Court of Australia – Criminal Law – Murder – Conviction – Quashed on appeal to Supreme Court – New trial ordered – Appeal to High Court by Crown – Special leave – Questions of law affecting law of homicide – Importance – Self-defence – . .
(1958) 100 CLR 448, 32 ALJR 212, [1958] ALR 753, [1958] HCA 38
CitedRegina v McInnes CACD 1971
Edmund Davies LJ said: ‘But where self-defence fails on the ground that force used went clearly beyond that which was reasonable in the light of the circumstances as they reasonably appeared to the accused, is it the law that the inevitable result . .
[1971] 1 WLR 1600
CitedPalmer v The Queen PC 23-Nov-1970
It is a defence in criminal law to a charge of assault if the defendant had an honest belief that he was going to be attacked and reacted with proportionate force: ‘If there has been an attack so that defence is reasonably necessary, it should be . .
[1971] 1 All ER 1077, (1971) 55 Cr App R 223 (PC), [1971] AC 814, [1970] UKPC 31, [1971] 2 WLR 831, (1971) 55 Cr App R 223

These lists may be incomplete.
Updated: 18 December 2020; Ref: scu.86397

Cable et Al v United Kingdom: ECHR 18 Feb 1999

The English Courts martial system did not give a fair trial because the role of the convening officer meant that the tribunal was not sufficiently independent or impartial since the officer might outrank the court and could dissolve the proceedings.
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings.
L Wildhaber P
Times 11-Mar-1999, (2000) 30 EHRR 1032, 24436/94;24582/94;24583/94;, [1999] ECHR 8
Bailii
European Convention on Human Rights

Updated: 17 December 2020; Ref: scu.78815

Regina v Ministry of Defence Ex Parte Smith and Others: QBD 7 Jun 1995

An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’ After referring to changes of attitude in society towards same-sex relationships: ‘I regard the progressive development and refinement of public and professional opinion at home and abroad, here very briefly described, as an important feature of this case. A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z. Public and professional opinion are a continuum.’
Sir Thomas Bingham MR: ‘It is, inevitably, common ground that the United Kingdom’s obligation, [under article 8] binding in international law, to respect and secure compliance with this article is not one that is enforceable by domestic courts. The relevance of the Convention in the present context is as background to the complaint of irrationality. The fact that a decision-maker failed to take account of convention obligations when exercising an administrative discretion is not of itself a ground for impugning that exercise of discretion.’
Simon Brown LJ and Curtis J
Times 13-Jun-1995, Independent 08-Jun-1995
European Convention on Human Rights 8
Citing:
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 . .
[1947] 2 All ER 680, [1948] 1 KB 223, 1947 WL 10584, (1948) 92 SJ 26, [1948] LJR 190, [1948] 45 LGR 635, (1948) 112 JP 55, 63 TLR 623, [1947] EWCA Civ 1

Cited by:
Appeal fromRegina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
Times 06-Nov-95, [1996] QB 517
CitedRegina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Times 15-Feb-00, Gazette 17-Feb-00, [2000] EWCA Civ 22, [2001] 1 All ER 719, [2000] Imm LR 306
CitedRegina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Times 15-Feb-00, Gazette 17-Feb-00, [2000] EWCA Civ 22, [2001] 1 All ER 719, [2000] Imm LR 306
CitedCumming and others v Chief Constable of Northumbria Police CA 17-Dec-2003
The six claimants sought damages for wrongful arrest and false imprisonment. Each had been arrested on an officer’s suspicion. They operated CCTV equipment, and it appeared that tapes showing the commission of an offence had been tampered with. Each . .
[2003] EWCA Civ 1844, Times 02-Jan-04, Gazette 29-Jan-04
CitedFitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Times 02-Nov-99, Gazette 10-Nov-99, [1999] 3 WLR 1113, [2001] 1 AC 27, [1999] UKHL 42, [1999] 4 All ER 705
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 . .
Times 09-Jul-99, Gazette 28-Jul-99, [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 All ER 400, [1999] 3 WLR 328, [1999] EMLR 689, (1999) 7 BHRC 411, (1999) 2 CHRLD 359
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte Manelfi Admn 25-Oct-1996
The applicant sought judicial review of the defendant’s refusal to employ him to work at GCHQ, which had a policy not to employ anyone with non-British parents save exceptionally. The claimant said this was racially discriminatory.
Held: The . .
[1996] EWHC Admin 153
CitedRogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
[2006] EWCA Civ 392, [2006] 1 WLR 2649
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 . .
[2007] UKHL 11, [2007] 2 AC 167, [2007] 2 WLR 581, [2007] 4 All ER 15, (2007) 24 BHRC 74, [2007] INLR 314, [2007] UKHRR 759, [2007] 1 FLR 2021, [2007] Imm AR 571, [2007] Fam Law 587, [2007] HRLR 22
Appeal fromRegina 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 . .
[1995] EWCA Civ 22, [1996] 2 WLR 305, [1996] QB 517, [1996] IRLR 100, [1996] ICR 740, [1996] 1 All ER 257
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
[2008] UKHL 61, (2008) 158 NLJ 1530, [2008] 3 WLR 955, [2008] 4 All ER 1055, [2009] 1 AC 453

These lists may be incomplete.
Updated: 16 December 2020; Ref: scu.87365

Derry v Ministry of Defence: QBD 8 Jun 1998

A military doctor has exemption under Crown Immunity, from liability from his failure to diagnose and treat ocular cancer properly, and the exemption applied even though the medical condition pre-existed the treatment. The cause of action lay in the failure to diagnose.
Times 08-Jun-1998
Crown Proceedings Act 1947
Cited by:
Appeal fromDerry v Ministry of Defence CA 18-Mar-1999
Where an army doctor was accused of failing to diagnose a serviceman’s ocular cancer, the negligence which caused the consequent injury was caused by the delay in a correct diagnosis, and the treatment fell within the scope of Crown Immunity. . .
Times 30-Mar-99, Gazette 21-Apr-99, [1999] EWCA Civ 1016, [1999] PIQR P204

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.79928

Regina v Aitken; Regina v Bennett; Regina v Barson: CMAC 8 Jul 1992

Recommendation to change rules allowing judge advocate to sit alone when the question is solely an issue of law.
Gazette 08-Jul-1992, [1992] 1 WLR 1006
Cited by:

  • Cited – Regina v Smith, Regina v Mercieca HL 16-Feb-2005
    A member of the jury wrote to the judge saying that other members were failing to discharge their duties properly. Smith took a tactical decision not to seek a retrial. The judge saw counsel in chambers, after which the jury were reminded of their . .
    Times 17-Feb-05, [2005] UKHL 12, [2005] 1 WLR 704, [2005] 1 All ER 29

These lists may be incomplete.
Updated: 04 December 2020; Ref: scu.86043

Scott v Regina: 2004

Participation in religious prayers were required of soldiers during routine parades at a Canadian Forces base. The soldiers were preceded by an order to remove headdress. The soldier had no religious convictions, had (after having previously raised with his superior his concerns about being made to participate in a prayer service in which he did not believe) refused to remove his headdress (but had evidently continued to stand on parade) and was being charged simply with that refusal.
Held: The order conflicted with paragraph 2(a) of the Charter: ‘The order that was given . . was to show ‘respect’ for what was being done and not mere passive toleration. That is to say, it was designed to constrain him to make a public gesture of approval for a religious ceremony in which he did not believe. .
The fact that the practice of pronouncing prayers at parades and requiring some form of public assent thereto has been hallowed by a tradition of many years in the military as well as other circles cannot justify a breach of the appellant’s Charter rights. We emphasize that what was required of the appellant was active participation in the religious ceremony with which he disagreed. The question of enforced passive participation by mere presence is an entirely different issue and one that we do not reach today.’
[2004] 123 CRR (2d) 371
Canada
Cited by:

  • Approved – Commodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
    Soldier’s right not to attend religious service
    (The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the rleigious elements of force parades.
    Held: ‘The Board has no doubt that Mr Laramore was ‘hindered in the enjoyment of his freedom of . .
    [2017] UKPC 13, [2017] 1 WLR 2752, [2017] WLR(D) 334

These lists may be incomplete.
Updated: 01 December 2020; Ref: scu.582140

Regina v Brown: CMAC 19 Jul 2007

The defendant appealed his convicion for failiing to obey an order to return, after also being accused of being absent without leave from his duties.
Held: The fact of being absent without leave did not excuse a failure to obey a lawful order.
References: Times 23-Oct-2007
Judges: Lord Phillips of Worth Matravers, LCJ, David J, Simon J
Statutes: Naval Discipline Act 1957 17(1)(a)
Jurisdiction: England and Wales

Last Update: 21 November 2020; Ref: scu.261442

Regina v McEnhill: CMAC 4 Feb 1999

A Court Martial should make allowance, when sentencing, for the exceptional financial penalty implicit in a custodial sentence for a serving officer. Such a sentence could lead to a loss of pension rights, and other penalties which would not suffered by civilians in otherwise comparable circumstances.
References: Times 04-Feb-1999

Last Update: 21 November 2020; Ref: scu.88554

Regina v McKendry: CMAC 16 Mar 2001

The circumstances of the different armed services would differ considerably from each other in the seriousness of the effect of being absent without leave. Accordingly, it was not appropriate to seek to impose on the different services a requirement that they should act on a standard basis. The court felt it would be entirely improper to seek to impose such a common standard.
References: Times 16-Mar-2001

Last Update: 21 November 2020; Ref: scu.88555

Regina v RAF General Court-Martial and Another, ex parte Wright: QBD 1 Jul 1999

It is not an abuse of process for the same officer to make recommendations to higher officers on whether charges should be referred to higher authority or dismissed, and also eventually to make the actual decision on whether a prosecution should proceed. The dual role of such officers did not offend against natural justice.
References: Times 01-Jul-1999

Last Update: 21 November 2020; Ref: scu.85451

Sophocleous and Others v Secretary of State for The Foreign and Commonwealth Office and Another: QBD 12 Jan 2018

The 34 claimants complained of assaults, beatings, rape and other acts of violence allegedly inflicted from 1956 to 1958 in Cyprus during the ‘Cyprus Emergency’ (the Emergency) by agents of the United Kingdom government and of the then Colonial Administration of Cyprus.
References: [2018] EWHC 19 (QB)
Links: Bailii
Judges: KerrJ
Jurisdiction: England and Wales

Last Update: 15 November 2020; Ref: scu.602630

K and Others, Regina (on The Application of) v The Secretary of State for Defence and Another: CA 23 Nov 2016

The claimants appealed against rejection of their claims that they had acted as covert intelligence sources for the British Army in Afghanistan, and should have been given support and assistance accordingly.
References: [2016] EWCA Civ 1149, [2016] WLR(D) 625
Links: Bailii, WLRD
Judges: Longmore, Treacy, Underhill LJJ
Jurisdiction: England and Wales

Last Update: 26 October 2020; Ref: scu.571937

LSA, Regina v: CACD 16 May 2008

(Courts-Martial Appeals Court) The defendant had faced road traffic offence charges, but the court had discharged the case using the Forest of Dean case. The prosecutor sought to appeal but failed to give the undertaking with regard to taking no further action if the appeal did not succeed as required under the Order.
Held: The prosecution’s right of appeal under Article 4 is, just as is its civilian equivalent under s 58 Criminal Justice Act 2003, an interlocutory appeal. The assertion to the contrary made on behalf of the defendant in the course of argument was wrong. The scheme for these appeals is that the proceedings in the court below stand adjourned pending the hearing of the appeal: see Article 4(10), the mirror of s 58(10), under which the ruling is to have no effect pending the outcome of the appeal.
Hughes LJ said: ‘we are unable to see how these statutory provisions can be read as meaning anything other than that there is no right of appeal unless the undertaking is given to the court of trial at the time of the announcement of the intention to appeal. The Order, with s 58 of the Criminal Justice Act 2003, represents a major departure from the former law. The Crown is given a right of appeal in relation to trial on indictment for the first time. Moreover, it is given a right of interlocutory appeal. The new right is given on strict terms. It may be that the new right could have been as effectively controlled if the statute and order had provided that whether or not an undertaking in the terms of article 4(8) was given in open court, any appeal was to be on terms that if leave were refused, or the appeal abandoned, or it failed in due course, acquittal should follow. Or it may be that alternative form of control would not be so effective. What is clear is that alternative form of control is not what has been enacted. The words ‘may not . . unless, at or before that time’ must be given their effect. They require the giving of the undertaking in open court at the time of invocation of the right of appeal and they say that the prosecution ‘may not’ inform the court it intends to appeal, unless this is done. The object is clearly to require the Crown to commit itself from the outset. Nor can we see any proper basis of construction under which what is in section 58(8) . . can be read differently according to whether the ruling under challenge is ipso facto fatal to the prosecution or one in relation to which the Crown chooses to give the acquittal agreement. There would, moreover, be considerable scope for argument about which category some rulings fall into. On these grounds alone, we are unable to see that we have any jurisdiction to hear the appeal against either ruling.
Prosecutors who wish to launch appeals against rulings must give the article . . section 58(8) undertaking in open court at the time of invoking the right of appeal. We are not asked to consider whether it must be given in any particular form, and have not done so; it may well be that it can be given in shorthand or by reference to the statute; given, however, it must be, and that must happen at or before the time of invoking the right of appeal.’
The Elrington principle is a rule against sequential trials. It is in no sense breached if two charges arising out of the same facts are put before the same court on the same occasion.
Hughes LJ explained the requirement for the acquittal undertaking: ‘ . . we are unable to see how these statutory provisions can be read as meaning anything other than that there is no right of appeal unless the undertaking is given to the court of trial at the time of the announcement of the intention to appeal. The Order, with section 58 of the Criminal Justice Act 2003, represents a major departure from the former law. The Crown is given a right of appeal in relation to trial on indictment for the first time. Moreover, it is given a right of interlocutory appeal. The new right is given on strict terms . . The words ‘may not unless, at or before that time’ must be given their effect. They require the giving of the undertaking in open court at the time of invocation of the right of appeal and they say that the prosecution ‘may not’ inform the court it intends to appeal, unless this is done. . .
As we have made clear, Art. 4 of the Order is in terms materially identical to s.58 of the Criminal Justice Act 2003. Prosecutors who wish to launch appeals against rulings must give the Art.4(8)/s.58(8) undertaking in open court at the time of invoking the right of appeal. We are not asked to consider whether it must be given in any particular form, and have not done so; it may well be that it can be given in shorthand or by reference to the statute; given, however, it must be, and that must happen at or before the time of invoking the right of appeal.’
References: [2008] EWCA Crim 1034, [2008] 2 Cr App R 37, [2008] RTR 25, [2008] 1 WLR 2881, [2009] 1 All ER 1103
Links: Bailii
Judges: Hughes LJ, Treacy J, Sir Peter Cresswell
Statutes: Courts-Martial (Prosecution Appeals) Order 2000 (SI 2006/1786) 4(8), Criminal Justice Act 2003 58(8), Air Force Act 1955 36(1)
Jurisdiction: England and Wales
This case cites:

  • Explained – Regina v Forest of Dean Justices ex parte Farley CACD 1990 ([1990] RTR 228)
    The prosecutor had charged the defendant first with drink driving so as to take advantage of the provision placing upon the defendant the burden of proving that he had taken drink after the traffic accident and before testing. It iintended then to . .
  • Cited – Regina v Hartnett CACD 2003 ([2003] Crim LR 719)
    The defendant had pleaded guilty in the magistrates’ court to an excess alcohol offence. He was then committed to the Crown Court for trial on an associated charge of dangerous driving on the same occasion. He pleaded guilty to that also. He . .
  • Cited – Regina v R CACD 29-Feb-2008 (, [2008] EWCA Crim 370)
    The court considered the application of section 58 to prosecution appeals and the use of the ‘acquittal agreement’. . .
  • Explained – Regina v Elrington 9-Nov-1861 ([1861] 1 B and S 688, 121 ER 170, [1861] EngR 901, , (1861) 1 B and S 688, (1861) 121 ER 870)
    The appellant’s co-accused had been summarily tried and acquitted of common assault. The accused was subsequently indicted on the same facts for assault causing grievous bodily harm and assault causing actual bodily harm. The accused demurred.
  • Cited – Connelly v Director of Public Prosecutions HL 1964 ([1964] 2 AC 1254, [1964] 2 All ER 401)
    The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
    Held: The majority identified a narrow . .
  • Cited – Clarke, Regina v; Regina v McDaid HL 6-Feb-2008 (, [2008] UKHL 8, [2008] 1 WLR 338, [2008] 2 Cr App R 2, [2008] Crim LR 551, [2008] 2 All ER 665)
    An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
    Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .

This case is cited by:

  • Cited – NT, Regina v CACD 31-Mar-2010 (, [2010] EWCA Crim 711, [2010] WLR (D) 93, , [2010] 4 All ER 545, [2010] 2 Cr App Rep 12, [2010] Crim LR 711, [2010] 1 WLR 2655)
    The prosecutor appealed against a stay of the prosecution as an abuse. The prosecution had failed give the undertaking necessary on lodging the appeal to the court against whose ruling it wanted to appeal, that it agreed that the defendant should be . .
  • Cited – PY, Regina v CACD 22-Jan-2019 (, [2019] EWCA Crim 17, [2019] WLR(D) 38, )
    The prosecutor wished to appeal from the acquittal of a police officer, whose police dog, while being exercised, attacked a runner causing injury. The judge had accepted the defence, since the dog required exercise, the officer was using the dog for . .
  • Cited – Wangige, Regina v CACD 14-Oct-2020 (, [2020] EWCA Crim 1319)
    The defendant appealed his conviction of causing death by dangerous driving. He appealed from the refusal of the judge to give a stay the prosecution as an abuse He had been previously prosecuted for a lesser offence on the same facts.
    Held: . .

These lists may be incomplete.
Last Update: 16 October 2020; Ref: scu.267714

Nour, Regina (on The Application of) v Secretary of State for Defence and Another: Admn 28 Sep 2015

The Claimant challenges assessments made under the Overseas Security and Justice Assistance Human Rights Guidance in relation to the provision of assistance and training offered to the Sudanese Armed Forces under the ‘Defence Engagement Sudan’ programme.
References: [2015] EWHC 2695 (Admin)
Links: Bailii
Judges: Simon J

Last Update: 13 October 2020; Ref: scu.552786

Cox v Army Council: PC 1963

References: [1963] AC 48, (1962) 46 Cr App R 258
Coram: Viscount Simonds, Lord Reid
Ratio: The provisions of the English Army Act, are to be applied ‘in diverse circumstances wherever the armed forces of the Crown happen to be, in developed or undeveloped countries, as conquerors or guests, and their purpose is . . Disciplinary.’ Criminal law applies only in respect of acts committed or omissions made within England. Viscount Simons said: ‘apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England.’ and ‘with rare exceptions the whole body of our criminal law is ‘domestic’ in the sense that it is made for the order and good government of this country and is applicable only to acts done on English soil.’
This case is cited by:

  • Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL (Bailii, [2009] UKHL 45, Times 31-Jul-09, [2009] UKHRR 1104, (2009) 12 CCL Rep 498, [2009] HRLR 32, [2010] 1 Cr App R 1, (2009) 109 BMLR 153, 12 CCL Rep 498, 27 BHRC 126, [2009] 3 WLR 403, [2009] 4 All ER 1147)
    The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would want her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .

(This list may be incomplete)

Last Update: 19 March 2019
Ref: 373404

Britain Steamship Company Limited v The King and Others (‘The Matiana’): HL 1921

References: [1921] 1 AC 99
Coram: Lord Atkinson, Lord Wright, Viscount Cave, Lord Shaw
The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant ships convoyed, whose task was simply to sail peacefully on the course they might be directed to follow, and to keep their proper places in the convoy, became so identified with the ships of war directing and protecting them, as to be treated as members of a joint flotilla on a common enterprise. I concur with Atkin LJ in thinking that the learned judge treats as he said the sheep and the shepherd as both engaged in the operation of shepherding. The duties and proper tasks of convoying warships and the ships they convoy are respectively indicated in ss 30 and 31 of the Naval Discipline Act of 1866 . . The naval officers are to diligently perform the duties of convoying and protecting the ships they are appointed to convoy according to instructions, to defend these ships and the goods they carry without deviation, to fight in their defence if they are assailed and not to abandon them or expose them to hazard. Every master or other officer in command of any merchant or other vessel convoyed is bound to obey the commanding officer of the ships of war in all matters relating to the navigation or security of the convoy, and is also bound to take such precautions for avoiding the enemy as may be directed by this commanding officer. It does not appear, however, that this latter officer has any power to require the master, officers or crew of any merchant ship which is being convoyed to take combative action against a vessel of any kind, or to join in such action if taken by all or any of the ships of war. The roles of the two classes of ships are entirely different in nature and character. That of the ships of war is protective and if need be combative; that of the merchantmen is not at all combative in nature and character as would be their enterprise in time of peace’ Viscount Cave: ‘But in the present case the orders were a part of the convoying operation which included the choice of the route, the setting of the course, and the precautions taken on the voyage; and I do not think that the transaction can be split up and treated as in part an operation and in part something other than an operation . . .’
Lord Shaw: ‘ . . I think that the putting of a vessel under convoy, with all that that involves, is an actual and accomplished change of circumstances and an operation which is conducted in the course of hostilities or war . . .’ and ‘To all intents and purposes it is the same as if he had placed on the convoyed ship a naval officer in command as subordinate to himself. In short, so far as the direction of the course of the vessel was concerned, the merchant captain and officers were no longer in control. The naval officers were. Not only so, but the orders of the commander of the convoy were clothed with the instant sanction of force . . . I myself see great force in the view which Bailhache J. so clearly expresses to the effect that all the vessels – those acting as convoy and those under convoy – must be treated as a unity. . . . I am humbly of opinion that, so far as ships under convoy are concerned, all these ships are, along with the ships acting as convoy, under a unified command, and that command issuing from the commander of the convoy is, as part of the direction of the convoy, a military operation.’
Statutes: Naval Discipline Act 1866 30
This case cites:

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)
Last Update: 16-Dec-15 Ref: 237694

In Re Mansergh; 11 Jun 1861

References: [1861] EngR 711, (1861) 1 B & S 400, (1861) 121 ER 764
Links: Commonlii
Jurisdiction of Queen’s bench over tribunals abroad. Court martial. Military status.-I. This Court has no jurisdiction over tribunals out of the realm of England, although in countries subject to the British Crown. 2. Where the civil rights of a person in military service are affected by the judgment of a military tribunal, in which that tribunal has acted without jurisdiction, or has exceeded its jurisdiction, this Court will interfere; aliter where nothing but the military status of the party is affected by the judgmeat.-3. A. Captain in the Queen’s service, when stationed with his regiment in india, was gazetted to a majority ; and the appointment was notified in the general orders of the Commander-in-chief in India at head quarters, and in the regimental orders.

Crompton v The United Kingdom; 13 May 2008

References: [1999] ECHR 183, 42509/05
Links: Bailii
(date) Statement of Facts
Statutes: European Convention on Human Rights
This case is cited by:

  • Statement of Facts – Crompton -v- The United Kingdom ECHR (42509/05, Bailii, [2009] ECHR 1659, (2010) 50 EHRR 36)
    The applicant had joined the Territorial Army as a pay and accounts clerk but was made redundant. He claimed redress in respect of his redundancy from his Commanding Officer. There then followed a prolonged series of proceedings which took eleven . .
  • Statement of Facts – Crompton -v- The United Kingdom ECHR (Bailii, [2011] ECHR 1656, 42509/05)
    Supervision of execution of final judgments. . .

Britain Steamship Company Limited v The King and Others (‘The Matiana’): CA 1919

References: [1919] 2 KB 670
Coram: Bailhache J
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in the dark under the command of a naval officer to avoid possible torpedos. The court considered whether a merchant ship had been acting when in convoy as a military vessel: ‘sailing in convoy on a chosen route and taking precautionary measures [zig-zagging] necessary because of the presence of hostile submarines had led to the vessel being stranded. It was subsequently torpedoed’.
Held: There was no negligence on the part of the ship’s master or of the naval officer. The loss was not he proximate consequence of warlike operations, and responsibilty fell on the insurers, and not the King.
This case is cited by:

(This list may be incomplete)
Last Update: 19-Jan-16 Ref: 237696